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April 30, 2008

Garbage In

Jon W. Dudas, USPTO numero uno: "We are getting more and more unpatentable ideas, worse and worse quality applications." Craven worm lying through his teeth, or imbecile trying to impress the rubes? You be the judge.

Continue reading "Garbage In"

Posted by Patent Hawk at 4:28 PM | The Patent Office | Comments (14)

Every Patent Affects Two Different Markets

There are two different markets relevant to every valuable patent. First, there is the market for the R&D work that results in the patent. Prices in this market are set by the opportunity costs for the time of scientists and engineers who are capable of theorizing about and experimenting with the technology. Second, there is the market for the claimed products or services that the R&D work opened up. The second market is the one that everyone naturally thinks about. In fact, our whole nation has had a blind spot for the first market for a long time because corporate R&D divisions were serving that market very well until the Bayh-Dole Act was passed in 1980. But most universities have not been able to consistently match pre-product funding with the flow of R&D produced by their faculty. One former R&D employee from Apple and Microsoft blames Silicon Valley, saying "Silicon Valley forgot how to do R&D."

Continue reading "Every Patent Affects Two Different Markets"

Posted by Michael Martin at 3:37 PM | Patents In Business

Paying for Garbage

The New York Times reports $4.3 million spent in the past 15 months lobbying at the wounded Patent Act. The anti-patent Coalition for Patent Fairness alone forked out $2.5 million, lining the pockets of Sen. Leahy & Sen. Hatch. Pro-patent rival Coalition for 21st Century Patent Reform spent $1.8 million.

Continue reading "Paying for Garbage"

Posted by Patent Hawk at 2:06 PM | The Patent System | Comments (1)

April 29, 2008

To Naught

Rambus, having participated in proceedings leading to the industry standard for dynamic memory chips, patented portions of it. As chronicled in the Patent Prospector, that bit of seeming unseemliness has not been altogether well received during Rambus' patent enforcement campaigns. In this episode, the court of appeals washes away Rambus' aborted assertion against pig-headed Samsung.

Continue reading "To Naught"

Posted by Patent Hawk at 3:26 PM | Declaratory Judgment

How Patent Reform is like a Sombrero

With much of the intense pressure to put patent reform into law past, now is an opportune moment in time to step back and reflect on the bigger picture of patent law in the United States. What bigger picture is there to be seen? Our vision of the patent system, and of the need for its reform, can be understood better upon consideration of the sombrero.

Continue reading "How Patent Reform is like a Sombrero"

Posted by Michael Martin at 1:19 PM | The Patent System

April 28, 2008

Nothing Doing

CAFC Judge Linn wondered out loud last week about the quality of BPAI, the patent appeals board. Small wonder. Last year, John Duffy opined that a  35 U.S.C. §6, enacted in 1999, is unconstitutional under Article 2. The 1999 Act allowed the PTO Director to appoint BPAI judges, but Article 2 requires that such "inferior" officials be appointed, at the least, by a department head, which the PTO honcho is not.  Translogic took up the cudgel, petitioning the Supreme Court after the CAFC demurred. It's an easy bet that SCOTUS won't weigh in.

Continue reading "Nothing Doing"

Posted by Patent Hawk at 7:21 PM | The Patent Office

Sleep Lite

LiteCubes sued Canada-based GlowProducts for infringing 6,416,198, as well as copyright infringement. '198 claims a light that looks like an ice cube. After found infringing, GlowProducts filed a motion to dismiss for lack of subject matter jurisdiction. On appeal, the CAFC unleashed a gratuitous stem-winder on jurisdiction. Simply, an allegation of patent infringement "creates a federal cause of action."

Continue reading "Sleep Lite"

Posted by Patent Hawk at 2:26 PM | Case Law | Comments (2)


Congress Daily reported last Thursday that "more than 20 high-tech and financial services industry executives, as well as corporate patent counsels," met "with Sen. Orrin Hatch, R-Utah... to discuss controversial components of a bill that would overhaul the U.S. patent system." Proponents for eviscerating patent enforcement are relentless and unbounded financially in effecting the corruption of corruptible. While 2008 may pass with further damage to the U.S. patent regime limited to case law conniptions, 2009 is likely to bring again the beast to savage the integrity of this nation's patent system. A glimmer of hope flickers that 2009 brings a change of USPTO management that returns a semblance of sanity to the agency, and thus a counterbalance to the inexorable grind for deformation.

