November 30, 2007
As reported last year, Keith Whittle got heated and sued an old friend, Theo Cummings, who had prosecuted a heated body pad patent for him gratis, for doing a bad job of it; namely, leaving out the heated part. Whittle also sued Proctor & Gamble, where Cummings used to work, and Theo's wife, for no good reason that the presiding judge could figure. Tuesday the judge pitched the case under Federal Civil Procedure Rule 12(b)(6) for failing to state a claim upon which relief can be granted, the "what are we talking about?" rule. The judge will allow Whittle to refile a more cogent complaint. Cogency does not appear to be Keith Whittle's long suit.
November 29, 2007
6,233,389, owned by TiVo, claims a TV time warp: recording a program while playing back another. Suing EchoStar for infringement, EchoStar pulled the reexamination trigger. All that got was a bulletproof patent.
Paul Lew and Jason Schiers dreamed up a wheel hub with a clutch, for bicycles, which allowed free wheeling when not pedaling, but instantly engaged when pedaling. The torque transfer was "through a multitude of ball bearings." Lew got 6,644,452 for it. Prosecuting the continuation, he canceled his original claims and submitted a substitute specification, essentially identical, except replacing "ball bearings" with "curved members," and "pockets" with "slots," both new terms. The examiner balked.
November 28, 2007
Closed Circuit Claim Construction
Elbex Video sued Sensormatic Electronics for infringing closed-circuit TV patent 4,989,085. The district court granted summary judgment of non-infringement based on claim construction. On appeal, the CAFC went 2-1 in not finding the prosecution estoppel that the district court perceived.
For a prosecution statement to prevail over the plain language of the claim, the statement must be clear and unmistakable such that the public should be entitled to rely on any “definitive statements made during prosecution.” Omega, 334 F.3d at 1324.
Lancor owns Nigerian and U.S. patents on four-shift keyboards, used in the Konyin Multilingual Keyboard. After fruitless licensing negotiations, last Thursday, Lancor sued, in Nigeria, a fellow Massachusetts company, the One Laptop Per Child (OLPC) Association.
November 27, 2007
Coase, the Internet, and a Market for Ideas
The Internet is changing the economic costs and benefits of many activities in our society. The economics of innovation are changing too. The result could be the emergence, for the first time in history, of an efficient market for ideas.
November 26, 2007
Injunctions Since eBay
The 2006 Supreme Court ruling in eBay v. MercExchange was the last significant SCOTUS denouement on patent injunctions since Continental Paper Bag in 1908. A balanced assessment, applying "principles of equity" of the infringement in light of the infringed party and the infringer was the theme of the eBay decision. Though the language of the court was muddy, the presumed clarion call was that non-practicing patent holders would be hard put to get an injunction; that being direct competitors would be the best bet to stop infringement in its tracks. An exception proves the rule, as a survey of 28 post-eBay district court dances by Andrew Beckerman-Rodau of Suffolk University reveals.
November 23, 2007
Qualcomm Skirmishes Update
The ITC dropped Nokia's complaint against Qualcomm, pending arbitration; warfare between the two continues in court. In a long-running Broadcom battle, Broadcom just settled for $19.6 million, after a winning a $39.3 million jury award for willful infringement, overturned by the trial judge because the CAFC set the willfulness standard near the ceiling in Seagate this past August. Broadcom and Qualcomm continue to duke it out, with Broadcom so far generally getting the better punches in. Qualcomm is a patent pusher as well as a sometime patent pinata.
Burst.com has three employees. Last year it lost a half million dollars. It could afford to, because in 2005, Microsoft paid Burst.com $60 million for license to its streaming media patents. Apple fought, not entirely unsuccessfully, but just settled for $10 million. Burst.com is now beavering for who to badger next.
November 20, 2007
The USPTO has been outsourcing the examination of PCT applications for a little over a year now, yet most applicants remain in the dark. What's the upshot?
The Big Charade
The USPTO released last week its fiscal year 2007 "Performance and Accountability Report", praising itself for "achieving another record-breaking year in performance." The numbers: a record number of patents "examined" = 362,227; quality compliance = 96.5% (what the hell is that?: dotting the 'i's and crossing the 't's, a triumph of nitpick over substance); BPAI upholding examiners 69% of the time (an intra-agency highly symbolic number), up from 51% in 2005, indicating how much better the PTO has stacked the deck against applicants; and grants down to 51% from 72% in 2000, as if, nationwide, patent attorneys' heads turned to mush as they suddenly spewed garbage patent applications left and right. Yeah, right. All puppet performance, no accountability.
Taxing Patent Reform
Another bullet dodged as the Patent Reform Act of 2007 crumbles to dust; three years' running of the Senate failing to do something really stupid about patents; the House, being ever slightly more craven to special interests, had no trouble wallowing to the lowest common denominator of patent idiocy. Post-grant opposition and damages apportionment were the Senate's statutory showstoppers. So, not this calendar year, it seems, but expression of commitment for patent reform simmers in the Senate before the 110th Congress checks out. What's getting a real head of steam is scratching out tax patents.
