July 9, 2014
The U.S. courts have done their best to limit patent scope and validity within the past decade, in reponse to corporate complaint. The sensible formula of writing a specification in problem-solution form turned into a formula for obviousness without evidence after KSR. In X2Y Attenuators v. ITC (2013-1340), the CAFC affirms another trick: terming a feature as "essential" in the disclosure limits any claim to that feature to the embodiment specifically disclosed. X2Y also created a corrupt precedent, in allowing any claim limitations in earlier applications to leak into a later CIP without claim construction, to argue invalidity. With the courts corrupted to mega-corporate interests, the broken U.S. patent system continues to squash invention by inventors and small companies with caprice.
Posted by Patent Hawk at 2:11 PM | Claim Construction
April 14, 2014
In Univ. of Pittsburgh v. Varian Medical (CAFC 2012-1575), CAFC Judge DYK caught cohorts Lourie and O'Malley (the majority) out for sloppy work product. A means-plus-function claim element was given cursory treatment by the majority, completely missing the meat of the claim element in construction, which Judge DYK pointed out. This is typical of the random competence by the CAFC, where the law is shambolic.
Posted by Patent Hawk at 12:40 AM | Claim Construction
February 27, 2014
Claim Construction Corruption
In the 1998 Cybor case, the CAFC granted itself the power to reconstrue claims de novo. That ruling has repeatedly raised controversy. In en banc rehearing of Lighting Ballast v. Philips, a majority of six reaffirmed the might of the CAFC to do as it damn well pleased. Judge Newman wrote the tortured but cogent majority opinion. Four judges dissented, including Chief Judge Rader. Their complaint: "construing the claims of a patent at times requires district courts to resolve questions of fact." Of course it does. But it would difficult to put the fix in if the fix wasn't baked in to begin with. The CAFC can't trust all the circuit court judges to be as corrupt as it is.
Posted by Patent Hawk at 3:08 AM | Claim Construction
January 17, 2014
Arrogant conceit is a common occupational hazard of Federal district court judges; what the appeals court more benignly observes as "an ambiguity on the grounds for decision." So it was with Judge Donovan W. Frank in Minnesota, who appears to know nothing about patent law. More particularly, "the stipulated judgment provided no factual context for the claim construction issues presented by the parties." Frank flunked by reading the spec into the claims, and by not knowing what a system claim was. On appeal, CAFC chief Judge Rader condescends to point out blackletter law: "a system claim generally covers what the system is, not what the system does." (Superior Industries v. Masaba (CAFC 2013-1302))
Posted by Patent Hawk at 2:09 PM | Claim Construction
October 9, 2013
In Kruse v. Volkswagon (CAFC 2012-1352), the corrupt courts couldn't cotton to a decent claim construction. The disputed term went to combustion. In dissent, CAFC Judge Wallach observed blackletter law with: "The construction that stays true to the claim language and most naturally aligns with the patent's description of the invention will be, in the end, the correct construction." In this case, the CAFC construction violated every principle. Wallach: "A construction that excludes disclosed embodiments, violates the doctrine of claim differentiation, and invalidates a dependent claim cannot stay true to the claim language and the written description of the invention."
Posted by Patent Hawk at 1:58 AM | Claim Construction
August 26, 2013
On the Bead
SinkMedica sued Histogen for infringing its dermatological patents; specifically, patent claims to culturing cells in three dimensions (6,372,494 & 7,118,746). The district court decided that to do so on beads was excluded from claim scope, because the patents mentioned this technique through prior art references, and somewhat disparagingly so. Two CAFC judges on a panel (Clevenger & Prost) went along on appeal (CAFC 2012-1560). In dissent Chief Judge Rader was frustrated, finding "the four references to beads relied on by this court are ambiguous," not the "clear and unmistakable disavowal" that case law requires.
Posted by Patent Hawk at 2:05 AM | Claim Construction
August 7, 2013
3M v. Tredegar (CAFC 2012-1241) illustrates the inanity and caprice that comprises U.S. patent law. 3M's claims went to a particular laminate structure. The PTO grants Byzantine claim language, and the courts give it a pass by studiously ignoring statute requiring definiteness. In his panel opinion, Judge Plager whined that this was "an extreme example of problems with claim drafting and their ensuing consequences." Consensus was barely achieved in the process of partly overturning the district court's construction.
