June 30, 2009
Monday, an East Texas jury awarded $1.67 billion for infringing a single patent: 7,070,775, which Centocor and New York University jointly own. '775 claims an "antibody or antigen-binding fragment." The patent applies to an arthritis drug. Abbott was the infringing party. $1.17 billion was for lost profits, plus $504 million for reasonable royalty damages. Abbott continues to swear non-infringement. The infringing product, Humira, sold more than $4.5 billion in 2008, Abbott's top seller, accounting for 15% of its revenues last year. Centocor's competing arthritis drug is Remicade.
June 29, 2009
In Bilski, the rogue CAFC ruled on the wrong grounds, and in the process warped the law, by setting in stone what were intended as guidelines. To afford case-by-case consideration, a court writes itself wiggle room. Instead, the CAFC tends to sew itself straightjackets. To invalidate Bilski's claim, all SCOTUS need do is reaffirm the definiteness requirement, and then correct the CAFC's errant way regarding patentable process subject matter.
June 27, 2009
A contribution to the media obsession surrounding the death of the King of Pop: In 1993, Michael Jackson was granted patent 5,255,452 for a "Method and means for creating anti-gravity illusion." Specially designed shoes engaged with hitch members protruding through the stage, allowing the wearer to lean beyond their center of gravity. The illusion was used by Jackson in the music video for Smooth Criminal.
June 26, 2009
Another junk patent is on the prowl. How Neil Balthaser was allowed 7,000,180, claiming methods for creating and editing rich-media, is beyond rational explanation. There is a ton of prior art invalidating the patent. Balthaser has a four suits in East Texas with a slew of defendants. Network Solutions just settled, terms undisclosed.
Convenience of Coincidence
Decisions made at the UPSTO have ironically spawned an anti-patent culture at the very institute created to protect innovation. These decisions have consequences. Conveniently though, the US economy has tanked, providing the PTO with a thick sheet of smoke to help veil countless managerial missteps. Knowing his role as smoke machine, Acting Director John Doll recently provided a financial update of the patent office, transferring blame and hoping for a bailout.
Samsung and Sharp have been warring over TV patents at the ITC. Earlier this month, Samsung was found infringing Sharp patents. All the ITC does, or can do, is issue an exclusion order. Now the ITC has determined that Sharp infringes a single Samsung patent. One of the two asserted Samsung patents got tossed. Expect the TVs to stay on store shelves while a cross-license is worked out.
Bilski's claims are neither useful nor definite, and hence non-patentable under §101 and §112 ¶2. The Supreme Court should rightfully ignore flawed CAFC case law, looking to its own precedents, most notably Diamond v. Diehr (for §101) and Markman v. Westview Instruments (§112 ¶2). Here's how SCOTUS should shoot down Bilski and claims of its ilk - recognize the intertwining of §101 and §112 ¶2, that an ill-defined process is a strong indicator of indefinite usefulness, and hence unpatentable subject matter.
June 25, 2009
Paid As Used
Richard P. Mettke got 5,602,905, claiming a "public on-line, pay-as-you-use communications terminal." He wanted his claims directed to the Internet, so he filed for reissue, pursuant to 35 U.S.C. §251, "submitting with his application a declaration stating that he believed the '905 patent to be 'wholly or partly inoperative or invalid by reason of me claiming less than I had the right to claim.'" Naturally, Obzilla stomped on it, with the help of three interested potential infringers slipping the PTO previously uncited art. Not content to have his patent act as a rug, Mettke persisted. The stomping never stopped.
June 24, 2009
Peter Hochstein and Jeffrey Tenenbaum scored one against Microsoft in their Xbox patent match, ongoing since 2004. East Michigan Judge Paul D. Borman has adopted a critical claim construction determined by his special master in the case. Claim 39 of 5,292,125 involves a communication circuit. Microsoft wanted a non-infringement knockout, construing the circuit within a particular configuration which it does not employ. The special master didn't find any such narrowing limitation in the claim. Looks like this one is going down to the wire, with Microsoft outboxed.
June 23, 2009
More than ever, patent prosecution is a gambler's game. As Admiral Adama in Battlestar Galactica observes: "sometimes you have to roll the hard six." In prosecution, facing an objectionable rejection, appeal. Professor Dennis D. Crouch has taken a cold-eyed look at rejection rates for BPAI appeals. Not a savory prospect. The hard six is a very hard roll, particularly when playing against Obzilla.
June 22, 2009
"We are revising all the doctrines and laws related to patents, which should be compatible with the international treaties that we have signed and respect and honor. Patents have become a barrier to production, and we cannot allow them to be barriers to medicine, to life, to agriculture." Sounds like the Coalition for Patent Fairness, doesn't it? Venezuela is stealing their shtick. South American socialist Hugo Chavez plies his pith: "That a laboratory does not allow us to make a medicine because they have the patent, no, no, no."
