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March 31, 2009
Smokin'
In
its long-running patent battle with Star Scientific, R.J. Reynolds got its butt
snuffed trying to put a jury trial on hold pending reexam of Star's patents.
Maryland Judge Marvin J. Garbis denied RJR's motion. Trial is set for May 18.
The district court had found Star's asserted patents unenforceable for
inequitable conduct, a ruling
overturned on
appeal. Likewise a finding of indefiniteness. With the patents back in play,
RJR filed the reexam, hoping for delay.
Posted by Patent Hawk at 11:34 PM | Litigation | Comments (0)
Stifling
Start-up
Platform Solutions "developed software that turned standard servers into systems
that mimicked I.B.M.'s expensive mainframes." Feeling its profits threatened,
IBM sued Platform for patent infringement. Squeezed, and investors spooked,
Platform was so weakened that IBM snapped up Platform for $150 million, and then
killed its product. That's how the big boys play. Read the full story in the
New York Times.
Posted by Patent Hawk at 8:06 PM | Patents In Business | Comments (7)
Shadows
Cordis
and Boston Scientific went after each other over intravascular stent patents,
each found infringing. On appeal, not much changed, spotlighting a case where
settlement was precluded only by poor judgment. Of most interest is a fine
shading of when prior art isn't. And a reminder that what an inventor thought is
irrelevant to claim construction.
Posted by Patent Hawk at 7:26 PM | Prior Art | Comments (0)
Pigs in a Poke
The
phrase above refers to the clueless Congress passing patent laws without any
sense of ramifications.
Gene Quinn reports ringleaders in the Senate Judiciary Committee making
progress on major revisions to their proposed patent reform bill. The damages
provision now appears headed toward codification of the
Georgia-Pacific factors, a big step forward in terms of sensibility.
The backward leap is in lowering the reeexamination threshold to "an interesting question," as contrasted to its present "substantial new question of patentability." The vagueness is ludicrous. As litigations are sometimes stayed pending reexam, and the patent office is glacially slow about reexams, particularly inter partes, this new reexam criteria could be a death knell for patents, a practical abdication of the presumption of validity that patents presently enjoy by statute, resulting in a purgatory of unenforceability, guilty with no chance to prove innocence.
Posted by Patent Hawk at 3:36 PM | The Patent System | Comments (3)
March 30, 2009
Hammered
Ocean
Tomo patent auctioneer Charlie Ross on its recent event in San Francisco, where
only six patent lots sold of 80 offered, with just eight others getting any
bids: "I haven't talked to myself so much in years."
Posted by Patent Hawk at 9:38 PM | Patents In Business | Comments (0)
Quickly Drummed
A
month ago,
Microsoft sued TomTom over GPS navigation patents, and file management,
eight patents in all. Linux-based TomTom countersued with four of its own.
Already they've settled, with TomTom paying an undisclosed sum to Microsoft for
a five-year cross-license.
Continue reading "Quickly Drummed"
Posted by Patent Hawk at 9:09 PM | Patents In Business | Comments (0)
March 29, 2009
The Invisible Edge
"Innovation without protection is philanthropy." - Mark Blaxill and Ralph
Eckardt in
The Invisible Edge.
What a great book. Calling it "well written" is an understatement. Story after
story that make the point, as well as entertaining to boot. Anyone with an interest
in the business of patents, or the importance of patents, must possess this
book. Crucial reading.
Posted by Patent Hawk at 1:43 PM | Patents In Business | Comments (65)
March 27, 2009
No Respect Sausage
"To
retain respect for sausages and laws, one must not watch them in the making." -
credited to Otto von Bismark. Whatever the minutia marinade of the proposed
patent sausage, it has little chance of sizzling itself into law. The noises you
hear are sausage grinders, Sen. Patrick Leahy (D.-Vt.), and Sen. Arlen Specter
(R.-Penns.), hawking money for mystery meat.
