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February 28, 2009
Biological?
The
Hatch-Waxman Act created an
accelerated pathway
to chemical generic drugs, by virtue of piggy-backing on previous testing
done by the patent holder. Biologic drugs are a different scenario altogether.
Made from living organisms, such as bacteria, not chemical formulation,
biologics are extremely difficult to replicate precisely.
Continue reading "Biological?"
Posted by Patent Hawk at 8:49 PM | The Patent System
February 27, 2009
Hooking
Congress
is nothing more than a pack of whores who flash their wares as proposed
legislation, to attract lobbyists pumping them with money to sway a bill this
way or that. The past three years running, patent reform bills have wafted as a
lure for lining pockets. Senate Judiciary Chair Patrick Leahy and his House
counterpart John Conyers are going trolling again. The word on the street is
that they will jointly introduce this year's patent reform spliff next week,
entertaining offers to roll more green into it.
Posted by Patent Hawk at 10:47 PM | The Patent System | Comments (3)
February 26, 2009
Delay
Companies
are merely individuals acting in concert, with no more scruples than
they have individually. As often as not, group think leads to sinking to a lower
common denominator: scruple lite. Belonging to a larger group empowers little
shitbirds to spread their wings and leave their droppings en masse. A reflection
of the human condition, patent cases too often read as a morality tale.
Posted by Patent Hawk at 11:46 PM | Litigation | Comments (3)
Unthreatened
Before
the 2007 Supreme Court
MedImmune ruling, a company worried about infringing a patent could only
bite its nails and wait. But SCOTUS, in its mumbling way with patents in recent
years, made Article III jurisdiction as bright-line a rule as pornography: you
only know it when you see it. The CAFC
Sandisk decision lowered the DJ bar further, so that infringers could be more
like the vultures in a Gary Larson cartoon: "Patience? Hell, I want to kill
something." But the line of "actual controversy" is still drawn in mud.
Continue reading "Unthreatened"
Posted by Patent Hawk at 9:56 PM | Declaratory Judgment
February 25, 2009
Drumming
Microsoft
today filed patent infringement suits against TomTom, Amsterdam-based maker of
vehicle navigation GPS systems, both in Washington district court, and the ITC.
Eight patents are asserted: five on navigation, three on file management.
Microsoft deputy general counsel Horacio Gutierrez claimed that Microsoft has been trying to engage TomTom in licensing talks
for over a year.
Posted by Patent Hawk at 7:37 PM | Litigation | Comments (5)
Fire Away
Yesterday,
the Supreme Court declined a petition to review the
Singleton v. Volkswagen
case, regarding transfer of venue under 28 U.S.C.§1404(a).
That leaves the CAFC "transfer away" precedent of
TS Tech standing. Also
declined was review of declaratory judgment motions, in Forest Labs v. Caraco.
Posted by Patent Hawk at 4:45 PM | Case Law
February 24, 2009
Stay
Generic
drug maker Teva has been working to cut into Eli Lilly's profits on its patented
drug, Evista®,
which treats postmenopausal osteoporosis, a disease exacerbated
by poor lifestyle choices. Lilly sued. As is statutory, the judge slapped a
stay, delaying Teva's FDA approval, pending trial. Teva fiddled with its
formulation, requiring further discovery, so the judge extended the stay. Teva
appealed the extension as an abuse of discretion by the judge.
Posted by Patent Hawk at 11:13 PM | Case Law | Comments (3)
February 23, 2009
Rambus Relieved
The
anti-patent FTC lost its bid to kick Rambus around some more with its antitrust
boots. The Supreme Court demurred from taking the case. Without comment.
Continue reading "Rambus Relieved"
Posted by Patent Hawk at 2:09 PM | Patents In Business | Comments (2)
February 22, 2009
Not Circling the Wagons
Another
year, another turn of the wheel, and the same patent political issues rear their
ugly little heads. Senate Minority Whip Jon Kyl (R-Arizona) has his shtick of
pocketing lobbyist money by promising to rape DataTreasury of patent protection
for its digital bank check processing, known as "Check 21." This year's DOA bill
has already been introduced (S3600). And that's but the start of it. The
kibitzers aren't on vacation.