November 19, 2007
The Examiners' Burden
In March 2005, USPTO management unilaterally terminated the collective bargaining agreement it had reached with POPA, the examiners' union. Thus began a new round of negotiations, which, in a letter Monday to examiners, is considered at a mid-point impasse. As POPA put it: "The agency has taken a number of positions that are very harsh towards examiners."
November 18, 2007
In 1996 Apotex sued Merck for infringing high blood pressure medicine patents 5,573,780 & 5,690,962. The outcome was invalidity via §102(g), Merck having done beforehand what Apotex claimed; that withstood appeal. Apotex then argued that Merck concealed its invention; that too shot down. Then Apotex charged fraud; laughed out of district court. Never-say-die Apotex sulked, then belatedly appealed.
November 17, 2007
Serial patent infringer Microsoft, who bitches mightily about having to pay patent "taxes," got nailed $115 million in damages, plus a $25 million kicker for doing it when they should have known better, and attorneys fees, for willfully infringing z4 patents that cover Microsoft's product activation feature, used in both Office and Windows. Microsoft was denied JMOL, which it appealed.
November 16, 2007
Part Of A Winning Team
An examiner at the USPTO commented about Margaret J.A. Peterlin, Deputy Director, "another Hill staffer that has been sent over here to manage the PTO. There has been some griping by examiners and SPEs about her qualifications and her abilities." Peterlin is a former lapdog for Illinois Republican Rep. Dennis Hastert, an erstwhile wrestling coach.
Good Ole Exhaustion
Consumers Union (CU) and the Electronic Frontier Foundation (EFF) filed a joint brief to the Supreme Court strongly urging the court to overrule the misguided Mallinckrodt line of cases, thereby restoring the traditional patent exhaustion doctrine.
The Hanging Tree
Patent malpractice accusations are becoming more frequent as the value of patents has generally increased. With that, the costs associated with malpractice are also going up. Back in 1985, IP attorneys were but a shade over one-half percent of malpractice claims. The rate as of 1999 had breached the 1% mark. With USPTO prosecution proceedings becoming positively squirrelly, and thus more demanding upon prosecutors, a specter looms that the patent malpractice problem may worsen.
November 15, 2007
Kamil Idris, Sudanese national, head of the World Intellectual Property Organization (WIPO) for a decade, is retiring early in the wake of protest that he had been inventive with his biographical particulars.
Victory at Sea
The USPTO announces success in increasing pendency: up to 32 months. Director Jon Dudas, in a phone interview, crowed: "In the near term, we'll see pendency grow for a few years." The Congressional Government Accountability Office credited agency management with unrealistic production goals fostering massive examiner turnover. Meanwhile, the patent grant percentage is down to 51% from 72% in 2000, as applicants clog the office with their crappy ideas.
In facilely reasoned tones, Cisco general counsel Mark Chandler pleads in the San Francisco Chronicle for indulgence to pass sorry legislation gutting patent enforcement. Simple logic, and history, defy the stance of those serial infringers who would denigrate patents and rig the system to their advantage.
November 14, 2007
Barack Obama, a former law professor, still a first-term senator, and now a reputedly charismatic but greenhorn presidential candidate, supports patent extravagance and band-aids: gold-plated patents, and a new post-grant opposition proceeding by the PTO. The more robust idea of an overall better examination regime via turfing out the clowns now running the show either hasn't occurred to him, or isn't splashy enough.
Microsoft has inked a broad patent cross-licensing agreement with Kyocera Mita, Japanese maker of printers, copiers, and Linux-based embedded devices. Since December 2003, when Microsoft finally figured out that licensing patents was a good idea, it has entered into more than 200 patent cross-licenses, and been sued for patent infringement at least twice that, doling out billions of dollars in damages and settlements.
November 13, 2007
The September Comiskey (mental processes) and Nuijten (signals) CAFC §101 decisions rocked the patent world. In unctuous spirit of thrashing patentable subject matter, the USPTO Patent Board of Appeals and Interferences (BPAI) has joined the agency's crusade of wanton illegality, wreaking havoc with in its recent decisions. One wag, through gritted teeth: "Judges Barret and MacDonald seem to be the bad apples; almost always on the panel when the Board issues a real stinker decision. How do you get the idea of incompetent legal analysis across to the official to whom the Board reports - James Toupin[, patent office general counsel]? The blind leading the blind."
The patent police state known as the USA is enshrined in the Constitution: sovereign immunity. The 11th amendment immunizes those sanctioned by the State from infringement accountability. Example: the University of California is an 800-pound patent gorilla that can't be touched, but gets all the bananas it wants.