Posted by Patent Hawk at 1:25 AM | The Patent System | Comments (2)

April 26, 2008

21st Century Schizoid Everyman

Sitrick v. Dreamworks stirred muddy water. Marc Brown of McDermott Will & Emery worries: "Without realizing it, a recent series of Federal Circuit decisions has established a standard for enablement that may arguably be higher than any patent can meet." Is the concern justified? Why hasn't enablement had a head-on collision with its alter ego behind obviousness and the doctrine of equivalents?

Continue reading "21st Century Schizoid Everyman"

Posted by Patent Hawk at 3:40 PM | § 112 | Comments (4)

International IP Dictionary

Research and Markets announced an international intellectual property law dictionary for €266. Covers patents, copyright, and trademarks, both U.S. and international terms. For patents, has a "Short History of Patent Law in the United States," and "Charts on Sources of United States Domestic Patent Law." Measly web site with little information about the dictionary itself, but, by comparison, extensive biographies of the authors. In other words, pathetic marketing, unless you think promulgating cult of personality for relative unknowns for a dictionary qualifies as good marketing.

Posted by Patent Hawk at 12:23 PM | Patents In Business

April 25, 2008

Judicial Disappointment

In an otherwise less than remarkable non-precedential decision by the CAFC, Circuit Judge Richard Linn took the opportunity in a concurring opinion to express "disappointment" and "concern" over the current state of the patent system, suggesting that "the circumstances that led up to this appeal may be more symptomatic of certain failures of the patent system than merely reflective of the peculiar facts of this case". You don't say.

Continue reading "Judicial Disappointment"

Posted by Mr. Platinum at 12:23 PM | The Patent System

April 24, 2008

Lincoln's Famous Words

On February 11, 1859, Abraham Lincoln gave a lecture to the inhabitants of Jacksonville, Illinois on the topic of discoveries and inventions.  His most famous words from this lecture are the last few that were recorded:

"Next came the Patent laws.  These began in England in 1624;* and, in this country, with the adoption of our constitution.  Before then, any man might instantly use what another had invented; so that the inventor had no special advantage from his own invention.  The patent system changed this; secured to the inventor, for a limited time, the exclusive use of his invention; and thereby added the fuel of interest to the fire of genius, in the discovery and production of new and useful things."

Continue reading "Lincoln's Famous Words"

Posted by Michael Martin at 9:34 AM | The Patent System | Comments (2)

Objectively Baseless

Dominant Semiconductors, being found to infringe a number of LED patents owned by OSRAM GmbH, filed suit against OSRAM alleging unfair competition, intentional interference with contractual relations, interference with prospective economic advantage, and trade libel arising from OSRAM's communication to customers regarding Dominant's possible infringement. Dominant, apparently forgetting that they lost the infringement battle, claimed OSRAM's communications regarding possible infringement were "objectively baseless". Turns out, the only thing objectively baseless was Dominant's suit. Summary judgment granted in favor of OSRAM. CAFC affirmed.

Continue reading "Objectively Baseless"

Posted by Mr. Platinum at 7:52 AM | Case Law

April 23, 2008

Three Strikes

Bayer Bioscience appealed to the CAFC in a third round of the battle against Monsanto, pleading for the reversal of the district court decision granting attorney fees to Monsanto under 35 U.S.C. § 285, warranted due to Bayer's exceptional inequitable conduct. Not wanting to disappoint, Bayer failed to challenge the district court's discretionary determination to award attorney fees, instead clinging to battles already lost, only to lose again.

Continue reading "Three Strikes"

Posted by Mr. Platinum at 12:15 PM | Inequitable Conduct

April 22, 2008

Antecedent Basis

They killed the bunny patent. It's enough to make you cling to your guns and religion. Energizer tried to zap Chinese battery makers using the ITC, but the ITC pulled the plug. Twice. On appeal, a non-precedential decision, owing to all-around discord in the panel. A badly drafted claim loses its juice on antecedent disconnect.

