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April 14, 2014

Incomplete Means

In Univ. of Pittsburgh v. Varian Medical (CAFC 2012-1575), CAFC Judge DYK caught cohorts Lourie and O'Malley (the majority) out for sloppy work product. A means-plus-function claim element was given cursory treatment by the majority, completely missing the meat of the claim element in construction, which Judge DYK pointed out. This is typical of the random competence by the CAFC, where the law is shambolic.

Posted by Patent Hawk at 12:40 AM | Claim Construction

Terminal Dose

Hoffmann-La Roche got 7,718,634 & 7,410,957, which claimed a dosing regime for treating osteoporosis. Against the law, the district court and a CAFC panel (2013-1128) found the patents obvious by now-routine hand-waving. Judge Newman dissented over "this court invoking judicial hindsight to reconstruct the patented subject matter." Outliers aside, the anti-patent regime continues apace.

Posted by Patent Hawk at 12:30 AM | Prior Art

April 9, 2014


United Video Properties, which owns TV Guide and Rovi, decided it wanted a prime cut of Amazon for infringing 6,769,128 & 7,603,690. Carefully biased claim construction insured noninfringement.  The lynchpin was prosecution estoppel. Ironically, a term was struck ("Internet delivered data") during prosecution that actually broadened claim scope. But of course, with Amazon being the target, the court skewed claim construction to get Amazon off the hook. (CAFC 2013-1396).

Posted by Patent Hawk at 1:27 AM | Infringement

Trolling Shot Down

To extort license revenue, DataTern sued only the customers of Microsoft and SAP database products for patent infringement (5,937,402 & 6,101,502). Microsoft and SAP and were let alone. But, in response to customer complaints about DataTern, those two software giants filed a DJ against DataTern's assertion. DataTern argued lack of subject matter jurisdiction, to no avail. The fix was in. Summary judgment of noninfringement for all claims of the patents, upheld on appeal. The district court had allowed that to apply to all SAP products, but the CAFC (2013-1184) pared that back to the single product in dispute.

Posted by Patent Hawk at 1:05 AM | Infringement

April 1, 2014


According to blackletter law, the U.S. patent office issues valid patents, enforceable in courts. For well over a decade, corporations have been crying that this is fouling their freedom to readily pilfer others' inventions. Paid-for politicians, like NY senator Charles Schumer, cry for the need to "pass strong, effective reforms that will eradicate the scourge of patent trolls plaguing startups and other US innovators." This does not connect the dots. According to the law, the people with patents are the innovators, which makes the startups well-heeled thieves paying for accomplices like Schumer. If the problem is anywhere as bad as they say, why is no one demanding that patent office issue a recall of their defective patents, just as car companies are eventually forced to issue recalls? After all, the problem is with the patent agency, not those who reasonably thought they were granted an enforceable right.

Posted by Patent Hawk at 3:45 PM | The Patent System