May 26, 2013
Snow Plowed
Few federal judges are more than randomly competent, particularly with patent cases. Judges, never the brightest legal minds, mostly rely upon their instincts, trusting emotional bias, and in the finale wrapping legal window-dressing around their prejudicial rulings. Judge William M. Conley in the Western District of Wisconsin seems to fit the bill of the judicial collective. In Douglas Dynamics v. Buyers Products, he blew the claim construction, wrongly granted summary judgment of non-infringement on a claim, and denied a permanent injunction against a direct competitor (snow plow makers). The CAFC reversed (CAFC 2011-1291).
Posted by Patent Hawk at 9:30 PM | Case Law
February 11, 2013
Assignment
Semiconductor Energy Laboratory (SEL) owns 6,900,463, which claims a certain semiconductor. Yujiro Nagata is the second-named of two inventors. "During prosecution in 1991, Nagata assigned his rights to applications and patents related to the '463 patent to SEL's founder Dr. Shunpei Yamazaki, and subsequently signed a substitute Declaration and Assignment of those applications and patents. From 2002 to 2003, Nagata assisted SEL in a patent infringement suit against another party and was paid for his cooperation and services relating to that litigation."
Posted by Patent Hawk at 1:32 PM | Case Law
December 17, 2012
Dumping
Dumb judges have been dumped on the CAFC for decades. The few decent ones are fed up. Old saws Dyk and Clevenger are called out by a dissent from Judge Reyna, the penultimate member, over an anti-dumping appeal from a Chinese company.
Posted by Patent Hawk at 11:27 AM | Case Law
December 8, 2012
Low Mark
Highmark v Allcare (CAFC 2011-1219) hit a low mark for CAFC squabbling. There was an en banc ruckus over rehearing an exceptional case; specifically, to what degree deference is given to district court discretion on questions of law. The majority denied rehearing, while CAFC power mongers, including Chief Judge Rader, would give a district court "no deference." Such is the fractious fiction called "rule of law." Such petty disputes like this simmer for decades. This is a simple issue that should have been settled long ago.
Posted by Patent Hawk at 1:26 PM | Case Law
November 6, 2012
Discretion
RE40,449 claims an unimaginative voting system. Voter Verified unsuccessfully asserted it against Premier Election Solutions and Diebold. The district court held claims 1-93 not infringed, and 94 invalidated. The CAFC affirmed (CAFC 2011-1553). Most notable was how crookedly the deal went down. Voter Verified cited 17 instances of district court abuse of discretion. These included letting the other side introduce disputed expert declarations, refusing to allow discovery, and disregarding the court's own case management procedures to issue summary judgment against Voter Verified. The CAFC would have none of it. "Voter Verified's contentions are wholly without merit." Code words for "we don't care." District court judges, with "considerable discretion," can do as they please.
Posted by Patent Hawk at 10:13 PM | Case Law
October 26, 2012
Cruel Hoax Reexamined
Under the current regime, a patent grant is always provisional. Most any patent can be invalidated by a competent party with deep pockets - deep enough to tear apart the slight edge of innovation that a patent claims; if not by fact, by confusion. With an erstwhile IBMer at its helm, the USPTO is open for business to help large corporations kill small-fry patents. Even if a patent determined valid by a court ruling can still be invalidated through reexamination at the PTO. Res judicata has a hollow ring.
Continue reading "Cruel Hoax Reexamined"
Posted by Patent Hawk at 4:59 PM | Case Law
October 23, 2012
Cruel Hoax
The concept behind rule of law
is that the outcome of disputes may
reasonably be expected to go a certain way. The upshot of such
consistency is to limit legal action between parties, as the outcome,
according to the law, is fairly clear. Conversely, patent law under the
current court regime bears no resemblance to rule of law. Instead,
conflicting precedents allow case-by-case bias to be exercised. A
corrupt incompetence is pervasive. The failure of the CAFC to perform
its basic function is highlighted in Flo Healthcare Solutions v.
USPTO (CAFC 2011-1476).
In sum, as a former USPTO commissioner put it, the patent system has
become "a cruel hoax."
Posted by Patent Hawk at 9:23 PM | Case Law
October 9, 2012
Small Beer
The CAFC went tribal in Beer
v. United States (2010-5012).
The CAFC convened en banc to give judges within its purview
cost-of-living pay increases, capped by long-winded rationalization.
The gall was too much for Judges Dyk and Bryson, who dissented,
observing that the ruling runs against both statute and Supreme Court
precedence. "Under the Will's bright-line vesting rule [by SCOTUS],
Congress was free to "abandon" a statutory formula and revoke a planned
cost-of-living adjustment ("COLA"), as long as the revoking legislation
was enacted into law before the COLA 'took effect.'" This same
disregard for rule of law is regularly visited upon patent cases, which
are routinely decided by bias.
Posted by Patent Hawk at 10:02 PM | Case Law
September 23, 2012
Litter Box
Outside The Box Innovations launched a DJ in North Georgia. A biased judge gave them much of what they asked for: invalidity, non-infringement, even inequitable conduct. A confused CAFC panel (CAFC 09-1171) muddled through reversing much of what the district court had ruled. The queen of dissent, Judge Newman, once again adroitly pointed out how idiotically incompetent her colleagues were, in ignoring or mangling statute, case law, and not-so-common sense. One gem from Judge Newman to illustrate: "It is highly unusual to construe routine patent claims so as to exclude the embodiments in the drawings, when there is no prosecution disclaimer. The purpose of patent drawings is to focus the subject matter on which a patent is sought." The nonsense never ends with the largely insensible CAFC.
Posted by Patent Hawk at 9:59 PM | Case Law
August 26, 2012
Double Patenting
The U.S. courts find favor with an American company over a foreign one again; the CAFC concocting corrupt case law to offend common sense. Teva (Israeli) asserted that Eli Lilly (American) got an extension for its chemotherapy patents by double patenting. The difference between the original patent and its extension would have been obvious. Ignoring the spirit and letter of patent law, expressly forbidding patent extensions, the CAFC declares: "The focus of the obviousness-type double patenting doctrine thus rests on preventing a patentee from claiming an obvious variant of what it has previously claimed, not what it has previously disclosed." (CAFC 2011-1561).
Posted by Patent Hawk at 9:05 PM | Case Law
August 15, 2012
Froth
The waste that typifies the
U.S. patent system continues unabated. As this blog regularly
documents, observations by
parties entrenched in the processes reveal a badly broken system,
chockablock
with incompetence at the USPTO and corruption in the courts. Today's
insight comes courtesy of CAFC Judge
Dyk. In Meyer v. Bodum, over milk frothing patents, Meyer
managed to obtain the favoritism of the district court judge (a common occurrence, as many Federal district court judges are logically
challenged, to put it mildly, and rule by bias, as emotions readily sway the weak-minded), thus prohibiting Bodum
from espousing its invalidity defense. A
$50,000 infringement payout was capriciously topped off by the judge
with enhanced damages and attorneys fees. On to appeal, where a very
different froth was featured.
Posted by Patent Hawk at 2:27 PM | Case Law
August 7, 2012
Exceptional
Highmark popped a declaratory judgment (DJ) action against Allcare's managed health care patent 5,301,105. Allcare's lawyers ran afoul of the district court judge, who "found that Allcare engaged in litigation misconduct by asserting a frivolous position based on res judicata and collateral estoppel, shifting its claim construction position throughout the course of the proceedings before the district court, and making misrepresentations... in connection with a motion to transfer venue." The case was ruled exceptional. Allcare's attorneys were slapped with Rule 11 sanctions. On appeal, the case became more exceptional.
Continue reading "Exceptional"
Posted by Patent Hawk at 8:31 PM | Case Law
May 18, 2012
Overturned
In re Baxter (CAFC 2011-1073), a majority allow the USPTO to overturn in reexamination a decision of law made by the court. Only Judge Newman is perturbed. "The Patent and Trademark Office's Board of Patent Appeals and Interferences, on reexamination of a patent that had previously been litigated to final judgment in the district court and on appeal to the Federal Circuit, states that "the agency is not bound by the court's determination." My colleagues appear unperturbed by the agency's nullification of this court's final decision. Instead, the court itself ignores our own prior final decision, although it is the law of this case. Thus the court violates not only the constitutional plan, but also violates the rules of litigation repose as well as the rules of estoppel and preclusion - for the issue of validity, the evidence, and the parties in interest are the same in this agency reexamination as in the finally resolved litigation." Rule of law in the U.S. is nothing more than a random act.
Posted by Patent Hawk at 10:37 AM | Prosecution
May 4, 2012
Misplaced
It should come as no surprise, for those who are worldly wise, that most patent prosecutors are not adept. Take it as gospel from Patent Hawk, who reads dozens of patents a day. But that doesn't mean you can successfully sue prospecutors for malpractice. Bad for business. Case in point: Minkin v. Gibbons (CAFC 2011-1178), a state patent prosecution malpractice matter that ended up at the CAFC, because the federal courts now take any case concerning patents. Judge O'Malley objects, but she appears in a vast minority.
Posted by Patent Hawk at 6:11 PM | Case Law
April 23, 2012
Aggrandizement
Landmark Screens v. Morgan, Lewis & Bockius and Thomas D. Kohler tells of a sorry tale of alleged negligence, malpractice and fraud in a patent prosecution. The California state court was biased against Landmark, the company which had its patent filing ruined. Case dismissed. Landmark then sought recourse in federal district court, which tossed the case under pretext of statute of limitations. On appeal, the CAFC decided they had subject matter jurisdiction, even though admittedly "a fraud action, governed by state law, not patent law or patent practice."
Posted by Patent Hawk at 4:49 PM | Case Law
April 18, 2012
Drug Abuse
In Caraco v. Novo, a unanimous Supreme Court reversed the CAFC on abuse of patent: "A generic manufacturer may employ the counterclaim provision to force correction of a use code that inaccurately describes the brand's patent as covering a particular method of using a drug. The brand submits misleading patent information to the FDA, delaying or blocking approval of a generic drug that infringes no patent and thus, under the statute,should go to market." The CAFC had found "that Caraco lacked 'a statutory basis to assert a counterclaim.'"
Posted by Patent Hawk at 2:31 PM | Case Law
March 18, 2012
No Reexam Revival
Competitors Aspex Eyewear and
Marchon Eyewear myopically pummeled each other with patent suits for
over a decade. They eventually
settled. Aspex navigated a reexam with new and amended claims of a
patent subject to the settlement. Aspex nonetheless started a new spat,
claiming it had newly loaded dice. Citing res judicata, the courts
would have none of it. "Claims that emerge from reexamination do
not create a new cause of action that did not exist before." (CAFC 2011-1147)
Posted by Patent Hawk at 6:08 PM | Case Law
March 14, 2012
Condomization
The courts have the trickiest
part of protecting the interests of
the State. Laws are designed to protect the government and its minions
from liability, while maitaining a facile appearance of equity. Cracks
in the pavement of protection that inevitably appear by sloppy
legislation need patching by the courts. In Zoltek v. United States,
16 years down a road of judicial hand-wringing confusion, an en banc
CAFC sua sponte reverses itself, deciding another decade or so
needs to go by to settle the matter. Justice is swift and sure.
