« March 2011 | Main | May 2011 »
April 29, 2011
Domination Abomination
Fabled economist Adam Smith, inventor of "the invisible hand" of
capitalism, held the commonplace mentality of Enlightenment thought: that commerce
promoted more civilized behavior; that virtuous behavior was actually promoted
by self-interest. For Smith, liberation was had in commercial society by
replacing feudal relations with the cash nexus: contractual relations that limit
the entitlement of men to dominate one another; Smith forgetting entirely that, under capitalism, slavery simply got codified as mercantile. Patents are an entitlement,
though not to dominate. Unless your behavior is Microsoftian - a behavior form,
if civilized, nonetheless has Mr. Smith spinning in his grave.
Continue reading "Domination Abomination"
Posted by Patent Hawk at 4:09 PM | Litigation
À La Mode
Plastic
beverage bottles represent a health hazard and an environmental blight, but
are blandly typical of short-sighted humans on a petroleum-fueled bender to
planetary ruin.
7,094,863 & sibling
7,129,317 claim a particular plastic bottle resin, polyethylene
terephthalate ("PET"), that keeps a bottle clear when "hot-filled". Prior art
bottles turned hazy when filled by hot liquids that promote leaching of
endocrine disruptors, which all hot-filled PET bottles do - hazy or clear.
Wellman sued Eastman Chemical for infringement. Eastman got an á la mode summary
judgment over best mode, because the
disclosure held back critical data as a trade secret. That tony ruling, had
without even cursory claim construction, got appealed, as did § 112 ¶ 2
indefiniteness.
Posted by Patent Hawk at 12:03 PM | § 112
April 28, 2011
Engaged
The
ITC is a convenient forum for trade-related patent infringement, but
adjudication quality can be spotty. The common problem: claim construction. The
flaw on display today was importing too much into a claim term. What the
administrative law judge (ALJ) got right, the ITC reversed into error.
Posted by Patent Hawk at 1:39 PM | ITC
April 27, 2011
The Juice
The
beauty of intellect is in connecting the dots: perceiving holistically. Only
rarely does context not matter. Claim construction is exemplary. A lovely
example of eye for detail coupled to holistic awareness arises courtesy of
Western Wisconsin
Magistrate Judge Stephen L. Crocker, who, in the interest of judicial economy,
keeps his eye on the prize.
Posted by Patent Hawk at 1:08 PM | Claim Construction
April 26, 2011
Wilt of the Gilt
The
USPTO abruptly announced
cancellation of
it gold-plated patent program, promising hair-trigger action for a serious
bribe. (Keep in mind that "hair-trigger" in governmentese is more like "glacial"
by business standards. Einstein reminds that everything is relative except the
cosmological
constant, which he dropped. Because constants just aren't what they used to
be. Or might be. At least constantly. But I digress.) This shake-up of a
shakedown has
Hal Wegner hopping mad. His point is that such the program simply can't
decease as a matter of caprice, the the PTO can't just shuck it off with a shake
of its paw as a matter of law. Hal's persnickety perspective is scintillatingly
skewed. We're talking about the patent office, where "broadest reasonable
interpretation" rules the roost. And on that roost, what is reasonably broadest
makes the horizon line of infinity feel tiny indeed.
Continue reading "Wilt of the Gilt"
Posted by Patent Hawk at 11:06 AM | The Patent Office
April 25, 2011
Jurisdiction Fiction
Personal
jurisdiction can be a tricky issue. Radio Systems manufactures pet products,
including a patented electronic pet door, the SmartDoor. Accession is a one-man
show, a Mr. Sullivan, holder of
7,207,141, claiming a "a portable pet access door (the "Wedgit") that can be
inserted into sliding glass doors." Mr. Sullivan unsuccessfully solicited Radio
Systems about the Wedgit. Then, in a mighty show of brass, Accession's lawyer
managed to talk an examiner into rescinding a notice of allowance for a patent
application to the Smartdoor. In retaliation, Radio Systems filed a DJ at '141
in East Tennessee, its home turf. Accession got it dismissed for lack of
personal jurisdiction, whereupon Accession filed an infringement action in New
Jersey, its home turf. That got stayed pending appeal of the DJ dismissal.
