July 31, 2008
Not Mousing Around
Microsoft asserting patents is as rare as hens teeth. But Wednesday Microsoft filed a complaint at the ITC against Primax Electronics of Taiwan, over seven mouse patents. One portfolio, dubbed "U2," is for connecting a mouse to either a USB or PS/2 port. 6,460,094 is exemplary. Microsoft claims that over 20 companies have licensed this portfolio. Belkin had to be slapped over U2, but settled. Another asserted patent, 7,199,785, is for Microsoft's mouse four-way tilt wheel.
July 29, 2008
USPTO Deputy Director Margaret J.A. Peterlin is throwing in the towel, not a day too soon. From the PTO announcement:
In addition to enhancing operational efficiencies, Deputy Under Secretary Peterlin strategically positioned the USPTO as a leader in such important policy debates as patent modernization legislation, in which the USPTO played a lead role in forming and communicating the Administration's position.
July 25, 2008
Rambus got patents covering computer memory standards, set by JEDEC, an industry group. Defendant chip makers Hynix, Samsung, Nanya and Micron went after Rambus for bad juju, in the Northern District of California. Defendants lost.
Following a seven-and-a-half week consolidated trial on the jury issues set forth in the parties' Joint Pretrial Statement filed January 14, 2008, the jury returned a verdict in favor of Rambus and against the Manufacturers... Specifically, the jury found that Rambus did not commit monopolization or attempted monopolization because it did not engage in anticompetitive conduct... The jury also found that Rambus did not commit fraud because it made no false misrepresentations and uttered no half-truths... Finally, the jury found that Rambus did not commit fraud because JEDEC members did not share a clearly defined expectation that members would disclose relevant information they had about patent applications or the intent to file patent applications on technology being considered for adoption as a JEDEC standard.
July 24, 2008
The University of Texas (UT) sued a slew of companies for infringing 4,674,112. It lost on claim construction, and so appealed, but with only silliness to back it up.
In 2004, Magma Design Automation, an automated chip design company, sent a threatening letter to rival Synopsys about patent infringement. Synopsys responded with a declaratory judgment motion that two Magma patents were conceived while its inventor, now Magma chief scientist Lukas van Ginneken, was employed at Synopsys, hence the patents were rightfully Synopsys property. In 2005, Van Ginneken signed a declaration that Magma management knew. Magma stock nosedived 40% in a single day. In the aftermath, the companies settled, costing Magma $12.5 million. But that didn't end the story.
July 23, 2008
Sweetness & Light
Courtroom View Network has stopped licking its chops. The very day its $400 per day pay-per-view webcast of the Qualcomm-Nokia courtroom prizefight was to commence, they settle. Worldwide, no complaints now between these two. A 15-year agreement. Essentially, a comprehensive cross-license. Nokia pitches a few patents Qualcomm's way, including ones crucial to cell phone standards, so Qualcomm can muscle others. Nokia pays up-front and on-going royalties, the figures not disclosed. Both parties were gushingly pleased. Patents have a way of bringing companies together.
The USPTO posted a warning in the Federal Register about using foreign patent prosecution companies. Under 15 CFR 730-744, technology exports are subject to government approval by the Bureau of Industry and Security (BIS) at the Department of Commerce. If caught sending your software patent application to a cut-rate prosecution shop in Bangalore, you will be spanked and your patent yanked.
July 22, 2008
In its battle to pry open Microsoft's wallet, Alcatel-Lucent has two parallel patent cases. Yesterday it filed an identical motion in both cases, seeking full production of all Microsoft's patent license agreements with third parties. Such agreements are almost always confidential, as a condition of settlement. Alcatel doubts whether Microsoft has been truthful with regard to its settlements.
July 21, 2008
Pay Per View
The Qualcomm - Nokia patent battle is like a heavyweight prize fight. So much so, the trial, which begins Wednesday, is being televised on pay-per-view for $400 a day by Courtroom View Network via webcast.
Qualcomm sells cell phone chips, manufactured under license, but half its profits are from patent licensing fees. Nokia, provider of 40% of the world's cell phones, took a license from Qualcomm in 1992, a pact revised in 2001 that expired in 2007. Nokia, feeling aggrieved at having forked over $1 billion, and wanting to stanch the bleeding by paying a lower royalty, decided to let itself be dragged to court rather than pay up.
