November 29, 2010
Lay That Burden Down
The black-robed toads who feel beholden to uphold the powers that be are taking it upon themselves to look at a more open season for patent killing. i4i squeezed a $290 million jury award from Microsoft for a feature in Word that few users knew existed, let alone use: customizing XML using metacodes (which, technically, is like herding cooties). The CAFC affirmed willful infringement, enhanced damages, permanent injunctive relief, and validity. Meanwhile, the patent office confirmed i4i's claims as valid over Microsoft-cited reexam prior art. The high court must scrutinize a system that is clearly broken: something is terribly wrong when some pip-squeak inventor or puny entity can extort money from mega-corporations raking in obscene cash flow, and have minion courts and bureaucrats let it slip by.
November 25, 2010
A123 System filed a declaratory judgment action in Massachusetts against Hydro-Quebec (HQ), who had a license for two lithium battery patents owned by the University of Texas (UT). The district court dismissed the suit because "UT had transferred to HQ less than all substantial rights in the patents in suit, granting HQ only an exclusive field-of-use license."
November 14, 2010
Nuance sued competitor Abbyy over its OCR scanning software patents. Finding out who the US subsidiary of Abbyy was owned by, Nuance amended its complaint to target the parent company in Cyprus, and the Russian subsidiary of Abbyy. Nuance served them both. Abbyy motioned to dismiss for lack of personal jurisdiction, and improper service of the foreign companies. The district court judge pitched the case over personal jurisdiction, as well as the service spat, including sua sponte determining that Nuance hadn't even properly served the US Abbyy. The judge also stopped further discovery. There was no nuance to reversal on appeal: it was loud and clear.
November 12, 2010
"Abraxis markets the drug Naropin® as a local or regional anesthetic indicated for use in surgery and for acute pain management." 4,870,086, 5,670,524, and 5,834,489 apply. So when Navinta filed an ANDA to make a generic version of Naropin®, Abraxis was pained, and sued for infringement. These three patent had changed hands, including an acknowledged "break in the chain of title." But Abraxis thought the patents were theirs, even though patent transfer "confirmation" took place eight months after Abraxis filed suit. Navinta filed a motion to dismiss for lack of standing, both because of a Hatch-Waxman Act technicality, and because Abraxis didn't own the asserted patents when the complaint was filed. The district court allowed Abraxis to amend its complaint to overcome the technicality. The district court waived away the ownership problem because the intent implied a nunc pro tunc assignment based on corporate relationship. Nunc pro tunc is Latin for "corporate friend with benefits."
November 9, 2010
The application that led to 5,260,291 took 13 years to allowance. Prosecutors twiddled by ignoring office actions and filing continuations. Nine years into it, ownership changed hands, where, for the first time, the prosecutor argued against examiner's rejection on lack of utility, relying upon animal tests for the claimed cancer treatment. '291 issued in November 1993. From there the cancer spread.
November 5, 2010
Talk about a plaintiff's dream. Finjin sued Secure Computing and Webwasher for infringing anti-malware scanning software patents 6,092,194; 6,804,780; and 7,058,822. Defendants counterclaimed 6,357,010 and 7,185,361. "A jury found that none of the patents was invalid, that Finjan did not infringe Defendants' patents, and that Defendants willfully infringed all asserted claims of Finjan's patents. The district court awarded damages to Finjan, enhanced the award under 35 U.S.C. § 284, and imposed a permanent injunction against Defendants." Appeal only slightly tarnished the victory.
November 2, 2010
AstraZeneca sought and got a preliminary injunction against Apotex, which was hankering to launch a generic version of the asthma drug Pulmicort. Apotex did manage to invalidate "kit" claims of asserted 6,598,603 and 6,899,099. Appeal left things as at district court, with dissent on the injunction, owing to a different take on validity.
November 1, 2010
Go Ahead, Make My Day
Patent Hawk's bread-and-butter business is invalidating patents. The smart-phone patent slugfest among Microsoft, Motorola, Apple, Nokia, Google, HTC, Kodak, RIM and others puts the party hat on Patent Hawk. It also puts the dunce cap on the short-sighted heads of those companies who think that patent wars are good for business. Somebody is bound to get hurt. While patent litigators win fat fees, companies have risked much more than market share - the prospect of billion dollar payouts, and patent war without end, especially for the desperate, is quite real. The airplane patent wars at the beginning of the 20th century, with the Wright brothers in the thick of it, were grounded only by the first world war.