Continue reading "Antecedent Basis"

Posted by Patent Hawk at 1:17 AM | § 112 | Comments (3)

April 21, 2008

Facile Treatment

Here we go again. "There should be greater penalties in respect of patent holders who make unjustified threats of legal proceedings. "Patent trolls" should not be allowed to flourish and to hold public and private investors in research and development to ransom." - Australian academic Matthew Rimmer

Continue reading "Facile Treatment"

Posted by Patent Hawk at 12:09 AM | The Patent System

April 20, 2008

A New Kind of Patent Boutique?

The state of the legal profession is in flux. The exogenous forces of globalization and technology are straining and breaking the traditional business frameworks for the provision of legal services. How might the future look?

Continue reading "A New Kind of Patent Boutique?"

Posted by Michael Martin at 2:51 PM | Patents In Business | Comments (15)

Avoiding Consistency Traps

"A foolish consistency is the hobgoblin of little minds." -Ralph Waldo Emerson

At Patent Prospector, we're not shy about speaking out when we see academics, business people, or government officials doing silly things. Because of that, it's really a pleasure to be able to give kudos to the same people when praise is deserved. I believe that the new pilot program designed to promote Examiner interviews before first Office Actions is an excellent idea, which PTO Director Dudas and his team deserve praise for trying out.

Continue reading "Avoiding Consistency Traps"

Posted by Michael Martin at 1:03 PM | The Patent Office

Beaming Down

Finisar sued DirecTV in East Texas for infringing 5,404,505, garnering from a jury a $78.9 million reasonable royalty damages award for willful infringement. The district court tacked on $25 million while denying injunctive relief. On appeal, a claim construction error vacated the verdict, as well as raising from the grave potentially invalidating prior art.

Continue reading "Beaming Down"

Posted by Patent Hawk at 12:31 AM | Prior Art

April 19, 2008

Made in China

China's free-for-all in intellectual property is becoming past tense. The number of patents and patent lawsuits has doubled in the past five years. Over 850,000 Chinese patents are now active. The big winners are Chinese patent lawyers.

Continue reading "Made in China"

Posted by Patent Hawk at 12:54 PM | International

April 18, 2008


Peter Detkin of Intellectual Ventures, at an IP Symposium in San Jose this week: "Small inventors, defined as those entities that have less than 500 employees, are responsible for 60% of US patents, while the remaining 40% are granted to large companies. On the other hand, large companies collect over 90% of revenues derived from patents, while small companies are left with the 'crumbs'."

Posted by Patent Hawk at 4:32 PM | Patents In Business | Comments (1)


Honeywell sued Hamilton Sundstrand over 4,380,893 and 4,428,194. One of asserted claims had been an unamended dependent rewritten into independent form, triggering presumption of prosecution estoppel, though why that should be is the locus of dispute. In a previous CAFC appearance, infringement from doctrine of equivalents (DOE) had been vacated, with the district court to examine whether the Festo presumption could be rebutted. This episode, a 2-1 panel majority oversteps applying DOE.

Continue reading "Unforseeable"

Posted by Patent Hawk at 1:04 PM | Claim Construction | Comments (1)

Abandoning His Post

John Whealan, former solicitor of the USPTO, has been soliciting PTO-favorable legislation for the past year, "assisting" Sen. Leahy in bungling patent reform. In a signal of defeat for the bill, S. 1145, Whealan, who has been on leave from the PTO, is abandoning his temporary post with the Senate May 1. Self-absorbed, Leahy has called his efforts a waste of "thousands of hours."

Continue reading "Abandoning His Post"

Posted by Patent Hawk at 11:01 AM | The Patent System | Comments (2)

April 17, 2008

Lazy Man Insults His Customers

The USPTO is storing up trouble. PTO honcho Jon Dudas said Wednesday that patent applications are "skyrocketing," but quality is suffering "as corporations and individuals increasingly seek to turn intellectual property into a legal asset rather than a means to technology innovation."

Continue reading "Lazy Man Insults His Customers"

Posted by Patent Hawk at 5:41 PM | The Patent Office | Comments (5)

Hospital TV

Zenith has a couple patents (5,495,301; 5,502,513) for TV remote controls for hospital room use. Zenith sued PDI for infringement. PDI won a summary judgment of prior art invalidity on claim 1 of '301, and non-infringement on both patents. Zenith appealed. Herein reminders that: 1) practicing the prior art does not prove anticipation; 2) determining anticipation by public use doesn't require an enablement finding. "We must simply determine whether the public use related to a device that embodied the invention."

