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May 28, 2010
Scattered
Leviton,
rather fond of patent litigation, got into a patent battle with Shanghai Meihao,
asserting a patent that was a real stinker. Not content to find intent, CAFC
majority missed the boat on an easy inequitable conduct call: they wanted a
trial for something decided on summary judgment. Like being in a forest and not
thinking that there any trees nearby.
Posted by Patent Hawk at 10:51 PM | Inequitable Conduct
Custom Casket
In
offering a license, Ablaise accused Dow Jones of infringing
6,961,737 &
6,295,530, claiming web page personalization. Dow Jones replied with a DJ.
Realizing that validity was in jeopardy, Ablaise offered a covenant not to sue
for '530 (not '737), which Dow Jones spurned, because Ablaise wouldn't extend
the covenant to Dows' parent, News Corporation. In the issue of continuing
subject matter jurisdiction, the district court waved the proffered covenant
away, and kept the railroad running. The district court found the asserted
claims obvious in light of Fishwrap, an MIT online newspaper,
5,675,507, a customizable fax viewer, and HTGrep, with optional views of
search results. The CAFC took Ablaise's covenant offer more seriously.
Continue reading "Custom Casket"
Posted by Patent Hawk at 12:19 PM | Standing
May 27, 2010
Alternative Programming
On
a typical day, Adam Albrett, aka Muhannad Almahmoudi, prosecutes patents in
Fairfax Virginia. Also an inventor, Mr. Albrett was granted
7,610,011, titled "Providing alternative programming on a radio in response
to user input." On May 14, Mr. Albrett allegedly went in for some alternative
programming himself, sending a nastygram through the White House web site.
Continue reading "Alternative Programming"
Posted by Patent Hawk at 9:36 PM | Prosecution | Comments (5)
May 26, 2010
Definitely
The CAFC standard for §112 ¶
2 indefiniteness is lax. A panel rehearing petition in Enzo v. Applera
(CAFC 2009-1281o)
was denied, but Judge Plager, in dissent, had some choice words on the topic.
Posted by Patent Hawk at 4:41 PM | § 112 | Comments (11)
May 25, 2010
Silence Not Golden
Aspex
and Clariti litigation counsel know each other well. Aspex first sued Clariti
over eyeglass frames patents in 1999. They settled the next year. In March 2003,
Aspex sent nastygrams to Clariti over some other patents. Clariti responded by
letter. Over three years later, in August 2006, Aspex rattled its paper saber
again. Correspondence turned into complaint. Aspex sued in March 2007. Clariti
got the district court judge to dismiss the case in summary judgment on
equitable estoppel, legalese for sitting on the litigation duff a wee too long.
Continue reading "Silence Not Golden"
Posted by Patent Hawk at 9:04 PM | Case Law | Comments (1)
Flaming Claiming
Randall
B. Carter was VP and General Manager of Acme Security from 1992 to 2006. While
there, "he allegedly developed a high security locking assembly for a safe
deposit box door on his own time and with his own resources." This led to
patenting, listing Michael Hassebrock, Acme President
at the time, and Carter as inventors. "Subsequently, Hassebrock allegedly demanded that Carter assign his patent rights to Acme Security. Carter refused, and Acme
Security terminated his employment." So Carter sued: "nine claims purportedly
based on federal law and six on state law."
Continue reading "Flaming Claiming"
Posted by Patent Hawk at 11:41 AM | Case Law | Comments (1)
May 24, 2010
Patent Slips on Non-Slip Surface
Microthin.com
sued SiliconeZone computer mouse pad patents
5,942,311 &
5,997,995, which claim "a thin, non-slip mat or pad made of plastic" and a
method of making the same, respectively. After claim construction, the
district court, by summary judgment, found the asserted claims, claim 1 of each
patent, anticipated by
5,738,325. Microthin.com appealed construction of the claim term "non-slip,"
wanting the term to include "not sticky."