Continue reading "Not Circling the Wagons"
Posted by Patent Hawk at 2:16 PM | The Patent System | Comments (6)
Damages Derision
While
Alactel-Lucent and Microsoft have settled much of their patent spat, one
outstanding battle, rushing headlong towards a CAFC cliffhanger, worries over
damages method. The case involves
a $511.6 million
award to Alactel-Lucent over a calendar function. Microsoft filed the appeal
over the whole gumbo: validity, infringement, and award, as is the norm. A
Microsoft-supportive amici brief chimed in,suggesting patent damages were out of
control. This brief came from other serial infringers, including Apple and
Oracle, that figure they pay more than they make on patents, and so want to cut
their infringement costs by rigging the system to their advantage. On February
9th, a diverse group pounced on that, with derision.
Continue reading "Damages Derision"
Posted by Patent Hawk at 1:18 AM | Damages
February 20, 2009
Cartoon Comprehension
Management
consulting firms are inherently oxymoronic, because any manager that needs
consulting from an outside firm is a moron. As in, you run a business, but don't
know how to run your business, so you hire consultants?
What does this have to do with patents? Well, I agreed to participate in a survey about the patent business, being conducted by a... you guessed it.
Continue reading "Cartoon Comprehension"
Posted by Patent Hawk at 9:25 PM | Patents In Business | Comments (4)
February 19, 2009
First to Fail
The
great anachronism of the U.S. patent system arises with interferences, a natural
outgrowth of making priority a mystery by having a first-to-invent regime,
rather than the tidier first-to-file, adopted worldwide, everywhere but this
backwater too proudly called "the good ole US of A." Herein, a priority date squabble over collapsible pet carriers
that aren't patentable anyway, as KSR kicks them out of the doghouse and
buries them in the graveyard.
Continue reading "First to Fail"
Posted by Patent Hawk at 5:14 PM | Interference
February 18, 2009
No Noise Reduction
Headphone
makers Bose and Lightspeed haven't come up to speed for a complete
cross-licensing of their noise-reduction technologies, so they keep at each
other. In 2002, Lightspeed settled with Bose over an Oregon court battle,
Lightspeed's home turf. Bose agreed to lay off Lightspeed for improvements to
Lightspeed's headsets. In 2007, Lightspeed came out with its new Zulu
model. So Bose has just plugged Lightspeed into a suit in Boston, Bose's
home boombox, alleging Zulu is not just an improvement, covered under the
previous agreement, but new technology infringing Bose's
5,181,252, which is a rather old patent (filed 1991). Bose is already
blaring at other headphone makers
at the ITC
over '252.
Posted by Patent Hawk at 1:08 AM | Litigation
February 16, 2009
Fighting to the Finish
No
aspect of patent law better illustrates the trend in recent years for the
Supreme Court to introduce uncertainty into patent litigation than declaratory
judgment - when can a potential infringer sue a patent holder, so as to get the
advantage of being plaintiff? Before the SCOTUS MedImmune decision, the
line was clearer than "under all the circumstances..." Not to say that
bright-line rules are necessarily a good thing. Herein, a
through-the-looking-glass dispute between two eyewear makers.
Continue reading "Fighting to the Finish"
Posted by Patent Hawk at 3:02 PM | Declaratory Judgment
February 14, 2009
Calmed Waters
Contech
Stormwater Solutions sued Baysaver Technologies and Accubid Excavation for
infringing
5,707,527, which claims "a method of storm water filtration that utilizes
replaceable water-permeable baskets and a 'siphon effect.'" Claim construction
was followed with defendants' successfully motioning for noninfringement, which
was affirmed on appeal.
Continue reading "Calmed Waters"
Posted by Patent Hawk at 1:22 PM | Claim Construction
February 13, 2009
Wardrobe Malfunction
Ms.
Rothman bore her first child in March 2000, then "sought out a nursing garment
that would conceal her stomach while providing easy nursing access and full
breast support. Unable to locate anything more elaborate than "just basically
nursing bras," Ms. Rothman undertook the task of designing her own garment."
With a design in mind, she sewed together parts from other clothing products,
along with additional fabric. Then she patented her "Topless Topnotch Nursing
Top."
6,855,029. That done, and no longer nursing, Ms. Rothman, aka Glamourmom, got
down to the business of patent enforcement. Alas.
