May 31, 2008
Earlier this week, a thick-waisted but thin-skinned Nathan Myhrvold, Intellectual Ventures CEO, ventured into incoherence, jockeying defensively when questioned by grizzled technology reviewer for the Wall Street Journal, Walt Mossberg: "Don't call me a patent troll," and "I'm not abusing the patent system."
May 30, 2008
Landmark Screens had Thomas D. Kohler file a patent application in 2002 for an electronic billboard. Allegedly, after a restriction requirement, Kohler dropped claims and supposedly filed a divisional. But, according to Landmark, Kohler screwed up, lost continuity, thus losing the original priority date, making the parent and its own billboard prior art. It seems that the so-called divisional omitted the specification - nothing but a sheet of paper indicating that a divisional was being filed. Landmark sued for malpractice last week.
May 29, 2008
The common approbation "junk patent" is typically stuck on "patent trolls," that is, inventors asserting their rights. Only rubes buy that. Companies regularly pitch junk at each other. Case in point: Dow Chemical, whose advertising tripe is "responsibility begins here," found guilty of malicious patent assertion.
May 28, 2008
TubeMaster makes custom catalyst reactors. Cat Tech asserted 6,905,660. Tubemaster counterclaimed for declaratory judgment (DJ). The district court granted summary judgment of non-infringement based upon claim construction, including DJ on non-accused configurations. Cat Tech appealed. A CAFC panel crafted crucial case law on declaratory judgment.
Bow to Light
Gertrude Neumark Rothschild developed a process necessary for making blue, green, violet and ultraviolet (high spectral) LEDs, used in many products, including flat-screen TVs, cell phone screens, computers, and traffic lights. All told, a market estimated at $7.2 billion. 4,904,618 and 5,252,499 were Rothschild's reward. Several semiconductor makers have licensed the technology, including Sony. From an ITC complaint filed in February, over 30 companies are still under the gun, including Hitachi, LG, Nokia, Sharp, Samsung, Toshiba. More settlements are in the offing.
Most junk patents are created by incompetent prosecutors, with an assist from incompetent examiners granting bad claims. Example in point - Arthur A. Collins got a couple of junk patents: 4,701,907 and continuation 4,797,589. '907 sunk by §112 ¶2, an unconstruable claim term. '589 down on non-infringement over missing a limitation, and claims "invalid for improper reexamination amendment." Appeal offered no real reprieve.
May 27, 2008
CAFC caprice is further confirmed in today's non-precedential Lawler v. Bradley. Bradley settled a patent infringement suit by Lawler by taking a license which was too complicated and unclear in its terms. 10% royalty on the actual selling price of infringed values. 10% on "average" selling price of products combined with the infringed valves. Lawler tried to terminate the agreement on a pretext that the district court blew off, but that a 2-1 CAFC majority, eschewing dictionaries and common sense, read differently.
May 26, 2008
J.R. Simplot, French fry innovator, blew his porchlight Sunday, aged 99. Supplier of dehydrated potatoes to the U.S. military during World War II, post-war, Simplot pioneered frozen French fries. In 1967, a handshake deal with McDonald's founder Ray Kroc helped put Simplot on the path to becoming a billionaire. Simplot's company got 43 U.S. patents, including D268,539, for peculiar potato shapes.
May 25, 2008
After seven years of preliminaries, trial began last week. Cornell University, one of the eight Ivy League colleges, is suing Hewlett-Packard in Northern New York for infringing 4,807,115, claiming enhanced CPU execution. A judge experienced with patent cases flew in from Washington, D.C. Cornell says that HP reaped $36 billion in the 1990s selling infringing supercomputers. Cornell wants damages through the life of the patent, though "laches bars a patent holder's claim for damages accrued prior to suit." A.C. Aukerman v. R.L. Chaides Construction, 22 USPQ2d 1321 (Fed. Cir. 1992). Laches may also apply in Cornell's failure to timely bring suit.
May 24, 2008
Hal Wegner has his knickers in a twist:
Beyond the anonymous attack launched against the PTO by an "Institute for Progress", Professor Dennis Crouch in his highly reliable blog, Patently O, has now exposed a patent attorney or agent who has launched an anonymous website, "USPTOExaminers.com", as a way for practitioners to anonymously post criticisms of individual Examiners. Both examples of anonymous criticism are unacceptable, but the latter is far worse as it posts attacks against individual Examiners who have no way to defend themselves.