Continue reading "Patent Slips on Non-Slip Surface"
Posted by Patent Hawk at 3:57 PM | Claim Construction | Comments (2)
May 23, 2010
Take The Gamble
Nevada
IP holding company Patent Rights sued "out-of-state gaming companies" on its
home turf, for infringing
6,475,087 and
6,860,814, which claim "casino-style gaming machines." The Nevada courts
dismissed the cases for lack of personal jurisdiction, and "denied Patent
Rights' request for jurisdictional discovery." Vacating and remanding, the CAFC
told the Nevada court to take it on. (CAFC
2009-1391,
precedential)
Posted by Patent Hawk at 3:45 PM | Standing
May 19, 2010
Misguided Missile
Another
patent applicant groans like Tom Jones: "Stop Breaking My Heart." Does this
lyric sound familiar? "The applicant argues that these rejections were based on a
misunderstanding of the [prior art] references, and lacked sufficient findings
by the Board. The applicant states that the Board misinterpreted claims [],
leading the Board to conclude erroneously that the additional limitations in
these claims were taught by [the prior art]. The applicant complains that
neither the examiner nor the Board made sufficient findings or adequately
explained their reasoning. The PTO, through the Solicitor on this appeal, now
seeks to substitute new reasoning for that supplied by the Board concerning how
the asserted references should be interpreted." Business as usual at the PTO.
But, like Tom Jones hammering home "Sixteen Tons," the CAFC lambasts the PTO for
randy rejection.
Continue reading "Misguided Missile"
Posted by Patent Hawk at 4:18 PM | Prior Art | Comments (39)
May 18, 2010
Sales Assistant Killed
Jerome
Johnson got thoughtful while working "at a farm equipment dealership." 5,367,627
claims a computerized sales assistance system for finding particular parts.
Jerome
sold the patent to Orion in 2004. Orion sued Hyundai and 20 other automakers.
The 20 others settled, but Hyundai fought on. Hyundai lost, to the tune of $34
million, plus interest and ongoing 2% royalty. Failing post-judgment JMOL,
Hyundai appealed over anticipation and inequitable conduct.
Continue reading "Sales Assistant Killed"
Posted by Patent Hawk at 12:04 PM | Prior Art | Comments (1)
May 15, 2010
The Napkin of Death
Esquel
Enterprises filed a DJ against TAL Apparel over
5,568,779, claiming methods of making garment seams that reduce pucker. A
finding of inequitable conduct, and attorneys fees award was
reversed on
appeal. On remand, Esquel got the same result. TAL appealed. A split opinion
at the CAFC reveals rancor over what was considered a facile finding of intent.
Continue reading "The Napkin of Death"
Posted by Patent Hawk at 1:22 PM | Inequitable Conduct
May 14, 2010
Crafty Stand
The
labyrinth of possibilities makes patent
licensing a byzantine form of contract, particularly regarding standing. Case in
point. AMF licensed ear implant patents
5,609,616 and
5,938,691 to AB, while retaining certain rights, including the "secondary
right to sue to enforce the patents." AMF informed AB of its plan to sue
Cochlear. AB said "have at it." Cochlear learned of the licensing agreement
during discovery, and got the district court to dismiss the case for lack of
standing to sue. On appeal, the CAFC stood up for for AMF, which had drafted a
crafty license.
Continue reading "Crafty Stand"
Posted by Patent Hawk at 10:27 AM | Standing
May 12, 2010
Mule Kick Trick
Interferences
are the mule kick of the shambolic first-to-invent patent regime that
only the U.S. clings to. In this episode, Jos Timmermans provoked an
interference by copying claims into 11/085,744 from Jones J. Robertson's LED
lighting patent
6,860,628. Timmermans had priority going back to a provisional of the parent
application, and so was senior to Robertson. Robertson argued that the copied
claims were invalid in light of § 112 ¶ 1, lack of written description. The
patent Board ended up canceling Robertson's patent claims. The CAFC vacated and
remanded because "the Board erred in construing Timmermans's claims in view of
Timmermans's disclosure rather than Robertson's disclosure."
Continue reading "Mule Kick Trick"
Posted by Patent Hawk at 11:16 PM | Interference
May 10, 2010
Prosecutor Grift
We
see it all the time. Inventors who paid tens of thousands of dollars to
respectable law firms who took their money and either got them worthless
patents, or strung them out with useless applications that even the patent
office wouldn't grant. They come to
Platinum Patents with a prosecution mess, or tantalized by infringement of
their invalid patent, knock on Patent
Hawk's door looking for a hookup to contingency. Too late for us to prevent
grief and loss. Prosecutors who don't work the beat on the enforcement side of
the street know but a fraction of what they need to know. That's most
prosecutors. They jostle with the crowd who don't even bother performing
adequate prior art searches, and draft claims that defy comprehension.