Continue reading "Wardrobe Malfunction"
Posted by Patent Hawk at 2:50 PM | Prior Art | Comments (8)
February 12, 2009
Inscrutable Inconsistency
Amphire
Solutions tried to get a patent (2003/0188264)
on normalizing XML into a relational database, reducing redundancy using linked
lists. On appeal before the patent board (BPAI), the application was Bilskied,
then stomped by Obzilla. While the Board found computerized methods
abstract, and hence unpatentable, a computer performing a function is not
abstract, and hence patentable.
Continue reading "Inscrutable Inconsistency"
Posted by Patent Hawk at 10:05 PM | § 101 | Comments (8)
February 10, 2009
2009 Patent Reform
The
Manufacturing Alliance on Patent
Policy (MAPP), a coalition of over 130 non-pharmaceutical manufacturers,
took a backhand slap at Sen. Patrick Leahy in a letter to President Obama
Tuesday, warning that the proposed patent reforms in recent years would hurt
manufacturers by weakening patent protection. Leahy has been the puppeted force
behind the computer industry's ploy to punch patents, so infringement is not as
costly, while raising the cost of enforcement by making patent litigation even
more expensive than it already is.
Continue reading "2009 Patent Reform"
Posted by Patent Hawk at 6:37 PM | The Patent System | Comments (5)
Fools Errand
It
is painful watching the new administration stupidly struggle with rebooting
existing banks by buying their worst assets, the "bad bank" concept. The
approach is fundamentally wrong. The government needs to buy/nationalize at
least one nationwide bank, such as CitiGroup, which employees call "too big to
fail, too shit to buy." A sovereign bank. Pump capital through that bank to
revive lending. Let other banks fail as they may, in which case strategic ones
are nationalized too, until liquidity once again flows through the financial
system. It should be abundantly apparent that the financial health of this
country is too important to be left at the mercy of greedy short-sightedness, to just buying dross. Moral
hazard is what capitalism is supposed to be about, not handouts to the greedy
rich.
Posted by Patent Hawk at 11:02 AM | | Comments (5)
February 9, 2009
Blown Candle
Ball
Aerosol sued Limited Brands and Bath & Body Works for infringing
6,457,969, which claims "a candle tin with a removable cover that also acts
as a base for the candle holder." Ball won a summary judgment verdict of
infringement, which included a sua sponte finding of validity. That was
pre-KSR. Afterwards, the court reaffirmed its determination that "no
reasonable trier of fact could find other than" validity. Appeal found something
other than a "reasonable trier of fact."
Continue reading "Blown Candle"
Posted by Patent Hawk at 4:55 PM | Prior Art | Comments (7)
Pimped Out
Article One Partners announced today its first "winning" patent study for prior art deemed worthy of invalidating patent 6,784,873, to the benefit of accused infringer Garmin. The prize: $50,000 split two between two "advisors". The art: a 1991 WIPO Publication, and a 1998 out-of-print Windows CE textbook. In addition to obvious beneficiary Garmin, Article One considers this "critical information related to IP disputes involving brands with the global resources of Apple and Samsung". Which raises the question, how much profit did this $50,000 "reward" buy them?
Posted by Mr. Platinum at 11:50 AM | Patents In Business | Comments (1)
February 8, 2009
Prosecution for Enforcement
It's
relatively easy to get a novel invention examined and granted. That statement is
enough to make many a seasoned prosecutor choke. That's because most seasoned
prosecutors don't litigate. The high art form of prosecution is prosecuting for
litigation. The right anticipation is in both what you say, and what you don't.
Continue reading "Prosecution for Enforcement"
Posted by Patent Hawk at 7:31 PM | Prosecution | Comments (9)
February 7, 2009
Court Reform
The
Coalition for 21st Century Patent Reform
is working "to secure enactment of recommendations in the
2004 report of the
National Academies of Science (NAS)." Disappointed with Congressional
efforts the past few years, and the USPTO, the lobbyist is declaring victory in
light of recent court cases. "The
patent law changes that have occurred since 2004 suggest that the courts--not the
legislature--should be entrusted with many of the patent reform topics that have
been considered."
