October 31, 2007
The Empire Strikes Out
Judge James Cacheris of the Eastern District of Virginia issued a last-minute preliminary injunction against the USPTO imposing its new rules limiting continuations and claims examined, finding merit that at least some of the rule changes may be illegal, exceeding statutory authority.
AT&T won a reversal of the stunning $156 million tab for infringing TGIP calling card patents. Judge Ron Clark in the Eastern District of Texas cast aside a doctrine of equivalents (DOE) jury verdict based on non-infringement, given claim construction.
October 30, 2007
The Empire Strikes Back
On November 1, 2007, the USPTO expects to implement rules aimed to improve the quality and efficiency of patent application examination, lead to higher quality patents, and reduce a growing backlog of applications that is crippling the Office. The rules are the product of extensive planning and development.
Economist Pat Choate has produced a research paper for the U.S. Business and Industry Council (USBIC), examining "the arguments in favor of patent “reform” that are being spread by the Coalition for Patent Fairness (CPF), the organization representing Big Tech corporations on the issue." USBIC President Kevin Kearns asks the large-issue questions:
These Big Tech multinationals were themselves start-ups with a few patents and a few dreams not that long ago, and do not need to alter the U.S. patent system to conform to their business model at the expense of other models. Simply put, do some of the most profitable corporations in America need to add marginally to their bottom lines by undermining the patent protections that a full range of other companies depend upon for their livelihood – not to mention their employees? Having made it to the top, should they be permitted to deny the next generation of small technology innovators the opportunity to climb the American ladder of success?
Last Thursday, Senator Chuck Schumer (D-NY) faxed a letter to PTO honcho Jon Dudas, raising concerns about the imminent rules for limiting continuations and examination of claims: "The proposed rules... may have the unintended consequences of stifling... innovation, and I urge you to consider delaying their implementation."
October 29, 2007
Patent prosecutors will be tricked or treated before All-hallow-even, as East Virginia Judge James Chacheris has scheduled a hearing Wednesday to hear GlaxoSmithKline's motion for an injunction against the USPTO's odious examination rules changes, the day before the rules are set to go into effect, establishing a pagan ritual of patent sacrifice, beginning All Hallows Day. The patent community cheers GSK in hopes of securing a temporary restraining order from Judge Chaceris, whose choice of hearing date intimates a just complaint.
October 27, 2007
Twenty months ago in your role as the Solicitor for the United States Patent and Trademark Office you addressed the Bar Association of the District of Columbia; you spoke against a statutory elimination of excessive continuations applications because of an Agency "bubble" problem, while asserting that the Congress would clearly support repeal of multiple continuing applications – that your former Agency is now eliminating through rulemaking you helped craft in your former role.
Pick Me Up
SanDisk, a flash memory maker, saw its shares plummet since publishing its Q3 results on October 17. What better way to say "I'm a player!" than a rollicking patent enforcement campaign. So Wednesday, SanDisk unfurled assertions against 25 companies, with two beefy actions in the new hot rocket docket of Western Wisconsin, and a large order of fries at the old stalwart ITC.
October 26, 2007
Beyond Black Thursday
Hal Wegner on the bigger picture:
The Continuation Rules are the current focus of attention absorbing the attention of the patent community - will "Black Thursday" actually transpire next week, November 1st, when the Continuation Rules are scheduled to take effect? Will there be a preliminary injunction to block implementation? What, ultimately, will the Federal Circuit say about all this?
6,593,318 & divisional 6,593,320, owned by Par Pharmaceuticals, "relate to stable flocculated suspensions of megestrol acetate and methods for making such suspensions." Par's patented work sprung from trying to design around 5,338,732, owned by Bristol-Myers Squibb. In the event, Par sued Roxanne for infringement. Roxanne got a district court summary judgment of invalidity via lack of enablement (§112 ¶1) because the claims were so broad. Par futilely appealed.
