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October 31, 2008
Software Patents
Software patents are best embodied as method claims. Did yesterday's
In re Bilski
decision change the patentability landscape for software? Not in the least. If
anything, Bilski affirmed the patentability of software as a data
transformer.
Continue reading "Software Patents"
Posted by Patent Hawk at 2:45 PM | § 101 | Comments (9)
October 30, 2008
Method Acting
Bernard
Bilski and Rand Warsaw filed a patent application claiming managing commodities
trading risk. The
patent
appeals board agreed with examiner rejection that the claimed process wasn't
statutory under §101. In a sua sponte en banc hearing, the CAFC affirmed, albeit contentiously. In re Bilski
sets the patentable-process test to whether a claimed method is: (1) "tied
to a particular machine or apparatus," or (2) transforms the subject matter of
the claim.
Continue reading "Method Acting"
Posted by Patent Hawk at 12:14 PM | § 101 | Comments (10)
October 28, 2008
Venue Chopping
Earlier
this month, a Texas product liability case, over an auto accident, In re
Volkswagen, has raised a specter that venue transfer may be more easily
accomplished in patent litigations. The specific stir is that patents suits may
be pried from the Eastern District of Texas, a "rocket docket" venue popular for
its jurisprudential economy, owing to efficient case management and concentrated
experience with patent cases. For precisely those reasons, and others,
Volkswagen is largely inapplicable to patent suits.
Continue reading "Venue Chopping"
Posted by Patent Hawk at 11:39 PM | Litigation
Belated Inventor
Oren
Tavory might have been a co-inventor in the patents that net NTP $612.5 million
from Research in Motion (RIM). Code he helped write was part of the parent
patent application. Tavory was deposed in the NTP patent litigation, but didn't
state an inventorship claim then. But after NTP won the RIM lotto, which Tavory
found savory, he changed his mind. Too late.
Continue reading "Belated Inventor"
Posted by Patent Hawk at 4:38 PM | Litigation | Comments (1)
October 27, 2008
Down The Road Kill
The
USPTO proposed rules on information disclosure statements (IDS) and on
applications with Markush claims will not be published as final rules by the
current Administration, PTO Deputy Commissioner for Patent Operations Margaret
Focarino announced last Friday.
Continue reading "Down The Road Kill"
Posted by Patent Hawk at 12:15 PM | The Patent Office | Comments (1)
October 25, 2008
Money Talks
Aaron
D. Clark, 37, invented the talking poster, which responds to a button touch.
5,548,272 et cetera. Warner Brothers, New Line Cinema and others licensed
the technology, for movies such as Batman, Austin Powers, and music groups such
as 'N Sync and Backstreet Boys. Clark pursued Disney for a license in the
mid-90s, to no avail. This past summer, Clark's mom spotted a singing Hannah
Montana poster while shopping for a gift for Clark's five-year-old daughter.
Hannah Montana is a Disney character. Clark has filed a complaint in his home stomping grounds, Columbus
Ohio.
Posted by Patent Hawk at 10:25 PM | Litigation
October 24, 2008
Brewed
Green
Mountain Coffee Roasters subsidiary Keurig invented a disposable single-serving
filter cartridge, suitable for hot drinks such as coffee, tea, and hot cocoa,
invention embodied in
6,607,762 and
7,377,162. Keurig sued Kraft Foods in January 2007 for infringement. Kraft
just settled for $17 million.
Posted by Patent Hawk at 8:17 PM | Litigation
October 23, 2008
Staying Alive
As
Wall Street floats on an ocean of dumb money, so invention floats on an ocean of
dumb patents. Frequently, patent holders solicit
Patent Hawk services with "lame duck"
patents - a solitaire patent, often with weak claims, without any continuation.
Are prosecution firms, many well-known nameplates, so inept as to not advise
their clients to grow a portfolio, so as to improve claim scope coverage? So
inept to not have a clue as to how patents are enforced, even as many of those
firms work both prosecution and litigation? Repeated anecdotal evidence over the years answers a bit too emphatically "yes."
Continue reading "Staying Alive"
Posted by Patent Hawk at 2:09 PM | Prosecution | Comments (37)
October 22, 2008
Preliminary Jam
Sandoz prompted a classic drug patent battle with Abbott Labs by filing an
ANDA. Abbott got a preliminary injunction, which Sandoz appealed. The CAFC
covers anticipation for the second day standing, and Judge Newman paints Obzilla
in softer tones than recently seen.
