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December 31, 2009
Broken: The USPTO
This begins a series on what is wrong with patents in this country.
The constitutional goal of patents is "to promote the progress of science and
useful arts." But patents present irrepressible
contradictions of purpose by the players of the patent game, and the pursuit of
self interest by the players reveals their flaws and limits. Which is to say that the room for improvement would fit the several
elephants of what is obviously wrong, but seldom
acknowledged by those involved. Aside from incompetence, which weighs in heavily, two factors
stress the patent system: politics and money. Let's begin with the place where patents are
birthed: the patent office.
Continue reading "Broken: The USPTO"
Posted by Patent Hawk at 9:53 AM | The Patent Office | Comments (18)
December 29, 2009
Stilted
William
Armstrong and Joe Lin got a patent, 5,645,515, for a particular type of stilt
used in construction, requiring a "resiliently lined yoke." Each formed a
company for selling stilts: Armstrong created Southland Supply, while Lin
sprouted Forest Group. "Southland sold stilts to Bon Tool, a tool reseller. Bon
Tool later stopped purchasing from Southland and started purchasing stilts from
a foreign supplier, Shanghai Honest Tool Co., Ltd. (Honest Tool), which
manufactured identical replicas of Southland's stilts without a license from
Forest." Forest sued Bon Ton for infringement. "Bon Tool counterclaimed alleging
false marking pursuant to 35 U.S.C. § 292, a Lanham Act violation pursuant to 15
U.S.C. § 1125, and seeking a declaratory judgment that the '515 patent was
invalid.
Posted by Patent Hawk at 6:46 PM | Case Law | Comments (1)
December 23, 2009
Pawns & Prawns
Two films about alien relocation reveal a
stark difference in maturity - of their
respective creators. James Cameron created cinema's most expensive cliché with
Avatar, a juvenile cartoon sketch that won't go down as a science fiction
classic. But what will, just released on DVD, is District 9. First-time director
Neill Blomkamp portrays cartoonish characters that feel real, as does the film
itself. All too real - in expressing human nature, something Cameron lampoons
while aiming for the same mark. The two films overlap in many ways, making it
easy to observe that District 9 puts Avatar to shame where it counts.
Posted by Patent Hawk at 11:51 AM | | Comments (7)
December 22, 2009
Unpreserved
i4i sued Microsoft for a pissant feature in Word: editing custom XML.
But to i4i's business, the feature was puissant. A seven-day trial found
Microsoft willfully infringing a valid patent, with a jury award of $200
million. "Although statutorily authorized to triple the jury's damages award
because of Microsoft's willful infringement, the district court awarded only $40
million in additional damages. It also granted i4i's motion for a permanent
injunction." The inevitable appeal, widely expected to go more Microsoft's way
than not, did not. Procedural fumbling by supposedly the best lawyers money can
buy sold Microsoft short. Herein, CAFC case law heavy on burden and sufficiency,
in a case practically covering the gauntlet of patent enforcement.
Continue reading "Unpreserved"
Posted by Patent Hawk at 8:57 PM | Case Law | Comments (1)
December 19, 2009
Clogged
Footwear
importer Seaway sued Walgreens drug stores for selling those colorful plastic
clogs, thereby infringing
D529,263,
D545,032, and
D545,033. The district court booted the case in summary judgment because of
anticipation by clog design patent
D517,789, owned by Crocs. Seaway appealed, to a split decision on the crucial perspective of
§102 in applying the "ordinary observer" test. After failing to address
validity in its sea-change
Egyptian Goddess
decision, a CAFC panel plays catch-up, and drops the ball.
Posted by Patent Hawk at 1:58 AM | Design Patents | Comments (1)
December 17, 2009
No Transaction
Bless
his heart, Henry Gleizer couldn't let go of his automated transaction patent
application, taking his appeal all the way to the CAFC. What wasn't obvious to
Henry was that obviousness isn't just obvious, post-KSR, it's monstrously
obvious. Gleizer was affronted with the ease of combination to stomp his claims.
However inarticulate, articulated reasoning need be but a whisper to damnation.