May 23, 2008
Each patent is an invention. Do you think the number of patents says something? Would knowing the top-patenting companies be a meaningful statistic? Of course not. Patents are nasty. If you strive to be a member in good standing of the Coalition of Patent Fairness (CPF), keep your business clean. Have a bloody steak, hold the veggies. Enjoy fat cigars, smooth bourbon, and classy hookers. "Patent, sir?" "No thank you Jeeves, I'm clinging to my guns and religion."
Rattler Tools sued Bilco Tools and William Coyle for patent infringement, trade secret misappropriation and unfair competition. A Louisiana district court judge conducted a bench trial. Not even close. Rattler, rattled, appealed.
Tessera Technologies is crowing over its "battled-tested" (sic) victory in getting Micro Electronics to take a license under threat of ITC action. Micro Electronics didn't hire Patent Hawk, so was unable to squash Tessera's assertion. Those well-equipped with Patent Hawk ammunition are successfully fighting back.
There appears to be a rampant addiction to poor claims drafting, injecting claims with vague language, unnecessary legalese, and unbounded scope. This addiction spirals downward into a vat of confusion during prosecution, and eventually hits rock bottom during litigation as judges try desperately to resuscitate claim meaning. Examiners refuse to help, acting as enablers to this dangerous obsession.
John Wong got 5,568,779 for TALtech, claiming a seam for wash-and-wear dress shirts that don't pucker when laundered. Wong didn't disclose all the prior art he knew of, including the prior art that was the inspiration for his invention. The district court found inequitable conduct. The appeals court starches that shirt: "If the material is cumulative to other disclosed material, as a matter of law, the inventor is not obligated to disclose it." And, a lesson on best mode.
May 22, 2008
Eastern Kentucky Senior Judge William O. Bertelsman needed some help with claim construction. His first stab was appealed and remanded, the CAFC unable to douse the conflagration owing to an undeveloped record. On second appeal, the CAFC again mops up and remands.
May 21, 2008
Golden Bridge Technology hammered Nokia and Lucent for infringing 6,574,267, claiming a mobile communication system. The district court granted invalidity in summary judgment. Golden Bridge appealed with freshly minted arguments, which the CAFC refused to consider, deeming them too little too late.
May 20, 2008
Big Gorilla Cuts A Dud
In an ongoing tussle in various venues, Microsoft had accused patent bad-boy Alcatel-Lucent before the ITC of infringing four patents claiming telephone/computer integration. In the first round, the ITC administrative law judge found one infringed. Today, the full commission peeled the last banana, finding non-infringement. So much for due diligence by Microsoft, member of the Coalition of Patent Fairness, a mega-corporation lobbyist that rails about asserting junk patents.
Punching the Clock
Taiwanese memory maker Nanya Technology started a losing patent war against Fujitsu. Licensing talks over DDR SDRAM chip patents fell apart in 2005. Nanya then sued Fujitsu in this country's tropical patent hot spot - Guam, for antitrust, asserting three patents, and a declaratory judgment (DJ) motion over 15 Fujitsu patents. Fujitsu shot back in Northern California with five patents, and a DJ for three Nanya patents.
May 19, 2008
No Comprende el Postulado
Squalls of claim construction confusion howl in the halls of patent courts. The problem originates with incompetent prosecutors fond of squirrely claim language, and inventors failing to appreciate that precise language is essential to breathing life into their inventions.
Overreaching patent assertion can foil the whole venture, and foul the asserted patents in the process. Being circumspect about claim construction, infringement analysis, and prior art, can turn a problematic case into a winner.
May 18, 2008
Conflict and Cooperation
Culture and law intersect at the personal level. Everybody lives in the two worlds simultaneously. But lawyers often behave as if there is no world but law.
This was not a mistake made by the Founding Fathers of this nation. To be fair to us today, except for one day in September of 2001, we have not had much visceral experience with how conflicts between culture and law may result in violence. But the Founding Fathers lived much of their lives in such conflict. And their fathers had lived much of their lives in conflict (that between church and state).
May 17, 2008
St. Clair Intellectual Property Consultants thought it had a tiger by the tail - a tidy patent portfolio for digital camera photo storage. St. Clair started a shotgun enforcement campaign, including against Kodak. Kodak claimed it had acquired rights to the patents through agreement with the inventors' former employers, Mirage Systems. That froze St. Clair's Hail Mary on the digital photo industry.
May 16, 2008
CAFC Chief Judge Paul R. Michel graphed a signifying, that petitioning appeal upon appeal don't amount to more than just jivin'. En banc and certiorari might as well be in a dead language as to anyone's chances of being granted.