Continue reading "Condomization"
Posted by Patent Hawk at 1:16 PM | Case Law
February 10, 2012
Extreme
6,436,135
typifies the extremities of the broken and corrupt U.S. patent system.
Filed in 1974, '135 took 28 years to be allowed (2002). Owing to
byzantine U.S. law, it was subject to an interference over who
first invented what it claimed. Litigation followed allowance within
months. Four years later, a jury found '135 "valid and willfully
infringed by Gore." Thus, in slow motion, the travesty began.
Posted by Patent Hawk at 5:45 PM | Case Law
January 22, 2012
Power Balance
The tripartite balance of power
between the President, Congress, and Supreme Court is only partly
constitutionally enshrined. The courts were cut out of a clear share.
The Supreme Court stole its power base fair and square in Marbury
v. Madison (1803), when it
unilaterally declared to have the authority to review acts of Congress
and determine whether they are unconstitutional and therefore void. The
bluff never got called. But that owes to the Supreme Court being very
selective in punching its weight against the other branches. In Golan v.
Holder (2012), SCOTUS 6-2 refused to call Congress on enacting
copyright provisions retroactively. The new patent act has a slice of
that same cheese, but any challenge is likely only to add to its
ripening. The U.S. police state does as it pleases, the branches of
government holding hands, velvet gloves over mailed fists.
Posted by Patent Hawk at 7:13 PM | Case Law
January 15, 2012
Blood Sample
New Jersey based Abbot sued
competitor Epocal for infringing blood test patents 6,845,327
and
6,896,778,
which it scurrilously claimed to own, though Epocal is the assignee.
Epocal was founded by Dr. Imants Lauks. Lauks had done contractual work
for Abbott's predecessors. The district court rightly found the
contracts that might have given assignment to Abbott expired, as
did the majority of a CAFC panel (CAFC 2011-1024).
In dissent, Judge Bryson displayed his muddle-headed misunderstanding
of contract law, or
more simply his corrupt bias for Abbot, a U.S. corporation, up against
a Canadian
competitor, by arguing perpetual assignment.
Posted by Patent Hawk at 4:34 PM | Case Law
January 4, 2012
Senselessy Sassy
MarcTec sued Johnson &
Johnson for infringing 7,128,753
& 7,217,290,
which claim surgical implants. MarcTec sought a claim construction of
"plain and ordinary meaning." That sassy remark cost $4.7 million. The
plain meaning blithely ignored the specification and prosecution
history of a narrowed lynchpin term ("bonded"). Plaintiff expert
witness testimony was declared "junk science." After claim construction
and a summary judgment finding of noninfringment, the judge found the
case exceptional under 35
U.S.C. § 285, finding the assertion
"baseless" and "frivolous," in "bad faith," and awarding J&J all
expenses and attorneys fees. The CAFC affirmed (10-1285).
The lawyers who devised and implemented the strategy went unmentioned.
Posted by Patent Hawk at 2:30 PM | Case Law
December 12, 2011
Stabilising Coat
The
corrupt plutocratic governance in this country saves its
skin from mass revolt by long-con shading: maintaining the
appearance of playing it jake, while keeping the dice loaded for the
money players when it matters. The courts in patent cases
do this through nuanced rulings, with the assistance of double-speak
case law. When a dumb judge steps over the line of indiscretion, it is
checked by slicker fixers from above. Case in point: New
Jersey Judge William ("Little Willie") Martini, who likes his martini
dry, but made a ruling that was all wet.
Continue reading "Stabilising Coat"
Posted by Patent Hawk at 1:28 PM | Case Law
December 8, 2011
Patent Debris
Construction Equipment Company (CEC) sued Powerscreen for infringing 5,234,564,
which claims a construction site debris sifter. "The district court
ruled that the '564
patent was valid, enforceable, and willfully infringed by Powerscreen,
and entered final judgment... The Federal Circuit affirmed the district
court's judgment. Constr.
Equip. Co. v. Powerscreen Int'l Distrib. Ltd., 243 F.3d
559 (Fed. Cir. 2000), cert. denied, 531 U.S. 1148 (2001)." That should
have been the end of it, but it was only
the beginning. The USPTO and CAFC demonstrate an abject disregard for
the law and the constitution, as the anti-patent juggernaught rolls on,
leaving only debris from intellectual property.
Continue reading "Patent Debris"
Posted by Patent Hawk at 9:13 PM | Prior Art
November 23, 2011
Costs
Ricoh
sued Synopsys for infringing 4,922,432.
Synopsys got off the hook seven years later on a summary
judgment motion for noninfringement. The wheels of injustice in this
country turn slowly. Costs go to the prevailing party in civil
litigation. Synopsis filed a bill of costs for $1.375 million. Ricoh
objected, all the way to the CAFC, over document copying and
translation costs, along with transcription and video costs. The
appeals court precedentially ruled: pay up. (CAFC 2011-1199).
Posted by Patent Hawk at 11:20 AM | Case Law
October 14, 2011
Fair Game
Competitors Absolute Software and Stealth Signal couldn't come to a cross-licensing agreement over their patents, so they battled each other to summary judgment stalemate in court. At least the lawyers got a payday. A well-reasoned appeal tossed some bits back for factual determination. (CAFC 2010-1503, -1504). This precedential ruling, traipsing through claim construction and infringement analysis, has nothing new, but is a rarity for its adjudicative quality. If courts were consistently as even-handed as this, the illusion of justice in this country would be hard to dispel. Here's an exception that helps prove the rule of judicial corruption.
Posted by Patent Hawk at 10:54 PM | Case Law
October 5, 2011
Rife
That the USA is rife with corruption at every level is finally catching public attention. The so-called "Wall Street" protests are a widespread movement against the plutocracy. With an irony of namesake, the Wall Street Journal reports the realized knowledge of Emily Graham: "I'm basically sick of corporate greed. I'm frustrated that companies can pollute on a catastrophic level. They get all the tax breaks." They also get all the patent protection they need, at the expense of inventors. The Federal courts, from district court judges to the CAFC and Supreme Court, are thoroughly packed with incredibly corrupt judges who pervert the law, and decency, to serve corporate interests. The continuing conflicted contortions of CAFC case law bear stark witness to the depravity. New patent legislation just became law over the unanimous objections of universities, small businesses and individual inventors, at the behest of the largest corporations. As the rich get richer and the rest fall by the wayside, this country's prospects for the future also fall.
Posted by Patent Hawk at 8:35 PM | The Patent System
October 3, 2011
Sorry Slab
Bettcher
sued Bunzl for infringing its electric meat-cutting knife patent -
7,000,325. The patent was invalid by Bettcher's own products. The district
court judge was biased against Bunzl - inadequate claim construction and bum
jury instructions were the result. That bias carried over to the CAFC. The
result - more inconstancy in case law - another slab of double-talk that allows
let courts justify their whims. The joke of patent jurisprudence continues.
Posted by Patent Hawk at 7:37 PM | Prior Art
September 27, 2011
Improvising Intervening
Marine
Polymer sued HemCon for infringing
6,864,245, which claims a biocompatible polymer. HemCon successfully
requested reexam during district court proceedings. "The examiner initially
adopted a different claim construction than the district court." Marine Polymer
argued that the PTO ought to adopt the district court construction. Upon
dropping some dependent claims, the patent reissued, after the district court
had found the asserted claims infringed, granting Marine Polymer damages and an
injunction. On appeal, a CAFC panel majority legislates from the bench to
further damage patent protection.
Continue reading "Improvising Intervening"
Posted by Patent Hawk at 3:18 AM | Case Law
September 26, 2011
A Kodak Moment
Spread Spectrum Screening (S3) sued Eastman Kodak and a few of its customers for infringing 5,689,623. Judge Robert W. Gettleman of Northern Illinois severed the claims against Kodak from its customers, stayed the customer action, and transferred the Kodak case to the Western District of New York, Kodak's home turf. S3 appealed the stay. The CAFC wouldn't touch it - "because this appeal is not from a final judgment within the meaning of 28 U.S.C. § 1295(a)(1), and does not otherwise qualify as an appealable order." (CAFC 2011-1019; precedential) S3's arguments were waved off as misreading case law and otherwise meritless. Yet another case of blatant pro-corporate bias by all courts concerned.
Posted by Patent Hawk at 10:33 AM | Case Law
September 23, 2011
Meta Message
Cordance
sued Amazon for infringing three patents for online transactions that use
metadata:
5,862,325;
6,088,717; and
6,757,710. The jury found '710 infringed, but invalid; the others not
infringed. Following the law, the district court judge lifted the jury's '710
invalidity finding JMOL. That would leave Amazon on the hook - a situation that
the Corrupt Appeals for Corporations (CAFC) "corrected."
Continue reading "Meta Message"
Posted by Patent Hawk at 12:29 PM | Case Law
June 28, 2011
Dumbells
Serious
body builders take a variety of supplements, not because they are serious about
their health, but because they are serious about their ego. Brains and brawn
seldom mix. And so it seems with at least one bodybuilder supplement maker.
Creative Compounds filed a DJ against competitor Starmark Laboratories over
7,109,373. Starmark shot back, asserting infringement, and the comeuppance
of Creative's
7,129,273 as invalid. Starmark found favor at district court: "summary
judgment on all counts and denied Creative's motion to dismiss for lack of
jurisdiction." The appeals court backed the district court on everything but
subject matter jurisdiction. But the punch of that was moot, because Creative's
'273 was effectively invalidated, and so can never be successfully
asserted.
Posted by Patent Hawk at 4:03 PM | Prior Art
June 13, 2011
Commercial Success
Spectralytics
sued Cordis and Norman Noble for infringing
5,852,277, claiming a manufacturing technique for a coronary stent. A jury
found the patent valid and willfully infringed, to the tune of a 5% royalty.
Appeal covered judgment as a matter of law (JMOL), damages, obviousness,
willfulness, and award of attorneys fees.
Continue reading "Commercial Success"
Posted by Patent Hawk at 7:58 PM | Prior Art
June 7, 2011
Assignment
In
the least significant Supreme Court patent decision in years, the majority
ignores the cert issue posited to affirm the CAFC, while dissenters notice the
elephant in the room. The only surprise, and a small one at that, is that the
CAFC
is affirmed without getting whacked upside the head, as they normally do by the
bench above. The issues: inventorship assignment, and from that, standing.
Posted by Patent Hawk at 11:42 AM | Case Law
May 21, 2011
Spoliation
Rancid
Rambus set itself on a warpath footing, preparing for an enforcement campaign
against SDRAM makers for infringing its patent portfolio. Part of the
preparation was destroying tons of relevant documents in a series of
festive "shredding parties", the first in July 1998; only preserving potentially
helpful documents, such as those establishing priority date. The noise woke the
neighbors. In separate cases, Micron and Hynix beat Rambus to the courthouse,
filing declaratory judgment motions. What ensued over the spoliation issue came
to a head as a CAFC clusterus-coitus (a missing entry in Black's Law
Dictionary), with the will to justice displayed by a single CAFC judge, Gajarsa. To those in the know, no surprises here, only disappointment at
further disarray, at a CAFC that appears randomly dysfunctional in applying the
law.
