December 29, 2008
Get Out of Town
Lear sued TS Tech for patent infringement in the Eastern District of Texas. Judge T. John Ward denied TS Tech's transfer motion. In a ruling of thin logic, failing to explain its reasoning beyond trivial convenience, Lear's interlocutory petition for writ of mandamus is granted by the CAFC. Is this the beginning of the end for efficient patent justice in this country?
December 27, 2008
Sundance sued DeMonte for infringing 5,026,109, claiming a retractable tarp. "Demonte's patent law expert, Daniel Bliss, opined that one of ordinary skill in the art would be motivated to combine" two prior art references to render '109 obvious. The jury bought it, but not the judge, who figured the prior art didn't cover it, even considering testimony from Bliss. On appeal, the CAFC was less than blissed with Bliss.
December 26, 2008
Indubitably unbiased, InformationWeek's Microsoft blogger, Dave Methvin, laments small fry with software patents. "It seems like every few months, some obscure company is awarded a patent for some relatively mundane idea, then turns around and sues the companies that have been using it... It's a shame that companies can exploit the patent system to prevent advances in software."
December 25, 2008
The U.S. Chamber of Commerce shows it knows how to stew analytic gumbo - its recommendations for the USPTO seamlessly blend fact and fiction.
Ricoh sued Quanta for infringing four optical disc drive patents. 6,631,109 was stomped by Obzilla. 6,172,955, 5,063,552 and 6,661,755 were found not infringed. The appeals court thought Ricoh should have gotten a better shake on '522 and '755, particularly with contributory and inducing infringement. A 2-1 CAFC decision skating on thin ice by analogizing with copyrights in lieu of more properly digging into patent law.
December 22, 2008
Funked Koo Kung Fu
IBM inventors Fred Koo and Ting Leung got their database query modification patent application sua sponte kicked in its Bilski on BPAI appeal. The decision shows how moronically the CAFC In re Bilski ruling is being applied. Not that something better could have been expected.
December 21, 2008
6,673,064 claims a laser catheter. Dr. Peter Rentrop sicked '064 on Spectranetics, and copped a cool half million. Spectranetics, after sloppily stirring as much trouble for Rentrop as it could, appealed losing on obviousness, among other profundities. The appeals court reminded Spectranetics that they could have floated that boat, but didn't, and it's water under the bridge now.
December 20, 2008
Gary Wheeler cast for a fishing pole patent, and got snagged by the patent appeals board, which found Wheeler's illuminated transparent pole anticipated by fishing pole with a light bulb attached to the tip. The CAFC illuminated the pathetic shambles that the rejection-crazed patent office has become: they don't even comprehend §102.
Loop in the Lasso
35 U.S.C. § 271 defines "infringement of patent." ¶ (f) closed a dodge: foreign assembly that would be infringing if done domestically. The Supreme Court, in Microsoft v. AT&T, declared software an exception to that - one could skirt process infringement by shipping a software disc out of the country. Did that leave the 2005 CAFC ruling in Union Carbide v. Shell Oil standing, where "Section 271(f) applies to components used in the performance of patented methods and processes"? For now, in another highlight of the illogical incongruities in U.S. patent law.
December 19, 2008
Bilski has no basis in statute, and by any reasonable metric of jurisprudence, is downright bad case law. That's right, Chief Judge Michel, I am addressing you, sir. You are just making stuff up willy-nilly. But it doesn't help that prosecutors draft jackass claims, which examiners let pass, and then, rather than sicing the big-footed Obzilla on them for a good stomping, it's just too easy to rule: "damn, son, you can't patent that." We are talking a chronic disorder here.
December 18, 2008
Patent Law Outline
The best patent law blogs act as a ready reference for case law. The Patent Prospector attempts this by covering CAFC cases with copious quotation, the entries categorized. Michael G. Sullivan's The Power of the Outline takes a different, rather extraordinary approach, beguiling in its simplicity. In doing so, Mr. Sullivan has produced an invaluable resource: a taxonomic synopsis of patent cases.
In June, Nintendo sued Nyko for its award-winning Nunchuk video game controller, Nintendo calling Nyko's version a copycat of its patented design. Wednesday they settled, in an agreement undisclosed, other than Nyko can sell a redesigned version.
December 17, 2008
Asokkumar Pal looked away from the screen and wiped his eyes. He was tired. He'd been with the agency 25 years. A long haul. Now it had crumbled away, as if he was a wad of paper, to be used and tossed. It wasn't right. He did the best he could. His resolve stiffened. He would not go quietly.
Nearly Done Deal
Reflecting Alcatel-Lucent circling the wagons, they settled with Microsoft on six patent litigations dating back to 2002, before Lucent was acquired by Alcatel. One still-outstanding tab is a $ half-billion trial verdict overhang against Microsoft on touch-screen technology. Expect that to be wrestled to the ground soon in another settlement coquettishly termed "mutually beneficial."
