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April 29, 2010
Dun In
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.
Posted by Patent Hawk at 3:09 PM | Claim Construction | Comments (1)
April 28, 2010
Dogged
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.
Posted by Patent Hawk at 9:51 AM | Inequitable Conduct | Comments (1)
April 27, 2010
Attention Deficit
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.
Continue reading "Attention Deficit"
Posted by Patent Hawk at 1:01 PM | § 112 | Comments (3)
April 22, 2010
Unclear
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.
Posted by Patent Hawk at 9:54 AM | Case Law
April 20, 2010
Short Straw
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!
Continue reading "Short Straw"
Posted by Patent Hawk at 12:03 PM | Interference | Comments (2)
April 18, 2010
Stuck
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.
Posted by Patent Hawk at 12:28 PM | Reissue
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.
Continue reading "Keep It Secret, Keep It Safe"
Posted by Patent Hawk at 6:45 PM | Standing | Comments (2)
April 15, 2010
Manipulative Practices
"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.
Continue reading "Manipulative Practices"
Posted by Patent Hawk at 10:19 AM | Case Law
April 14, 2010
Floored
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.
Posted by Patent Hawk at 9:57 AM | Prior Art | Comments (5)
April 13, 2010
Waving Goodbye
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.
Continue reading "Waving Goodbye"
Posted by Patent Hawk at 9:26 AM | § 112 | Comments (12)
April 12, 2010
Located
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.
Posted by Patent Hawk at 10:10 PM | Standing
April 10, 2010
Outbid
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.
Posted by Patent Hawk at 6:02 PM | Claim Construction
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.
Continue reading "Inventor Hard On"
Posted by Patent Hawk at 4:21 PM | Case Law | Comments (3)
April 6, 2010
Open Wallet
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.
Posted by Patent Hawk at 10:22 AM | Patents In Business | Comments (3)
April 5, 2010
Scared
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.
Posted by Patent Hawk at 8:29 AM | Declaratory Judgment
April 4, 2010
Readily
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.
prior art search + 
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