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March 30, 2011
Word Up
Some
litigators have bigger egos than brains, failing to understand the basic
communication tenet of signal to noise. And so proliferant pontification is
preferred to on-point terse. And, like litigators' mother's milk, there is the
irresistible psychopathic urge to try to game the proceedings. Judges display
their acumen by intolerance of such. The CAFC won't have it.
Posted by Patent Hawk at 5:42 PM | Case Law
March 29, 2011
Birthing
Hal
Wegner on the prospects of the pending Patent Act: "There is now a
widespread understanding that while there may be some amendments to various
portions of the bill, in the end both the House and the Senate will find a
suitable version to be enacted into law during the present Congress."
Posted by Patent Hawk at 10:07 PM | The Patent System
March 28, 2011
No Controller
Edward
K.Y. Jung and Lowell L. Wood, Jr. tried to get a patent for a photo-detector
array system. The examiner shot it down for validity. Jung amended independent
claims to incorporate a controller, arguing lamely that a prior art controller
was "different," without explanation until appeal. The patent board rejected
Jung's arguments, though it also smacked the examiner for not sufficiently
providing a basis for rejection.
Continue reading "No Controller"
Posted by Patent Hawk at 1:54 PM | Prosecution
March 26, 2011
Gamey
Innovention Toys successfully sued MGA Entertainment,Wal-Mart Stores, and
Toys "R" Us for infringing
7,264,242, "which claims a chess-like, light-reflecting board game." The win
at district court was, of course, appealed. The CAFC panel found that the
district court strayed from the path in determining nonobviousness, and remanded.
Posted by Patent Hawk at 4:00 PM | Prior Art
March 25, 2011
Theoretical
Duramed sued Watson for infringing timed-release oral contraceptive patent
7,320,969. As with most drug patent matters, Watson painted the target it on
itself with an ANDA. Watson stipulated to infringement, but challenged validity
under obviousness. The district court thought not obvious. For a timed-release
patent contraceptive, Watson appealed over yet another district court judge that
has no place trying patent cases. "A reference is prior art for all that it
discloses, and there is no requirement that a teaching in the prior art be
scientifically tested."
Continue reading "Theoretical"
Posted by Patent Hawk at 7:29 PM | Prior Art
March 24, 2011
No Shopping, Please
It
is a fundamental tenet that consumers shop for what they perceive as the best
value. A few years ago, patent holders, seeking to consume justice, could do the
same. Many district court judges, quite capable of adjudging criminals and
contract disputes, are rum when it comes to patents, as appeals to the CAFC
demonstrate. A handful of savvy judges in a few districts across the country put
together programs to ferry patent cases, and in the process became patent
litigation malls, where justice was dispensed like ice cream: cool and
smooth. The malls are closed now.
Continue reading "No Shopping, Please"
Posted by Patent Hawk at 11:49 AM | Case Law
March 22, 2011
Getting Real
Real
Estate Alliance (REAL) faced a declaratory judgment action by a large herd of
realtors, who were very afraid of
4,870,576 and CIP
5,032,989, claiming "a graphical user interface for finding available real
estate properties." A bum claim construction led to stipulation of
non-infringement. Appeal got REAL something better.
Continue reading "Getting Real"
Posted by Patent Hawk at 12:18 PM | Claim Construction
March 21, 2011
Sweeping
Google:
"Sweeping software patent claims... threaten innovation." Sounds trollish. Very
trollish. But Google was speaking of Microsoft, in reference to its suit against
Barnes & Noble over its Nook e-book, which uses the Google Android OS. Corporate
chimps will pant-hoot at the damndest things.
Posted by Patent Hawk at 4:57 PM | Patents In Business
Pile Driver
5,355,964
claims a pile driver. In an obscure litigation strategy, owner American
Piledriving Equipment drove infringement suits around: in 7 different districts.
Each had different claim constructions. Two were on appeal: "Eastern District of
Virginia and the Northern District of California each granted summary judgment
of noninfringement in favor of their respective defendants, despite adopting
different constructions of two key claim terms." Another case where the CAFC
cleans up from random lawyering, and a modest miss by a district court.
