September 30, 2011
Powertech (PTI) wanted to get out from under the thumb of its patent license to Tessera, so it filed a DJ. The district court dismissed "for lack of subject matter jurisdiction." PTI appealed, whereupon the CAFC, citing the Supreme Court's 2007 MedImmune, Inc. v. Genentech ruling, reversed and remanded - because every patent license is a grudge match just waiting to happen. (CAFC 2010-1489).
September 27, 2011
Marine Polymer sued HemCon for infringing 6,864,245, which claims a biocompatible polymer. HemCon successfully requested reexam during district court proceedings. "The examiner initially adopted a different claim construction than the district court." Marine Polymer argued that the PTO ought to adopt the district court construction. Upon dropping some dependent claims, the patent reissued, after the district court had found the asserted claims infringed, granting Marine Polymer damages and an injunction. On appeal, a CAFC panel majority legislates from the bench to further damage patent protection.
September 26, 2011
Back of the Bus
Sage plutocrat Hal Wegner proposes that patent agents be proscribed from practicing before the new Patent Trial and Appeal Board, blaming the current appeal backlog on patent agents having "no formal legal training." "The far too frequent presentation of ill-considered appeal briefs at the Board must be minimized." Hal wants slicker reptilian obfuscation from higher-priced lawyers. Next up on Hal's hit list - those lame pro se prosecutors that are creating a backlog with their dime-store applications. After all, the only "people" deserving patent protection are corporations.
A Kodak Moment
Spread Spectrum Screening (S3) sued Eastman Kodak and a few of its customers for infringing 5,689,623. Judge Robert W. Gettleman of Northern Illinois severed the claims against Kodak from its customers, stayed the customer action, and transferred the Kodak case to the Western District of New York, Kodak's home turf. S3 appealed the stay. The CAFC wouldn't touch it - "because this appeal is not from a final judgment within the meaning of 28 U.S.C. § 1295(a)(1), and does not otherwise qualify as an appealable order." (CAFC 2011-1019; precedential) S3's arguments were waved off as misreading case law and otherwise meritless. Yet another case of blatant pro-corporate bias by all courts concerned.
September 23, 2011
Cordance sued Amazon for infringing three patents for online transactions that use metadata: 5,862,325; 6,088,717; and 6,757,710. The jury found '710 infringed, but invalid; the others not infringed. Following the law, the district court judge lifted the jury's '710 invalidity finding JMOL. That would leave Amazon on the hook - a situation that the Corrupt Appeals for Corporations (CAFC) "corrected."
The Federal district courts and CAFC (Corrupt Appeals for Corporations) are destroying small businesses with their bias to the largest corporations. A small business client just called with another matter. In the previous patent matter, unrelated to the new one, the district court disallowed evidence that would have demonstrated invalidity - an unjustified, rank display of corruption. Judges use cunning to cripple a case without appearing too overtly to crush it. The CAFC appeal affirmation was a sham. Damages were minimal, but the injunction was crippling. In the new matter, the same message was given my client as in the last case - "we won't give you a license. Our goal is to drive you out of business." This is the power of patents, abetted by an economically ignorant, corrupt judiciary. It's bad, it's nationwide.
September 21, 2011
Down On The Farm
Vernon Hugh Bowman bought and planted Monsanto's patented soy seeds for his first crop. For his late-season second crop, which he considered "riskier planting," he skimped and "purchased commodity seed from a local grain elevator." He applied the same toxic and ecologically devastating Monsanto herbicide, finding, to his satisfaction, that the second-crop seed survived. Hayseed Bowman even told Monsanto of his experience. His candor got him sued for patent infringement.
September 20, 2011
Rebuffed on Fluff
Phyllis Leithem et al had an idea for a better diaper - fluff pulp with superior absorbency. The PTO examiner rejected the claims as obvious, using a combination of references. On appeal, Leithem argued that the prior art did not fluff the pulp. The BPAI fluffed the piss-poor prior art. Leithem petitioned for a rehearing, contending that the Board "relied on a new ground of rejection." Typical of the curmudgeonly bureaucrats at the patent office, Leithem's petition was denied, so Leithem appealed to the CAFC.
