December 29, 2010
WiAV Solutions sued mobile phone companies for infringing nine patents related to signal transmission (encoding) and reception (decoding), including seven patents owned by Mindspeed Technologies. The Mindspeed patents went through ownership gyrations: assignment, corporate spin-off, and licensing agreement. The district court got lost trying to follow the ownership bread crumbs, deciding that WiAV was deprived of constitutional standing by third-party licensing rights, and so booted the Mindspeed patents. The CAFC saw differently - exclusivity because the accused are not able to license.
December 28, 2010
The Supreme Court has a busy docket of deciding patent law in 2011, with issues ranging from: patentability; invalidity burden of proof; prosecution laches; inequitable conduct; extraterritoriality; infringement (inducement, contempt); and several others. This continues the iron-clad trend of Congress abdicating its responsibility to fashion law to the courts, role-playing that extends to every facet of this nation's legal system. Expect the 2011 Congress to waft another "patent reform" bill, legislative flypaper solely intended to siphon contributions to its ultimate cause (reelection). In the finale, for the seventh year running, no passage. All the fireworks in the patent arena this coming year will again be shot by SCOTUS, with the obligatory sideshow, courtesy of the CAFC.
December 24, 2010
Over a third of district court patent decisions are overturned, at least in part, on appeal. That's a lot of mulligan stew. Claim construction, requiring a rather intricate reading of ingredients, seems particularly vexing to black-robed blokes. For years, patent-savvy Congressional Rep. Darrell Issa has pushed a bill to train district court judges in patent law. He finally succeeded. H.R. 628, establishing a limited pilot program, to test the apparently doubted hypothesis that education matters, is expected to be signed into law.
An 11th-hour confirmation in the lame duck 111th Congressional session: Northern District of Ohio Judge Kate O'Malley fills a vacant slot on the CAFC. Her honor is the only district court judge in U.S. history to be elevated to the Federal Circuit. The CAFC still has two vacancies.
Lazare Kaplan International owns patents claiming laser microinscribing of gemstones. Two of them, 6,476,351 and descendant 7,010,938, were asserted against PhotoScribe and others. Claim construction resulted in a summary judgment of literal noninfringement. But Lazare was allowed to argue the doctrine of equivalents to the jury. The jury found the patents not infringed, and not valid. In a bench trial that followed, the district court found inequitable conduct, for failing to disclose "the Gresser machine" to the USPTO. Under contract, Herbert Gresser created a nifty machine to air-cushion the inscriber for Lazare. '351 mentioned Gresser's work (and patent, 4,392,476, which Lazare also owns), but only in passing.
December 21, 2010
Tessera designs semiconductors, and thereby manufactures patent litigations. This episode emanates from the ITC, in an action against several parties: Spansion, Freescale, ATI, STMicro, and Qualcomm. Motorola settled. 5,852,326 and 6,433,419, going to a particular semiconductor packaging, were asserted. After typical bureaucratic discord, the ITC found the patents valid and infringed. The inevitable CAFC appeal inevitably went to claim construction, infringement, and validity.
December 20, 2010
Bollocks to the Dollops
Akamai Technologies, with MIT riding shotgun, asserted: 6,108,703; 6,553,413; & 7,103,645 against Limelight Networks. The patents generally claim delivering content dollops that go along with serving a web page. The district court judge overturned the jury's finding of joint infringement of the asserted '703 claims. That was one for appeal by Akamai, along with claim construction tiffs that led to non-infringement on the other patents. Joint infringement requires that the major infringer controls the minor infringer (an agent that is "contractually obliged"), or it'll blow the joint.
December 17, 2010
Medical treatment patents 6,355,623 and 6,680,302 were flogged to death by the district court using §101. Resurrection came at the CAFC under Bilski, applying the solitary machine-or-transformation (m-o-t) test of the time. The Supreme Court found m-o-t merely "a useful and important clue," and so vacated and remanded the Prometheus v. Mayo case where '623 and '302 had been so buffeted. Remand was a revisit, but with eyes wide open to a "liberal encouragement".
December 15, 2010
ColorQuick sued VistaPrint and OfficeMax for patent infringement in the Eastern District of Texas. Defendants wanted a transfer to Massachusetts. Denied. Petition to the CAFC for a writ of mandamus, to overturn, failed. "In sum, there are cases where to hold a trial court to a meaningful application of the § 1404(a) factors presents only one correct outcome. In those cases, mandamus may be appropriate. A case such as this, however, shows that a meaningful application of the factors often creates a reasonable range of choice. Under such circumstances, it is entirely within the district court's discretion to conclude that in a given case the § 1404(a) factors of public interest or judicial economy can be of "paramount consideration," Volkswagen II, 566 F.3d at 1351, and as long as there is plausible support of record for that conclusion we will not second guess such a determination, even if the convenience factors call for a different result." This, with an approving nod to EDT Judge Davis from his upstairs brethren: "the trial court performed a detailed analysis explaining that it is very familiar with the only asserted patent and the related technology, and where there is a co-pending litigation before the trial court involving the same patent-in-suit..." (CAFC 2010-m954o) precedential
December 11, 2010
To limit blood loss during surgery, in a modern variant of cauterization, argon gas-enhanced electrosurgical instruments are used to zap tissue. Three competitors tried to zap each other with their patents: ConMed (4,781,175), Canady (5,207,675) and ERBE (5,720,745). "The patents have been the subject of a variety of litigation since their issuance." This episode is on non-infringement of '745 by Canady by way of claim construction.
For a decade, Intellectual Ventures has been amassing a fortune in patents, both by purchase and by invention. IV has been quietly licensing. The silence was broken Wednesday, when nine security-software companies who refused quiet negotiations were slapped out loud with a lawsuit.