April 30, 2009
David Simon, Chief Patent Counsel at Intel, in testimony today before the House about pending patent legislation, comes off as a raving sociopath. Let's begin with his corporate arrogance, a pandemic disease among his Coalition brethren. "As one of America's leading innovators, Intel recognizes the critical importance of a strong and effective patent system that protects actual inventions and thereby provides an essential incentive for inventors... Too often, the patent law... is being used to extract unjustified payments from true innovators..." And who might the "true innovators" be?
"A strong and predictable patent system fosters the collaborative development and funding required to transform basic research into commercially viable technologies and stable, high-paying jobs. It is troubling to many small technology companies that, at a time of such grave economic uncertainty, Congress would seek to fundamentally alter the economic structure of our nation's patent system." - Bernard J. Cassidy of Tessera, telling the House Judiciary Committee what boneheads they are with their crappy patent bill, but in a politic way, of course.
On the Make
Apple is trend setting again: following the model of Qualcomm, and more recently, AMD, into design house and patent provocateur, leaving the nasty risk of manufacturing to cost-conscious Asians. Apple has been hiring semiconductor engineers for many moons, building a cadre for designing next-generation chips. No fabrication intended. The only hard-shell cover for innovation is patent protection.
April 29, 2009
Revolution Eyewear myopically started a patent fight with competitors, including Contour Optik. Revolution's assertion went blind, but Contour saw 20/20 money with RE37,545. On appeal, "the only matter left in this lawsuit is Contour's '545 patent infringement action."
Sen. Patrick Leahy (D-Vt), Senate Judiciary Chairman, attempts to sew a silk purse from a sow's ear with proposed patent legislation, disingenuously spinning in Business Week that it gives "ingenuity freer rein." "It has been more than 50 years since Congress significantly updated the patent system." In truth, Leahy wants to go backwards, before the 1946 Patent Act, when apportionment of damages was so wrecking the patent system that the Patent Commissioner at the time called it "one of the sorest spots in the enforcement of the law in the United States."
April 28, 2009
In the Wind
The Open Invention Network, Linux advocacy group, is publicly tilting at the big windmill: looking for prior art to invalidate the three file management patents that Microsoft asserted against TomTom. Keith Bergelt, CEO: "The patent vetting activity offered by the Linux Defenders portal offers a unique opportunity to bring to bear the collective knowledge, passion and ingenuity of the Linux community to better explore the validity of the patents..." If the guy was looking for something more than window dressing for the penguin geeks, he'd give amateur hour short shrift and call Patent Hawk.
April 27, 2009
"A patent by its very nature is anticompetitive." So the CAFC remarked last October in allowing reverse payment by Bayer to generic drug makers, so that Bayer could keep its patented monopoly over antibacterial Cipro® for a bit longer. Stanford law professor Mark Lemley has penned a petition to the Supreme Court, to lay the burden of overturning reverse payments before the august body, this nation's numero uno woolly bully. Lemley thinks the CAFC ruling "contains fundamental errors of economic reasoning and would shield many anti-competitive agreements from the reach of antitrust law, causing great harm to competition."
Skipping church to tithe in another way, on Sunday, Qualcomm agreed to pay Broadcom $891 million to settle their patent dispute. $200 million passes hands next quarter. Its kitty bulging, the Wall Street Journal thinks Broadcom "primed to start executing on its wireless strategy."
Humans have grossly overfished the oceans, all the while treating the seas as one huge toilet. Tuna, for example, is so polluted with mercury that even the U.S. government warns against its frequent consumption. But let that not affect claim construction in a patent case. As the appeals court put it: "The tuna fish enjoyed by U.S. diners is often caught in and shipped from distant locations. Given the relatively long travel time required to deliver tuna to U.S. consumers, importers seek out ways of preserving the fresh look and taste of their fish. This case involves a patent dispute that centers on a method of curing tuna fish meat using cooled smoke."
April 25, 2009
In the 18th century, America was the world's leading intellectual property thief: appropriating copyrighted works and infringing patents as part of its economic development. That same disapprobation has been applied to China in the past decade, as it was to Japan in the 1950s. China only started allowing intellectual property in 1985. Today, it leads the world in patent applications: over 800,000 in 2008.
