June 30, 2008
Hal Wegner displays astonishing senility in a disjointed and practically schizophrenic review of pulp fiction by academics Bessen and Meurer (B&M). Wegner: "The U.S. patent system is not working. It stands accused on all sides of stifling innovation instead of nurturing it. Some critics say the system is fundamentally wrecked, others that it can be fixed."
June 29, 2008
In Patents We Trust
The Allied Security Trust is an alliance of computer-based technology companies, aimed at buying patents to avoid having them asserted against them. The entrance fee is $250,000, plus $5 million in escrow. Verizon, Google, Cisco, and HP are reputed founding members. The natural recruiting ground comprises members of the Coalition for Patent Fairness, the lobbying group for raising the cost of patent enforcement beyond the grasp of grasping inventors.
Boehringer Ingelheim sued Barr and Mylan for infringing 4,886,812 after the two filed ANDAs seeking to market generic versions of Mirapex, used to treat Parkinson's disease. Delaware district court Judge Joseph J. Farnan Jr. penned a careful decision, invalidating the patent over nonstatutory double patenting.
June 27, 2008
Fargo Electronics sued IRIS for infringing 5,755,519 and 6,152,625, which claim a ribbon type sensor for a printer. IRIS sells replacement ribbons compatible with Fargo printers. A couple of claims fell on the reasonable repair doctrine. Incompetent prosecution, resulting in indefinite claims, killed the rest of the assertion.
June 26, 2008
i2 Technologies wrestled $83.3 million in a settlement from SAP for supply-chain software patents. The case was in forced mediation in the Eastern District of Texas.
In the late 1990s, i2 had been a successful pioneer in the area as a software vendor, but had its lunch eaten by larger enterprise resource-planning and workflow software companies like SAP after the dot.com crash at the turn of the millennium. Inexorable economics of scale crush small companies.
June 25, 2008
Industrial Dynamics (IDC) was found infringing 6,298,974, owned by Heuft Systemtechnik. The patents claim bottle handling inspection for bottling plants. On appeal, IDC successfully challenged the claim construction.
June 24, 2008
In their June newsletter/sobfest, POPA reiterates concerns over proposed changes to the PTO telework program. The proposed changes would eliminate the one-hour-per-week in office requirement for examiners, but would require examiners to cover all costs when traveling to the PTO headquarters on an "as needed" basis. POPA's concern: malicious supervisors interpreting "as needed" as "as wanted".
June 23, 2008
In A Huff
Southern California Judge Marilyn L. Huff, upholding a jury finding, ruled that Microsoft must pay Alcatel-Lucent $357.7 million for infringing 4,763,356, claiming a user interface for choosing a calendar date from a menu, used in Microsoft programs Outlook, Money, and Windows Mobile. Further, infringing stylus patent 5,347,295 with Windows XP Tablet PC Edition comes with a $10.35 million price tag. The $368 million tab inflates to $511.6 million with prejudgment interest ($139.5 million). Needless to say, Microsoft vows appeal.
Law professors John Duffy, Dennis Crouch, Mark Lemley, and others, filed an amici brief for certiorari before the Supreme Court, to toss the CAFC mistake In re Nuijten, which ruled that transient signals were not patentable subject matter under 35 U.S.C. § 101.
Realsource asserted 5,732,136, claiming a debit card transaction method, against several retailing chains, including Best Buy, Starbucks, Costco, Lowe's and others. Realsource might have had a real invention, but like so many, the prosecutor was sloppy with language, and did not bother disclosing possible alternate embodiments. Enforcement floundered on claim construction.
June 21, 2008
Ottawa-based Wi-LAN, holding spread spectrum patents 5,282,222 and RE37,802, thinks it has a lock on wireless standards 802.11 and CDMA2000. Wi-LAN has over 25 companies under the gun, including Apple, Sony, HP, and Intel. Earlier this week Wi-LAN stuck it to a fellow Canadian company, everybody's favorite wireless patent piñata, Research in Motion (RIM), as well as Motorola and UTStarcom.
June 20, 2008
Sauce For The Goose
Damien Geradin, Anne Layne-Farrar, and A. Jorge Padilla, in "Elves or Trolls? The Role of Non-Practicing Patent Owners in the Innovation Economy":
Clearly, patents in the hands of non-practicing entities can increase competition, lower downstream prices, and enhance consumer choice... Clearly, patents are a complex subject that cannot be portrayed as either all good or all bad; tradeoffs will always be involved. Without a better understanding of the many complicated effects of patents in high technology markets, we run the very real risk of misguided policy decisions.