Continue reading "Hospital TV"

Posted by Patent Hawk at 2:49 AM | Prior Art

Bank Holdup

Wells Fargo inked a software license agreement with WMR in December 2003. In 2004, a patent license agreement (PLA) followed. In early February 2006, WMR sold four patents to DataTreasury: 5,265,007; 5,583,759; 5,717,868; and 5,930,778, patents encompassing what would become federally-mandated digital check processing under the law known as Check 21. DataTreasury then embarked on a massive patent enforcement campaign against a slew of banks, including Wells Fargo. Wells Fargo thought that DataTreasury was bound by the PLA it had with WMR.

Continue reading "Bank Holdup"

Posted by Patent Hawk at 12:37 AM | Litigation

April 16, 2008

Sauce for the Goose

The USPTO electronic filing system (EFS) requires that all submitted pdf documents have embedded fonts. EFS provides acknowledgment receipts for all EFS customer submissions. The receipts are not compliant with EFS standards, as they don't have the requisite Arial font embedded.

Posted by Patent Hawk at 3:21 AM | Prosecution | Comments (1)

April 15, 2008

Ravenous Hordes

The USPTO is hosting a webcast on Wednesday, April 30, 2008, at 3:00 p.m. ET "to discuss recent disruptions in the availability of Public PAIR" owing to "service disruptions caused by bulk downloading of data by the public, commonly referred to as 'data mining.'" Details.

Continue reading "Ravenous Hordes"

Posted by Patent Hawk at 8:41 PM | The Patent Office | Comments (2)

First Action Interview Pilot

The USPTO is launching a new pilot program granting examiner interviews prior to a first office action on the merits. The PTO claims the program will "reduce pendency and improve patent quality" by "enhancing information exchange between applicant and examiner and promoting early resolution of outstanding issues". Increasing communication between applicant and examiner is finally a step in the right direction, but it remains to be seen if this early interview process will effectuate any real change, or if the already present "reject, reject, reject" mentality will cause the interview process to be as difficult as selling ice to Eskimos.

Continue reading "First Action Interview Pilot"

Posted by Mr. Platinum at 3:54 PM | Prosecution | Comments (4)

Complex Work Unit Pilot

The USPTO has a new pilot program, guaranteed to become standard practice, to facilitate electronic document submission for what it calls "complex work units:" chemical structure drawings, mathematical formulae, three-dimensional protein crystalline structure data, and table data. The program lets applicants submit such data electronically in a variety of file formats. The thrust is facilitating prior art searching by giving examiners ready access to the data, as opposed to fiddling with conversion of paper submissions, as has been done in the past.

Posted by Patent Hawk at 3:40 PM | Prosecution | Comments (1)

April 14, 2008


The above title reads like junk email in a foreign language that your computer can't decipher. How appropriate, because that's the name of the USPTO's new curriculum to teach rug rats about intellectual property. i-©®eaTM educates educators to educate "tweens" (ages 8-11) "to be creative and invent." Like they don't get into enough trouble as is. To launch the program, the agency has radio and TV commercials with the message, "Anything's possible. Keep thinking." Hey PTO, how about something crazily creative, like "examination on the merits"?!

Continue reading "i-©®eaTM"

Posted by Patent Hawk at 2:44 PM | The Patent Office | Comments (4)

Dropped Dish

The CAFC brushed off an en banc appeal rehearing request from Dish Network for a $74 million award to TiVo for patent infringement, as well as a permanent injunction. Dish had also gone the reexam route, but that only bullet-proofed the patent (6,233,389). Denial is a long, lonely road. Dish is going to hoof it to the Supreme Court.

Continue reading "Dropped Dish"

Posted by Patent Hawk at 2:02 PM | Litigation

Color Within the Guidelines

The USPTO recently published updated Written Description Training Materials, as a revision to training materials from 1999, to reflect changes in case law and technology.

