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August 31, 2008
Phoning It In
800 Adept successfully sued Targus for
two patents routing 800 number calls to a
local service location. A 24-day jury trial spat a $18 million patent
infringement award, attorneys fees for it being an exceptional case, permanent
injunction, and Targus "liable under state law for tortious interference with
Adept's business relationships," worth $7 million. Found willful, the award
ballooned to $49 million. Targus' 10 counterclaim patents, covering much the
same territory, bit dust. Overturned on appeal on claim construction, and other
trial court errors.
Continue reading "Phoning It In"
Posted by Patent Hawk at 3:14 PM | Claim Construction
August 29, 2008
101 Love
USPTO Deputy Commissioner for Patent Examination Policy
John J. Love took it upon
himself to interpret 35 U.S.C. §101 for software method claims. Months ago in an
internal memo to examiners, Love encouraged 101 rejections for method claims
that merely recite computer usage in the preamble. Love wants software process
claim steps tied to a system or apparatus, and transformation of the underlying
subject matter. Now he has backing from the PTO appeals board. Herein, a BPAI
ruling bombastic in its vacuity, disingenuous dissembling of case law to drive
process patentability into the ditch.
Posted by Patent Hawk at 10:15 PM | § 101 | Comments (15)
August 28, 2008
Heated Argument
Lexion
Medical sued Northgate for infringing
5,411,474 and
6,068,609, which claim techniques for heating a patient's gut in preparation
for laparoscopic surgery. '609 was stomped by Obzilla JMOL, while '474 eked out
$721,662 in jury-awarded damages. On appeal, an overturned claim construction
vacated the award, but Obzilla remained triumphant.
Continue reading "Heated Argument"
Posted by Patent Hawk at 2:41 PM | Claim Construction
Cheese
Microsoft
and Nikon have consummated a photo finish to a patent cross-licensing agreement,
though the picture is fuzzy. Details went undisclosed, other than indicating
that Microsoft is being compensated by Nikon for its gorilla hug. Since
Microsoft started banging its patent drum at the end of 2003, it has wrestled
over 500 licensing agreements.
Posted by Patent Hawk at 10:37 AM | Patents In Business
August 27, 2008
Pulp Business
In
2002, Immersion sued Microsoft & Sony for patent infringement. In 2003,
Microsoft settled, with Microsoft paying Immersion $26 million. In a secret
codicil, Immersion was to pay a kickback to Microsoft from the proceeds of
successfully suing Sony for the same infringement. Sony
settled
with Immersion in March 2007. Immersion sat pat. So, in June 2007, Microsoft
sued Immersion for reneging on the kickback.
Continue reading "Pulp Business"
Posted by Patent Hawk at 7:12 PM | Patents In Business
August 26, 2008
High Stakes High Definition
Orinda
has filed against Sony for its Blu-ray high-definition DVD players.
5,438,560 claims basic optical disk recording, accounting for bad disk
sectors.
Complaint filed in the Eastern District of Texas.
Continue reading "High Stakes High Definition"
Posted by Patent Hawk at 9:16 PM | Litigation
Unsettling
The
application of statistics is relatively simple. Statistics is taught at
college for many fields. But properly applying statistics seems to elude many. A
recent
patent reexamination analysis by lawyers is exemplary: a small sample size
of biased data, rendering it rather meaningless. But the
statistically-challenged authors reported the results as conclusive. Another
study, on civil lawsuit settlements, suffers the same flaw. There at least the
authors admit the data base as flawed, but regardless paint a brave face on
tainted data.
Posted by Patent Hawk at 11:07 AM | Litigation | Comments (6)
August 25, 2008
Prove It
In
a touchstone ruling, Star Scientific v. R.J. Reynolds, the CAFC resets
the high bar for inequitable conduct:
The burden of proving inequitable conduct lies with the accused infringer. The patentee need not offer any good faith explanation unless the accused infringer first carried his burden to prove a threshold level of intent to deceive by clear and convincing evidence. If a threshold level of intent to deceive or materiality is not established by clear and convincing evidence, the district court does not have any discretion to exercise and cannot hold the patent unenforceable regardless of the relative equities or how it might balance them. Even if a threshold level of both materiality and intent to deceive are proven by clear and convincing evidence, the court may still decline to render the patent unenforceable.