Eisai sued Dr. Reddy's Labs and Teva for infringing 5,045,552 after the two filed ANDAs to make a generic version prior to patent expiration. '552 claims a digestive antacid. Eisai overcame obviousness and inequitable conduct arguments to prevail. In its affirmation, the CAFC elucidated the current standard for chemical obviousness.
July 20, 2008
After an 11-year court battle, the FTC has squeezed, in settlement, a $10 million penalty from Davison for running a con on patent holders. The FTC claimed the company "enticed consumers with false claims about their selectivity in choosing products to promote, their track record in turning inventions into profitable products, and their relationships with manufacturers. They also deceptively claimed that their income came from sharing royalties with inventors, rather than from the fees consumers paid."
July 18, 2008
A recently published UPSTO Federal Register Notice regarding paperwork burdens for the proposed appeals rule change is oddly missing from all PTO lists of Federal Register Notices. The wafting scent is that this is something more than oversight, instead, a continuation of a two-year trend of failing to give sufficient notice of opportunity for public comment.
Monster Cable likes its packaging. Monster wrestled licenses from Systemax and its subsidiary Ultra Products for D471,442. Monster has other packaging infringement actions against Timex, and Bizlink and its subsidiary Accell. Monster favors the Eastern District of Texas for its enforcement actions.
July 16, 2008
The USPTO, EPO, and JPO are joining forces once again to combat pendency and quality issues. With all their powers combined, they are Triway, planetary patent force. The one-year Triway pilot will launch July 28th, and will accept up to 100 participating applications. Triway will complement the existing Patent Prosecution Highway Program, and attempt to further promote worksharing between patent offices.
Dr. Olivia N. Serdarevic claims she was an inventor in six patents for laser eye surgery, owned by VISX, a subsidiary of Advanced Medical Optics. Serdarevic contacted VISX in 1998, and got an appropriate response, but failed to follow through until 2006, when she sued. Serdarevic pussyfooted long enough for laches to kick in.
The USPTO is extending and expanding its Peer Review pilot program. While the original pilot was limited to "computer-related arts," the program is porking to eat business method applications too. 400 possible published applications will sweat it out under public grilling, up from the original 250. The pilot is extended for another year; now scheduled to end June 15, 2009.
July 15, 2008
Dr. G. David Jang assigned 5,922,021 and 5,954,743 to Boston Scientific and SciMed Life Systems. The companies were supposed to pay royalties on products "covered by" (i.e., infringing) the patents. Jang sued because he thought he wasn't getting his share. Central California district court issued a claim construction. Before appeal, they all stipulated that Jang was out of luck if the claim construction held. But the agreed stipulation was ambiguous on crucial points. The appeals court threw up its hands, vacated the judgment, and remanded "for clarification." (CAFC 2007-1385)
July 14, 2008
"I have to tell you that the innovation and the technology and the entrepreneurship of the world still lies in the United States of America. Every technological advance we've made in the 21st century and throughout the 20th has come from the United States of America." - John McCain, Republican presidential candidate
With case law changing like a fashion model working the runway, Thomson had time on its side in slipping the surly bonds of patent infringement. Muniauction asserted 6,161,099, claiming auctions using a web browser. Thomson lost a jury trial, found willfully infringed, faced $77 million in damages and an injunction. On appeal, the auction patent action was retold, and the damage unsold.
"The bigger the lie, the more the people will believe it." Joseph Goebbels, Hitler's propagandist, must be smiling up from Hell at academics Bessen and Meurer, who concocted rubbish figures about the value of U.S. patents. Mainstream media hack Gordon Crovtiz has taken the numbers as gospel. "Empirical research" he calls them. "Shocking findings." Crovitz preaches his new-found gospel in "Patent Gridlock Suppresses Innovation." Of course, it's in the Wall Street Journal, Rupert Murdoch's latest conquest.
July 13, 2008
Not Invented Here
35 U.S.C. §102 - "A person shall be entitled to a patent unless - ... (f) he did not himself invent the subject matter sought to be patented..." §102(f) dates to the 1836 Patent Act, and U.S. case law predates statute. Does §102(f) mean what it says? - That a patent is invalid if not invented by a patent applicant. If so, why is it not applied as such? If not, why not?
The FTC, this nation's competition watchdog, is anti-patent. Commissioner J. Thomas Rosch considers patents inherently anti-competitive. But mergers to create an illegal market-dominant company, well, that's a different topic, a matter of discretion. So the FTC okayed a merger between Flow and Omax, both Washington state companies, despite acknowledging that they "are each other's closest competitor in the highly concentrated U.S. market for water-jet-cutting systems."
