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June 30, 2009
B+
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.
Posted by Patent Hawk at 11:58 PM | Damages
June 29, 2009
Requisite Clarity
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.
Continue reading "Requisite Clarity"
Posted by Patent Hawk at 9:04 AM | § 101 | Comments (22)
June 27, 2009
Jackson
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.
Posted by Mr. Platinum at 8:57 AM | The Patent System | Comments (1)
June 26, 2009
Rich-Media Invalidity
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.
Posted by Patent Hawk at 7:40 PM | Litigation | Comments (1)
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.
Continue reading "Convenience of Coincidence"
Posted by Mr. Platinum at 1:00 PM | The Patent Office | Comments (8)
Double Zap
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.
Posted by Patent Hawk at 11:12 AM | ITC
Definitely Not
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.
Continue reading "Definitely Not"
Posted by Patent Hawk at 12:06 AM | § 101 | Comments (34)
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.
Continue reading "Paid As Used"
Posted by Patent Hawk at 1:23 PM | Prior Art | Comments (5)
June 24, 2009
Mastered
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.
Posted by Patent Hawk at 8:47 PM | Claim Construction
June 23, 2009
Unappealing
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.
Continue reading "Unappealing"
Posted by Patent Hawk at 3:25 PM | Prosecution | Comments (52)
June 22, 2009
Compatible
"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."
Posted by Patent Hawk at 10:12 AM | International | Comments (9)
June 21, 2009
Shoo-in
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."
Posted by Patent Hawk at 11:30 PM | The Patent Office | Comments (3)
Innovation Limited
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.
Continue reading "Innovation Limited"
Posted by Patent Hawk at 10:47 PM | Patents In Business | Comments (1)
Ink Spilled
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.
Continue reading "Ink Spilled"
Posted by Patent Hawk at 1:17 PM | Litigation | Comments (1)
June 19, 2009
Unspooled
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.
Posted by Patent Hawk at 2:27 PM | Litigation | Comments (5)
June 18, 2009
Waste Not...
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.
Posted by Patent Hawk at 4:09 PM | The Patent Office | Comments (8)
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.
Posted by Patent Hawk at 11:27 AM | Case Law
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.
Continue reading "Out of the Ditch"
Posted by Patent Hawk at 6:07 PM | Claim Construction | Comments (1)
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.
Posted by Patent Hawk at 11:40 PM | Patents In Business
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.
Posted by Patent Hawk at 10:00 PM | Damages | Comments (1)
June 15, 2009
Cull
"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.
Posted by Patent Hawk at 11:21 PM | The Patent System | Comments (4)
Snuffing Candles
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.'"
Continue reading "Snuffing Candles"
Posted by Patent Hawk at 11:03 AM | § 101 | Comments (7)
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.
Posted by Mr. Platinum at 9:22 AM | The Patent Office | Comments (4)
June 14, 2009
Pompous Pirate
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.
Posted by Patent Hawk at 1:40 PM | International | Comments (11)
June 13, 2009
Twang
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.
Posted by Patent Hawk at 10:20 AM | Prior Art | Comments (3)
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.
Continue reading "Appeal of Appeal"
Posted by Mr. Platinum at 1:05 PM | The Patent Office | Comments (2)
June 11, 2009
Top Dogs
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.
Posted by Patent Hawk at 5:19 PM | Patents In Business | Comments (9)
June 9, 2009
Biocide
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.
Posted by Patent Hawk at 8:40 PM | Claim Construction | Comments (5)
Woe
"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.
Posted by Patent Hawk at 11:23 AM | Patents In Business | Comments (1)
June 8, 2009
False Marking
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.
Continue reading "False Marking"
Posted by Patent Hawk at 2:00 PM | False Marking | Comments (3)
June 7, 2009
No Bubbles
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.
Posted by Patent Hawk at 11:37 PM | § 112 | Comments (1)
Litigation Bible
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!
Posted by Patent Hawk at 7:53 PM | Litigation | Comments (3)
June 6, 2009
Diamond
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.
Posted by Patent Hawk at 8:07 PM | § 101 | Comments (23)
June 5, 2009
Uppity
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.
Posted by Patent Hawk at 5:14 PM | Case Law
June 4, 2009
Double Coverage
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.
Posted by Patent Hawk at 10:52 PM | Litigation | Comments (4)
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.
Continue reading "The Rubber Meets The Road"
Posted by Patent Hawk at 6:03 PM | Injunction | Comments (2)
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.
Continue reading "Outside the Membrane"
Posted by Patent Hawk at 10:23 PM | Claim Construction | Comments (15)
Replay
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.
Posted by Patent Hawk at 7:56 PM | Litigation | Comments (2)
June 1, 2009
Air Quality
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.
Continue reading "Air Quality"
Posted by Patent Hawk at 11:02 PM | § 112 | Comments (4)
Ensnarement
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.
Continue reading "Ensnarement"
Posted by Patent Hawk at 6:39 PM | Prior Art
Byoki
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.
Posted by Patent Hawk at 9:14 AM | § 101 | Comments (5)
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