Continue reading "Preliminary Jam"
Posted by Patent Hawk at 12:10 AM | Prior Art
October 20, 2008
Means Streets
Net
MoneyIN asserted
5,822,737 &
5,963,917, which go to "systems for processing credit card transactions over
the Internet," against Verisign and other online credit card vendors. The
claims, in the form of means-plus-function, were invalidated because they lacked
specification support. The road to that invalidity is § 112 ¶ 2, indefiniteness, not
§ 112 ¶ 1, the written description requirement. Patents by Mark Ogram, inventor
and patent attorney, turn Shakesperean: "hoist
with his own petar." At least he only has himself to blame. Also herein, the arrangement requirement for anticipation.
Continue reading "Means Streets"
Posted by Patent Hawk at 11:55 PM | § 112 | Comments (5)
October 19, 2008
Damaged Damages
A
judge in the panhandle state pandered to his prejudice by capriciously denying Floyd Minks
$1.3 million in jury-awarded patent damages against Polaris, instead parceling Minks
a measly $55,000, but granting attorneys fees, albeit half the amount requested
without offering a new trial. In vacating and remanding, the CAFC gives a lesson
in reasonable royalty while putting a lid on judicial juggling of fact and law.
Continue reading "Damaged Damages"
Posted by Patent Hawk at 11:18 PM | Damages | Comments (2)
October 18, 2008
Term Limits
One might
naively imagine that the patent office would encourage patenting, and seek to offer its clientele, namely inventors and patent prosecutors, every advantage. Today's USPTO is quite the opposite. In this episode, the patent office is caught stealing patent term, unlawfully limiting
the duration of patent grants.
Continue reading "Term Limits"
Posted by Patent Hawk at 11:46 AM | The Patent Office
October 16, 2008
Shoxing
Wal-Mart
sells a fitness shoe, doubtlessly made in China, that looks strikingly a
knock-off of Nike's patented Shox shoe - D498,914 and D499,248, to be precise.
Oregon-based Nike, doing a bit of venue shopping, filed its
complaint in the Northern District of Illinois. The complaint, replete with
comparative patent drawings to photos, is a beauty of damnation.
Posted by Patent Hawk at 3:41 PM | Litigation
Let's Do It Our Way
The USPTO has filed
a reply brief in appeal for its righteous battle to enact its Final Solution, changes
limiting extravagance on claims and continuations. According to the
brief, a rehash of earlier cogent and compelling arguments, the rules are consistent with the Patent
Act, and are within the Office's rulemaking authority. If there is a difference between "substance" and "procedure," which the PTO
does not perceive, the rules are merely procedural.
Continue reading "Let's Do It Our Way"
Posted by Patent Hawk at 2:21 PM | The Patent Office | Comments (4)
October 15, 2008
Anticompetitive
"A patent by its very nature is anticompetitive." So the CAFC remarked in
affirming summary judgment punting of an antitrust case based upon patent
protection, and a kickback ("reverse payment") settlement agreement between
patentee Bayer and generic makers, over Cipro®, covered by
4,670,444.
Continue reading "Anticompetitive"
Posted by Patent Hawk at 11:42 PM | Antitrust
Cycling
Patents
trend a bit counter-cyclical to the business cycle. While patent holders file
suits good times or bad, companies focus on alternative revenue streams as
product sales slow. Companies feeling economic pinch scrounge for profitable
prospects, and out pop patent suits.
Posted by Patent Hawk at 11:53 AM | Patents In Business
El Presidente
Donald
Zuhn at Patent Docs
wrote an excellent overview of the presidential candidates' stances on patents
in his entry "Presidential
"Debate" on U.S. Patent Policy." Patent Docs is one of my favorite patent
blogs. Consistent solid reportage. Check it out.
Posted by Patent Hawk at 10:13 AM | The Patent System
October 14, 2008
Down Boy
As
part of their ongoing patent war, Broadcom put Qualcomm before the ITC for
infringing
6,714,983. The ITC did not find direct infringement, but did find inducing
infringement, hence "issued a limited exclusion order ("LEO") against the importation
of all downstream products containing the accused technology." By doing so, the
ITC showed no respect for due process, and exceeded its statutory authority.
Also herein, more caprice by the CAFC in complicating claim construction, and
inconsistency in defining prior art.
Posted by Patent Hawk at 4:42 PM | Injunction
October 12, 2008
Persistent
Last
week, Colorado district court Judge Matsch (pictured) got fed up with
McDermott, Will & Emery for its representation of Medtronic against BrainLAB in a surgical instruments patent case. Judge Matsch
ordered the law firm and Medtronic to pay $4.3 million in attorneys fees,
punishment for "abuse of advocacy," namely, arguing to the jury outside of claim
construction.
