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March 31, 2008
Zune Rocks
Non-patent
entry; pardon my enthusiasm. Zune, the
late-entry portable music player from Microsoft, is wonderful. Apple's iTunes
software is aggravatingly slow, and has a clunky interface compared to Zune.
iPod device controls, particularly volume, are a touch difficult while on the
run (literally). Zune software is fabulous, nitpicks aside, and the device (4 or
8GB) pleasantly easy to use, especially volume control. I've committed my music
collection to Zune, in lossless format, of course. Zune software is free. Check
it out.
Posted by Patent Hawk at 5:30 PM | | Comments (6)
Anti Trust
The
American Antitrust Institute (aai) is a lobbyist corporation backed by
undisclosed lucre, doubtlessly large corporations. Their spiritual mentor is
Teddy Roosevelt: rough rider, trust buster, who once observed: "Every reform
movement has a lunatic fringe."
Posted by Patent Hawk at 1:40 AM | Antitrust
March 30, 2008
Commissioner Cack
In
an interview with
C/Net
News, USPTO Commissioner Jon Dudas:
What's, in lots of ways, more disturbing is in over half the cases where we say this isn't patentable, people just file again and get back in line. We want to make certain that people can't apply with a very broad patent application, which they know will get rejected. And then they get back in line, and meanwhile, they're looking out and seeing what's happening in the market. Sometimes they see that if they focused that broad claim, it could cover an existing technology... Then, (going by) the date of first filing, they can then say, 'I own that technology'... That's a very real concern. That gets more in line with concerns of troll behavior--someone who is literally watching the technology...so they can rise up out of the bridge and sue people.
Continue reading "Commissioner Cack"
Posted by Patent Hawk at 5:02 PM | The Patent Office | Comments (4)
An Algorithm Shy
Australia-based Aristocrat
threw away money getting gaming machine patent
6,093,102, and then threw away money trying to enforce it.
Means-plus-function with no unction. From the CAFC, a
crash course in means-plus-function claims for computers: the claimed function
is bounded by the specifically disclosed algorithm. Lacking an algorithmic
tether, a means-plus-function processor claim is indefinite.
Continue reading "An Algorithm Shy"
Posted by Patent Hawk at 1:02 AM | § 112 | Comments (11)
March 29, 2008
Mixed Claim Types
Both the USPTO and the courts proscribe
claims mixing statutory claim classes
as both unpatentable subject matter under
§101 and indefinite under
§112 ¶2.
But, as is often the case with claim construction, the line may seem fuzzy.
Herein a guide.
Continue reading "Mixed Claim Types"
Posted by Patent Hawk at 12:11 AM | Claim Construction | Comments (3)
March 28, 2008
Rogue Blogger
BeavisWeek
has a well written story by Michael Orey,
Busting a Rogue Blogger, about a dross patent blogger who pulled the wool
for a while. "Cisco General Counsel Mark Chandler even cited the blog as a good
independent source of information while in Washington lobbying for changes to
patent law that would rein in trolls, unaware he was plugging the work of a
Cisco employee." It's like the Bush administration churning propaganda to the
press about the situation in Iraq before the war, then quoting their published
reports from duped papers, such as the New York Times and Washington Post, as
corroborating news. Children playing grown-up games.
Posted by Patent Hawk at 11:31 PM | Patents In Business
Greenhorn Parade
Every
competent manager knows, if you have a morale problem with the troops, step one
is simple: ask the troops. Instead, Margaret Peterlin, Deputy Doodah for the
USPTO, is
tickled pink
to ask the kids in a local bidness skool what they think.
Continue reading "Greenhorn Parade"
Posted by Patent Hawk at 9:28 PM | The Patent Office | Comments (6)
Rats
Agrizap's
5,949,636 claims an electrocution rat killer. As CAFC Judge Moore
rhapsodized:
When the hapless pest makes contact with a high voltage electrode and a reference electrode, its body creates a leakage current that completes an electric circuit and triggers a generator. The generator then produces a voltage and current of sufficiently high magnitude to send the pest towards its demise.
Over the '636 product Rat Zapper, pest control distributor Woodstream and Agrizap dramatized a theatre of irony: Woodstream played the rat, and sent the patent pest to its demise.
