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May 29, 2009
Scam Artists
Class
act Alysha Schertz (pictured) at the
BizTimes Milwaukee brings the locals up to snuff on the patented skanky in "Patent
trolls try to rip off high tech firms." "Scam artist patent trolls can
create major headaches for some companies."
Continue reading "Scam Artists"
Posted by Patent Hawk at 9:13 PM | Patents In Business | Comments (5)
Still in Diapers
The
impulse to see what you can get away with strikes infants of all ages. In
Boss Industries v. Yamaha Motor, both sides displayed a touch of the
syndrome. Boss sued Yamaha for infringing three snowmobile seat patents. Boss
lost on claim construction; easily affirmed on appeal. Any decent due diligence
by Boss and they would have never brought suit. On the other side, as the CAFC
opined, "Yamaha's discovery practices were less than commendable... This type of
conduct during litigation is unacceptable and reflects a lack of respect for
both the opposing party and the court." (CAFC
2008-1311)
Posted by Patent Hawk at 8:50 PM | Litigation
Breaking
Every Penny Counts is running a
problematic enforcement campaign with a bankrupt
patent family. Florida district court Judge Paul A. Magnuson saw through claim
15 of
6,112,191, which ostensibly claims an apparatus, but really claims a method,
as not being patentable subject matter. Bilski takes another bite.
Posted by Patent Hawk at 2:51 PM | § 101 | Comments (5)
May 27, 2009
Projection
The
hit-or-miss ITC scores another miss in its handling of Norgren's patent
assertion against SMC. An administrative law judge (ALJ) found non-infringement
on a faulty claim construction, and the Commission let the matter drop. The CAFC
had to get the flow going again for Norgren.
Posted by Patent Hawk at 9:40 PM | ITC
Friends Again
SanDisk
and Samsung have renewed their patent cross license for another seven years.
Plus, Samsung will provide SanDisk with a guaranteed slice of its flash memory
output. Punters applauded SanDisk in particular, with shares flashing 15%.
Posted by Patent Hawk at 10:36 AM | Patents In Business
May 26, 2009
Typo
In
1991, Peter Hochstein and Jeffrey Tenenbaum came up with the idea of playing
networked video
games and chatting simultaneously.
5,292,125 resulted. In 2002, Microsoft launched an online Xbox gaming
service that did just that. Litigation ensued in 2004. Living down to its litigation reputation, Microsoft
dumped 143,733 discovery document pages on the other side, five weeks late, with
no index. The delay was prompted by Microsoft objecting to a discovery request
because of a typo, when Microsoft knew all along what was being asked for.
Posted by Patent Hawk at 9:33 PM | Litigation
May 25, 2009
Exercise
In
the American regime, claim construction is an intricate art form. At times, a
claim construer must ponder context in view of other claims, and read the entrails of prosecution history
to divine meaning. Herein, real-time isn't instantaneous, it has realistic slack. And,
as always, singular may be plural unless proscribed.
Posted by Patent Hawk at 2:12 PM | Claim Construction | Comments (10)
Extraordinary No More
"The
writ of mandamus is available in extraordinary situations to correct a clear
abuse of discretion or usurpation of judicial power. In re Calmar, Inc.,
854 F.2d 461, 464 (Fed. Cir. 1998)." Not any more. The high courts are regularly
disingenuous in attempting to maintain a myth of continuity. Before the slippery
slope greased by the Fifth Circuit's
Volkswagen matter, the grease
supplied by perceived political pressure, and the subsequent CAFC patent case of
TS Tech, transfer motions for patent cases away from a plaintiff's
chosen venue regularly failed. Now as often as not they succeed. Herein, a case
in point.
Continue reading "Extraordinary No More"
Posted by Patent Hawk at 12:28 AM | Litigation
May 23, 2009
Bracing
A
patent license agreement is only as tight as its drafting. CoreBrace owns
7,188,452, claiming a brace used in making earthquake-resistant steel-framed
buildings. Star Seismic took a non-exclusive license to '452 from the inventor,
granting Star the right to "make, use, and sell" licensed products. No mention
was made of a right to have a licensed product made by a third party. Star
having a third party manufacture its licensed products sparked a dispute.
