March 31, 2009
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.
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.
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.
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.
March 30, 2009
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."
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.
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.
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.
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.
March 25, 2009
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.
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.
March 24, 2009
Corruption is human nature, but that doesn't shoo the stink from especial weasels. Herein, another tale of litigant misconduct, omitting crucial discovery material that would have gone a long way in proving noninfringement. And, in an ongoing chronicle of feeble-mindedness at the CAFC, Judge Newman, by far the sharpest tack in the box, points out the fly in the ointment of the majority.
March 23, 2009
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?
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.
March 22, 2009
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.
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.
March 20, 2009
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."
March 19, 2009
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."))."
March 18, 2009
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.
March 17, 2009
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.
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".
March 16, 2009
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."
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.
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.
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.
"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.
March 14, 2009
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.
March 13, 2009
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.
March 12, 2009
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)."
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.
March 10, 2009
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."
March 9, 2009
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.
March 8, 2009
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.
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.
March 7, 2009
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.
March 6, 2009
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.
March 5, 2009
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.
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.'"
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.
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."
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.
March 3, 2009
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.
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.
March 1, 2009
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.