February 28, 2009
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.
February 27, 2009
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.
February 26, 2009
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.
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.
February 25, 2009
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.
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.
February 24, 2009
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.
February 23, 2009
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.
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.
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.
February 20, 2009
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.
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.
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.
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.
February 14, 2009
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.
February 13, 2009
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.
February 12, 2009
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.
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.
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.
February 9, 2009
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."
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?
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.
February 7, 2009
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."
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."
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.
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.
February 3, 2009
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.
February 2, 2009
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.
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.
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.