February 27, 2012
Abstracting Real Property
In Fort Properties v. American Master Lease (CAFC 2009-1242; precedential), the CAFC affirmed a district court finding that 6,292,788 was invalid for violating §101. '788 claimed methods for real estate transactions without incurring tax liability. Ties to tangible "commodities and money" were "insufficient." "The physical activities involving the deeds, contracts, and real property are insufficient to render these claims patentable." The court generally declares "investment tools" "an abstract concept," and so unpatentable.
February 20, 2012
Foley & Lardner attorney Andrew S. Baluch has his knickers in a twist over a USPTO power grab to pummel inventors by denying them their legal rights. The new patent act explicitly allows a patent holder under inter partes reexam to amend claims however seen fit. But the PTO has "proposed regulations would deny the patent owner's right to amend - in a first or in any subsequent motion to amend - whenever the Board determines that the amendment 'seeks to enlarge the scope of the claims of the patent or introduce new subject matter.'" Read Mr. Baluch's paper.
February 19, 2012
Less Than Lesson
Clearvalue sued Pearl River Polymers for indirectly infringing 6,120,690, which claims a process for clarifying water. A jury found '690 valid and indirectly infringed. Post-trial JMOL motions were denied by EDT Judge Davis. On appeal, a CAFC panel points out a numerical obviousness that anchored anticipation.
February 16, 2012
The USPTO is horrifically incompetent, something which the CAFC recognizes, even as it is itself riven with malfeasance. In oral arguments In re Collins (CAFC 2011-1293), panel Judges Moore and Reyna savaged the PTO for its idiocy. Judge Moore to the PTO: "It makes no sense. I think this is a terrible rejection. I think you all have done a really sloppy job. I know you've got a big backlog. I know you're out a few judges. This is ridiculous. This is a bad rejection. There's a good rejection you could have made. This isn't it." Like craven lawyers everywhere, the PTO went on to defend the rationally indefensible. Despite the panel's professed outrage, in a show of solidarity, the panel went on to affirm the PTO.
February 12, 2012
The wonders of the Chinese nation are remarkable. Their respect for the environment is matched by their scrupulous business practices and freedom-loving governance. So it comes as a shock that Ninestar Technology, a Chinese company with American subsidiaries, had been found committing "unfair trade practices based on infringement of certain United States patents by the importation and sale of ink printer cartridges produced in China." There was something of a communication problem. Fairness does not translate well into Chinese. Upon being ordered to stop importation by the ITC, Ninestar "did not simply ignore or disregard the Commission's orders; they deliberately evaded the orders." Ninestar argued that the ITC "does not have jurisdiction over Ninestar China;" that "a non-judicial body cannot be assigned authority to issue a punitive penalty for violation of an administrative order. Ninestar argues that the statutory penalty is of such magnitude as to be criminal in nature and that a procedure whereby an administrative agency levies a criminal penalty is an unconstitutional violation of separation of powers"; that the ITC's "cease and desist order is 'unconstitutional on its face' because it is 'unclear' in that it does not identify the specific ink cartridges and model numbers that are affected." On appeal, the CAFC was unmoved the Ninestar's inky arguments. These U.S. government bureaucracies and courts are not so unbiased and free-thinking as the Chinese. (CAFC 2009-1549)
February 10, 2012
6,436,135 typifies the extremities of the broken and corrupt U.S. patent system. Filed in 1974, '135 took 28 years to be allowed (2002). Owing to byzantine U.S. law, it was subject to an interference over who first invented what it claimed. Litigation followed allowance within months. Four years later, a jury found '135 "valid and willfully infringed by Gore." Thus, in slow motion, the travesty began.
February 8, 2012
suffered an ex parte reexam. '983 claims a gas particle counter. The
claimed technology also applies to liquid contamination. Not
surprisingly, some claims were found obvious. But then there was this:
The Board also rejected claims 6-8 for lack of written description under 35 U.S.C. § 112 ¶1. The PTO concedes that these rejections are in error and "seeks remand to the Board for it to withdraw the written description rejection and take appropriate action." Appellee's Br. 26. The Appellant agrees. Reply Br. 37.
Such concession of incompetence is refreshingly rare. In Re
Yufa (CAFC 2011-1417).
February 5, 2012
Craig Thorner asserted his tactile feedback video game controller patent, 6,422,941, against Sony. New Jersey Chief Judge Garrett E. Brown, one of vast majority of corrupt judges on the Federal bench, wasn't about to let Sony get shaken down by some troll inventor. Mitt Romney, this country's next political CEO, reminds that corporations are people too, and they need the state's protection from the rabble that passes for inventive animal spirits. The plutocracy must be preserved, but the courts should not be so brazenly unjust that the wage slaves can smell it for the stink that it is. In claim construction, Judge Brown was too blatant, so the CAFC had to step in to correct the crunch of his judicial jackboot, though with a nod and wink, that the judge's goosestep was marching in the right direction.
February 1, 2012
6,879,830 goes to "a method for handing over a link between" base stations for a mobile phone. Actually, a mobile phone is claimed, an apparatus, but where a claimed networking method must be performed for the claimed handover to occur. Thus the meat of the claims are of a method, though the claim is of an apparatus, which is a transgression of §112 ¶2, indefiniteness, for mixed claim types, vis-à-vis IPXL v. Amazon. So this ruling is easy. But not so fast. Consistency is the hobgoblin of small minds. As there are no small minds on the CAFC, there is no need for consistency.