September 30, 2008
"Every day we're amazed at how victories in court don't necessarily lead to settlements. We really need the courts to help force these parties into settlement talks. We're not having as much momentum in signing new business as we've liked."
September 29, 2008
Praxair sued Advanced Technology Materials (ATMI) for infringing three patents: 6,007,609; 6,045,115; and 5,937,895. All claim pressurized storage tanks. '609 and '115 went down on inequitable conduct, '895 on §112 ¶2 indefiniteness. On appeal, '609 and '895 popped back up from the grave, while '115 remained buried in a 2-1 split decision. Herein, the CAFC in full caprice.
September 28, 2008
Transmeta, a creative Silicon Valley chip designer, had a promising future when it started in 1995. It developed CPUs with low power consumption, perfect for laptops. Intel infringed its patents, thus undercutting Transmeta's marketing edge.
World War II was coming to an end, Bing Crosby was playing on the radio, and Patent Office Commissioner Casper W. Ooms was professing:
It has been brought to my attention that the practice prevails [in] the Patent Office of measuring the "amount of work accomplished" by Assistant Examiners during particular periods of time by assigning quotas of production.... This practice necessarily emphasizes quantity rather than quality of work.
September 26, 2008
In the Fire
Broadcom and Qualcomm have a cell phone chip patent war going on. A major clash was appealed, with blood spilled.
Broadcom got a permanent injunction, even though it didn't practice the claimed invention. While the courts found it "generally in the public interest to uphold patent rights," an injunction would not have been granted if not for giving Qualcomm a "sunset provision" to wean itself from infringement. This ruling could be a roadmap for future injunctive relief.
Inducing infringement was rehashed. Unlike willfulness, where a clearing opinion means nothing, it can mean something when considering inducing infringement, which "may be established through circumstantial evidence," considering the totality of circumstances.
Further, the CAFC found obvious error with district court claim construction. Further evidence of a trial court system ill-equipped for patent cases. On appeal, Broadcom made one of the most bizarre claim construction arguments possible: that if a claim were properly construed, it would be prima facie invalid in light of cited prior art, ergo, could not construed that way. So what, the court ruled. It's invalid.
September 25, 2008
Sound & Fury
AT&T developed digital audio compression technology, for which it got patents. In 1988, to further the work, AT&T entered a joint development agreement with German company Fraunhofer Gesellschaft. The result was the MP-3 standard, as well as more patents covering the standard.
September 24, 2008
This is a patent weblog, so pardon me. But the proposed $700 billion dollar bank bailout plan is astonishing in its giveaway to the financial industry. It's nothing but a bank holiday with taxpayers footing the tab.
Let the banks fail. Greedy bastards made their bet, let them go bankrupt. It's called capitalism, the system this country supposedly has. You take the risks, you reap the rewards, you pay the costs. Home of the brave and the free to win or lose.
Benjamin Henrion, initiator of the StopSoftwarePatents coalition effort, explains "The aim behind StopSoftwarePatents is to gather a worldwide coalition of businesses and civil society in order to get laws which clearly exempt software from patentable subject matter. This is the best solution for getting rid of 'patent trolls' and uncontrollable legal risks generated by software patents. The day the software industry forms a clear front against software patents will be the beginning of the end for the 'patent trolls'."
September 23, 2008
No Petty Bone
Electronic game machine maker Aristocrat sued International Game for infringing 7,056,215, a blemished patent. The blemish was to futz reviving the patent application after abandonment during prosecution. The district court turned the blemish to cancer, killing the patent. The appeals court was more patient.
September 22, 2008
Egyptian Goddess sued Swisa for design patent infringement. The Goddess stumbled. On appeal, in a 2-1 panel brawl, the CAFC ginned up a new standard for design patent infringement. En banc rehearing resulted in the CAFC rebuffing itself, with the design patent standard for infringement rewound to 1871.
September 21, 2008
Microsoft's Patent Tax
Microsoft appears to have mastered the art of the patent squeeze. A recent convert from being something other than a patent piñata, since 2003, the inception of its patent licensing program, Microsoft has wrestled 500 cross-licensing agreements from a wide variety of technology companies. Invariably the grateful recipient pads the Big Softee's kitty with a pittance for the privilege of peace of mind, that Microsoft won't hammer it with a patent infringement suit. Practically all of the licensed, with rare exception, are Microsoft customers. This past week, Pioneer was the 15th Japanese company to pony up.