June 21, 2009
The fix is in. Movers and shakers in the patent community are falling down squirting over Dave Kappos as USPTO honcho. CongressDaily reports praise from Senate Judiciary Chairman Patrick Leahy and Commerce Secretary Gary Locke (as if a cabinet member is going to toot another horn on his President's pick). The man tried-and-tested at running the PTO into the ground, the irrepressible "Foley & Lardner attorney Jon Dudas, who served as PTO director in the Bush administration, said Kappos is an excellent choice." "The Coalition for Patent Fairness and Innovation Alliance, which have been at odds over pending legislation, both backed Kappos."
In post-war Japan, W. Edwards Deming taught the natives quality control methods, with which the Japanese dazzled the industrialized world. Deming said, "expect what you inspect." That's why companies don't innovate: the same patterns of communication and problem-solving in the same narrow niches leading down the same old roads, seldom blazing new trails. And the not-invented-here syndrome often runs strong. But not always.
Printer makers follow the razor blade business model: the razor is a loss leader to the highly profitable blades. So, with inkjet printers, the lucre accrues from selling the ink. To wit, Seiko Epson has just sued six inking infringers over its ink cartridge patents. Epson recently won a tentative ruling at the ITC over a few parties in its suite attack against two dozen companies from China, Germany, Hong Kong, Korea and the U.S. Epson has filed five suits in the recent past, four in the District of Oregon, a somewhat sleepy but quite competent district for patent adjudication.
June 19, 2009
Emsat has a patent enforcement campaign against wireless providers such as Sprint Nextel, Verizon, Alltel, AT&T and T-Mobile. The claimed technology is an FCC requirement: determining the location of cell phones, one (the required) use being for emergency response networks. Sprint prompted a reexamination, and won a stay on that basis. In their case, AT&T and T-Mobile sought a stay for the same reason, expressing confidence: "It is highly likely that the re-examination by the PTO of the patents-in-suit will substantially narrow or even eliminate the issues confronting the parties and court in the instant cases." "Highly likely" turned to mush. The PTO balked at the reexam, for all but a few claims not asserted. Emsat had been so confidence that it hadn't even opposed the stay. Sometimes silence is golden.
June 18, 2009
President Obama announced today nominees for two related governmental posts: Director, Office of Civilian Radioactive Waste Management, Department of Energy; and Under Secretary of Commerce for Intellectual Property and Director of the United States Patent and Trademark Office. Warren F. "Pete" Miller, Jr., a part-time Professor at Texas A&M University, got the easier job. Managing the real radioactive waste went to David J. Kappos, who, as long-time corporate mook, has shaped IBM patent policy, publicly spouting horse hockey in the process. People have been known to rise to a position, garnering dignity. Let's hope these boys are up to the job of containing the waste.
Combination of the Two
A combination of two patent blogs yields a well-worn path to researching patent case law. Michael Giles Sullivan's IP Law Outline & Analysis provides an excellent directory and synopses of precedents. The Patent Prospector provides the most extensive reportage of case law quotes of any blog, covering practically every precedential case from 2005 to date, as well a few historical Supreme Court cases. For ready topical patent research, there is no better combination.
June 17, 2009
Out of the Ditch
Jack Cartner got 5,197,284, claiming a deceleration circuit for a hydraulic motor. Cartner sued Alamo for infringement. Claim construction went poorly for Cartner. So poorly that Cartner stipulated, under the district court's claim construction, that the patent was "invalid for failure to meet the written description requirement of 35 U.S.C. § 112." There was no failure to appeal.
June 16, 2009
Off the Block
Two-bit patent auctioneer Ocean Tomo has been snapped up by British ICAP, the world's largest interdealer broker, for $5 million cash and a hypothetical $5 million in shares. More precisely: "Application will be made for the listing of 692,226 ordinary shares of 10 pence each which have been conditionally allotted as satisfaction for the stock consideration." Nine Ocean Tomo employees went along for the ride. After a flashy start, Ocean Tomo had a hard go of it, the recession sobering those who in flusher times might have splashed out for beachfront abstract property.
Order of Magnitude
Heeling Sports has an enforcement campaign against infringers of its roller skate shoes. It botched the first round requesting damages for default judgment. As a result, Central California District Court Judge Florence-Marie Cooper awarded only $280,000 in damages, without explanation. Heeling appealed, which resulted in a remand for the judge to explain herself. Yesterday she did... not explain herself, when she changed her mind and awarded Heeling the $2.8 million it had asked for in the first place. Because sometimes, when money talks, that's all need be said.
