March 30, 2011
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.
March 29, 2011
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."
March 28, 2011
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.
March 26, 2011
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.
March 25, 2011
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."
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.
March 22, 2011
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.
March 21, 2011
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.
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.
March 16, 2011
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.
March 14, 2011
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.
March 10, 2011
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.
March 9, 2011
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.
March 8, 2011
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.
March 7, 2011
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.
March 3, 2011
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.
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."