« August 2010 | Main | October 2010 »
September 25, 2010
Snoop & Tell
Computer
Cache Coherency Corporation's ("CCCC") sued Intel and Via for infringing
5,072,369, which claims a cache that has a "SNOOP signal telling." The
inevitable claim construction controversy was over whether the tell was a
processor must-do, or a processor may-do. CCCC ignored the abstract and
specification to argue the tell as a hint, not a command. The district court
held the tell as a command. From that CCCC conceded non-infringement, but in
denial (someone always is), appealed the claim construction. Affirmed (CAFC
2010-1040). Non-precedential, but the CAFC summary judgment dictum is worth
retelling:
This court approves summary judgment when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56. This court reviews a grant of summary judgment of non-infringement without deference. O2 Micro Int'l, Ltd. v. Monolithic Power Sys., 467 F.3d 1355, 1359 (Fed. Cir. 2006).
Posted by Patent Hawk at 10:52 PM | Litigation
September 23, 2010
Masked
7,156,100
claims a mask stuck down the throat, to deliver anesthetic gas during surgery,
and provide an unobstructed airway. The poetically named Lanryngeal Mask Company
(LMA) sued Ambu for infringement. For that, "all claims were invalid for lack of
written description under 35 U.S.C. § 112" in summary judgment, along with
noninfringement. Gasping for air, LMA appealed. At issue was claim construction,
and whether the inventor had acted as his own lexicographer. "A patentee may act
as its own lexicographer and assign to a term a unique definition that is
different from its ordinary and customary meaning; however, a patentee must
clearly express that intent in the written description."
Posted by Patent Hawk at 5:16 PM | Claim Construction | Comments (4)
September 21, 2010
Shallow End of the Pool
Philips, Fujitsu, and LG Electronics are in a patent pool that claims
wireless communication protocol standards. Netgear was the target of
their "licensing" campaign. For summary judgment, "the plaintiffs argued that by
simply complying with the standard, Netgear necessarily infringed the asserted
claims." The district court found the hand-waving assertion of infringement
off-putting, and denied the motion. On to appeal.
Continue reading "Shallow End of the Pool"
Posted by Patent Hawk at 3:06 PM | Infringement
September 13, 2010
Preamble Ablation
6,986,764
claims "photoselective vaporization of tissue," though that phrase appears only
in the preamble. A district court judge found the patent not infringed because
the accused product didn't do it. A CAFC majority reversed, figuring the
preamble was not a limitation. Judge DYK dissented, suggesting that such claim
ablation is a violation.
Continue reading "Preamble Ablation"
Posted by Patent Hawk at 4:48 PM | Claim Construction | Comments (3)
September 12, 2010
On The Verge
5,910,514
claims a colorant for synthetic mulch made of rubber, an ecologically disgusting
invention only a suburban garden gnome could appreciate. The district court
didn't appreciate that claims relied upon a purported colorant system: "Visichrome,"
produced by a different company, which appeared fictitious in retrospect. This
resulted in summary judgment invalidity by breach of best mode, in the course of
'514 owner Green Edge trying to trim the verge of infringement by Rubber Mulch
and Rubber Resources.
Continue reading "On The Verge"
Posted by Patent Hawk at 8:45 PM | § 112
September 10, 2010
Backbreaker Broken
Spine
Solutions, Inc. (SSI) sued Medtronic for infringing
6,936,071, which claims a spinal implant, "used to replace discs between
vertebrae in the spinal column that have degenerated or become diseased."
Summary judgment of infringement for claims 1 and 2, and dismissal of "all of
Medtronic's 35 U.S.C. § 112 defenses" led to stipulated capitulation by
Medtronic, setting up a trial on damages and obviousness. SSI was going for lost
profits even though it didn't sell or make any device covered by '071. But SSI's
sister companies did. SSI was allowed to amend its complaint to include them.
The jury found '071 not invalid, and willfully infringed, to the $5.7 million in
lost profits, and an 18% reasonable royalty on $9.1 million in infringing sales.
Whereupon the district court doubled the damages and awarded attorneys fees.
Adding insult to injury, the court entered a permanent injunction. All that left
Medtronic a lot to appeal. And some of it was appealing to the CAFC.
Continue reading "Backbreaker Broken"
Posted by Patent Hawk at 11:32 PM | Case Law | Comments (1)
September 9, 2010
Receptor Blocker
Daiichi
Sankyo owns
5,616,599, which claims a compound formula (angiotensin receptor blockers "ARBs")
used to treat high blood pressure. Research on this line of drugs began in the
1970s. '599 represents an advancement in the second generation of similar
compounds. Mylan's ANDA got the litigation ball rolling. With the pressure on,
Mylan couldn't convince the district court, in a 10-day bench trial, that '599
was obvious. The pressure stayed on in appeal.
