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July 30, 2009
Claimless
Wavetronix sued EIS for infringing its traffic monitoring patent:
6,556,916.
On summary judgment, '916 was found not infringed. Wavetronix appealed, begging
the court to construe a crucial term that was never construed in the first
place, as the Utah district court never entered a claim construction order. The
CAFC reluctantly agreed to construe the claim term, and after doing so, affirmed
non-infringement.
Posted by Patent Hawk at 7:45 PM | Claim Construction
July 27, 2009
Last Hurrah
Martin
Reiffin was a former patent attorney at IBM, who pulled a patented claim to
multithreading out of the PTO 15 years after his original application filing
date of 1982. A seriously vile junk patent. He then sued Microsoft over Word's
spelling checker. With lack of spec support for his claims in his '82 brew, and
new matter pulling his effective filing date to 1994, Reiffin lost first in
court, leaving but a reexam for residue. Still, he doggedly and shamelessly
pursued it. Today the last dog died, as his CAFC appeal over reexam flew south,
leaving only droppings behind. A disgraceful man got his due.
Continue reading "Last Hurrah"
Posted by Patent Hawk at 8:54 PM | Litigation | Comments (14)
Erased
Was
it pitiable prosecution and excrescent examination, or just deviously scrappy litigation? Blackboard's
6,988,138, claiming an Internet education system, got erased by Desire2Learn
on appeal. Indefiniteness for lacking a backing structure for a means-plus-function
limitation, and a devious claim construction gone awry, left Blackboard with a
failed assertion.
Posted by Patent Hawk at 4:45 PM | Claim Construction
Lever
Bernard Bilski and his buddy got a nebulous notion about risk management. So
they hired a run-of-the-mill prosecutor to scratch a sketchy spec and draft some
bodaciously crappy claims. The PTO pitched the poop. But then the CAFC fouled
the plumbing with precarious precedent, so the Bilski bauble floated to
the top, where the Supreme Court has the final flush, but the only needed motion
is reiteration.
Posted by Patent Hawk at 3:26 PM | § 101 | Comments (13)
July 20, 2009
Off the Shelf
Saint-Gobain
sought declaratory judgment of noninfringement and invalidity over refrigerator
shelf patents owned by competitor Gemtron. Gemtron counterclaimed and ended up
as plaintiff. The dispute came down to a single limitation in a single claim,
over when the claimed invention had the glass panel shelf bottom snap into the
frame. The answer: no set time.
Continue reading "Off the Shelf"
Posted by Patent Hawk at 9:49 PM | Claim Construction | Comments (17)
July 11, 2009
Peers on Hiatus
The
Peer-to-Patent pilot project is now closed. From the Peer-to-Patent website:
The USPTO has closed the Peer-to-Patent pilot and is no longer accepting new applications. Applications already in the system will continue to be processed.
More than 70 applications still await review, and it is rumored that the program is only temporarily closed - until a full evaluation of the impact of the project can be performed.
Continue reading "Peers on Hiatus"
Posted by Mr. Platinum at 9:40 AM | The Patent Office | Comments (10)
Examiner Responsibility
USPTO examiners are the butt of
many a joke on this blog, and often for good reason, receiving the respect they
deserve. But, many examiners fulfill an essential need. They act as
underappreciated civil servants that help promote the progress of this country,
in a job that is tedious, monotonous, and often unfulfilling. Some
even recognize the huge social responsibility that rests on their
shoulders, and use this as the vehicle that propels them forward day in and day
out. To those examiners - thank you.
Continue reading "Examiner Responsibility"
Posted by Mr. Platinum at 9:14 AM | The Patent Office | Comments (7)
Almost Enough
This
weblog started to promote my patent services practice. Anyone who has read my
blogging for any period knows that many of my entries are hell and gone from
that. The left turn was conscious and, given my character, inevitable. Digging
into the patent scene was no different than my reaction to the practices of
people exercising presumed power in any form, given the endless capacity for
exploitation and rationalization of it. Even so, for someone so outspoken, the
blog has been for me as much an exercise in biting my tongue.