Continue reading "Color Within the Guidelines"

Posted by Mr. Platinum at 1:26 PM | Prosecution

CIP Junk

PowerOasis had a dysfunctional family of patents, notably 6,466,658 and 6,721,400. The patents claim telecommunications access via a vending machine. PowerOasis went after T-Mobile, who successfully broke the family lineage, that these CIP children weren't entitled to their parent's birth date. On appeal, the written description requirement is recited as part and parcel of determining priority date for a CIP. There is no presumption that a CIP is entitled to an earlier filing date.

Continue reading "CIP Junk"

Posted by Patent Hawk at 1:10 AM | Claim Construction | Comments (4)

April 13, 2008

Platinum Patents

Patent Hawk is delighted to announce Platinum Patents, the prosecution branch of Patent Hawk. The same folk who have been wreaking havoc on patents for years for litigation defense, facilitating monetizing patents for patent holders, and providing patent intelligence to gain an unfair competitive edge, now offer prosecution services for inventors. The same excellence our existing clientele experience is now honed to providing superior patent protection.

Continue reading "Platinum Patents"

Posted by Patent Hawk at 7:05 PM | Prosecution

Dulling the Edge

The International Federation of Professional & Technical Engineers, damning S. 1145: 

It would threaten our nation's competitive edge in a number of significant ways - including allowing foreign based companies to challenge the U.S. patents of American manufacturers... Patent reform must not undermine our manufacturing base by diminishing the returns for those whose creativity and ingenuity has been one of the key ingredients to America's economic strength.

Continue reading "Dulling the Edge"

Posted by Patent Hawk at 12:09 AM | The Patent System

April 12, 2008


Hilgraeve Corporation, owner of computer virus detector patent 5,319,776, sued McAffee and lost on non-infringement. Next, it sued Symantec and lost again in district court, but had an unfavorable claim construction reversed on appeal. Symantec settled, buying the patent. In that process, Symantec picked up the lawsuit Hillgraeve had brought against Computer Associates (CA).

Continue reading "Viral"

Posted by Patent Hawk at 3:51 PM | Claim Construction


Sen. Patrick Leahy appears left holding a sack of shat - S. 1145, the Patent Putrefaction Act. Referring to the lobbyists who have bought him, Leahy lamented, "we have been working on these reforms for years." Leahy called the thwarted bill "a missed opportunity." The real missed opportunity is that such pathetic and corrupt legislation actually received sustained attention from lawmakers, when there is real work to be done in improving the patent system.

Continue reading "Disappointed"

Posted by Patent Hawk at 1:08 PM | The Patent System | Comments (3)

April 11, 2008

Profit From Loss

Hoping to reap a windfall from another 9/11, a patent application was filed in 2006 to patent response to chaos, claiming a method and computer program for "optimizing the skills and the resources" "for a chaotic event." Perhaps the applicant anticipated passage of pending patent legislation. The assignee is IBM.

Posted by Patent Hawk at 1:58 AM | Prosecution

April 10, 2008

Down to History

Luma sued Stryker and Karl Storz Endoscopy for infringing its medical imaging patent 5,740,801. The claim construction went to a special master, who construed the contested terms "graphical objects" and "still frame buffer." Summary judgment motions for noninfringement and invalidity followed and were granted. Luma appealed. The CAFC delved into the prosecution history to get to the bottom line.

Continue reading "Down to History"

Posted by Patent Hawk at 5:52 PM | Claim Construction | Comments (1)

Quid Pro Quo

Senate Republicans are threatening inaction if nominations for appellate court judges are not acted on, the pace of which has been described as "glacial." Numerous judicial nominations languish under the jaundiced eye of Senate Judiciary Committee Chair Sen. Patrick Leahy, D-Vt. Sen. Arlen Spector,R-Pa., who yesterday pulled his support for Leahy's Putrid Patent Act, suggested that GOP senators retaliate by blocking the bill, S.1145, a specter that Leahy acknowledged. And a fine idea indeed.

Continue reading "Quid Pro Quo"

Posted by Patent Hawk at 1:37 PM | The Patent System

Checking Out

At the behest of the big banker boys, Sen. Jeff Sessions, R-Ala. sponsored an amendment to the Putrid Patent Act, exempting banks from paying damages for infringing patents covering the mandated "Check 21" check imaging law. Sessions has now dropped support for the provision over constitutional legality concerns. Some things money can't buy, though the banking lobby certainly tried to buy this.