Dime-store prosecutors on the grift are a dime a dozen. It still saddens me to
witness every time.
Posted by Patent Hawk at 5:16 PM | Prosecution | Comments (12)
Extension
Three
recent cases before the CAFC went to challenges to patent term extension.
Photocure challenged the PTO's denial of term extension in Photocure v.
Kappos, and won. In Wyeth v. U.S., Wyeth unsuccessfully challenged
the FDA's "determination of the date on which the approval phase of its phased
regulatory review process begins for purposes of calculating patent term
extensions." Lupin challenged the PTO's granting an extension to
5,053,407, "an enantiomer of a racemic compound that had previously been
approved by the Food and Drug Administration (FDA)," to no avail.
Posted by Patent Hawk at 10:26 AM | Case Law
May 8, 2010
On the Mat
David
T. Pelz tried to patent a golf training mat (11/066,554). Non-final rejection
purely on anticipation prompted Pelz to amend the preamble. The language in the claims: "consisting
essentially of," and "include," speak volumes to a deft prosecutor of the claims
being in the weeds. The patent Board putted along with the examiner. Pelz
appealed to the CAFC, who held the flag.
Posted by Patent Hawk at 3:39 PM | Prior Art | Comments (3)
May 7, 2010
Swept Away
Rolls-Royce's
6,071,077 and United Technologies (UTC) reissue application 09/874,931 had a
head-on collision in the PTO that bounced into court under
35 U.S.C. § 146. The patents go to fan blades used in jet aircraft. The
lame-brained patent Board misconstrued claims (too broadly, naturally: "the
Board interpreted the claim to embrace both a forward and rearward sweep
angle"), and found an interference, ruling in favor of UTC. The district court
reversed that, holding "that the inventions were patentably distinct and there
was no interference-in-fact, resulting in a final judgment in favor of
Rolls-Royce." UTC appealed.
Posted by Patent Hawk at 10:11 AM | Interference
May 5, 2010
Intent?
Emcore
sued Optium for infringing laser-based optical fiber communication patents
6,282,003 and
6,490,071. Optium charged Emcore for inequitable conduct because Emcore
failed to cite to the patent examiner a relevant article. Emcore did not dispute
that the inventors knew of the prior art. At district court, a special master
found the prior art material, though inequitable conduct not a summary judgment slam dunk.
Posted by Patent Hawk at 9:14 PM | Inequitable Conduct | Comments (2)
Stapled
Don't
mess with Staples. "Staples has won three suits in recent months that, taken as
a whole, demonstrate its resolve to aggressively defend against patent
infringement claims it believes are without merit. The suits involved three
popular products sold under the Staples brand name. In each case, rather than
settle the litigation, Staples instead challenged claims that these products
infringed patents and won."
Posted by Patent Hawk at 9:32 AM | Patents In Business | Comments (3)
May 4, 2010
Black Hole Swab
Allegra
D. Hemphill was granted
4,557,720 for a "vaginal swab." "Ms. Hemphill has prosecuted a number of
actions and appeals based on the '720 patent, none of which has been
successful." She tried again in 2007 against Kimberly-Clark and Proctor & Gamble
for their sanitary napkins products. Ms. Hemphill unmistakably disclaimed
sanitary napkins during prosecution. DC district court enjoined her from any
further suits against the defendants. The appeals court affirmed (CAFC
2010-1047,
nonprecedential). Another case showing that their are no junk patents, only junk
people.
Posted by Patent Hawk at 3:01 PM | Litigation | Comments (8)
May 3, 2010
Sanctioned
Starting in 1998, Medtronic sued multiple parties over multiple surgical
instruments patents, BrainLAB being one of them. Defendants summary judgment
motions of noninfringement were denied. Before the case went to the jury, BrainLAB
renewed its JMOL motions, which the district court again denied. Medtronic won.
Post-trial, BrainLAB filed again. This time, the district court granted the
motions. Medtronic appealed, and lost. Back at district court, BrainLAB
succeeded in getting attorneys fees for litigation misconduct. Back to appeal.
prior art search + 
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