April 24, 2009
Mind Enterprises successfully sued Vast Resources for its patent claiming a lubricious glass rod with a bulbous tip, the patent titled "Sex aid". On appeal, the defendant was able to convince the CAFC that there was nothing new to getting nude with attitude, even if the gist had a probing assist. The legal gist: mere substitution of materials is obvious.
April 23, 2009
For the first time, the USPTO "issued more patents to foreigners than to Americans," reports Business Week. "[T]he slippage comes amid recent reports that show the U.S. losing its edge when it comes to innovation." South Korea, China, and Japan are becoming more productive inventors. "All told, American inventors received 92,000 patents in 2008, down 1.8% from the year before and a rise of just 1.4% over the past decade. Meantime, patients issued to foreigners rose 4.5%, to 93,244, in 2008 and 28.6% since 1998."
April 22, 2009
According to a recent poll of small and mid-sized computer technology companies, 64% were interested in buying patents this year, up from a trough of 32% last year. Of those responding with interest in acquisition, 39% reported as planning to buy, with 25% considering the possibility. The first hurdle is quality assessment and valuation.
Qualcomm announced that it is in "advanced" talks to settle its long-running patent war with Broadcom. Both sides have taken hits and scored wins, but Broadcom has chalked up a better score to date. Qualcomm postponed it Q2 earnings announcement until next Monday. Sounds like it needs some good news to cover some bad news.
April 21, 2009
Peeing on the Pool
Four companies pooled patents covering the industry standard for music and data CDs. The standard, set in the early 1990s, was codified in the "Orange Book." The Orange Book standard created compatibility for CD readers and writers, thus creating a single market. Consumers could buy CDs, knowing that they would work with any player, because of the Orange Book standard. If you want to manufacture a CD writer, you have to first pop to the one-stop shop for a patent pool license.
April 17, 2009
Gary Odom was a software developer for 20 years, and had some patentable ideas beginning in the late 1980s, but lacked the resources to patent them. When he got a chance to work in the patent field, he jumped on it. Months after going to work for a patent boutique in Portland Oregon, he started filing, pro se, patents of his own inventions, starting with modular software construction, then web personalization. Looks like his third patent family might worth something. Odom invented active tool groups, which Microsoft popularized with its Office 2007 Ribbon. In an ongoing licensing campaign, having previously filed suit against Microsoft and Autodesk, today Odom filed against 28 other infringers.
April 16, 2009
"Five years ago, a group of 15 corporate giants, which ironically had built their success on patents but now rely primarily on their market power and acquisitions for growth, wanted to weaken the U.S. Patent System and the protection it offered the new generation of innovators. These companies are trying to retain their position by pulling the economic ladder up behind themselves, and by forcing guaranteed access - on the cheap - to technology developed by others." - Dan Leckrone of the TPL Group, in the San Francisco Chronicle.
Washington Mutual (WaMu) is a poster child of the mortgage-lending irrational exuberance that led to the current economic depression. A run on the bank last September led to its wrenching government-mandated rescue by JP Morgan Chase. WaMu was the biggest bank failure in U.S. history, and was sold in a hastily arranged wamu-bam-thank-you-man auction. WaMu is now suing the FDIC, for selling it off for only $1.9 billion, claiming it had no such right. Meanwhile, JP Morgan has filed its own suit, seeking title to disputed WaMu assets, including its tiny portfolio of eight patents granted and pending, as well as over 300 domestic and international trademarks, and 1,300 Web domain names. The Delaware district court judge handling WaMu's bankruptcy case has given WaMu permission to hire a consulting firm to valuate the bank's IP assets.
Potato Row to be Hoed in Seattle
In the case of Pace International LLC v. Industrial Ventilation, Inc., currently planted in Washington State, Judge Lasnik recently denied Defendants' motion to transfer the case to Idaho, despite all the spuds being based there.
April 14, 2009
In 2001, smokeless tobacco maker Star Scientific sued R.J. Reynolds over patents for lower carcinogens while curing tobacco. Maryland district court Judge Marvin Garbis found Star guilty of inequitable conduct. In a landmark ruling, the CAFC overturned. Then, in hopes of further delay, RJR tried to put the patents out to pasture on reexam. But trial is set for May 18, while the reexam smolders on. The most recent curveball from RJR: a motion to deny Star a chance to present its damages theory to the jury.
