July 30, 2009
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.
July 27, 2009
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.
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.
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.
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.
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.
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.
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.
July 10, 2009
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.
July 9, 2009
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.
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.
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.
July 8, 2009
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.
July 7, 2009
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.
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.
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.
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."
July 5, 2009
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.
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.
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.
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.
July 1, 2009
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.