May 31, 2011
SEB had commercial success with an electrical deep fryer that it patented: 4,995,312. Sunbeam asked Pentalpha, owned by Global-Tech Appliances, "to supply Sunbeam with deep fryers meeting certain specifications. Pentalpha purchased an SEB fryer that was made for sale in a foreign market and thus lacked U. S. patent markings, copied all but the fryer's cosmetic features, and retained an attorney to conduct a right-to-use study without telling him it had copied directly from SEB's design. Failing to locate SEB's patent, the attorney issued an opinion letter stating that Pentalpha's deep fryer did not infringe any of the patents that he had found. Pentalpha then started selling its fryers to Sunbeam, which resold them in this country under its own trademarks at a price that undercut SEB's."
May 29, 2011
U.S. justice is blind, but not necessarily in a good way. At root, garden-variety judges are too easily bamboozled, led by the nose by bias, or simply muddle-headed to begin with. Allergan makes and sells a patented vanity cosmetic drug treatment, "to treat inadequate eyelash growth." Allergan sued competitors, including Athena Cosmetics, for patent infringement, and unfair competition under California law. Central California Judge James V. Selna dismissed the unfair competition claim over standing, that Allergan had not been injured.
May 25, 2011
Deep Six to Rule 56
Therasense, now Abbott, got into a patent battle involving 5,820,551 and similar patents claiming "disposable blood glucose test strips for diabetes management." The ubiquitous allegation of inequitable conduct found purchase, for failing to disclose in U.S. prosecution highly relevant prosecution posturing in Europe. Upheld on appeal. Now, in a 6-5 en banc bungle that wipes away much history and seasoned sense that demands accountability for prosecution weaseling, a new rigid rule rules the roost, sending the '551 chicken back to the broiler of district court. The irony is that the new rigid rule, in the name of tightening, actually loosens the bonds obliging honesty. A CAFC majority seems unable to consider the dynamics of consequence.
May 23, 2011
Semiconductor chip design meister Tessera has paid many a college tuition for the kids of patent litigators, as well as raking in boucoup in licensing. Today's episode sizzles from the ITC complaint dating to the close of 2007 against 18 importers. 10 made it to appeal, but with Tessara appealing its bad chips: noninfringement and patent exhaustion.
May 21, 2011
Rancid Rambus set itself on a warpath footing, preparing for an enforcement campaign against SDRAM makers for infringing its patent portfolio. Part of the preparation was destroying tons of relevant documents in a series of festive "shredding parties", the first in July 1998; only preserving potentially helpful documents, such as those establishing priority date. The noise woke the neighbors. In separate cases, Micron and Hynix beat Rambus to the courthouse, filing declaratory judgment motions. What ensued over the spoliation issue came to a head as a CAFC clusterus-coitus (a missing entry in Black's Law Dictionary), with the will to justice displayed by a single CAFC judge, Gajarsa. To those in the know, no surprises here, only disappointment at further disarray, at a CAFC that appears randomly dysfunctional in applying the law.
May 20, 2011
British Telecommunications accused an Arris Group customer of infringing its VoIP patents. Voice over Internet Protocol (VoIP) is the reason that many phone calls nowadays sound garbled, like you're talking through tin cans with wires attached, only higher tech. Makes one yearn for the days when "you can hear a pin drop" through your phone line. Positively Amish. But I digress. Then again, so did this litigation. "Economic injury" doesn't justify a declaratory judgment action, but "adverse legal interests" does. But then, one gets to "adverse legal interests" by "economic injury."
May 19, 2011
Allergan sued Apotex and Exela for infringing 5,424,078 and related patents, claiming eye drops to treat glaucoma. The litigations were prompted by the would-be infringers exposing their intentions by filing ANDAs. The generic rascals were routed, failing to invalidate, and failing to skirt infringement. Apotex appealed obviousness, and knocked down '078 on appeal, but not its relations. Lousy lawyering comes to fore as factoring in, as did, for Exela, clever counsel.
May 17, 2011
The USPTO, a collective of numbskulls, feels no pain in ignoring facts and the law. Endo Pharmaceuticals appealed three applications related to time-released opioids. Agreeing with the examiner, the BPAI rejected all three as obvious. On appeal, two went up in smoke, but the CAFC gave one a time-released reprieve.
May 10, 2011
Gary Odom, aka Patent Hawk, inventor/prosecutor/reluctant pro se litigator, sued Microsoft for patent infringement. What a total debacle. Everything that could go wrong did, from choice of counsel on out. In the finale at district court, Odom was railroaded pro se to summary judgment of invalidity by a biased judge. Patent Hawk, patent validity expert, had his own patent invalidated, by prosecution-cited prior art. And affirmed on appeal. Embarrassing? Yes, but for who?
May 3, 2011
6,034,423 claims a semiconductor chip package lead frame. But it didn't claim enough to satisfy inventors Shahram Mostafazadeh and Joseph O. Smith, who framed themselves into less patent coverage than they thought they deserved later. But Mostafazadeh & Smith lacked the foresight to file a continuation before issuance. So they resorted to a reissue, in an attempted chip chisel that fizzled.
Changing the Channel
Cornered for patent infringement, Echostar dropped dime. Big-time dime: $500 million. TiVo settled its suit against EchoStar/Dish Network for a $300 million gratuity now, with another $200 million payable on an installment plan. EchoStar sighed that it was "pleased to put this litigation behind us." TiVo CEO Tom Rogers was ingracious and narcissistic: "The compensation from this settlement, including the resulting reduction in legal expenditures, puts TiVo in an enviable financial and strategic position." But what do you expect from someone in the boob-tube business.
May 2, 2011
5,674,681 & 6,355,425 claim methods to identify hemochromatosis, a genetically vectored blood iron disorder. Owner Billups-Rothenberg sued Associated Regional and University Pathologists (ARUP) and Bio-Rad Laboratories for infringement. The assertion was bled dry, by lack of written description to the invention claimed in '681, and the later '425, not related to '681, anticipated by 6,025,130.