August 26, 2009
Ortho-McNeil sued Teva over RE39,221, claiming a combination of pain relievers acetaminophen and tramadol. The district court granted summary judgment of obviousness to all asserted claims, as well as finding one claim, 6, anticipated. Ortho-McNeil appealed.
August 22, 2009
Sky Technologies sued SAP over an e-trade patent portfolio it had acquired through a foreclosure and associated contractual conniptions. Because litigation lawyers argue almost anything regardless of merit, SAP pitched lack of standing and lost, so it appealed, desperately trying to break the chain of title.
August 21, 2009
Cardiac Pacemakers sued St. Jude Medical for infringing 4,407,288, claiming an implantable cardiac defibrillator (ICD). On second appeal, while multiple issues get the ticker running quicker, what really pumps is excluding method claims from Section 271(f).
August 19, 2009
RFID Tracker sued Wal-Mart and others for infringing 6,967,563, claiming an RFID reader. The district court judge construed the claim to exclude the RFID reader from also being a transmitter, owing to prosecution disclaimer. Hence, the defendants could not be tagged for infringement, because their reader included a transmitter. RFID Tracker trekked to appeal.
August 14, 2009
In the Weeds
Callaway Golf sued Acushnet over four golf ball patents. Acushnet teed itself up with an admission of infringement, but tried to whack the asserted claims into the sand trap of prior art invalidity. The district court judge granted summary judgment of no anticipation. A trial on obviousness found all but one claim in the fairway, Callaway seemingly a short pitch to the green. Acushnet appealed, wanting a mulligan over the anticipation bogie, and an inconsistent jury finding upheld by the district court. They got it.
August 13, 2009
Wedgetail sued Huddleston for infringing its fishing lure patent 6,857,220 B2 ('B2' being USPTO technical designation for "bait too"). After claim construction, Wedgetail concluded snagging Huddleston for infringement could be fishy. "Wedgetail thus filed a motion to dismiss all claims with prejudice, in which it granted Huddleston a covenant not to sue. Huddleston opposed solely on the ground that Wedgetail's proposed order of dismissal would deprive Huddleston of the opportunity to seek attorney fees as the prevailing party." Case dismissed with prejudice. Huddleston appealed to get its hook into getting paid attorneys' fees and costs, for the case being "exceptional."
August 10, 2009
Douglas J. Shoner had a pneumatic tire design rejected by the PTO over obviousness. Shoner appealed to the CAFC, which affirmed. Shoner's plea (hardly an argument) relied upon reading an unstated limitation into his claim from the spec. "The PTO is required to give claim terms their "broadest reasonable interpretation consistent with the specification," and there is nothing in the specification that would explicitly limit the air chamber to a particular structure... See In re Bigio, 381 F.3d 1320, 1325 (Fed. Cir. 2004) ("Absent claim language carrying a narrow meaning, the PTO should only limit the claim based on the specification or prosecution history when those sources expressly disclaim the broader definition.")." (CAFC 2009-1277 non-precedential)
August 6, 2009
The danger lurking in obviousness is hindsight reasoning. A breakthrough becomes predictable. In hindsight, you/they/whoever should have seen it coming. Bayer's oral contraceptive, Yasmin®, had unexpected performance. The active ingredient, drospirenone, readily degraded in an acidic environment like the stomach. Grinding it to itty bits, i.e. micronizing, should have exacerbated the problem. So, logically, you'd coat it, to try to make more of the drug bio-available. Bayer found out that coating wasn't necessary, and micronizing didn't decimate bioavailability in an acidic environment nearly as badly as previously thought. That much was obvious. But only in hindsight.
August 5, 2009
Particular Inequitable Conduct
Exergen stuck SAAT and others for infringing 5,012,813; 6,047,205 and 6,292,685, claiming infrared thermometers taking skin readings. A jury awarded over $2.5 million in lost profits. SAAT appealed, getting '205 claims invalidated on anticipation, and skirting infringement on '813 and '685, thus winning overall. SAAT failed to prevail on inequitable conduct via Rule 9(b), requiring "particularity."
August 4, 2009
Jorge Tayler was mistakenly $10 short on his patent maintenance fee payment. The USPTO later declared his patent dead because of it, in violation of its own rulebook, the MPEP. "The PTO was arbitrary and capricious in its failure to notify Mr. Taylor of the minor insufficiencies in his attempted payment of a patent maintenance fee," so ruled the CAFC (2009-1133). The patent office does this sort of thing habitually: taking fees and then unreasonably denying the action for which the fee was paid, as well as refusing refund.
August 2, 2009
6,310,269 claims a tampon with a solid fiber core denser than radially projecting ribs, the ribs being narrower at their base at the core than at their distal ends. McNeil, the patent holder, requested reexamination based upon an uncited Japanese patent application. The examiner rejected the claims over the prior art, and the BPAI agreed. McNeil appealed to the CAFC.