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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.
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.
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."
Posted by Patent Hawk at 2:26 PM | Case Law | Comments (2)
Grinding
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
Tilt
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)
Unforseeable
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
i-©®eaTM
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"?!
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.
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
Viral
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).
Posted by Patent Hawk at 3:51 PM | Claim Construction
Disappointed
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
Crumbling
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)
Uncovered
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.
Posted by Patent Hawk at 1:19 AM | Case Law
April 8, 2008
Bought
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)
Sold
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.
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
Sporting
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
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.
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)
Thwarted
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).
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.
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.
Continue reading "Time for a Change"
Posted by Patent Hawk at 12:31 AM | The Patent System | Comments (3)
prior art search + 
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