Posted by Patent Hawk at 11:25 PM | Patents In Business
Change A'Coming?
Gene Quinn relates insight from
Mark Malek, fellow attorney at Zies
Widerman & Malek, who spoke recently with an anonymous examiner who
"told Mark that about 2 weeks ago management told the examining corps that they
need to start issuing patents." Possibly a bit of sunshine in an otherwise
dreary era at the PTO.
Posted by Mr. Platinum at 8:30 PM | The Patent Office | Comments (29)
May 22, 2009
Overreaching Thoughtlessness
Philips
Lumileds went after Epistar at the ITC over
5,008,718 and succeeded. Because the ITC didn't even let Epistar argue prior
art invalidity. And the ITC went so far as to block importation of "products by
entities not named as respondents before the ITC." On appeal, the CAFC affirmed
the Commission's claim construction, but remanded for shutting Epistar out of
any defense, not to mention its overbroad exclusion order.
Continue reading "Overreaching Thoughtlessness"
Posted by Patent Hawk at 5:04 PM | Claim Construction
May 21, 2009
Chipper
Overturning
an administrative law judge's mistake, the ITC found Tessera patents infringed
by six rivals: ATI Technologies, Freescale Semiconductor, Motorola, Qualcomm and
Spansion (STMicroelectronics NV). Tessera prompted the action in 2007. The ITC
issued a limited exclusion order, prohibiting the importation of semiconductor
chips that infringe several Tessera patents, and further issued cease-and-desist
orders to Motorola, Qualcomm, Freescale and Spansion. Motorola mused that it may
exercise an option agreement with Tessera to take a patent license. Tessera
shares soared 17.7% as punters exercised a little irrational exuberance.
Posted by Patent Hawk at 7:04 PM | Patents In Business
Linear
Linear
Technology "filed a complaint with the United States International Trade
Commission ("the Commission") under section 337 of the Tariff Act of 1930, 19
U.S.C. § 1337(a)(1)(B), alleging that Advanced Analogic Technologies, Inc. ("AATI")
imported and/or sold for importation certain electronic voltage regulators that
infringe U.S. Patent No.
6,580,258 ("the '258 patent")." The ITC, randomly competent, made something
of a hash of the matter. It did find some infringement. And so both sides
appealed. Where broad, the ITC's claim construction held up. In the single
instance the ITC construed narrowly, it goofed. But that made all the difference
in infringement.
Posted by Patent Hawk at 6:29 PM | Claim Construction
May 20, 2009
Wow Bow
Leon
Russell once wrote: "Stray dogs that live on the highway walk on three legs.
They learn too slow to get the message." Today, a jury awarded Toronto-based i4i
$200 million for Microsoft's infringing
5,787,449. Last month, Singapore-based Uniloc scored a $388 million verdict
from Microsoft infringing
5,490,216. Oozing denial, but with raucous squeals, Microsoft vows appeals.
Posted by Patent Hawk at 3:26 PM | Damages | Comments (1)
Rumble Strip
4,701,069
claims a road shoulder rumble strip, to alert errant drivers. Dickson Industries
filed a declaratory judgment action against '069's owner, the Patent Enforcement
Team (PET), after PET approached one of Dickson's customers, Midstate Traffic
Controls, for a license. Midstate balked at that, then turned around and sued
Dickson for indemnification. The two settled, prompting Dickson's DJ in Western
Oklahoma, this nation's hotbed for rumble strip patent adjudication.
Continue reading "Rumble Strip"
Posted by Patent Hawk at 1:19 PM | Inequitable Conduct
May 19, 2009
Product by Process
Abbott Labs got into two patent spats with generic drug makers, in different
districts, over
4,935,507, which claims a chemical composition by process, the result being
an antibacterial drug. In one, where Abbott sued, Abbott lost on noninfringement
in summary judgment. In the other, which was started by Lupin as a declaratory
judgment action, Abbott failed to secure a preliminary injunction in
counter-claim. Both losses were from claim construction. The CAFC took them both
on appeal in a single decision, a seminal ruling on product-by-process claims.
