January 31, 2009
Whatever the USPTO proposes for deferred examination (DE), and it surely will, the likely outcomes won't amount to a hill of beans. As a salve to pendency, DE as a dud is an easy bet.
January 30, 2009
5,743,942, owned by Süd-Chemie, claims a desiccant container. "Desiccant containers are frequently used to maintain a dry environment for products during storage or shipping." Süd-Chemie sued Multisorb for infringement. In summary judgment, the district court Obzillaed the patent in light of 4,487,791 (Komatsu). On appeal, Süd-Chemie cited three unmet limitations. Only one was found non-obvious. But the patent survived.
January 29, 2009
John Doll isn't treading water as interim PTO honcho. He's busting a move to not bust a move examining patents. On a web page titled "Closing of the United States Patent and Trademark Office," the USPTO announced a "public roundtable discussion" February 12, about adopting a procedure for deferred examination, "in response to suggestions from stakeholders in the intellectual property (IP) community" who want to tread water. [Federal Register pdf]
IEEE has issued its 2009 patent reform recommendations. First off, a better USPTO, but not expanding their rule-making authority. Clarify software as patentable. And then they get woolly. "Consider alternatives to patent protection." Where they lament patent pendency. "Address recoveries for infringement." Their "recoveries" position sounds like they know nothing about damages or the Georgia-Pacific factors.
Bilski, as intended, is eradicating business method patents. In Fort Properties v. Master Lease, Central District of California Judge Andrew Guilford granted summary judgment of §101 invalidity for 6,292,788, which claimed creating a real estate investment.
January 28, 2009
The membership of the House and Senate Judiciary committees for the 111th Congress has been decided. What has also been decided is abolition of intellectual property subcommittees in both houses. That puts any patent reform agenda, and all its attendant issues, squarely before the full committee in each body. The abolition thus puts a learning curve on more members, particularly in the House: there are 29 in the House Judiciary Committee.
January 27, 2009
One could argue that everything needed would eventually be invented. No need for patent protection in a society content with its technology. Patents accelerate invention, by having an incentive to invent: an exclusivity grant. So whether an infringer copied a patent, or independently developed the technology, is moot. Other than copying as a first step is smarter than reinventing from scratch.Continue reading "Non-Copyists"
Cream of the Crop
For the third time, Rep. Darrell Issa (R-California) has reintroduced legislation for a pilot program to help educate district court judges about patent cases. Never mind that attorneys on both sides of a litigation are supposed to do that. The more experienced judges are well known. If a judge needs help, that road has been well paved, and brethren in other districts are a phone call or email away. Never mind that the only extant problem with district courts handling patent cases is in limiting choice of venue, a problem the CAFC introduced in TS Tech. Maybe the pilot program ought to be educating the higher courts about patent cases.
January 26, 2009
In a procedurally bold opinion in In re Comiskey, __ F.3d __ (Fed. Cir. 2009)(Dyk, J.), a panel has repudiated controlling precedent of the court and indeed 180 years of practice since the Patent Act of 1839 that had established a strict proscription against a judicial reviewing body of Patent Office decisions playing de novo "examiner". Instead, the reviewing court has had a limited statutory role that focused upon the rejection that had been made by the Office.
Following in the soiled footsteps of Article One Partners, patent maimer by bounty hunting, Peer To Patent has added a branch organization, Post-Issue Peer To Patent, seeking to "improve the quality of patents by providing a framework for ferreting out weak, non-meritorious patent claims in patents that have issued."
In the teeth of recession, how can patent law firms sharpen their competitive edges? According to Andy Gibbs, CEO of PatentCafe.com, interpreting facts as a matter of law does the trick. "The first Eureka moment will come when attorneys realize that the new family of IP software tools does NOT require patent search expertise as much as it requires legal interpretation to convert patent data to high value business information."
January 25, 2009
Patent examiners are embracing §101 rejection for process claims, reinvigorated by Bilski. Oddly, the rejections often skirt citing Bilski directly, instead relying upon earlier precedent, such as Benson. The Bilski ruling favorably cited 1982 Abele for discrimination between overreaching claims and more "narrowly-claimed process patent-eligible." Abele provides an escape route from rejection, by analogy: data that represents "physical and tangible objects."
January 24, 2009
Advanced Micro Devices, playing David to Intel's Goliath, is struggling to stay afloat. AMD is preparing to spin off its manufacturing operations into a separate company, tentatively called the Foundry Company. AMD will then focus purely on designing processor chips. This past week, Intel sent a letter to AMD, requesting a meeting to air out whether AMD's plan would violate patent cross-licensing agreements between the two. One agreement was signed in 1976, the other in 2001.