Posted by Patent Hawk at 9:45 PM | Case Law
April 25, 2011
Jurisdiction Fiction
Personal
jurisdiction can be a tricky issue. Radio Systems manufactures pet products,
including a patented electronic pet door, the SmartDoor. Accession is a one-man
show, a Mr. Sullivan, holder of
7,207,141, claiming a "a portable pet access door (the "Wedgit") that can be
inserted into sliding glass doors." Mr. Sullivan unsuccessfully solicited Radio
Systems about the Wedgit. Then, in a mighty show of brass, Accession's lawyer
managed to talk an examiner into rescinding a notice of allowance for a patent
application to the Smartdoor. In retaliation, Radio Systems filed a DJ at '141
in East Tennessee, its home turf. Accession got it dismissed for lack of
personal jurisdiction, whereupon Accession filed an infringement action in New
Jersey, its home turf. That got stayed pending appeal of the DJ dismissal.
Continue reading "Jurisdiction Fiction"
Posted by Patent Hawk at 10:30 PM | Case Law
April 20, 2011
Busted
TiVo bludgeoned EchoStar with
6,233,389, winning at trial in 2006 and on appeal in 2008. EchoStar wouldn't
settle, and TiVo got a temporary injunction. EchoStar's supposed workaround "was
not more than colorably different from the infringing software, and did continue
to infringe the software claims." The district court, then an appeals panel,
found contempt. The CAFC agreed to hear the issue en banc, to "clarify the
standards governing contempt proceedings in patent infringement cases."
With a roaring dissent, clarification was awfully noisy.
Posted by Patent Hawk at 7:08 PM | Case Law
April 2, 2011
Confidentiality Cancer
Sanofi-Aventis
sued Sun Pharmaceutical for its generic mimic of a cancer treatment drug,
oxaliplatin. They supposedly settled, with a complex license agreement. But then
it got complicated. And discreet. Too discreet. The ghost of Richard Nixon
haunted the courtroom.
Continue reading "Confidentiality Cancer"
Posted by Patent Hawk at 10:58 PM | Case Law
March 30, 2011
Word Up
Some
litigators have bigger egos than brains, failing to understand the basic
communication tenet of signal to noise. And so proliferant pontification is
preferred to on-point terse. And, like litigators' mother's milk, there is the
irresistible psychopathic urge to try to game the proceedings. Judges display
their acumen by intolerance of such. The CAFC won't have it.
Posted by Patent Hawk at 5:42 PM | Case Law
March 24, 2011
No Shopping, Please
It
is a fundamental tenet that consumers shop for what they perceive as the best
value. A few years ago, patent holders, seeking to consume justice, could do the
same. Many district court judges, quite capable of adjudging criminals and
contract disputes, are rum when it comes to patents, as appeals to the CAFC
demonstrate. A handful of savvy judges in a few districts across the country put
together programs to ferry patent cases, and in the process became patent
litigation malls, where justice was dispensed like ice cream: cool and
smooth. The malls are closed now.
Continue reading "No Shopping, Please"
Posted by Patent Hawk at 11:49 AM | Case Law
March 16, 2011
Not Reliable
Old
Reliable Wholesale sued Cornell for infringing
5,069,950, which claims an insulated roof board. The district court found
'950 invalid by prior art, which the CAFC affirmed. The district court found
that Old Reliable hadn't lived up to its name, and so declared the case
exceptional under §285, and awarded Cornell attorneys fees and expenses. The
CAFC tucked under the roof what "exceptional" meant, and Old Reliable wasn't.
Continue reading "Not Reliable"
Posted by Patent Hawk at 11:31 PM | Case Law
March 14, 2011
Usurpation
The
CAFC refused to correct its intrusion into state contract law,
spurning an en banc rehearing petition of
Abraxis Bioscience
v. Navinta. Judge Newman, who dissented in the panel decision, did so
again, joined by the newest member of the CAFC, Judge O'Malley, who penned the
dissent this time. Welcome, Judge O'Malley.
Posted by Patent Hawk at 11:54 PM | Case Law
March 9, 2011
Lights On
Altair
Engineering sued LEDdynamics for infringing
7,049,761, claiming an LED light fixture. The lights went out for Altair.
"Closely-spaced" was hotly contested. Altair's position was shorted. Altair also
had its plug pulled in asserting new claims, being judicially estopped. It took
the CAFC to flip the switch.
Posted by Patent Hawk at 2:18 PM | Claim Construction
February 26, 2011
Damages Detector
Poistron
emission tomography (PET) gives a partial snapshot of organs in its view. To get
the snapshot, a patient consumes a dose of radioactive juice that decays,
emitting positrons that the PET picks up.
4,958,080, owned by Siemens, claims a detector useful for PET scans. Siemens
sued Saint-Gobain for infringement, winning a jury award of $52.3 million,
reduced post-trial to $44.9. Saint-Gobain appealed with a set of arguments that
were scanned for decay.
Continue reading "Damages Detector"
Posted by Patent Hawk at 3:47 PM | Damages
February 19, 2011
Bad Connection
Ronald A. Katz sued a crop of companies over his call processing patent portfolio in a variety of venues. Consolidation led to loss at district court. For the umpteenth time, a CAFC ruling demonstrates the random competence of all involved before the appeals panel. Patent litigation is a crap shoot because a lot of what comes out of lawyers, whether on the bench or belting it out, is crap. It helps when patent claims are largely crap, which is not at all unusual either. Once again, the CAFC proves its worth in sorting it all out.
Continue reading "Bad Connection"
Posted by Patent Hawk at 3:32 PM | § 112
December 24, 2010
Fine Print
Lazare Kaplan International owns patents claiming laser microinscribing of
gemstones. Two of them,
6,476,351 and descendant
7,010,938, were asserted against PhotoScribe and others. Claim construction
resulted in a summary judgment of literal noninfringement. But Lazare was
allowed to argue the doctrine of equivalents to the jury. The jury found the
patents not
infringed, and not valid. In a bench trial that followed, the district court
found inequitable conduct, for failing to disclose "the Gresser machine" to
the USPTO. Under contract, Herbert Gresser created a nifty machine to
air-cushion the inscriber for Lazare. '351 mentioned Gresser's work (and
patent,
4,392,476, which Lazare also owns), but only in passing.
Posted by Patent Hawk at 3:28 PM | Claim Construction
December 15, 2010
Latitude
ColorQuick
sued VistaPrint and OfficeMax for patent infringement in the Eastern District of
Texas. Defendants wanted a transfer to Massachusetts. Denied. Petition to the
CAFC for a writ of mandamus, to overturn, failed. "In sum, there are cases where
to hold a trial court to a meaningful application of the § 1404(a) factors
presents only one correct outcome. In those cases, mandamus may be appropriate.
A case such as this, however, shows that a meaningful application of the factors
often creates a reasonable range of choice. Under such circumstances, it is
entirely within the district court's discretion to conclude that in a given case
the § 1404(a) factors of public interest or judicial economy can be of
"paramount consideration," Volkswagen II, 566 F.3d at 1351, and as long
as there is plausible support of record for that conclusion we will not second
guess such a determination, even if the convenience factors call for a different
result." This, with an approving nod to EDT Judge Davis from his
upstairs brethren: "the trial court performed a detailed analysis explaining
that it is very familiar with the only asserted patent and the related
technology, and where there is a co-pending litigation before the trial court
involving the same patent-in-suit..." (CAFC
2010-m954o) precedential
Posted by Patent Hawk at 11:37 AM | Case Law
November 14, 2010
Jurisdictional Nuance
Nuance
sued competitor Abbyy over its OCR scanning software patents. Finding out who
the US subsidiary of Abbyy was owned by, Nuance amended its complaint to target
the parent company in Cyprus, and the Russian subsidiary of
Abbyy. Nuance served them both. Abbyy motioned to dismiss for lack of personal
jurisdiction, and improper service of the foreign companies. The district court
judge pitched the case over personal jurisdiction, as well as the service spat,
including sua sponte determining that Nuance hadn't even properly served
the US Abbyy. The judge also stopped further discovery. There was no nuance to
reversal on appeal: it was loud and clear.
Continue reading "Jurisdictional Nuance"
Posted by Patent Hawk at 10:09 PM | Case Law | Comments (1)
September 10, 2010
Backbreaker Broken
Spine
Solutions, Inc. (SSI) sued Medtronic for infringing
6,936,071, which claims a spinal implant, "used to replace discs between
vertebrae in the spinal column that have degenerated or become diseased."
Summary judgment of infringement for claims 1 and 2, and dismissal of "all of
Medtronic's 35 U.S.C. § 112 defenses" led to stipulated capitulation by
Medtronic, setting up a trial on damages and obviousness. SSI was going for lost
profits even though it didn't sell or make any device covered by '071. But SSI's
sister companies did. SSI was allowed to amend its complaint to include them.
The jury found '071 not invalid, and willfully infringed, to the $5.7 million in
lost profits, and an 18% reasonable royalty on $9.1 million in infringing sales.
Whereupon the district court doubled the damages and awarded attorneys fees.
Adding insult to injury, the court entered a permanent injunction. All that left
Medtronic a lot to appeal. And some of it was appealing to the CAFC.
Continue reading "Backbreaker Broken"
Posted by Patent Hawk at 11:32 PM | Case Law | Comments (1)
September 2, 2010
On Tape
Funai
Electric sued four Daewoo companies for infringing six US VCR patents. A tough
battle to trial found two patents infringed for about $10 million in damages
against two companies. Two defendants spontaneously pulled out, but the district
court, applying "the law of South Korea as to successor liability," ruled that
there was no goat to scape. In a multi-patent detailed analysis involving claim
construction, prosecution estoppel (no estoppel on one amended claim, where the
amendment was "merely tangential" to patentability), infringement (including
doctrine of equivalents and willfulness), validity, and damages, the district
court was affirmed by the CAFC, with one exception. The district court
erred in applying Korean law to the US subsidiary - US law should have been
applied there, which then raised the issue of which state. So, mostly affirmed,
with reversal and remand regarding the US subsidiary that skipped. (CAFC
2009-1225, -1244) precedential.
Posted by Patent Hawk at 6:35 PM | Case Law
August 20, 2010
Deep Rig
Transocean
Offshore Deepwater Drilling innovates so humans can drive around on the cheap
until they pollute themselves out of existence. And, as anything that lives in the Gulf of Mexico would tell you (if it could talk),
pollution begins at the wellhead. Transocean tried drilling rival Maersk for infringing
6,047,781,
6,068,069, and
6,085,851, in South Texas, where
they love oil like cattle love grazing. But apparently not those patents, because the district court held
the asserted claims invalid, not infringed, and Maersk not acting willfully.
Transocean had to pitch its bit to the CAFC.
Posted by Patent Hawk at 2:35 PM | Prior Art
July 28, 2010
Terminal
Eli
Lilly markets cancer drug
Gemzar®, the active ingredient of which is gemcitabine.
4,808,614 claims gemcitabine, and a method for treating viral infections
using gemcitabine.