October 25, 2007
On the Verizon
Verizon and Vonage settled Verizon's patent assertion. Vonage had been found infringing two Verizon patents, a ruling upheld last month by the CAFC, with a third remanded for specific damage reassessment. Vonage has requested an en banc rehearing. The price tag is $80 or $120 million, depending on the outcome of CAFC decision; the lower figure if Vonage prevails.
Reports flow in of siege at the USPTO fortress over examination limits. Casualties have already occurred: the twin angels of human relationships, Equity & Comity, appear seriously wounded. The large caliber catapult known as IBM has rolled into position, lobbing projectiles at the fortress. Now we hear that a defector is whispering dissent, that the cause may not be just, aghast at the thought of innocent lives, infant inventions strangled as they lie in their cradles.
October 24, 2007
One of the red-meat brethren of corporations clamoring for statutory patent evisceration, Intel, inked a $250 million dollar agreement with Transmeta, settling patent infringement charges leveled in 2006.
The Innovation Alliance squared off with the Coalition for Patent Fairness today. Chorused together, the sound is a keening for change, but not the slop that sits on top of S. 1145, the Senate companion to H.R. 1908.
Hockey Helmets and Patent Markets
What do patent owners have in common with hockey players?
October 23, 2007
It is now apparent that in the view of the USPTO, KSR went much further than previously thought in eroding the certainty established by decades of Federal Circuit precedent. Taken together, KSR and the Guidelines result in an unfair system where the spirit of Article 1, Section 8, Clause 8 of the Constitution has been undermined. Furthermore, in some fields of art it seems as though only pioneering inventions are likely to be patentable.
Chrishan Samuel hired Townsend and Townsend to prosecute his patent. On May 20, 2005, Townsend employee Mr. R took the BART train to go to the post office to file Samuel's application; he promptly fell asleep on the train, but awoke just before his stop. Groggy, he left his bag with the application on the train. Samuel found out the next day, and the papers were filed on May 21. Samuel petitioned the USPTO to waive 37 CFR §1.10, to get the filing date wound back a day.
Biomedical Patent Management wants to sue the Department of Health Services (DHS) of the State of California for infringing 4,874,693, claiming screening for birth defects in pregnant women. DHS has intervened in a previous action against Kaiser, but this time sought a pass using the sovereign immunity defense, under the Eleventh Amendment. That's all it takes for the state to skip out; that the state involved itself previously in a related action makes no difference; it's not "the case at hand," i.e., the same case. (CAFC 06-1515)
Bruce Sewell, Intel general counsel, wailed in Washington Monday about "people who buy up patents for the purpose of litigating them. We're not talking about individual inventors who sue for patent infringement. We're talking about patent speculators who warehouse patents and use those patents to go after successful companies."
October 22, 2007
Richard B. Belzer, on behalf of masked men, ran numbers from masked men that led him to conclude that the USPTO's proposed prior art Information Disclosure Statement (IDS) rules related to the pending 5-25 examination rules are economically significant, contrary to patent agency assertion. As in, $7.3 billion a year significant. As former Senator Scoop Jackson of Washington state once mused: "a billion here, a billion there; before you know it, you're talking real money."
The Manual of Patent Examining Procedure (MPEP), eight edition, revision six (E8r6) is now available in PDF format. The more convenient HTML format is not quite ready yet; stay tuned for updates. That is all; carry on, fine prosecutors everywhere.
October 21, 2007
A flaw of temporal displacement, but very human: in hindsight, most everything appears obvious. Prior to the Supreme Court KSR ruling, patentable inventions correlated to real-world invention: incremental, and combinatorial. As Thomas Jefferson, the first patent board director, observed, new inventions spring from previously unthought combinations. Until KSR, concern about hindsight reasoning rendered courts circumspect for a metric that grappled with this subtle and pernicious tendency. No more.