Continue reading "Almost Enough"
Posted by Patent Hawk at 3:13 AM | Patents In Business | Comments (7)
July 10, 2009
Beaned
In
permissible hindsight, the PTO during the Clinton administration was so lenient in doling out
patents that Obzilla (aka KSR) became a necessity to expeditiously clean
up the mess. Case in point: letting Larry Proctor patent a transplanted yellow Mexican bean
after growing it for a few seasons. The
applicant was open-faced about doing a simple
Mendel with the
bean, but was granted a patent for it anyway.
Reportedly, Proctor then proceeded to commit "predatory patenting" and "biopiracy,"
beaning 16 small bean seed companies for infringement.
Posted by Patent Hawk at 11:28 AM | Prior Art
July 9, 2009
Bailout
Mismanagement
at the USPTO gets a thumbs up from Congress. The House went along with the
Senate in passing a bill Tuesday that would let the PTO rob its trademark kitty
to tide over its dwindling patent piggy bank. In a politically inspired
balk (from mega-computer/software companies whining about being incessantly hammered for infringement),
the patent office has been rejecting patent applications with religious fervor in recent
years, grievously wounding the goose formerly known for laying golden eggs. In
an ironic twist of a concept called accountability, the Congressional measure
includes a surcharge to punish patent-pleading goslings. If people everywhere
would all simply agree that the old ways are the best, none of this would be
necessary.
Posted by Patent Hawk at 1:11 PM | The Patent Office | Comments (14)
Uppity
Capitalism
is premised upon exploitation. Without that, no profit, and shareholders would
be shit holders. In that spirit, slavery has been the law of the land for
centuries. Not to mention the tax code. Even today, thanks to a little coercion
called an employment contract, the inventions of workers belong to their
paymasters. IPAdvocate.org is
downright uppity about that, seeking equitable distribution of patent profits
gleaned by universities for the employed researchers from whence creative
inventions sprang.
Posted by Patent Hawk at 12:07 PM | Patents In Business | Comments (1)
Cool It
In an echo of
denouncing "irrational exuberance," the organization best known for
harboring practicing pederasts has denounced vigorous patent protection. The
dope with the hanging rope is none other than the Pope, who put out the hard
word.
"On the part of rich countries there is excessive zeal for protecting knowledge through an unduly rigid assertion of the right to intellectual property, especially in the field of health care."
Bishops and priests on down the line twittered at the phrase "unduly rigid assertion." The jig is up. Time to rub the excessive off the zeal so as to give the Pope something less to squeal. About. And don't forget to tithe.
Posted by Patent Hawk at 10:45 AM | The Patent System | Comments (11)
July 8, 2009
Fishy
The
single claim of
4,781,930 is a method of immersing fresh fish filet in vegetable oil,
draining the oil off, sprinkling crumbs on it, then freezing it. If that sounds
nasty, the patent case behind it is even nastier. Alfred and Paul Fraser, acting
pro se, sued 11 companies over the expired patent. For the Frasers, upon
a trip to the supermarket, having oil in the list of ingredients of a frozen
fish product was enough to accuse infringement.
Posted by Patent Hawk at 3:20 PM | Litigation | Comments (2)
July 7, 2009
Unappealing
The
USPTO is doing its bit to boost patent prosecutor income while dashing applicant
hopes. Thanks to unprecedented rejection rates, appeal filings have spiked 70%
this year: 10,870 appeals this fiscal year to 6,385 last year. The PTO cites
"controlling case law" as the reason. Appeals are the most expensive bit of
prosecution, running to thousands of dollars, with complex appeals costing tens
of thousands. The fruits of appeal have soured - in fiscal 2008, 44% of appeals
resulted in issuance, down from 66% five years ago, and 71% in 2000.
Continue reading "Unappealing"
Posted by Patent Hawk at 7:54 PM | The Patent Office | Comments (46)
Another Round
The
CAFC has granted en banc rehearing of Tafas & GSK v. Doll, over the PTO
proposed continuation and claims limitations. The
order did not state why it had
decided to take another gander. In the first round, to general dismay, the
CAFC
panel ruled 2-1 that the rules were merely procedural, not substantive,
overturning the reality-based verdict of the district court. The CAFC had found
the continuations limits contrary to the law (35 U.S.C. § 120), although one
could suppose, based on CAFC logic, little substance to that as well. Consistent
as a drunken monkey, there's no telling what the entire CAFC might come up with in
its round 2 decision.
