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December 31, 2007

Rear View 2007

2007 was a raucous year for patents. The high courts and patent office shuffled the deck chairs like madmen. Patents sleazed and slimed in the hallowed halls of the whores of Congress. Business as usual as a few patents went big bang for the buck, while others crashed on the shoals of a new artificial reef called KSR.


Phillips v. AWH was a 2005 CAFC claim construction classic. Remanded, the district judge in the case has overturned the $1.85 million willful infringement jury award, entering JMOL of non-infringement. The case lasted a decade.

SCOTUS blew the doors off the barn for the declaratory judgment horses to run wild. Its MedImmune decision became a litigation spawning ground; no more friendly chit-chat about licensing.

"About" went roundabout in the CAFC: "[T]he word “about” does not have a universal meaning in patent claims, . . . the meaning depends upon the technological facts of the particular case."

Emory Law school review editor Jim McDonough called Patent Hawk and got an earful about so-called patent trolls, then wrote an insightful perspective: "Patent trolls provide liquidity, market clearing, and increased efficiency to the patent markets—the same benefits securities dealers supply capital markets." Later in the year, Mr. McDonough graduated, and is now with Fish & Richardson.


The USPTO got $1.9 billion for its 2008 budget, but with abysmal management, a lot of waste is in the offing.

Inequitable conduct got dusted off by the CAFC, with a reminder that there is a direct relationship between the materiality of known but undisclosed prior art and presumption of intent to deceive.

Aquatex won the "Bonehead Enforcer of the Year" award with its assertion against Technique Solutions, throwing away an easy win via doctrine of equivalents by failing to provide any evidence worth a fluff.


Serial infringers in the mega-IT crowd kept taking it on the chin. Their attempted comeuppance was legislative patent reform, but, while it peed on the pole in the House, that dog didn't hunt.

Sony put behind it a string of courtroom embarrassments by settling a five-year battle with Immersion for $150 million.

Hard-nosed Intel laid down to Amberwave for undisclosed big green.

While mega-IT was trying to gut patent enforcement by trying to buy Congress, at least one IT cowboy knew how to hold a patent gun. Pistoleer Hewlett-Packard packed heat against Acer.

Festo received a refresh from the CAFC Cross Medical decision: "A patentee who narrows a claim as a condition for obtaining a patent disavows his claim to the broader subject matter, whether the amendment was made to avoid the prior art or to comply with § 112. The tangential relation criterion for overcoming the Festo presumption is very narrow."

As a prelude to SCOTUS big bad news, obviousness got salted like snow on the road in a slushy decision by the CAFC in Apotex v. Pfizer.

The appeals court followed up MedImmune with its Sandisk and Teva rulings that made filing declaratory judgment as simple as sensing a fearful whisper.


Patent Hawk lectured the Supreme Court on obviousness, to no avail.

In a bitter 2-1 decision, the appeals court discovered inherent anticipation, a concept extended in by the Supreme Court in its KSR ruling. The CAFC: "[A] prior art reference without express reference to a claim limitation may nonetheless anticipate by inherency."

On April 30, the Supreme Court unleashed a patent killing pit bull known as KSR. Unanimous in its unaccountable arrogant criminality, SCOTUS determined one of "ordinary skill in the art" to be as creative as any inventor. Impermissible hindsight became permissible, while the statutory presumption of patent validity was stripped and sodomized. Stunningly, few commentators at the time could read the writing on the wall.

Microsoft won one in the SCOTUS extraterritoriality (§271(f)) AT&T case. What was most apparent was supreme ignorance of software as patentable. Only Justice Stevens flashed a clue.


Amazon and IBM smoked the patent peace pipe, with Amazon providing the tabacco.

Reputedly in the can pre-KSR, but smelling the same, the CAFC applied the power of hindsight in Leapfrog v. Fisher-Price & Mattel. Do you think those judges hobnob?

The USPTO patent board ignored evidence in making decisions. It wasn't an isolated case.

Forgent sucked up $20 million from hapless saps for its video recorder patent before EchoStar stood up and shot it dead.

The Australian high court did a KSR in reverse.


Dr. Craig Ventor vicariously lives a bug's life, and filed for patent protection on making friends.

