July 25, 2013
In assertion, patent holders sling whatever they can at whoever they can. Par for the course of exploitative capitalism. But, as part of their war on patents (excepting those owned by large corporations), the CAFC issued a "model order" instructing trial courts to summarily dismiss seemingly redundant claims. Beside the sheer denial of legal right, this order contradicted Tafas v. Doll (CAFC 2009), which explicitly set no limit on claim assertion.
July 12, 2013
Limelight Networks v. Akamai sits before the Supreme Court, awaiting a decision as to certiorari. At issue is whether an accused infringer "may be held liable for inducing patent infringement under 35 U.S.C. § 271(b) even though no one has committed direct infringement under §271(a)." The root problem was incompetent prosecution, in drafting claims that neglected to render a single party culpable.
July 10, 2013
Blind Pig & The Acorn
The CAFC concocted the "substantial evidence" standard so as to ignore appeals from PTO Board rejections. Rare is the instance when the appeals court will exercise otherwise. But in Smith & Nephew v. Synthes (CAFC 2012-1343), as part of the CAFC's proclaimed war on patents, a panel took the opportunity to invalid a patent, via excruciatingly detailed analysis, that the Board had wondrously found non-obvious. The claimed invention was clearly an incremental improvement at best. And it looks like the PTO Board was simply asleep at the switch on this one.
July 8, 2013
Separation of Powers
Fresenius sought a DJ against Baxter that backfired, at least at first. The district court found the patent (5,247,434) valid and infringed. The CAFC affirmed. Meanwhile, in reexamination, the PTO found '434 invalid. The CAFC affirmed the PTO, even as the district court entered an infringement finding against Fresenius. To resolve the conundrum, the CAFC 2-1 sided with the PTO over its own court system. The dissent finds this a breach in the constitutional separation of powers.
July 4, 2013
Many patents largely invalidate themselves. That comes in vice created between the prior art statutes (§102 and §103) and the written description requirement(§112 (a)). Patent backgrounds typically confess their technological pedigree. This is explicit admission of prior art. But by not bothering with enabling disclosure of claimed features, a specification makes an tacit admission that it is merely claiming the prior art.