Continue reading "Another Round"
Posted by Patent Hawk at 10:51 AM | The Patent Office
July 6, 2009
Not Called Out
4,924,496 claims caller ID, using means-plus-function claims: look up a name
for a number while the phone is ringing. There's a claimed "means for
comparing the detected incoming telephone number with said directory of
telephone numbers to identify the party associated with the incoming call
number." Not exactly rocket science there, even back in 1988 when the patent was
filed. Sued for '496 over its iPhone, Apple wanted summary judgment indefiniteness, for failing to
disclose an algorithm for comparing. Unconvinced, the Massachusetts magistrate
judge on the case blew that off. Tell it to the jury,
she
wrote.
Posted by Patent Hawk at 8:01 PM | § 112 | Comments (5)
Exceptional?
Microsoft
licensed encryption patents from TecSec. The negotiated license included a
proviso, initiated by Microsoft, called the "Reserved Scenario," that would let
it pay a lower royalty for not using a particular technology: encryption of less
than an entire file (sub-file encryption). Microsoft represented to TecSec that
it was not using sub-file encryption. Microsoft then publicly announced that it
would. Microsoft attorney Kevin Luo wrote TecSec to let them know that the
products mentioned, InfoPath and .NET 2.0, "were publicly distributed prior to
the Agreement."
Continue reading "Exceptional?"
Posted by Patent Hawk at 2:46 PM | Litigation
July 5, 2009
Patent Americana
England's
Statute of Monopolies, passed by Parliament in 1624, curtailed the crown's abuse
in handing out monopolies, while codifying handing out monopolies, being only
tangential to patents as we understand them. English letters of patent were
monopolistic grants for inventing or importing new things, but also licensing
business, as a means for restricting competition generally. In what became rogue
colonies, the Americans were handing out their own monopolies.
Continue reading "Patent Americana"
Posted by Patent Hawk at 5:51 PM | The Patent System | Comments (2)
July 3, 2009
Gift from the Dead
5,761,645
claims a "system
for enabling delivery of insurance gift payments" to beneficiaries. Owner
Equitable Life & Casualty Insurance has sued rival American National Insurance
over it, as part of an ongoing enforcement campaign. Other insurance companies
have been taken to task over '645, and settled. The patent is likely invalid,
for mixing claim types (system and method), as well as its obviousness.
Posted by Patent Hawk at 9:40 PM | Litigation | Comments (5)
July 2, 2009
Cut to Commercial
In
years past, big-screen TV buyers gravitated to plasma displays, as LCDs were
prohibitively expense for 50+ inch screens. But as LCD screen technology has
advanced, plasma sales have receded. In 2008, four million plasma screens were
sold in North America, while 30 million LCD TVs found homes. That gap is
widening. And so
the price of plasma displays is dropping. With market realities in mind,
Japan's Hitachi and Korea's LG Electronics have settled their plasma patent
dispute with a
cross-license.
Posted by Patent Hawk at 12:24 AM | Patents In Business
Researching
On
patent reform, the Senate shoots first and ask questions later. Judiciary
Chairman Patrick Leahy hustled his cockamamie patent bill out of committee in
April on a 15-4 vote. Now judiciary committee member Jeff Sessions is
wondering what impact the proposed post-grant challenge process might have.
Posted by Patent Hawk at 12:05 AM | The Patent System | Comments (4)
July 1, 2009
Fully Fueled
The
hyperactive Obama administration wants efficient cars, hoping to implement fleet
fuel economy imperatives that politically ran out of gas forty years ago. The
hope for fuel-efficiency lies with hybrids, which cruise on electric power and
hit the gas when a driver hits the accelerator. One company has the real
impetus: Toyota, which has around 2,100 patents for hybrid vehicles. Number two,
Honda, has about half as many hybrid patents in its portfolio. Nissan, relatively
hybrid patentless, is puttering with electric cars.
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