Posted by Patent Hawk at 2:15 PM | Inequitable Conduct | Comments (2)
August 24, 2008
By the Book
Responding
to definitions of terms in a reexamination Examiner's Answer, an Appellant filed
a reply that included dictionary definitions, to rebut the examiner's
construction. The reply brief was refused entry, on the ground that the
dictionary definitions constituted "new evidence." A petition to overturn was
denied.
Continue reading "By the Book"
Posted by Patent Hawk at 6:02 PM | Prosecution | Comments (1)
Pulp Non-Fiction
Any
competent statistician will tell you that sample size is telling. So why do Andrew S.
Baluch and
Stephen B. Maebius just
look at
the first 30 of 308 inter partes reexaminations since late 1999, when the
practice began? From the smattering, the two
Foley & Lardner attorneys find reexamed claims downed a whopping 73% of the
time. 43% of the time, the patent holder didn't even bother to reply. The
authors term it "surprising efficacy." A sense of perspective would call it
numbers that tell you nothing noteworthy.
Continue reading "Pulp Non-Fiction"
Posted by Patent Hawk at 10:28 AM | Prosecution | Comments (2)
The Power of Arsy
Patent examiners have been
getting a bad rap in the patent blogosphere. Insults attacking their competence, work ethic, intelligence, moral character, and English skills are flung.
In moments of weakness, this author has occasionally chimed in. But examiner incompetence should not be
so easily disparaged. It should instead be respected and appreciated as better than the alternative.
Continue reading "The Power of Arsy"
Posted by Mr. Platinum at 6:28 AM | The Patent Office | Comments (10)
August 23, 2008
Pennies Saved, Patent Lost
5,883,964
and
6,035,027 patented computerized phone callback, a scheme for lower
international phone bills, because foreigners want a pretty peso for a phone
call. Enforcing the patents was spent because the patentee sold out before
patenting.
Continue reading "Pennies Saved, Patent Lost"
Posted by Patent Hawk at 12:49 PM | Prior Art
August 22, 2008
Shoe Shoo
DSW
sued Shoe Pavilion for infringing
6,948,622 and
D495,172, claiming a shoe display rack. Shoe Pavilion responded by removing
the offending racks. The district court booted the case. The CAFC booted the
district court, for importing a limitation into claims unjustifiably, and not
properly awarding damages. Shoe Pavilion owed for the time it was infringing.
"Because patent infringement is a strict liability offense, the nature of the
offense is only relevant in determining whether enhanced damages are warranted."
Posted by Patent Hawk at 1:04 PM | Damages
August 21, 2008
Incurable
Leggett
& Platt sued VUTEk for infringing
6,755,518, which claims inkjet printing, in particular, cold curing of the
ink to affix it. '518 was baked in the oven of invalidity. One heat source was
prior art, namely prior VUTEk patents. No scorched-earth prior art search
needed.
From the appeal are mined jewels of anticipation, including the irrelevance of "teaching away," and applying the gauze of inherency: "a prior art reference may anticipate when the claim limitation or limitations not expressly found in that reference are nonetheless inherent in it." Mere mention is insufficient: "the fact that a claim limitation may be present in a reference does not establish that the reference inherently discloses that limitation." To be inherent, the supposed novel limitation must be one of the embodiment "possibilities" disclosed in the prior art.
Posted by Patent Hawk at 1:26 PM | Prior Art
August 20, 2008
Dead Cash Cow Still Milks
Astrazeneca sued Apotex and Impax for infringing patents of "pharmaceutical
preparations containing omeprazole, the active ingredient in Prilosec."
