February 28, 2011
Cancer Research Technology v. Barr was a bad call by panel Judges Newman and Lourie, limiting prosecution laches with a rigid rule. That case is now teed up for Supreme Court review, by a CAFC 5-5 decision not to rehear en banc. Rehearing requires a majority. The dissents in the CAFC refusal were strongly put.
February 26, 2011
Poistron emission tomography (PET) gives a partial snapshot of organs in its view. To get the snapshot, a patient consumes a dose of radioactive juice that decays, emitting positrons that the PET picks up. 4,958,080, owned by Siemens, claims a detector useful for PET scans. Siemens sued Saint-Gobain for infringement, winning a jury award of $52.3 million, reduced post-trial to $44.9. Saint-Gobain appealed with a set of arguments that were scanned for decay.
February 24, 2011
Claim Construction Tumor
In balloon brachytherapy, a balloon is inserted into the body proximate to a tumor. The balloon has a lumen, acting as a radiation source to fry the tumor. 6,482,142 claims a device for performing balloon brachytherapy. '142 owner Hologic sued SenoRx for infringement. Action at the district resulted in prior art invalidity based upon claim construction. On appeal, a wrong call by a CAFC panel majority points to a chronic disease in tolerating ambiguity.
February 23, 2011
Not In Possession
7,070,775 claims an immunological agent for tumor treatment. Co-owners Centocor and New York University sued Abbott for infringement. Rejecting Abbott's invalidity defense, a jury awarded Centocor over $1.67 billion in damages. The district court judge wouldn't entertain post-trial § 112, ¶ 1 invalidity JMOL. Appeal shows that junk patents still crowd the courthouse, abeted by legal arguments that reek of corruption.
February 22, 2011
Protection, Not Incentive
The world's greatest classical composer, Gustav Mahler, put his creative conscience cosmically: "One is nothing but an instrument on which the universe plays." Every artist breathes art: the creative outlet is merely the medium of an irresistible habit. Only the artless would not recognize this basic facet of human nature. Yet Professor Eric E. Johnson thinks he's popped the big bubble justifying IP: "The economic centerpiece in the conventional wisdom justifying intellectual property law is a longstanding blunder. There is no broad necessity of incentives for intellectual labor."
February 21, 2011
Cecil D. Quillen Jr. has an obsession about patent continuations and RCEs. Junior Q penned a paper on the topic back in 2002. Hal Wegner favorably reports on today's letter by Junior Q to the New York Times. Quillen: "Continuing applications claim inventions that are described in earlier filed parent applications, and thus, to a considerable extent, represent "rework" for the USPTO, since the inventions of the continuing applications were, or could have been, examined in the earlier parent applications."
February 19, 2011
Ronald A. Katz sued a crop of companies over his call processing patent portfolio in a variety of venues. Consolidation led to loss at district court. For the umpteenth time, a CAFC ruling demonstrates the random competence of all involved before the appeals panel. Patent litigation is a crap shoot because a lot of what comes out of lawyers, whether on the bench or belting it out, is crap. It helps when patent claims are largely crap, which is not at all unusual either. Once again, the CAFC proves its worth in sorting it all out.
February 17, 2011
Groucho Marx didn't want to belong to any club that would accept him as a member. This weblog attracted a group that also frequent the comment rolls on other patent blogs, who bicker and bite like ill-tempered punks. My cautions against ad hominem attacks were observed in the breach. Making a distinction between grounded attacks on behavior and ungrounded attacks on character seemed to be asking too much. This blog provides an educational service, a ready case law reference, and sharp commentary on patent events that simply don't appear elsewhere, all the while striving to make a bit of a hit by applying a bit of wit. It was never intended to be an open-ended forum for backbiting by anonymous kibbitzers. As Groucho Marx said, "those are my principles, and if you don't like them... well, I have others." Comments are no longer welcome here.
No Ill-Plead Evisceration
Cooper Industries owns a portfolio of patents for electric equipment that contains dielectric fluid, which acts as a thermal and electrical insulator. Back in 2003, Cooper sued ABB for infringement. They settled two years later, with ABB taking a non-exclusive license that did not extend to third parties. ABB decided to outsource manufacture, but left to itself filing a declaratory judgment action to shuck off the licensing limitation.
February 15, 2011
Joe Root has penned a meaty tome. "Rules of Patent Drafting: Guidelines from Federal Circuit Case Law addresses a major development in patent law over the last two decades - the Disclosure Revolution." The approach taken is a fresh perspective for prosecutors, and a necessary one. That makes this book an instant classic.
February 9, 2011
Getting Definite at the USPTO
The patent office has issued supplementary guidelines for examining claims in patent applications for compliance with 35 U.S.C. §112 ¶2. The PTO thinks "it is of utmost importance that patents issue with definite claims that clearly and precisely inform persons skilled in the art of the boundaries of protected subject matter." The guidelines are effective as of today. Written comments are accepted until April 11, 2011. "No public hearing will be held."
February 7, 2011
Patent practitioners should be grateful for the CAFC. It is the backstop to lunacy at lower depth, as district court judges are a random draw of competence. Prior to the CAFC, the same observation could be applied to patent appeals courts, as they were taken at the different districts. It was the cacophony of conflicting precedent that led to the CAFC's creation in 1981. But patent cases are not the only realm where the CAFC provides a sanity check.
February 6, 2011
F. Scott Kieff may be witless in choosing article titles, e.g., "The Patent Process Run Amok", but he stirs some stimulating stew. In the i4i v. Microsoft case, a largely incompetent Supreme Court, grossly in thrall to corporate and government empowerment, feels obliged to again worry a detail of patent law that has no constitutional question behind it. What makes this case ironic is that the target i4i patent got bullet-proofed by reexam instigated by Microsoft, so the burden of proof to invalidate it is moot in this instance: the patent is valid, and Microsoft is res judicata in invalidating it. The safe bet is that the Supreme Court will jigger the validity calculator, but in their reasoning, how far they wander from logical rigor into a supreme wonderland of thought is, as always, the entertainment value.
February 3, 2011
The patent system hypothetically performs a public notice function, publishing inventions. For drugs, the FDA consolidates patent information into the Orange Book. Meanwhile, computer technology companies spend billions of dollars a year in their own R&D, completely ignoring what's already been done. As a matter of corporate policy, Microsoft and Intel are exemplary - never bothering to look at existing innovation before committing hundreds of millions in research to reinvent. The patent system doesn't work for corporations because corporations don't work the patent system.
February 2, 2011
WSJ reports on the Borg: "patent laws favor Chinese companies and mandates that essentially require foreign companies to transfer technology to China if they hope to sell in that market." Borg patent law mirrors U.S. patent law, which only recognize prior art in English, and allow U.S. patents to be granted on technology that foreigners invented. Borg leader Hu Jintao: "You have been assimilated. There has been no resistance." Beginning in 1972, U.S. business leaders, drooling over profit potential because of the size of the Borg population, have willingly transferred technology. GE recently announced its intentions to transfer advanced jet engine technology to the Borg, in return for greater market access. Still, American business leaders feign shock over what they have done. Pouted one pudgy American high-tech exec: "It's the crisis." At least the Borg cannot corner the market on hypocrisy.