January 31, 2011
5,697,775; 5,897,308; and 6,093,017 claim "lighters having extended lighting rods (useful for lighting barbecue grills, for example)" with "automatic child-safety mechanisms for preventing accidental ignition." Owner Tokai sued competitor Easton for infringement. Easton burned the asserted patents to the ground via summary judgment. Tokai thought it a pity to lose on validity, so it sang its ditty to a mostly tone-deaf appeals panel. Obzilla has a cook-out.
January 27, 2011
Warsaw Orthopedic successfully sued Globus Medical for infringing 6,530,929 and 7,008,422, which claim a spine stabilization device. On appeal, the claim construction was found stable, as was infringement, but the broad construction shook loose anticipation JMOL.
January 26, 2011
6,000,024 claims a binary tree parallel computing system. A root node distributes problem portions to tree nodes, each with their own processing elements. Results are passed back up the tree. '024 owner Fifth General Computer sued IBM for infringing '024. All hinged on what was at root.
January 24, 2011
5,220,919 claims a booze detector which sniffs the air near the skin of the lubricated one. Owner AMS sued four for tippling infringement. The district court, a little tipsy in its claim construction, nonetheless walked a straight line to noninfringement. The appeals court sobered things up.
January 23, 2011
5,287,270 claims a computerized billing system, ostensibly for phone calls. Who uses it? Patent owner Centillion thought Qwest did, so it sued for infringement. The district court summarily found otherwise, because "no single party practices all of the limitations of the asserted claims." A phone user used the front end, while Qwest handled the back end. Appeal dialed it in differently.
January 22, 2011
Return of the Leech
Sen. Patrick "the Leech" Leahy plans to place his sucker on the wallets of the suckers who dread and drool over patent reform. The 2011 Patent Reform Act will be introduced Tuesday. "Patent reform is a commonsense, bipartisan effort to protect jobs and bolster the economy," Leahy effused. The bipartisan bit is the expectation that senators on both sides of the aisle can bolster themselves, and protect their jobs, by raking in dough from lobbyists on this year's model of the patented shtick of much heat and little light about patents. From all sides, expect the battle cry to be: "move the economy forward." PTO Director Kappos is already beating that drum. The little stickler is what blood type of patent reform might bring the batta-boom bolster, making any "reform" contentious beyond practical passage.
January 20, 2011
Two concomitant litigations between Arlington and Brideport over 5,266,050 & 6,521,831, in the same district court, produced different constructions of the same claim term. The later case (Arlington II) construed "spring metal adaptor" ('050) and "spring steel adaptor" ('831) as requiring a "split" that the earlier construction had not. What sprung from construction was noninfringement. Until appeal.
January 14, 2011
Not Open For Business
When my reexamination appellant brief exceeded 30 pages, I received notice of it being "defective." To correct the defect, under MPEP §1.943(c), a certificate is required to state that the brief is less than 14,000 words (the brief is an illustrated comic book: lots of pictures, because words alone just don't seem to register). Do I simply need to provide a certificate, or is the required response more elaborate? However reasonable the question, the answer was not forthcoming. The supervisory paralegal at 571-272-9797 listened to my question, then passed me off to another department at 571-272-7705 (central reexam), who passed me off to 571-272-7726, who passed me off to 571-272-7701, who then said it should be answered at 571-272-9797, the original number called. Calling central reexam at 7705 from the outside just gets a busy signal. Perhaps the patent office should adopt the slogan of mutual funds: "past performance is not an indicator of future returns."
January 12, 2011
Divorce involves paperwork. In this case, Juris Zanis Pupols divorced himself from reality long before he filed his patent application for "controllable reciprocating Ac/Dc powered specialty products for life enhancement," which he abandoned for failure to pay the requisite application fee. He petitioned to revive "on account of unavoidable delay." Alas, the claimed delay was not to have lost his mind and just found it. That, at least, would have gotten a laugh, if not sympathy. Instead, Pupols got taken seriously, and not sympathetically enough. At least to Pupols' way of thinking.
