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May 31, 2008
Defensive
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."
Posted by Patent Hawk at 2:35 AM | Patents In Business | Comments (8)
May 30, 2008
Tarnished
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.
Posted by Patent Hawk at 2:38 PM | Prosecution
May 29, 2008
Malicious
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.
Posted by Patent Hawk at 8:38 PM | Litigation
May 28, 2008
Reactor
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.
Posted by Patent Hawk at 9:18 PM | 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.
Posted by Patent Hawk at 1:40 AM | Litigation
Another Piece
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.
Continue reading "Another Piece"
Posted by Patent Hawk at 1:16 AM | Litigation
May 27, 2008
Such As
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.
Posted by Patent Hawk at 10:18 AM | Litigation | Comments (2)
May 26, 2008
Spudnik
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.
Posted by Patent Hawk at 12:57 AM | Patents In Business | Comments (4)
May 25, 2008
Enhanced Execution
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.
Posted by Patent Hawk at 5:32 PM | Litigation | Comments (1)
May 24, 2008
Whining
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.
Posted by Patent Hawk at 2:32 PM | Prosecution | Comments (2)
May 23, 2008
Politically Correct
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."
Continue reading "Politically Correct"
Posted by Patent Hawk at 8:03 PM | Patents In Business
Rattled
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.
Posted by Patent Hawk at 4:03 PM | Litigation
Self-Inflicted
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.
Posted by Patent Hawk at 3:17 PM | Litigation
Enablers
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.
Posted by Mr. Platinum at 9:50 AM | Prosecution | Comments (16)
Puckered
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.
Posted by Patent Hawk at 1:52 AM | Inequitable Conduct | Comments (5)
May 22, 2008
Cleanup Crew
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.
Continue reading "Cleanup Crew"
Posted by Patent Hawk at 3:56 PM | Claim Construction | Comments (1)
May 21, 2008
Late
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.
Posted by Mr. Platinum at 10:21 AM | Case Law
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.
Posted by Patent Hawk at 5:02 PM | ITC | Comments (3)
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.
Continue reading "Punching the Clock"
Posted by Patent Hawk at 1:55 PM | Patents In Business
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.
Continue reading "No Comprende el Postulado"
Posted by Mr. Platinum at 11:40 PM | Prosecution | Comments (9)
Careful Assertion
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.
Continue reading "Careful Assertion"
Posted by Patent Hawk at 10:03 PM | Litigation
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).
Continue reading "Conflict and Cooperation"
Posted by Michael Martin at 1:47 PM | The Patent System | Comments (5)
May 17, 2008
Big Cheese
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.
Posted by Patent Hawk at 9:18 PM | Patents In Business
May 16, 2008
Dispositive
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.
Continue reading "Dispositive"
Posted by Patent Hawk at 11:42 AM | Litigation
May 15, 2008
Clotted
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.
Posted by Patent Hawk at 12:30 PM | Inequitable Conduct | Comments (1)
May 14, 2008
Priority
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.
Posted by Patent Hawk at 7:41 PM | Case Law
Squashed Mango
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.
Continue reading "Squashed Mango"
Posted by Patent Hawk at 12:49 PM | Claim Construction
May 13, 2008
Another Nail
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.
Continue reading "Another Nail"
Posted by Patent Hawk at 5:10 PM | Case Law
May 12, 2008
Useful
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.
Posted by Patent Hawk at 11:04 PM | § 101
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.
Continue reading "In The Weeds"
Posted by Patent Hawk at 4:32 PM | The Patent Office | Comments (3)
Multiples
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.
Posted by Patent Hawk at 3:45 PM | Patents In Business | Comments (2)
May 11, 2008
Going Solo
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.
Posted by Patent Hawk at 7:22 PM | Patents In Business
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.
Continue reading "Feathering the Nest for Inventors"
Posted by Michael Martin at 5:00 AM | The Patent System
May 10, 2008
Pitiable
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.
Posted by Patent Hawk at 11:37 PM | The Patent System
Nadir
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.
Posted by Patent Hawk at 9:35 PM | Prosecution | Comments (3)
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.
Continue reading "IP Is Not A Commodity"
Posted by Michael Martin at 8:46 AM | Patents In Business
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.
Continue reading "Broken and Unbroken"
Posted by Patent Hawk at 12:04 AM | The Patent System
May 9, 2008
Dead, For Now
The Economist: "On May 5th the Senate removed the bipartisan Patent Reform Act from its calendar."
Posted by Patent Hawk at 11:41 AM | The Patent System | Comments (1)
May 8, 2008
Claim Stink
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.
Continue reading "Claim Stink"
Posted by Patent Hawk at 10:00 PM | Claim Construction
Squealing
It's
official.
Elvis Costello to the contrary, clown time is not over. The USPTO is
appealing dénouement of illegality accorded its proposed examination rule
changes.
Posted by Patent Hawk at 1:04 PM | The Patent Office
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.
Continue reading "What Adam Smith Taught"
Posted by Michael Martin at 9:09 AM | Patents In Business | Comments (4)
Kiosk Mirage
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.
Continue reading "Kiosk Mirage"
Posted by Patent Hawk at 2:01 AM | Claim Construction
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.
Continue reading "Out of Gear"
Posted by Patent Hawk at 10:10 PM | Claim Construction
May 6, 2008
Toothless Vampire
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.
Continue reading "Toothless Vampire"
Posted by Patent Hawk at 7:23 PM | Claim Construction
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.
Continue reading "An Inconvenient Truth"
Posted by Patent Hawk at 12:58 PM | The Patent Office | Comments (2)
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."
Continue reading "EPO Oppositions & Appeals"
Posted by Patent Hawk at 4:47 PM | International | Comments (6)
May 4, 2008
Righting Whitening
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.
Continue reading "Righting Whitening"
Posted by Patent Hawk at 1:14 PM | Litigation | Comments (1)
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.
Continue reading "Finite Genus Killer"
Posted by Patent Hawk at 9:03 PM | Prior Art | Comments (3)
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.
Continue reading "Patent Prosecution Highway - Bridge Two"
Posted by Mr. Platinum at 12:08 PM | Prosecution
Stranded R&D
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.
Continue reading "Stranded R&D"
Posted by Michael Martin at 10:27 AM | Patents In Business | Comments (8)
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.
Continue reading "Appeal Brief Summary"
Posted by Patent Hawk at 8:16 PM | Prosecution | Comments (4)
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