August 31, 2011
John Classen got patents for immunizing mammals on a schedule, and determining whether there is an effect; patents which the patent office should have never allowed: 5,723,283; 6,420,139; & 6,638,739. Then Classen sued a bunch of companies for infringing. The district court ruled the patents §101 ineligible, which the CAFC affirmed, which the Supreme Court vacated in view of Bilski, which came back to the CAFC, where, 2-1, the CAFC changed its mind on 2 of the 3 patents. In sum, further evidence that case law is a crock for a crooked game.
August 29, 2011
Mitsui Bussan Logistics tried to get a patent on product distribution chain management (10/798,505). The examiner at the PTO was typically feeble in examination, as was the patent board. At the CAFC, Judges Linn and Gajarsa illicitly ran over the claims. In dissent, Judge Newman was the only competent party in the chain of adjudication. One more chip on the plentiful pile of evidence that the U.S. patent system is dysfunctional and corrupted.
August 27, 2011
6,440,392 claims a nasal spray for treating osteoporosis, a bone disease caused by unhealthy lifestyle. As with many patented drugs, corporations make enormous profits in the U.S. treating the sufferings of the ill-disciplined. '392 owner Unigene Labs sued Apotex, a Canadian firm, for trying to muscle its way into a duopoly by filing an ANDA, which invariably sets up a patent battle that the upstart hopes to win, usually by invalidating the patent. It didn't work this time. '392 was found valid, both at district court, and on appeal, where the CAFC set its own formula for chemical obviousness - for this case at least.
August 26, 2011
For years, Star Scientific has been trying to smoke R.J. Reynolds Tobacco for infringing its tobacco curing patents: 6,202,649 & 6,425,401, but couldn't get the match to strike. Down-and-dirty litigation tactics tarnished Star. As usual, the corporate giant won again, as the CAFC displayed divisions within.
August 24, 2011
Genetics Institute (GI) sued Novartis under 35 U.S.C. § 291, declaring an interference between Genetic's' 4,868,112 and Novartis' 6,228,620 and 6,060,447, to determine priority. All go to recombinant proteins, ostensibly to treat hemophilia with clotting blood. The point was to invalidate claims of Novartis' patents. The district court dismissed, holding that there was no interference, because the claimed subject matter didn't overlap. Genetics appealed.
August 23, 2011
6,826,298 claims an automated semiconductor wafer defect inspection system. Owner Camtek asserted against August Technology, winning a $6.8 million award for lost profits and an injunction. August Tech appealed. An interesting claim construction issue over a wafer being wafers is walked all over by the CAFC extending the § 102(b) on-sale bar to cover eventual invention.
August 19, 2011
The Wall Street Journal has an investment tip: "for bargain stocks, check the patent office... Big patent portfolios are increasingly being used as financial weapons... Patent-stuffed companies might be richer than they look." The problem, according to WSJ and an Ocean Tomo poobah: "valuing just one patent can take weeks and cost tens of thousands of dollars." That's because Ocean Tomo is not very adept at the sport of kings.
August 17, 2011
CyberSource got 6,029,154 for an online credit card fraud prevention invention. '154 prevents fraud by comparing the Internet address used for an online purchase with those previously used. CyperSource asserted '154 against Retail Decisions, who initiated an ex parte reexam, leaving the court case stayed pending reexam. The reexam came back with amended claims, which were promptly §101 bounced by the district court under the CAFC's then-extant Bilski ruling, as "an unpatentable mental process..." CyberSource appealed to the CAFC, who once again expansively exercised its brazen biases. The lawless caprice of the CAFC continues.
August 15, 2011
As a relative newcomer, Google has been light in its quiver of patent arrows. Its bid to buy the 6,000-strong Nortel patent horde was crushed by a consortium. Google has decided to arm itself by acquisition of Motorola Mobility for $12.5 billion, the rump leftover of a once-promising technology company. The phone business itself means much less to Google than the 17,000 patents that would pad its own thin portfolio, as counterpunch protection for its own Android mobile operating system, being assailed for patent infringement by competitors.
August 14, 2011
Republican Representative Darrell Issa is a sharp cookie. For years he sponsored bills to educate the halfwits on the federal bench about patent law; ultimately unsuccessfully. As the New York Times reports, Issa has been more successful pulling pork into his district, with no repulsion to helping himself to some juicy slices in the process. Issa has avoided conflicts of interests between his extensive business holdings and his role as public servant by paying the concept little heed. Issa's gung-ho love of lucre and exploitation of the system certainly embodies the American way.
Hal Wegner predicts "The Leahy Smith America Invents Act is likely to be enacted this year." The icing on top of that rotten cake is "that there will nevertheless be a significant fee diversion that will occur later this year: This will occur as a result of the debt ceiling legislation that has created a 'Super Committee' to propose massive budget cuts." The wretched incompetence of the federal government spirals down. While the patent office has had years of sufficient funds, it has made little progress in streamlining its operations or improving the quality of examination. The coming consequence of the inevitable will be to provide a ready excuse for the PTO's performance - not enough funds to do a decent job. But not everything is going down. The BPAI backlog, already on a steep ascent owing to excremental examination, will reach liftoff velocity, as the chimera of patents as a spur to the economy slips further into the haze.
August 11, 2011
North Georgia Judge Thomas Thrash is a claim construction curmudgeon. 6,587,550 claim 13, an email apparatus claim, reads "the computer being programmed to detect analyze the electronic mail communication." Oops. What else could it be but "detect and analyze"? After all, you can't go dropping verbs for claim construction. Thrash trashed about, spooked to fix it, so he ruled the claim indefinite. The CAFC patched it and pitched it back.
August 10, 2011
Article I, section 8, clause 8 of the U.S. Constitution exhorts "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." In 1787, inventors' "discoveries" were mechanical and chemical. Very few would have met the KSR v. Teleflex novelty requirement, which by court fiat removed incremental invention as patentable. Times change, as does the leading edge of technology. Now, the best way "to promote the progress..." is to eliminate patents altogether.
August 5, 2011
Albert Fairclough got 5,622,375 for a two-child push-chair. During earlier prosecution of the family, Fairclough found out about a couple of highly material prior art references, which he duly neglected to inform the USPTO of. Joovy, '375 owner, sued Target, which admitted infringement, but asserted prior art invalidity and unenforceability by inequitable conduct. The North Texas district court granted summary judgment of inequitable conduct, but denied invalidity. The CAFC flipped that sunny-side up: broadening claim construction on "rear wheels," thus paving the path to anticipation, while not bothering with unenforceability.
August 1, 2011
The USPTO still grants patents, but the valuable ones are more likely than not to be taken away upon reexamination, if not by the courts beforehand. The courts often deal patently death with lawyerly cunning, giving a patent some legal grace with one hand while stabbing it to death with the other. Five years ago NTP managed to scrap $612+ million from Research in Motion for patents that now prove invalid on reexam. Patent extortion is like comedy - timing is everything.