Filing ANDAs prompted the patent assertion. The patents expired, but that didn't
moot the suit. Drug patent law provides an extra six months of exclusive sales
to reap the profits of an expired patent. Also herein, CAFC confirmation that
experimental use to reduce to practice is okay.
Continue reading "Dead Cash Cow Still Milks"
Posted by Patent Hawk at 6:58 PM | Prior Art
The Marshall Plan
Crucial
reading for those interested in the notable docket of rocket, the Eastern
District of Texas, in this week's
Texas
Lawyer. With 232 patent cases filed in Marshall in the past year, trial
dates for filing there are now running to 2012. Judge T. John Ward's patent
litigation mill is slowing, but faring.
Continue reading "The Marshall Plan"
Posted by Patent Hawk at 11:11 AM | Litigation
Dealing with KSR Chat
K&L Gates is hosting a
webinar on "Strategies for Dealing with Obviousness
Rejections by the PTO in the Aftermath of KSR." If you haven't gotten
enough tips on
playing
cards with Obzilla from the Patent
Prospector,
sign up.
Continue reading "Dealing with KSR Chat"
Posted by Patent Hawk at 10:43 AM | Prior Art | Comments (1)
MPEP E8r7
PDFs
of Revision 7 of the Eight Edition of
MPEP are now
available. These are July 2008 changes from the September 2007 r6. The HTML
version, this prosecutor's preference, is pending. Wish they provided a specific
change list.
Posted by Patent Hawk at 8:36 AM | Prosecution | Comments (1)
August 19, 2008
Unoriginal
In
a shocking, unprecedented ruling, one branch of government stands up for
another. Cooper Technologies had a continuation patent subjected to inter partes
reexamination. Cooper carped that wasn't kosher, as the original (first)
application was filed in 1993, and the law stated that "the inter partes
reexamination procedure is available for "any patent that issues from an
original application filed in the United States on or after" November 29,
1999." Apparently paid by the word, the CAFC reminded Cooper that "original" was
just a word, subject to interpretation, and government agencies, such as the
USPTO, have interpretation presumption on their side.
Posted by Patent Hawk at 11:13 AM | The Patent Office | Comments (2)
August 18, 2008
Vacuum Suction
Hal
Wegner cited "an informed source" that John Doll is likely to be the Acting
Director of the USPTO in 2009, upon the expected departure of political hack and
pathetic sack Jon Dudas. "A nonstatutory arrangement between Commerce and the
PTO makes the Commissioner for Patents the Acting Director in the absence of a
superior political appointee."
Continue reading "Vacuum Suction"
Posted by Patent Hawk at 9:05 PM | The Patent Office | Comments (2)
Tool Groups
Inventor
Gary Odom, founder of Patent Hawk, has asserted
7,363,592 against
Microsoft. '592 claims a feature of the tool groups used
in the
Office 2007 tool ribbon. '592 has a priority date of November 2000.
Complaint filed in the Eastern District of Texas.
Odom is represented by Susman Godfrey.
Posted by Patent Hawk at 5:13 PM | Litigation | Comments (10)
In the Aorta
Dr.
Jan K. Voda, M.D., sued Cordis for infringing two catheter patents:
5,445,625 &
6,083,213, getting a 7.5% royalty, and even enhanced damages and attorneys
fees for willfulness. In light of eBay, Voda overreached for a permanent
injunction. In a ruling replete with succinct case law infusions, appeal of most
everything found the district court ruling in the right vein, except, most
notably, willfulness in light of
Seagate.
Continue reading "In the Aorta"
Posted by Patent Hawk at 11:16 AM | Injunction
Googled
GraphOn
has sued Google in the Eastern District of
Texas for infringing four patents related to network servers:
6,324,538;
6,850,940;
7,028,034; and
7,269,591. GraphOn has sued before with this portfolio, and wrestled a
settlement recently out of hapless AutoTrader.com. Other defendants, including
Yahoo! and Match.com, fight on.