5,464,826 claims using gemcitabine to treat cancer. Both patents, in the
same family, are owned by Lilly. Lilly did not file a terminal disclaimer for
'826. That would become a terminal mistake.
Posted by Patent Hawk at 4:04 PM | Case Law
June 9, 2010
Fractured
TriMed
sued Stryker in 2006 for infringing
5,931,839, which claims "an implantable device used to set bone fractures."
The district court granted summary judgment of noninfringement. Appeal reversed
and remanded for an incorrect claim construction. Stryker then struck pay dirt
with summary judgment invalidity. The appeals court was less than thrilled.
Posted by Patent Hawk at 10:13 PM | Prior Art | Comments (5)
June 4, 2010
Animated
Beginning
its enforcement campaign with the beginning of the alphabet, Silicon Graphics
sued ATI and AMD, ultimately for infringing
6,650,327, which claims pipelined floating point graphics calculations. Two
other patents had been asserted, but summary judgment in favor of defendants
wiped the litigation of those. Summary judgment of non-infringement, as well as
a district court finding that a Microsoft license covered part of the action,
wiped '327's assertion. But the counterclaim case proceeded to trial, where the
patent was found not invalid. Then, naturally, appeal from both sides. Besides
claim construction and infringement, a look herein at exhausting defenses and
counterclaims.
Posted by Patent Hawk at 1:06 PM | Claim Construction | Comments (9)
May 28, 2010
Custom Casket
In
offering a license, Ablaise accused Dow Jones of infringing
6,961,737 &
6,295,530, claiming web page personalization. Dow Jones replied with a DJ.
Realizing that validity was in jeopardy, Ablaise offered a covenant not to sue
for '530 (not '737), which Dow Jones spurned, because Ablaise wouldn't extend
the covenant to Dows' parent, News Corporation. In the issue of continuing
subject matter jurisdiction, the district court waved the proffered covenant
away, and kept the railroad running. The district court found the asserted
claims obvious in light of Fishwrap, an MIT online newspaper,
5,675,507, a customizable fax viewer, and HTGrep, with optional views of
search results. The CAFC took Ablaise's covenant offer more seriously.
Continue reading "Custom Casket"
Posted by Patent Hawk at 12:19 PM | Standing
May 25, 2010
Silence Not Golden
Aspex
and Clariti litigation counsel know each other well. Aspex first sued Clariti
over eyeglass frames patents in 1999. They settled the next year. In March 2003,
Aspex sent nastygrams to Clariti over some other patents. Clariti responded by
letter. Over three years later, in August 2006, Aspex rattled its paper saber
again. Correspondence turned into complaint. Aspex sued in March 2007. Clariti
got the district court judge to dismiss the case in summary judgment on
equitable estoppel, legalese for sitting on the litigation duff a wee too long.
Continue reading "Silence Not Golden"
Posted by Patent Hawk at 9:04 PM | Case Law | Comments (1)
Flaming Claiming
Randall
B. Carter was VP and General Manager of Acme Security from 1992 to 2006. While
there, "he allegedly developed a high security locking assembly for a safe
deposit box door on his own time and with his own resources." This led to
patenting, listing Michael Hassebrock, Acme President
at the time, and Carter as inventors. "Subsequently, Hassebrock allegedly demanded that Carter assign his patent rights to Acme Security. Carter refused, and Acme
Security terminated his employment." So Carter sued: "nine claims purportedly
based on federal law and six on state law."
Continue reading "Flaming Claiming"
Posted by Patent Hawk at 11:41 AM | Case Law | Comments (1)
May 10, 2010
Extension
Three
recent cases before the CAFC went to challenges to patent term extension.
Photocure challenged the PTO's denial of term extension in Photocure v.
Kappos, and won. In Wyeth v. U.S., Wyeth unsuccessfully challenged
the FDA's "determination of the date on which the approval phase of its phased
regulatory review process begins for purposes of calculating patent term
extensions." Lupin challenged the PTO's granting an extension to
5,053,407, "an enantiomer of a racemic compound that had previously been
approved by the Food and Drug Administration (FDA)," to no avail.
Posted by Patent Hawk at 10:26 AM | Case Law
May 3, 2010
Sanctioned
Starting in 1998, Medtronic sued multiple parties over multiple surgical
instruments patents, BrainLAB being one of them. Defendants summary judgment
motions of noninfringement were denied. Before the case went to the jury, BrainLAB
renewed its JMOL motions, which the district court again denied. Medtronic won.
Post-trial, BrainLAB filed again. This time, the district court granted the
motions. Medtronic appealed, and lost. Back at district court, BrainLAB
succeeded in getting attorneys fees for litigation misconduct. Back to appeal.
Posted by Patent Hawk at 12:25 PM | Case Law
April 29, 2010
Dun In
Judson A. Bradford had some ideas for collapsible shipping containers. So he
patented.
5,725,119 came first. Then
6,230,916, a divisional of '119.
6,540,096 was a CIP of '916. Enforcement went nowhere: noninfringement. But
the CAFC revived Bradford's prospects owing to a too-narrow claim construction.
Of particular interest in this case is that Bradford damned himself in the '096
CIP having benefit of the earlier '119 parent prior date.
Posted by Patent Hawk at 3:09 PM | Claim Construction | Comments (1)
April 22, 2010
Unclear
Nissim
sued ClearPlay for patent infringement. They settled by ClearPlay taking a
license, paying ongoing royalties. Nissim got upset that ClearPlay wasn't
playing it straight, so Nissim sued to enforce the agreement, as well as
tattling to ClearPlay's customers. ClearPlay sued for tortious interference and
other legal breaches of the licensing agreement. Nissim's suit went nowhere,
having found that ClearPlay "had substantially complied with the agreement and
was not in breach." Miffed, Nissim terminated the license agreement. Whereupon
ClearPlay got a preliminary injunction to bar Nissim from doing so. Nissim
appealed to the CAFC.
Posted by Patent Hawk at 9:54 AM | Case Law
April 15, 2010
Manipulative Practices
"In
2003, Congress enacted the counterclaim provision of the Hatch-Waxman Act in
order to prevent manipulative practices by patent holders with respect to the
Orange Book listings. These practices were designed to delay the onset of
competition from generic drug manufacturers." Judge DYK, dissenting in Novo
Nordisk v. Caraco. The Byzantine regulatory labyrinth over drugs coming off
patent protection bounces like a ball on the roulette wheel of case law once
more.
Continue reading "Manipulative Practices"
Posted by Patent Hawk at 10:19 AM | Case Law
April 13, 2010
Waving Goodbye
Anascape
sued Nintendo and Microsoft over
6,906,700, which claims multiple controller input with tactile feedback.
'700 is a CIP of
6,222,525. As such, '700's earliest possible priority date for its claims depends upon spec
support within '525. And so '700's validity, as invalidating prior art lies
between the '525 filing date and the '700 filing date. Thereupon hangs the
patent's fate, upon whose reliance is an early priority date.
Continue reading "Waving Goodbye"
Posted by Patent Hawk at 9:26 AM | § 112 | Comments (12)
April 8, 2010
Inventor Hard On
Vanderbilt
University was cocksure that it contributed to the patents behind
Cialis®, the
currency-squirting erectile energizer. So it sued ICOS, current owner of
5,859,006 and
6,140,329, under
35 U.S.C. § 256, to correct inventorship. The district court decreed that
Vanderbilt was pumping dog water. The CAFC affirmed that Vanderbilt had shot its
wad.
Continue reading "Inventor Hard On"
Posted by Patent Hawk at 4:21 PM | Case Law | Comments (3)
April 4, 2010
Readily
Hearing Components
sued Shure over hearing aid patents
4,880,076;
5,002,151;
and
5,401,920,
technologies used in Shure's earphones. The district court outcome was invalidity by indefiniteness for
'920 asserted claims, and noninfringement for a few claims of '076 and '151 for Shure's product that used a straight nozzle. A jury found the '076 and '151
patents "not invalid and infringed by Shure's products both with a barb and with
a straight nozzle," and awarded $4.6 million in damages. Post-trial, the judge
granted a portion of Shure's noninfringement motion, but left the patents valid.
That went to appeal, as well as denying Shure noninfringement JMOL for its
barbed nozzle earphones, and denying laches. Hearing Components wanted another
hearing on the claim term "readily" turning its claims deaf to definiteness.
Posted by Patent Hawk at 12:39 PM | § 112
March 31, 2010
Score Line
Pressure
Products Medical Supplies invented a valve remover for an introducer, netting
5,125,904 &
5,312,355. Under a rolling claim construction, the patents were found valid
and infringed by the jury, with Pressure Products awarded $1.1 million in damages. Appeal
rolled back the score.
Posted by Patent Hawk at 12:58 PM | Claim Construction
December 22, 2009
Unpreserved
i4i sued Microsoft for a pissant feature in Word: editing custom XML.
But to i4i's business, the feature was puissant. A seven-day trial found
Microsoft willfully infringing a valid patent, with a jury award of $200
million. "Although statutorily authorized to triple the jury's damages award
because of Microsoft's willful infringement, the district court awarded only $40
million in additional damages. It also granted i4i's motion for a permanent
injunction." The inevitable appeal, widely expected to go more Microsoft's way
than not, did not. Procedural fumbling by supposedly the best lawyers money can
buy sold Microsoft short. Herein, CAFC case law heavy on burden and sufficiency,
in a case practically covering the gauntlet of patent enforcement.
Continue reading "Unpreserved"
Posted by Patent Hawk at 8:57 PM | Case Law | Comments (1)
December 13, 2009
So Unlike Concrete
In
an extremely messy patent case involving claim construction (and correction),
noninfringement, invalidity, laches, indefiniteness, trade secrets, and topped
with several business torts, Ultimax Cement had its quick-set concrete patents
crumble by a sledgehammer summary judgment at district court, and so Ultimax
sought repair at the CAFC. The foundation of the patent problem: lack of careful
proofreading by the prosecutor.
Continue reading "So Unlike Concrete"
Posted by Patent Hawk at 1:04 AM | Claim Construction | Comments (3)
November 3, 2009
License Crossed
Philips
and 3M inked a patent cross license in 1995. The next year, 3M spun off Imation.
The agreement, which granted license to subsidiaries, continued. In 2003,
Imation formed a joint venture that created GDM. In 2006, Imation acquired
Memorex. In 2007, Imation filed a declaratory judgment action seeking a finding
that GDM and Memorex are licensed subsidiaries under the agreement. The district
court ruled against Imation, and so Imation appealed.
Continue reading "License Crossed"
Posted by Patent Hawk at 2:05 PM | Case Law | Comments (2)
September 30, 2009
Fraudulent
Advanced
Software sued Federal Reserve banks and Fiserv in Federal district court for
infringing process patents "for detecting fraudulent bank checks." The checks at
issue were U.S. Treasury checks. 28 U.S.C. Section §1498(a), dating to 1910 and
broadened as a World War I war powers act, limits patent infringement liability
by the U.S. to compensation granted through the Court of Federal Claims.
Otherwise, the government cocks a snoot at such a suit.
