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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.)."
Posted by Patent Hawk at 1:09 PM | Damages
November 23, 2011
Experience
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.'"
Posted by Patent Hawk at 12:42 PM | Prosecution
Costs
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).
Posted by Patent Hawk at 11:20 AM | Case Law
November 21, 2011
Kentucky Bluegrass
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.
Continue reading "Kentucky Bluegrass"
Posted by Patent Hawk at 4:10 PM | Litigation
November 17, 2011
Lube Job
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.
Posted by Patent Hawk at 10:33 PM | The Patent System
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.
Continue reading "The Troll Toll"
Posted by Patent Hawk at 10:48 PM | The Patent System
Swat
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.
Posted by Patent Hawk at 5:51 PM | Prior Art
November 14, 2011
Collision
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.
Posted by Patent Hawk at 11:21 AM | Patents In Business
November 13, 2011
Fuzzy Jurisprudence
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.
Posted by Patent Hawk at 9:36 PM | § 101
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.
Posted by Patent Hawk at 10:33 PM | Patents In Business
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.
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