Continue reading "No Respect Sausage"
Posted by Patent Hawk at 7:08 PM | The Patent System | Comments (1)
March 26, 2009
Useless But Enabling
Martin
Gleave and Maxim Signaevsky tried for a patent on an antisense
oligodeoxynucleotide, an organic compound. Examiner prior art rejection was
upheld by the patent board. On CAFC appeal, two points were made: 1) a reference
is anticipatory if enabling, regardless of utility; and 2) knowing a genus
anticipates all its species if the genus is so limited that the species hold no
mystery.
Continue reading "Useless But Enabling"
Posted by Patent Hawk at 9:17 PM | Prior Art | Comments (0)
March 25, 2009
Leaky
Clock
Spring sued Wrapmaster for infringing
5,632,307. '307 claims a method of gas pipe repair. Without expert
affidavits, the district court found in summary judgment the patent invalid due
to obviousness, rejecting a prior-use argument. On appeal, the CAFC bought
Wrapmaster's showing of prior use: that Clock Spring publically demonstrated the
technology in 1989, more than a year prior to filing the patent (1992). Herein,
rubber-band §102(b) readily stretches to envelop §103(a). And a discourse on
experimental use.
Posted by Patent Hawk at 5:27 PM | Prior Art | Comments (2)
Feeling Taken
Slapped with millions in fees over failed patent litigation,
E-Pass has served a lawsuit on its former
lawyers: primary counsel Moses & Singer,
along with local counsel Squire Sanders & Dempsey.
New counsel
James Rosen of Rosen Saba: "In
advising E-Pass to file and maintain their patent infringement claim, they spent
$10 million in legal fees and costs without a sound basis to make the elemental
case of patent infringement." No mention was made of personal responsibility for
one's own actions.
Continue reading "Feeling Taken"
Posted by Patent Hawk at 12:08 AM | Litigation | Comments (1)
March 23, 2009
Going Bankrupt?
A
patent is a piece of intellectual property, a mortgage granted by the
patent bank, the USPTO. The patent bank has failed, owing to managerial
ineptitude. Will mismanagement hurtle it towards fiscal dilemma and further
alienation of its mortgage holders, or will it turn the corner, back to a more
historical norm?
Continue reading "Going Bankrupt?"
Posted by Patent Hawk at 7:45 PM | The Patent Office | Comments (21)
Fitless
The
antitrust raver FTC has decided not to challenge a reverse-payment agreement
between UCB, owner of
4,943,639, and generic drug makers Mylan, Dr. Reddy's Laboratories, and
Cobalt Pharmaceuticals. '639 claims an anti-epileptic drug that UCB markets as
Keppra.
Posted by Patent Hawk at 1:21 PM | Patents In Business | Comments (0)
March 22, 2009
Dissolved
Last
week's CAFC showdown over inventorship highlights the foolery of
first-to-invent, an anachronism indulged in only by the U.S. All other countries
in the world use a first-to-file priority system. The next-to-last to abandon
first-to-invent was the Philippines. In this episode, Henkel battled
Procter & Gamble over a dishwater detergent fizzie.
Posted by Patent Hawk at 11:59 PM | Prosecution | Comments (10)
Frivolous
E-Pass
sued 3Com/Palm for infringing
5,276,311, claiming a multi-function card. E-Pass then went after Visa and
PalmSource. The district court consolidated the cases, then granted summary
judgment of non-infringement because E-Pass couldn't show all the claimed steps
being practiced. E-Pass also got slapped for sloppy pre-filing investigations
and "repeated misconduct throughout the litigation," awarding attorneys fees and sanctions. E-Pass appealed, compounding its trouble.
Posted by Patent Hawk at 8:00 PM | Case Law | Comments (0)
March 20, 2009
Procedural Kowtow
The
CAFC considers most everything a matter of law. Substance/facts are a legal
inconvenience best boxed so that the entire container can be subject to
rule-of-law disposition. With that mindset firmly entrenched, a confusion
between substance and procedure is natural. So it was in Tafas v. Doll,
formerly Tafas v. Dufas. At least the CAFC still ponders whether rules
conflict with laws, though "consistency with the Patent Act is not the
touchstone of whether the rules are procedural or substantive."