Posted by Patent Hawk at 10:43 PM | Case Law
September 20, 2009
Stirred
Vita-Mix
is a blender maker with
5,302,021. Vita-Mix sued competitor Basic for patent and trademark
infringement. The district court let Basic off the hook in summary judgment. On
appeal, the CAFC limited prosecution disclaimer, and found potential matters of
fact that revived the issue of infringement.
Posted by Patent Hawk at 10:07 PM | Case Law
September 11, 2009
Form Fitting
In the salad days of personal computing, Ben Day came up with a "touch screen
form entry system" while working at AT&T.
4,763,356 resulted. Current owner Lucent disingenuously sued Dell and
Gateway over it, while Microsoft software was the real culprit. Microsoft
indemnifies its big corporate customers, and so stepped in. And lost. To the tune of $358
million. Bad tune. So bad, the CAFC called it tone deaf. Herein, two teams of
randomly competent lawyers dance bad ballroom.
Continue reading "Form Fitting"
Posted by Patent Hawk at 5:31 PM | Damages | Comments (1)
August 21, 2009
Ticker
Cardiac
Pacemakers sued St. Jude Medical for infringing
4,407,288, claiming an implantable cardiac defibrillator (ICD). On second
appeal, while multiple issues get the ticker running quicker, what really pumps
is excluding method claims from Section 271(f).
Posted by Patent Hawk at 11:56 PM | Case Law | Comments (5)
August 13, 2009
No Bites
Wedgetail
sued Huddleston for infringing its fishing lure patent
6,857,220 B2 ('B2' being USPTO technical designation for "bait too"). After
claim construction, Wedgetail concluded snagging Huddleston for infringement
could be fishy. "Wedgetail thus filed a motion to dismiss all claims with
prejudice, in which it granted Huddleston a covenant not to sue. Huddleston
opposed solely on the ground that Wedgetail's proposed order of dismissal would
deprive Huddleston of the opportunity to seek attorney fees as the prevailing
party." Case dismissed with prejudice. Huddleston appealed to get its hook into
getting paid attorneys' fees and costs, for the case being "exceptional."
Posted by Patent Hawk at 11:10 AM | Case Law
June 18, 2009
Combination of the Two
A
combination of two patent blogs yields a well-worn path to researching patent
case law. Michael Giles
Sullivan's IP Law Outline & Analysis provides an excellent directory and
synopses of precedents. The Patent
Prospector provides the most extensive reportage of case law quotes of any
blog, covering practically every precedential case from 2005 to date, as well a
few historical Supreme Court cases. For ready topical patent research, there is
no better combination.
Posted by Patent Hawk at 11:27 AM | Case Law
June 5, 2009
Uppity
Wage
slaves typically must assign their inventions to their employer as a condition
of employment. Boat designer Borden
Larson got uppity about it and sued his former employer Correct Craft, trying to
get back a right he had signed away. Larson lashed out in state court. Correct
Craft dragged it into federal court. Larson, with no cards to play, lost. Not
one to get over it, Larson appealed. No surprise that the CAFC blew the matter
off, albeit longwindedly, in a precedential decision (2008-1208),
involving jurisdiction (28
U.S.C. § 1338(a)) and correction of inventorship (35
U.S.C. § 256), which didn't apply in this case.
Posted by Patent Hawk at 5:14 PM | Case Law
April 29, 2009
Corrected Vision
Revolution
Eyewear myopically started a patent fight with competitors, including Contour
Optik. Revolution's assertion went blind, but Contour saw 20/20 money with
RE37,545. On appeal, "the only matter left in this lawsuit is Contour's '545
patent infringement action."
Continue reading "Corrected Vision"
Posted by Patent Hawk at 8:54 PM | § 112
April 27, 2009
Seeking Reversal
"A
patent by its very nature is anticompetitive." So
the CAFC
remarked last October in allowing reverse payment by Bayer to generic drug
makers, so that Bayer could keep its patented monopoly over antibacterial Cipro®
for a bit longer. Stanford law professor
Mark Lemley has
penned
a petition to the Supreme Court, to lay the burden of overturning reverse
payments before the august body, this nation's numero uno woolly bully. Lemley
thinks the CAFC ruling "contains fundamental errors of economic reasoning and
would shield many anti-competitive agreements from the reach of antitrust law,
causing great harm to competition."
Continue reading "Seeking Reversal"
Posted by Patent Hawk at 10:36 PM | Patents In Business
April 8, 2009
Toll Taken
"In
2000, TransCore sued a competitor, Mark IV Industries, for infringement of
several TransCore patents. That action was resolved by a settlement agreement,
in which Mark IV agreed to pay $4.5M in exchange for an unconditional covenant
not to sue and a release of all existing claims." Then TransCore sued again.
Posted by Patent Hawk at 3:39 PM | Case Law | Comments (2)
April 1, 2009
Assigned?
Jack
Bennett sold some patents and continuations to Vector Corrosion Technologies for
$25,000. He listed them. He left a CIP out,
6,217,742. A competitor, Euclid Chemical, sought declaratory judgment that
Vector didn't own '742. Slapdash Ohio district court Judge Boyko ruled that the
contract assigned the whole family to Vector. Euclid appealed. Another CAFC 2-1
split decision, with Judge Newman right on, and her colleagues laughable fools.
Posted by Patent Hawk at 8:18 PM | Case Law
March 24, 2009
Wastewater
Corruption
is human nature, but that doesn't shoo the stink from especial weasels. Herein,
another tale of litigant misconduct, omitting crucial discovery material that
would have gone a long way in proving noninfringement. And, in an ongoing
chronicle of feeble-mindedness at the CAFC, Judge Newman, by far the sharpest
tack in the box, points out the fly in the ointment of the majority.
Posted by Patent Hawk at 3:39 PM | Case Law | Comments (1)
March 22, 2009
Frivolous
E-Pass
sued 3Com/Palm for infringing
5,276,311, claiming a multi-function card. E-Pass then went after Visa and
PalmSource. The district court consolidated the cases, then granted summary
judgment of non-infringement because E-Pass couldn't show all the claimed steps
being practiced. E-Pass also got slapped for sloppy pre-filing investigations
and "repeated misconduct throughout the litigation," awarding attorneys fees and sanctions. E-Pass appealed, compounding its trouble.
Posted by Patent Hawk at 8:00 PM | Case Law
March 8, 2009
Non-Contributor
A
co-inventor is no inventor who adds nothing to a patent but the prior art,
so the CAFC ruled last week. Though precedential, the appeal panel ruling is
nothing new either. This in a case where a vehicle parts maker, Natron, sued its
suppliers for patent infringement over a car seat with massage effect.
Continue reading "Non-Contributor"
Posted by Patent Hawk at 12:43 PM | Case Law | Comments (1)
March 5, 2009
Expert
O2
Micro sued Monolithic Power Systems, Asustek, and Advanced Semiconductor
Manufacturing over
6,396,722. '722 goes to efficiently powering computer laptop screens. The
technology is intricate and complex. So complex that the district court judge
declared: "On the technical issues here . . . I find this extremely difficult to
understand. And the notion that a jury is going to understand it, to me, is
foolishness." So, though O2 objected, the judge had the parties agree on an
expert that "would essentially, I can't say decide the case, but would testify
and [the jury] would be told 'This is the court's expert on these points.'"
Posted by Patent Hawk at 1:08 PM | Case Law
February 25, 2009
Fire Away
Yesterday,
the Supreme Court declined a petition to review the
Singleton v. Volkswagen
case, regarding transfer of venue under 28 U.S.C.§1404(a).
That leaves the CAFC "transfer away" precedent of
TS Tech standing. Also
declined was review of declaratory judgment motions, in Forest Labs v. Caraco.
Posted by Patent Hawk at 4:45 PM | Case Law
February 24, 2009
Stay
Generic
drug maker Teva has been working to cut into Eli Lilly's profits on its patented
drug, Evista®,
which treats postmenopausal osteoporosis, a disease exacerbated
by poor lifestyle choices. Lilly sued. As is statutory, the judge slapped a
stay, delaying Teva's FDA approval, pending trial. Teva fiddled with its
formulation, requiring further discovery, so the judge extended the stay. Teva
appealed the extension as an abuse of discretion by the judge.
Posted by Patent Hawk at 11:13 PM | Case Law | Comments (3)
January 26, 2009
Rogue
In a procedurally bold opinion in In re Comiskey, __ F.3d __ (Fed. Cir. 2009)(Dyk, J.), a panel has repudiated controlling precedent of the court and indeed 180 years of practice since the Patent Act of 1839 that had established a strict proscription against a judicial reviewing body of Patent Office decisions playing de novo "examiner". Instead, the reviewing court has had a limited statutory role that focused upon the rejection that had been made by the Office.
Posted by Patent Hawk at 1:48 PM | Case Law | Comments (3)
January 19, 2009
Perspectives
Ivory-tower academic
Doug Lichtman interviewed CAFC Chief Judge Michel.
Michel displayed an impressive grasp of
important facts and statistics, and a seasoned sense of reality, with
interesting, albeit sometimes odd, views.
Continue reading "Perspectives"
Posted by Patent Hawk at 4:32 PM | Case Law | Comments (6)
December 29, 2008
Get Out of Town
Lear
sued TS Tech for patent infringement in the Eastern District of Texas. Judge T.
John Ward denied TS Tech's transfer motion. In a ruling of thin logic, failing
to explain its reasoning beyond trivial convenience, Lear's interlocutory
petition for writ of
mandamus is granted by the CAFC. Is this the beginning of the end for efficient
patent justice in this country?
Continue reading "Get Out of Town"
Posted by Patent Hawk at 11:51 AM | Case Law | Comments (3)
December 27, 2008
Not Blissed
Sundance
sued DeMonte for infringing
5,026,109, claiming a retractable tarp. "Demonte's patent law expert, Daniel
Bliss, opined that one of ordinary skill in the art would be motivated to
combine" two prior art references to render '109 obvious. The jury bought it,
but not the judge, who figured the prior art didn't cover it, even considering
testimony from Bliss. On appeal, the CAFC was less than blissed with Bliss.
Continue reading "Not Blissed"
Posted by Patent Hawk at 12:46 AM | Case Law | Comments (12)
December 25, 2008
Driving
Ricoh sued Quanta for infringing four optical disc drive patents.
6,631,109
was stomped by Obzilla.
6,172,955,
5,063,552 and
6,661,755 were found not
infringed. The appeals court
thought Ricoh should have gotten a better shake on '522 and '755, particularly with
contributory and inducing infringement. A 2-1 CAFC decision skating on thin ice
by analogizing with copyrights in lieu of more properly digging into patent law.
Posted by Patent Hawk at 1:52 PM | Case Law
December 21, 2008
Sour Grapes
6,673,064
claims a laser catheter. Dr. Peter Rentrop sicked '064 on Spectranetics, and
copped a cool half million. Spectranetics, after sloppily stirring as
much trouble for Rentrop as it could, appealed losing on obviousness, among
other profundities. The appeals court reminded Spectranetics that they could
have floated that boat, but didn't, and it's water under the bridge now.
Continue reading "Sour Grapes"
Posted by Patent Hawk at 2:28 PM | Prior Art | Comments (1)
December 18, 2008
Patent Law Outline
The
best patent law blogs act as a ready reference for case law. The
Patent Prospector attempts this by
covering CAFC cases with copious quotation, the entries categorized. Michael G.