Continue reading "Pile Driver"
Posted by Patent Hawk at 2:09 PM | Claim Construction
March 16, 2011
Not Reliable
Old
Reliable Wholesale sued Cornell for infringing
5,069,950, which claims an insulated roof board. The district court found
'950 invalid by prior art, which the CAFC affirmed. The district court found
that Old Reliable hadn't lived up to its name, and so declared the case
exceptional under §285, and awarded Cornell attorneys fees and expenses. The
CAFC tucked under the roof what "exceptional" meant, and Old Reliable wasn't.
Continue reading "Not Reliable"
Posted by Patent Hawk at 11:31 PM | Case Law
March 14, 2011
Usurpation
The
CAFC refused to correct its intrusion into state contract law,
spurning an en banc rehearing petition of
Abraxis Bioscience
v. Navinta. Judge Newman, who dissented in the panel decision, did so
again, joined by the newest member of the CAFC, Judge O'Malley, who penned the
dissent this time. Welcome, Judge O'Malley.
Posted by Patent Hawk at 11:54 PM | Case Law
March 10, 2011
Consensus, Mostly
After
decades of dickering, 25 of 27 European Union countries voted to have a unitary
patent regime. Spain and Italy opposed, because patent applications wouldn't
have to be translated into Spanish and Italian, only English, French and German.
Cost is the advantage of a one-stop EU patent. Presently, a Euro patent for 13
countries runs about 20,000 euros, about 70% eaten up in translations. The
European Court of Justice (ECOJ) has already rained on the parade of creating a
new patent enforcement court, as incompatible with existing law that partitions
judicial power between national courts and the ECOJ.
Posted by Patent Hawk at 1:46 PM | International
March 9, 2011
Lights On
Altair
Engineering sued LEDdynamics for infringing
7,049,761, claiming an LED light fixture. The lights went out for Altair.
"Closely-spaced" was hotly contested. Altair's position was shorted. Altair also
had its plug pulled in asserting new claims, being judicially estopped. It took
the CAFC to flip the switch.
Posted by Patent Hawk at 2:18 PM | Claim Construction
March 8, 2011
Bill Me
95-5,
the Senate passed S.23, the America Invents Act. With a title like that, it
might as well be called The Semi-Literate Senate Patent Act. Get your boots,
here's the flow: "If we're going to win the global competition by out-innovating
the rest of the world we need a patent system that works in the 21st century,"
crowed Senate Judiciary Committee Chairman Patrick Leahy (D., Vt.), who
shepherded the bill through the Senate. The corporate
Coalition for 21st
Century Patent Reform collectively cheered.
Posted by Patent Hawk at 11:09 PM | The Patent System
March 7, 2011
Drugged
The
drug industry has long counted on American public trends to the tune of hundreds
of billions of dollars each year. High blood pressure, high cholesterol, and
diabetes are the diseases of junk food and meat eaters who lack the discipline
to lead a healthy existence. Americans splash out richly on state-of-the-art
medications to treat their life-endangering lifestyles. The patented blockbuster
drugs that treat the symptoms of ignorance are going off-patent, and it's
tipping a tizzy, according to the
New York Times.
Posted by Patent Hawk at 11:36 AM | Patents In Business
March 3, 2011
Fate Sealed
5,967,375
claims a sealant melter, useful for sealing cracks in roadways. Crafco and
Cimline are competitors in roadway construction. Crafco pestered Cimline about
'375, so Cimline filed an invalidity DJ action. Which backfired. The district
court sua sponte granted summary judgment infringement to Crafco, and
then entered an injunction against Cimline. Cimline appealed. From muddled minds
in Minnesota, a case of lamentable lawyering, injudicious judging, and a CAFC
that sees daylight.
Continue reading "Fate Sealed"
Posted by Patent Hawk at 5:52 PM | Prior Art
March 1, 2011
The Judge Dyk Shuffle
CAFC
Judge
Timothy B. Dyk spoke at
Lewis & Clark Law School in Portland, Oregon this evening. His chosen topic
was "The Commercial Impact of Complexity and Confusion in Patent Law," one of
the things he never directly spoke to. His lapses were as insightful as the
topics he covered. As Lowell George once observed about music, "it's not
just the notes, it's the space between the notes."
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