Low Blow to MoFo
Last Wednesday, former Morrison & Foerster client Ecast sued MoFo for no mojo in Ecast's to-and-fro with Arachnid and Rowe, who had sued Ecast for jukebox patent infringement. Ecast, claiming legal malpractice, wants its money back: a "staggering" $4.8 million in attorneys fees for what it considers a hopelessly botched defense.
April 13, 2009
The USPTO is battening the hatches for the turbulent waves of the current economic storm. Herein, today's "USPTO Weekly Extra - Budget Update: Supplemental on Training and Other Issues."
April 12, 2009
The Garden of Invention
The Garden of Invention by Jane S. Smith is a captivating biography of Luther Burbank, esteemed botanist. But more than a biography, as it chronicles the science and business of plants during Burbank's lifetime. Admittedly, the book's appeal relies upon one's interest in the topic. For me, the most fascinating chapter was the last, that plants were not patentable in Burbank's time. That last chapter, "The Garden as Intellectual Property," narrates the bramble that led to the patenting of plants, beginning with the Plant Patent Act of 1930. Well informed, expertly written and illustrated, for one looking to flower with knowledge about horticulture, The Garden of Invention is a lovely bloom.
Double Patenting Dilemma
Takeda Pharmaceutical filed a patent application for cephem antibiotic compounds, and the process for making those compounds, in Japan, in December 1974. Takeda in 1975 filed corresponding applications in the UK and US. The US family started with 4,098,888 & 4,298,606. In 1990, Takeda filed for what became 5,583,216, which covered a process for making the compounds claimed in '888 and '606. Anonymous requests for reexamination of '216 led to a double patenting dilemma, which the appeals court resolved badly, not thinking through the implications of its ruling.
April 11, 2009
Burning the Ships
Marshall Phelps, Microsoft VP for IP policy and strategy, writes a first-person account of Microsoft coming to Jesus about patents in the self-serving book Burning the Ships. It's a corporate mea culpa sleight of hand, a pseudo-folksy self-absorbed Business Week as People magazine for business people book. Americans love to read fiction posing as fact about naughty boys coming clean and making good. What Phelps effects is classic propaganda, by admitting past mistakes and claiming redemption, though neither accurately so, and never explaining the meaning of the transformation when Microsoft retains its same old patterns of behavior. In other words, what Phelps never does is cut the crap.
April 10, 2009
Mark Felix sued car maker Honda for infringing 6,155,625, claiming a pickup truck with a storage compartment, like a car trunk. Felix had no horsepower for broad claim construction, and so died on the road: the district court granted summary judgment of noninfringement. In appeal affirmation, a reminder of the nuance that prosecution estoppel goes to subject matter, not a claim per se.
Acting Director John Doll sent this memo around the shop: "As you know, the USPTO has made a number of difficult budgetary decisions this fiscal year. Among these challenging decisions is that to limit - as detailed in the attached memorandum - even revenue-generating overtime. All Patents production, revenue-generating overtime will be limited, effective Sunday, April 12, 2009."
Singapore-based Uniloc sued Microsoft in 2003 over 5,490,216, which claims a system for software product activation, which Microsoft uses in its Windows operating systems (XP, Windows Server 2003) and Office (XP version). '216 has a 1992 priority date. Wednesday, a Rhode Island jury found the patent valid, and Microsoft willfully infringing. The tab: $388 million, with $194 million attributable to foreign activations.
April 9, 2009
Taking a wide-angle lens to patent enforcement, International Patent Litigation is a knowing compendium of litigation practices around the world, including numerous European countries, Japan, and the United States. Alas, China is not covered. Editor David Wilson opens the book on "developing a strategy and managing international patent litigation." From there and onwards, a wealth of information.
April 8, 2009
"In 2000, TransCore sued a competitor, Mark IV Industries, for infringement of several TransCore patents. That action was resolved by a settlement agreement, in which Mark IV agreed to pay $4.5M in exchange for an unconditional covenant not to sue and a release of all existing claims." Then TransCore sued again.
