September 30, 2012
Out of Whack
The USPTO's curmudgeonly incompetence was on display at the CAFC last week. Abbott Diabetes Care had its patents put under reexamination by a third party. The PTO denied the patent it had once granted; a failure of initial examination. In the reexam, the construction of "electrochemical sensor" was disputed. The CAFC found that "the Board's construction of 'electrochemical sensor' is unreasonable and inconsistent with the language of the claims and the specification." The patent appeals board also reversed itself before the CAFC on having agreed with the examiner on rejecting new claims based upon "official notice," which is shorthand for "no evidence." (CAFC 2011-1516).
September 23, 2012
Outside The Box Innovations launched a DJ in North Georgia. A biased judge gave them much of what they asked for: invalidity, non-infringement, even inequitable conduct. A confused CAFC panel (CAFC 09-1171) muddled through reversing much of what the district court had ruled. The queen of dissent, Judge Newman, once again adroitly pointed out how idiotically incompetent her colleagues were, in ignoring or mangling statute, case law, and not-so-common sense. One gem from Judge Newman to illustrate: "It is highly unusual to construe routine patent claims so as to exclude the embodiments in the drawings, when there is no prosecution disclaimer. The purpose of patent drawings is to focus the subject matter on which a patent is sought." The nonsense never ends with the largely insensible CAFC.
September 21, 2012
Obzilla reaps another victim. Peter Droge and his cohorts thought they invented a DNA recombination technique. But a combination of a prior art patent and an article by two of the three applicants made the technique obvious, the patent board ruled, to which a CAFC panel agreed (CAFC 2011-1600). There was no argument over the evidence prima facie, only about what was reasonable. The inventors argued that similar work in prokaryotic cells "would not lead a skilled artisan to expect" the same result in eukaryotic cells. This argument was solidly backed by the prior art prokaryote workers teaching away: the relevant protein co-factors are present in prokaryotic cells, but not eukaryotic cells. But the CAFC is beyond reason in applying hindsight, and in backing the PTO if "a reasonable mind might accept as adequate to support a conclusion." In other words, facts just don't matter that much. To the CAFC and the USPTO nowadays, science is merely a matter of opinion. "'Obviousness does not require absolute predictability of success... all that is required is a reasonable expectation of success. In re Kubin, 561 F.3d 1351, 1360 (Fed. Cir. 2009) (citing In re O'Farrell, 853 F.2d 894, 903-04 (Fed. Cir. 1988))." Case-by-case subjectivity is now called rule of law.
September 18, 2012
37 CFR 1.56 requires a "duty to disclose information material to patentability," but the CAFC won't uphold it. "[T]his court has now made clear that "[t]o prevail on a claim of inequitable conduct, the accused infringer must prove that the patentee acted with the specific intent to deceive the PTO." Therasense, 649 F.3d at 1290. Moreover, '[a] finding that the misrepresentation or omission amounts to gross negligence or negligence under a 'should have known' standard does not satisfy this intent requirement.'" 1st Media v. Electronic Arts (CAFC 2010-1435). Accountability is certainly not what the CAFC is about.
September 5, 2012
Last week, in Akamai Technologies v. Limelight Networks (CAFC 2009-1372), a CAFC en banc 6-5 divided court fabricated its own law of induced infringement; which got ignored a few days later, as the court again capriciously followed its bias of the moment.
September 2, 2012
"Patents have become another club to wield in court to pound your foes into submission," opines San Jose Mercury News columnist Chris O'Brien. It would have been an thoughtful statement in 1800, but it's a stale sentiment now. Yet O'Brien must pound the corporate tom-tom: that patents in the hands of inventors are "a drain" on the economy, "a tax." No such outcry met Apple's lopsided patent thrashing of Samsung, where a jury went tribal against a foreign conglomerate. "The Apple lawyers were better at presenting their case," said a juror in the Apple-Samsung matter. "I had an open mind but most of the time was on the Apple side." Denial of bias is exceedingly common, though a tad atypical in being so openly admitted in a single sentence.