Posted by Patent Hawk at 4:13 PM | Prior Art | Comments (2)
Sound Invention
Thomas
Edison has been credited with inventing sound reproduction, duly granted U.S.
patent
200,521 on an 1877 filing. Newly revived is the work of "Édouard-Léon Scott
de Martinville, a Parisian typesetter and tinkerer who went to his grave
convinced that credit for his breakthroughs had been improperly bestowed on
Edison."
Continue reading "Sound Invention"
Posted by Patent Hawk at 12:54 AM | Prior Art | Comments (1)
Bum Trip
In
an apparent non-sequitur, Avistar
Communications is blaming
Microsoft for its woes
in having to slash its workforce by 25%. Avistar had hoped to license its
patent portfolio to Microsoft. Ever the jester, Microsoft's response was to
hoist a USPTO reexamination petard on all 29 of Avistar's patents. Supposedly,
the PTO will only take up a reexam request given persuasive invalidity evidence.
Avistar mewed it "remains hopeful of reaching a favorable resolution with
Microsoft on licensing Avistar's intellectual property in the near future." For
anyone with an inkling as to what Microsoft thinks of paying a "patent tax,"
that's positively psychedelic.
Posted by Patent Hawk at 12:52 AM | Patents In Business
March 27, 2008
Reverse Gear
After
getting the hard
word from a Congressman, the ITC has reversed an administrative judge's stay
in pursuing Tessera's claims of infringement against Motorola, Freescale
Semiconductor, Qualcomm and other DRAM suppliers.
Posted by Patent Hawk at 11:29 PM | ITC
She Lit a Candle and Showed Me the Way
Patent examiners act as gatekeepers between inventors and the pearly entrance to patent glory. With the patent office hell-bent on rejection, achieving salvation can come down to knowing thy gatekeeper. Enter USPTO Examiners, a spanking new website, offering deliverance while boasting "We Examine the Examiners."
Continue reading "She Lit a Candle and Showed Me the Way"
Posted by Mr. Platinum at 2:22 PM | Prosecution | Comments (4)
Busybody
Mother
hen AIPLA is clucking over the Eastern
District of Texas.
28
U.S.C. §1391, the venue statute, grants broad latitude: any district where a "defendant
is subject to personal jurisdiction at the time the action is commenced."
Not good enough for AIPLA.
Posted by Patent Hawk at 12:33 PM | Litigation
March 26, 2008
Rambus Rambles
Memory
chip patent holder Rambus saw its stock
soar 39% on news that a San Jose jury dismissed charges from competitors Hynix,
Micron, and Nanya, that Rambus rigged the playing field by getting patents on
the SDRAM memory standard. This is a turnaround from a 2001 jury verdict
validating a fraud charge from Infineon, and a 2006 FTC ruling of deception, now
on appeal.
Continue reading "Rambus Rambles"
Posted by Patent Hawk at 6:58 PM | Patents In Business | Comments (5)
March 25, 2008
Killing the Crap Shoot
Over
a third of patent cases are reversed and remanded on
appeal.
Faulty claim construction is the reason half the time. As it is, district court
trial resembles a $3-$5 million roll of the dice.
Hal Wegner's
prescription: "One of the single most important reforms of the patent system is
a direction from the legislature that all patent cases should be handled by a
pool of patent-experienced trial judges. No reform is more critical, nor glaring
in its absence from Leahy S. 1145." What this country needs is a dedicated
patent trial circuit, preferably with shortcut arbitration capability.
Continue reading "Killing the Crap Shoot"
Posted by Patent Hawk at 9:26 PM | Litigation | Comments (6)
Protecting IP in China
The USPTO is offering a two-day seminar on protecting intellectual property in China. The program is free and will take place April 2-3 in Houston, TX. So, throw your Chi-pod in your Louis Vuitton knock-off and skip down to the Lone Star State.
Continue reading "Protecting IP in China"
Posted by Mr. Platinum at 11:22 AM | Patents In Business | Comments (2)
Clown Time Is Over
The
wrinkle with Frenkel got
the heave-ho,
snuffing anonymous blogging disco at Cisco. "A few Cisco employees used
poor judgment... We believe we have learned a valuable lesson from this
regrettable situation." Zorro don't live here no more.
Continue reading "Clown Time Is Over"
Posted by Patent Hawk at 12:11 AM | Patents In Business
March 24, 2008
On Behalf
Connecticut
Congressman Christopher Shays
wrote
the Chairman of the ITC last week, carping about the ITC sitting on its thumbs
during a PTO reexam while Tessera's patents wither on the vine.