December 16, 2008
Nipped in the Bud
Anheuser-Busch settled a lawsuit brought by a Quebec company asserting 6,852,191, claiming a double-sided label technology. The only comment on the settlement from a relieved A-B attorney was "mutually agreeable terms," and perhaps a mumbled "it's Miller time."
The appeals court is sponsoring a shell game against folks threatened with patent infringement by foreign companies. Aten, a Taiwanese company, affiliated with IOGEAR, sent threatening letters of infringement regarding patented KVM switch technology. Recipient Avocent sought declaratory judgment in Alabama, where it is located. The district court pitched the case for lack of personal jurisdiction, stating that the letters weren't enough, and 2-1, CAFC panel Judges Linn and Schall agreed. In dissent, Judge Newman argued that the majority had "no basis for this delicate distinction" upon which they relied, that they failed to grasp the big picture, and that fairness was paramount "where there is no other forum for this complaint." (CAFC 2007-1553).
December 15, 2008
Welker Bearing sued PHD for infringing patents claiming clamping fingers securing a work piece for welding. The disputed claim term was "mechanism for moving said finger," construed as a means-plus-function claim. While "means for" typically signals the claim form, "mechanism" is a sometimes substitute term for "means."
December 14, 2008
The root problem with patent quality has always been with the patent office. The current USPTO administration has rightly received nothing but criticism for its high-handed rules changes, poisonous work environment leading to massive attrition, shoddy examination regime, and blame game on applicants. In testimony last week before Congress, former PTO heads nattered about backlog.
Nortel and Alcatel are exemplary telecom and network companies falling fast in the wake of the world recession. Nortel is even facing demise. Once fierce in their patent bite, they are now looking mostly just long in the tooth.
December 13, 2008
iLOR sued Google for infringing 7,206,839. Losing claim construction, the Kentucky district court judge denied iLOR's preliminary injunction motion, granted Google's summary judgment of noninfringement, and sua sponte dismissed the "action" with prejudice. On appeal, the CAFC figured the goose wasn't yet cooked, as Google had outstanding counterclaims. The single disputed claim term shows that stretching claim construction to incredulity is a surefire formula for throwing away money on lawyers.
December 12, 2008
Apotex tried to muscle in on the market for Plavix, a blood clot treatment, by challenging the validity of 4,847,265, owned by Sanofi. '265 claims a chemical compound, which Apotex argued anticipated in the prior art, and obvious. The courts sided with Sanofi. Plavix turns out to be one tricky concoction.
December 6, 2008
In the Pool
Stanford University academics Ryan Lampe and Petra Moser, in "Do Patent Pools Encourage Innovation?":
Regulators favor patent pools to encourage innovation in industries where overlapping patents and excessive litigation suppress innovation. With patent pools, member firms share patents freely with each other and offer one-stop licenses to outside firms. Thus patent pools are expected to promote innovation by reducing litigation risks for pool members and lowering transaction costs for outside firms. Our data confirm that pools reduce litigation risks for members and that pool members patent more in the years leading up to the pool. Pool members, however, patent less as soon as the pool is established and only resume patenting after the pool dissolves. Performance data suggest that innovation slowed as soon as the pool had been established and resumed only after the pool had been dissolved.
December 5, 2008
Dead Man's Hand
Lame duck USPTO lawyer James Toupin did his best to sew a silk purse from a sow's ear in oral arguments at the CAFC today, in USPTO v. Tafas & GSK. Of course, anyone who will say anything to win arguments is oxymoronic to having integrity. In this case, the disgraceful USPTO argued that its rules to limit continuations are piddling, while the reality is the rule changes are substantial, and the likely impacts considerable.
December 4, 2008
Samy Gharb fell off the turnip truck and wandered into the Federal Circuit Court of Appeals. After having his patent assertion against Unitronics squashed flatter than hammered shit, including "a permanent injunction to preclude Gharb from threatening Unitronics and its customers with infringement litigation," Gharb, unable to read the legal dictum on the wall, appealed.
The USPTO rules changes successfully challenged by Dr. Tafas and GlaxoSmithKline head to oral arguments before the CAFC Friday. The beetles in the patent office rolling their dung ball up the hill this far practically defines the difference between determined cunning and intelligence.
December 1, 2008
Consequence of Silence
Qualcomm "breached its duty to disclose" two patents before a standards-setting organization, the Joint Video Team (JVT). Consequently, the district court deemed the patents "unenforceable against the world," and, finding the case exceptional, awarded competitive combatant Broadcom attorneys fees. The appeals court found "the scope of the remedy of unenforceability as applying to the world... too broad."
Two recent Supreme Court cases affirming the power of the police state, unrelated to the mercantile motives of patents, nonetheless toll the death knell for the "substantial question of patentability" defense in fighting a patent-holder's motion for a preliminary injunction. Judge Newman, in a 2-1 decision in Abbott v. Sandoz last month, read the tea leaves, leaving dissenting Judge Gajarsa wagging a worthless finger.