July 11, 2008
Rambling Rambus is putting Nvidia on the litigation griddle for infringing 17 patents. Nvidia specializes in graphics processing chips. Rambus specializes in raking it in for patented semiconductor technologies. Founded in 1990 by two geeks, Rambus has been an nonstop patent litigator paradise, suing for licenses rather than the pesky process of making anything. But patient. Rambus jawed with Nvidia over six years before heading to the courthouse. The two will continue to talk while the lawyers rack up billable hours.
Vonage, the erstwhile VoIP patent piñata, now has one of its own: 7,386,111 "Method and apparatus for placing a long distance call based on a virtual phone number." Also this week, Vonage and Comcast announced a collaborative agreement to work on network congestion management related to VoIP.
July 9, 2008
No Reverse Spin
Apotex filed two ANDAs with the FDA to market generic formulations of eye inflammation treatment patented by Roche. Naturally, Roche sued, in two separate actions. The first case was decided in 2007, with Apotex infringing a valid patent. In the second case, more of the same bad news. The CAFC ruled "that the reverse doctrine of equivalents is inapplicable and that claim preclusion prohibits Apotex from raising other validity challenges." That KSR changed obviousness in the interim between the two cases made no difference.
July 8, 2008
InterDigital is trying to hammer Samsung into licensing submission for five of its cell phone patents though the ITC. An ITC staff recommendation, just issued, recommended against granting injunctive relief. On that news, InterDigital shares shed 22.6% of their value, dropping $5.72 to $19.54. Investors are a squeamish bunch.
Dogging An Application
While there is no formal channel for an external party to submit potentially invalidating prior art to the USPTO to derail a patent application, there are ways. But a bark that doesn't bite can bite back later.
July 7, 2008
Peer-to-Patent declared itself a success in its First Anniversary Report. Self flattery had patent blogger praise piled on. The hoopla is not entirely unmerited. What a great concept: the patent community contributing back to the patent system, examination quality improving with an influx of peer-cited art, and pendency decreasing without the PTO lifting a finger. Sounds like a win-win-win. Too bad we don't all live in Tuvalu, where scalability would not be an issue.
The CAFC heard oral arguments today in the jury-trial fantasy $1.5 billion award to Alcatel-Lucent from Microsoft for infringing two MP3 audio patents. The district court judge pitched the jury verdict, finding non-infringement on one, and lack of standing on the other. Microsoft claims it licensed the patents from a German research institute for $16 million, which Alcatel terms impossible. The high award figure was based on worldwide Windows sales, an engorgement of revenue base that the Supreme Court disallowed in AT&T v. Microsoft.
July 5, 2008
Up-and-comer Platform Solutions, a computer mainframe startup backed by venture capital, including contributions from Intel and Microsoft, is folding its pup tent. Platform is owner of freshly minted 7,386,670: "Processing of self-modifying code in multi-address-space and multi-processor systems." After whining to European Union antitrust regulators about IBM's heavy handedness in the mainframe market, IBM decided upon a response: swallow the bug.
July 4, 2008
Playing catch-up to Apple's QuickTime and Adobe Flash, Microsoft has been pushing Silverlight, its multimedia offering to let users watch video through their web browsers. Massachusetts-based Gotuit Media, a multimedia vendor, is having a go at Microsoft for infringing three patents, in the Northern District of California, which is usually considered defendant-friendly.
July 3, 2008
Paice successfully sued Toyota for infringing hybrid vehicle drive train patents. Toyota couldn't get the verdict overturned on appeal, and SCOTUS blew them off. Not having the sense to settle, Toyota now faces a new suit.
July 2, 2008
An interoffice memo on examining claims for § 101 compliance issued to the USPTO examiner corps in mid-May.
Based on Supreme Court precedent and recent Federal Circuit decisions, the Office's guidance to examiners is that a § 101 process must (1) be tied to another statutory class (such as a particular apparatus) or (2) transform underlying subject matter (such as an article or materials) to a different state or thing. If neither of these requirements is met by the claim, the method is not a patent eligible process under § 101 and should be rejected as being directed to nonstatutory subject matter.
July 1, 2008
France-based Gillet Outillage sued Taiwan competitor Fisher Tool in central California over 6,189,190, claiming automobile pliers. Gillet suffered a narrow claim construction, so dropped the suit. Fisher lashed out for malicious prosecution under California law, and antitrust. The district court granted summary judgment for Gillet. Fisher appealed.