Sullivan's The Power of the Outline
takes a different, rather extraordinary approach, beguiling in its simplicity.
In doing so, Mr. Sullivan has produced an invaluable resource: a taxonomic synopsis
of patent cases.
Continue reading "Patent Law Outline"
Posted by Patent Hawk at 11:38 PM | Case Law | Comments (1)
October 7, 2008
Giving It A Rest
The
Supreme Court has rejected a number of patent appeals recently, not altogether
unexpectedly, so it appears the SCOTUS won't blow snot on us for the first time
in several years. Recent pleas have been procedural rather than substantive issues.
Not much of a rug to pee on. And peeing on the patent rug has been little SCOTTY's specialty in recent times, from obviousness (KSR),
declaratory judgment (MedImmune),
to injunctive relief (eBay),
dramatically stacking the deck against patent holders.
Continue reading "Giving It A Rest"
Posted by Patent Hawk at 11:16 PM | Case Law
October 2, 2008
Rogue Outfit
In
John Hopkins University v. Datascope, Judge Newman fingered the
overbearing injudiciousness of the Court of Appeals panel in which she
sat:
There is no sufficient ground for this court's independent appellate trial of the factual issues that were decided by the jury and sustained by the district court.
Continue reading "Rogue Outfit"
Posted by Patent Hawk at 3:41 PM | Case Law | Comments (3)
September 26, 2008
In the Fire
Broadcom
and Qualcomm have a cell phone chip patent war going on. A major
clash was appealed, with blood spilled.
Broadcom got a permanent injunction, even though it didn't practice the claimed invention. While the courts found it "generally in the public interest to uphold patent rights," an injunction would not have been granted if not for giving Qualcomm a "sunset provision" to wean itself from infringement. This ruling could be a roadmap for future injunctive relief.
Inducing infringement was rehashed. Unlike willfulness, where a clearing opinion means nothing, it can mean something when considering inducing infringement, which "may be established through circumstantial evidence," considering the totality of circumstances.
Further, the CAFC found obvious error with district court claim construction. Further evidence of a trial court system ill-equipped for patent cases. On appeal, Broadcom made one of the most bizarre claim construction arguments possible: that if a claim were properly construed, it would be prima facie invalid in light of cited prior art, ergo, could not construed that way. So what, the court ruled. It's invalid.
Continue reading "In the Fire"
Posted by Patent Hawk at 9:30 PM | Injunction
September 25, 2008
Sound & Fury
AT&T
developed digital audio compression technology, for which it got patents. In
1988, to further the work, AT&T entered a joint development agreement with
German company Fraunhofer Gesellschaft. The result was the MP-3 standard, as
well as more patents covering the standard.
Continue reading "Sound & Fury"
Posted by Patent Hawk at 4:16 PM | Case Law
September 23, 2008
No Petty Bone
Electronic
game machine maker Aristocrat sued International Game for
infringing
7,056,215, a blemished patent. The blemish was to
futz reviving the
patent application after abandonment during prosecution. The district court turned the blemish to cancer,
killing the patent. The appeals court was more patient.
Continue reading "No Petty Bone"
Posted by Patent Hawk at 10:19 PM | Case Law
September 11, 2008
On Display
Medical Solutions (MSI) sued C Change Surgical (CCS) for patent infringement
"because CCS both "used" and "offered to sell" the allegedly infringing product
at [a] trade show." MSI had sued CCS in D.C., where the trade show was. But
neither company is based there. The district court pitched the case, because of
lack of evidence that CCS had used, or offered to sell, the allegedly infringing
product. The district court disallowed additional discovery. While jurisdiction was at issue
here, more interesting was CAFC musing on
what constituted "use" for patent infringement.
Posted by Patent Hawk at 5:00 PM | Case Law | Comments (2)
August 31, 2008
Phoning It In
800 Adept successfully sued Targus for
two patents routing 800 number calls to a
local service location. A 24-day jury trial spat a $18 million patent
infringement award, attorneys fees for it being an exceptional case, permanent
injunction, and Targus "liable under state law for tortious interference with
Adept's business relationships," worth $7 million. Found willful, the award
ballooned to $49 million. Targus' 10 counterclaim patents, covering much the
same territory, bit dust. Overturned on appeal on claim construction, and other
trial court errors.
Continue reading "Phoning It In"
Posted by Patent Hawk at 3:14 PM | Claim Construction
August 20, 2008
Dead Cash Cow Still Milks
Astrazeneca sued Apotex and Impax for infringing patents of "pharmaceutical
preparations containing omeprazole, the active ingredient in Prilosec."
Filing ANDAs prompted the patent assertion. The patents expired, but that didn't
moot the suit. Drug patent law provides an extra six months of exclusive sales
to reap the profits of an expired patent. Also herein, CAFC confirmation that
experimental use to reduce to practice is okay.
Continue reading "Dead Cash Cow Still Milks"
Posted by Patent Hawk at 6:58 PM | Prior Art
August 5, 2008
Sprayed
Proveris
Scientific sued Innovasystems for infringing
6,785,400, claiming a device for evaluating drug delivery aerosol sprays.
"As part of its defense, Innova invoked the safe harbor provision of the
Hatch-Waxman Act." The district court had no safe harbor for Innova, finding
infringement, no damages, but a permanent injunction. On appeal, the CAFC found
a narrow safe harbor that excluded Innova.
Posted by Patent Hawk at 5:10 PM | Case Law
July 14, 2008
Unsold
With
case law changing like a fashion model working the runway, Thomson had time on
its side in slipping the surly bonds of patent infringement. Muniauction
asserted
6,161,099, claiming auctions using a web browser. Thomson lost a jury trial,
found willfully infringed, faced $77 million in damages and an injunction. On
appeal, the auction patent action was retold, and the damage unsold.
Posted by Patent Hawk at 5:32 PM | Prior Art
July 9, 2008
No Reverse Spin
Apotex
filed two ANDAs with the FDA to market generic formulations of eye inflammation
treatment patented by Roche. Naturally, Roche sued, in two separate actions. The
first case was decided in 2007, with Apotex infringing a valid patent. In the
second case, more of the same bad news. The CAFC ruled "that the reverse
doctrine of equivalents is inapplicable and that claim preclusion prohibits
Apotex from raising other validity challenges." That KSR changed
obviousness in the interim between the two cases made no difference.
Continue reading "No Reverse Spin"
Posted by Patent Hawk at 3:08 PM | Case Law
June 16, 2008
Thrashed
Innovation
Technologies sued Splash! Medical Devices for infringing
5,830,197, which claims a method for irrigating wounds. Innovation got
cold feet and backed out, giving Splash a pass. Splash moved for attorneys fees
and expenses, a $144,350 tab. Granted. Vacated and remanded on appeal, because
the district court judge didn't explain his reasoning.
Posted by Patent Hawk at 10:53 PM | Case Law
June 3, 2008
Discovery
Bancorp sued Metropolitan Life Insurance for infringing
5,926,792, claiming
tracking the value of life insurance policies. Unsuccessfully in the first
round, as the district court judge granted summary judgment of non-infringement,
which failed on appeal, albeit on an affirmed claim construction, because of a
"genuine issue of material fact." Not to mention the district court not
affording Bancorp sufficient discovery.
Posted by Patent Hawk at 11:37 AM | Case Law | Comments (2)
May 21, 2008
Late
Golden Bridge Technology hammered Nokia and Lucent for infringing
6,574,267, claiming a mobile communication system. The district court granted invalidity in summary judgment. Golden Bridge appealed with
freshly minted arguments, which the CAFC refused to consider, deeming them too little too late.
Posted by Mr. Platinum at 10:21 AM | Case Law
May 14, 2008
Priority
DuPont
sued MacDermid Printing for infringing
6,773,859, claiming digital thermal printing. '859 was based on a
provisional application. The USPTO mistakenly issued the patent without
reference to the provisional. DuPont had that corrected. MacDermid brewed a
tempest in a teapot over priority date, confusing the district court judge, who
refused a motion to issue a preliminary injunction. On appeal, the CAFC (2007-1568)
ruled that DuPont had met the requirements for
35 U.S.C. § 119, and set the priority date to the provisional filing.
Vacated the motion denial. Remanded.
Posted by Patent Hawk at 7:41 PM | Case Law
May 13, 2008
Another Nail
Acumed
successfully went after Stryker for infringing
5,472,444. After discovery, Strkyer started selling what Acumed would later, in a second complaint, accuse
as further infringement. The district court dismissed the second suit as old
news. Acumed appealed.
Continue reading "Another Nail"
Posted by Patent Hawk at 5:10 PM | Case Law
April 28, 2008
Sleep Lite
LiteCubes
sued Canada-based GlowProducts for
infringing
6,416,198, as well as copyright infringement. '198 claims a light that looks
like an ice cube. After found infringing, GlowProducts filed a motion to dismiss
for lack of subject matter jurisdiction. On appeal, the CAFC unleashed a
gratuitous stem-winder on jurisdiction. Simply, an allegation of patent
infringement "creates a federal cause of action."
Posted by Patent Hawk at 2:26 PM | Case Law | Comments (2)
April 24, 2008
Objectively Baseless
Dominant Semiconductors, being found to infringe a number of LED patents owned by OSRAM GmbH, filed suit against OSRAM alleging unfair competition, intentional interference with contractual relations, interference with prospective economic advantage, and trade libel arising from OSRAM's communication to customers regarding Dominant's possible infringement. Dominant, apparently forgetting that they lost the infringement battle, claimed OSRAM's communications regarding possible infringement were "objectively baseless". Turns out, the only thing objectively baseless was Dominant's suit. Summary judgment granted in favor of OSRAM. CAFC affirmed.
Continue reading "Objectively Baseless"
Posted by Mr. Platinum at 7:52 AM | Case Law
April 20, 2008
Beaming Down
Finisar sued
DirecTV in East Texas for infringing
5,404,505, garnering from a jury a $78.9 million reasonable royalty damages award for willful
infringement. The district court tacked on $25 million while denying
injunctive relief. On appeal, a claim construction error vacated the verdict, as well as
raising from the grave potentially invalidating prior art.
Continue reading "Beaming Down"
Posted by Patent Hawk at 12:31 AM | Prior Art
April 17, 2008
Hospital TV
Zenith
has a couple patents (5,495,301;
5,502,513) for TV remote controls for hospital room use. Zenith sued PDI for
infringement. PDI won a summary judgment of prior art invalidity on claim 1 of
'301, and non-infringement on both patents. Zenith appealed. Herein reminders
that: 1) practicing the prior art does not prove anticipation; 2) determining
anticipation by public use doesn't require an enablement finding. "We must
simply determine whether the public use related to a device that embodied the
invention."
Continue reading "Hospital TV"
Posted by Patent Hawk at 2:49 AM | Prior Art
April 12, 2008
Viral
Hilgraeve
Corporation, owner of computer virus detector patent
5,319,776, sued McAffee and lost on
non-infringement. Next, it sued
Symantec and lost again in district court, but had an unfavorable claim
construction reversed on appeal. Symantec settled, buying the patent. In that
process, Symantec picked up the lawsuit Hillgraeve had brought against
Computer Associates (CA).
