July 31, 2011
Fear & Loathing
"An assortment of medical organizations, researchers, genetic counselors, and patients" filed a declaratory judgment action against 15 claims of seven Myriad patents. The claims covered "isolated" human genes "associated with a predisposition to breast and ovarian cancers." Myriad provoked the DJ by cease-and-desist nastygrams and lawsuits against research institutes and universities. Those with fear and loathing banded together.
July 29, 2011
Rule of law is a tidy concept, but in practice, gets shaken like landfill in an earthquake - the consistency of jelly. The federal government is a monstrous jelly-meister. In the U.S. plutocracy, every citizen is a government mule. Corporations are special - tax breaks, bail outs, subsidies, and generous license to damage the environment, but not so special as to escape sanction whenever the government decides the business ecosystem is at risk. In the past decade, nothing has quite stirred the government's urge to jar the jelly of justice like patents. The courts simply steal patents from inventors when the invention is too valuable; it's just a mule's cargo, after all. When corporations own a portfolio that is too valuable, the U.S. Jelly Patrol (Justice Department) jells itself for antitrust. Right now, the jewels from the corpse of Nortel shimmer too brightly.
July 23, 2011
Jeff Lovin et al filed a patent application for friction welding (10/924,633). The application prosecutor was Richard B. Lazarus of Barnes & Thornburg. Mr. Lazarus is a former USPTO examiner, SPE, instructor and manager at the PTO academy. His prosecution arguments were by the book - concise but sufficient, an understandable economy for someone so well steeped in PTO ways. The BPAI waived it all away, like Lazarus was a lummox: "the Appellants have not indicated reversible error." Arguing against a combination by pointing out how the references failed to teach certain limitations was summarily rejected by the Board with "that argument is not well taken because the Appellants are attacking the references individually when the rejection is based on a combination of references." The Court of Errors added insult to injury, in another display of corruption, this time disguised as deference.
July 21, 2011
Conjugated estrogens are a mixture used to treat post-menopausal hot flashes by artificially ramping lost hormonal production. For that benefit runs a greater risk of breast cancer, heart attack, or stroke. Duramed asserted 5,908,638 against Paddock Labs to treat its post-grant ANDA, the generic replacement syndrome that afflicts profitable patented drugs. Paddock eluded infringement because of prosecution estoppel over the claimed moisture barrier coating on the pill - what's in the prior art is foreseeable. Here is a backhand of Obzilla.
July 17, 2011
The ever-subversive Hal Wegner has been attacking the Leahy-Smith America Invents Act in his privately circulated newsletter. Today's missive from the malcontent laments the "anti-foreigner discrimination" of the bill - the failure "to legislatively overrule the requirement that Paris Convention priority under 35 USC § 119(a) requires that the foreign application comply with the best mode requirement."
July 9, 2011
Somewhat subtlety, but most assuredly corruptly, the courts are on a continuing crusade to limit patent protection. In the past four years, the capriciously subjective Obzilla (KSR) has trampled many patents, where an objective evidentiary standard would have left them standing. In this episode, Retractable Technologies v. Becton, the crusade against patent enforcement continues, but from a different angle, with the CAFC distorting well-settled claim construction precedent to squeeze the scope of claims.
July 1, 2011
The Sport of Kings
An unlabeled consortium including Microsoft, Apple, Sony, Research in Motion, Ericsson, and EMC bought the treasure trove of Nortel patents at auction yesterday for $4.5 billion. Google opened with a $900 million bid. Nortel filed for bankruptcy in 2009. It had a patent portfolio of about 6,000 patents and applications. All the other Nortel assets combined sold for $3 billion. Google squeezed ironic sour grapes from the auction: "This outcome is disappointing for anyone who believes that open innovation benefits users and promotes creativity and competition." However true the observation, no corporation, Google or otherwise, practices "open innovation." Not to mention that beliefs have no appraisal value.