Continue reading "Checking Out"

Posted by Patent Hawk at 1:54 AM | The Patent System | Comments (9)

Is There An Echo In Here?

David Boundy, IP VP at Cantor Fitzgerald, burned the midnight oil to rail against USPTO rule changes, using the proposed Markush rule revision as a springboard. "The Markush Rule violates the Patent Act." Boundy thereupon listed further PTO legal transgressions for all its recent rule changes, insisting the PTO must start again from scratch. "Further action by the PTO is illegal until it has made some good faith attempt to comply with the law."

Continue reading "Is There An Echo In Here?"

Posted by Patent Hawk at 1:21 AM | The Patent Office | Comments (4)

April 9, 2008


Like a rat leaving a sinking ship, Sen. Arlen Specter, R-Pa., has pulled his support for S. 1145 over damages apportionment. According to Congressional Quarterly, sponsor Sen. Patrick Leahy, Senate Judiciary Committee chair, "reserved the Senate television studio for a news conference two days in a row this week, only to cancel both times." Leary had previously acknowledged the vote count problematic, though he had been hoping to get it to the floor. Leahy and cosponsor Sen. Orrin Hatch are still haggling over the inequitable conduct provision. Hatch's support for the bill is contingent on changes being made.

Posted by Patent Hawk at 2:02 PM | The Patent System

Budens On The Real Deal

Back in February, USPTO Director Jon Dudas testified before Congress as to the "progress" of the agency. The PTO press release offered up a mirage banquet of statistical successes. The April newsletter of POPA, the patent office union, dishes out the testimony of POPA president Robert Budens, who slices through Dudas's claimed "success." Ah, finally, some unbiased declarations.

Continue reading "Budens On The Real Deal"

Posted by Mr. Platinum at 8:28 AM | The Patent Office | Comments (6)


Ren Judkins sued HT Window Fashion for infringing window covering patent 7,182,120, which he had gotten via a circuitous route. HT counterclaimed unfair competition under the Lanham Act, and sought a preliminary injunction, because Judkins had sent letters to HT customers, warning of infringement. Denied. Appeal. HT argued that Judkins acted in bad faith because he knew that his patent was unenforceable.

Continue reading "Uncovered"

Posted by Patent Hawk at 1:19 AM | Case Law

April 8, 2008


The Coalition for Patent Fairness has just rented Congressional heavy hitters Trent Lott, R-Miss, John Breaux, D-La, and former House Minority Leader Richard Gephardt, D-Mo, as a cluster contingent to shove the Patent Deform Act to ramming speed. As one wag mused: "If patent reform is going anywhere this year, it will happen either this week or next week. The CPF has been saying it's very confident that the bill will pass. If this is the case, why hire three of the most expensive lobbyists in Washington for a 1-2 week job?"

Posted by Patent Hawk at 2:05 PM | The Patent System | Comments (5)


Patent auctioneer Ocean Tomo had a roomful of happy campers at its April 2nd auction. One portfolio, for processing digital bit streams, sold for $6.6 million. Four lots sold for over $1 million. 53 of 85 lots offered sold, a 62% success rate. A total of $19.6 million raked in. About 450 people attended the San Francisco event. Ocean Tomo takes a 25% cut: 15% from sellers, 10% from buyers.

Continue reading "Sold"

Posted by Patent Hawk at 12:52 PM | Patents In Business

April 7, 2008

Only If, Take 2

O2 enforced its DC-to-AC converter patents against Beyond Innovation and others. Construction of the claim term "only if" sparked a slight disagreement among defendants, but was only "two simple plain English words" to O2. The district court judge agreed with O2: no construction needed. The appeals court did not.

Continue reading "Only If, Take 2"

Posted by Patrick Anderson at 7:45 PM | Claim Construction

Another Day, Another Pilot

A recently announced USPTO pilot program will allow students, from several hand-picked law schools, to gain real-world experience by practicing before the agency. It is difficult to imagine this endeavor continuing beyond the initial two-year pilot. The value of such a pilot therefore appears minimal, acting more as a diversion from bad publicity than as an earnest effort.