Posted by Patent Hawk at 10:15 AM | Litigation
August 17, 2008
Religion
An
anonymous reader at
Slashdot,
the e-gathering place for philosophic technology sophisticates, worries:
I am a developer for a medium-sized private technology company getting ready for an IPO. My manager woke up one morning and decided to patent some stuff I did recently. The problem is, I'm strongly opposed to software patents, believing that they are stifling innovation and dragging the technology industry down (see all the frivolous lawsuits reported here on Slashdot!). Now, my concern is: what kind of consequences could I bring on myself for refusing to support the patent process?
Posted by Patent Hawk at 10:30 AM | Patents In Business | Comments (1)
August 16, 2008
Enlargement Stress
Todd
Brady came up with "a building construction assembly that allows a header in a
wall some vertical freedom of movement relative to the studs, such that stresses
applied to the assembly do not result in wall cracks. Such a configuration is
useful when stresses vary in a wall, for example, through accumulation of snowfall
or from an earthquake." Hence
5,127,760. After losing in claim construction during an infringement assertion,
Brady attempted correction, 12 years after issuance. The reissue couldn't stand
the stress.
Continue reading "Enlargement Stress"
Posted by Patent Hawk at 1:55 PM | Claim Construction
August 15, 2008
The Scream
Prasco
got so paranoid about infringing patents from competitors Medicis Pharmaceutical
and Imaginative Research Associates that it filed a declaratory judgment motion.
The problem for Pasco was that Prasco wasn't even on the defendants' radar
screens. The district court pitched the case, and the appeals court concurred.
Posted by Patent Hawk at 3:07 PM | Declaratory Judgment
August 14, 2008
Patent Agent
The
USPTO has promulgated its
final
rule for CFR changes of authorized activities and sanctions for patent and
trademark agents. The comments warn that being a patent agent does not cover
activities, not necessary to prosecution, which would constitute practicing law.
Continue reading "Patent Agent"
Posted by Patent Hawk at 9:20 PM | The Patent Office
Obzilla Refined
Whalen
et al faced PTO patent board appeal on a chemical composition for embolizing an
aneurysm. In a precedential opinion, the BPAI clarified the boundaries of
inherency, and reinvigorated the seemingly orphaned stepchild of Queen KSR, grande dame
TSM.
Continue reading "Obzilla Refined"
Posted by Patent Hawk at 11:57 AM | Prior Art | Comments (8)
August 13, 2008
Remedy
With
breathtaking alacrity for legislative enactment, President Bush signed into law
revision of 35 U.S.C., the patent law, and the Trademark Act (of 1946),
transferring authority of appointing administrative patent and trademark judges
to the Secretary of Commerce. An unconstitutional 1999 law had let the USPTO
director appoint the judges. Further, the Commerce secretary may retroactively
repair the breach by waving a wand of approval over the current crew of
judges.
Posted by Patent Hawk at 5:53 PM | The Patent Office
August 12, 2008
Blue Ray
Acacia
subsidiary Digital Security Systems likes the high-definition Blu-Ray DVD
technology so much, it wants a piece of the action.
6,052,780 claims copy protection which the patent holder considers
incorporated into Blu-Ray players. Complaint filed in the Eastern District of
Texas, seeking reasonable royalty. Defendants for the action flick include
Samsung, Best Buy, Denon, Funai, LG, Matsushita, Panasonic, Phillips, Pioneer,
and Sharp.
Posted by Patent Hawk at 11:57 PM | Litigation
August 11, 2008
Walk This Way
According
to
NationalJournal.com, Senate Minority Whip
Jon Kyl has his own vector for patent reform, divergent from the Leahy-Hatch
cluster fun. Kyl reportedly spent months in meetings "with critics of the Leahy
bill, including representatives from the pharmaceutical and life-sciences
industries, small tech firms, and other companies whose business models depend
on patent licenses. Noticeably absent from the talks were the major high-tech
and media firms that belong to the Coalition for Patent Fairness and officials
from the financial services sector who championed Leahy's bill."
