August 26, 2012
The U.S. courts find favor with an American company over a foreign one again; the CAFC concocting corrupt case law to offend common sense. Teva (Israeli) asserted that Eli Lilly (American) got an extension for its chemotherapy patents by double patenting. The difference between the original patent and its extension would have been obvious. Ignoring the spirit and letter of patent law, expressly forbidding patent extensions, the CAFC declares: "The focus of the obviousness-type double patenting doctrine thus rests on preventing a patentee from claiming an obvious variant of what it has previously claimed, not what it has previously disclosed." (CAFC 2011-1561).
August 23, 2012
Xicor got a patent (5,977,585) for an incremental improvement relating to EEPROMs (static computer memory chips). Xicor sought a reissue, to recapture subject matter previously surrendered during prosecution, because the original claims were too broad. The USPTO, with negligent incompetence, allowed the recapture (RE38,370). Greenliant Systems and Silicon Storage Technology had to pursue a DJ to get rid of the patent. The CAFC, always happy to put a patent in the public domain, affirmed (CAFC 2011-1514).
August 16, 2012
In the long-running Myriad case, a split (2-1) CAFC panel (2010-1406) opined that a method for isolating a DNA sequence was not patentable, but that isolated DNA was. A confused Judge Bryson dissented with the observation that "a human gene is not an invention." DNA sequences are not genes. Genes are a conceptual mapping of various DNA strands to a presumed trait; something approaching mental fiction, considering how genetics actually works. So, while confused on the details, Bryson was right in the gist that isolated DNA is not an invention. The majority was positively bonkers that "the claimed molecules represents a nonnaturally occurring composition of matter" that deserved patent protection. Isolated DNA is an organic derivative, unchanged from its original form in chemical sequence (otherwise, the isolation would entirely miss the point), not a concocted chemical composition that even remotely represents invention, especially considering any and every method to obtain the compound is not novel. That withstanding, wherever one may want to draw the line on the originality of chemical extraction and isolation as a patentable chemical composition, the large point is that bits of the human genome are, for the moment, patentable subject matter. The public policy implications with regard to affordable advances in health research could not be more profound. The public discourse of this issue through the courts is still just getting started.
August 15, 2012
The waste that typifies the U.S. patent system continues unabated. As this blog regularly documents, observations by parties entrenched in the processes reveal a badly broken system, chockablock with incompetence at the USPTO and corruption in the courts. Today's insight comes courtesy of CAFC Judge Dyk. In Meyer v. Bodum, over milk frothing patents, Meyer managed to obtain the favoritism of the district court judge (a common occurrence, as many Federal district court judges are logically challenged, to put it mildly, and rule by bias, as emotions readily sway the weak-minded), thus prohibiting Bodum from espousing its invalidity defense. A $50,000 infringement payout was capriciously topped off by the judge with enhanced damages and attorneys fees. On to appeal, where a very different froth was featured.
August 14, 2012
The CAFC again limits patent protection without basis in statute. Under government grant, MIT developed a device, usable as a sensor or computer memory, employing quantum mechanical effects; patented as 5,629,922. Exclusive licensee Masgil and MIT launched an enforcement campaign against 20+ disk drive makers. In summary judgment, the district court found '922 not enabled, for the sin of being too valuable a patent. A CAFC panel affirmed.
August 7, 2012
Highmark popped a declaratory judgment (DJ) action against Allcare's managed health care patent 5,301,105. Allcare's lawyers ran afoul of the district court judge, who "found that Allcare engaged in litigation misconduct by asserting a frivolous position based on res judicata and collateral estoppel, shifting its claim construction position throughout the course of the proceedings before the district court, and making misrepresentations... in connection with a motion to transfer venue." The case was ruled exceptional. Allcare's attorneys were slapped with Rule 11 sanctions. On appeal, the case became more exceptional.