January 23, 2009
The Front Burner
Hal Wegner has expressed "reason for optimism that patents will not be put on a back burner by the new President." Reason for optimism would be just the opposite: that things would simmer down, on the back burner.
Non-Obvious Claiming; Obvious?
Arguably the best-known bit of patent law: "Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title." 35 U.S.C §101. Also, lamentably, commonly ignored during claims drafting.
January 21, 2009
Friskit sued Real Networks for infringing patents for multimedia file playback over the Internet. Prior to KSR, the district court denied Real on obviousness. Post-KSR, in a renewed motion, Obzilla danced a terminal playback, killing them all. Friskit appealed, arguing three unanticipated limitations, along with "secondary considerations indicative of nonobviousness." The CAFC didn't second that. Friskit had to get real that it couldn't get Real.
Up and Coming
There is a continuing shift in U.S. patent grants towards Asian companies. While IBM stayed on top in 2008, at 4186 grants, #2 was Samsung (Korea, 3515), and #3 Canon (Japan, 2114). Of the top twenty patentees in 2008, 13 were foreign-based companies, all but one Asian. Behind the numbers lie motivations.
January 20, 2009
Every once in a blue moon something incredibly good happens. Now on tap, in draft, not quite bottled, is the "Patent Case Management Judicial Guide," a rather incredible compendium covering all aspects of patent litigation, not just judicial case management.
2008 will be remembered as the crashdown year in the 2nd Great Depression. The old saw is that patent lawsuits are immune from recession, but the 2008 numbers tell a different story. 2,605 patent suits were filed in 2008, down 8% from 2007. 2008 through July saw a 2% rise. But in the last five months of 2008, filings plunged 23% from a year earlier.
January 19, 2009
Ivory-tower academic Doug Lichtman interviewed CAFC Chief Judge Michel. Michel displayed an impressive grasp of important facts and statistics, and a seasoned sense of reality, with interesting, albeit sometimes odd, views.
January 17, 2009
Year after year, IBM plows ahead filing, and getting, more U.S. patents than anyone: 4,186 gotten last year, the 16th consecutive year leading the patent pack. Samsung came up to number two in 2008, with 3,515. HP has taken a different tack the last few years, and fallen behind in the numbers.
On the seventh office action of a competitive pricing patent application, yet another non-final, a new rejection appears, besides the continual findings of prior art pieces that never survive reply, owing to their inadequacy in rendering the claims anticipated or obvious. A "computer-implemented method" of changing price is not patentable in light of §101.
January 16, 2009
Bilski has bilked Intel. The PTO patent appeals board rejected Intel's claimed alternately calculating using software or processor hardware depending upon whether the result was "tiny." Such calculation was found not to be "a practical application of the mathematical algorithm because the result d, a number, is not a tangible result because it is not a real-world result." Taking no wooden nickels, the BPAI repeatedly refuse to "exalt form over substance."
January 15, 2009
Boston Scientific and Johnson & Johnson have a long-running battle of heart stent patents. Both have had victories in their war, which started in 1997. Today the victory was J&J's, overturning a unfavorable jury verdict, as Obzilla, the patent grim reaper, takes another victim on appeal.
Canadian Nortel Networks, bled dry by bad management, has thrown in the towel. One analyst characterized Nortel as having the trifecta for becoming corporate toast: "lack of innovation, a lack of understanding their customers and a lack of marketing." Nortel, a heavy patent hitter, has a patent portfolio worth snatching up. This will be just the first of big patent fire-sales as the world slips into the Second Not-So-Great Depression.
Scott Shane has thrown another log in the fire roasting the idea of apportionment as a means for figuring patent damages. Apportionment was found to be bad news for patent value, naturally, but also R&D, company valuation, and jobs. The harm would purportedly be unevenly spread, affecting more industries reliant upon innovation.
January 14, 2009
Stephen Comiskey filed a business method patent application, which he pursued to the CAFC, which ruled his idea an unpatentable "mental process." Petition for en banc rehearing met with cacophony: limited to authorizing the panel to revise its earlier flub, to a chorus of dissent. § 101 process patentability once again gets a retread, this time intimating that novel computer software may be patentable.
