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.
December 29, 2009
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.
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.
December 22, 2009
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.
December 19, 2009
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.
December 17, 2009
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."
December 16, 2009
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.
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.
December 12, 2009
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.
December 10, 2009
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.
December 8, 2009
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.
December 5, 2009
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.
December 3, 2009
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.