Continue reading "Walk This Way"
Posted by Patent Hawk at 11:58 PM | The Patent System
Business as Usual
The
hoary adage "where there's smoke, there's fire" seems to apply.
Law.com
reported on USPTO favoritism for RIM and against NTP during their lawsuit, with
apparent continuing punishment of NTP by malign neglect.
Continue reading "Business as Usual"
Posted by Patent Hawk at 10:38 PM | The Patent Office | Comments (1)
Habitat
In
its Small Business section, The Wall Street Journal today used three anecdotes
to survey the patent scene. The article "Caught
in the Crossfire," stated "the clash:" "Big companies that pay for patent
licenses and small companies that generate revenue by licensing patents are
increasingly at odds."
Posted by Patent Hawk at 1:20 PM | The Patent System | Comments (1)
August 10, 2008
Greenhorn
Young
James McDonough displayed inexperience in an
interview in the Wall Street Journal. McDonough blamed patent trolls for the
USPTO tightening examination, when it was media coverage of carping by
patent-infringing computer technology corporations that provoked a PTO political
response. To blame enforcers of their IP rights is like a bad omelet cook
blaming chickens for laying eggs.
Posted by Patent Hawk at 10:55 PM | The Patent System | Comments (16)
August 8, 2008
Sensation
Kazuhiro
Okada, inventor of
6,512,364, assigned the patent to Saitama, Japan-based Wacoh last month.
'364 claims methods for testing sensors. Wednesday, Wacoh filed a
complaint in the Western District of Wisconsin against auto makers GM, Ford,
Chrysler, BMW, Mercedes-Benz, Volkswagen, Honda, Mazda, and Suzuki. Toyota is
notable by its absence. The prayer for relief is "no less than a reasonable
royalty."
Posted by Patent Hawk at 3:07 PM | Litigation | Comments (1)
August 7, 2008
Summary Misjudgment
Uniloc
sued Microsoft for infringing
5,490,216, claiming an anti-piracy software registration system. Microsoft's
product activation system was accused. The district court judge granted summary
judgment of non-infringement despite concession by Microsoft.
Continue reading "Summary Misjudgment"
Posted by Patent Hawk at 11:01 AM | Claim Construction | Comments (2)
Just the Fax
The
USPTO "is proposing to revise the rules of practice to limit the types of
correspondence that may be submitted to the Office by facsimile." The successful
1988 trial program is now deemed not so successful. The office recommends its
web-based EFS (Electronic
Filing System). [from the
Federal
Register]
Posted by Patent Hawk at 9:06 AM | The Patent Office | Comments (7)
August 6, 2008
Junket
Considering that USPTO management spawns from Congressional aides, payback in
the form of a junket to Copenhagen, Denmark should raise eyebrows only for its
destination, not its blatant toadying. The
Washington Post:
"The purpose of the trip," Jefferson D. Taylor, chief of the USPTO office of congressional relations, says in his invite, sent to aides on the Senate and House Judiciary subcommittees on intellectual property, "is for discussions on issues related to intellectual property rights" and such and to "meet with local patent and trademark office representatives, members of industry" and American businessmen in Denmark, and -- our favorite -- to "visit with students and staff of the Copenhagen Business School, University of Denmark."
Posted by Patent Hawk at 5:55 PM | The Patent Office | Comments (1)
Bag Lady, Technologist
In
2006, IBM instituted a "worldwide
policy, built on IBM's long-standing practices of high quality patents,"
disavowing "business methods without technical merit."
7,407,089, granted to IBM, issued yesterday, claims storing customer
preference for paper or plastic bags. So, when you go to the supermarket and
make your bagging selection, feel assured, whichever way you choose, it has
"technical merit."
Posted by Patent Hawk at 11:39 AM | Patents In Business | Comments (7)
August 5, 2008
Sprayed
Proveris
Scientific sued Innovasystems for infringing
6,785,400, claiming a device for evaluating drug delivery aerosol sprays.
