June 29, 2010
A deluge of patent lawyers wanting to explain the import of the Supreme Court's Bilski bonk has besieged my email inbox, and maybe yours too. Let me save you the time. Of the SCOTUS patent rulings in the past decade, the implications of Bilski are the easiest to decipher. What Bilski means is that business methods are patentable. What Bilski means is that the CAFC § 101 standbys, notably State Street and AT&T Corp. are precedentia non grata (yep, just making up Latin, but you get the point). § 101 as "only a threshold test" may mean more a retuning elsewhere than another attempt at pinning down 101 itself.
June 28, 2010
Today, 9-0, the Supreme Court ruled Bilski's claimed risk hedging an abstract idea, thereby contravening § 101 as patentable subject matter. Four Supreme Court justices would have ruled that business methods are categorically not patentable. So, 5-4, § 101 "precludes a reading of the term 'process' that would categorically exclude business methods." And, oh, by the way, to hell with State Street.
June 24, 2010
This coming Monday, June 28, is the last day of the Supreme Court session that started in October 2009. It is also the final day that Justice Stevens sits on the high Court before retiring. The first case Justice Stevens authored was Parker v. Flook, 437 U.S. 584 (1978). Flook tried to patent use of a known algorithm, applied to computerized updating of alarm limits. The claimed method tripped over § 101 as not "eligible for patent protection," as being merely "the identification of a limited category of useful, though conventional, post-solution applications of such a formula." Bilski will also violate § 101, leaving only the question of exactly how the Court will cast the rejection. Pundit Hal Wegner expects the Bilski decision Monday, and puts the odds of Justice Stevens writing an opinion "almost certain," though hedges "the bigger question" of "whether his opinion will be for the majority or whether it will be a concurring or dissenting opinion."
June 23, 2010
"An annuity is a contract that guarantees the payment of money to an annuitant upon certain intervals. Annuities are typically used to provide individuals with long-term economic protection against the risk of outliving their assets." 7,089,201, owned by Lincoln National Life Insurance Company claims "computerized methods for administering variable annuity plans," particularly, paying out "even if the account value is exhausted." Nervy competitor Transamerica filed a DJ.
June 18, 2010
7,051,018 & 7,082,437, owned by Encyclopaedia Britannica, "relate to a multimedia database search system for retrieving textual and graphical information." The patents "claim priority back to October 26, 1989 through a chain of patents and patent applications." That priority chain was broken by a prosecution mistake in an intervening application, 08/113,955. As a result, "Britannica's foreign patent application, WO91/06916, published on May 16, 1991, was found to anticipate under 35 U.S.C. § 102(b)."
June 16, 2010
Wordtech sued a school district in California, and Integrated Networks Solutions (INSC), along with four INSC employees, for infringing CD copier patents 6,141,298; 6,532,198; and 6,822,932. The school district settled. Only after that did INSC attempt to allege invalidity, a motion denied by the district court. Jury trial "found that all defendants infringed all three patents willfully. After trial, the district court found the case "exceptional" under 35 U.S.C. § 285 and awarded treble damages, attorneys' fees, interest, and costs to Wordtech." The only appeal challenge was for the liability verdicts against two INSC employees.
June 15, 2010
Database monolith Oracle tried to put a DJ hurt on 5,894,554 as invalid and/or unenforceable. Patent owner epicRealm counterclaimed infringement, then passed the torch to Parallel Networks to carry on. '554 goes to "efficiently managing dynamic web page requests. Specifically, the claimed invention seeks to lighten a web server's processing load by allowing it to off-load dynamic web page requests to one or more page servers."
June 14, 2010
Opium for the Masses
Par Pharmaceutical filed an ANDA to make a time-released version of the opiate tramadol. Patent holder Purdue sued for infringing 6,254,887 & 7,074,430. What was Purdue smoking? The asserted claims were readily obvious in light of 5,580,578. A charge of inequitable conduct by submitting "a materially misleading declaration" was merely "overly aggressive" "positive spin," not intent to deceive.