Continue reading "Another Day, Another Pilot"

Posted by Mr. Platinum at 7:45 PM | The Patent Office | Comments (2)

Figure of Speech

USPTO Director Jon Dudas pulled a number: $4200, as the cost of examining a patent, contrasting it to the "basic filing fees" of under $1,000. So how, with such a seemingly losing formula, does the PTO make over $2 billion a year? Issuance and maintenance fees. The issue fee for a granted patent is $1,440. Maintenance: every patent, at 3.5 years, chips in $930, $2,360 at 7.5 years, and $3,910 at 11.5 years. Not to mention fees for continued examination (RCE, $810) and appeal ($1,020). Citing just the basic filing fee disingenuously sets up a false comparison. Consider it a statement of character.

Continue reading "Figure of Speech"

Posted by Patent Hawk at 7:09 PM | The Patent Office | Comments (6)

Not Happening

S. 1145, the Patent Reform Act, languishes in a Senate cubbyhole, awaiting an airing on the floor. While its boosters croon its debut imminent, it may not even make it to the floor this session, as time runs short, and more important issues press (e.g., the housing and banking crises). Regardless, the bill is quite unlikely to get through Congress this year, and most certainly won't be signed into law without major revision.

Continue reading "Not Happening"

Posted by Patent Hawk at 5:18 PM | The Patent System

April 6, 2008


Friday, a San Diego jury decided that Microsoft owes Alactel-Lucent $368 million for infringing patents related to form entry (4,763,356 = $357.7m) and handwriting gestures (5,347,295 = $10.4m). Microsoft dodged the bullets of a couple video patents (4,439,759; 4,958,226). The two are playing a few hands of "Patents: Sport of Kings." Microsoft will appeal this round. The game continues, with claims and counterclaims flying in separate trials. The word "settle" does not appear on the game board for these two.

Posted by Patent Hawk at 12:51 PM | Litigation

April 5, 2008

Quality Submission

Carlos Gutierrez, Secretary of Commerce, "the voice of business in government," wrote a letter to the Senate, praising to the skies "Applicant Quality Submission" (AQS), a scheme to force patent applicants to scour the prior art before filing a patent application, as part of S.1145, the pending Senate patent bill. The clamor for AQS by the patent bar is deafening in its silence.

Continue reading "Quality Submission"

Posted by Patent Hawk at 12:28 AM | The Patent System | Comments (6)

April 4, 2008

If I Were the Dude...

Complaints abound when discussing the patent system and current PTO mismanagement, with top gun Jon "the Dude" Dudas serving as the rear-end to many swift kicks. But being Director of the USPTO during such a volatile period cannot be easy. So let's follow Peterlin's lead, and help a brother out. No MBA required.

Continue reading "If I Were the Dude..."

Posted by Mr. Platinum at 2:02 PM | The Patent Office | Comments (8)

Presumed Valid

Microsoft and its counsel, including Theodore B. Olson, repeatedly employ deception in petitioning the Supreme Court to lower the burden of proof for invalidating patents, twisting SCOTUS' own words. As the Supreme Court observed, efforts by Microsoft and other mega-corporations of its ilk to decimate patent protection "stifle, rather than promote, the progress of useful arts." KSR, 127 S. Ct. at 1746 (citing U.S. Const., art. I, § 8, cl. 8).

Continue reading "Presumed Valid"

Posted by Patent Hawk at 1:11 PM | Prior Art | Comments (2)

Hillary's Short Take

During a Pennsylvania campaign stop, Hillary Clinton spoke as if opposed to the pending Patent Reform Act. Asked by a local inventor, Clinton reportedly said she opposes anything in the bill that would hurt manufacturers, noting that New York manufacturers oppose the bill. Simple as that.

Continue reading "Hillary's Short Take"

Posted by Patent Hawk at 1:34 AM | The Patent System

April 3, 2008

A Call for Justice, Texas Style

tx.gif Seasoned litigators, and former colleagues, Bill Abbatt and Bob Tuttle, both of Brooks Kushman, PC, recommend in a recent article that the Eastern District of Michigan adopt local rules for patent cases similar to those in effect in the Eastern District of Texas. Ipls Proceedings, Vol. 19, Issue 2 at p. 5 (2008) A fine idea, gentlemen, but why stop there?