Posted by Patent Hawk at 4:43 PM | Litigation
Bad Apples
Straight from the horse's mouth: "here at the USPTO, we got nothing but bad apples". Reflecting on end-of-year examiner performance ratings, USPTO upper management sputtered "that it wasn't possible that the agency had that many outstanding employees".
Posted by Mr. Platinum at 5:27 AM | The Patent Office | Comments (7)
October 11, 2008
Effective Filing Date
Technology
Licensing (TLC) went after Gennum for infringing a family of patents going to
video synchronization. The most interesting facet of this case pivoted on patent
priority date. With a continuation-in-part (CIP), a claim is entitled
to the effective filing date of an application that provides written description
support for the claim. The effective filing date becomes an issue when
invalidating prior art exists between the initial parent filing date and the
filing date of a later CIP. Plus, other songs in this dance
hall: "Beast of Burdens of Proof," "Cutting a Bitch on Rule 56," and "Reaching to Delve
With a Thin 112."
Continue reading "Effective Filing Date"
Posted by Patent Hawk at 9:37 PM | Prior Art
Fact Into Fiction
A
trial court is trier of fact, with judge or jury as decider of fact. But a judge
may overrule a jury verdict, thus obviating the jury's role. The judicial game
is thus rigged with juries as showpieces of democracy in action. Case in point:
Asyst Technologies v. Emtrak, over
5,097,421, claiming a system for tracking articles in a manufacturing plant,
namely semiconductor wafers.
Continue reading "Fact Into Fiction"
Posted by Patent Hawk at 12:37 AM | Prior Art
October 10, 2008
Complexities
Predicate
Logic sued Distributive Software over
5,930,798, claiming "measurement and analysis technologies for use in
software development."
During the litigation, Distributive requested ex parte reexamination of the '798 patent, and the claims were allowed as amended during reexamination. Distributive then argued to the district court that the asserted claims were invalid because the amendment during reexamination improperly broadened the claims. The district court agreed and granted Distributive's motion for summary judgment of invalidity.
Herein, raking over the stricture against broadening claims, or even "substantive change," during reexamination.
Continue reading "Complexities"
Posted by Patent Hawk at 1:27 PM | Claim Construction
October 9, 2008
Anticipation Without Obviousness
Cohesive Technologies sued Waters for infringing
patents
claiming liquid chromatography. A jury found the patents not obvious over "seven
separate prior art references." In a 2-1 appeal decision, the CAFC remands
because seven patents that singularly or in combination didn't render the patents
obvious, to which all agreed, but the appeals court majority thought they might
anticipate. Huh? Obzilla obviousness nothing to straight-laced anticipation?
Surely they jest. Alas, no. The dissent was a scathing straight arrow.
Continue reading "Anticipation Without Obviousness"
Posted by Patent Hawk at 10:43 PM | Prior Art | Comments (5)
No Respect
The
old fart known as John McCain apparently has no respect for intellectual
property rights, merchandising his faltering campaign by appropriating songs by
Jackson Brown ("Running on Empty") and Foo Fighters ("My Hero") without
permission. McCain's vacuous running mate, Sarah Palin, a self-proclaimed
pit-bull in lipstick, snatched the Heart song "Barracuda," to Heart's dismay.
Jackson Browne sued, while the others groaned at loss of control over their own
material.
Posted by Patent Hawk at 10:05 AM | | Comments (10)
October 8, 2008
Fueled
Advanced
Micro Devices (AMD) competes in a CPU duopoly against Intel, holding a 20%
market share short-straw to Intel's 80%. The struggle has been fierce, and now
moves into a new phase. Yesterday, AMD announced a strategy, financially fueled
by Abu Dhabi, that has Intel fuming over patents.
Posted by Patent Hawk at 2:20 PM | Patents In Business
October 7, 2008
Giving It A Rest
The
Supreme Court has rejected a number of patent appeals recently, not altogether
unexpectedly, so it appears the SCOTUS won't blow snot on us for the first time
in several years. Recent pleas have been procedural rather than substantive issues.
Not much of a rug to pee on. And peeing on the patent rug has been little SCOTTY's specialty in recent times, from obviousness (KSR),
declaratory judgment (MedImmune),
to injunctive relief (eBay),
dramatically stacking the deck against patent holders.
Continue reading "Giving It A Rest"
Posted by Patent Hawk at 11:16 PM | Case Law
Phoning in Junk
Pitiable
pukes who poot about patent trolls are merely mouthing mega-corporate mush. Notwithstanding that patents are a tradable commodity, with any owner having the
same right of enforcement as the original inventor, consider the flip side -
corporations strong-arming their brethren with nothing but trash talk.