June 15, 2009
"It is in the sterilisation of failure, and not in the selection of successes for breeding, that the possibility of an improvement of the human stock lies." - H.G. Wells. Antithetical to rampant free-to-breed populist sentiment, government support for eugenics has no prospect. Fortunately, grasping short-sightedness offers hope. Wells' proactive stance is more easily achieved by impeding medical advances. To cull the defective in the population as young as possible, there may be no more effective measure than making genetic research uneconomic, to zero the return on investment for developing novel treatments. Not a moment too soon to take the side road to Wells' goal for a better human species. Outlaw gene patents.
Tackling Bilski and patents in general, the Wall Street Journal presents one of the more subtle propaganda pieces seen: "The greatest innovations today are better methods rather than new machines. We shouldn't grant monopolies on concepts." Quoting IBM's David Kappos: "As things now stand, the vagueness of patent law means the 'precious time of skilled scientists and engineers is too often spent defending against costly and time-consuming litigation, instead of creating innovations that drive economic growth.'"
USPTO Beta Site
The USPTO has released a new beta version of its website, "redesigned to improve the look and feel, as well as to enhance the user experience with improved navigation." While the new site is not yet entirely up to date, the layout appears much improved over the current dreadful design. Feedback may be submitted via Google moderator.
June 14, 2009
Rambus has been bullied by the European Union to license its patents on the cheap. Europe constantly seeks to denigrate patent protection because they are lagging behind in technological prowess and world commercial competitiveness, and have scant chance of catching up. Europe has a strong anti-patent stance, not even allowing patents for software, once of the most innovate art areas for decades. For industrialized nations, continental Europeans on average work less and vacation more. The European entitlement mentality shows most distinctively in their willingness to pirate the inventions of others while covering themselves with a fig leaf of self-righteousness.
June 13, 2009
William Guess and George Morgan filed a patent application for "a musical instrument that includes a keyboard attached to a guitar body." Claim 1, the only independent, was a Jepson claim: a product claim listing a preamble that is typically in the prior art, followed by a listing of novel improvements. Rejected over a single prior art reference. Upheld all the way through the CAFC.
June 12, 2009
Appeal of Appeal
Patent allowances are way down, hence appeals are way up. Since January, the BPAI backlog has nearly doubled to over 10,000 pending appeals. At the current rate of 500 disposals per month, the backlog would take over 20 months to eliminate, not accounting for new appeals that are being filed at a rate 2 1/2 times faster than the Board's disposal rate.
June 11, 2009
The most valuable patents are naturally the ones covering the most profitable technologies. It would be a facile conclusion that the most valuable patents might also be the most litigated. Take patented drugs as an example. Because only drug companies provoke litigation over drug patents, the number of litigations for such are low. Yet blockbuster patented drugs are worth hundreds of billions in sales, above and beyond what generics later prove to be. So, while the stakes over drug patents are quite high, the number of litigations for any single drug patent is quite low. But take a look at the roster of litigations filed over time, and see that a plurality involve drugs or biotechnology. So, with drugs, lots of litigations, owing to the value of patents generally, but no particular patent family is multiplicatively litigated.
June 9, 2009
To sanitize meat, processors directly apply biocides. To that end, Ecolab got 6,010,729, 6,103,286, and 6,113,963, which it asserted against competitor FMC. FMC counterclaimed 5,632,676. A jury found some of Ecolab's asserted claims invalid, while FMC's '676 withstood validity challenge. Both infringed the other's surviving claims, FMC willfully so. Reasonable royalties to both. Post-trial motions of non-infringement by Ecolab and invalidity by FMC were shunted by the district court, and so appeals from both.
"During the past decade, innovation has stumbled. And that may help explain America's economic woes." So opines faux economist at Business Weak, Michael Mandel. Lacking a "government-constructed "innovation index" that would allow us to conclude unambiguously that we've been experiencing an innovation shortfall," Mandel points to the epitome of irrational exuberance, the stock market. "If an innovation boom were truly happening, it would likely push up stock prices for companies in such leading-edge sectors as pharmaceuticals and information technology." Facile to a fault, Mandel confuses innovation with the house of cards built upon an unsustainable premise: that business cycles have been banished, and growth is forever.
June 8, 2009
Coffee drinker Matthew Pequignot sued Solo Cup for false marking, after noticing on coffee cup lids patent marks for long-expired patents. He then went after Gillette and Proctor & Gamble. Pequignot sued qui tam, on behalf of the government. In March, D.C. district court judge Leonie Brinkema ruled that copasetic. Damages of up to $500 per violation are possible. For mass-produced items, the tab could run to $ billions.