September 18, 2011
The boys at Catalina Marketing thought they had a hot idea, so they hired a rum prosecutor. 09/401,939 claims "distributing purchasing incentives to consumers from a main computer to a 'personal computer' over a computer network." This old idea got panned by the PTO, who resorted to an everyday dictionary to define "personal computer," as the '939 prosecutor hadn't bothered to nail down this critical claim term. Not that it would have mattered much.
September 17, 2011
As the rich get richer and the poor get poorer in this hypothetical land of opportunity, there is one constant: politicians dissemble. The America Invents Act floated into law as a pseudo-jobs-creation bill. It will do no such thing. PTO fees go up 15% immediately, which only has a telling negative effect on the inventors who actually create jobs (small companies). Under a government-mandated spending freeze that goes into effect October 1, the PTO cannot spend whatever bonus it may procure. And the new Act mandates programs that require more from the patent office at the appeals level, which means cutbacks for examiners, which means the examination backlog will further stack up. The administration once spoke of "millions" of new jobs being created by passage of the Act, recently pared to "200,000." The reality will be like the Iraq War, which was sold as paying for itself (by oil revenues) - the America Invents Act will hurt those who can least afford it, and will cost this country jobs.
September 16, 2011
7,346,545 claims a method of online media product distribution, using the media as bait to shove advertising before a user. Central California district court Judge R. Gary Klausner idiotically dismissed '545's assertion over §101 eligibility "without formally construing the claims." Or informally construing the claims, for that matter. On appeal, the CAFC talks out both sides of its mouth: no need to construe the claims, but it you do, this patent goes to patent-eligible subject matter. (If you don't comprehend a claim, how do you know what the claim goes to?! It might seem, well, abstract.)
September 10, 2011
A skittish Markem-Imaje sought declaratory judgment from 7,150,572, which claims a transfer printing device. It got a summary judgment of non-infringement. '572 owner Zipher appealed, where CAFC Judges Clevenger and Linn got chided by Judge Newman for illiteracy, a remarkable feat considering the extensive parsing of the spec in the majority opinion. Another exercise in extra-legal bias by this corrupt court.
September 8, 2011
The Déjà Vu Patent Act
The Senate passed H.R. 1249 unamended, sending the bill to President Obama's desk for signature. The law goes into effect the day it is signed by the President. Put a fork in it, it's done, save the self-congratulatory speeches. One small goosestep for prosecution turmoil, one big brassy leap for patent plutocracy. This is the biggest change in patent law since 1836, when patents began to be examined prior to grant. Complaints from business about junk patents spurred the 1836 Act.
September 6, 2011
Patent legislation pending - the Senate voted 93-5 for cloture - to put H.R. 1249 (the "America Invents Act") up for final consideration for passage. The next step is a bit of debate, then a merits vote. If the Senate approves without amendment, the House version goes to the President for signing, which he will. An amendment puts the bill back into play, and further delay. The Senate leadership of both parties favors passage without amendment.
September 5, 2011
Suck It Up
Mytee Products filed a declaratory judgment action against Harris Research over 6,266,892 and 6,298,577, which claim carpet cleaning nozzles. The DJ went poorly. "After summary judgment proceedings and a jury trial, both patents were found to be not invalid and infringed. Harris moved for a permanent injunction, which the district court granted." The CAFC affirmed. This is a case of "be careful what you wish for," and make sure you have decent lawyers making your wish.
September 2, 2011
In prosecuting semiconductor memory patents, Eliyahou Harari et al have run into interferences, which is a oftentimes byzantine artifact of the U.S. "not-first-to-file" patent regime. Rather careless prosecution was partly overcome when the CAFC decided against the patent board's curmudgeonly take, that somewhat sloppy incorporation-by-reference wasn't so sloppy as to exclude necessary material to run afoul of the written description requirement; only partly overcome, because one set of claims bit dust for §112 ¶1 while the other scraped by. Which is to say that the USPTO getting something right is equivalent to a coin toss at best - totally random. Another oddity of corrosive case law cropped up in determining whether a claimed "a" was singular, plural, or both (it was singular this time, as it always should be). (CAFC 2010-1075-1076); precedential, so as to add more conundrum to case law.