January 11, 2011
David Leonhart at the New York Times can't tell a copycat from a thieving rat, calling software piracy "intellectual property theft." "For the United States, the No. 1 problem with China's economy is probably intellectual property theft. Technology companies, for example, continue to notice Chinese government agencies downloading software updates for programs they have never bought, at least not legally." The U.S. fourth estate has become an outhouse. Not to mention so-called "technology companies" that are nothing more than whiny witnesses to shoplifting. Are the companies afraid that alienating the powers-that-be in the middle kingdom would bring a badass backlash? There's the story that Mr. Leonhart missed.
How to Bamboozle A Judge
Claim construction ought to be formulaic: take the plain meaning of crucial claim terms, in view of the specification and prosecution history, absent prosecution disclaimer (which would narrow claim scope). "Courts must not import limitations into the claims" is a hoary axiom. Yet that is exactly the formula to bamboozle a district court judge, as part of a two-step to noninfringement. With much practice as defendant, Microsoft seems to have mastered this dance, to a tune to which judges are sometimes legally tone deaf. It particularly helps when a patent holder, in the claim construction dance, has two left feet.
January 10, 2011
St. Clair sued Fuji Photo Film and seven other digital camera makers for infringing four digital photo format patents: 5,138,459; 6,094,219; 6,233,010; and 6,323,899. The district court found infringement based upon claim construction. The negative of that was found on appeal.
January 5, 2011
Rattlesnakes still saunter by the side of the road in east Texas, but the biggest of them all doesn't want to be there: Microsoft. Continuing its crusade against the local cottage industry of patent lawyers and barbequed jurisprudence in EDTX, Microsoft got another case uprooted, this time to its home turf in western Washington. This after the limey plaintiff had bothered with the ruse of a shell company in Tyler Texas. The convenience of witnesses, notably corporate defense witnesses, places a heavy thumb on the scales to transfer. (CAFC 10-m944; precedential)
The evidence herein is anecdotal, but the pattern is unmistakable: an incompetent BPAI decision is overturned by the CAFC. Glatt Air Techniques had one of its particle coater patents, 5,236,503, rejected over obviousness in reexam by a third-party requestor. The patent office can't tell the difference between prevention and a remedy. That pretty much sums up the Kappos regime's continuing failure of core competence for quality examination: rejection as prevention, leaving only appeal to the Court for remedy. Pathetic that the USPTO cannot recognize an invention, which thereby damages the sole mission of the patent office: to grant worthy patents.
January 4, 2011
Locking Up Damages
Uniloc sued Microsoft over its product activation software, infringing Uniloc's 5,490,216. Uniloc convinced a jury of willful infringement, to the tune of $388 million, plus $86 million in interest. Microsoft then swayed the district court judge to pitch the jury verdict. The inevitable appeal furthered court reform of the patent laws, particularly damages methodology. Goldscheider and his dedicated flock of followers are belatedly shoved into oblivion, and the whole hog market rule is butchered again.
January 3, 2011
Reader of minds Sigmund Freud once observed, "most people are trash." So it is with litigators, sworn officers of the Court, that practice character assassination, and judges, the Court incarnate, that buy into it. Fortunately, some judges see through it. TXED Magistrate Judge Charles Everingham granted a new trial in Commil USA v. Cisco Systems, "based on statements made by defense counsel during trial regarding the Jewish faith of one of plaintiff's owners and its client representative, including references to dietary rules and the trial of Jesus."
January 2, 2011
Don't File a Patent
John D. Smith is a one-man patent sales prevention department: "A patent is really just an expensive and worthless piece of paper. Attorneys are like a bottomless cup that you keep pouring money into. The Patent Office wants your money, not your invention. The Patent Office uses repeated Patent Examiner Office Action rejections to discourage inventors. Lawsuits are very expensive and the only one that will make money in a patent infringement lawsuit will be your attorney. Judgments are worthless, as they are impossible to collect." Bad attitude, or is it simply that the truth hurts?