May 15, 2008
Aventis owns 5,389,618 / RE 38,743, claiming a blood clotting drug. Amphastar and Teva filed FDA ANDAs, prompting suit by Aventis. Amphastar shot back with an affirmative defense of inequitable conduct - Aventis failed to disclose that relied-upon studies, done by a non-inventor, Dr. Uzan, had used different dosages, thus muddying the results.
May 14, 2008
DuPont sued MacDermid Printing for infringing 6,773,859, claiming digital thermal printing. '859 was based on a provisional application. The USPTO mistakenly issued the patent without reference to the provisional. DuPont had that corrected. MacDermid brewed a tempest in a teapot over priority date, confusing the district court judge, who refused a motion to issue a preliminary injunction. On appeal, the CAFC (2007-1568) ruled that DuPont had met the requirements for 35 U.S.C. § 119, and set the priority date to the provisional filing. Vacated the motion denial. Remanded.
6,148,377 claims a network-based device-shared memory space. Mangosoft hoped '377 might be an express to payout from Oracle, but its only stop was local.
May 13, 2008
Acumed successfully went after Stryker for infringing 5,472,444. After discovery, Strkyer started selling what Acumed would later, in a second complaint, accuse as further infringement. The district court dismissed the second suit as old news. Acumed appealed.
May 12, 2008
The CAFC's sua sponte en banc rehearing of Bilski's claimed risk management process, so far denied as unpatentable subject matter, indicates the appeals court's desire to draw a "bright line test for determining whether a claimed invention embodies statutory subject matter," a "quest" that a BPAI judge in Bilski's case deemed "an exercise in futility." That just shows the BPAI not having the sharpest tacks in the box, because a bright line test is exactly what's called for, and can be accomplished.
In The Weeds
Rep. Howard Berman, Chairman of the House subcommittee overseeing the USPTO, does his job in an April 29 letter to PTO Director Jon Dudas, demanding answers: did you sully the agency's reputation by consorting with RIM when it was under the gun from NTP, and you had NTP patents under reexamination?; why haven't you considered deferred examination?; explain inconsistencies in patent application projection for the future; document methodology in meeting application demand; why so pig-headedly clueless about examiner attrition?; justify managerial lurching in its various incarnations. One surmises from such inquiries that, under Dudas' direction, the PTO hasn't exactly been on the path of probity.
Malcolm Gladwell in The New Yorker idyllically fuses discovery with invention in his thematic presentation of a strawman: "In The Air: Who says big ideas are rare?" The ostensible topic is that discoveries and inventions are often made contemporaneously by multiple people. However droll and obvious the observation may be, Gladwell spins his yarn in posh New Yorker fashion.
May 11, 2008
Last month, seven major telecommunications patent holders: Alcatel-Lucent, Ericsson, NEC, NextWave Wireless, Nokia, Nokia Siemens Networks and Sony Ericsson, agreed to limit patent licensing fees, so as to engender continuing evolution of 3G mobile technologies, and limit litigation. Others were invited to participate. Two notable holdouts: Nortel and Qualcomm.
Feathering the Nest for Inventors
Sensible patent reform should focus on feathering the nest for inventors in the United States. There is nothing more important to our long-term prospects within the global economy.
May 10, 2008
Professors James Bessen and Michael J. Meuer (BM), who should be thoroughly discredited for their tripe, appear to have duped many people who should know better. What they demonstrate to the discerning is how little patent emperors have no clothes.
The phrase "with all due respect" is common to arguments traversing claim rejection. But how much respect is due for utter breakdown of "examination on the merits"? This is not a rhetorical question.
IP Is Not A Commodity
Earlier this week, Peter J. Wallison argued that conventions in fair value accounting may in part be the cause for the recent bubble markets. Specifically, Wallison pointed to the convention, implemented under FASB 157, that requires assets to be carried at "market" values, even when those assets are not being held for trading purposes.
Broken and Unbroken
Referring to patents, the Economist thinks it "a pity" that a "rewrite" of "broken laws" is "back on the shelf." Wrong. The patent statutes are not what's broken, with one ghastly exception. It's the USPTO and the courts that are broken.
May 9, 2008
Dead, For Now
The Economist: "On May 5th the Senate removed the bipartisan Patent Reform Act from its calendar."