Continue reading "Procedural Kowtow"
Posted by Patent Hawk at 1:45 PM | The Patent Office | Comments (28)
March 19, 2009
Screen Door
Judge Linn, concurring in Larson v. Aluminart, observed that the CAFC
"has significantly diverged from the Supreme Court's treatment of inequitable
conduct and perpetuates what was once referred to as a "plague" that our en banc
court sought to cure in Kingsdown Medical Consultants, Ltd. v. Hollister Inc.,
863 F.2d 867, 876 n.15 (Fed. Cir. 1988) (en banc) (quoting Burlington Indus.,
Inc. v. Dayco Corp., 849 F.2d 1418, 1422 (Fed. Cir. 1988) ("[T]he habit of
charging inequitable conduct in almost every major patent case has become an
absolute plague."))."
Continue reading "Screen Door"
Posted by Patent Hawk at 2:10 PM | Inequitable Conduct | Comments (4)
March 18, 2009
Kindled
Discovery
Communications, parent of the Discovery
Channel and Animal Planet, has
asserted
7,298,851 against Amazon's
Kindle electronic reader. '851 was filed in September 1999, a CIP, and
issued November 2007. A goodly amount of cited art. The '851 claims are rather
well drafted, with many various dependent claims, but are nonetheless open to
obviousness attack. Owing to the popularity of the device, the press will be
following what is otherwise a mundane case. Suit filed in Delaware, Discovery's
home turf.
Posted by Patent Hawk at 3:10 PM | Litigation | Comments (8)
March 17, 2009
Canned
Crown
Packaging and Rexam Beverage Can are trying to pop patents on each other. Crown
tried to crown Rexam with
6,935,826, while Rexam counterclaimed to cane Crown with 4,774,839. Both
came a cropper in summary judgment of non-infringement. From the appeal came a
squeal of "no deal," with a toot of there being a dispute in fact.
Posted by Patent Hawk at 11:21 PM | Claim Construction | Comments (0)
Presumption of Innovation
US patent rights have gone the way of "innocent until proven guilty" as our country plunges headfirst into a deep cavern of morally gray, with a permeating attitude of destruction over creation. The founding principal of making every attempt to protect intellectual property has degraded into making every attempt to control and limit that protection, while completely forgetting "to promote the progress of science and useful arts".
Continue reading "Presumption of Innovation"
Posted by Mr. Platinum at 10:06 AM | The Patent System | Comments (10)
March 16, 2009
Baby Gorilla
Matt
Buchanan on
Promote the Progress has a tidy analysis of
Google's
self-interest in patent reform. Matt makes two points: 1) as a youngster (a
decade-old company), Google has no patent experience other than being sued. 2)
Google already has monopoly power. Well put by Buchanan: "What can strong patent
protection offer to Google, as a patent owner? Nothing more than spikes on the
end of a giant club it already owns."
Posted by Patent Hawk at 7:48 PM | The Patent System | Comments (5)
Danger!
Intel
warned AMD today that attempting to transfer their patent cross-licensing agreement to
AMD's manufacturing spin-off, GlobalFoundries, was a violation. Intel considers
GlobalFoundries a separate company. AMD owns a 34.2% share of GlobalFoundries,
with 50% voting rights. This dispute, heading now for mediation, follows
unsuccessful negotiation between the two, and should be
viewed against the backdrop that AMD sparked multiple antitrust investigations
of Intel,
which are still ongoing.
Posted by Patent Hawk at 7:20 PM | Patents In Business | Comments (2)
Black Kettle, Says Pot
The patent office is barking about its brethren offices worldwide. John Doll, acting alpha dog, announced that "the USPTO has noticed a significant number of international applications filed in the United States Receiving Office (RO/US) under the Patent Cooperation Treaty (PCT) where the applicant has chosen an International Searching Authority (ISA) which is not competent for the subject matter of the claimed invention" ... not to mention the countless US applications received where applicant didn't even have a choice.