June 11, 2010
Advanced Magnetic Closures ("AMC") sued Rome Fastener ("Romag") for clasping 5,572,773, claiming "a magnetic snap fastener commonly used in women's handbags." Undisputed claim construction showed asserted "claim 1 only covers fasteners with rivet holes that increase magnetic attraction, but not rivet holes that do not increase magnetic attraction." "In an attempt to prove its claims, AMC submitted re-constructed evidence, presented contradictory testimony, and engaged in evasive litigation tactics." AMC's suit came unfastened as Romag found putting the stink on AMC a snap.
June 9, 2010
TriMed sued Stryker in 2006 for infringing 5,931,839, which claims "an implantable device used to set bone fractures." The district court granted summary judgment of noninfringement. Appeal reversed and remanded for an incorrect claim construction. Stryker then struck pay dirt with summary judgment invalidity. The appeals court was less than thrilled.
Disturbing the Calm
The BBC is reporting that the "Indian government is planning to patent nearly a thousand yoga postures." Swami Pragyamurti Saraswati is not pleased: "In fact, I'm distressed at the way things have developed in recent years." Maybe the good Swami needs to take a lesson from Elvis Costello: "I used to be disgusted, and now I try to be amused."
June 8, 2010
B-K Lighting sued FVC for infringing RE39,084, which claims an adjustable mount for a sealed light fixture. After giving the B-K's expert short shrift, the district court granted summary judgment of invalidity by obviousness for the asserted claims. The per curiam appeal pitched it back to the district court, because of "the conflicting testimony of the parties' experts" about whether a prior art reference disclosed a critical feature. In dissent, Judge Newman put the spotlight on spotty reasoning.
June 6, 2010
Japan-based Funai Electric, by virtue of 6,115,074, owns a piece of the U.S. digital TV broadcast standard. "At the suggestion of the lead inventor of the '074 patent and after the '074 provisional patent application was filed, the ATSC adopted the A/65 Standard... The Federal Communications Commission ("FCC") mandated that, effective May 29, 2008, transmission of digital broadcast television signals comply with the ATSC A/65 standard. 47 C.F.R. § 73.682(d). Furthermore, beginning on March 1, 2007, all digital televisions ("DTVs") sold in the United States must be capable of receiving broadcasts compliant with the ATSC A/65 Standard. See 47 C.F.R. § 15.117(a), (b), (h), (i)." The ITC was the venue for this inevitable patent battle. Here we tune into another show of how devilish claim construction can be.
June 4, 2010
Beginning its enforcement campaign with the beginning of the alphabet, Silicon Graphics sued ATI and AMD, ultimately for infringing 6,650,327, which claims pipelined floating point graphics calculations. Two other patents had been asserted, but summary judgment in favor of defendants wiped the litigation of those. Summary judgment of non-infringement, as well as a district court finding that a Microsoft license covered part of the action, wiped '327's assertion. But the counterclaim case proceeded to trial, where the patent was found not invalid. Then, naturally, appeal from both sides. Besides claim construction and infringement, a look herein at exhausting defenses and counterclaims.
June 2, 2010
Haemonetics sued Fenwal for infringing centrifuge patent 6,705,983. Litigation whirled away all but claim 16 as asserted. District court claim construction defined a "centrifugal unit" as a vessel, even, though the claim preamble read a "centrifugal unit comprising a centrifugal component and a plurality of tubes." '983 was found not invalid and infringed, resulting in $11.3 million in lost profits damages and $4.3 million in reasonable royalty damages. Appeal paid more attention to the preamble. Plus, a new spin to the old standard of §102 ¶2.
June 1, 2010
Jack C. Benun must really have wanted to be in pictures. Benun had a string of companies in film roll processing (lens-fitted film packages (LFFPs)), which digital technology has rendered obsolete. In the process of processing, Benun infringed Fujifilm patents. This episode, after injunction, interdicted shipment, illicit re-importation, bankruptcy, damages, and a finding of contempt, "is the sixth appeal from decisions finding liability for infringing Fuji's LFFP patents by Benun and companies under his control."