Continue reading "Product by Process"
Posted by Patent Hawk at 9:15 PM | Claim Construction | Comments (37)
AE = Accelerated Excuses
Start with a well-designed,
seemingly effective program; add bureaucratic tanglese; top it off with the
ubiquitous "we are always right, as we are the government" mentality, and, what
do you get? The USPTO Accelerated Examination (AE) program in actuality. In a
non-surprising move, the USPTO has rejected numerous otherwise valid requests
for AE on the slightest technicalities. Apparently the easiest way to meet the
goal of disposal within one year is to dispose of many without examination, and
with no regard to fairness.
Continue reading "AE = Accelerated Excuses"
Posted by Mr. Platinum at 5:36 PM | Prosecution | Comments (28)
May 18, 2009
Projecting Junk
The
lament by so-called patent reformers is that pissant patent holders assert junk
patents. Well, so do supposedly respectable companies. Seiko Epson sued
Coretronic for patents related to display projectors for DVD players and
computers. Coretronic counter-claimed with its own patents. Now, thanks to prior
art search by the other side, all seven patents involved have been dropped or
ruled invalid in summary judgment. One of Epson's patents was ruled a clunker in
light of one of its own products.
Continue reading "Projecting Junk"
Posted by Patent Hawk at 7:40 PM | Litigation | Comments (4)
Lacking
Young
CAFC Judge Moore sadly suffered a strange lack of rationality by affirming
Central California's dismissal of a DJ action brought by Autogenomics against
Oxford Gene. As Judge Newman, the CAFC's font of wisdom, put it: "The Federal
Circuit again restricts United States parties from access to our courts when a
United States patent is owned by a foreign entity." Today's ruling was "contrary
to law, precedent, and policy," and will be repudiated.
Posted by Patent Hawk at 2:32 PM | Declaratory Judgment
Tune Hunter
Tune Hunter has set its sights on Shazam for infringing 6,941,275. Shazam, for many portable devices such as the iPhone, lets a user record a short snippet of a song, identifies the song by comparing the snippet with a database,
and gives song information, including title, artist, and album.
Tune Hunter is targeting a host of prey, including Samsung, Apple, Amazon.com, Napster, Motorola,
Gracenote, Cellco Partnership, Verizon Wireless, LG Electronics, AT&T Mobility, and Pantech Wireless
for promoting Shazam. When a company has you in its crosshairs, call Patent Hawk to swoop down and kill the
hunter.
Posted by Mr. Platinum at 10:45 AM | Litigation
Method High
In
re Bilski, the bad brew for method claims, is scheduled to be discussed
by the Supreme Court May 28th. A decision to grant or deny certiorari could be
included in the Court's Orders List as early as June 1st.
Posted by Patent Hawk at 9:52 AM | § 101 | Comments (1)
First to Flunk
A
first-to-file patent priority regime is rationally done using absolute novelty,
that is, no grace period. That is not what Sen. Leahy has for Senate Bill 515,
the currently proposed abomination posing as patent reform.
Hal Wegner
reports on the convolutions involved in Leahy's fantasy version of
first-to-file.
Continue reading "First to Flunk"
Posted by Patent Hawk at 9:44 AM | The Patent System | Comments (6)
May 17, 2009
Outlier
The
cabal misnamed as the Coalition for
Patent Fairness advocates making patent enforcement more tortuous and
expensive than it already is, as well as circumscribing patent holders' basic
rights, such as transfer of ownership. IT shakers Microsoft, Intel,
Hewlett-Packard, Micron and Cisco belong, and all share the distinction of being
top ten patent gatherers in 2008. IBM, the top patent scooper, is the only one
among IT corporate brethren who is not a member of the Coalition, and the only
one which has raked in serious lucre for years through patent licensing.
Microsoft, to its credit, has recently acquired the knack of cross-licensing.