Continue reading "Black Kettle, Says Pot"
Posted by Mr. Platinum at 12:26 PM | Prosecution | Comments (1)
Campaign
In
case you haven't noticed from the last two entries, patents as a scourge is
singing hot across the wires, the mainstream press replete with pleas from
well-oiled machines that something must be done. In the months ahead, expect
more of a focus on how gutting patents will "save jobs." Congress must act to
get the patent stormtroopers back on their feet.
Posted by Patent Hawk at 12:42 AM | The Patent System | Comments (6)
Distortion
"Patents
are not ordinary assets; they are options to litigate. While patent lawyers and
other intermediaries benefit directly from the scope and scale of IT patents,
that volume represents potential liability for companies that market useful
products. Most patents belong to others, and the sheer volume obscures the
patent landscape, limits the ability to evaluate patents and inevitably leads to
inadvertent infringement." - lobbyist Ed Black of the Computer and
Communications Industry Association, in the
Silicon Valley Mercury
News.
Posted by Patent Hawk at 12:19 AM | Patents In Business | Comments (8)
March 14, 2009
Too Far
The
cheesiest propaganda has a "gee-whiz, that ain't right" flavor. The
rubes eat it up. So, whoever bothers to read the oxymoronic
Christian Science Monitor is in for a treat. Correspondent James Turner
gingerly spews gosh-darn hogwash, aided by an addled
Daniel Ravicher, anti-patent
kid wonder. "We have too many patents being granted," Danny sings. Apparently,
Ravicher hasn't checked the allowance rate in a few years. Or maybe he has, but can't change his
religion despite the facts.
Posted by Patent Hawk at 9:02 PM | The Patent System | Comments (4)
March 13, 2009
Spiked
The best day for ICU Medical in asserting
6,682,509 against Alaris Medical Systems was the day it filed. '509 claims a
needleless valve, used in medical IVs. Herein, a claim construction saga, with a
written description twist, that finds the district court copasetic and ICU
spiked with patent loss, shelling out for the other side's attorneys fees, and
sanctions.
Posted by Patent Hawk at 8:02 PM | Claim Construction | Comments (11)
March 12, 2009
Remedied
Claim 2 of Natures Remedies' herbal weight loss patent
5,945,107 lost
terminal weight before the BPAI, based upon a § 102(b)
prior art application in Demark for clinical testing of an anticipatory compound.
On appeal to the CAFC, the anticipation of the reference was undisputed. The
issue was whether the application "was accessible to the public and therefore a
"printed publication" under 35 U.S.C. § 102(b)."
Posted by Patent Hawk at 4:00 PM | Prior Art | Comments (1)
March 11, 2009
Up in Smoke
Robert Chapman (11/391,897) followed on the heels of Michael Casner
(7,153,966) in his formulation for a synthetic opioid, oxycodone. In a USPTO
interference, Casner knocked out the upstart Chapman on obviousness. On a spiteful
appeal, Chapman tried comeuppance.
Continue reading "Up in Smoke"
Posted by Patent Hawk at 3:52 PM | Prior Art | Comments (1)
March 10, 2009
Jaw
The
usual suspects headed to the Hill today to jaw in the Senate about patent
reform, including representatives from corporations, lobbyists, and academic
stuntman Mark Lemley. The patter was as expected. California Senator Dianne
Feinstein put the writing on the wall about getting to a passable bill,
especially over the highly contentious damages issue: "High tech seems to feel
that they're going to get whatever they want out of this bill. I'm not going to
vote for a bill unless there is reconciliation between the various interests."