June 7, 2009
The American anachronism of patent interferences to determine priority often creates a mess when invoked. And so it was when Affymetrix concocted an interference against Agilent for a genetic analysis technique involving mixing fluids. The BPAI gave the prize to Affymetrix, after Agilent couldn't convince the Board that Affymatrix was playing fast and loose meeting the written description requirement. Agilent pursued it to district court and lost again, leaving the CAFC to clean up.
The "Patent Case Management Judicial Guide" is a stellar compendium covering all aspects of patent litigation, not just judicial case management. Professor Peter S. Menell at U.C. Berkeley School of Law headed this collaborative effort. Highly recommended. And a free download!
June 6, 2009
Bilski's and Warsaw's "managing... consumption risk costs," are miserable claims to be scuttling to the Supreme Court on the topic of patentable subject matter, because they clearly are not patentable under §112 ¶2, not to mention §101. At issue is whether the CAFC misconstrued §101, in limiting processes to: 1) machine dependence or 2) transformation. This is something to be scraped off the judicial shoe as too close-minded, just as Judge Newman opined in dissent. What should/will SCOTUS do? To read the crystal ball, peer into how the Supreme Court has decided before. As to that, one gem gleams.
June 5, 2009
Wage slaves typically must assign their inventions to their employer as a condition of employment. Boat designer Borden Larson got uppity about it and sued his former employer Correct Craft, trying to get back a right he had signed away. Larson lashed out in state court. Correct Craft dragged it into federal court. Larson, with no cards to play, lost. Not one to get over it, Larson appealed. No surprise that the CAFC blew the matter off, albeit longwindedly, in a precedential decision (2008-1208), involving jurisdiction (28 U.S.C. § 1338(a)) and correction of inventorship (35 U.S.C. § 256), which didn't apply in this case.
June 4, 2009
Heather Knox has a 36C breast size, and isn't shy about sharing that fact with the world. "I'm 40. Gravity has taken its toll on me. Even at 30, gravity had taken its toll on me." Ms. Knox wanted anti-gravity support, so she combined a push-up bra with a full coverage bra, and burst a seam with 7,074,108. After getting '108 in July 2006, Ms. Knox allegedly presented her idea to Victoria's Secret's head bra designer, in January 2007. No licensing came of it. But Victoria's Secret now has a bra for sale, the BioFit 7-Way, with a two-piece sling design that bears striking resemblance. Victoria's Secret now also has a patent suit. Ms. Knox appears not shy at all.
June 3, 2009
The Rubber Meets The Road
Titan Tire sued Case for infringing D360,862, claiming a tractor tire. "In May 2007, Titan filed a motion for a preliminary injunction to prohibit Case from selling backhoes with infringing tires." The motion was denied, because Titan "was not likely to withstand" an obviousness challenge. On appeal, the CAFC exposits on preliminary injunctions, and adds a dash on design patent obviousness.
June 2, 2009
Outside the Membrane
Amgen and Ariad got into a tussle over 6,410,516. Ariad started with a DJ action, asserting invalidity and noninfringement. Amgen counterclaimed infringement. '516 claims reducing a specific protein's activity (NF-kB). The claim construction crux was whether the claimed activity occurred outside a cell, inside, or it didn't matter. But of course it mattered.
TiVo bludgeoned EchoStar with its patents, winning at trial in 2006 and on appeal in 2008. EchoStar wouldn't settle, and TiVo got a temporary injunction. EchoStar supposedly developed a workaround. But TiVo alleged it was a faux workaround. A bench trial in February has resulted in a ruling today from East Texas Judge Folsom that EchoStar is in contempt of court, with an order that the company stop using TiVo technology (aka permanent injunction). And, oh yeah, add $103 million plus interest through April 2008 for additional damages, on top of the $105 million previously awarded. The cost of contempt of court will be tallied and tacked on at a later date.
June 1, 2009
PureChoice asserted RE38,985 against Honeywell. '985 claims an air quality monitoring system. What exactly is air quality? That was one problem leading to indefiniteness. The other problem was claiming two different sensors that couldn't be differentiated. Another careless prosecution kills what otherwise may have been a quality patent.
Depuy Spine has been trying to screw Medtronic with 5,207,678, claiming a pedicle screw, used in spinal surgeries. Medtronic skirted literal infringement. On remand from the CAFC, the issue then became doctrine of equivalents, whereupon Medtronic reared an ensnarement defense. "Ensnarement bars a patentee from asserting a scope of equivalency that would encompass, or "ensnare," the prior art." This factual inquiry is a matter of law. And, herein, an exposition on teaching away.
Byoki is the Japanese word for sick. Bilski is the American word for sick patent method case law. At the time of handing down the CAFC decision, Chief Judge Michel didn't consider Bilski much of a change, even as it immediately roiled understanding of patentability for processes, especially software. Today the Supreme Court decided to blow the haze around Bilski, granting certiorari to the matter.