September 22, 2013
Design patents, the product equivalent of trademarks, are intended to ward off copycats. In High Point Design v. Buyers Direct (BDI), over the look of fuzzy slippers, the CAFC lays out the latest over design patent novelty. BDI's Snoozies® takes it on the chin from High Point's Fuzzy Babba®.
September 11, 2013
Rule 11 Steamrolled
Republican plutocratic toads in the House Judiciary Committee are once again hopping to deny justice. As Public Citizen explains: "The deceptively named 'Lawsuit Abuse Reduction Act; (H.R. 2655) would slow litigation and increase its costs by encouraging additional legal maneuvers and requiring unnecessary court orders."
September 7, 2013
The Greed Gene
Bayer CropScience sued Dow Agrosciences over a claim to bogus genetics. Its assertion was found not infringed; affirmed on appeal. (CAFC 2103-1002)
When the inventors applied for the patent at issue, they had sequenced one gene coding for one enzyme, using a test purportedly capable of finding other, similar genes. In writing its claims, the owner - now Bayer CropScience AG - decided to claim a broad category based on the function of the particular enzyme, defining the category by using a term with an established scientific meaning. In doing so, Bayer got ahead of the science: experiments had not confirmed that the term even applied to the particular enzyme whose gene Bayer's inventors had sequenced. Soon science showed that it did not, and Bayer knew as much years before its patent issued - but did not change its claim language. When it ultimately sued Dow AgroSciences for infringement, Bayer recognized that the term used, in its established scientific meaning, did not cover the accused product (itself different from the particular enzyme whose gene Bayer's inventors had sequenced), so it argued for a broad functional claim construction.
The nature of automation is labor saving: replacing labor by a machine performing a task. But in Accenture v. Guideware (CAFC 2011-1486), the CAFC decided that automation is unpatentable under § 101 if done using computer software. The war against software patents gains ground. A claim that poses "any risk of preempting an abstract idea," is unpatentable. Which means that any task requiring cognition is unpatentable. Which, because no task is mindless, means every task. Legislation from the bench continues unabated.