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November 30, 2007
Cold Case
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.
Posted by Patent Hawk at 6:16 PM | Litigation | Comments (2)
November 29, 2007
Time Warp
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.
Posted by Patent Hawk at 10:18 PM | Litigation | Comments (0)
New Matter
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.
Posted by Patent Hawk at 9:58 PM | § 112 | Comments (1)
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.
Continue reading "Closed Circuit Claim Construction"
Posted by Patent Hawk at 2:15 PM | Claim Construction | Comments (0)
Shift
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.
Posted by Patent Hawk at 12:17 PM | International | Comments (0)
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.
Continue reading "Coase, the Internet, and a Market for Ideas"
Posted by Michael Martin at 10:36 AM | The Patent System | Comments (5)
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.
Continue reading "Injunctions Since eBay"
Posted by Patent Hawk at 6:16 PM | Injunction | Comments (2)
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.
Continue reading "Qualcomm Skirmishes Update"
Posted by Patent Hawk at 11:04 PM | Patents In Business | Comments (0)
Pop
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.
Posted by Patent Hawk at 10:43 PM | Patents In Business | Comments (9)
November 20, 2007
International Feel
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?
Continue reading "International Feel"
Posted by Mr. Platinum at 3:15 PM | The Patent Office | Comments (22)
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.
Continue reading "The Big Charade"
Posted by Patent Hawk at 2:59 PM | The Patent Office | Comments (5)
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.
Continue reading "Taxing Patent Reform"
Posted by Patent Hawk at 1:25 AM | The Patent System | Comments (2)
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."
Continue reading "The Examiners' Burden"
Posted by Patent Hawk at 11:26 PM | The Patent Office | Comments (4)
November 18, 2007
Blown Bubble
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.
Continue reading "Blown Bubble"
Posted by Patent Hawk at 2:37 PM | Litigation | Comments (0)
November 17, 2007
Infringing Activation
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.
Continue reading "Infringing Activation"
Posted by Patent Hawk at 5:02 PM | Litigation | Comments (6)
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.
Continue reading "Part Of A Winning Team"
Posted by Patent Hawk at 8:27 PM | The Patent Office | Comments (1)
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.
Continue reading "Good Ole Exhaustion"
Posted by Mr. Platinum at 2:26 PM | Exhaustion | Comments (1)
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.
Continue reading "The Hanging Tree"
Posted by Patent Hawk at 12:45 PM | Prosecution | Comments (1)
November 15, 2007
Wiped
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.
Posted by Patent Hawk at 1:20 PM | International | Comments (2)
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.
Posted by Patent Hawk at 11:55 AM | The Patent Office | Comments (0)
Crying Time
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.
Continue reading "Crying Time"
Posted by Patent Hawk at 11:33 AM | The Patent System | Comments (2)
November 14, 2007
Smoking Obama
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.
Continue reading "Smoking Obama"
Posted by Patent Hawk at 11:54 PM | The Patent System | Comments (1)
Another Friend
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.
Posted by Patent Hawk at 11:12 PM | Patents In Business | Comments (0)
November 13, 2007
101 Crumble
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."
Continue reading "101 Crumble"
Posted by Patent Hawk at 10:51 PM | Prosecution | Comments (0)
Impunity
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.
Posted by Patent Hawk at 8:25 PM | The Patent System | Comments (2)
November 12, 2007
ActiveX Again
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.
Posted by Patent Hawk at 11:40 PM | Patents In Business | Comments (0)
Venturing?
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.
Posted by Patent Hawk at 11:01 AM | Patents In Business | Comments (2)
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.'"
Continue reading "Opposition to Opposition"
Posted by Patent Hawk at 1:44 PM | The Patent System | Comments (6)
November 8, 2007
Not Appealing
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.
Continue reading "Not Appealing"
Posted by Patent Hawk at 11:59 AM | The Patent Office | Comments (1)
Money Talking
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.
Continue reading "Money Talking"
Posted by Patent Hawk at 10:12 AM | The Patent System | Comments (0)
Bon Vonage
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).
Posted by Patent Hawk at 9:50 AM | Patents In Business | Comments (0)
November 7, 2007
Unincorporated
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.
Continue reading "Unincorporated"
Posted by Patent Hawk at 5:53 PM | Case Law | Comments (0)
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.
Continue reading "I Swear Tele-Works"
Posted by Mr. Platinum at 1:52 PM | The Patent Office | Comments (9)
November 6, 2007
Grape Rape
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.
Posted by Patent Hawk at 8:48 PM | Patents In Business | Comments (1)
Tick-Tock
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.
Posted by Patent Hawk at 12:06 PM | The Patent System | Comments (0)
November 5, 2007
Goliaths
Dan
Leckrone of The TPL Group
opines in the
San Francisco Chronicle:
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.
Posted by Patent Hawk at 9:40 AM | The Patent System | Comments (0)
Cash Constellation
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.
Continue reading "Cash Constellation"
Posted by Patent Hawk at 12:50 AM | Patents In Business | Comments (0)
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.
Continue reading "Illumination in Range"
Posted by Patent Hawk at 2:26 PM | Case Law | Comments (0)
Attrition
Attrition
is atrocious at the USPTO. Why? Having paid my dues to play the blues as an
examiner, a few notes sing out.
Posted by Mr. Platinum at 7:32 AM | The Patent Office | Comments (14)
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.
Continue reading "Back from the Dead"
Posted by Patent Hawk at 10:09 PM | Case Law | Comments (1)
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