It's much simpler than that.
June 19, 2008
While Jon Dudas, head of the USPTO, blames idiot inventors with their bad ideas and pathetic prosecutors pushing punk paper as the cause of the pendency problem, head of the European Patent Office Alison Brimelow blames the European Patent Office. How refreshing. "I am worried. You cannot pretend the patent system is maintaining its integrity if you are looking at global backlogs."
Wily guys Mork & Beaty of Scanner Technologies got semiconductor packaging inspection patents. I thought it was Mork and Mindy, but I was wrong again. In the patenting process, they got hot under the collar about a competitor's product, hastening prosecution with a "make special" petition. Enforcing the patents, which were about ball grid arrays (BGA), turned out to be not such a ball. Defendant ICOS fought back with an affirmative defense of bad juju, patent street jive for inequitable conduct. Courts love street jive. Works every time. Well, not this time. At least, not for that.
June 18, 2008
A further bit of evidence that Wall Street floats on an ocean of dumb money flowed in earlier this week. Tessera has an enforcement campaign for semiconductor packaging patent 6,433,419. The patent, currently under reexamination, is invalid. Patent Hawk provided the ammunition. Tessera announced that the reexam, which they expect to go to appeal, will take so long that the patent will expire before that shooting match is over. Tessara shares jumped 8.4% on that bit of tripe.
June 17, 2008
Ole Nilssen, patent goofball extraordinaire, in rather massive assertion against Osram Sylvania, was found to have committed inequitable conduct in multiple ways, a ruling affirmed on appeal. In awarding attorney fees in this exceptional case, Nilssen's conduct went beyond inequitable conduct, to litigation misconduct, the trial court judge ruled. 2-1, the CAFC agreed. The CAFC puts plaintiffs on notice that prosecution and litigation tactics that resemble shenanigans parades will not be tolerated.
Allied Signal, owner of 6,287,955, failed to pay its maintenance fee, abandoning the patent. Changing its mind after the fact, the lament was that the lapse was unintentional.
In short, when this patent was not deemed to be profitable, a plurality of employees of the Assignee determined that this patent should be allowed to expire, and an intentional decision was made that the maintenance fee should not be submitted to the Office. However, now that it has been learned that there is commercial interest in this patent, the Assignee seeks to characterize the intentional decision to allow this patent to expire as "unintentional."
Fact & Fiction
Democratic nominee for President Barack Obama:
I'm going to make... judgments not based on some fierce ideological pre-disposition, but based on what makes sense. I'm a big believer in evidence. I'm a big believer in fact... We've got offices like the patent office that are outdated to take advantage of new discoveries here in the United States.
June 16, 2008
Innovation Technologies sued Splash! Medical Devices for infringing 5,830,197, which claims a method for irrigating wounds. Innovation got cold feet and backed out, giving Splash a pass. Splash moved for attorneys fees and expenses, a $144,350 tab. Granted. Vacated and remanded on appeal, because the district court judge didn't explain his reasoning.
One Forward, Two Back
The US patent system is unraveling as the USPTO desperately clings to the telework thread as a last hope for reducing pendency. POPA reports that "management has proposed legislation which would allow the agency to permit employees to telework from anywhere in the United States". Yet POPA laments that this latest effort "would not require the agency to pay for employees' travel when the agency requires them to report to USPTO headquarters" and that "management also wants to pay telework employees according to the locality in which the employees actually live and work".
The USPTO has chimed in on the Bilski case on its internal website.
The USPTO has done its best to follow the guidance in State Street and AT&T, which some believe state that any useful series of steps is patent-eligible. However, the USPTO does not believe that such a broad reading of those rulings is consistent with the Supreme Court's views on the eligibility of "process" patents, as set forth in Diamond v. Diehr, 450 U.S. 175 (1981).
Praise be to Kevin E. Noonan at Patent Docs for follow-through on the low-down of the apparent improprieties by the dastardly Dudas and the USPTO in the NTP v. RIM litigation and reexamination.
