April 29, 2011
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.
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.
April 28, 2011
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.
April 27, 2011
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.
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.
April 25, 2011
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.
April 24, 2011
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.
April 23, 2011
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.
April 22, 2011
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.
April 21, 2011
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.
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.
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.
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.
April 18, 2011
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.
April 16, 2011
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.
April 12, 2011
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.
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.
April 4, 2011
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.
April 2, 2011
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.
April 1, 2011
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.