November 12, 2007
Having paid the piper a half-billion dollars, Microsoft next month issues an update to Internet Explorer that is vintage: instantly active ActiveX controls. Having settled with Eolas Technologies for patent infringement, Microsoft can ditch its "click to activate" workaround. The Eolas patent, 5,838,906, claimed instantly active web page content. Microsoft extravagently fought eight years over the single-click feature before caving in.
The Wall Street Journal today posted a mixed message and a Milquetoast blog entry on Intellectual Ventures, itself an ambitious and ambivalent player in the patent game. What Intellectual Ventures most clearly lacks is the ability to project that it possesses a sound business model.
November 9, 2007
Opposition to Opposition
The United States currently has a sufficient open-ended post-grant opposition process in the form of inter partes re-examination. So, does the proposed statutory reform for a different protocol make sense? Dale Carlson in the National Law Journal: "The recent experience of three Asian countries that have implemented, and subsequently abolished, patent opposition systems signals a resounding 'No.'"
November 8, 2007
Ruthlessly incompetent USPTO management continues to flummox the patent community with its illegal and outrageous rule-making. The latest episode is revising appeal rules. Public comments have been posted, none complimentary; worthwhile reading. But, however compelling, you can't clue the clueless. In other words, don't hold your breath that the patent agency won't proceed apace in yet another rules-from-fools folly.
Thirty-one venture capitalists wrote Senators Leahy and Specter, opposing major portions of the Patent Reform Act of 2007: damages apportionment; open-ended open-season post-grant challenge; and lowering the standard for inequitable conduct.
Vonage, long beset by patent litigation, appears to be clawing its way out of a deep hole: it settled with AT&T, the last company to hammer Vonage with its patents, for $39 million. Vonage had previously put behind it, at considerable expense, suits from Verizon ($120 million) and Sprint Nextel ($80 million).
November 7, 2007
Zenon Environmental sued US Filter for infringing water filter patents: 6,620,319; 6,245,239; 6,550,747. In district court, Zenon crapped out on claim construction, leading to a non-infringement decision, as did US Filter on invalidating '319. On appeal, '319 validity took center stage - a defective incorporation rendered the family parent anticipatory, offing its offspring.
I Swear Tele-Works
Deputy Director of the USPTO, Margaret J.A. Peterlin, testified before a House of Representatives committee in a hearing entitled "Telework: Breaking New Ground."
From the patent office announcement:
The USPTO has long been recognized as a pioneer in the area of telework for its innovative and flexible programs.
November 6, 2007
Varieties of table grapes may be patented. The U.S. Department of Agriculture (USDA) is a cultivator of new varieties, releasing them on a trial basis to growers, to evaluate growing potential and commercial viability. The USDA also patents grapes.
The California Table Grape Commission (CTGC), established by the state legislature in 1967, is funded by a 13¢ per box assessment levied on shippers of table grapes in the state. In the late 1990s, CTGC started licensing table grape patents from the USDA, and enforcing licenses on state grape growers. From there the story peels.
The clock runs low on the Senate shoveling the shyst numbered S. 1145. Heavy heels dug in on both sides, a bridge between nowhere in sight. "Damages apportionment" rightfully is the big stalemate. As in the past two years, statutory patent deformation withers on the vine of irreconcilable contention.
November 5, 2007
High-tech Goliaths who routinely flaunt the law by abusing their market power are consistently rebuked for regarding themselves as being "above the law" - and justifiably so. The Patent Reform Act now up for vote in the U.S. Senate is but the latest blatant example of how Goliaths are wielding their power to smother innovation. Indeed, the Goliaths seek a major overhaul of our patent system that would pave the way for them to roll over competitors by misappropriating their intellectual property.
Orion IP is filling its little galaxy with patent lawsuits and subsequent licensing lucre, sallying forth to grab gobs from up to 100 companies, and that's just for starters in its enforcement campaign. The two little numbers hooking the crowd: 5,367,627, claiming a computer-assisted sales method for associating parts to products; while 5,615,342 claims generating a product sales pitch based on a questionnaire.
November 2, 2007
Illumination in Range
Mr. Rolfes, an employee of Phillips, sent a letter to Iwasaki Electric, offering to licensing 5,109,181, which claimed a particular halogen lamp. No reply; litigation disco. On appeal, some light shed on claimed ranges and the doctrine of equivalents.
Attrition is atrocious at the USPTO. Why? Having paid my dues to play the blues as an examiner, a few notes sing out.
November 1, 2007
Back from the Dead
Microtome was granted 5,734,823, claiming encrypted storage. The patent was then acquired by IPDN, who went bankrupt. Diego bought the patent, "as is," at the bankruptcy estate sale. The appeals court was riveted: "The facts of this case read like a novel in that they involve the resurrection of an inventor thought to be deceased." Ultimately a tale of 35 U.S.C. § 285, granting attorneys fees for exceptional cases.