Continue reading "A Call for Justice, Texas Style"

Posted by Patrick Anderson at 7:06 PM | Litigation

Weak Patent Protection Costs Jobs

Labor unions represent congealed opposition to the Patent Deform Act, currently moldering in the Senate. Christopher Rugaber of the Associated Press:

Spurred by concern about overseas piracy of U.S. goods, unions have stepped up their opposition to patent reform legislation pending in the Senate. The AFL-CIO and... a group of seven unions that includes the Teamsters, argued... recently that proposed reforms to the patent system would make it easier for competitors in China and India to counterfeit U.S. products and send more U.S jobs overseas.

Continue reading "Weak Patent Protection Costs Jobs"

Posted by Patent Hawk at 2:21 PM | The Patent System

Only If

O2 Micro sued Beyond Innovation and others for infringing patents claiming inverter controllers, DC-to-AC converter circuits, used as part of fluorescent lamps to backlight laptops and TVs. The claims went specifically to a feedback control loop. Infringement was appealed over claim construction of "only if," which the district court hadn't bothered to construe, because its meaning was plain, even though the litigation controversy riveted on that term. The district court judge's failure to construe "only if" was erroneous, the CAFC ruled.

Continue reading "Only If"

Posted by Patent Hawk at 1:46 PM | Claim Construction

The Orange Playbook

Generic drug makers try to break into a patented drug market under the complex Hatch-Waxman Act game by filing an application (ANDA) to make a generic version, swearing that the applicable patent(s) are no good: either invalid or expired. If a patent is still in force, the patent holder sues, and the boxing match begins. In Caraco v. Forest, a 2-1 CAFC panel decision opens the flood gates for generic drug companies to attack patented drugs.

Continue reading "The Orange Playbook"

Posted by Patent Hawk at 1:48 AM | Declaratory Judgment

April 1, 2008

Pipeline Stage

MEC sued Texas Instruments and Intel for infringing 5,471,593, losing on summary judgment, for invalidity owing to terminally sloppy claims drafting (indefiniteness), and noninfringement. On appeal, the claims slop was sifted to definiteness, but, because the district court had properly construed "pipeline stage" as temporal, rather than positional, noninfringement was affirmed. What was left in no doubt was that '593 claims were badly drafted.

Continue reading "Pipeline Stage"

Posted by Patent Hawk at 8:40 PM | Claim Construction

Media "Briefing"

The Coalition for Patent Fairness hosted a media briefing conference call this morning to discuss the Patent Reform Act (S.1145), and its place on the agenda of Congress, which reconvenes next week. The briefing was brief in content, but not duration. The "insights" given were known in advance, and the predications predictable, with the Coalition a bit cagey in not wanting to show its hand.

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Posted by Mr. Platinum at 10:18 AM | The Patent System | Comments (2)


Judge James C. Cacheris in the Eastern District of Virginia, on killing the examination limits railroaded into existence by the USPTO:

Because the USPTO's rulemaking authority under 35 U.S.C. § 2(b)(2) does not extend to substantive rules, and because the Final Rules are substantive in nature, the Court finds that the Final Rules are void as "otherwise not in accordance with law" and "in excess of statutory jurisdiction [and] authority." 5 U.S.C. § 706(2).

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Posted by Patent Hawk at 9:09 AM | The Patent Office | Comments (2)

And = Or

Mylan tripped the ANDA wire, triggering a lawsuit from Ortho-McNeil for infringing 4,513,006, covering topiramate, an accidentally discovered anticonvulsant. Mylan got a migraine over a claim construction that defined "and" as "or." In a rare fruitless incantation, Mylan invoked the sacred patent killer Obzilla, who was scared off this episode by a rare sighting of hindsight reasoning. TSM, seldom seen onstage since the coming of Obzilla, played a cameo role.

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Posted by Patent Hawk at 2:43 AM | Claim Construction

Time for a Change

I read it on the World Wide Web; it must be true. The patent system is broke. Patents are being bought by fake companies who are not even doing what the patent is for. Then, these fakes, make what they call shell companies, like seashells, nobody home, with no real business but patent monkey business, sue companies that make the products we all love. These shells, scum of the earth, are acting like trolls. They are patent trolls. Wow. I like the sound of that.

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Posted by Patent Hawk at 12:31 AM | The Patent System | Comments (3)