Posted by Patent Hawk at 11:42 PM | ITC
Skewering Rubes
The
trolls of patent policy are academics. Over-credentialed chowderheads. Charts
and graphs depicting meaningless statistics, the meaning sucked out by being out
of proper context. Jumping to conclusions like frogs on hot sand, all the while
paying lip service to the complexity of reality. Jamming what fits into a
theoretical construct, leaving as offal inconvenient contrary facts.
Continue reading "Skewering Rubes"
Posted by Patent Hawk at 8:41 PM | The Patent System
Dim Lantern
AG
Design sued Trainman Lantern for
infringing
7,118,245. The west Washington district court judge granted a preliminary
injunction on the likelihood of infringement under doctrine of equivalents
(DOE), the accused device missing a claimed feature of multiple plug-in
ports. The appeals court found fault on a few fronts.
Continue reading "Dim Lantern"
Posted by Patent Hawk at 1:42 PM | Injunction | Comments (2)
March 23, 2008
Amateur Hour
WikiPatents
and the USPTO-condoned Peer to Patent
projects are attempts at solutions looking for a problem. The implicit
conjecture is that patent examiners are limited in their search capabilities,
and a helping hand is just what they need. Nothing could be further from the
truth. By fostering the impression that examiners need such help, a fake
Band-Aid is applied in the wrong place. The wound is PTO management.
Continue reading "Amateur Hour"
Posted by Patent Hawk at 1:50 AM | The Patent Office
March 22, 2008
Praise the Dudas
Joff
Wild of IAM Magazine praises Jon Dudas for bringing home the bacon: "What
the
Patent Prospector and other Dudas critics fail to acknowledge is that fee
diversion has ended on his watch." Wrong attribution.
Continue reading "Praise the Dudas"
Posted by Patent Hawk at 12:38 AM | The Patent Office | Comments (3)
March 21, 2008
Undocked
Computer
Docking Station Corp. (CDSC) took Dell, Gateway, and Toshiba to dock for infringing
5,187,645,
but bombed out: summary judgment of noninfringement, upheld on appeal.
Prosecution estoppel was the death knell: "the patentee disavowed an
interpretation of "portable computer" that would encompass a computer with a
built-in display or keyboard." All the accused products were laptop
computers with built-in display or keyboard.
Posted by Patent Hawk at 1:13 PM | Claim Construction
March 20, 2008
For the Corporations
Michael
Meurer, interviewed in
Forbes, equated the worth of the patent system to its value to corporations:
For most firms, the headache of a patent lawsuit is greater than the benefit of the patents they get and can use against other people... The patent system can't work unless it provides an incentive to innovators. It managed to do that for the average firm in 1984 and for pharmaceutical companies in 1999.
Continue reading "For the Corporations"
Posted by Patent Hawk at 7:28 PM | The Patent System
Old & Inexperienced
Marketing
Displays Inc. (MDI) has numerous patents on promotional signage, including "menuboards,"
"used in the fast food restaurant industry to depict a restaurant's menu items
and prices." Competitor LSI filed a declaratory judgment action in Eastern
Kentucky for noninfringement and invalidity. In response, MDI filed for
reexamination, which confirmed patentability of all claims. In the meantime, the
suit was stayed. After rekindling the litigation flame, the bamboozled judge
ruled noninfringement on summary judgment, based upon a hellacious claim
construction dustup. MDI appealed.
Continue reading "Old & Inexperienced"
Posted by Patent Hawk at 11:42 AM | Claim Construction
Don't Feel So Restricted
From MPEP 802.02: Restriction practice is designed to require applicants to "elect a single claimed invention (e.g., a combination or subcombination invention, a product or process invention, a species within a genus) for examination when two or more independent inventions and/or two or more distinct inventions are claimed in an application."
Continue reading "Don't Feel So Restricted"
Posted by Mr. Platinum at 6:15 AM | Prosecution | Comments (10)
March 19, 2008
Willfully
Australian
patent-holding company QPSX Developments 5 sued Nortel, Juniper Networks,
Lucent, Cisco and Alcatel in June 2005 for infringing
5,689,499, in east Texas. All settled but Nortel. Nortel lost.
Posted by Patent Hawk at 11:19 PM | Damages
Fully Funded Again
The
Senate last week, by unanimous approval, slipped into its 2009 budget an
amendment to condemn diverting funds from the USPTO. The Senate version of the
budget is sliced and diced in April, but PTO funds won't be on the plate. That
means the USPTO 2009 budget will exceed two billion dollars.