Continue reading "Jurisdiction Fiction"
Posted by Patent Hawk at 10:30 PM | Case Law
April 24, 2011
Instant Squealing
Claim construction is a legal greased pig: hard to tackle. Grabbing it
invariably results in a lot of squealing. Creative Internet Advertising sued
Yahoo! over
6,205,432, which claims an instant squealing program. The litigation had lots of claim construction squealing about antecedent basis and sequence. A jury found '432 infringed
and not invalid. "The district court enhanced the jury's damages award and
ordered an ongoing royalty despite Yahoo!'s efforts to design around the
patent." Yahoo! squeals. Again. And yet more squealing on appeal: a CAFC panel judge
joins in.
Continue reading "Instant Squealing"
Posted by Patent Hawk at 2:45 PM | Claim Construction
April 23, 2011
Not Fruitful
John Larry Sanders got a couple fertilizer patents.
The child,
6,210,459, was asserted against Mosaic and Cargill. Oddly, in two separate instances, different claim terms were
construed to be the same. Also odd was the district court letting Mosaic amend
its pleadings to add an inequitable conduct charge. "The parties stipulated to
noninfringement under the court's claim construction." Sanders appealed for some
patent fertilizer. It may have gotten more than it wanted.
Continue reading "Not Fruitful"
Posted by Patent Hawk at 4:44 PM | Claim Construction
April 22, 2011
Patented Bloat
5,411,474
has bloat down to a science. "To create more working space during laparoscopic
procedures, surgeons inflate the abdominal cavity with gas... The claimed
apparatus aims to deliver gas 'within 2°C of the predetermined temperature.'"
'474 owner Lexion Medical sued Northgate for infringement, and won on summary
judgment. This in the second round, after a round trip to get claim construction
cleared up at the CAFC in round one.
Continue reading "Patented Bloat"
Posted by Patent Hawk at 10:38 PM | Claim Construction
April 21, 2011
Wishy-Washy
The
USPTO had a gold-plated patent examination fast-track planned, called
"Prioritized Examination," (also "Track One") scheduled into existence on May 4.
For the privilege of working with the office, upon payment of a $9,520 fee, an
applicant might hope for allowance within a year. Track One has been put aside,
the cancellation ostensibly attributed to budget cuts, though the application
fee makes that excuse ponderous.
Along with the new Patent Decimation Act about to pass Congress, it's high time for Americans to stop inventing and get back to the inscrutable financial engineering that bred the illusion of wealth in this country for so long. After all, in siphoning funds from the PTO, and pocketing millions from mega-corporations for corrupt legislation, Congress sets the example for the nation that greed is good. Or at least good enough for government work.
Posted by Patent Hawk at 12:19 PM | The Patent Office
April 20, 2011
America Invents But Congress Perverts
[The
following crossed my desk, and is reprinted here as food for thought, and
action. In other words, this opinion piece is not necessarily my opinion, for
lack of extensive study on my part. But this is worth reading, and contacting
your Congressman and Senator immediately if you concur.]
Congress may well be on the verge of passing a great threat to our patent system. You have seen the blogs and emails explaining how the America Invents Act (formerly the Patent Reform Act of 2011) will dismantle our carefully-balanced patent system, the system that has made America the innovation engine for the world. Other countries innovate at half our rate. The multinationals want to "harmonize" our laws with those unsuccessful systems for their own convenience. This bill imposes about $1 billion in costs by taking away options that domestic American businesses use, to save a comparatively trivial amount for the Patent Office and a small number of multinational corporations.
Continue reading "America Invents But Congress Perverts"
Posted by Patent Hawk at 8:10 PM | The Patent System
Busted
TiVo bludgeoned EchoStar with
6,233,389, winning at trial in 2006 and on appeal in 2008. EchoStar wouldn't
settle, and TiVo got a temporary injunction. EchoStar's supposed workaround "was
not more than colorably different from the infringing software, and did continue
to infringe the software claims." The district court, then an appeals panel,
found contempt. The CAFC agreed to hear the issue en banc, to "clarify the
standards governing contempt proceedings in patent infringement cases."
With a roaring dissent, clarification was awfully noisy.