Posted by Patent Hawk at 11:52 AM | The Patent System | Comments (1)
May 15, 2009
View from the Bench
CAFC
Chief Judge Michel spoke at an FTC venue last December, pouring cold water on
those hot and heavy for patent "reform." Junk patents are nothing more than a
gnat in the ointment. There is no litigation explosion. Hope for improvement
from further post-grant review process is fantasy given turnover at the PTO.
Excessive damages are a myth. Judge Michel swats statistically challenged
academicians calculating otherwise. And patent trolls? Give it a rest, Judge
Michel advises. Finally, as anyone with a lick of sense knows, patents are an
intellectual property: "The essential element of property is it is alienable.
You can sell it."
Continue reading "View from the Bench"
Posted by Patent Hawk at 9:52 PM | The Patent System | Comments (10)
Spinach
Going so swimmingly well, it
was getting downright creepy. Claim construction in the can: simple,
straightforward, invincible. After exhaustive search and defendant's invalidity
contentions, no prior art worth spitting on. In the sun on 101.
Still, the chill. It was too easy. Today, thank goodness, divine intervention.
Posted by Patent Hawk at 3:49 PM | Litigation | Comments (12)
May 14, 2009
Dubious
Altana
Pharma sued competitor Teva over
4,758,579, going to an antiulcer drug. Altana asked for a preliminary
injunction. Teva shot back with a decent obviousness argument, so the judge
denied the motion, because it was dubious that the patent would withstand the
enforcement attempt given the "substantial question" of validity raised. The
CAFC agreed.
Posted by Patent Hawk at 9:43 PM | Injunction
The Problem
The
backlog in the USPTO is one enormous statement of managerial incompetence.
Nothing more. Singularly, what the Office has sorely lacked, and still lacks, is
competent leadership. Jon Dudas was the Dubya of patents. For both, this nation
is paying an incredible price, and will for years to come. Unless and until
effective management is on board, with its eye on the ball of examination
quality, and all that entails, all the other recommendations are stillborn to
spurring solutions.
Continue reading "The Problem"
Posted by Patent Hawk at 9:10 PM | The Patent Office | Comments (9)
Unexpected
Procter
& Gamble sued Teva for infringing
5,583,122 after Teva let P&G know it was planning on marketing a generic
version of P&G's osteoporosis drug Actonel®.
Teva had honed its bone of contention that '122 "was invalid as obvious in light
of P&G's expired U.S. Patent
4,761,406," or "invalid for obviousness-type double patenting."
Posted by Patent Hawk at 3:04 AM | Prior Art
May 12, 2009
Witless Fitness
Jonathan
Monti co-invented exercise equipment which he pumped up to
6,932,749 and other patents. Suffering hasty-inventor syndrome, he tried to
interest Fitness Quest (FQ) in his equipment before getting his patent. After
getting the patent, he induced FQ into a declaratory judgment motion with an
accusing letter. His flabby spec led to a losing claim construction, and summary
judgment of non-infringement. But, on appeal, the CAFC gave him a little muscle.
Continue reading "Witless Fitness"
Posted by Patent Hawk at 10:24 PM | Claim Construction
Entitled?
Genetic
manipulation is an expensive research endeavor because it is fraught with
unpredictability. That makes it patentable. One ultimate goal of genetic
research is treating diseases. Especially when an invention offers the prospect
of a cure, the affected diseased, most desirous of the fruits, want the
benefits without paying for the toils of the innovation behind it. Case in
point: a lawsuit, spearheaded by a woman with breast cancer, supported by the
ACLU,
against genetic research pioneer Myriad
Genetics, which has patents on genes related to breast and ovarian cancers,
and against the USPTO, for allowing such patents in the first place.