September 20, 2008
Having recently completed an Accelerated Examination filing, I am convinced that this is the way to go, especially under ideal circumstances. Accelerated Examination (AE) has taken quite a lashing on this blog, with one muffin-head professing: "Forget accelerated examination. Accelerated examination is an act of desperation for both the patent office and applicant." Personally, I am left rather touchy-feely about its prospects.
September 19, 2008
CSIRO sued Buffalo in the Eastern District of Texas for infringing 5,487,069, claiming a technique for wireless networking. After claim construction, cross-motions for summary judgment left Buffalo holding the short straw: the patent valid and infringed. On appeal, obviousness is given a different take. Obzilla awakens for another snack.
September 18, 2008
Tessera asserted semiconductor chip packaging patents against Siliconware, Motorola, and Qualcomm, including 6,433,419. Patent Hawk was put on the case. Reexamination ensued. '419 rejection is now final, and heading to the patent appeals board.
September 17, 2008
The Black Bird
Nathan Myhrvold [of Intellectual Ventures] has quietly amassed a trove of 20,000-plus patents and patent applications related to everything from lasers to computer chips. He now ranks among the world's largest patent-holders -- and is using that clout to press tech giants to sign some of the costliest patent-licensing deals ever negotiated.
September 16, 2008
Hapless Excelstor, a Chinese company, wanted to sue its patent licensor, Papst, for not notifying it of a patent license agreement that Papst had for the same patent Excelstor licensed. The district court pitched the case for lack of subject matter jurisdiction. The appeals court affirmed, with a bit of patent law 101, namely, that the patent exhaustion doctrine is not a cause of action.
September 15, 2008
A Peer-to-Patent email, picked up by several newspapers:
Some of the biggest players in the technology industry complain that the U.S. patent system is broken -- putting too many patents of dubious merit in the hands of people who can use them to drag companies and other inventors to court.
Some of the biggest players in the technology industry are looking to ease infringement cost by gutting patent enforcement. And they can't help but taint their shiny little project aimed at improving examination with propaganda tripe. Not a class act in the least.
Beyond simple counting, number fumbling is a human constant. Wall Street floats on an ocean of dumb money. And bean counters, the pros that run the banks... Well, let's just observe that the deepest and longest lasting recessions/depressions in this country have been lit by what is quaintly referred to as a "bank panic." We're in the middle of one right now. So, in that spirit of "lost in figures," Maureen Farrell at Forbes spotlights "Universities That Turn Research Into Revenue."
September 13, 2008
Going Down the 112 Way
Following up on his §101 ramble, USPTO policy maven John Love put out the hard word in a memo duet on §112: ¶2 indefiniteness for numeric imprecision, and for means claims, which nominally fall under ¶6.
September 12, 2008
Duratech Industries jumped the gun and got North Dakota district court to grant non-infringement declaratory judgment protection from 6,375,104, owned by Bridgeview Manufacturing. '104 claims a hay bale handler. But Duratech put up a straw man for claim construction, construing a means-plus-function limitation that wasn't. Appeal was a roll in the hay for Bridgeview.
September 11, 2008
Medical Solutions (MSI) sued C Change Surgical (CCS) for patent infringement "because CCS both "used" and "offered to sell" the allegedly infringing product at [a] trade show." MSI had sued CCS in D.C., where the trade show was. But neither company is based there. The district court pitched the case, because of lack of evidence that CCS had used, or offered to sell, the allegedly infringing product. The district court disallowed additional discovery. While jurisdiction was at issue here, more interesting was CAFC musing on what constituted "use" for patent infringement.
September 10, 2008
Refusal To License
The Justice Department just issued a report: "Competition and Monopoly: Single-Firm Conduct Under Section 2 of the Sherman Act." One issue discussed was whether refusal to license patents was ipso facto monopolistic action. In a broader context -
The general right of a firm freely to determine with whom it will and will not deal was first established by the Supreme Court nearly nine decades ago. In its 1919 Colgate decision, the Supreme Court observed that "[i]n the absence of any purpose to create or maintain a monopoly, the [Sherman Act] does not restrict the long recognized right of [a] trader or manufacturer engaged in an entirely private business, freely to exercise his own independent discretion as to parties with whom he will deal." The Court reaffirmed that principle eighty-five years later in Verizon Communications Inc. v. Law Offices of Curtis V. Trinko, LLP, where, citing Colgate, the Court affirmed dismissal of an action alleging that non-compliance with state and federal regulations mandating the sale of services to rivals violated section 2. In Trinko, the Court noted that, "as a general matter," the antitrust laws impose no duty upon a firm to deal with rivals.
