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June 28, 2011
Dumbells
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.
Posted by Patent Hawk at 4:03 PM | Prior Art
June 27, 2011
Quality Control
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.
Continue reading "Quality Control"
Posted by Patent Hawk at 5:56 PM | Infringement
June 24, 2011
Troubled Times
Especially
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.
Continue reading "Troubled Times"
Posted by Patent Hawk at 10:33 AM | The Patent System
June 22, 2011
Euthanasia
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.
Posted by Patent Hawk at 1:11 PM | Prior Art
June 19, 2011
Stomped Stamp
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.
Continue reading "Stomped Stamp"
Posted by Patent Hawk at 9:13 PM | Prior Art
June 15, 2011
Mean Means
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.
Posted by Patent Hawk at 10:03 PM | § 112
June 13, 2011
Commercial Success
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.
Continue reading "Commercial Success"
Posted by Patent Hawk at 7:58 PM | Prior Art
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.
Continue reading "Described and Enabled"
Posted by Patent Hawk at 3:09 PM | § 112
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.
Continue reading "Clear & Convincing"
Posted by Patent Hawk at 9:22 PM | Prior Art
June 7, 2011
Analogous
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.
Posted by Patent Hawk at 9:15 PM | Prior Art
Assignment
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.
Posted by Patent Hawk at 11:42 AM | Case Law
June 5, 2011
Scrutiny
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.
Posted by Patent Hawk at 10:38 PM | Patents In Business
June 4, 2011
Microphone
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.
Posted by Patent Hawk at 3:13 PM | ITC
June 2, 2011
Bad Check
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.
Posted by Patent Hawk at 4:24 PM | Infringement
June 1, 2011
Training Pants
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).
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