Continue reading "Fully Funded Again"
Posted by Patent Hawk at 4:52 PM | The Patent Office | Comments (1)
Beware
Mr.
Shun-Kuo Su of Taiwan gives an across-the-puddle perspective in
Forbes of U.S. patent deform in the making:
[T]he bill would eliminate patent-holders' protection against frivolous lawsuits... These and other changes in the proposed legislation would cause inventors' costs to skyrocket. Patent values would erode as their legal stature fall into question. Such a coordinated attack on American patents would be devastating to inventors--and to consumers who rely on their products.
Posted by Patent Hawk at 4:06 PM | The Patent System
Safe Harbor
Amgen complained to the ITC about
Roche importing a particular hormone as an infringement of Amgen process and
product patent claims. Roche got off the hook using 35 U.S.C. §271(e)(1), the
"safe harbor" statute, because the importation was allowed for drug development.
Amgen appealed, largely unsuccessfully.
Continue reading "Safe Harbor"
Posted by Patent Hawk at 1:24 PM | ITC
Hedgerow
Hedge
fund Riley Investment Management has gotten uppity about
Transmeta giving a $10 million bonus to
John O'Hara Horsley, Transmeta general counsel. Calling the bonus "outrageous,
illegal and unconscionable," Riley filed a lawsuit accusing Horsely, Transmeta
executives, and board members, of gross mismanagement, breach of fiduciary duty,
waste of corporate assets, and abuse of control. When asked, Riley demurred on
saying how it really felt.
Posted by Patent Hawk at 12:02 AM | Patents In Business
March 18, 2008
Dish Wishing
Dish
Network, formerly EchoStar, remains in denial, now begging the CAFC for a
reversal of its upholding a $73.9 million jury damages award for infringing
TiVo patents. Dish points to an expert
witness they claim was self-contradictory, thus leaving infringement in doubt.
What's most in doubt is whether Dish will get anything beyond a deaf ear to its
plea.
Continue reading "Dish Wishing"
Posted by Patent Hawk at 7:03 PM | Damages
When failure = success? Patents stimulate new ventures.
"If I had a world of my own, everything would be nonsense. Nothing would be what it is because everything would be what it isn't. And contrary-wise; what it is it wouldn't be, and what it wouldn't be, it would. You see?" - Alice in Wonderland
The PatentlyO posts from Bessen and Meurer are taking a trip to crazy-town. Their post today on "patent failure" focuses on the impact that the patent system has had on publicly traded companies.
Continue reading "When failure = success? Patents stimulate new ventures."
Posted by Michael Martin at 10:42 AM | The Patent System | Comments (7)
Nortel Phones It In
Toronto-based
Nortel Networks, known to hammer
competitors with patent litigation suits, spent $560,000 lobbying for patent
legislation in 2007; a Canadian company paying for the U.S. to foul its patent
regime; guess they figure patents are a zero-sum game to them.
Continue reading "Nortel Phones It In"
Posted by Patent Hawk at 1:21 AM | Patents In Business
March 17, 2008
Drama
Professor
Dennis
Crouch: "Over the past two decades, the number of patents being litigated
has risen dramatically." Crouch then shows a graph that's clear as mud: one axis
labeled "Patent Count;" the other "Year Complaint Was Filed." One has no way of
knowing, either by graph or explanation, whether "patent count" represents
number of complaints; or number of litigated patents total, irrespective of
number of complaints. Regardless what "patent count" means, most damning is
failure to normalize: to take into account the number of patents granted.
Posted by Patent Hawk at 4:22 PM | Litigation | Comments (7)
Here Boy
USPTO
statistics show reexamination to be an effective tool for bringing
questionable patent claims to dock: 64% of claims are amended, 10% cancelled;
26% emerge unscathed.
S. 1145
eliminates inter partes reexamination (Sec. 5), substituting a terminal one-year
open season. Patents are often not enforced in their first year; prior art may
take years to surface; the rules of validity change through time (e.g.
Obzilla).
The post-grant opposition section is exemplary of how ill-considered the 2007
Patent Act is; how little understanding by sponsor
Sen. Leahy in drafting the legislation,
who appears to be acting as a lapdog for certain special
interests in trying to foul one of the primary parts of this country's economic
engine.
Posted by Patent Hawk at 12:39 PM | The Patent System
March 16, 2008
Crossroads Ahead?
