November 30, 2008
Triune Star sued Disney, LG Electronics, and others, for infringing 6,122,521, which claims an infrared cell phone camera. Triune conceded that defendants didn't have such a product, thus didn't literally infringe. Due to prosecution estoppel, Illinois district court Judge Mihm blew off the possibility of doctrine of equivalents. He then pitched the case as frivolous, and sanctioned Triune, granting defendants attorneys fees and costs.
November 27, 2008
Hal "The Snoop" Wegner: "The PTO has systematically suppressed access to its internal decisions. Anecdotal evidence suggests that access to petitions decisions would reveal widespread practice violations by Examiners, sometimes upheld by Technology Center Directors as well. [There is a] PTO burial of key information amongst tens of thousands of at best difficult to access petitions decisions, as well as a cover-up of PTO delay in reaching decisions on petitions in patent (as opposed to trademark) matters."
November 25, 2008
The laugh riot of Abbott and Costello quieted when years of drinking rot-gut begat Costello chronic kidney failure. Interstellar quasar TV transmission from earth to Qo'noS, Klingon home world, made the comedy duo a cross-species phenomenon. Few humans could so touch the funny bone of Klingons, owing partly to the fact that the Klingon funny bone is quite tiny.
November 24, 2008
Brass in Pocket
RPX is a patent troll basher that is putting it's money where it's mouth is. RPX, a self-titled "defensive patent aggregator," is buying patents to keep them from being asserted against its pals. RPX's initial pals are IBM and Cisco.
Reed Hundt, former elementary school principal, was FCC chairman in the Clinton administration. In 2006, he wrote a genuinely stupid opinion piece in Forbes disparaging the U.S. patent system, suggesting arbitrarily slashing patent grants by 90%, and other lunacy. Empirical proof, for the upteenth time, that a Yale graduate can be as smart as a chewed wad of gum stuck under a student's desk. Hundt is now helping President-elect Obama as a transition team leader. No indication that Hundt will have anything to do with patents. So maybe let's give the guy a break.
November 23, 2008
Anderson sued Pella for infringing its bug screen patent, 6,880,612. Summary judgment motions were swatted aside. Then Obzilla buzzed in. Drunk on KSR bug juice, the district court reconsidered, and squashed the patent. On appeal, how creative an ordinary bug screen maker could be becomes factual. Imagine that.
November 20, 2008
Medegen sued ICU Medical for infringing 5,730,418, claiming "a needle-free valve for intravenous (I.V.) therapy used to administer fluids to a medical patient." '418 solved the problem of "retrograde flow," "the reverse flow of fluid out of the patient's body and back into the catheter tubing," by using a sliding plug. The plug was a disputed claim term, with the district court granting a narrow construction, specific to usage context, upon which ICU got a summary judgment of non-infringement.
Throw the confetti; break out the champagne; the USPTO has finally achieved perfection. According to the USPTO's FY 2008 Performance and Accountability Report, the PTO has met 100-percent of its performance goals. We can all stop worrying about poor examination quality and dishonest mis-management, because this is perfection baby!
November 19, 2008
Kitchen Sink Solutions
The Chamber of Commerce has released a draft report outlining proposed solutions for problems that currently plague the USPTO. The report, aimed at providing recommendations to the incoming Administration, includes all of the usual suspects - all of them. Written by an impressive line-up of contributors, including former PTO executives, the report aspires to "stimulate a fresh dialogue on the best ways to improve the PTO's patent examining performance". But instead, it reiterates tired approaches, and contains so many suggestions, probably due to the large number of contributors - all with differing opinions, it is difficult to determine where to even begin this proposed conversation of change.
November 18, 2008
In their initial press release, Article One Partners declared "the current U.S. Patent System is outdated, archaic, and stifling to innovation." Their solution? Game the system.
With USPTO Deputy Director Margaret Peterlin vamoose, John Doll steps in, with Deputy Commissioner for Patent Operations Margaret ("Peggy") Focarino filling Doll's erstwhile Commissioner for Patents chair. Effective immediately. Both Doll and Focarino have been with the Office for over 30 years.
November 17, 2008
Pay to Play
New 37 CFR § 11.8 now requires an annual $118 "practitioner maintenance fee," payable in advance, for all registered USPTO agents. Penalty for non-payment is suspension. Pro se prosecutors are still scot free.
November 15, 2008
Process Flavor de Jure
The techno-Neanderthal CAFC having roiled process claims with its bilious Bilski ruling, the question remains how to best draft software method claims. The economical "computer-implemented method" preamble may not fly now. Another charade exists. Post-Bilski, the BPAI still let Beauregard software claims pass §101 muster.
November 13, 2008
Bad Brew on Good Chemistry
6,365,687 claimed a chemical process used in plastic packaging, first disclosed in 1958. Oddly, '687 underwent Director-ordered reexamination, and was found unpatentable by prior art and double patenting. A 2-1 appeal decision damned a patent for which inventors Dr. Giulio Natta and Dr. Karl Ziegler won the Nobel Prize in chemistry in 1963.
