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March 31, 2013

Patent Law By Design

Tim Owens added a internal (unclaimed) trapazoidal region to his bottle design application. The examiner considered it a substantial change (new subject matter), as did the PTO appeal Board and CAFC. That may seem unremarkable, except it represents a substantial change in the law by PTO fiat, backed by the appeals court.

Continue reading "Patent Law By Design"

Posted by Patent Hawk at 2:32 PM | Design Patents

March 18, 2013


In Aristocrat v. International Game (CAFC 2010-1426), there was no direct infringement of gaming machine method claims because the accused infringer didn't control a player's actions. Bad claims drafting was the root problem here. Many prosecutors don't understand how claims are treated in litigation, as in this instance. On the finer point of indirect infringement, the CAFC noted inattention all around: "neither the parties, nor the district court in its summary judgment order, expend significant time on the question of indirect or induced infringement." The district court found non-infringement based upon outdated case law. (The CAFC and SCOTUS substantially change patent law willy-nilly on an irregular basis.) Current law of indirect infringement, under the Akamai precedent, is based upon the notion of a hypothetical "single party would be liable as a direct infringer." With all the facts and law before it, but too inattentive to do its job properly, the CAFC remanded for the district court to figure it out, while giving the law firms involved another welcome boost for more fees to their clients.

Posted by Patent Hawk at 2:13 PM | Infringement

March 6, 2013

Inequitable Estoppel

Bumper Boy asserted animal collar patents that the district court denied on non-infringement against Radio Shack via equitable estoppel, as Bumper Boy wrote a threatening letter, then did nothing for years. On appeal (CAFC 2012-1233), a 2-1 decision highlighted the often capricious court interpretation of the law in this country. A CAFC panel majority: 1) found that Bumper Boy mysteriously eluded equitable estoppel on a CIP even though "these claims do not draw on any new matter"; 2) completely ignored Radio Shack's invalidity arguments, contrary to law (ostensibly for not filing a cross-appeal, when it wasn't necessary. As the dissent pointed out: "the prevailing party need not file a cross-appeal in order to defend a judgment in its favor on any ground that is supported by the record.") Dissenting Judge Newman was rightly disgusted with colleagues Moore and Reyna.

Posted by Patent Hawk at 9:25 PM | Infringement

Inducing Move

In Move v. Real Estate Alliance (CAFC 2012-1342), Move duped the district court by having the judge whitewash non-infringement. On appeal, a CAFC panel found "the district court failed to conduct an indirect infringement analysis," as Move may have induced infringement: "knew of the asserted patent and performed or knowingly induced the performance of the steps of the claimed methods, and that all of those steps were in fact performed." Under the controversial Akamai precedent, "liability under § 271(b) may arise when the steps of a method claim are performed by more than one entity, provided that the other requirements for inducement are met."

Posted by Patent Hawk at 8:59 PM | Infringement