And that whispered word need only be "predictable."
Continue reading "No Transaction"
Posted by Patent Hawk at 2:03 AM | Prior Art | Comments (2)
December 16, 2009
Expert?
Experts
are the litigation equivalent of hired guns. They are only as good as the
guidance given by the attorneys providing their payday on what bullets to shoot
where. A case in point is Intellectual Science and Technology v. Sony.
5,748,575, one of five patents left standing on appeal, claims concurrent
reading of computer CDs. The district court pitched the case on summary judgment
for non-infringement after the plaintiff's expert failed to convince, as his declaration
was "merely conclusory." The appeals court gave a lesson in how an expert ought to spurt.
Posted by Patent Hawk at 12:36 AM | Infringement | Comments (1)
December 13, 2009
So Unlike Concrete
In
an extremely messy patent case involving claim construction (and correction),
noninfringement, invalidity, laches, indefiniteness, trade secrets, and topped
with several business torts, Ultimax Cement had its quick-set concrete patents
crumble by a sledgehammer summary judgment at district court, and so Ultimax
sought repair at the CAFC. The foundation of the patent problem: lack of careful
proofreading by the prosecutor.
Continue reading "So Unlike Concrete"
Posted by Patent Hawk at 1:04 AM | Claim Construction | Comments (3)
December 12, 2009
Fig Leaf
The
USPTO proves itself a political creature (again) with a
pilot program to
fast-track so-called green technology patent applications. "Every day an
important green tech innovation is hindered from coming to market is another day
we harm our planet and another day lost in creating green businesses and green
jobs," spouted agency Director David Kappos. 3,000 applications, out of 770,000
pending, are deemed green enough.
Posted by Patent Hawk at 10:10 PM | The Patent Office | Comments (0)
December 10, 2009
Proviso Surgery
The
four-corners rule for contract law is straightforward. What is often not
straightforward is the clarity of contracts. Thus hinges the case of Tyco
Healthcare v. Ethicon Endo-Surgery. The upshot, in a contentious dispute
over patent assignment & license, was that Tyco lacked standing to sue, and so the case
was dismissed without prejudice. Ethicon wanted it dismissed with prejudice.
Continue reading "Proviso Surgery"
Posted by Patent Hawk at 7:37 PM | Standing | Comments (0)
December 8, 2009
Actually Factual
Source
Search Technologies (SST) sued LendingTree over
5,758,328, which claims an online vending system employing request for quote
(RFQ) posting to select potential vendors, to which the vendors respond. "The
'328 patent claims to solve the "too much" or "too little" information problem
commonly associated with running searches over a network or system." The
asserted claims were found infringed but obvious, thus invalid, in summary
judgment. The appeal, narrowed to a single claim (14), let the CAFC panel
reiterate its caution to district courts: be not hasty in granting summary
judgment if the scent of "genuine issues of material fact" is in the air.
Continue reading "Actually Factual"
Posted by Patent Hawk at 5:26 PM | Infringement | Comments (1)
December 5, 2009
Barred
It
used to take a kick in the pants to file a declaratory judgment (DJ) action.
Then the January 2007 Supreme Court
MedImmune ruling lowered the bar, followed by the spring chicken CAFC
Sandisk decision. Untested was how low the bar was. HP tested it, and
found that "a lowered bar does not mean no bar at all." At least in district
court. At the CAFC, which uttered the foregoing quote, paying lip service means
a lowered bar is really no bar at all. Especially if the patent holder isn't in
the business of something more than patents.
Posted by Patent Hawk at 1:01 AM | Declaratory Judgment | Comments (14)
December 3, 2009
Imperfect Web
Tom
DiStefano got his quota-fulfilling bulk email patent,
6,631,400, when the PTO was still grinding out junk patents. Sued for
infringement, InfoUSA snuffed the spam patent in summary judgment under
obviousness after claim construction. With common sense, the CAFC licked the
stamp that put that patent out of everyone else's misery, allowing a flood of
spam email to go unpatented.
Continue reading "Imperfect Web"
Posted by Patent Hawk at 8:04 PM | Prior Art | Comments (2)
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