Hal Wegner tore the U.S. high courts a new one about chemical compound obviousness.

Sloppy claim language took a hit, though the CAFC wouldn't own up to it.

Star Scientific smoked some bad leaf in its assertion against R. J. Reynolds. A judge snuffed a butt of inequitable conduct.


The ITC, injunction its only relief to give, pronounced a religious conversion in light of KSR, considering "the public interest."

A high-flying but confused CAFC lays out patent roulette. In the KSR theatre of the absurd, foreseeability in hindsight becomes a central tenet of obviousness, and belief systems become an obvious reality: "Scientific confirmation of what was already believed to be true may be a valuable contribution, but it does not give rise to a patentable invention."

Ignoring its own precedents and intrinsic evidence, the CAFC can't tell single from plural, even when it makes all the difference in a case. The CAFC would later rule there is no difference.

Having caught a heavy dose of patent curmugeonliness, KSR infects the PTO like a fever. Even patent powerhouse IBM was screwed by imagination as prior art.

Considering consistency the hobgoblin of small minds, in a rare dismissal of a declaratory judgment counterclaim by Nucleonics, the CAFC wanted an immediate controversy, ignoring the fact that Benitec Australia had sued for infringement in the first place.

The appeals court required actuality, not capability, for finding infringement.

The CAFC carelessly exempted research tools for genetic experiments from the prospect of patent infringement.


The PTO again proved the power of KSR in a reexamination of a patent by Icon Health & Fitness.

3M got a charge from its lithium-ion battery patents.

Patent Hawk played patent Nostradamus.

A CAFC ruling in Re Seagate raises the bar of willful infringement to "a showing of objective recklessness." Attorney-client privilege remains sacrosanct, but not opinion counsel.

The ivory tower of academia rose to a new high of delusion as Stanford law school professor Mark Lemley put on a fool's cap and mooned the patent world by declaring that KSR "will affect 10 applications a year, maybe 50, out of 450,000." This after KSR had already affected more patent applications than that.

Ormco and Align flashed bad teeth, asserting against each other from their respective portfolios of rotten orthodontic patents.

Presumption of validity not even given lip service, the CAFC decided that design patent novelty must be pointed out by the patentee.


ATI sued every car maker it could think of with a patent that drove drunk: no wheels of enablement. The car crashed.

Avantis got bit by KSR for its viper venom extract. The appeals court ruled that if there is some "desirable property" of a chemical mixture, or if even if there is "reason to believe that this is so," the mixture is obvious, "without an explicit teaching."

The CAFC reissued a non-precedential obviousness decision as precedential, so it could be used to maintain the KSR fiction that the statutory "ordinary skill in the art" has an inventor's level of skill and education, as well as being omnificent.

The appeals court wanted tangibility, declaring mental processes (Comiskey) and signals (Nuijten) unpatentable. The signals ruling belied an understanding of basic science.

The CAFC delineated forms of infringement.

The appeals court caught the patent office unable to tell the difference between flexible and rigid.


Not lacking hubris, Monsanto asserted a patent for genetic manipulation applicable to any and all plants. The seedling wilted and died.

IBM dressed in drag as Miss Congeniality and punted a patent application for outsourcing services after a nerd raised a ruckus.

The USPTO published its revised obviousness guidelines in light of KSR. More than 10 patent applications were affected, but don't ask law professor Mark Lemley about that.

Ole Nilssen switched on his light bulb patents and got himself in the Guinness Book of Bad Patents.

Patent Hawk obsessed over the domino effect of KSR. He wasn't alone.

Economist Pat Choate exposed the would-be patent rapers known as the Coalition for Patent Fairness.


The California Table Grape Commission was accused of squeezing grape growers with a patent racket.

The CAFC showed intolerance by drowning Zenon Environmental's family of water filter patents because a faulty incorporation.

The patent police state remained rock solid on a foundation of sovereign immunity.

The 2006 eBay Supreme Court ruling effectively curtailed injunctive relief, a survey revealed.

The appeals court found prosecution estoppel required a "clear and unmistakable" disclaimer.


The IRS announced that it doesn't want anyone paying a patent tax for tax patents.

