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January 29, 2012
Mass Aggregators
"The patent world is quietly
undergoing a change of seismic
proportions. In a few short years, a handful of entities have amassed
vast treasuries of patents on an unprecedented scale... Mass
aggregators do not engage in the manufacturing of products, nor do they
conduct much research." As capitalism acts as a virluent weed of greed,
the patent world has become infested with investment in invention, with
the sole purpose of extortion. A new paper by Tom Ewing & Robin
Feldman: "The
Giants Among Us," details the shadowy domains of patent aggregators.
Continue reading "Mass Aggregators"
Posted by Patent Hawk at 11:57 PM | Patents In Business
January 27, 2012
Stop Inventing
Patent attorney Darin Gibby
has penned a perspective crucial to anyone concerned about patents in
this country: Why
Has America Stopped Inventing? As introduction, though
comprising the bulk of the book, Gibby covers some of the major patent
battles in the earlier part of U.S. history, developing the vector that
answers the
question posed by the title.
Continue reading "Stop Inventing"
Posted by Patent Hawk at 5:27 PM | The Patent System
January 24, 2012
No Credit
Dealertrack sued Huber and
Finance Express, along with other auto
dealers, for infringing its network-based credit application processing
patents: 6,587,841
& 7,181,427.
A biased Judge
Guilford in Central California inexcusably construed "network," which
had been broadly disclosed, as "not including the internet." Defendants
drove away with non-infringement. Other inanity ensued, only some of
which was corrected by the CAFC on appeal.
Posted by Patent Hawk at 7:43 PM | Claim Construction
January 22, 2012
Power Balance
The tripartite balance of power
between the President, Congress, and Supreme Court is only partly
constitutionally enshrined. The courts were cut out of a clear share.
The Supreme Court stole its power base fair and square in Marbury
v. Madison (1803), when it
unilaterally declared to have the authority to review acts of Congress
and determine whether they are unconstitutional and therefore void. The
bluff never got called. But that owes to the Supreme Court being very
selective in punching its weight against the other branches. In Golan v.
Holder (2012), SCOTUS 6-2 refused to call Congress on enacting
copyright provisions retroactively. The new patent act has a slice of
that same cheese, but any challenge is likely only to add to its
ripening. The U.S. police state does as it pleases, the branches of
government holding hands, velvet gloves over mailed fists.
Posted by Patent Hawk at 7:13 PM | Case Law
January 19, 2012
A Kodak Moment
By failing to keep up with the
times, Eastman Kodak drove itself into the ground, declaring
bankruptcy. By stark contrast, competitor FujiFilm has done quite
well for itself, including making wonderful digital cameras. Kodak's
death rattle turned into a whine: "Kodak Chief Financial Officer
Antoinette McCorvey said Apple, RIM and HTC Corp. took advantage of
Kodak's weakened financial condition to drag out litigation over
alleged violations of the company's intellectual property." Take a
picture of this - a decent patent portfolio is no salvation from
clueless management, with which the world is brimming, in every sector
of commerce and government. The exceptions prove the rule. Kodak was no
exception. Those same companies that held Kodak off patent licensing at
arm's length will be the ones ponying up to buy Kodak's patent
portfolio on the cheap in a bankruptcy auction, to use to bludgeon
competitors like a money pinata, just as Kodak tried to.
Posted by Patent Hawk at 1:16 PM | Patents In Business
January 15, 2012
Blood Sample
New Jersey based Abbot sued
competitor Epocal for infringing blood test patents 6,845,327
and
6,896,778,
which it scurrilously claimed to own, though Epocal is the assignee.
Epocal was founded by Dr. Imants Lauks. Lauks had done contractual work
for Abbott's predecessors. The district court rightly found the
contracts that might have given assignment to Abbott expired, as
did the majority of a CAFC panel (CAFC 2011-1024).
In dissent, Judge Bryson displayed his muddle-headed misunderstanding
of contract law, or
more simply his corrupt bias for Abbot, a U.S. corporation, up against
a Canadian
competitor, by arguing perpetual assignment.
Posted by Patent Hawk at 4:34 PM | Case Law
January 11, 2012
Bleeding
Streck sued Research &
Diagnostic Systems (R&D) for infringing hematology control patents 6,200,500
and 6,221,668.
R&D counterclaimed a declaratory judgment action of noninfringement
and invalidity. The two competitors were innovating in stride, but
Streck had the edge, at least with the favor of the courts, which is
really all that matters.
Posted by Patent Hawk at 2:02 PM | § 112
January 9, 2012
Frozen Out
Celsis In Vitro sued Life
Technologies Corp. (LTC) for infringing 7,604,929,
which claims methods for freezing hepatocytes, "an art well-known for
its unpredictability." LTC got a preliminary injunction, which was
appealed, arguing non-infringement and obviousness (CAFC 2010-1547).
The bias was strong against LTC. LTC's infringement expert "really
didn't offer anything in the way of opinions to address the proper
interpretation of the patent's claims." Its claim construction
arguments were "hokum." Its
cited prior art was entirely off point ("not a single one of the
astonishingly large body of literature was devoted to the [relevant]
subject [matter]"). LTC's obviousness expert, having been found making
much of "a wisp of a term that is buried in [an] article," was
"unpersuasive." LTC's obviousness arguments were "nothing more than
second guessing and hindsight." LTC is frozen out.
Posted by Patent Hawk at 8:42 PM | Injunction
January 4, 2012
Senselessy Sassy
MarcTec sued Johnson &
Johnson for infringing 7,128,753
& 7,217,290,
which claim surgical implants. MarcTec sought a claim construction of
"plain and ordinary meaning." That sassy remark cost $4.7 million. The
plain meaning blithely ignored the specification and prosecution
history of a narrowed lynchpin term ("bonded"). Plaintiff expert
witness testimony was declared "junk science." After claim construction
and a summary judgment finding of noninfringment, the judge found the
case exceptional under 35
U.S.C. § 285, finding the assertion
"baseless" and "frivolous," in "bad faith," and awarding J&J all
expenses and attorneys fees. The CAFC affirmed (10-1285).
The lawyers who devised and implemented the strategy went unmentioned.
Posted by Patent Hawk at 2:30 PM | Case Law
January 1, 2012
Hostage
The Wall
Street Journal reports that mobile phone patent cases before
the ITC "hold the economy hostage," because the ITC's sole power is "to
ban imports of foreign products that infringe on U.S. patents." The ITC
was granted this power in the notorious (for its economical
insensibility) 1930 Smoot-Hawley Tariff Act, the passage of which
rightly sent the stock market into a nose dive. More generally, in this
age of rapid technological advancement, patents, regardless of
technology, impose an unjustified tax on consumers and smaller
companies, demolishing competition and snuffing start-up prospects. The
ITC has a built-in bias against foreign-based corporations. The corrupt
courts, including (especially) the CAFC & Supreme Court, find
ways to let the largest corporations prevail (in all cases except where
the corruption would be most egregiously apparent, in which case the
toll to the infringing corporation is lowered). This costly crooked
game needs to be abolished.
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