Posted by Patent Hawk at 9:25 PM | Patents In Business | Comments (2)
May 11, 2009
Quality
IBM's
David Kappos, touted as a possible USPTO Director, testified in March before the
Senate Judiciary Committee: "We believe the quality of patents issued in the
U.S. has diminished, and that the substantial improvements needed to address
this quality crisis are not possible without Congressional action." IBM appears
to be doing its part in reducing patent quality. Its
2009/0119,148 application for "enhancing productivity" claims "1. A method
including: defining, by a user, a time template including a plurality of
predefined time intervals for scheduling meetings; and applying the time
template across a collaborative system." In a nutshell: shorter hours to
facilitate shorter meetings.
Posted by Patent Hawk at 9:58 PM | Patents In Business | Comments (1)
Back into the Pool
Sofpool
sued Intex Recreation over two above-ground swimming pool design patents (D408,546;
D480,817). The jury found them noninfringed. The serpentine Egyptian
Goddess CAFC ruling, a temporal reel in viewing design patents, intervened
between trial and appeal.
Continue reading "Back into the Pool"
Posted by Patent Hawk at 9:29 PM | Design Patents
May 10, 2009
Bully
The
rabid FTC aside and amok, the U.S. Justice Department has had little stomach to
enforce antitrust violations. The Americans let Microsoft off the antitrust hook
with a smirk, while the Europeans fined them $1.16 billion. Now Intel, its
corporate culture an apparent breeding ground for bully bullshitters, as
evidenced by
recent top brass opinions regarding "patent fairness," face their own
European antitrust swat. The European Commission, which is the executive arm of
the European Union, will announce Wednesday its fine for Intel's antitrust
shenanigans. One thing these little men don't do well is learn social graces.
Posted by Patent Hawk at 7:27 PM | Patents In Business | Comments (1)
Stayed
SP
Technologies started an enforcement campaign for
6,784,873, claiming a graphical touch screen keyboard that automatically
disappears "after the desired input is received." SP sued Samsung and HTC.
Samsung settled. HTC got up on its hind legs, filed an inter partes
reexamination, and motioned to stay litigation, which East Illinois district
court Judge Samuel Der-Yeghiayan granted.
Posted by Patent Hawk at 2:03 PM | Litigation | Comments (1)
Confined
Ron
Wilson at EDN, with no patents to his name, has what he terms "a modest
proposal": "prohibit assignment, sale, or any other transfer of patent
ownership," except inheritance.
Posted by Patent Hawk at 9:34 AM | The Patent System | Comments (20)
May 9, 2009
Gumped
Louis
Stumberg and James Fulton invented a safety device for firefighters:
automatically sounding an alarm if a firefighter didn't move for some time
(presumably incapacitated). In 1989, the inventors hired
Akin Gump to file a series of patents.
Upon later enforcing the patents, they wound up getting settlements totaling $9
million. John
Raley of Cooper & Scully, one of
the firms representing the inventors: "When these actions were settled, they
were settled much more cheaply than they should have been settled for. The
royalty that should have been awarded to these plaintiffs was far less than if
Akin Gump had done their job properly in handling the patent applications." The
apparent problem: the prosecutor had failed to disclose information material to
the patent, and, according to Raley, did so with intent to deceive the PTO.
Posted by Patent Hawk at 12:28 AM | Prosecution | Comments (1)
May 7, 2009
Monster
In
a debate on patent reform at the Commonwealth Club of California yesterday,
Intel's Chief Patent Counsel
David Simon told the audience that jury verdicts can't be overturned unless
the decision was "monstrous." It takes one to know one.
Posted by Patent Hawk at 10:58 PM | Patents In Business | Comments (14)
Kindled
Amazon's
new
Kindle DX, with bigger screen, comes patented:
D591,741. With exceptions, design patents for electronic devices are
relatively weak tea compared to the utility variety, and the Kindle is notably
stodgy, so it's mostly a vanity patent. Amazon appears not to have any ebook
utility patents. What they do have is the best ebook reader on the market, in a
market where momentum counts.
Posted by Patent Hawk at 10:41 PM | Patents In Business
May 6, 2009
Doubled Over
Dr.