September 9, 2008
From a public-interest standpoint, the blessing of blogging has been to demonstrate how the mainstream press is filled with hacks on assignment. While bloggers live and breathe their subject matter, "professional" media do topical cameos, resulting in nicely wrapped provocative stories, at a slanted angle, but with a garnish from "the other side" for the illusion of a "fair and balanced" perspective. This week we have Janet Rae-Dupree for the New York Times, wistful in "When Academia Puts Profit Ahead of Wonder:" "In academia's continuing pursuit of profit, the wonder of simple serendipitous discovery has been left on the curb."
Eco-Patent Commons, a portfolio of environmentally-friendly patents pledged to the public domain, originally announced in January, grew greener yesterday, with the addition of patents from Xerox, DuPont and Bosch, more than doubling the number of enviro-pats now freely available.
September 8, 2008
Written Description Bug
5,126,270 and continuation 6,017,745, claim turning bacteria into enzyme factories. Patent owner Carnegie Mellon University sued Roche for infringement. Roche got a claim construction that led to summary judgment of non-infringement, and invalidity for "lack of written description in light of... Regents of University of California v. Eli Lilly", with Gentry Gallery v. Berkline riding shotgun. On appeal, the CAFC met the written description requirement on meeting the written description requirement. And relegated to the unremarkable the earlier § 112, ¶ 1 ruling, Gentry Gallery.
September 5, 2008
Just Walk Away PA
PA Advisors got its hands on 6,199,067, saddled up the palomino, and rode on down to East Texas, aiming to get a little from Microsoft subsidiaries, Google, Yahoo!, Facebook, and others. After chatting with Facebook, PA took a powder, deciding not to pursue the suit further. No coin changes hands. Each party bears fees and costs.
September 4, 2008
Old Art Never Dies
A common patent litigation strategy has been to seek reexamination after losing in court, as in the case herein. Defendant counsel has more rhetorical power before the court, as contrasted to a single injection to the PTO for reexam, after which the patentee tries to hold granted ground while an infringer watches from the sidelines. And a post-verdict reexam is as much for spite as anything, as it doesn't necessarily turn back the clock.
Today's CAFC ruling should flip the litigation-first/reexam-last-ditch strategy on its head: scorching prior art search to reexam first, pleading a stay of litigation pending reexam outcome. That's because court validation is not subject to reconsideration from PTO invalidation, but a PTO kill terminally damns. Further, previously cited art can be rehashed in reexam.
Laying yet another brick of fortification against junk patents, the CAFC clarifies the power of reexamination as a "quality check."
September 2, 2008
Orthopedic implant makers Howmedica Osteonics and Wright Medical got into a patent brawl. They settled. A few times. Sort of. Howmedica sued again over 5,824,100, claiming a knee prosthesis, and lost its infringement kick on claim construction, which it appealed. Ambiguous claim language led to a construction Mexican standoff in the courts.
Patents become a public nuisance when worth a pretty penny. Hal Wegner thinks the price tag of infringement should have flamed the NTP patent reexaminations. "With a $600 million plus settlement in one litigation coupled with ongoing litigations against other alleged infringers, BlackBerryGate represents a billion dollar... patent tax on the public. Yet, the reexamination drags on... and on... and on." Having granted patents, found valid through the fire of litigation, the PTO ought to burn the midnight oil to staunch further enforcement. "A fiasco," Wegner laments.
Down with the Docket
With its natural panache of rip and snort for the court, the Statistics Division for the Administrative Office of U.S. Courts released its annual report: "Judicial Business of the United States Courts." Using the hoary Roma system, the latest stats run in a calendar year skewed to September 2007. 2,896 patent complaints in 2007, up a 2.3% bit from 2006 (2,830), with 250 filed in the Eastern District of Texas. 2004 was the bumper crop, at 3,075. 408 patent suits celebrated 3 years on the docket in 2007, up from 353 in 2006. 34 USPTO BPAI decisions pending appeal before the CAFC, down from 51 the previous year. The reversal rates on appeal ran less than 20% in 2007, both from district court and BPAI, quite a dip from earlier times.