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November 29, 2012


Revision Military sued Balboa for infringing its protective eyewear design patents. The district court wrongly applied its own circuit law, rather than Federal circuit law, in denying a preliminary injunction, as well as applying an out-of-date criteria for determining whether an injunction should be granted. On appeal, that decision was reversed. The CAFC panel (2011-1628) also reminded that it has discarded its own earlier law with regard to figuring out whether to grant an injunction; instead reverting back to case law of 1871. That the courts make laws willy-nilly highlights that Congress is ever-negligent in writing statute, as well as the fact that court-fabricated law, particularly with regard to patents, is capricious.

Posted by Patent Hawk at 1:23 PM | Design Patents

November 22, 2012

Sourcing Injustice

The caprice of the courts is one of two main reasons that the U.S. patent system is terminally broken. The other cause is of course the USPTO: a cesspool of incompetence, as evidenced by how few granted patents legally claim actual invention, and the multitude of applications that linger in examination for up to a decade or more. ePlus v. Lawson illustrates how unpredictable the courts are, as well as how unjust the CAFC is.

Continue reading "Sourcing Injustice"

Posted by Patent Hawk at 2:11 PM | § 112

November 18, 2012

Drill Bit

Transocean got patents on an oil drilling rig, particularly the drill bit. In the first appeal of its assertion against Maersk, the CAFC found that the patents were obvious in light of two references: "Horn and Lund teach every limitation of the asserted claims and provide a motivation to combine their respective teachings." But on the second appeal, the CAFC reversed itself, that the patents weren't obvious, because Transocean had commercial success.

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Posted by Patent Hawk at 10:06 PM | Prior Art

November 14, 2012

Clamp Cramped

The core concept behind rule of law is that evidence is required to make a determination. Rule of law is turned into a sham when courts have the power to arbitrarily decide matters based upon their own bias. That sham is exactly what patent law (using the term "law" loosely) became with the 2007 Obzilla ruling by the Supreme Court (KSR; Obzilla a portmanteau for the Godzilla of obviousness). This week's episode involves a hand-waving incantation of obviousness by the ITC, affirmed by the CAFC...

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Posted by Patent Hawk at 1:51 PM | Prior Art

November 13, 2012

Pig Heart

35 U.S.C §112 1 requires that claimed invention be reduced to practice; that is, described in the patent specification such that one of skill in the relevant art area would be able to read the patent and implement the invention. Without this requirement, shambolic specifications would confer patents on rough ideas rather than practical inventions. Hence, evisceration of the written description requirement would make a mockery of the law, and the very purpose of the patent sanction. The courts don't see it that way.

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Posted by Patent Hawk at 3:41 PM | § 112

November 6, 2012


RE40,449 claims an unimaginative voting system. Voter Verified unsuccessfully asserted it against Premier Election Solutions and Diebold. The district court held claims 1-93 not infringed, and 94 invalidated. The CAFC affirmed (CAFC 2011-1553). Most notable was how crookedly the deal went down. Voter Verified cited 17 instances of district court abuse of discretion. These included letting the other side introduce disputed expert declarations, refusing to allow discovery, and disregarding the court's own case management procedures to issue summary judgment against Voter Verified. The CAFC would have none of it. "Voter Verified's contentions are wholly without merit." Code words for "we don't care." District court judges, with "considerable discretion," can do as they please.

Posted by Patent Hawk at 10:13 PM | Case Law