June 28, 2011
Serious body builders take a variety of supplements, not because they are serious about their health, but because they are serious about their ego. Brains and brawn seldom mix. And so it seems with at least one bodybuilder supplement maker. Creative Compounds filed a DJ against competitor Starmark Laboratories over 7,109,373. Starmark shot back, asserting infringement, and the comeuppance of Creative's 7,129,273 as invalid. Starmark found favor at district court: "summary judgment on all counts and denied Creative's motion to dismiss for lack of jurisdiction." The appeals court backed the district court on everything but subject matter jurisdiction. But the punch of that was moot, because Creative's '273 was effectively invalidated, and so can never be successfully asserted.
June 27, 2011
American Calcar (ACI) sued Honda for infringing 15 car computer patents. The number of patents asserted hardly made up for spotty quality. Only one was found valid and infringed at district court. Nine were appealed over validity, infringement, and inequitable conduct. The whiff of impropriety by ACI, while not legal damnation, was enough to bias the courts, and, in the end, let Honda drive on, patent toll free.
June 24, 2011
in these difficult economic times, it's crucial to help the largest
corporations. They don't create jobs like small companies, nor do they pay
taxes, but that's what
peasants citizens are for. What
mega-corporations have is political power, because, unlike small businesses, if
corporations aren't coddled, they'll just move more of their jobs overseas.
The government can only print so much money before the bond market starts to
fret. Those spendthrift Europeans haven't exactly helped the mirage of
sovereign debt as a good thing. In the U.S., the big banks have been bailed out.
The largest corporations have been thoroughly subsidized. Yet the economy
remains tepid. We need something more. It's time to pitch inventors' patents in,
to help fuel the fire of mega-corporate profits, to bring the stock market roaring
back, and once again energize the illusion of prosperity.
June 22, 2011
5,211,954 claims a sleeping pill with a relatively low dose (7.5 mg) of active ingredient temazepam. As usual, an ANDA kicked off patent litigation, Tyco v. Mutual Pharmaceutical. The district court put the patent to sleep for invalidity in summary judgment. Nightmares of Obzilla were short lived, as the CAFC affirmed the doze as permanent.
June 19, 2011
The Court of Errors has become a butchery. Obzilla's minions, while on a tear, are cautious enough to roll their unjust killings under the rug in nonprecedential opinions. The instant episode is Stamps.com v. Endicia.
June 15, 2011
6,892,861 and 6,935,465 claim elevator "modernizing" devices and methods. Patent owner Inventio sued competitor ThyssenKrupp for infringement. In the claim construction dust-up, the district court's grasp of means-plus-function needed some modernizing, for missing the necessity of "means" in proclaiming that § 112, ¶ 6 applied. The confused judge declared the asserted claims indefinite under § 112 ¶ 2. The misdirection of defense counsel was caught out on appeal, as was behavior unbecoming of a litigator, in a rare slap at counsel by the CAFC.
June 13, 2011
Spectralytics sued Cordis and Norman Noble for infringing 5,852,277, claiming a manufacturing technique for a coronary stent. A jury found the patent valid and willfully infringed, to the tune of a 5% royalty. Appeal covered judgment as a matter of law (JMOL), damages, obviousness, willfulness, and award of attorneys fees.
June 10, 2011
Described and Enabled
35 U.S.C. § 112, ¶ 1 has two requirements: 1) a written description so as to enable any person skilled in the art to make and use the claimed invention; 2) a best mode "set forth." The first requirement is of a piece. Any description that falls short of enablement is inadequate. But case law has grown a thicket of complication, essentially bifurcating adequate written description from enablement, even as the statutory inquiry is singular. The CAFC majority opinion in Boston Scientific v. Johnson & Johnson muddies the bifurcation, albeit flying under the banner of written description, not enablement. The partial concurrence disliked the mud, and the banner.
June 9, 2011
Clear & Convincing
When it comes to patent cases, the courts are biased towards mega-corporations, at granting undeserved credibility and in airing their gripes. But the license only goes so far. The Supreme Court has taken numerous patent cases since technology corporations starting whining about "junk patents" coming out of the USPTO last decade. The goal, as Justice Breyer put it, has been "to separate the sheep from the goats." Microsoft cried "goat" about i4i's patent that it infringed. So the Supremes brought in the livestock.
June 7, 2011
There's a crummy consistency to patent validity stupidity: failure to discriminate (which is symptomatic of the unaware generally). The cattle call "everything is everything" has a holistic ring, but it's more a rant for those too dim to discern between facets that matter. Post-Obzilla, such mental faux pas is common in USPTO examination, as applicants constantly experience. Arnold G. Klein was one of them.
In the least significant Supreme Court patent decision in years, the majority ignores the cert issue posited to affirm the CAFC, while dissenters notice the elephant in the room. The only surprise, and a small one at that, is that the CAFC is affirmed without getting whacked upside the head, as they normally do by the bench above. The issues: inventorship assignment, and from that, standing.
June 5, 2011
In an exercise of antitrust navel-gazing, the Justice Department is probing the sale of bankrupt Nortel's 6,000+ patent trove. Google made an eye-watering $900 million opening bid. Apple might want to bite, and Blackberry might phone a bid in. The ostensible concern is that the successful bidder may sue unsuccessful bidders, and every company that crawls into the commercial space of wireless anything, for patent infringement. Say it ain't so.
June 4, 2011
Knowles Electronics put MemsTech before the ITC because "the importation and sale of certain silicon microphone packages violated § 337 of the Tariff Act of 1930 as amended, 19 U.S.C § 1337." In other words, patent infringement. Knowles' patents were found valid and infringed by MemsTech's importation. MemsTech appealed, in a matter of interest only for a review of crusty case law.
June 2, 2011
Advanced Software sued competitor Fiserv for infringing a check fraud and forgery patent reliant upon encryption, 6,792,110 found not infringed in summary judgment. On appeal, lots of garbage arguments by freewheeling litigators, typical of every litigation. The stunner is the CAFC descending into gobbledygook guidance, leaving claim construction an encrypted process for district courts. Herein, a limiting preamble whose limitations can be ignored for determining infringement. The CAFC continues to astonish with legal turbidity.
June 1, 2011
Kimberly-Clark sued First Quality for infringing four patents claiming various facets of disposable "training" pants for toddlers. Kimberly-Clark got a preliminary injunction. After that tiff was headed to appeal, the district court modified its claim construction. Here is another case where the district court didn't pay attention, followed by a CAFC panel that disregards a critical admission made by a patent holder. Either the courts need training pants for patent adjudication, or the smell of corporate bias wafts again ("Kimberly-Clark, a major participant in the personal care industry...," the CAFC respectfully observed).