November 29, 2011
As The Wheel Turns
Docket Navigator, which is a great patent service, reports: "The court granted defendants' motion for a new damages trial following remand even though defendants had not objected to the use of the 25% rule at trial. "Given the widespread acceptance of the 25 percent rule, it would not have been unreasonable for [defendant] to have failed to raise the issue before the Court. . . . [T]he Federal Circuit had implicitly upheld the use of the 25 percent rule prior to [Uniloc USA, Inc. v. Microsoft Corp., 632 F.3d 1292 (Fed. Cir. 2011)], and Defendant had no notice that an objection to its use would have been fruitful in light of the Federal Circuit's previous treatment of the rule. The law does not speak in absolutes and recognizes that a litigant might not be aware of the necessity of making an objection at trial where the great weight of the case law suggests that an objection is not worth making." Spine Solutions, Inc. v. Medtronic Sofamor Danek, Inc., et. al., 2-07-cv-02175 (TNWD November 23, 2011, Order) (McCalla, J.)."
November 23, 2011
While the old saw of "practice makes perfect" has teeth, it's a mistake to equate experience with quality. But some old farts will have none of that sharp discrimination. Hal Wegner joins a lament over the green young bucks: "A knowledgeable senior partner in a southwestern United States firm commented: 'It is a tragedy that we license practitioners with no real practice or knowledge beyond what can be learned in a two-day course - particularly because most clients have no way to distinguish between those that have experience and those that don't.'"
Ricoh sued Synopsys for infringing 4,922,432. Synopsys got off the hook seven years later on a summary judgment motion for noninfringement. The wheels of injustice in this country turn slowly. Costs go to the prevailing party in civil litigation. Synopsis filed a bill of costs for $1.375 million. Ricoh objected, all the way to the CAFC, over document copying and translation costs, along with transcription and video costs. The appeals court precedentially ruled: pay up. (CAFC 2011-1199).
November 21, 2011
The Federal bench is well stocked with judges too stupid to rule prudentially, instead indulging their bias. Case in point: Stephen Byrne v. Wood Herron & Evans (WHE). Grass trimmer inventor Byrne sued Black & Decker for infringement in Eastern Kentucky, getting mowed down in summary judgment on non-infringement. The district judge showed himself a rube in thrall to the corporation by using a plain dictionary for claim construction rather than follow Phillips v. AWH. Byrne then sued his firm, WHE, for not getting him the patent coverage he deserved. The judge then showed blatant bias to the attorneys.
November 17, 2011
Money oils the machinary of politics, and so it should come as no surprise that hundreds of millions of dollars were spent lobbying the corrupt politicians on Capitol Hill to pass the "America Invents Act," the greatest invention of which is the claim that there was any improvement to existing law. There wasn't. The law still allows Americans to patent inventions first created overseas, while disadvantaging small entity inventors. The First Street Research Group has done a remarkable job documenting the swirling cesspool more diplomatically known as U.S. democracy in action, as it pertains to the patent act. Check it out.
November 15, 2011
The Troll Toll
Corporate apologist PC World patronizes its techno-peon readership while appreciating those that butter its bread - its advertisers. "Patents are a touchy subject lately thanks to all the litigation going on over software patents. This is particularly true in the mobile arena, where companies including Apple and Microsoft have been especially enthusiastic in their use of patents as leverage over their competitors. Of course, it's one thing for a company with products to protect to begin asserting patents against others; it's quite another, however, for companies to buy and assert patents without producing any goods of their own." PC World considers intellectual property rights an alienable right - copasetic for corporations, insufferable for individuals. PC World's punch line is positively delusional, as well as statistical fiction: "'Patent troll' is the name typically given to firms in this latter category, and - according to a new study - they're depriving technology businesses of more than $80 billion per year, to the detriment of small inventors and society as a whole." Because mega-corporations are inherently sociopaths incarnate, they won't license or buy patents from small inventors, instead preferring to legally crush like them bugs after stealing their ideas if an inventor tries to enforce a patent, so inventors must sell their inventions to "trolls" to realize any return.
Francis L. Conte worried over a rubber-band gun to swat insects. His patent application was rejected as obvious by the PTO. Conte took this valuable invention to the CAFC, which gave a lesson in the close-enough subjective standard of Obzilla.
November 14, 2011
The Wall Street Journal scores some points with "When Patent, Antitrust Worlds Collide." "Antitrust law frowns on monopolies. Patent law grants them to inventors." The courts have built in Janus-like bias, so as to be able to rule as they like, almost always in favor of plutocracy. "Intellectual-property rights do not confer a privilege to violate the antitrust laws," one court wrote in a 1999 opinion. "But it is also correct that the antitrust laws do not negate the patentee's right to exclude others from patent property." Getting to the bottom line - "The patent system is very seriously screwed up," says Ed Black, president of the Computer & Communications Industry Association, an industry lobbying group. "It's being misused and gamed by a variety of players in a variety of ways." The focus of the article is on the handheld mobile device market. The upshot is that patents do nothing to foster innovation, but much to limit competition, and cost consumers, as well as innovative companies, while entrenching the powers that be.
November 13, 2011
Fuzzysharp got patents on 3D rendering algorithms. Fuzzysharp asserted two of a family, 6,172,679 & 6,618,047 against 3DLabs. The district court ruled the patents §101 uneligible under the CAFC Bilski "machine-or-transformation test," a standard found inadequate by the Supreme Court. On appeal, a lazy CAFC panel vacated and remanded, because it figured some claim construction was needed, and wasn't in the mood to take it on. Another case where legal bills eat a small company alive because the court system is broken.
November 8, 2011
Whiney But Right
Cowed by antitrust proceedings from the 1990s, Microsoft was long afraid to assert its patent portfolio. But as the corporate bulb grows dim, lacking innovative products, stodgy Microsoft has awoken to patent extortion. This past summer, Barnes & Noble Inc. lobbied the Justice Department to open an antitrust probe of Microsoft over patent assertions, which are perfectly legal. While Google's Android OS has been running amok, B&N accused Microsoft of trying to kill off handheld devices, such as B&N's Nook e-reader, with a barrage of "frivolous" patent suits. "Microsoft's exorbitant licenses for its patents entrench the dominant players in the relevant markets because those players can afford to take a license, while small players cannot," B&N wrote to the Justice Department's antitrust chief. Numerous corporate giants in the computing & mobile device industry, including Microsoft, Apple, Samsung, and Google, are in patent brawls over the mobile market. While Microsoft's patent moves are nothing more than business-as-usual, B&N is on-point about patents hindering innovation, and being the last refuge for declining and dying corporate has-beens, whatever their size.
November 4, 2011
Means On The Wind
Typhoon Touch sued Dell, Apple, and other corporate powers over its software keyboard patents: 5,379,057 & 5,675,362. The plutocratic protection afforded by the courts insured that Typhoon would run out of wind in its assertion, and so it did. The easiest trip-up is claim construction. Sure enough, all it took to take the Typhoon down were a few soft keystrokes. In the finale, the CAFC couldn't resist whipping up self-contradictory case law on means-plus-function claim elements.