Posted by Patent Hawk at 7:08 PM | Case Law
April 19, 2011
Not A Rembrandt
Rembrandt got its hands on some old patents:
5,602,869 &
5,844,944. But Rembrandt recognizing previous owners and licensees eluded it on a
greedy rush to a payday. Not to mention ersatz claims drafting. Rembrandt sued AOL and a slew of telecommunications
companies for infringing an industry standard, the V.34 modem protocol. The
protocol to payday didn't go Rembrandt's way.
Continue reading "Not A Rembrandt"
Posted by Patent Hawk at 9:28 PM | Exhaustion
April 18, 2011
The River
i4i squeezed $290 million
in damages for an obscure feature in Word 2007. Sociopath Microsoft had tried to
invalidate the asserted patent with suspicious testimony. Before the Supreme
Court now is whether the patent invalidity burden of proof bar should be lowered
from its "clear and convincing" standard to "preponderance of evidence" for
prior art not considered before the patent office.
Today's oral arguments demonstrated the legal vagrancy of Microsoft's
position as it sails the longest river: denial.
Posted by Patent Hawk at 7:23 PM | Prior Art
April 16, 2011
Reissue
Best
practice for patents that have not had all potential value squeezed is to file
continuations and divisionals. Keep the patent alive to mine untapped potential.
The only remedy to modify extant claims is reissue. For two years from issuance,
claim scope may be enlarged. After that, reissue claims may only be narrowed.
This is typically done as a hedge against invalidity. Yasuhito Tanaka sought to
do just that, after failing to do more. The sledding was much tougher than it
should have been.
Posted by Patent Hawk at 4:19 PM | Prosecution
April 12, 2011
No Control
6,757,898
claims a networked medical database, over which McKesson sued Epic Systems. Epic licenses the accused product, MyChart, to healthcare providers. Epic's second summary judgment motion of non-infringement convinced the district court judge, after the first failed because the judge wanted a better feel for the facts. The appeals court only wanted a better feel of control.
Posted by Patent Hawk at 1:41 PM | Infringement
April 11, 2011
Building an Invalidity Position
Most patents are junk. But proving that to a judge or jury is no easy task.
The more technical the claimed invention, the more difficult it can be to convey
the mapping between prior disclosures and patent claims to one of less than
skill in the art. Prior art search is the first step to developing an invalidity
position, and a most important step. But prior art search is best viewed as a
cog used to build an invalidity steamroller. Fitting the parts together isn't
always as simple as it may seem.
Continue reading "Building an Invalidity Position"
Posted by Patent Hawk at 6:15 PM | Prior Art
April 4, 2011
Unprecedented Opportunity
While
Nortel Networks ran its business into the ground, it amassed, and litigated, a
formidable, if cracked, patent portfolio - around 6,000 U.S. patents and apps,
covering networking, wireless, and Internet technologies. (Patent
Hawk invalidated several patents Nortel asserted in years past, hence the
"cracked" comment.) But corporations are always about numbers, not quality, so
Google has put up a big number to buy the Nortel patent portfolio: $900 million.
The portfolio is being auctioned off as part of Nortel's bankruptcy
proceedings. Other companies will bid, but Google's opening is eye watering.
Google, or some billion-dollar bidder, will use Nortel's portfolio for leverage
in patent suits from competitors, and licensing muscle.
Continue reading "Unprecedented Opportunity"
Posted by Patent Hawk at 2:46 PM | Patents In Business
April 2, 2011
Confidentiality Cancer
Sanofi-Aventis
sued Sun Pharmaceutical for its generic mimic of a cancer treatment drug,
oxaliplatin. They supposedly settled, with a complex license agreement. But then
it got complicated. And discreet. Too discreet. The ghost of Richard Nixon
haunted the courtroom.
Continue reading "Confidentiality Cancer"
Posted by Patent Hawk at 10:58 PM | Case Law
April 1, 2011
Chuck Up
6,848,875
and continuation
6,935,826
claim beer or soda pop cans. Hot off the USPTO press, owner Crown tried to seal
competitor Ball into an infringement can. Ball burst out by summary judgment,
"that the asserted claims were invalid for violating the written description
requirement," and anticipated.
prior art search + 
Newsfeed (RSS)