Investing in IP
David S. Ruder, author of Strategies for Investing in Intellectual Property, with deep IP investment experience, ought to know his stuff. But he has written a peculiar book. His case-based approach is familiar to MBA wanna-be's, and often enjoyable, but it obscures some big points in the details. It's not clear that Ruder even knows the definition of intellectual property, and the one thing the book largely covers in the breach are strategies for investing in IP.
June 15, 2008
Answers, Of A Sort
Criticism of the USPTO has reached comical proportions, and the joke is on us: inventors and prosecutors. When there is a universal howl from the U.S. patent bar about the agency, while the PTO itself crows about a lurch down in allowance rate, and a federal court rules that the PTO acting illegally, you may think something afoot. Joff Wild of IAM Magazine, sitting comfortably across the pond in merry old England, wonders.
June 14, 2008
The Patent Prospector plastered the Supreme Court for its inept KSR ruling regarding obviousness. For those wishing to visit old stomping grounds, Lewis & Clark Law School held an Obzillafest last October, though they were too stiff to call it that. Insomniacs may get some relief, as well as insight, from the collected works.
Traditional nunchucks, a martial arts weapon, are two sticks connected by a short chain or rope. Modern-day nunchucks act as videogame controls. LA-based Nyko makes a wireless nunchuck, and won an award for it at the 2008 Consumer Electronics Show in Viva Las Vegas. Nyko's nunchuck resembles a wired predecessor made by Nintendo, holder of nunchuck design patents D556,201 and D556,760. Nintendo's complaint was filed June 10th in the Western District of Washington against Nyko's unlicensed version. Nyko may be in for a different kind of award.
June 13, 2008
Design patents seem like a little brother to utility patents, all form and no substance. But aesthetics spin money. Even the presentation of a product can help it jump off the shelf and make the cash register ring. So Monster Cable, which packs its cables into a tidy product display, understandably complained that Timex has copied its display package to retail kids' watches.
June 12, 2008
Through Its Hat
Linux purveyor Red Hat found its open source a bit too loose, so it settled two patent infringement suits with DataTern. One of the suits was brought by FireStar, which later assigned 6,101,502 to DataTern. DataTern steered '502 and 5,937,402 into the black from Red Hat. Delusional, Red Hat expressed belief that its settlement will serve as precedent to discourage similar suits. More likely, Red Hat has painted itself as an easy mark.
June 10, 2008
Intel, Cisco, Alcatel-Lucent, Sprint Nextel, Samsung, and Clearwire are forming a patent pool to collectively license WiMAX wireless technology patents. The alliance plans to collect patents essential to WiMAX and license the pool to consumer electronics manufacturers. The aim is to advance the widespread adoption of WiMAX, which has competition from another standard. The patent pool approach for promoting standards has a successful track record, including MPEG video compression.
Facing an onslaught of appeals because of abysmal examination, the USPTO has new rules to streamline the appeal process. Appeals in a single round. Gone: examiner response to an appeal brief, and the ability to raise new grounds of rejection in examiners' answers. From the announcement:
Briefing requirements that were not necessary for the appeal - such as the "summary of the claimed subject matter" - are no longer required. The facts and arguments required in the brief are focused on distilling the issues of the dispute and establishing where the examiner erred in the rejection. Finally, page limit requirements ensure concise and clear arguments.
June 9, 2008
Broadside criticism of individual examiners doing their daily tasks should be out of bound (sic) and, a fortiori, spineless, anonymous criticism of individual examiners by a practitioner either crosses an ethical or disciplinary line - or such a line should be sharply drawn to deal with such reprehensible conduct.
Justice Thomas, delivering the 9-0 opinion in Quanta v. LG Electronics:
For over 150 years this Court has applied the doctrine of patent exhaustion to limit the patent rights that survive the initial authorized sale of a patented item. In this case, we decide whether patent exhaustion applies to the sale of components of a patented system that must be combined with additional components in order to practice the patented methods. The Court of Appeals for the Federal Circuit held that the doctrine does not apply to method patents at all and, in the alternative, that it does not apply here because the sales were not authorized by the license agreement. We disagree on both scores. Because the exhaustion doctrine applies to method patents, and because the license authorizes the sale of components that substantially embody the patents in suit, the sale exhausted the patents.
