« August 2009 | Main | October 2009 »

September 30, 2009


Advanced Software sued Federal Reserve banks and Fiserv in Federal district court for infringing process patents "for detecting fraudulent bank checks." The checks at issue were U.S. Treasury checks. 28 U.S.C. Section §1498(a), dating to 1910 and broadened as a World War I war powers act, limits patent infringement liability by the U.S. to compensation granted through the Court of Federal Claims. Otherwise, the government cocks a snoot at such a suit.

Continue reading "Fraudulent"

Posted by Patent Hawk at 10:43 PM | Case Law

September 28, 2009


In the eyes of an economist, all inventions go to one purpose: increasing human productivity. Less effort for equivalent result. More bang for the buck. Patents are intended as incentive for increasing productivity. Patentability is circumscribed by utility: a patented invention must be useful. Natural phenomenon are not patentable, but harnessing such a phenomenon is (think electrons racing around defined circuits). As a result, increasing productivity always alters the way humans organize their activity. However things were done in the past, an invention changes how somebody may do something. The dictionary corresponds with this by defining 'technology' as "the practical application of knowledge." On all points foregoing, the U.S. government does not converge.

Continue reading "Productivity"

Posted by Patent Hawk at 4:41 PM | § 101 | Comments (9)

September 27, 2009

Brain Damaged

Janssen battled a gaggle of generic drug makers over "a method for treating Alzheimer's disease with galanthamine." The patent of contention was 4,663,318. The issue before the courts was enablement (§112 ¶1), which, on appeal, the CAFC majority tied to utility (§101) for instant determination.

Continue reading "Brain Damaged"

Posted by Patent Hawk at 1:30 PM | § 112

September 26, 2009


Teva and Sandoz tangled with AstraZeneca by trying to butt in on its patented antipsychotic drug. Their filing an ANDA riled AstraZeneca to assert infringement of 4,879,288. Defendants filed a summary judgment motion of inequitable conduct, which the district court denied. Another recitation on the high bar for finding inequitable conduct.

Continue reading "Antipsychotic"

Posted by Patent Hawk at 12:57 PM | Inequitable Conduct | Comments (1)

September 24, 2009


Kara Technology owns 6,505,179 and 6,505,179, claiming verifying the authenticity of documents, such as postage stamps and airline tickets. Kara sued erstwhile business partner Stamps.com for infringement. Kara got a bad claim construction and lost at trial. And so, from the CAFC, another reminder about stamping claims with undue limitations.

Continue reading "Stamped"

Posted by Patent Hawk at 11:00 PM | Claim Construction

September 23, 2009

Teed Off

Dr. Richard S. Lister came up with the idea of letting golfers tee fairway balls "to obtain better scores in a shorter time." In 1994, pro se, he submitted a manuscript to the Copyright Office. Two years later he caught wind that he needed to file a patent. He's been fighting the patent office ever since, as they insist his copyrighted manuscript constitutes publically accessible prior art. His rejoinder is that it was never public. Lister finally got to the court of appeals.

Continue reading "Teed Off"

Posted by Patent Hawk at 9:32 AM | Prior Art

September 20, 2009


Vita-Mix is a blender maker with 5,302,021. Vita-Mix sued competitor Basic for patent and trademark infringement. The district court let Basic off the hook in summary judgment. On appeal, the CAFC limited prosecution disclaimer, and found potential matters of fact that revived the issue of infringement.

Continue reading "Stirred"

Posted by Patent Hawk at 10:07 PM | Case Law

September 19, 2009

Stood Up

AsymmetRx sued Biocare over cancer detection patents which Harvard owns by assignment. AsymmetRx had a conditional exclusive license, while Biocare had its own conditional non-exclusive license. Before asserting the patents, "AsymmetRx was to 'give careful consideration to the views of Harvard and to potential effects on the public interest in making its decision whether or not to sue.'" AsymmetRx did no such thing. At issue was standing.

Continue reading "Stood Up"

Posted by Patent Hawk at 1:33 AM | Standing

September 18, 2009

Patented Treatment

Prometheus Labs got patents (6,355,623; 6,680,302) on "methods for calibrating the proper dosage of thiopurine drugs, which are used for treating... autoimmune diseases." "[N]on-responsiveness and drug toxicity may complicate treatment in some patients. To that end, the patents claim methods that seek to optimize therapeutic efficacy while minimizing toxic side effects." The claims go to two steps: 1) administer the drug, and 2) determine "the levels of the drug's metabolites." Yes, drug treatment is patentable.

Continue reading "Patented Treatment"

Posted by Patent Hawk at 1:22 AM | § 101 | Comments (2)

September 14, 2009

No Padding

Lydall sued Federal Mogul for infringing RE39,260. "The '260 patent is directed to flexible insulating shields that can be used for thermal and acoustic insulation." It came as no consolation that there was no insulation from a claim construction that rendered the assertion a dereliction.

Continue reading "No Padding"

Posted by Patent Hawk at 12:38 AM | Claim Construction

September 11, 2009

Form Fitting

In the salad days of personal computing, Ben Day came up with a "touch screen form entry system" while working at AT&T. 4,763,356 resulted. Current owner Lucent disingenuously sued Dell and Gateway over it, while Microsoft software was the real culprit. Microsoft indemnifies its big corporate customers, and so stepped in. And lost. To the tune of $358 million. Bad tune. So bad, the CAFC called it tone deaf. Herein, two teams of randomly competent lawyers dance bad ballroom.

Continue reading "Form Fitting"

Posted by Patent Hawk at 5:31 PM | Damages | Comments (1)

September 9, 2009

Petrified Wood

Carpenter Ron Nystrom has been trying to beam Trex and others with 5,474,831, claiming a wood flooring. In his first suit against Trex, he lost on claim construction, appealed, got a remand, but had waived equivalents, and so the case fell to the floor. So Nystrom filed a second suit. "In this suit, Nystrom based his infringement claim solely on the doctrine of equivalents."

Continue reading "Petrified Wood"

Posted by Patent Hawk at 12:02 PM | Claim Construction

September 4, 2009

Junk Examination

To characterize USPTO examination quality over the past 20 years as uneven would be a complimentary understatement. 'Good enough for government work' would be more like it, with 'shoddy' pithily on-point. In the 1990s the PTO granted reams of junk patents, creating a political firestorm as the junk hit the litigation fan. In the past few years, the reaction by a politicized patent office has been a sphincter of parsimony: not granting patents for deserved inventions. Herein a case in point.

Continue reading "Junk Examination"

Posted by Patent Hawk at 5:32 PM | The Patent Office | Comments (105)

September 3, 2009

Healthy Assertion

Martek and Lonza vend a health supplement made "by extracting lipids from fermented microorganisms - specifically certain microalgae." Martek owns patents it asserted against Lonza: 5,340,594; 5,698,244; 6,410,281; and 6,451,567. Some claims were found infringed in district court, and thereupon the inevitable appeal. Lonza attacked priority date by way of parent enablement; fought the finding of infringement via questionable testing; argued prior invention with uncorroborated evidence; and tried to clobber the claim construction using the file wrapper as a club. Meanwhile, Martek had its own appeal query: what's an animal?

Continue reading "Healthy Assertion"

Posted by Patent Hawk at 7:25 PM | § 112 | Comments (5)