Posted by Patent Hawk at 3:51 PM | Claim Construction
April 9, 2008
Uncovered
Ren
Judkins sued HT Window Fashion
for infringing window covering patent
7,182,120, which he had gotten via a circuitous route. HT counterclaimed
unfair competition under the Lanham Act, and sought a preliminary injunction,
because Judkins had sent letters to HT customers, warning of infringement.
Denied. Appeal. HT argued that Judkins acted in bad faith because he knew that
his patent was unenforceable.
Posted by Patent Hawk at 1:19 AM | Case Law
April 7, 2008
Only If, Take 2
O2
enforced its DC-to-AC converter patents against Beyond Innovation and others.
Construction of the claim term "only if" sparked a slight disagreement among
defendants, but was only "two simple plain English words" to O2. The district
court judge agreed with O2: no construction needed. The appeals court did not.
Continue reading "Only If, Take 2"
Posted by Patrick Anderson at 7:45 PM | Claim Construction
March 3, 2008
Grasp by Analogy
On
the Supreme Court, Justice Antonin Scalia can't resist indulging in sarcasm as
modus operandi. Contrast that with the poised maturity of persnickety Justice
Ruth Bader Ginsberg, who revels in the devils in the details. Justice Stephen
Breyer: "The point is to try to focus on a matter that is worrying me. Sometimes
it's easier to do that with an example."
Continue reading "Grasp by Analogy"
Posted by Patent Hawk at 12:20 AM | Case Law | Comments (5)
January 17, 2008
Oops!
Abbott
had lousy lawyers defending it against
Innogenetics patent
5,846,704. Abbott passed an opportunity to correct a court mistake, thus
leaving it without expert testimony from one expert. Abbott farted around on
invalidating the patent, not producing the ringer until the last day of
discovery. And Abbott simply blew the chance to have the inventor of the
anticipating art act as expert witness. For all its pains, its defense crumbled
with a losing claim construction, Abbott suffered summary judgment of
infringement, and ordered to pay Innogenetics attorneys' fees because its
inequitable conduct charge was "exceptional" in its vacuity. In liability trial, Abbott's expert
testimony was soiled because it "rested on an inaccurate understanding" of a key
claim limitation. Abbott was dinged $7 million and its infringement found
willful by jury; the willfulness charge lifted by the district court judge, who
knew how high that bar had been raised
In re Seagate. But Abbott then was pinned with a permanent injunction.
Appeal gave Abbott another chance, which it largely threw away.
Posted by Patent Hawk at 1:18 PM | Case Law
January 1, 2008
On the Docket in 2008
After
proving themselves randomly competent at best in 2007, the high courts will
continue to define patent law as Congress dickers with wrong-headed "reform."
Here are 2008 high court patent cases that may demonstrate that clown time is
not over on the bench.
Continue reading "On the Docket in 2008"
Posted by Patent Hawk at 4:59 PM | Case Law | Comments (1)
December 25, 2007
Unlinked
Online
auction house eBay and satellite virtual bank
PayPal dodged errant bullets shot by
Netcraft:
6,351,739 and
6,976,008.
The claims go to "an Internet billing method." Summary judgment of
non-infringement was granted because the claims required "providing a
communications link through equipment of the third party;" in other words, an
Internet service provider (ISP). eBay and Paypal don't do that.
Posted by Patent Hawk at 12:06 AM | Case Law
November 7, 2007
Unincorporated
Zenon
Environmental sued US Filter for infringing water filter patents:
6,620,319;
6,245,239;
6,550,747. In district court, Zenon crapped out on claim construction,
leading to a non-infringement decision, as did US Filter on invalidating '319.
On appeal, '319 validity took center stage - a defective incorporation rendered
the family parent anticipatory, offing its offspring.
Continue reading "Unincorporated"
Posted by Patent Hawk at 5:53 PM | Case Law
November 2, 2007
Illumination in Range
Mr.
Rolfes, an employee of Phillips, sent a letter to Iwasaki Electric, offering to
licensing
5,109,181, which claimed a particular halogen lamp. No reply; litigation
disco. On appeal, some light shed on claimed ranges and the doctrine of
equivalents.
Continue reading "Illumination in Range"
Posted by Patent Hawk at 2:26 PM | Case Law
November 1, 2007
Back from the Dead
Microtome
was granted
5,734,823, claiming encrypted storage. The patent was then acquired by IPDN,
who went bankrupt. Diego bought the patent, "as is," at the bankruptcy estate
sale. The appeals court was riveted: "The facts of this case read like a novel
in that they involve the resurrection of an inventor thought to be deceased."
Ultimately a tale of 35 U.S.C.
§ 285, granting attorneys fees for exceptional cases.
Continue reading "Back from the Dead"
Posted by Patent Hawk at 10:09 PM | Case Law | Comments (1)
October 23, 2007
Sovereign Immunity
Biomedical
Patent Management wants to sue the Department of Health Services (DHS) of the
State of California for infringing
4,874,693, claiming screening for birth defects in pregnant women. DHS has
intervened in a previous action against Kaiser, but this time sought a pass
using the sovereign immunity defense, under the Eleventh Amendment. That's all
it takes for the state to skip out; that the state involved itself previously in
a related action makes no difference; it's not "the case at hand," i.e., the
same case. (CAFC
06-1515)
Continue reading "Sovereign Immunity"
Posted by Patent Hawk at 1:07 PM | Case Law
October 1, 2007
Defective Non-Assignment
IpVenture
sallied forth to rake money off Prostar Computer and Midern Computer for
infringing
6,216,235; Douglass Thomas, and his dad, Alan, inventors. The defendants got
a squeamish district court to dismiss the case owing to lack of standing. The
appeals court thought the lawsuit standing was copasetic.
Continue reading "Defective Non-Assignment"
Posted by Patent Hawk at 7:01 PM | Case Law
September 12, 2007
Death Certificate Reissue
The
CAFC took the unusual step of
reissuing its
July 11
non-precedential obviousness wallop as a
precedential decision, so it could be used to maintain the KSR
fiction that the statutory "ordinary skill in the art" has an inventor's level
of skill and education, as well as being omnificent.
Continue reading "Death Certificate Reissue"
Posted by Patent Hawk at 11:30 AM | Case Law
August 26, 2007
Pulling Teeth
Ormco asserted
four orthodontic software and appliance patents in the same family against Align Technology
(5,447,432;
5,683,243;
6,244,861 and
6,616,444). Align counterclaimed with
6,554,611 and
6,398,548. All asserted claims by both parties were found
unenforceable. Ormco and Align appealed.
Continue reading "Pulling Teeth"
Posted by Patent Hawk at 8:47 PM | Claim Construction
August 24, 2007
Inventorship by Jury
Frank
Shum is an optical engineer. In the late 1990s, Shum worked with Jean-Marc
Verdiell. The relationship soured. Shum alleged that Verdiell
fraudulently misappropriated technology developed by Shum. When Intel
acquired Verdiell's company, and its patents, for $409 million in stock, Shum
sued.
Continue reading "Inventorship by Jury"
Posted by Patent Hawk at 9:39 PM | Case Law
August 22, 2007
Waiving Under Willfulness
Seagate
appeals an order to disclose what would ordinarily be privileged attorney-client
communications between it and trial counsel. The springboard for waiving the
privilege by the district court is a finding of willful patent infringement. The
issue before the appeals court is proper scope of discovery when relying upon
advice of counsel, and the advice sours. But the CAFC goes far beyond that: in a
unanimous en banc reversal of its own precedent of waiving privilege, the
appeals court gratuitously furthers the recent judicial trend in eviscerating
patent enforcement, redefining willful infringement without provocation, an
issue orthogonal to that which it put before itself.
Continue reading "Waiving Under Willfulness"
Posted by Patent Hawk at 1:48 PM | Case Law
July 27, 2007
Patent-Free Research
The waves
unleashed by recent Supreme Court decisions have swelled a sea change of judicial
attitude that continue to erode
patent protection, furthered today by appeals court carelessness. Integra Lifesciences sued Merck, Scripps, and
researcher Dr. David Cheresh for infringing five patents. The defendants invoked
35 U.S.C. §271(e)(1), which exempts genetic experiments for new drug research from patent infringement. At issue was the breadth of the exemption. Back to the CAFC after a SCOTUS decision broadening the exemption, the CAFC inadvertently includes research tools, a ruling which could, according to the
dissent, "shift all control of research and the patented tools that facilitate
research to the insular pharmaceutical industry."
Continue reading "Patent-Free Research"
Posted by Patent Hawk at 9:21 PM | Case Law | Comments (3)
May 7, 2007
Keeping the Software Down
In spite of the Supreme Court broadly opining
in 1980 that "anything under
the sun made by man is patentable," the SCOTUS ruling in
Microsoft v.
AT&T on April 30 was designed, from a patent standpoint, to maintain relegation of software as a second-class
technology.
Continue reading "Keeping the Software Down"
Posted by Patent Hawk at 8:31 PM | Case Law
April 30, 2007
Obzilla
In
its landmark decision of
KSR v. Teleflex, reversing the appeals court,
the Supreme Court has broadened the interpretive scope of
35 U.S.C. § 103(a), the obviousness clause. Patentable subject matter is
thus constricted. In the large, in light of the ruling, a known combination of
elements are only patentable if their combined functionality yields the
unexpected. What was once impermissible hindsight is now permissible.
Posted by Patent Hawk at 2:16 PM | Prior Art | Comments (2)
February 27, 2007
Filler Thriller 2
In
its second appearance before the Court of Appeals (CAFC
2006-1407), Aquatex
v. Technique Solutions, applying
the doctrine of equivalents in light of prosecution estoppel, and functional
equivalence, are the issues at hand. Can Aquatex have its
6,371,977 patent claims for fiberfill apply to non-synthetic material?
A surprising conclusion of ineptitude.
Continue reading "Filler Thriller 2"
Posted by Patent Hawk at 1:04 PM | Case Law
February 21, 2007
Government Protection
Sevenson
Environmental Services sued Shaw Environmental for infringing patents related to
hazardous waste treatment. Shaw countered that it was immune under
28 U.S.C. § 1498 as a government contractor. District court summary judgment
affirmed by the appeals court (CAFC
06-1391).
Continue reading "Government Protection"
Posted by Patent Hawk at 10:51 AM | Case Law
February 9, 2007
Deep Freeze
Dippin' Dots owns 
5,126,156, which claims a process for making ice cream.
"The Dippin’ Dots brand is known to patrons of amusement parks, stadiums, shopping malls, and the like." After Dippin's distributors turned competitors, Dippin' flipped into patent
enforcement, suing left and right. Counterclaim included antitrust, on what defendants called a fraudulently acquired patent. Claim construction, infringement, prior art
(including a newly minted definition of "obvious"), inequitable conduct; it's all in the dip. (CAFC 05-1330)
Continue reading "Deep Freeze"
Posted by Patent Hawk at 3:14 PM | Claim Construction
January 25, 2007
Fitting
In
a 2-1 split decision, the appeals court vacated and remanded a district court dismissals
of a patent antitrust claim, where the patent was under a fog of accused fraud,
and, separately argued, breach of contract related to patented technology. (CAFC
2006-1188).