Frits Jacobus Fallaux stumbled into a continuation dilemma. The fifth in a family
series ran into a double patenting rejection. Earlier patents in the family only
one shared inventor in the family, and the earlier patents were owned by a
different assignee at the time of rejection. The examiner applied the normal
one-way test for obviousness-type, i.e., non-statutory double patenting on some
claims. Unable to file a terminal disclaimer to eliminate the issue, because of
the earlier patents being assigned away, Fallaux countered that the more rarely applied two-way test
was appropriate.
Continue reading "Doubled Over"
Posted by Patent Hawk at 11:42 PM | Prosecution | Comments (18)
May 5, 2009
This Round
Rivals
Monsanto and DuPont have battled over patents through the years. In the late
1990s, Monsanto went after DuPont for breaching a licensing agreement on
pest-resistant corn, resulting in a revised licensing agreement. In 2002, DuPont
licensed Monsanto's Roundup Ready seed technology, which allows crops to be
sprayed with herbicide Roundup and survive. DuPont came up with its own Optimum
GAT herbicide resistant trait for soybeans and corn, but found out in field
tests it wasn't quite up to snuff. So, DuPont stacked the Roundup Ready trait on
top of the Optimum GAT trait, and found it plow-worthy. Monsanto found it
complaint worthy.
Posted by Patent Hawk at 7:05 PM | Litigation
May 4, 2009
Feeling Taxed
The
same companies that crusade to evade paying any "patent tax" to inventors are
now crusading to evade corporate income tax. On Monday, President Obama outlined
proposals for cracking down on overseas tax havens, and eliminating tax breaks
for U.S. corporations that do business overseas. Computer tech companies soiled
their diapers in protest. "This is a $60 billion hit on American employers that
their foreign competitors won't feel," wailed the Silicon Valley Leadership
Group, representing such esteemed companies as HP, Cisco, and Oracle. Duh.
Continue reading "Feeling Taxed"
Posted by Patent Hawk at 9:14 PM | Patents In Business | Comments (9)
Practicing
The objection absurd, but patents as tradable commodities has raised some
ruckus, even as the loudest howler monkeys are disingenuously self-serving. The
flip side of that same fake coin is that patent
holders, including inventors, should be required to commercialize their
invention. In other words, patents and products should be synonymous. Another
boil of similar ilk is that reinvention should obviate infringement. Herein,
dispelling such nonsensical notions.
Posted by Patent Hawk at 5:14 PM | The Patent System | Comments (15)
May 3, 2009
All Hat, No Cattle
200
years ago this week, Ms. Mary Dixon Kies became the first American woman granted
a patent. Ms. Kies invented a way to weave silk with straw. She aspired to apply
her invention in the booming hat industry. But her patent never made her any
money.
Posted by Patent Hawk at 11:50 PM | Patents In Business
Shameless
Former
Intel honcho Andy Grove, now 72, but still sucking corporate teat, had a very
public senior moment over patents: "Patents themselves have become products.
They're instruments of investment traded on a separate market, often by
speculators motivated by the highest financial return on their investment." "You
should not grant a monopoly to people who don't produce."
Posted by Patent Hawk at 11:20 PM | Patents In Business | Comments (13)
May 2, 2009
Reasonable Royalty
35 U.S.C. §284
awards damages "in no event less than a reasonable royalty for the
use made of the invention by the infringer." Reasonable royalty is thus the
lowest award possible for patent infringement, and in no way bounds what
infringement should cost. §284 also allows award of enhanced damages, regardless
of willfulness: "[T]he court may increase the damages up to three times the
amount found or assessed." Herein, a gander at the damages floor: reasonable
royalty.
Continue reading "Reasonable Royalty"
Posted by Patent Hawk at 3:27 PM | Damages | Comments (2)
May 1, 2009
Cents-less
Every
Penny Counts, founded by spare change king Dr. Bertam Burke, sued debit/credit
card vendors for its patented "method for donating 'excess cash' to charities
and savings accounts." "He describes his invention as a way of solving this
'problem of loose change.'" Based upon claim construction of "excess cash," the
district court summarily ruled non-infringement. On appeal, no change, but the
court's two cents about considering the accused product in claim construction.
prior art search + 
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