Continue reading "Phoning in Junk"
Posted by Patent Hawk at 8:07 AM | Patents In Business
October 6, 2008
A View from the Court
CAFC
Judge Alan D. Lourie
spoke to the Virginia State Bar IP Section last week.
For the past couple of decades, we have been in the midst of what many of us have called the golden age of intellectual property. Patents and copyrights have been recognized as important contributors to our system of industrial innovation and they have been readily enforced by the courts, which wasn't always the case historically, at least for patents. I used to issue cautionary warnings, though, in speeches to attorney groups, not to press their luck; don't overassert patents because sooner or later the pendulum might swing back. Well, the pendulum has now swung, and how far and to what result no one knows. The press now routinely talks about problems in the patent system, often including our court as part of the problem.
Continue reading "A View from the Court"
Posted by Patent Hawk at 11:12 PM | Litigation
Deep Dish
Patent
infringers often seem patent illiterate, unable to read the writing on the wall
- led by stubborn CEOs, unwilling to take a license, fighting until the last dog
bone is buried.
It's a litigation crapshoot, old hands say. A gross overstatement, because the sport of kings is rigged.
Posted by Patent Hawk at 9:51 PM | Patents In Business
October 4, 2008
Inequitable Conduct
Professor
Lisa A. Dolak
of Syracuse law school has given considerable research and thought to what
amounts to a death sentence for patents. Excerpts from
a paper presented last month -
There is no question that inequitable conduct allegations drain resources and inject uncertainty into litigation. And, no doubt, the defense is overpled. But it is also undeniable that serious breaches of the duty of candor occur.
Furthermore, the reported instances of inequitable conduct represent only a small fraction of the cases which involve credible evidence of inequitable conduct. Most such cases presumably settle before trial. Accordingly, the inequitable conduct doctrine, like other defenses to patent infringement, curtails litigation in some cases, and presumably tends to function most efficiently where the evidence is the most compelling and the allegations the most meritorious. Eliminating the defense would lead to an increase in the instances of successful enforcement of patents procured through deception, and, likely, an increase in attempts to mislead the USPTO.
Continue reading "Inequitable Conduct"
Posted by Patent Hawk at 7:49 PM | Inequitable Conduct | Comments (1)
October 3, 2008
Flash of Genius
The
movie Flash of Genius, about
intermittent windshield wiper inventor Bob Kearns, is sketchy, edgy, and
uncomfortable. Bob becomes obsessed with righteousness over his invention, e.g.
4,339,698, stolen
by Ford Motor Corporation, and quickly adopted by other auto makers. Bob comes
unglued. Bob refuses to settle only for money, wanting admission by Ford that
they took his invention.
Continue reading "Flash of Genius"
Posted by Patent Hawk at 8:09 PM | Patents In Business | Comments (3)
Enabling
In
a typical drug patent case, Impax wanted to barge in on Aventis' patented
treatment for Lou Gehrig's disease (ALS), vis-à-vis
5,236,940, so Impax filed an ANDA, then a DJ motion, charging invalidity and
unenforceability for inequitable conduct. The judge didn't buy it. Appealed.
Remanded. District court judge still didn't buy invalidity, the only charge left
to Impax (inequitable conduct being a regularly ginned accusation that seldom
sticks). On second and last appeal, a lesson on prior art burden shifting, and
the difference between anticipatory and enabling prior art.
Posted by Patent Hawk at 10:32 AM | Prior Art
What Goes Around...
Much
sourness has been provoked in recent years, and legislation mooted, that would
radically alter patent law. From one writer regarding the current public temper -
To put the matter very frankly, the attitude of many people in the country today with regard to patents is a petulant, irritated mood. The greatest danger which could result from any such upsurge of popular disapproval of patents because of associating them with an illegal, antisocial institution is that it might lead to an unwise, wholesale purge of the entire patent system. In view of the nature of the evidence which has been presented to the legislators, it is not unreasonable to fear that the Congress might move on to the subject of permanent reform in a petulant, angry mood.
Continue reading "What Goes Around..."
Posted by Patent Hawk at 12:38 AM | The Patent System | Comments (1)
October 2, 2008
Rogue Outfit
In
John Hopkins University v. Datascope, Judge Newman fingered the
overbearing injudiciousness of the Court of Appeals panel in which she
sat:
There is no sufficient ground for this court's independent appellate trial of the factual issues that were decided by the jury and sustained by the district court.
Continue reading "Rogue Outfit"
Posted by Patent Hawk at 3:41 PM | Case Law | Comments (3)
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