Posted by Patent Hawk at 10:30 PM | The Patent System | Comments (7)
March 9, 2009
Continuing Royalty
H. Tomás Gómez-Arostegui, Assistant Professor of Law, Lewis & Clark Law School,
Portland, Oregon -
In eBay Inc. v. MercExchange, L.L.C. (2006), the Supreme Court held that traditional equitable factors apply to injunctions in patent and copyright cases, and that therefore the mere fact a defendant has infringed a patent or a copyright does not necessarily mean a final injunction must issue. In the three years since, lower courts have denied final injunctions more frequently than before and are now struggling with what relief, if any, to give prevailing plaintiffs in lieu of an injunction. Some courts permit plaintiffs to sue again later. But most award prospective relief to plaintiffs--sometimes a lump-sum damages award or more commonly a continuing royalty--to compensate plaintiffs for the defendant's anticipated post-judgment infringements. Plaintiffs often object to prospective-compensation awards as constituting compulsory licenses.
Continue reading "Continuing Royalty"
Posted by Patent Hawk at 8:44 PM | Damages | Comments (0)
March 8, 2009
Reexamination
The validity of a granted patent may be challenged before the USPTO at any time during a patent's life. There are two types of
reexamination: ex
parte and inter partes. Both start by petition to the Office,
with the petitioner citing "a substantial new question" of patentability in the
form of prior art. The older ex parte form comprises a one-shot injection
of prior art. Inter partes reexamination, introduced in 1999, affords the
petitioner continued kibitzing. At a cost.
Continue reading "Reexamination"
Posted by Patent Hawk at 10:47 PM | Prosecution | Comments (2)
Non-Contributor
A
co-inventor is no inventor who adds nothing to a patent but the prior art,
so the CAFC ruled last week. Though precedential, the appeal panel ruling is
nothing new either. This in a case where a vehicle parts maker, Natron, sued its
suppliers for patent infringement over a car seat with massage effect.
Continue reading "Non-Contributor"
Posted by Patent Hawk at 12:43 PM | Case Law | Comments (1)
March 7, 2009
Already Stewed
Serial
patent infringers banded together
years ago in a determined siege to bribe Congress to pass new legislation.
Consider that the courts have been patents' pressure cooker in recent years, and
those effects need a longer view before jumping into the deep end with more
radical changes. The Innovation
Alliance has
compiled a helpful synopsis of rulings by the high courts since 2006, when
the courts started reacting to political pressure from the well-heeled infringers
being impinged upon.
Continue reading "Already Stewed"
Posted by Patent Hawk at 8:15 PM | The Patent System | Comments (1)
March 6, 2009
Marked Marketing
Lewis
Ferguson et al filed a patent application claiming marketing methods, and,
really, the pits of vagary, claims of a "paradigm for marketing." The prosecutor
needs to have his head examined. The examiner rejected the 68 claims under prior
art and indefiniteness. On appeal, the BPAI blew that off, and put up a § 101, a
la Bilski.
The CAFC appeal comes as no surprise, but some delight, at least in a scathing
concurrence.
Continue reading "Marked Marketing"
Posted by Patent Hawk at 9:22 PM | § 101 | Comments (0)
March 5, 2009
Qualifications
Roberta
Morris of Stanford Law School has prepared a
mock application form for
Director of the USPTO. It's nicely done, and misses the large point.
Whatever checkboxes of experiential minutiae a Director candidate may claim, the
challenge is conceptual, and managerial. Does a candidate really understand
what the patent office is supposed to do - namely, carefully inspect
applications, so as to grant based upon merit, within the boundaries defined by
statute and case law? Not treat patents as a political hot potato, as Dudas did. And does the candidate have a sense of resource, rule, and
people management, to optimize productivity while not succumbing to
production-line mentality? All the experience in the world won't clue someone
conceptually clueless, and a relative patent greenhorn with the right headset
might do just fine.
Posted by Patent Hawk at 9:53 PM | The Patent Office | Comments (4)
Expert
O2
Micro sued Monolithic Power Systems, Asustek, and Advanced Semiconductor
Manufacturing over
6,396,722. '722 goes to efficiently powering computer laptop screens. The
technology is intricate and complex. So complex that the district court judge
declared: "On the technical issues here . . . I find this extremely difficult to
understand. And the notion that a jury is going to understand it, to me, is
foolishness." So, though O2 objected, the judge had the parties agree on an
expert that "would essentially, I can't say decide the case, but would testify
and [the jury] would be told 'This is the court's expert on these points.'"