Patent
holders have been hit hard the past couple of years.
Declaratory judgment motions may now be filed at the drop of a hat,
obliterating licensing negotiation without first suing, thus rendering
litigation de rigueur.
Obzilla
is still wrecking havoc in combo-Tokyo, whilst Thomas Jefferson spins in his
grave.
Willfulness isn't just willful anymore, it's "objectively reckless": a
drunken rampage of infringement is required, or we was just boys being boys, ya'
know. Now, the obscenely ironically-named
Coalition for Patent Fairness (CPF) is
howling at the moon about nearly completing its purchase of our rent-to-own
Congress.
Continue reading "Crossroads Ahead?"
Posted by Patent Hawk at 5:43 PM | The Patent System | Comments (2)
March 15, 2008
Half Blind
35
U.S.C. §284 sets patent award "damages adequate to compensate for the
infringement but in no event less than a reasonable royalty for the use made of
the invention by the infringer." Georgia-Pacific v. United States Plywood
enumerated 15 factors upon which royalty determination may be made, and has
become the bedrock of damages case law. A reasonable royalty is judicially
defined as that amount which would have been set based upon a hypothetical
negotiation between willing parties. How would such a negotiation be conducted
between an infringer and a purely economic patentee (PEP), a patent holder that
is not practicing the infringed invention?
Posted by Patent Hawk at 8:02 PM | Damages | Comments (1)
Damages Trends
Contrary to propaganda, patent damages are not burgeoning; rather, remaining
fairly constant. On average, awarded damages in software cases are less than for
mining patents, and almost a third less than telecom patent cases. Juries award
larger damages, but that may be a statistical anomaly for the types of cases
tried before jury rather than at the bench. As purely economic patentees (PEPs)
participate more in the patent market in this decade, reasonable royalties
becomes more the basis for awards than lost profits.
Continue reading "Damages Trends"
Posted by Patent Hawk at 2:43 PM | Damages | Comments (1)
March 14, 2008
Litigation Trends
What
litigators already know: rocket dockets are the best bet; jury trials trump
bench trials for awards; being plaintiff is advantageous. East Virginia and
Western Wisconsin have the fastest rockets in their dockets, but offer only an
average 50-50 chance of success. Mid-Florida and East Texas report the highest
patent holder success rate, 67% & 55% respectively. Overall, East Virginia rates
the top jurisdiction.
Continue reading "Litigation Trends"
Posted by Patent Hawk at 9:27 PM | Litigation | Comments (1)
Patents, Property, and Corporations: a Historical and Economic Reminder
Economists Bessen and Meurer have published a book, Patent Failure, detailing the results of their study of the economic benefits of the patent system. In their own words, a central theme in the conclusions from their study is that "patents often fail to perform effectively as property rights." One legitimate answer to this claim is, "So what? Patents aren't exactly property rights anyway." But what are patents then? The purpose of this post is to explain how historically and economically patents can also be analogized to corporations. Thus, the criticisms that Bessen and Meurer make against the patent system tell only part of the story.
Continue reading "Patents, Property, and Corporations: a Historical and Economic Reminder"
Posted by Michael Martin at 2:03 PM | The Patent System
March 13, 2008
Failure
James
Bessen and Michael Meurer take a swing at
the U.S. patent system in their new book,
Patent Failure:
"Innovators have grown frustrated with the failings of the American patent
system." The book is fiction, based on fallacious premises and sophistic
analyses.
Posted by Patent Hawk at 11:23 PM | The Patent System
Guitar Hero
Gibson,
the electric guitar maker, owns
5,990,405, claiming a system for simulating user participation in a
pre-recorded musical performance, much like Activision's "Guitar Hero" game, a
billion-dollar hit in North America alone, selling 16 million copies. Activision
got a letter from Gibson in January, which had it hip-hop a DJ in LA. That's
cool jive for filing a declaratory judgment motion in the Central District of
California, seeking to invalidate the patent.
Continue reading "Guitar Hero"
Posted by Patent Hawk at 8:15 PM | Declaratory Judgment | Comments (1)
Nobody puts patents in a corner!
"Many of life's failures are people who did not realize how close they were to success when they gave up." -Thomas Edison
As regular readers know, the author is aware of imperfections in the current patent system in the United States. In that regard, he was very pleased to read about what looks like some good work done by a couple of economists on the patent system. In particular, these economists have studied and offered many insights into the ways in which the patent system is not functioning perfectly as a system of property rights.