Posted by Patent Hawk at 2:46 PM | Case Law
January 19, 2007
Terminal Disclaimer & Extension
Merck
owns
4,797,413, a CIP of a CIP of a CIP, terminally disclaimed at the end of
June, 2004, but granted a three-and-a-half year extension by the USPTO because
it took the FDA almost six years to okay Merck's dorzolamide (trade name:
Trusopt), the drug for glaucoma treatment claimed by the patent. Merck
claims the extension rides on the tail of the terminal disclaimer, extending the
patent to the end of 2007. Hi-Tech Pharmaceutical wants to market a generic
version, and says there is no tail to a terminal disclaimer, at least in this
instance. A New Jersey district court ruling favored Merck; a ruling Hi-Tech
appealed. No appeals court decision yet, but the murky intersection between terminal
disclaimer and patent extension may be plowed clear as a result.
Continue reading "Terminal Disclaimer & Extension"
Posted by Patent Hawk at 12:04 AM | Case Law
January 18, 2007
Privity & Judicial Estoppel
5,318,080
claims a device for changing automatic transmission fluid. Transclean is
exclusive licensee. In October 1997, Transclean sued Bridgewood, a maker of
transmission service equipment, for infringement, and won. Then Transclean went
after Bridgewood's customers.
Continue reading "Privity & Judicial Estoppel"
Posted by Patent Hawk at 12:14 PM | Case Law
January 4, 2007
Federal Circus
fedcirc.us
is a new blog dedicated to slow-roasted reviews of federal circuit decisions, hosted by
inveterate patent law bloggers Matt Buchanan, Stephen Nipper, and Doug Sorocco.
Welcome!
Continue reading "Federal Circus"
Posted by Patent Hawk at 1:57 PM | Case Law
December 15, 2006
Shields Up
Things
are running hot between L&W and Shertech, manufacturers of heat shields for
autos. Starting the fracas, L&W sought declaratory judgment of
non-infringement against Shertech's
5,670,264, also arguing invalidity and inequitable conduct unenforceability.
Shertech naturally counterclaimed infringement, which the district court granted
in summary judgment. Then a jury trial on invalidity, where only claim 7
survived.
Posted by Patent Hawk at 12:04 AM | Case Law
December 14, 2006
Jabbed
DSU Medical sued Japanese medical supply company JMS and
SE Asian manufacturer ITL for
direct, inducement, and contributory infringement of
5,112,311 and
5,266,072,
which claim a guarded winged-needle device that reduces the risk of getting
stuck with the needle. The defendants avoided getting stuck with claims 46-47
and 50-52 of '311 by proving invalidity, but JMS got jabbed $5 million for
infringing '311 claims 49, 53-54. Though long-winded in doing so, the CAFC (04-1620)
wholly concurred with the trial court.
Posted by Patent Hawk at 11:09 AM | Claim Construction
October 29, 2006
Still Rising
As
reported in
the
Patent Prospector last month, Ms. Yoon Ja Kim lost an appeal in enforcing her
patent,
RE36,355, against ConAgra.
Ms. Kim's admirable spunk is displayed herein by her comments regarding her
concerns.
Continue reading "Still Rising"
Posted by Patent Hawk at 1:19 PM | Case Law
October 27, 2006
International Evasion
The Supreme Court today granted certiorari for Microsoft in its appeal (from CAFC 04-1285) against patent infringement conviction of AT&T's RE 32,580. The issue is 35 U.S.C. § 271(f).
Continue reading "International Evasion"
Posted by Patent Hawk at 11:59 AM | Case Law
August 18, 2006
Tissue Issues
Cook
Biotech, exclusive licensee, and Purdue Research Foundation, owner of
5,554,389, sued ACell for infringement. In the appeal (CAFC
05-1458), there was
a significant issue of claim construction, an interesting insight into seeking
damages, and an applied corollary to the "all limitations" rule in figuring
infringement under the doctrine of equivalents.
Continue reading "Tissue Issues"
Posted by Patent Hawk at 12:33 PM | Case Law
August 10, 2006
State Immunity XI, Take 2
The
University of Texas sued 48 cell phone companies in the Western District of
Texas for infringing
4,674,112, which claims predictive typing. Tegic Communications, a
Washington state company that sells the software for 39 of the 48 companies,
filed for declaratory judgment in the Western District of Washington. The
University sought to dismiss the case in Washington on several grounds,
including state immunity from suit in federal courts under the 11th Amendment.
Case dismissed. Upon appeal, same result (CAFC
05-1553).
Continue reading "State Immunity XI, Take 2"
Posted by Patent Hawk at 10:16 PM | Case Law
August 9, 2006
Protecting its Own
By
the power of the XI Amendment to the Constitution, the United States indemnifies
its states. Protected by the Constitution, a state may infringe a patent without
practical remedy afforded the patent holder, the Federal Appeals Court
affirmed today (05-1440).
Continue reading "Protecting its Own"
Posted by Patent Hawk at 11:57 AM | Case Law
June 19, 2006
Depressing No-Go
The
Supreme Court turned away (05-489) an appeal by GlaxoSmithKline (v. Apotex) for
the
CAFC upholding an invalidity ruling on a GlaxoSmithKline patent for
Paxil®, an antidepressant. The CAFC had
ruled, "once a product is fully disclosed in the art, future claims to that same
product are precluded, even if that product is claimed as made by a new
process." The U.S. Solicitor General had declared the CAFC ruling correct.
Posted by Patent Hawk at 11:46 AM | Case Law
June 14, 2006
Game Call Totality
Primos
sued Hunter's Specialties for infinging
5,520,567 &
5,415,578, for a product used by "outdoor enthusiasts" to deceive wildlife.
Trial didn't go well for Hunter's: literal infringement, willfulness, inducement of infringement ('567), and infringement under the doctrine of
equivalents ('578). The appeal didn't go well either. [CAFC
05-1001]
Continue reading "Game Call Totality"
Posted by Patent Hawk at 12:56 PM | Litigation
June 12, 2006
Contract Dispute
Panduit sued HellermannTyton for infringing 5,998,732. They settled. Then HellermannTyton pushed Panduit's button with a modestly revised design of the original infringing product.
Continue reading "Contract Dispute"
Posted by Patent Hawk at 11:10 PM | Litigation
June 7, 2006
Solicitor General Deflated
Tom
Goldstein, representing Teleflex in the KSR v. Teleflex obviousness petition
before the Supreme Court, filed a
supplemental brief deflating the Solicitor General's (SG) certiorari
recommendation as
vacuous.
Continue reading "Solicitor General Deflated"
Posted by Patent Hawk at 1:18 PM | Case Law
June 1, 2006
Sludge Match
Liquid
Dynamics (LD) sued Vaughan Company
for infringing
5,458,414. In the first round, LD successfully appealed an erroneous claim
construction. Upon remand, a district court trial found Vaughan willfully
infringed, and then in a subsequent bench trial, trebled damages and awarded
attorneys fees because of "Vaughan’s behavior as a litigant," as well as then
issuing a permanent injunction. Naturally, Vaughan appealed (CAFC
05-1105).
Continue reading "Sludge Match"
Posted by Patent Hawk at 2:16 PM | Case Law
May 8, 2006
Privilege & Discovery
In the TiVo v. EchoStar case which TiVo recently won, the issues of document revelation with regard to opinion counsel & attorney-client privilege, and discovery of work-product documents, came into play. In a ruling May 4, the appeals court (Misc-803o) clarified: [1] if relying upon opinion counsel to avoid willful infringement, attorney-client privilege is completely waived for the relevant subject matter; [2] work-product discovery is limited to determining the "infringer's state of mind". The court stated: "The attorney-client privilege and the work-product doctrine, though related, are two distinct concepts and waiver of one does not necessarily waive the other." "[D]ocuments analyzing the law, facts, trial strategy, and so forth that reflect the attorney’s mental impressions but were not given to the client... [are] not discoverable."
Continue reading "Privilege & Discovery"
Posted by Patent Hawk at 11:22 PM | Case Law
January 24, 2006
Blunt Instrument
United
States Surgical appealed a lower court patent infringement decision in favor of
Applied Medical over
5,385,553, feeling a bit put out about the $64.5 million judgment for
enhanced willful infringement damages, the vig (known as "interest" to you non-mafioso), and attorneys fees.
Scalpel not in evidence, the CAFC (05-1149)
used a blunt instrument.
Continue reading "Blunt Instrument"
Posted by Patent Hawk at 11:18 AM | Damages
January 10, 2006
Process Component
The CAFC turned down a request for an en banc hearing in Union Carbide v. Shell (CAFC 04-1475o) to consider whether § 271(f) applies to method/process inventions, having previously decided it does. The dissent made a lot of sense.
Continue reading "Process Component"
Posted by Patent Hawk at 10:45 AM | Case Law
January 9, 2006
SeaChange Downstream
nCube
sued SeaChange for infringing
5,805,804. In a jury trial, SeaChange got nailed badly: SeaChange had to pay
double the damages for willful infringement, and two-thirds of nCube's attorneys
fees. So SeaChange asked for a new trial, was turned down, and so appealed (CAFC
03-1341); to no
avail.
Continue reading "SeaChange Downstream"
Posted by Patent Hawk at 11:24 AM | Litigation
October 26, 2005
Shopping Carted
Dane Industries sued Ameritek Industries for infringement of two patents - 6,220,379 and 5,934,694, regarding a vehicle that retrieves shopping carts. Dane held the patents, but the inventor went to work for Ameritek.
Continue reading "Shopping Carted"
Posted by Patent Hawk at 10:36 AM | Case Law
September 7, 2005
Top Secret
5,286,129,
owned
by Crater Corp., claimed a conduit coupler for various uses, including
electrical conduits and fluid flow systems. Lucent Technologies approached
Crater to share trade secret information about the Crater coupler. The two
companies coupled on the coupler, until the relationship came uncoupled.
Breaching the agreement with Crater, Lucent produced an infringing coupler, which it sold to the U.S. Navy. Protecting Lucent, the Navy had the whole business declared a state secret.
Posted by Patent Hawk at 6:44 PM | Case Law
August 10, 2005
Trying To Tie With a Terminal Disclaimer
Par Pharmaceutical filed an application with the FDA to market a generic version of Xalatan, for treating glaucoma, a drug patented by Pharmacia (5,422,368 & 5,296,504). So Pharmacia sued for patent infringement. [ Pharmacia v. Par Pharmaceutical, Fed. Cir. 04-1478, August 10, 2005 ]
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Posted by Patent Hawk at 5:12 PM | Case Law | Comments (1)
July 5, 2005
Prosecution Estoppel - A Sea Change
Seachange sued C-COR for patent infringement (5,862,312) for a video server system. The district court found for Seachange, and the Appeals Court (CAFC) (04-1375), in a sea change finding of non-infringement, tilted for C-COR, based upon prosecution estoppel that significantly limited the scope of the asserted claim.
Continue reading "Prosecution Estoppel - A Sea Change"
Posted by Patent Hawk at 12:00 AM | Case Law
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