November 12, 2008
Patent practitioners take note. As of September 15, committing any crime, including those of immodest moral turpitude, such as being caught for commercial engagement of prosecution in your pants, can result in revoking your "privilege" to prosecute before the USPTO. Even a driving violation conviction must be reported to the PTO.
November 11, 2008
Patently-O's Professor Dennis Crouch reports, as a straight man for unintentional comedy, that Senior IP Counsel at SAS US, Tim Wilson, having constructed a hypothetical demand curve "using the powerful computing resources of SAS," figures that if patents cost as much as $50,000, there would be a "dramatic decrease" in patent filings.
November 9, 2008
Non-final office action, received post-Bilski, directed to claims with the preamble: "A computer-implemented method comprising:", followed by steps of computer file selection, storage, and network transfer/copy. Examiner rejection as follows:
The claims lack the necessary physical articles or objects to constitute a machine or a manufacture within the meaning of 35 USC 101.They are clearly not a series of steps or acts to be a process nor are they a combination of chemical compounds to be a composition of matter. As such, they fail to fall within a statutory category. They are, at best, functional descriptive material per se.
November 7, 2008
Lame Blaming About Claiming
CAFC Judge Plager recently mused out loud about claim construction, most strikingly, his and the court's technical incompetence.
The fundamental problem with claim construction today is that too many claims are no longer describing hammers or machines or other physical objects--though we have had our share of interpretive trouble even with some simple things like what is a "board."
November 5, 2008
Blogger Rick Frenkel, former Cisco IP honcho, ran a hot little number called Patent Troll Tracker. Anonymously. The bling was pissing on inventors using shell companies in asserting their patents, at least one of whom got pissed, namely Eric M. Albritton, attorney for those being peed upon, in what Rick richly called the "Banana Republic of East Texas." When Frenkel, like some hapless gay Marine, was outed, thin-skinned Albritton sued Cisco for "shame, embarrassment, humiliation, mental pain and anguish," along with a "seriously injured business reputation." Cisco blew back with a comeback that Albritton should have seen coming.
November 4, 2008
Dr. Kenneth Alonso lost his appeal for patenting a cancer treatment because, while he claimed a genus, he had only disclosed some species, and insufficiently so. Disclosure coverage is at issue when the claimed genus is wide-ranging, and the disclosed species may not be fully representative. "A patentee of a biotechnological invention cannot necessarily claim a genus after only describing a limited number of species because there may be unpredictability in the results obtained from species other than those specifically enumerated."
PCTs Down Under
Add IP Australia to the list of patent offices selectable as international searching authority and international preliminary examining authority for PCT applications filed with the USPTO. The Australian Patent Office joins the ranks of the USPTO, the EPO, and the Korean Intellectual Property Office, all eagerly awaiting to assist inventors with all of their PCT needs.
Bilski was nothing short of a jurisprudential obscenity, horrendous in its incoherence. To the degree it was coherent, it was ludicrous. That makes Bilski a definitive statement on the quality of the CAFC, most notably majority author Chief Judge Michel. Only Judges Newman and Rader had a clue. As Judge Newman put it:
This exclusion of process inventions is contrary to statute, contrary to precedent, and a negation of the constitutional mandate. Its impact on the future, as well as on the thousands of patents already granted, is unknown.
From one judge to another, that's harsh language. None more harsh.
November 3, 2008
5,188,861 claims a process for flavoring dried fruit. Patent holder Amazin' Raisins sued Ocean Spray Cranberries, hoping to squeeze some fruity lucre. Ocean sprayed them down, Amazin' losin' on claim construction. Non-infringement summary judgment was upheld on appeal. Another sloppy prosecutor's handicraft turns a juicy invention rancid.
November 2, 2008
35 U.S.C. § 101 cedes patentability to "any new and useful process," without further qualification. The CAFC Bilski ruling, limiting process claims to being tied to a particular apparatus or transforming something, has no basis in statute, and questionable case law heritage. As dissenting Judge Newman observed:
The breadth of Section 101 and its predecessor provisions reflects the legislative intention to accommodate not only known fields of creativity, but also the unknown future. The Court has consistently refrained from imposing unwarranted restrictions on statutory eligibility, and for computer-implemented processes the Court has explicitly rejected the direction now taken.
November 1, 2008
Bilski was a simple ruling, affirming software patentability from State Street (though discarding the State Street test as "insufficient"). The Bilski brouhaha was its effect on software and business method patents, of which there was little to none. The reaction of uncomprehension has been impressive, a Rorschach of patent attitude. Anti-patenteers who drank the mega-tech corporate kool-aid were delusionary thrilled. The mainstream press mostly revealed its cluelessness.