October 20, 2007
Thinning the Patent Thicket
Thanks to KSR, the bar of §103(a) is set obscenely high for patent prosecution. Examiner rejections on obviousness, regularly combining three and four references to cover all the claim limitations, reek of hindsight, and are pasted with the thinnest of glue: e.g. "it would have been obvious to one of ordinary skill in the art at the time of invention to combine four patentably distinct references of unrelated subject matter because it would have been advantageous, as the applicant claimed."
AT&T sued Vonage Wednesday in the Western District of Wisconsin for infringing 6,487,200, of 1996 vintage, claiming basic VOIP using a regular telephone. This on the heels of settling with Sprint, and still wrangling with Verizon. AT&T and Vonage had been negotiating for some time prior to AT&T losing its patience.
October 19, 2007
Stopping Limiting Continuations Continued
Inventor Dr. Tafas was first to the courthouse to sue Jon Dudas for the new examination limits, specifically, limiting continuations. GlaxoSmithKline followed suit. Steven J. Moore at Kelley Drye & Warren, Tafas counsel, informs that "the Glaxo case has been consolidated into the Tafas case." Tafas has filed an amended complaint. And Hal Wegner analyzes the justifications, and pitfalls, of late-stage continuation filings.
October 18, 2007
Paice sued Toyota over three hybrid electric vehicle drive train patents: 5,343,970; 6,209,672; 6,554,088. Paice scored a doctrine of equivalents (DOE) win, with $4.3 million in damages. The district court sua sponte imposed an ongoing royalty on Toyota. Toyota appealed the infringement verdict, while Paice wanted a permanent injunction; neither got in gear. But the CAFC remanded for the district court to justify its ongoing royalty rate, though considered it permissible for a court to set such a rate, albeit gently discouraging it as general practice. Dissenting judge Rader thought better: that the court setting the rate without the parties' input smacked of a compulsory license.
Susan Dudley, Administrator of the Office of Information and Regulatory Affairs (OIRA) for the Office of Management and Budget (OMB), overseer of regulatory shenanigans by government agencies, is a bad mother to the errant child known as the patent office; letting it eat far too much cake of its own baking for everybody's own good. Ms. Dudley was the one who let the examination limits rules slide on by without so much as a "boo." Now comes a crowd of community-minded citizens to complain once more, that Dudas the Menace is fibbing again; this time over new rules for requiring Information Disclosure Statements (IDS) for patent submissions: "In the proposed IDS Rule, USPTO has again misrepresented to OMB the breadth and depth of the effects likely to result. The proposed IDS Rule is clearly “economically significant.” If finalized, it will impose billions of dollars of burden on patent applicants and owners."
Revenge of the Jedi
It is virtually impossible to find anyone outside the Patent Office who thinks the new rules on claims and continuations schedule to take effect on November 1, 2007, make any sense at all. The new rules are simply absurd. Not only do they limit the number of claims unless you want to file an Examination Support Document, but they also limit the number of continuations you can file and they are retroactive. On top of that there has been some evidence to suggest that the Patent Office started enforcing the new rules in mid October 2007, although they appear to have seen the error of their ways and have stopped such enforcement. Who could possibly think that any of this is fair?
October 17, 2007
Gemstar, which has a patent portfolio of over 200 patents, mostly related to online TV guides, has sued Toshiba for infringing one of its Japanese variants. Gemstar also has a current case against Digeo in the Central District of California.
Feeling the pressure of pendency no longer, the bowels of the USPTO are tightening for the 5/25 examination limits, with the patent agency prematurely playing loose with its own rules. While the limits are stated to be in effect November 1, de facto implementation is already proceeding, as it appears unexamined patent applications with more claims than allowed under the new rules are being pulled from their dockets, effectively pre-retarded.
Owing to the Seagate CAFC ruling this past August, essentially scuttling patent infringement willfulness, Southern California U.S. District Judge James Selna mulled a new trial for Qualcomm in its double-damages loss of $39.3 million to Broadcom. "It would be an understatement to say that the Federal Circuit rewrote decades of case law interpreting the requirements for demonstrating willful infringement," Selna penned in his opinion.