"As part of its defense, Innova invoked the safe harbor provision of the
Hatch-Waxman Act." The district court had no safe harbor for Innova, finding
infringement, no damages, but a permanent injunction. On appeal, the CAFC found
a narrow safe harbor that excluded Innova.
Posted by Patent Hawk at 5:10 PM | Case Law
August 4, 2008
2006 World Patent Review
The
World Intellectual Property Organization (WIPO) has published its 2008
statistical review. 2008 is the publication date. The statistics are for 2006.
The highlights: a 4.9% rise in patent filings from 2005 to 2006, mostly in
China, South Korea, and the U.S. Pendency, in other words, patent office
inability to deal with workload, an increasing problem. Statistically more
computer-related patent filings relative to biotechnology. 6.1 million patents
in force in 2006, with increased opposition and validity challenges.
Continue reading "2006 World Patent Review"
Posted by Patent Hawk at 6:52 PM | International
Hubris
The
USPTO has unveiled a new electronic "portrait gallery" "highlighting past
and present individuals who have made a contribution to America's intellectual
property (IP) system." Included are "digital electronic portraits of United
States Presidents Thomas Jefferson and James Madison; famous inventor Thomas
Edison; National Inventors Hall of Fame Inductees Helen Free, who developed home
testing for diabetes, and Steve Wozniak, the inventor and co-founder of Apple
Computer; and Under Secretary of Commerce for Intellectual Property and Director
of the USPTO Jon Dudas."
Posted by Patent Hawk at 11:46 AM | The Patent Office | Comments (4)
August 3, 2008
Hypocrite Nation
The
United States has a foolish first-to-invent priority date system for U.S.
applicants, but refuses to recognize the filing or invention date of foreign
applications for the purposes of prior art, with the infinitesimal exception of
the inscrutable 102(e)(2).
Posted by Patent Hawk at 12:02 PM | Prior Art | Comments (18)
Injunkedtion
Novo
Nordisk sued Sanofi-Aventis for infringing
7,241,278. Novo then motioned for a preliminary injunction. Denied. Affirmed
on appeal because Novo "failed to show a reasonable likelihood of success on the
merits." Sanofi had "raised substantial questions," including whether claim
construction would go Novo's way. In other words, in order to get a preliminary
injunction, the plaintiff has to demonstrate a clear-cut case, while the
defendant merely has to raise doubt.
Continue reading "Injunkedtion"
Posted by Patent Hawk at 8:38 AM | Injunction | Comments (1)
August 2, 2008
Tossed Salad
Sollami
sued Kennametal over three patents. Kennametal was granted a stay pending USPTO
examination of a reissue application of one of the asserted patents. Sollami
appealed. In a non-precedential decision, CAFC ruled that a stay is not
appealable, unless it puts the patent owner "out of court."
Continue reading "Tossed Salad"
Posted by Patent Hawk at 4:45 PM | Litigation
Inequitable Conduct
Proving inequitable conduct
requires jumping "a high bar." There are two prongs to inequitable
conduct: the materiality of omission (failing to disclose relevant information to the
patent office), and intent to deceive. The Eisai
CAFC ruling last week elucidated the current standard, with the contentious Aventis ruling
in May shedding heat and light. For prosecutors, here's a checklist to guard
against a patent going rancid.
Continue reading "Inequitable Conduct"
Posted by Patent Hawk at 11:34 AM | Inequitable Conduct
August 1, 2008
There Is No Arizona
Whether
Arizona has a functioning patent court remains an open question. Research
Corporation Technologies (RCT) sued Microsoft for infringing its halftoning
six-pack patent portfolio. After RCT won summary judgment of infringement, the
case was transferred to a different judge, who reversed the ruling and granted
Microsoft's motion of non-infringement, without opinion. At Microsoft's behest,
the judge then scrapped the scheduled jury trial, and ran a kangaroo court for
inequitable conduct. Appeal turned the tables once again.
Continue reading "There Is No Arizona"
Posted by Patent Hawk at 1:16 PM | Inequitable Conduct | Comments (3)
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