October 22, 2014
Obvious After the Fact
A petition for rehearing en banc at the CAFC for a drug obviousness case (Bristol-Myers Squibb v. Teva - CAFC 2013-1306) was denied. What was remarkable was the inane confusion at the court. Judges Dyk and Wallach stated that "post-invention evidence" is rightly not allowed in considering obviousness. As Judge Newman observed: "Precedent is clear that the information and comparative data presented as evidence of nonobviousness need not have existed before the patent application was filed," noting the secondary consideration of commercial success, and citing several instances where evidence of unexpected results found later were considered relevant to obviousness. The CAFC continues to be an inexcusably pathetic excuse for a patent court: creating self-contradictory precedent and thereby failing to provide guidelines that the patent office and patent community may reasonably rely upon.
October 17, 2014
Robert Bosch sued Snap-On for infringing 6,782,313, which claims a motor vehicle diagnostic tester. Alas, the tester had no specification support for a testing device. The courts found insufficiency under 35 U.S.C. § 112, ¶ 6, even though there was no explicit "means for" element. Another stupid patent assertion with another stupid patent bites dust. (CAFC 2014-1040). But then, Robert Bosch is a German company, and their nickel-slick lawyers got paid regardless.
October 12, 2014
EMD Millipore sued Allpure over its device to put "a medium" into and get out of a jar (6,032,543). It lost in summary judgment, for noninfringement, owing to prosecution estoppel. It's easy to tell how lame the assertion was when the claim construction argument went to the meaning of the term "removed." Hamilton, Brook, Smith & Reynolds represented the plaintiff. One can only wonder whether they saw it coming, as they should have. (CAFC 2014-1140)