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July 29, 2010
Plunger
Becton
tried to stick Tyco with infringing syringe patent
5,348,544.
It did. But Tyco got the district court judge to grant a new trial on
infringement, because Becton changed its infringement theory at trial. Tyco lost
the second trial. Tyco appealed. The CAFC plunged into contentious claim
construction.
Posted by Patent Hawk at 5:48 PM | Claim Construction | Comments (6)
July 28, 2010
Terminal
Eli
Lilly markets cancer drug
Gemzar®, the active ingredient of which is gemcitabine.
4,808,614 claims gemcitabine, and a method for treating viral infections
using gemcitabine.
5,464,826 claims using gemcitabine to treat cancer. Both patents, in the
same family, are owned by Lilly. Lilly did not file a terminal disclaimer for
'826. That would become a terminal mistake.
Posted by Patent Hawk at 4:04 PM | Case Law
July 27, 2010
Lightening Up
The USPTO today issued
revised interim §101 guidelines in light of the SCOTUS Bilski decision. "The machine-or-transformation test remains an investigative tool and is a useful
starting point." Other stated criteria include: applying laws of nature (versus
the laws themselves), and more than "a mere statement of general concepts," for
which examples are given (e.g., mental activity). Examiners "should avoid
focusing on issues of patent-eligibility under 35 U.S.C. §101 to the detriment
of considering" other avenues of rejection (§§ 102, 103, and 112).
Posted by Patent Hawk at 1:14 PM | Prosecution | Comments (3)
July 22, 2010
Lock on Obzilla
Wyers
sued Master Lock for infringing
6,672,115,
7,165,426, and
7,225,649, applicable to hitch pin locks for trailer towing. A jury found the
patents nonobvious. Wyers secured an injunction along with $5.35 million in
reasonable royalty damages. Master couldn't break the lock to obviousness
post-trial, so it appealed. Herein, a thorough discussion of KSR, and
case law that will be cited for years to come.
Continue reading "Lock on Obzilla"
Posted by Patent Hawk at 7:15 PM | Prior Art | Comments (14)
July 19, 2010
Insecure
Paradox
Security Systems sued ADT and other home security companies for infringing
RE39,406, which claims a telephone line coupler circuit. Paradox's expert
was waylaid by defendants for not explaining how the accused products met a
means-plus-function limitation. The district court judge ruled non-infringement
as a matter of law. Appeal found the same short circuit.
Posted by Patent Hawk at 7:05 PM | Infringement
July 14, 2010
Tidbit
Congress
is a cesspool of corruption, offering its members a variety of tricks to feather
their own nests, and pay back those cronies who help finance the con job
commonly called democracy. One legislative sleight of hand is a rider bill,
which is a bill attached to a different, typically unrelated bill, in a furtive
attempt to pass the rider without attracting scrutiny. Rider bills nearly always
cater to a special interest, and commonly involve a pork allocation to the
patron. Sen. Patrick Leahy of Vermont, where IBM has roots, has failed at least
five years running to get patent deform passed. This year's attempt is a sneak
attack: a rider onto a small business loan funding bill. In the interest of
compact passage, what was never a hit has been reduced to a tidbit.
Posted by Patent Hawk at 2:23 PM | The Patent System | Comments (4)
July 8, 2010
Behind the Times
In
the interest of less-than-compact prosecution, the USPTO is, for the time being,
adhering to the ancient military supply rule: "smoke 'em if you got 'em." The
day Bilski rolled out of the Supreme Court, Robert Bahr, Poobah for
Patent Examination Policy, pooted forth
a letter on the ruling, directing examiners to stick to the old standby
machine-or-transformation test, whereupon giving "the applicant" "the
opportunity to explain why the claimed method is not drawn to an abstract idea."
Posted by Patent Hawk at 8:10 PM | § 101 | Comments (36)
July 7, 2010
Dated
You
don't need to have a novel invention to get a US patent. You just need to beat
the clock, a clock rigged to America as superior to inferior foreigners, a
patent xenophobia most unbecoming. "Domestic and foreign filing dates stand on
entirely different footings." Peter J. Giacomini and his pals tried rigging the
clock for their computer data cache patent application. The BPAI upheld the
examiner's § 102(e) rejection over
7,039,683 (Tran). Giacomini did not dispute Tran as invalidating if prior
art. Giacomini argued Tran was not prior art, even though Tran claimed priority
to a provisional application. Giacomini's problem was that Tran's provisional
was a US application.
Posted by Patent Hawk at 8:36 PM | Prior Art | Comments (8)
July 6, 2010
Garbage Bits
Telcordia
sued Cisco for infringing network data transfer patents
4,893,306;
4,835,763; and
RE36,633. '306 was knocked out by noninfringement in summary judgment. '763
and '633 ran the gauntlet through trial to a $6.5 million damages award. The
district judge then tacked on prejudgment interest, an accounting for interim
sales, and "ordered the parties to negotiate the terms of a royalty that would
apply to the accounting and to post-judgment sales." Telcordia appealed the '306
claim construction. Cisco cross-appealed '306 and '763 validity, as well as the
post-trial damages award and ongoing royalty negotiation dictate.
Continue reading "Garbage Bits"
Posted by Patent Hawk at 8:47 PM | Claim Construction | Comments (1)
July 3, 2010
What can we patent?
Chris
O'Brien, news columnist at the Silicon Valley Mercury News, who surely never
squeezed a patentable invention out of his pea brain, asks the title question
about the SCOTUS
Bilski
decision. "How crazy is this?" O'Brien opines in his abject failure to
comprehend what § 101 as "a threshold test"
means. A garden-variety mainstream press putz scratches his noggin and concludes
"we're back to square one having to figure out how to move forward since the
Supreme Court decided not to do it for us."
Continue reading "What can we patent?"
Posted by Patent Hawk at 9:48 PM | § 101 | Comments (23)
July 1, 2010
BPAI Ballroom
The
BPAI and Obzilla are regular dance partners. So far this year, they've held two
public balls: two precedential opinions in 2010, both ostensibly about
obviousness, but as much about Board review procedure and scope. The most recent
decision,
Ex
parte Magnus Quist was from an appeal rehearing request. Quist's claimed
invention had been found obvious. Rehearing request denied. The upshot of how
the BPAI works: "the Board panel must consider anew all the relevant evidence of
obviousness, both for and against, in view of the argument on the issue."
Continue reading "BPAI Ballroom"
Posted by Patent Hawk at 12:24 PM | Prosecution | Comments (1)
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