October 16, 2007
In the Red Hat
Showing the way for Microsoft to stop shooting off its mouth about Linux getting a patent free ride and slap down a lawsuit, as if Microsoft needs the money or their market position is being imperiled; Linux distributors Red Hat and Novell are facing the sharp end of the patent stick; the stick having on its sharp but gooey end moldy Xerox patents now owned by an Acacia subsidiary: 5,072,412, 5,533,183 and 5,394,521. These patents claimed shared user interface workspaces, but are now claiming to be able to rake money off the table.
October 15, 2007
October 13, 2007
Translogic Technology sued Hitachi and Renesas over electronics multiplexer patent 5,162,666. Beginning shortly after assertion, Hitachi threw mud until it stuck: filing a series of five reexamination requests, later consolidated into one. The reexam and litigation trains rolled on dual tracks. The patent having withstood invalidity assault in court, Translogic scored an $86 million damages award from an Oregon jury, and a permanent injunction from the judge. But the reexam examiner found the patent combo-obvious; a finding upheld by the patent appeal board. Hitachi appealed the court decision, while Translogic appealed the patent office invalidation.
The Patent Reform Act of 2007 carries an effective presumption of patent agency incompetence by offering a post-grant opposition challenge, a more hellish version of the current reexamination action that works just fine. An innocent inventor with a newly minted patent faces a corporation hell-bent on taking the patent out of the picture, so the corporation files a post-grant opposition, a process that ties up the patent for five years or more while costing the inventor up to a half million dollars to defend his patent grant; not a cheery prospect many inventors could afford.
October 12, 2007
In a woe-is-us shuck-and-jive press release, the same folks that'd have you think ethanol from corn is a good idea want the Patent Reform Act of 2007 to pass as a means of eviscerating patent enforcement. "American Corn Growers Association (ACGA)... does not oppose new technology such as GMOs, but we must... level the playing field for small farmers." Leveling the playing field means getting the same subsidy for infringing intellectual property that corn farmers receive for growing their crops in the first place; looking to Uncle Sam for another hand-out. That's why it's called "free enterprise."
5,799,273 covers software speech recognition. Asserted by AllVoice against Nuance Communications, summary judgment shot the patent down to indefiniteness and best mode. The appeals court reversed. The district court had failed to consider the level of one of ordinary skill in construing the claims; definite enough to one skilled enough. The CAFC also relied upon claim differentiation for construction. As to best mode: "every claim need not contain every feature taught in the specification."
October 11, 2007
GlaxoSmithKline is attempting to vaccinate inventors from the examination limits pandemic about to hit, which inexorably will lead to digestive distress and headaches for prosecutors, as well as depression for inventors who cannot adequately protect their inventions. GSK's medication was injected in the Eastern District of Virginia on Tuesday against Jon Dudas as USPTO honcho.
October 10, 2007
Ole Nilssen reaped a slew of patents related to electrical lighting. He asserted 15 against Osram Sylvania. Osram got the district court to find five reasons that the patents were unenforceable due to inequitable conduct, and the CAFC concurred. While not egregious in outrageousness, the number of reasons puts Nilssen in the Guinness Book of Bad Patents.
The Obvious Guide
“The Guidelines stress that the familiar factual inquiries announced by the Supreme Court in its much earlier decision, Graham v. John Deere Co., 383 U.S. 1, 148 USPQ 459 (1966), remain the basis for every decision regarding obviousness,” noted Commissioner for Patents John Doll. “That is, patent examiners will continue to consider (1) the scope and content of the prior art, (2) the differences between the claimed invention and the prior art, (3) the level of ordinary skill in the pertinent art, and (4) objective evidence relevant to the issue of obviousness.”