May 8, 2008
Lucent sued Microsoft, Gateway, and Dell for infringing 5,649,131 and 4,701,954, claiming two very different technologies. '131 claims a communications protocol between a web server (host) and a terminal. '954 is for digitizing speech. Another claim construction tussle, again illustrating the awkward immaturity of claim construction case law, floundering on the bedrock of bad claim language, pitiable prosecution, and disingenuity by the patent owner.
What Adam Smith Taught
Abraham Lincoln's lecture on discoveries and inventions reveals a deep understanding of the patent system. It is amazing how his lecture, which is now well over 150 years old, can seem so fresh today. He and Charlie Munger have inspired me to undertake a historical review of other important lessons of the imminent dead. Today the lesson is from Scottish enlightenment thinker Adam Smith, famous for his authorship of The Wealth of Nations.
6,105,007 is a bastard child. Its parent was for interfacing to a loan processing system, user interfaces requiring "varying degrees of human interaction." '007 was more Cylon, seeking "to capture a system that processed financial accounts 'without human intervention.'" The '007 claims mutated as well during prosecution. Predictably, '007 assertion created a claim construction dilemma requiring human intervention. In construing the crucial term, the CAFC acquitted itself poorly, defying case law by applying a ginned gimp, displaying again a distaste for broad claims.
May 7, 2008
Out of Gear
Solomon Technologies took Toyota to the ITC over 5,067,932, accusing the transaxles on Toyota's hybrid models. An ITC judge found no infringement, and the asserted claim not enabled. Solomon appealed.
May 6, 2008
4,579,530 "claims a method of fabricating porcelain veneers for teeth." Most of its teeth were pulled during reexamination, leaving only one independent claim. Owner PSN Illinois asserted '530 against Ivoclar Vivadent. The patent had no bite. But necromancer CAFC did. The appeals court raises dead claims as a way to damn claim scope.
An Inconvenient Truth
The New York Times gives pesky perfectionist professor John F. Duffy his 15 minutes of fame. Duffy had the temerity to finger the criminal gang commonly known as Congress for passing a law in 1999 letting the USPTO director appoint appeal board judges. Only one thing wrong with that: it's unconstitutional.
May 5, 2008
EPO Oppositions & Appeals
From HLBBshaw: "After grant of a European patent, there is a nine-month window in which a person may file centrally at the EPO a notice of opposition to the patent, alleging that the patent was wrongly granted. Oppositions are relatively common because they represent an economically attractive way of removing an IP obstacle to a planned commercial activity over a substantial market place."
May 4, 2008
Procter & Gamble sued Johnson & Johnson for patent infringement over Listerine Whitening ® Quick Dissolving Strips, marketed as superior to P&G's Crest Whitestrips ®, because they dissolve more quickly. You wouldn't want to have patience in whitening your teeth, because you need a smoke, or cup of coffee, or some other neurotransmitting tooth-staining jones you can't shuck off, you vain but weak-willed Pavlovian simian.
May 2, 2008
Finite Genus Killer
Xerox filed a patent related to electrophotography. The examiner piled on §103(a) combos. Appeal before the BPAI, arguing against 'obvious to try.' The issue was whether a "claimed species is obvious over prior art which discloses a genus containing the species." Obvious if the genus is defined by a "finite number" of possibilities, and the prior art does not teach away. KSR strikes again.
Patent Prosecution Highway - Bridge Two
After recent finalization of the Patent Prosecution Highway across the Pacific, construction will soon begin on a route spanning the Atlantic. The USPTO and EPO have announced a cooperative program to "leverage fast-track patent examination procedures already available in both offices to allow applicants to obtain corresponding patents faster and more efficiently", adding another bridge to the developing global patent prosecution highway network.
In 1980, Congress passed the Bayh-Dole Act. Overnight with its passage, universities and government-funded R&D labs gained a comparative advantage in funding R&D. Universities and government labs have a cost advantage in that many had already spent tens of billions of dollars setting up research labs for non-commercial purposes, including teaching and curious exploration. Many scientists and engineers found the prestige of academia, and the increase in professional freedom it promises, a compelling offer. The result has been a gradual shutting down of corporate R&D labs, and an expansion of industry collaboration with scientists and engineers now employed by universities and government labs.
May 1, 2008
Appeal Brief Summary
In the past few years, patent examiners increasingly nitpick, sticklers for the rules and beyond. Appeals are burgeoning, as are non-compliance notices for appeal briefs under MPEP 1205.03. A common area for complaint is the summary: either too little or too much. A good answer is to give both.