Continue reading "Nobody puts patents in a corner!"
Posted by Michael Martin at 8:12 AM | The Patent System
Davids Against Goliaths
Digital
media, digital imaging, and wireless communications are the patented
technologies owned by three small inventors who have recently filed lawsuits
against major corporations.
Continue reading "Davids Against Goliaths"
Posted by Patent Hawk at 12:11 AM | Litigation | Comments (3)
March 12, 2008
Inequitable Conduct Policy
Former
USPTO Commissioner
Harry Manbeck, now with Rothwell,
Figg, Ernst & Manbeck, has written the Senate Judiciary Committee with a
wise perspective on one ill-considered decimation proposed in the folly codified
as S. 1145: "I believe that it would be a mistake to eviscerate the [inequitable
conduct] doctrine as it now stands."
Continue reading "Inequitable Conduct Policy"
Posted by Patent Hawk at 2:51 PM | The Patent System
Down & Outed
Rick
Frenkel had a juvenile impulse to blog anonymously. The juvenility was not so
much anonymity per se, it was blogging as he did - trying to out others while
staying masked. The inevitable occurred - Frenkel pissed off attorneys,
including the legendary Ray Niro, who put a bounty out for Frenkel's identity after Niro took
umbrage.
Frenkel outed himself just before being outed. Niro wasn't the only one
displeased.
Continue reading "Down & Outed"
Posted by Patent Hawk at 1:11 AM | The Patent System | Comments (9)
March 11, 2008
Cells Unstemed
WARF
is a patent holding company for the University of Wisconsin scientific
community. Three WARF stem cell patents that had validity aspersions cast by
"public interest" busybody Dan Ravicher of
PUBPAT have survived USPTO reexamination, albeit with some amendment.
Continue reading "Cells Unstemed"
Posted by Patent Hawk at 7:50 PM | Prosecution | Comments (2)
Did Bayh-Dole end Corporate R&D?
Thirty-years ago, many large corporations had entire in-house divisions devoted to R&D. Think of IBM's Watson and ARC Labs, AT&T Bell Labs, and Xerox PARC. Since that time, these R&D labs have greatly diminished in size or disappeared altogether. At the same time, the pace of innovation in the United States has not been slowed. Assuming that R&D is necessary for innovation, it's very important for us to ask what happened. Where did the R&D go? The Bayh-Dole Act is a prime suspect.
Continue reading "Did Bayh-Dole end Corporate R&D?"
Posted by Michael Martin at 8:55 AM | Patents In Business | Comments (3)
Appeallusion - Part II
As previously reported, the current affirmance rate of the USPTO Board of Patent Appeals and Interferences (BPAI) yields the illusion of high-quality examination at the PTO. Let's glance at rates that better demonstrate the unfortunate reality.
Continue reading "Appeallusion - Part II"
Posted by Mr. Platinum at 8:51 AM | Prosecution | Comments (1)
March 10, 2008
They Call This Reportage?
Mareen
Farrell gives a garbled account of the patent scene in Forbes: "They
Call This Intellectual Property?" Farrell surmises the source of pendency:
"Blame part of the pile-up on pesky filers of overly obvious patents." With no
sense of perspective, Farrell mentions KSR, but then rails about silly patents
issued before the PTO made patent grants as scarce as hen's teeth. News for
prosecutors: "To get a patent approved, inventors must establish, among other
things, that their invention or idea is not clearly manifest." Crystal ball in
hand, Farrell on patent reform: "The Senate is expected to vote... in the coming
months." No year for the "coming months" was given.
Posted by Patent Hawk at 11:39 PM | Patents In Business
Reaction to Reaction
Last
week, in reaction to the 2007 Patent Deform Act being stalled, the Coalition for
Patent Fairness (CPF) signaled
false compromise. Now, defenders of patent sensibility react. From the
Coalition for
21st Century Patent Reform -
"This proposed language from the Coalition for Patent Fairness does nothing to move patent reform closer to adoption. CPF's proposed damages language is merely a restatement of the "prior art subtraction" language that the Senate Judiciary Committee report has already recognized as deficient. As with the earlier language, it would result in a wholesale reduction in the value of damages awarded to inventors whose patents are infringed. This language would give a green light to would-be copyists, especially those in low labor cost countries, who will quickly realize that that they can knock off patented American technology with little or no fear of retribution. The end result of this proposal is that the incentive for innovation is dramatically reduced at the cost of thousands of American jobs and the loss of our leadership in life saving research and ingenuity."
