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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


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."

Continue reading "Treatment"

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


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


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.

Continue reading "Overstated"

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.

Continue reading "Graph Off"

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.

Continue reading "Mulligan Stew"

Posted by Patent Hawk at 12:08 PM | The Patent Office