May 28, 2012
The theft of intellectual property by the USPTO and CAFC continues unabated. This episode concerns 6,168,626, found obvious in reexam and by a CAFC panel majority (CAFC 2011-1239). Sadly for the co-conspirators, a few on the court inclined to rule of law continue to speak out. Judge Newman, in dissent, is one: "The Hyon procedure and its effects are not shown or suggested in any reference, despite the long history and extensive scientific studies of all forms of polyethylene... The prior art contains no 'apparent reason to combine the known elements in the fashion claimed by the patent at issue.' KSR Int'l Co. v. Teleflex Inc. , 550 U.S. 398, 418 (2007). The Board reasoned backward from the Hyon method."
May 22, 2012
Hong-Jiun Gu and Jar Chen Wang got 6,722,674, claiming a scooter with safety wheels. On inter partes reexam, the examiner rejected claims as obvious, which the Board overturned. The aggrieved party appealed to the CAFC (2011-1570), which found, with blithe subjectivity, that the patent was obvious. "When there exists a finite number of identified, predictable solutions to a known problem, a combination that results in 'anticipated success' is likely the product not of innovation, but of ordinary skill and common sense. That is the case here."
May 18, 2012
In re Baxter (CAFC 2011-1073), a majority allow the USPTO to overturn in reexamination a decision of law made by the court. Only Judge Newman is perturbed. "The Patent and Trademark Office's Board of Patent Appeals and Interferences, on reexamination of a patent that had previously been litigated to final judgment in the district court and on appeal to the Federal Circuit, states that "the agency is not bound by the court's determination." My colleagues appear unperturbed by the agency's nullification of this court's final decision. Instead, the court itself ignores our own prior final decision, although it is the law of this case. Thus the court violates not only the constitutional plan, but also violates the rules of litigation repose as well as the rules of estoppel and preclusion - for the issue of validity, the evidence, and the parties in interest are the same in this agency reexamination as in the finally resolved litigation." Rule of law in the U.S. is nothing more than a random act.
May 14, 2012
Apple tried to get a preliminary injunction against Samsung over design and utility patents, accusing Samsung of infringing its "distinctive design." The district court was unpersuaded, finding, among other faults, that "Apple had failed to show a likelihood of success on the merits." The legal team at Quinn Emmanual, representing Samsung, outmaneuvered MoFo. With the exception of a quibble over legal error for one patent, remanding back for reevaluation, a CAFC panel affirmed, even as it did not often agree with the district court. (CAFC 2012-1105)
May 12, 2012
Sheldon Breiner tried to get a patent on networked data collation from far-flung places. With Obzilla riding shotgun, the examiner combined three far-flung references, supplying motivation to combine as "obvious to one of ordinary skill in the art." Rejection affirmed at the BPAI. Breiner took it to the CAFC, which reminded of the now high bar to overturning the PTO: "this court will not overturn the Board's decision if a reasonable mind might accept the evidence as adequate to support a conclusion." (CAFC 2011-1387).
May 7, 2012
In a close-call case, Otsuka v. Sandoz et al (CAFC 2011-1126, 1127, precedential), generic drug makers couldn't invalidate 5,006,528, for lack of identifying a prior art lead compound to derive the patented drug, even under the highly subjective standard of Obzilla. "In keeping with the flexible nature of the obviousness inquiry, the reason or motivation for modifying a lead compound may come from any number of sources and need not necessarily be explicit in the prior art." The ruling also gives a nuanced reading of nonstatutory double patenting. Here too, the subjectivity of "unpredictability" plays a lead role. The contours of obviousness continue to be a case-by-case guessing game.
May 4, 2012
It should come as no surprise, for those who are worldly wise, that most patent prosecutors are not adept. Take it as gospel from Patent Hawk, who reads dozens of patents a day. But that doesn't mean you can successfully sue prospecutors for malpractice. Bad for business. Case in point: Minkin v. Gibbons (CAFC 2011-1178), a state patent prosecution malpractice matter that ended up at the CAFC, because the federal courts now take any case concerning patents. Judge O'Malley objects, but she appears in a vast minority.