Continue reading "Reaction to Reaction"
Posted by Patent Hawk at 9:54 PM | The Patent System
March 9, 2008
Pooked
Physicists
are realizing that dark energy holds the universe together. It's old feed for
wranglers at the corporate software corral that dark energy keeps the cattle in
the pen. So, Novell Vice President Miguel de Icaza last week whining that
Novell striking a patent licensing deal
with Microsoft was like bedding the
dark-side beast sounded less than intriguing; in fact, it sounded just like
whining. In yet another case of childhood reversion, de Icaza wished he stayed
to play in the sandbox of open source.
Posted by Patent Hawk at 1:15 PM | Patents In Business
Uncompromising Damages
The
Coalition for Patent Fairness and
Financial Services Roundtable last week
wrote Senators Leahy, Hatch, and Specter, tweaking a smidge their insistence on
damages apportionment as a sure means to clog the courts, maximize litigation
cost, and eviscerate patent enforcement. Modification to current language in the
Senate bill for damages apportionment is copasetic, as long as "the law makes
clear the inventor must prove the inclusion of the invention in a product is
what predominantly causes consumers to purchase the product." In other words, a
plaintiff would have to prove that the product is purchased for its infringing
value.
Continue reading "Uncompromising Damages"
Posted by Patent Hawk at 12:17 PM | The Patent System
March 8, 2008
Gold Standard
A patent discloses an invention that is useful, valuable, and innovative; a patent that protects invention with the broadest possible claims, but still novel and non-obvious over the prior art;
claims applicable under the doctrine of equivalents, untainted by prosecution
estoppel; a patent that cites the most relevant prior art. This is the gold-standard patent that prosecutors strive toward.
Continue reading "Gold Standard"
Posted by Mr. Platinum at 12:33 PM | Prosecution | Comments (1)
March 7, 2008
CIP Not A Divisional
Teva's
ANDA for a generic version of Pfizer's
Celebrex, an arthritis
treatment, predictably met with infringement assertion:
5,466,823;
5,563,165; and
5,760,068. Teva lost, and appealed, whereupon the CAFC found double
patenting in the '068. Safe harbor for divisionals under
35 U.S.C. § 121 applies only to divisionals, not CIPs, which '068 was.
Continue reading "CIP Not A Divisional"
Posted by Patent Hawk at 2:56 PM | Prior Art
March 6, 2008
Patent Looting
A mob of more than 180 German police and customs officials goose-stepped into
Europe's largest gadget uber-fair, and hauled off 68 cartons of booty alleged to be patent infringing. While
"innocent until proven guilty" is the lip service, guilty until proven innocent
is the reality worldwide; the raid was instigated by "criminal complaints
by the holders of patent rights in the run-up to
CeBit."
Continue reading "Patent Looting"
Posted by Patent Hawk at 9:04 PM | International | Comments (8)
Cock-up
Tessera
stock shot up 16% after it sank in to the motley fools commonly called
"investors" that the non-final rejection in Tessera's patent exam was not
equivalent to falling off a cliff. As Scot Griffin, general counsel for Tessera,
reminded: "Claims of a patent can not be invalidated in reexamination until the
process is fully complete, including all appeals."
Posted by Patent Hawk at 2:19 PM | Patents In Business
March 5, 2008
Appeallusion
The current affirmance rate of the
USPTO Board of Patent Appeals and Interferences (BPAI)
yields the illusion that examiners deserve a pat on the back for a job well
done, but behind every illusion lies reality. Let's peek at the man behind the curtain.
Continue reading "Appeallusion"
Posted by Mr. Platinum at 7:37 PM | Prosecution | Comments (10)
Contra-Validity
Bayer
tried to take Barr down for its aspirant
generic version of oral contraceptive
Yasmin®; using
6,787,531 as the preventive pill. Following trial, springing from the bushes
of a
96-page opinion,
Obzilla
claims another victim.
Continue reading "Contra-Validity"
Posted by Patent Hawk at 5:54 PM | Prior Art
Punted
The
power of patents to stock punters was apparent on Tuesday as
Tessera Technologies shares were battered in the wake of a non-final office action
in a patent reexamination; the price
ravaged 39%, losing $8.99, closing at $14.07. Like a kindergarten "time out," share trading was halted mid-day after a
free-fall of 52%; trading in massive volume. Tessera's patent gravy train has
reaped $250 million in licenses so far.
