April 29, 2010
Judson A. Bradford had some ideas for collapsible shipping containers. So he patented. 5,725,119 came first. Then 6,230,916, a divisional of '119. 6,540,096 was a CIP of '916. Enforcement went nowhere: noninfringement. But the CAFC revived Bradford's prospects owing to a too-narrow claim construction. Of particular interest in this case is that Bradford damned himself in the '096 CIP having benefit of the earlier '119 parent prior date.
April 28, 2010
Dr. Hannis Stoddard went to the animal shelter to retrieve his lost dog. Apparently taken by what he saw, "Dr. Stoddard made it his mission to implement a better system of dealing with the identification and processing of recovered animals." So he started Avid Identification Systems. As it always does in gentle creative souls, compassion led to patenting, and patenting led to litigation, as it always does with valuable technology. Good intentions pave the road to hell. And so Dr. Stoddard became ensnarled in a charge of inequitable conduct.
April 27, 2010
6,919,373 is a drug patent that claims a treatment regime for folks with short attention spans. The claims specifically go to "an ascending release rate over an extended period of time." A bench trial found '373 not infringed, and "invalid for lack of enablement because the specification does not enable the full scope of claim 1, which covers both osmotic and non-osmotic dosage forms." Enablement hinged on whether undue experimentation was needed to deliver an oral dosage that didn't rely upon osmosis. The district court found too much tinkering was needed based upon scant disclosure, hence the claims were not enabled. Appeal found the same deficit of attention.
April 22, 2010
Nissim sued ClearPlay for patent infringement. They settled by ClearPlay taking a license, paying ongoing royalties. Nissim got upset that ClearPlay wasn't playing it straight, so Nissim sued to enforce the agreement, as well as tattling to ClearPlay's customers. ClearPlay sued for tortious interference and other legal breaches of the licensing agreement. Nissim's suit went nowhere, having found that ClearPlay "had substantially complied with the agreement and was not in breach." Miffed, Nissim terminated the license agreement. Whereupon ClearPlay got a preliminary injunction to bar Nissim from doing so. Nissim appealed to the CAFC.
April 20, 2010
09/310,880 (Harari) traced its priority date linage back to June 8, 1988. 5,828,601 (Hollmer) was filed December 1, 1993, with no antecedent. So how do these two get into an interference, and Harari's claim to invention draws the short straw? USPTO incompetence!
April 18, 2010
RE36,885 claims a hypodermic safety syringe. '885 is fifth in a family dating back to 1990. MBO amended claims in the parent application, and in a succeeding CIP, to overcome prior art. In a cousin to the reissued '885, MBO argued over the prior art. The examiner allowed the claims, but MBO abandoned that application to pursue 5,755,699, which would later reissue as '885. MBO sought the reissue that became RE '885 to get broader claims. Which it did. But, in enforcement, the reissue was captured by recapture.
April 16, 2010
Keep It Secret, Keep It Safe
A patent and/or its publication may be withheld indefinitely when deemed "detrimental to the national security" under the Invention Secrecy Act, 35 U.S.C. § 181. An applicant/patentee may seek compensation for secrecy withholding under § 183, beginning with "the date of first use by the Government." Alton B. Hornback invented an improvement to missile guidance accuracy. The Air Force liked his idea, and keep it secret from 1987 to 1999. Hornback finally got 6,079,666 in June 2000. He sought compensation.
April 15, 2010
"In 2003, Congress enacted the counterclaim provision of the Hatch-Waxman Act in order to prevent manipulative practices by patent holders with respect to the Orange Book listings. These practices were designed to delay the onset of competition from generic drug manufacturers." Judge DYK, dissenting in Novo Nordisk v. Caraco. The Byzantine regulatory labyrinth over drugs coming off patent protection bounces like a ball on the roulette wheel of case law once more.
April 14, 2010
The rampaging incompetence of the USPTO is dammed only by appeal to the courts. Time and again, the PTO's "broadest reasonable interpretation" of claims is hell and gone from reasonable. Case in point: 4,944,514, owned by Suitco Surface, which got a hard buffeting from the patent board in reexam, but reprieve from the CAFC.
April 13, 2010
Anascape sued Nintendo and Microsoft over 6,906,700, which claims multiple controller input with tactile feedback. '700 is a CIP of 6,222,525. As such, '700's earliest possible priority date for its claims depends upon spec support within '525. And so '700's validity, as invalidating prior art lies between the '525 filing date and the '700 filing date. Thereupon hangs the patent's fate, upon whose reliance is an early priority date.
April 12, 2010
Global Locate took SiRF and others to the ITC to stop the defendants from importing products infringing six of its GPS patents, which claim methods for improving signal reception. Global Locate prevailed. The defendants appealed. At issue were standing, infringement, and whether GPS-based methods were patentable subject matter under the Bilski standard.
April 10, 2010
Close-call patent litigation cases are not unusual, but many are exercises in denial. In this episode, Bid for Position bid for doggedness over 7,225,151, which claims a method for conducting a continuous auction. Having lost on non-infringement by a clear-cut claim construction, appeal makes Bid's grasping lawyers look doggedly witless. The not-so-thin line between advocacy and asininity is traversed again.
April 8, 2010
Inventor Hard On
Vanderbilt University was cocksure that it contributed to the patents behind Cialis®, the currency-squirting erectile energizer. So it sued ICOS, current owner of 5,859,006 and 6,140,329, under 35 U.S.C. § 256, to correct inventorship. The district court decreed that Vanderbilt was pumping dog water. The CAFC affirmed that Vanderbilt had shot its wad.
April 6, 2010
Florian Mueller reports that IBM "breaks the taboo and betrays its promise" to the open-source software community. Allegedly, IBM threatened to sue TurboHercules, an open-source mainframe emulator company, for patent infringement. Naive to a fault, TurboHercules founder Roger Bowler opined: "I can state with confidence that our emulator is in no way an enemy of IBM's." Apparently, Roger fails to reckon with the market reality that IBM values its sales in this sector. IBM reportedly makes around $25 billion annually on mainframe software sales.
April 5, 2010
The 2007 Supreme Court ruling in MedImmune, Inc. v. Genentech set the stage for declaratory judgment actions at the sound of a snort from a patent holder. Or so those weak-in-the-knees over infringement reckon. Innovative Therapies (ITI) worried itself into a DJ action over five patents held by competitor Kinetic Concepts (KCI). "The patents relate to medical devices for negative pressure wound therapy, used in treatment of chronic wounds." KCI got the action dismissed, "stating that it had not seen the ITI device, had not examined it for possible infringement of any KCI patent, and had not accused ITI of infringement." ITI appealed.
April 4, 2010
Hearing Components sued Shure over hearing aid patents 4,880,076; 5,002,151; and 5,401,920, technologies used in Shure's earphones. The district court outcome was invalidity by indefiniteness for '920 asserted claims, and noninfringement for a few claims of '076 and '151 for Shure's product that used a straight nozzle. A jury found the '076 and '151 patents "not invalid and infringed by Shure's products both with a barb and with a straight nozzle," and awarded $4.6 million in damages. Post-trial, the judge granted a portion of Shure's noninfringement motion, but left the patents valid. That went to appeal, as well as denying Shure noninfringement JMOL for its barbed nozzle earphones, and denying laches. Hearing Components wanted another hearing on the claim term "readily" turning its claims deaf to definiteness.