October 31, 2008
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.
October 30, 2008
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.
October 28, 2008
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.
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.
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The USPTO proposed rules on information disclosure statements (IDS) and on applications with Markush claims will not be published as final rules by the current Administration, PTO Deputy Commissioner for Patent Operations Margaret Focarino announced last Friday.
October 25, 2008
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.
October 24, 2008
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.
October 23, 2008
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."
October 22, 2008
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.
October 20, 2008
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.
October 19, 2008
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.
October 18, 2008
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.
October 16, 2008
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.
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.
October 15, 2008
"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.
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.
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.
October 14, 2008
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.
October 12, 2008
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.
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".
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."
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.
October 10, 2008
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.
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.
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.
October 8, 2008
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.
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.
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.
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.
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.
October 4, 2008
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.
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.
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.
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.
October 2, 2008
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.