Posted by Patent Hawk at 12:08 AM | Prosecution | Comments (6)
March 4, 2008
Bang for Bucks
Senators
Leahy & Hatch keep
pounding their old tom-toms for the Patent Deform Act, but it's just to
pacify their patrons; the dancers have moved to another tune.
A Patent Prospector confidential source reports:
The latest from Washington is that (Senate Majority leader) Reid has said the bill won't come to the floor before April. The consensus is that if it doesn't pass then, it's lost in the election meat grinder. Leahy has said he won't bring up patent reform again next year, although that may be a hammer to get people to compromise because Reid doesn't want to devote floor time to anything that's not going to sail through. The lobbyists tell me that if Leahy had the 60 votes to break a filibuster, he would have brought it to the floor by now.
Continue reading "Bang for Bucks"
Posted by Patent Hawk at 3:47 PM | The Patent System | Comments (3)
March 3, 2008
End Software Patents
A
fantasy propaganda site called End
Software Patents (ESP) seeks an end to what doesn't exist: software patents.
Posted by Patent Hawk at 10:37 PM | The Patent System | Comments (3)
Visto Victorious
A
week before trial,
Microsoft has settled with Visto
assertion of three Visto data sync patents; terms undisclosed, of course. In
2006, Visto won $7.7 million in damages
against Seven Networks for the same patents. Meanwhile, Canadian chowderhead
Research in Motion (RIM), aiming to pay as much as possible, goes to trial in
July against four Visto patents.
Continue reading "Visto Victorious"
Posted by Patent Hawk at 11:55 AM | Patents In Business
Grasp by Analogy
On
the Supreme Court, Justice Antonin Scalia can't resist indulging in sarcasm as
modus operandi. Contrast that with the poised maturity of persnickety Justice
Ruth Bader Ginsberg, who revels in the devils in the details. Justice Stephen
Breyer: "The point is to try to focus on a matter that is worrying me. Sometimes
it's easier to do that with an example."
Continue reading "Grasp by Analogy"
Posted by Patent Hawk at 12:20 AM | Case Law | Comments (5)
March 2, 2008
Practice Makes Perfect?
Statistics
is a craft; running the numbers is the easy part. The tough bit comes down to
data quality: how reliable is the base of data employed? Heterogeneity is the
bane of statistical reliability: comparing apples to oranges tells you nothing
about either apples or oranges.
By definition, every patent is supposedly novel. So, statistically comparing patent litigations inherently prances into a minefield. Only prudence, that numbers can lie, but that the smell test of sensibility grants good guidance, makes numbers truly meaningful.
Straight faced, Dave Schwartz concluded: "data do not reveal any evidence that district court judges learn from prior appeals of their rulings. There is no suggestion of a significant relationship between experience and performance." Schwartz, by example, empirically reminds that statistically inclined and logically challenged are stochastically independent.
Continue reading "Practice Makes Perfect?"
Posted by Patent Hawk at 2:23 PM | Litigation | Comments (3)
New Rules
While
not to date considered a rocket docket, the patent litigation rulebook crafted
in the Northern District of California
has been an inspiration for other districts: the Eastern District of Texas and
Southern District of New York included. Effective March 1, 2008, North
California has a
revised rulebook in play. The change is focus on groundwork early in
litigation, into claim construction.
Posted by Patent Hawk at 1:25 AM | Litigation
March 1, 2008
Narrow Escape
WARF,
son of Mogh, has again evaded death at the hands of Romulans: this episode, one
posing as a USPTO patent examiner.
7,029,913, claiming in vitro culturing of Klingon stem cells, passed
reexamination.
Continue reading "Narrow Escape"
Posted by Patent Hawk at 8:59 PM | Prosecution
Pedaling Exhaustion
John
Osborne at Morgan &
Finnegan argues for reversal in his article: "Justice
Breyer's Bicycle and the Ignored Elephant of Patent Exhaustion: An Avoidable
Collision in Quanta v. LGE "-
The parties and amici in Quanta v. LGE have proposed either (1) eliminating any ability to restrict downstream use of a product made under a patent (Petitioners) or (2) allowing an essentially unfettered right to restrict a purchaser's use rights by contract (Respondent). Both approaches ignore the actual rights granted to a patentee by statute.
prior art search + 
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