Continue reading "Receptor Blocker"
Posted by Patent Hawk at 6:09 PM | Prior Art | Comments (1)
September 7, 2010
Reduced
Haruo
Sugano et al got into an interference with David. V. Goeddel and Robert
Crea over two gene patent applications. "The Board held that Sugano is entitled
to the benefit of the filing date of its initial Japanese application, and
awarded Sugano priority as to the counts of both interferences."
Posted by Patent Hawk at 11:25 AM | Interference
September 6, 2010
Solo
Even
for an ace, patent litigation is a team sport. It's one thing if your scummy
contingency lawyers breach contract and walk away, for you to soldier on (more
on that later). But to sue a major corporation pro se - foolhardy becomes
an understatement. Case in point: Roger Marx Desenberg sued Google for
infringing
7,139,732. Desenberg couldn't even reach first base: the district court
"dismissed the complaint under Federal Rule 12(b)(6) for failure to state a
claim upon which relief can be granted."
Posted by Patent Hawk at 11:00 PM | Infringement | Comments (9)
September 5, 2010
Troll?
Paul
Allen made his bundle off Microsoft as a co-founder. He then spent decades
frittering money on creating tech companies that yielded little but patents.
That is no small success. As any entrepreneur (or venture capitalist) can tell
you, commercialization of new technology is a gauntlet which few survive to
tell the tale of payoff. Now Mr. Allen has decided to assert a few of those
patents his investments earned. The Economist characterized the assertion: "It
targets everyone who is anyone in Silicon Valley, including Google, Apple, eBay,
Yahoo! and Facebook. (But not Microsoft.)" So far, no news. What is news is the
poison attitude in the mainstream press, most notably The Economist and The Wall
Street Journal, mouthpieces of corporate capitalism, but not free enterprise.
Posted by Patent Hawk at 11:53 AM | Patents In Business | Comments (2)
September 4, 2010
Bone Loss
Eli
Lilly got 6,458,811
and
6,894,064 (the "Particle Size Patents") for processing "raloxifene particles
until their size falls 'within a specified narrow range.'" Raloxifene, an
antiestrogen, aims at treating osteoporosis in women by mimicking estrogen,
without inciting increased incidence of breast cancer.
6,906,086;
RE39,049; and
RE38,968 (the "Bone Loss Patents") aim more specifically at preventing bone
loss. RE39,050 was
called by the court "the Low Dose Patent." Generic drug manufacturer Teva
embroiled itself into a patent fight with Lily by filing an ANDA with the FDA to
make generic versions. Lilly prevailed on all but the Particle Size Patents -
not invalidated by prior art, but by failing the written description requirement
of §112.
Posted by Patent Hawk at 7:29 PM | § 112 | Comments (1)
September 2, 2010
On Tape
Funai
Electric sued four Daewoo companies for infringing six US VCR patents. A tough
battle to trial found two patents infringed for about $10 million in damages
against two companies. Two defendants spontaneously pulled out, but the district
court, applying "the law of South Korea as to successor liability," ruled that
there was no goat to scape. In a multi-patent detailed analysis involving claim
construction, prosecution estoppel (no estoppel on one amended claim, where the
amendment was "merely tangential" to patentability), infringement (including
doctrine of equivalents and willfulness), validity, and damages, the district
court was affirmed by the CAFC, with one exception. The district court
erred in applying Korean law to the US subsidiary - US law should have been
applied there, which then raised the issue of which state. So, mostly affirmed,
with reversal and remand regarding the US subsidiary that skipped. (CAFC
2009-1225, -1244) precedential.
Posted by Patent Hawk at 6:35 PM | Case Law
September 1, 2010
Fit To Be Tied
Raymond
E. Stauffer, esquire, hankers to look dapper, in idiosyncratic fashion,
preferring bow ties to the normal skinny bib known as a necktie. A man with
taste such as Stauffer's may sojourn to a classy clothier such as
Brooks Brothers. But in his
shopping excursion, Stauffer was bemused to find that bow ties he had purchased
were marked, with numbers of patents expired over 50 years ago (1955). Umbrage
drove Stauffer to the courthouse, where he sallied forth with "a qui tam
action under
35 U.S.C. § 292, alleging that Brooks Brothers had falsely marked its bow
ties."
Continue reading "Fit To Be Tied"
Posted by Patent Hawk at 8:10 PM | Standing | Comments (4)
prior art search + 
Newsfeed (RSS)