Posted by Patent Hawk at 1:08 PM | Case Law | Comments (0)
Hanging Tree
Software
Tree has asserted the fortified
6,163,776 against HP, Red Hat, Genuitec and Dell. '776 claims data exchange
between an object-oriented system and a relational database. Red Hat is on the
hook for willfulness, as it was aware of the patent as prior art for technology
it's being sued for in another patent suit. Bad juju for Red Hat.
Continue reading "Hanging Tree"
Posted by Patent Hawk at 12:14 PM | Litigation | Comments (1)
March 4, 2009
Cacophony by Design
[While
other blogs cover the entrails, allow me to get to the heart of the beast.]
Congress comprises a cabal of sole proprietorships - Senators and
Representatives. The base wage is not great; private practice pays better. Oh,
but the perks - tremendous ego-satisfying attention tied to the illusion of
power, and the ability to soak lobbyists and the rarely enthused electorate of
funds for a lavish lifestyle, plus fuel for the engine to turn the crank for
another round in the rigged game called "election."
Continue reading "Cacophony by Design"
Posted by Patent Hawk at 4:29 PM | The Patent System | Comments (0)
Jumpy
Northern
California district court Judge Ronald Whyte today upheld the
March 2008
jury verdict that Rambus' failure to disclose its patent plans to a
standards group (JEDEC) meant nothing: "Consistent with the jury's finding, the
court agrees that Rambus made no misrepresentations and uttered no deceptive
half-truths to JEDEC and its members." This in a memory patent enforcement case
against Korea-based Hynix and others. Share prices for Rambus stock shot up 9%
on the news.
Posted by Patent Hawk at 3:12 PM | Litigation | Comments (1)
March 3, 2009
Guitar Zero
High from whiffing its own fumes of patent power, guitar maker
Gibson
threatened, and then sued, retailers selling Activision's
Guitar Hero video game. Activision had
the vision to activate a
declaratory
judgment action. Sizzling with the right riffs, the judge in the case late
last week rocked Gibson's patent potential into the boneyard, as the patent only
applies to analog output, the judge decided. "As a general observation, no
reasonable person of ordinary skill in the relevant arts would interpret the '405
patent as covering interactive video games." Under Gibson's construction,
Central California Judge Mariana Pfaelzer noted, the claims could apply to
pressing a "button of a DVD remote... to a pencil tapping a table." Rock on.
Posted by Patent Hawk at 4:07 PM | Litigation | Comments (1)
Excitement
Vital
legislation was introduced today in Congress - in the Senate, sponsored by
Senators Leahy, and Hatch, along with hangers-on for hand-outs Schumer, Crapo,
Whitehouse, Risch, and Gillibrand: the "Patent Reform Act of 2009." The
legislation is vital to keep funds flowing into the coffers of Senators and
Representatives, who have a lifestyle to maintain to which they have become
accustomed.
Posted by Patent Hawk at 2:32 PM | The Patent System | Comments (9)
March 1, 2009
Whoopspool
In
January 2008, Whirlpool put LG Electronics before the ITC, and in Delaware
district court, for infringing five refrigerator patents. The best day for the
plaintiff was the day they filed, at least before the ITC. As the flowers
bloomed in May, Whirlpool's wilted, dropping two, as Whirlpool conceded their
invalidity. September blew in. Leaves fell, as did two more patents before the
ITC, as LG agreed to tweak its design. This past week, the ITC administrative
judge crushed the ice bin patent assertion for noninfringement (6,082,130).
Meanwhile, the district court case remains scheduled for trial March 2010. At
least for now.
Posted by Patent Hawk at 2:19 PM | Litigation | Comments (0)
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