October 9, 2007
Attention Inventors - the Peer-to-Patent people want you to expose yourself. You'll need a waiver to wag it, because the whole thing is barely legal. The USPTO-sponsored pilot program to let nerds with too much time on their hands play whack-a-mole with your patent application is promoting itself. Given that the program is limited to 250 applications, and has been going for months, with name-plating from major corporations, who apparently are not participating very actively, this smacks of desperation.
Slapping a happy face on a dressing down, the patent agency carries the torch of the recent GAO report dunning them for not slapping a happy face on examiners so they'll stay working at the USPTO, and for not hiring enough examiners to meet workload. An internal office website posting has USPTO Director Jon Dudas praising the GAO report.
Examination Limits Briefing
Examiners have just been briefed on the examination limits. The USPTO PowerPoint presentation, available here, serves as an excellent walk-through of the impending rules, with, naturally, occasional agency spin.
Trial Lawyers' Nightmare
19 attorneys that represented Qualcomm in its debauched video compression patent suit against Broadcom are fighting to defend themselves against accusation of hiding evidence, hobbled by sacrosanct attorney-client privilege.
October 8, 2007
Vonage & Sprint Settle
Vonage settled its patent flap with Sprint Nextel, agreeing to fork out $80 million for past damages and ongoing license.
October 7, 2007
Patent infotainment at the 19th hole: John Paul Newport in his Golf Journal at the Wall Street Journal putts an interesting tale of golf ball patents.
October 6, 2007
October 5, 2007
Judge Marsh Pechman in the Western District of Washington sanctioned Eon-Net for its swing at Flagstar and others for infringing 6,683,697. "The Court was shocked to learn" that Eon-Net had an enforcement campaign going, Pechman diddled. She then got hammered for her naiveté by the CAFC: Eon-Net deserves some respect.
As pendency has ballooned, USPTO management has been pushing a crack-the-whip production system for examiners which has met stiff resistance from POPA, the examiner corps professional organization. Now the oversight GAO fingers the PTO for ignoring the burgeoning backlog in its hiring goals, and not adequately addressing examiner attrition: culprit #1 - production goals.
October 4, 2007
Genetically engineered herbicide-resistant plant seeds are the blooming sprout in the agri-business patent crop. Monsanto, which has an extensive portfolio, tried to twist Sygenta's ear of corn for infringing 5,538,880, 6,013,863 and 4,940,835. One fact that led to summary judgment of non-infringement was that Sygenta's seeds were a later generation, the progenitor seed pre-dating the asserted patents. Another was that Syngenta had license to produce progeny seeds. And the kicker was that Sygenta didn't perform all the process steps of an asserted claim: Monsanto did the initial claimed steps. Another problem that Monsanto had was claiming a process for all plants, when it had fiddled just a few.
October 2, 2007
Amateur Hour Open Season
Chris Wong, project manager of the Peer to Patent pilot program, where select voluntary patent applications are rousted by amateur-found prior art, wants the law changed to allow third-party prior art submission for all patent applications.
Steve Perlman is a Silicon Valley computer maven, who helped colorize the Macintosh back in 1986, and invented WebTV. In the British online publication The Register, whose byline is "Biting the hand that feeds IT," Perlman extols the reality of the Patent Deform Act of 2007: "This is isn't pharm versus high-tech. This is people who need patents versus people who don't need patents." That includes those in the Coalition for Patent Fairness, a corporate lynch mob who'd rather be free to steal IP than have license to protect it.
October 1, 2007
IpVenture sallied forth to rake money off Prostar Computer and Midern Computer for infringing 6,216,235; Douglass Thomas, and his dad, Alan, inventors. The defendants got a squeamish district court to dismiss the case owing to lack of standing. The appeals court thought the lawsuit standing was copasetic.
Incompetence takes two basic forms. One is lacking skill to implement: a lack of craftsmanship. Implementation incompetence is, at best, low aptitude. The other is inability to conceptualize: a lack of comprehension. You can't clue the clueless. Incompetence thrives at the top tier of the USPTO, and it is damaging our country.