August 30, 2010
Compact discs (CDs) became commercially viable by creating an international standard, insipidly called the "Orange Book." Philips was instrumental in developing the Orange Book standard, as well as holding patents covering a portion of the standard. CD maker Princo licensed Philips' CD patent portfolio, then peeved itself, that it was forced to license irrelevant patents as part of the deal. So Princo stopped paying licensing fees, and got hauled before the ITC for its failure to pay the rent. The ITC found patent misuse, which the CAFC reversed and remanded. The ITC took the hint, and turned a deaf ear to Princo's patent misuse defense. Princo appealed. A CAFC divided panel then ruled in confusion, again remanding. All involved filed petitions for an en banc rehearing. So here we are.
August 28, 2010
Pass & Seymour (P&S) has patents claiming ground fault circuit interrupters (GFCIs): 5,594,398; 7,164,564; 7,212,386; and 7,283,340. GFCIs halt a ground fault: preventing shocking a consumer laying hands upon a defective household appliance plugged into the wall. "GFCIs operate by detecting a difference in electrical current flowing into and out of the connected appliance." Pass & Seymour sought to shock alleged importing infringers by plugging them into the ITC. Some claims sizzled to a importation ban, while others fizzled out. All finding fault, all appealed.
August 25, 2010
On A String
From reading his newsletter, one gathers the decided impression that Greg Aharonian has the emotional stature of an infant. [I know I'll get comments from readers who will swear their infants are more mature than Greg. Point taken.] In his ranting newsletter, where screaming ALL CAPS and !!!!!!!! are the norm, Aharonian boiled over newly minted patent 7,779,753, which claims a tea ball on a serving string. Congratulations to Ms. Winnie Yu for securing intellectual property protection for her creative endeavor. Perhaps Ms. Yu would be so gracious as to invite Mr. Aharonian over for tea. Or, upon thoughtful consideration, perhaps not.
August 22, 2010
A "bundle breaker" is a machine that separates stacked sheets of corrugated cardboard. 6,655,566 claimed an improvement that allowed a bundle breaker to simultaneously separate stacks of different heights. George M. Martin is this country's king of cardboard stacking. Martin has been stacking cardboard since 1960, and has about 90% of the cardboard stacker machine market. Martin has sold bundle breakers, which incorporate '566's claimed technology, since 2002. Martin sued chief competitor Alliance Machine Systems International for infringement. A hung jury resulted in the judge breaking Martin's potential bundle by ruling the asserted claims obvious. Martin stacked his hopes on the CAFC.
August 20, 2010
Transocean Offshore Deepwater Drilling innovates so humans can drive around on the cheap until they pollute themselves out of existence. And, as anything that lives in the Gulf of Mexico would tell you (if it could talk), pollution begins at the wellhead. Transocean tried drilling rival Maersk for infringing 6,047,781, 6,068,069, and 6,085,851, in South Texas, where they love oil like cattle love grazing. But apparently not those patents, because the district court held the asserted claims invalid, not infringed, and Maersk not acting willfully. Transocean had to pitch its bit to the CAFC.
August 14, 2010
Dr. Gregory W. Baran invented a biopsy sampling needle with spring-loaded action to pull a plug from a corpse. This innovation netted the doctor 5,025,797 and CIP 5,400,798. Dr. Baran decided to plug Medical Device Technologies, AMT Svergie AB and Gedon AB for infringement. Claim construction of "detachable" and "releasably" forced Dr. Baran to stipulate noninfringement for '798 asserted claims. '797 went down to noninfringement in summary judgment. The only thing left of Dr. Baran's case after appeal was an autopsy of lousy lawyering by the plaintiff.
August 13, 2010
King Pharmaceuticals sued Eon Labs for infringing 6,407,128 & 6,683,102 after Eon filed an ANDA to make a generic version of the muscle relaxant claimed, metaxalone, which was first patented in 1962 (3,062,827). Eon got summary judgment of invalidity via six prior art references, three of which the court relied upon. The district court found claims inherently anticipated. "To inherently anticipate, the prior art need only give the same results as the patent, not better." One claim was found inherently obvious. Other claims, in both '128 and '102, were found wanting under §101 for lack of transformation: the claims' "informing" limitation was ethereal. Whereupon appeal, with its own special informing about "informing" being unpatentable. "It is not invention to perceive that the product which others had discovered had qualities they failed to detect."
August 11, 2010
Tracking & Waiving
Enovsys sued Sprint Nextel for infringing 5,918,159 and 6,560,461, which claim tracking mobile phones. Undisputed claim construction led to disputed infringement. "After a nine-day trial, the jury found Sprint Nextel infringed both patents and awarded approximately $2.78 million in damages." Sprint Nextel appealed.
August 9, 2010
Not A Golden Hour
Golden Hour Data Systems sued emsCharts and Softtech for infringing 6,117,073. '073 claims integration of medical dispatch, clinical services, and billing. Trial went Golden Hour's way, but the district court afterward held JMOL no joint infringement of claims, and found '073 unenforceable due to inequitable conduct. Golden Hour appealed. Herein, incredible case law developments: the inequitable conduct mulligan; and joint infringement only by proven puppeteering. And another case where "the single most reasonable inference" is hamstrung.
August 7, 2010
Ring Plus asserted 7,006,608 against Cingular. '608 generally claims generating and delivering messages while the phone is ringing. This includes replacing or overlaying the ringback sound. Claim construction "determined that the steps of the asserted claims must be performed in a specific order." That led to noninfringement. But the thing that really rung Ring Plus's bell was finding inequitable conduct. The squeeze on the sleaze didn't hold up on appeal, but only because the prosecutor got the benefit of a doubt that shouldn't have been there.
August 5, 2010
Chronic excessive throat mucus is a wage of sin: bad diet, pudgy lifestyle. Drug companies make their wages off such sin. "Guaifenesin is an expectorant used to thin, loosen, and help expel mucus that causes congestion. It was first approved by the Food and Drug Administration (FDA) in 1952." But it's still patented in various forms. 6,372,252 claims sustained release, as if that were gee-whiz chemistry. Adams sued Perrigo after Perrigo filed an ANDA for an extended mucus reducer. Herein, the significance of equivalence.
August 4, 2010
Merial got a line on a virus infecting swine, and patented it: 6,368,601. Intervet developed a vaccine for treating the virus. Then Intervet filed a declaratory judgment action against Merial. The district court ruled noninfringement in summary judgment based on claim construction of six disputed terms. Merial squealed and appealed. Dissent by Judge DYK raised the specter of a rehearing, as to whether an isolated DNA sequence is patentable subject matter (§101).