Continue reading "Court Reform"
Posted by Patent Hawk at 11:46 PM | The Patent System | Comments (7)
February 6, 2009
The Invisible Edge
It's
refreshing to read a patent study that stands up and shouts sense. Mark Blaxill
and Ralph Eckardt, in "The Innovation Imperative: Building America's
Invisible Edge for the 21st Century" look to the past as a candle to light
the way forward. They begin by quoting Mark Twain (pictured) in A Connecticut Yankee in
King Arthur's Court, 1889: "The very first official thing I did in my
administration--and it was on the very first day of it too--was to start a patent
office; for I knew that a country without a good patent office and good patent
laws was just a crab, and couldn't travel any way but sideways or backwards."
Continue reading "The Invisible Edge"
Posted by Patent Hawk at 11:08 AM | The Patent System | Comments (24)
February 5, 2009
Publicity for Stupid
Trumpeting
expressed ignorance is not usually a publicity-seeking modus operandi. But for
two patent Paris Hiltons, it seemed just the ticket. Professional patent wrestlers
Nathan Myhrvold of Intellectual Ventures and Stanford University Law
Professor Mark
Lemley are tag-teaming to battle the unknown: who is behind the "flood" of
patent litigation in the past decade? Let me save you guys a lot of work. It's
simple. Patent holders.
Continue reading "Publicity for Stupid"
Posted by Patent Hawk at 7:08 PM | The Patent System | Comments (17)
February 4, 2009
Pumped for Action
The
Nanny State of America, 21st century style, buys dross loans as a bailout for
greedy but now bankrupt bankers, ostensibly to stimulate the economy, rather
than cutting taxes, which really stimulates the economy. Now it wants to force
companies to make drugs, when they'd rather be paid off not to. Which
suspiciously sounds like farm subsidies, paying farmers not to plant crops, that
the government has indulged in for decades.
Continue reading "Pumped for Action"
Posted by Patent Hawk at 10:38 PM | Patents In Business | Comments (2)
February 3, 2009
Xboxed
Two
years ago, Paltalk sued Microsoft for infringing
5,822,523, which claims group messaging.
Xbox Live, Microsoft's online
gaming service, is accused. Following claim construction, Microsoft sought
summary judgment of invalidity based on prior art. Paltalk retorted that
Microsoft was pitching piss-poor art. Yesterday, district court Judge Folsom (ED
Texas) agreed, finding that a reasonable jury would be skeptical about the prior
art, and "even if the evidence before the court was sufficient to prove
anticipation, this court would still deny Microsoft's motion as that evidence is
not sufficiently corroborated by reliable documentary or physical evidence."
Game on.
Posted by Patent Hawk at 8:32 PM | Litigation
February 2, 2009
Wounded
Kinetic Concepts
(KCI) sued Blue Sky Medical Group and others for infringing
5,636,643 and
5,645,081, which claim a way to treat wounds. The West Texas trial judge had
trouble construing "wound." As in, changed his mind a few times along the way,
up to and including giving jury instructions, when he gave up entirely on
construing the term. None of that fazed the jury, who found the patents valid,
but not infringed. In the inevitable appeal, the CAFC had trouble construing
"wound" too. In yet another split decision, any claim to consistency in claim
construction method by the CAFC appears mortally wounded.
Posted by Patent Hawk at 11:32 PM | Claim Construction
Foliation
Former
patent office Commissioner Jon W. Dudas has found a home with
Foley & Lardner.
In apparently unrelated matters, former clients of Foley have filed suit against
the firm. The complaint is that the firm failed to adequate represent their
interests in a patent litigation, and overcharged them for the privilege. This
new suit follows on another pending conflict-of-interest assertion, by Vaxiion
Therapeutics, that charges Foley prosecuted its patents while also assisting its
competitor, EnGeneIC.
Posted by Patent Hawk at 9:11 PM | Patents In Business
Pyrrhic Victory
In
arguing the right to enforce slavery, Microsoft achieved a pyrrhic victory by
transfer from Texas to Oregon in Odom v. Microsoft. With transfer,
Microsoft has shot itself, delaying further court ruling
that Odom has a valid and enforceable patent infringed by a central feature of Microsoft's
Fluent User Interface. Companies adopting the interface must wonder whether it's
worth the risk adopting a patented technology which Microsoft is ambitiously
marketing and licensing, but over which Microsoft has no control.
Continue reading "Pyrrhic Victory"
Posted by Patent Hawk at 10:59 AM | Litigation | Comments (11)
prior art search + 
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