May 28, 2010
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.
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.
May 27, 2010
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.
May 26, 2010
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.
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.
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."
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."
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)
May 19, 2010
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.
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.
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.
May 14, 2010
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.
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."
May 10, 2010
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.
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.
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.
May 7, 2010
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.
May 5, 2010
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.
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."
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.
May 3, 2010
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.