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January 29, 2010


5,820,551 claims single-use test strips for measuring blood sugar, useful for diabetics. Becton, Dickinson and Company threw down a declaratory judgment (DJ) action on competitor Abbott over a couple other patents. Abbott countered with a suit that also asserted '551. Weak move. The DJ worked: summary judgment of non-infringement and anticipation of numerous claims of one patent. '551 underwent a bench trial, and didn't survive the operation: invalid due to obviousness and unenforceable due to inequitable conduct. Abbott appealed.

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Posted by Patent Hawk at 1:25 AM | Prior Art

January 26, 2010

Restricted Reply

37 CFR § 41.37, on appeal briefs, fully covers regulation of arguments made on appeal: "Any arguments or authorities not included in the brief or a reply brief filed pursuant to § 41.41 will be refused consideration by the Board, unless good cause is shown." 37 CFR § 41.41, on reply briefs: "A reply brief shall not include any new or non-admitted amendment, or any new or non-admitted affidavit or other evidence." In a January 7, 2010 expanded-panel BPAI ruling ex parte Borden, denying a rehearing of an appeal, the Board ruled much more restrictively on reply briefs: "The reply brief is not an opportunity to make arguments that could have been made during prosecution, but were not. Nor is the reply brief an opportunity to make arguments that could have been made in the principal brief on appeal to rebut the Examiner's rejections, but were not."

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Posted by Patent Hawk at 12:40 AM | Prosecution

January 25, 2010

Quinn the Eskimo

Charming Gene Quinn of IPWatchdog is running a hot streak. An anonymous comment crowning Quinn "the King of Douchebags" put him enough out of sorts to change his web site to admit only registered supplicants to comment on his blog. One can only speculate as to his apoplexy if he instead had been titled the Queen of Douche Bags. Quinn's expressed desire is "to encourage an atmosphere free of the petty and vile Internet discourse that so many traffic in these days." Apparently, someone else has the same goal. Invent Help is suing Quinn for "false and misleading claims in their Internet advertising." Invent Help and Quinn compete to service inventors. Quinn opines that "they apparently do not like the fact that I have written about invention submission scams..." Apparently not.

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Posted by Patent Hawk at 8:11 PM | | Comments (19)

January 22, 2010

Vexed Fax

Catch Curve owns a family of five fax patents, the parent of which is 4,994,926. The patents "patents focus on the use of a computer-based device known as a 'store and forward facility,' or SAFF." A SAFF can forward a fax over telephone lines to a fax machine or to another SAFF. Catch Curve sued Venali with its five patents. A narrow claim construction resulted in requiring the use of the facsimile protocol, and that transmission was over a switched telephone network. Caught out, Catch Curve curtailed its assertion, but lost in summary judgment on noninfringement, leading to a last gasp transmission to the appeals court.

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Posted by Patent Hawk at 1:28 PM | Claim Construction

January 19, 2010

Scan This

"Believe it or not, in our patent office -- now, this is embarrassing -- this is an institution responsible for protecting and promoting innovation -- our patent office receives more than 80 percent of patent applications electronically, then manually prints them out, scans them, and enters them into an outdated case management system. This is one of the reasons why the average processing time for a patent is roughly three years." - President Obama

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Posted by Patent Hawk at 12:57 AM | The Patent Office | Comments (9)

January 15, 2010

Going Up

5,689,094 claims personal recognition that tells an elevator where to go. Patent owner Schindler Elevator tried to get a lift over Otis Elevator, but Otis got a summary judgment of noninfringement by construction of claim, which was a shame, because, on appeal, the district court took the blame. The CAFC told the district court where to go, while leaving the final destination indefinite.

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Posted by Patent Hawk at 10:32 PM | Claim Construction

January 14, 2010

Bull Run

For the 17th year running, IBM has gotten the most U.S. patents. "Their patent department is a profit center," observed Bruce Lehman, former PTO director, and now head agent provocateur at the International Intellectual Property Institute. IBM made something in the neighborhood of $1.1 billion from patent licensing in 2009. But patent maven Ocean Tomo holds that Microsoft's patent portfolio is three-fold more valuable than IBM's. "The ultimate value is not some rating," toots Manny Schecter, IBM's chief patent counsel. "It's the leverage we are able to get from the patent [licensing] negotiations." Right there is the rub about Microsoft and patents: they don't know how to monetize patents, nor even valuate them.

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Posted by Patent Hawk at 1:15 AM | Patents In Business | Comments (1)

January 9, 2010

Unfried Chicken

Restaurant Technologies (RTI) sued Jersey Shore Chicken for infringing 5,249,511, which claims a system for supplying and disposing of cooking oil in restaurant fryers. If RTI had a good prosecutor, the patent wouldn't have read like a product manual, with too few embodiments, especially for means-plus-function claims. Herein, RTI gets fried pursuing denial to a bitter end.

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Posted by Patent Hawk at 11:12 PM | Infringement

January 8, 2010


However one may wish the USPTO well, they certainly are stingy bastards, seemingly bent on cheating their constituency, inventors, at every turn. Herein, Wyeth has to fight all the way to the CAFC to get their patent legally extended because the patent office was tardy in allowing a grant. This episode is a sad comment on David Kappos, early in his tenure at the helm of the agency.

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Posted by Patent Hawk at 12:22 AM | The Patent Office | Comments (48)

January 5, 2010


The noxiousness of the faux first-to-invent regime that the U.S. alone clings to is seldom exposed to the harsh daylight of the appeals court. Philips got its pulse up over a patent it inherited when it drew the short straw in a BPAI interference against Cardiac Science. Philips sued in Washington district court, where the judge sua sponte ditched the case with prejudice, provoking appeal. The CAFC reminded of the intricate rules that the PTO ignored, and the district court failed to heed.

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Posted by Patent Hawk at 11:44 PM | Prosecution | Comments (8)