Kamil Idris, WIPO director general for the past decade, agreed to step down after being accused of fiddling with his credentials and birth date, taking with him a full year's salary of over $300,000 and full pension benefits. Would that we all could suffer such disgrace.

DC district court couldn't bring itself to interpret the law about requiring top USPTO officials to be qualified by previous experience.

Statisticians empirically demonstrated that patent office management collectively and respectively have their heads up their asses.

Addled by management, PTO examiners smoke rule-crack, rejecting patent applications in denial of its own rules and due process.

The CAFC gave the ITC a lesson in claim construction. Then the appeals court showed its math skills: claim terms in singular form by default encompass a plurality as well.

Through the Year

Running amok, the USPTO promulgated a wide-ranging series of noxious rules designed to offload its job of patent examination onto applicants, and generally fuck up the action on the patent prosecution craps table. Its overseer (OMB OIRA) didn't lift a finger to stop the agency. Patent practitioners everywhere were seriously displeased. The agency's most offensive continuation limits were thwarted by a few heroic do-gooders, at least for a time.

Patent Hawk railed at PTO management incompetence. The oversight Government Accounting Office (GAO) concurred.

Meanwhile, PTO examination quality deteriorated as word came down from on high to slam the lid on allowances. A problem a decade ago of junk patents has become a problem of junk examination.

While the Supreme Court continued to play the piper against patents, the CAFC danced to the tune, inconsistently and sometimes incoherently dinging patent holders.

Qualcomm battled badly on the patent front, getting hammered by Broadcom, including an ITC ban, and hammered by the court for hiding reams of crucial documents during discovery. Ironically cursing "to hell with ethics," Qualcomm's lawyers wanted to skirt attorney-client privilege to evade court sanctions.

The infinite cash cow Microsoft was repeatedly milked (including by Eolas, winner of a half-billion dollar award, for its notorious active web content patent, and Z4 for product activation), but the clumsy Alactel-Lucent missed the boat against Microsoft, including reversal of a $1.5 billion award. Microsoft rattled chains about Linux infringing its patents, spooking Novell and a few other Linux vendors into paying spare change for protection money. Along the way, not knowing how to make serious money on its patents, Microsoft made patent friends of Fuji Xerox, Samsung, LG, and Kyocera Mita, among others.

Vonage, a punching bag for phone patent holders, took it on the jaw three times, from Verizon, Sprint, and AT&T. At year's end, Vonage gracefully settled with Nortel.

Congress raked in buckets of money making bi-partisan noise about passing infringer-happy patent reform. In the end it was a bluff by the Senate, but they promise to run the same racket next year. The 'gotcha' issue was damages apportionment. Practically singing solo, a rare Republican pointed to an emperor with no clothes, but holding a whopping wallet.

Posted by Patent Hawk at December 31, 2007 12:27 PM | The Patent System


Just a typo:

"Verizon, a punching bag for phone patent holders, took it on the jaw three times, from Verizon, Sprint, and AT&T."

Well actually, Verizon is a member of the Coalition for Patent Fairness, so they are attempting to land a blow to America's jaw (and by extension, to their own).

Posted by: NIPRA anonymous at December 31, 2007 1:02 PM

Thanks. Verizon/Vonage typo fixed.

Posted by: Patent Hawk at December 31, 2007 1:57 PM

An excellent summary of why many patent practitioners are considering new careers. There has never been a year this bad in my 24 years of practicing. But there's 2008 to look forward to with Leahy patent "reform" and the indefatiguable USPTO forcing yet more regulation on a system that they broke.

Happy New Year!

Posted by: Joyce at December 31, 2007 6:35 PM

It is ironic that US is gradually destroying its venerable 200-year old patent system while other countries like China or Russia are starting to recognize the importance of protecting inventor's rights for long-term economic prosperity

President Putin has recently announced a program to strengthen country's IP laws in order to accelerate technological progress
Maybe they should invite him to run the USPTO when his presidential term is up next year instead of those idiots Dudas amd Peterlin,
not to mention all the whores in US Congress...
God save this country from idiots in power !
Happy New Year !

Posted by: angry dude at December 31, 2007 10:53 PM