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 Non-precedential, but the CAFC summary judgment dictum is worth retelling: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).
September 23, 2010
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."
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.
September 13, 2010
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.
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.
September 10, 2010
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.
September 9, 2010
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.
September 7, 2010
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."
September 6, 2010
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."
September 5, 2010
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.
September 4, 2010
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.
September 2, 2010
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.
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."