January 29, 2012
"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.
January 27, 2012
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.
January 24, 2012
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.
January 22, 2012
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.
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.
January 15, 2012
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.
January 11, 2012
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.
January 9, 2012
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.
January 4, 2012
Senselessy SassyMarcTec 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.
January 1, 2012
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.