May 29, 2009
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."
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)
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.
May 27, 2009
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.
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%.
May 26, 2009
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.
May 25, 2009
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.
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.
May 23, 2009
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.
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.
May 22, 2009
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.
May 21, 2009
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.
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.
May 20, 2009
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.
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.
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.
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.
May 18, 2009
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.
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.
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.
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.
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.
May 17, 2009
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.
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."
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.
May 14, 2009
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.
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.
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."
May 12, 2009
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.
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.
May 11, 2009
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.
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.
May 10, 2009
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.
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.
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.
May 9, 2009
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.
May 7, 2009
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.
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.
May 6, 2009
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.
May 5, 2009
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.
May 4, 2009
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.
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.
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.
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."
May 2, 2009
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.
May 1, 2009
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.