January 11, 2009
National Products (NPI) started an enforcement campaign with 6,666,420, filing "at least six separate lawsuits against various entities." '420 claims suction cup mouting for portable equipment. Panavise, a competitor, got spooked, so it filed a declaratory judgment motion, practically admitting infringement, but of course seeking a ruling that it did not, as well as '420 being invalid and unenforceable and everything vile. NPI told the court they hadn't even seen Panavise's product. The district court told Panavise to take their jitters elsewhere, and the CAFC agreed.
Vehicle IP sued General Motors and others over 6,535,743, claiming "a system for providing directions." The defendants evaded infringement in summary judgment over construction of the term "coordinate." The district court construed a coordinate as multiple numbers. The defendants' systems used a single scalar value. 2-1, the CAFC agreed.
January 9, 2009
Tokyo Keiso tried pipe-hitting SMC for infringing 5,485,004, claiming a pipe volume flow meter. Figuring Obzilla would take the "predictable next step", the district court found "the '004 patent obvious as a matter of law." No argument from the CAFC on that. After all, if the prior art isn't teaching away, it's teaching the way. Obzilla knows all the dance steps, that nimble lug. It didn't help that the "patent specification concedes as prior art most of the limitations of claims." Not much flow there.
Scott C. Harris was reputedly booted by Fish & Richardson for asserting his patent, 7,111,252, against Google. Now Oprah's Harpo Productions is being sued. The patent claims partial book review over the Internet. Oprah's Book Club web site offers book previews.
January 7, 2009
'Peter Principle' Poster Boy Moves On
USPTO Director Jon W. Dudas is rumored to be resigning. Since taking office in July 2004, Dudas has displayed unprecedented aptitude for infantile outbursts against PTO employees and patentees; instilling opacity in agency operations enviable to Soviet apparatchiks; astonishing duplicity in diminishing patent quality while paying lip service to it; illegal, albeit futile gestures in changing examination rules; slave-driving employees with counterproductive production goals at the expense of decent examination; bodacious benign neglect of patent pendency, a tacit admission that the PTO is a lousy place to work, and nothing to be done about that except frenzied hiring; and roiling the patent community into a state of nonplus. Dudas will be sorely missed by commentators needing blog fodder.
January 6, 2009
Examiners consistently rely on baseless rejections, hoping applicants won't realize examiner ignorance, explore examiner incompetence, nor argue against examiner authority. Often, applicants amend or file RCEs, allowing examiners to milk applicants for all the counts they're worth. Rarer is the filing of an appeal brief, which can force examiners to abandon the charade and reopen prosecution. For rejections that actually make it to the board of appeals, and are subsequently overturned by the BPAI, it may be thought that allowance is in store. But Dennis Crouch shone light on the fact that, about 20% of the time, examiner stubbornness lives on, even after being shot down by the board.
January 5, 2009
IEEE has declared Microsoft numero uno in 2007, by a wide margin, for "adjusted pipeline power" software patenting. So-called pipeline power is a measure of patent count, technology range, and influence (patent citation by others).
Whining has become the American way. U.S. car makers, uncompetitive for over 30 years, fly to Washington in private jets to beg for spare change - just enough to fill their golden parachutes before bankruptcy. High-tech computer companies spend hundreds of millions to whine at Congress because of highfalutin inventors wanting to enforce the patent laws. Now a digital TV lobby has sprouted, CUTFATT, to whine about loafing consumers paying a patent tax.
January 3, 2009
"Abstract software code is an idea without physical embodiment." So opined the Supreme Court in Microsoft v. AT&T, 2007. The high courts in recent years have done what they could to denigrate software as unpatentable, most recently in a stunningly incoherent ruling at the CAFC In re Bilski. This is the result of both scientific and economic ignorance by the courts, and political brainwash by computer software corporations in this country, including, incredibly, Microsoft and Apple. As emergent Asian nations race to overtake the U.S. in every technological arena, the heavy patent action here is cutting off our leading-edge nose to spite our face.
January 2, 2009
Rear View 2008
Patent reform fell off Congress' radar while the USPTO hit a nadir in bad management. The Supreme Court was mercifully mum, except for exhausting patents, while the CAFC went into the weeds on more than one occasion.
January 1, 2009
Acumed sued Stryker over 5,472,444, which claims an orthopedic nail for mending the upper arm bone. Acumed got a permanent injunction, which was trashed by the CAFC in the wake of eBay's strict four-factor metric. On remand, same result: permanent injunction. On appeal, the district court skated: found within its discretion. Tip for district court judges: it's not how you rule, but how you nail it.