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October 30, 2010
Putting Genes On
In May 2009, the
ACLU and PUBPAT
filed suit to overturn DNA patents: claims to both isolated DNA and methods of
isolating DNA. In March 2010, NY Southern District Judge Sweet soured on
isolated DNA as unpatentable subject matter
under 35 U.S.C. §101. Billions at stake, hopping-hot
corporate toads and "pity the patient" poobahs have pummeled the CAFC with amici
briefs, for what is referred to as the Myriad matter - Myriad Genetics is
the owner of the target patents. Now the Department of Justice (DOJ) has weighed
in, against the patent office, which granted the target patents.
Continue reading "Putting Genes On"
Posted by Patent Hawk at 3:47 PM | § 101 | Comments (4)
October 22, 2010
Chinese Junk
China,
historically notorious for intellectual property theft, didn't have any law on
patents until 1985. The dragon has turned: the Chinese government is now anxious
to promote domestic innovation. The way things are going, China will soon be the
world's top patent generator, maybe as early as next year. But that hype is bunk
for junk. Like the USPTO, China's patent office is paid by patent grant, and
so there is a built-in incentive to ladle junk patents. China's two-tiered
patent system guarantees it.
Continue reading "Chinese Junk"
Posted by Patent Hawk at 8:55 PM | International | Comments (3)
October 14, 2010
Stapled
Richard
F. Schwemberger filed an application for a surgical stapler which the patent
office found an obvious combination of two prior art references. We're talking
pre-KSR obvious (not that the PTO or CAFC bothered with such legal
finesse). Which makes Schwemberger not exactly patent savvy. Rather than advise
reality, Howard N. Flaxman
of Welsh & Flaxman pocketed
Schwemberger's hard-earned for appeal of a hopeless case. In a lot of ways, this
is not unusual. But it is a good cautionary tale.
Posted by Patent Hawk at 11:26 PM | Prior Art | Comments (65)
October 13, 2010
The Invention Zone
6,730,817
claims a process for making a refrigerant gas that won't deplete atmospheric
ozone and turn Earth into more of a baking oven than humans are busy otherwise
doing. Owner Solvay sued Honeywell for infringing '817. For their pains, Solvay
had some asserted claims found infringed, but "invalid under 35 U.S.C. §
102(g)(2) because Honeywell was a prior inventor." Appeal got the invalidity
ozone depleted from district court summary judgment.
Continue reading "The Invention Zone"
Posted by Patent Hawk at 2:14 PM | Prior Art | Comments (2)
October 6, 2010
Jumping Line
The
1984
Hatch-Waxman Act created a path for generic drug companies to line up for
manufacture of drugs coming off patent. Teva tried to jump the line for
donepezil, an Alzheimer treatment drug, from Eisai, who was first in line for
permission to make a generic version. Teva did this by filing a DJ of
noninfringement. The district court dismissed, citing lack of jurisdiction,
figuring no actual controversy between Eisai and Teva. The CAFC reversed and
remanded. Teva v. Eisai (CAFC
2009-1593) is essential reading, in its entirety, for those interested in
the intricacies of the drug patent game, as this precedential ruling changes the
game, albeit in a nuanced way.
Posted by Patent Hawk at 9:01 PM | Declaratory Judgment | Comments (1)
October 3, 2010
Ordinary & Extreme
The
childishness of corporations is no better illustrated than in patent litigation,
where, instead of coming to cross-license, the little boys fight it out in
court. For their fat fees, lawyers egg this sort of thing on. So it was with
Extreme Networks and Enterasys. Then again, what would you expect of a company
whose imagination runs so vacant as to name itself "extreme." In this battle,
Enterasys held the short straw at district court: asserted
5,195,181 &
5,430,727 were found not infringed in summary judgment. Enterasys's expert
excluded from testifying was salt in the wound. Appeal was but slight relief
from the grief.
Continue reading "Ordinary & Extreme"
Posted by Patent Hawk at 12:50 PM | Claim Construction | Comments (2)