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March 27, 2012
Not Infused
5,507,412
claims a system to deliver fluids from multiple sources into a
patient's body. An adjusting means is claimed to influence the fluid
flow from each source. There is a claimed programmable control means
coupled with the adjusting means. In the disclosure, the functions of
what the control device does are variously mentioned, but how the
control device functions is never described. '412 owner Ergo sued
CareFusion for infringement. Under the influence of 112 ¶ 2 by way of §
112 ¶ 6, the "district court held that the 'control means' terms are
indefinite for failure to disclose corresponding structure." The CAFC
affirmed. (CAFC 2011-1229).
Should have been euthanized by 112 ¶ 1. The claim was definite enough,
but lacked written description.
Posted by Patent Hawk at 10:28 AM | § 112
March 20, 2012
Treatment
Prometheus Labs sued Mayo for
infringing drug treatment patents - which
simply claim monitoring treatment and adjusting dosage. The district
court ruled the patents not eligible subject matter (§101). The
CAFC reversed. Now the Supreme Court has once again reversed the
CAFC.
"The steps in the claimed processes (apart from the natural laws
themselves) involve well-understood, routine, conventional activity
previously engaged in by researchers in the field."
Posted by Patent Hawk at 10:15 AM | § 101
March 18, 2012
No Reexam Revival
Competitors Aspex Eyewear and
Marchon Eyewear myopically pummeled each other with patent suits for
over a decade. They eventually
settled. Aspex navigated a reexam with new and amended claims of a
patent subject to the settlement. Aspex nonetheless started a new spat,
claiming it had newly loaded dice. Citing res judicata, the courts
would have none of it. "Claims that emerge from reexamination do
not create a new cause of action that did not exist before." (CAFC 2011-1147)
Posted by Patent Hawk at 6:08 PM | Case Law
March 14, 2012
Condomization
The courts have the trickiest
part of protecting the interests of
the State. Laws are designed to protect the government and its minions
from liability, while maitaining a facile appearance of equity. Cracks
in the pavement of protection that inevitably appear by sloppy
legislation need patching by the courts. In Zoltek v. United States,
16 years down a road of judicial hand-wringing confusion, an en banc
CAFC sua sponte reverses itself, deciding another decade or so
needs to go by to settle the matter. Justice is swift and sure.
Continue reading "Condomization"
Posted by Patent Hawk at 1:16 PM | Case Law
March 10, 2012
Substantial Evidence
In re PepperBall Technologies,
where patents were found
obvious during reexam, the CAFC affirmed, as it "upholds the Board's
fact findings supported by substantial evidence, 5 U.S.C. § 706."
"Whether an invention would have been obvious is a legal question. What a reference teaches and whether a person with ordinary skill in
the art would have been motivated to combine the teachings of separate
references are questions of fact." (CAFC 2011-1137).
Under the substantial evidence standard of review, the CAFC must affirm
the PTO if there is substantial evidence to support the agency, even if
the CAFC would otherwise disagree.
Continue reading "Substantial Evidence"
Posted by Patent Hawk at 10:28 PM | Prior Art
March 8, 2012
Overstated
35
U.S.C. §251 affords "reissue of defective patents," with a caveat
as to claim scope. "No reissued patent shall be granted enlarging the
scope of the claims of the original patent unless applied for within
two years from the grant of the original patent." 5,940,600
claims managing computer data channels. Within 2 years of grant, '600
inventors filed a reissue application, seeking to broaden claim
scope. Granted. Outside the 2-year window, two more broadening reissues
were sought. The third reissue attempt ran afoul of PTO tolerance, as
the broadened claims sought were unrelated to those filed for within
the 2-year window. The CAFC appeal was another
disgrace for the patent office for its ham-handedness.
Posted by Patent Hawk at 8:26 PM | The Patent Office
March 6, 2012
Graph Off
GraphOn had patents on network
database transactions valuable enough
for MySpace to get the jump with a DJ action. Craigslist and Fox
Network piled in. These upstanding companies had enough credibility
with the district court judge to invalidate the patents in summary
judgment without so much as a decent claim construction.
On appeal, a CAFC panel lamented the slack claim work, but affirmed
with nothing more than handwaving dismissal of
GraphOn's objections to being railroaded.
Posted by Patent Hawk at 10:18 PM | Prior Art
March 5, 2012
Mulligan Stew
USPTO honcho David Kappos is
showing his chops as a political hack.
In announcing 506,000 patent applications in FY 2011, Kappos crowed
before Congress: "These figures confirm that innovation is alive and
well and will help speed our nation's economic recovery." But only
270,000 new applications were filed. The rest were RCEs, the signature
of either bumbling or desperation.
prior art search + 
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