June 8, 2008
In a lucrative win-win only for respective law firms representing nimrod HP and upstart Acer, HP, with more to lose, backed down. The two computer firms have settled their patent spat. Terms undisclosed. HP had asserted ten patents against Acer in East Texas in March 2007, as well as sprouting an ITC investigation. Taiwan-based Acer counterclaimed in July with its own East Texas suit of seven patents.
Filthy earth monkeys have soiled the planet. Belatedly, checking their virtual diapers, remorse comes in the form of adopting so-called "clean" technologies. A whole new area of patent infringement blossoms.
June 7, 2008
Patent licensing company Rembrandt IP cut its teeth in 2004, buying a nine-patent portfolio from Paradyne for $1 million. Paradyne was an AT&T spinoff. Eight of those patents went to cable modems, one to digital TV. Rembrandt then started an enforcement campaign, suing Comcast, Time Warner, Cablevision, Charter Communications, and Cox Communications, as well as the TV channels ABC, CBS, NBC, and Fox.
June 6, 2008
Brian L. Evans let his oversized ego get in the way of a grab at the brass ring of patent payout. 4,398,735 claims a truck assembly for roller skates and skateboards. Evans was the inventor. Evans insisted in acting as his own attorney in convoluted litigation over a licensing agreement dispute with Roller Derby Skate, in violation of the "longstanding rule that corporations and other unincorporated associations must appear in court through an attorney."
June 5, 2008
It has become a common tactic for a patent infringement defendant to request a reexamination. Courts have no obligation to acknowledge such, but many will stay proceedings pending reexam outcome if it occurs early enough in the lawsuit. Courts also have no obligation to heed the results of a reexam. Once a lawsuit is initiated, the court has jurisdiction to decide as it sees fit.
The USPTO has a pilot program for select art units, offering applicants the opportunity for an interview prior to first office action. Of course, a prosecutor could always voluntarily do the same. While pre-action interview may be "in the interest of compact prosecution," under the current USPTO regime, it is more a formula for vexation.
June 4, 2008
Brocar sued retailer Target and others for infringing 6,049,928, claiming a baby diaper changing station able to resist vandalism. It's kiddie kung fu thing. Not really. Anyway, claim construction resulted in noninfringement. On appeal, affirmed.
Out to Sea
Wall Street floats on an ocean of dumb money. Patent purveyor Ocean Tomo has patent-oriented stock indices, supposedly taking the heavy lifting out of picking patent-heavy stocks. Speculators, who may be hedge fund or large bank proprietary traders, or market research fabricators, collar patent lawyers for quick steps up on a steep learning curve.
June 3, 2008
Slow Boat Arrives
After seven years of pretrial jockeying, Cornell University stuck HP with a $184 million tab, capping an eight-day jury trial in North New York, CAFC Judge Randall R. Rader slumming as presiding judge. Cornell succeeded with all five claims of the asserted patent. HP failed with its invalidity, patent exhaustion, and implied license defenses.
Bancorp sued Metropolitan Life Insurance for infringing 5,926,792, claiming tracking the value of life insurance policies. Unsuccessfully in the first round, as the district court judge granted summary judgment of non-infringement, which failed on appeal, albeit on an affirmed claim construction, because of a "genuine issue of material fact." Not to mention the district court not affording Bancorp sufficient discovery.
June 2, 2008
To FTC Commissioner J. Thomas Rosch, patents are inherently anti-competitive. To what degree depends upon the situation. Rosch reserves special ire for patent holders of technology standards, but would limit damages for inventors to what it cost to obtain a patent.
Coin of the Realm
The candy company Mars sucessfully sued Coinco for infringing 3,870,137 and 4,538,719, claiming ways to validate coins put in vending machines. Mars wanted damages on lost profits. After 15 years of enforcement action, those damages looked more like a lost cause.
June 1, 2008
Thursday, Stanford University had three HIV-monitoring patents invalidated in summary judgment, letting Roche off the hook. Northern California Judge Marilyn Hall Patel ruled that the Stanford patents were obvious in light of a 1991 prior art article.
Paris-based Alcatel SA bought the technology rump of Ma Bell in late 2006 - Lucent Technologies. The firm has been hyperactive in asserting patents from the combined portfolio. With good reason. Market capitalization has halved since the merger. CEO Patricia Russo and Chair Serge Tchuruk are besieged by shareholders for lack of performance.