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January 31, 2009
Exhuming Examination
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.
Continue reading "Exhuming Examination"
Posted by Patent Hawk at 7:32 PM | The Patent Office | Comments (5)
January 30, 2009
Contained
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.
Posted by Patent Hawk at 11:17 AM | Prior Art | Comments (2)
January 29, 2009
Procrastination
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]
Continue reading "Procrastination"
Posted by Patent Hawk at 4:54 PM | The Patent Office | Comments (37)
Engineered
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.
Posted by Patent Hawk at 2:14 PM | The Patent System | Comments (3)
Unreal Estate
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.
Continue reading "Unreal Estate"
Posted by Patent Hawk at 11:38 AM | § 101
January 28, 2009
Abolition
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.
Posted by Patent Hawk at 6:12 PM | The Patent System | Comments (2)
January 27, 2009
Non-Copyists
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.
Posted by Patent Hawk at 8:20 PM | The Patent System | Comments (7)
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.
Continue reading "Cream of the Crop"
Posted by Patent Hawk at 3:02 PM | The Patent System
January 26, 2009
Rogue
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.
Posted by Patent Hawk at 1:48 PM | Case Law | Comments (3)
Article Two
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."
Continue reading "Article Two"
Posted by Mr. Platinum at 12:47 PM | Prior Art
Searching
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."
Posted by Patent Hawk at 6:09 AM | Prior Art
January 25, 2009
Intellectually Amish
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."
Continue reading "Intellectually Amish"
Posted by Patent Hawk at 3:12 PM | § 101 | Comments (12)
January 24, 2009
Fuddy Daddy
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.
Continue reading "Fuddy Daddy"
Posted by Patent Hawk at 9:14 PM | Patents In Business | Comments (1)
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.
Continue reading "The Front Burner"
Posted by Patent Hawk at 10:08 PM | The Patent System | Comments (2)
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.
Continue reading "Non-Obvious Claiming; Obvious?"
Posted by Mr. Platinum at 5:20 PM | Prosecution | Comments (2)
January 21, 2009
Strong Showing
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.
Continue reading "Strong Showing"
Posted by Patent Hawk at 8:28 PM | Prior Art | Comments (1)
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.
Continue reading "Up and Coming"
Posted by Patent Hawk at 7:20 PM | Patents In Business | Comments (3)
January 20, 2009
The Bible
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.
Posted by Patent Hawk at 3:35 PM | Litigation
Nosedive
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.
Posted by Patent Hawk at 3:08 PM | Litigation
January 19, 2009
Perspectives
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.
Continue reading "Perspectives"
Posted by Patent Hawk at 4:32 PM | Case Law | Comments (6)
January 17, 2009
Patent Strategies
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.
Continue reading "Patent Strategies"
Posted by Patent Hawk at 10:58 PM | Patents In Business | Comments (4)
Compact Prosecution
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.
Continue reading "Compact Prosecution"
Posted by Patent Hawk at 1:30 PM | § 101 | Comments (5)
January 16, 2009
Tiny
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."
Posted by Patent Hawk at 6:33 PM | § 101
January 15, 2009
Stented
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.
Posted by Patent Hawk at 6:34 PM | Prior Art | Comments (15)
Bled
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.
Posted by Patent Hawk at 4:43 PM | Patents In Business
Damaging Apportionment
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.
Continue reading "Damaging Apportionment"
Posted by Patent Hawk at 10:52 AM | Damages
January 14, 2009
Mental Method
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.
Continue reading "Mental Method"
Posted by Patent Hawk at 4:56 PM | § 101 | Comments (2)
January 11, 2009
Sucker
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.
Posted by Patent Hawk at 11:16 PM | Declaratory Judgment
Bad Coordinates
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.
Continue reading "Bad Coordinates"
Posted by Patent Hawk at 12:10 AM | Claim Construction | Comments (5)
January 9, 2009
Obviously Flowing
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.
Continue reading "Obviously Flowing"
Posted by Patent Hawk at 3:10 PM | Prior Art | Comments (38)
Oprah
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.
Posted by Patent Hawk at 12:54 AM | Litigation | Comments (1)
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.
Continue reading "'Peter Principle' Poster Boy Moves On"
Posted by Patent Hawk at 4:11 PM | The Patent Office | Comments (2)
January 6, 2009
Post-Board Muleage
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.
Continue reading "Post-Board Muleage"
Posted by Mr. Platinum at 12:16 PM | The Patent Office | Comments (9)
January 5, 2009
Patent Power
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).
Posted by Patent Hawk at 7:30 PM | Patents In Business | Comments (2)
Cutting Farts
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.
Continue reading "Cutting Farts"
Posted by Patent Hawk at 6:35 PM | Patents In Business | Comments (1)
January 3, 2009
Shiver
"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.
Posted by Patent Hawk at 9:58 PM | Patents In Business | Comments (7)
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.
Continue reading "Rear View 2008"
Posted by Patent Hawk at 12:37 PM | The Patent System | Comments (5)
January 1, 2009
Nailed
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.
Posted by Patent Hawk at 1:47 PM | Injunction | Comments (2)
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