April 7, 2009
From R&D to Patentee
While big IT whines to Congress about patents being unfair to them, in the teeth of a deep recession they are not remiss to keep fueling the fire of genius. From the Wall Street Journal:
Wary of emerging from the recession with obsolete products, big U.S. companies spent nearly as much on research and development in the dismal last quarter of 2008 as they did a year earlier, even as their revenue fell 7.7%, according to a Wall Street Journal analysis.
April 6, 2009
"Patent laws shouldn't pick winners and losers. Current law is not fair to IT, so something has to change... The current law is too easily abused to the detriment of high-tech. That has to change." - Silicon Valley MercuryNews. The patent laws must be slanted to favor corporations over inventors, just as financial shenanigans are socialized for the citizenry to pay, while banks too big to fail are subsidized, with the resulting profits privatized. Serve your country, fellow plebeians, so it can serve the rich.
FotoMedia is on a tear over web-based photo sharing. Four suits have been filed, two in mid-2007and two the middle of last year, totaling 66 defendants. 6,018,774; 6,542,936; and 6,871,231 asserted. Defendants are settling like flies on stink. Well over a dirty dozen have settled, the latest being Kaboose, Bubbleshare, and BabyZone. Makes you wonder if FotoMedia is giving a discount to companies with goofy names. All settlements hush-hush and on the Q.T., naturally.
April 5, 2009
Figuring infringement damages can be tricky. But, as with everything else, one can also be stupid about it. Heeling Sports successfully, by default judgment, sued footwear importers and distributors for infringing patents for roller skate shoes. When it came to damages, the skating terrain turned problematic.
Mapping the Territory
A patent is supposed to be an instruction manual. 35 U.S.C. §112 ¶1 requires an inventor to describe her invention "in such full, clear, concise, and exact terms" that it would "enable any person skilled in the art to which it pertains." Windbags who fail the concise requirement are seldom punished. Clarity is as often observed in the breach as not, with infrequent repercussion. Teasing out meaning is tolerated - pointing out obtuse passages for support is not regarded untoward. But fail "full" or "exact," and you're in a peck of trouble. Herein, a broad claim of an early advance falls short. And in an invigorating dissenting concurrence, the sin of not enabling enablement.
April 3, 2009
Marek Kubin and Raymond Goodwin sought "a claim to a classic biotechnology invention - the isolation and sequencing of a human gene that encodes a particular domain of a protein." The BPAI found it obvious. On appeal, the CAFC wound back the clock to an earlier precedent of "obvious to try" that will march through time. The crucial inquiry: how good a pointer was the prior art?
April 2, 2009
A decent patent turns junky when its holder sues without due diligence. Joseph Kirsch had sent letters to Canon and Xerox about his computer fax patent, 4,816,911, in 1995. Canon didn't bother to respond, but Xerox told Kirsch no license was needed. In 2000, Kirsch sued Xerox, Canon, Ricoh and Toshiba.
Sen. Orin Hatch (R-UT), co-sponsor of the proposed Senate Patent Act, before walking out on the Executive Meeting of the Judiciary Committee meeting in a hissy fit: "My primary purpose for doing this bill was to improve patent quality and limit unnecessary and unproductive litigation costs. I do not believe the bill, in its current form, accomplishes those goals." Sen. Leahy (D-VT), Committee chair, attempted to cajole him from leaving, by sympathizing that he too would prefer gutting damages for patent infringement, which the watered-down version before the Committee lacked.
April 1, 2009
Paul J. Bryan filed a "patent application [which] describes a 'game board and game having a touring band theme.'" He claimed "a game board and game." The examiner found an obvious combination of "a musical band-themed board game with nearly the exact structure that Mr. Bryan claimed." The examiner's rejection was upheld on BPAI appeal. Bryan took it to the CAFC. Apparently, without legal advice.
Jack Bennett sold some patents and continuations to Vector Corrosion Technologies for $25,000. He listed them. He left a CIP out, 6,217,742. A competitor, Euclid Chemical, sought declaratory judgment that Vector didn't own '742. Slapdash Ohio district court Judge Boyko ruled that the contract assigned the whole family to Vector. Euclid appealed. Another CAFC 2-1 split decision, with Judge Newman right on, and her colleagues laughable fools.