Posted by Patent Hawk at 1:06 AM | Claim Construction
April 4, 2013
In Saffran v. Johnson & Johnson, the CAFC (2012-1043) satisfied its plutocratic bias, relieving J&J of a pesky infringement by narrowing claim construction from that emanating from esteemed Judge T. John Ward in the Eastern District of Texas. The interesting facet in this case was a reminder that relying upon means-plus-function claim language is always fraught with the danger of inadequate disclosure. "'[a] patentee cannot avoid providing specificity as to structure simply because someone of ordinary skill in the art would be able to devise a means to perform the claimed function.' Blackboard, Inc. v. Desire2Learn, Inc., 574 F.3d 1371, 1385 (Fed. Cir. 2009). Under § 112, ¶ 6, the question is not what structures a person of ordinary skill in the art would know are capable of performing a given function, but what structures are specifically disclosed and tied to that function in the specification."
Posted by Patent Hawk at 1:30 PM | Claim Construction
April 25, 2012
In Zapmedia v. Apple, Zapmedia tried to backpedal from prosecution estoppel (to overcome prior art) in the family of the asserted patent: 7,343,414. Apple's law firm set up solid arugments of claim construction and non-infringment that the courts easily agreed with. (CAFC 2011-1546): See TIP Sys., LLC v. Phillips & Brooks/Gladwin, Inc., 529 F.3d 1364, 1371 (Fed. Cir. 2008) ("[P]rosecution history of a related patent application may inform construction of a claim term, when the two applications are directed to the same subject matter and a clear disavowal or disclaimer is made during prosecution of the related application.").
Posted by Patent Hawk at 8:46 PM | Claim Construction
April 3, 2012
In Advanced Fiber Technologies v. J&L Fiber Services, NY Senior Judge Lawrence E. Kahn had some senior moments during claim construction. Further innaity ensued on appeal. The CAFC went along with construing a term that was not in the claims, but in the district court's claim construction. "In those cases in which the correct construction of a claim term necessitates a derivative construction of a non-claim term, a court may perform the derivative construction in order to elucidate the claim's meaning." There was no such necessity, as the non-claim term in dispute inappropriately introduced a claim limitation that was not in the claims. Hal Wegner commented: "the court has once again demonstrated the difficulty if not impossibility of correctly predicting claim construction."
Posted by Patent Hawk at 6:29 PM | Claim Construction
February 5, 2012
Craig Thorner asserted his tactile feedback video game controller patent, 6,422,941, against Sony. New Jersey Chief Judge Garrett E. Brown, one of vast majority of corrupt judges on the Federal bench, wasn't about to let Sony get shaken down by some troll inventor. Mitt Romney, this country's next political CEO, reminds that corporations are people too, and they need the state's protection from the rabble that passes for inventive animal spirits. The plutocracy must be preserved, but the courts should not be so brazenly unjust that the wage slaves can smell it for the stink that it is. In claim construction, Judge Brown was too blatant, so the CAFC had to step in to correct the crunch of his judicial jackboot, though with a nod and wink, that the judge's goosestep was marching in the right direction.
Posted by Patent Hawk at 9:11 PM | Claim Construction
January 24, 2012
Dealertrack sued Huber and Finance Express, along with other auto dealers, for infringing its network-based credit application processing patents: 6,587,841 & 7,181,427. A biased Judge Guilford in Central California inexcusably construed "network," which had been broadly disclosed, as "not including the internet." Defendants drove away with non-infringement. Other inanity ensued, only some of which was corrected by the CAFC on appeal.
Posted by Patent Hawk at 7:43 PM | Claim Construction
December 22, 2011
Consider an apparatus claim to an "assembly," with structures "bonded" to each other at surfaces (4,884,631). One would construe the claim to be of a single thing. But the courts are disingenuous, exercising bias by nuanced misconstruction. In this case, that the claimed assembly "must be separate parts," when the claim clearly states otherwise. The asserting plaintiff: a mere patent holder. The defendants: household name corporations Sony & Lenovo, neither American, but both large corporations facing a court-despised species: "patent troll." Now there's an excuse for injustice.
Posted by Patent Hawk at 9:33 PM | Claim Construction
November 4, 2011
Means On The Wind
Typhoon Touch sued Dell, Apple, and other corporate powers over its software keyboard patents: 5,379,057 & 5,675,362. The plutocratic protection afforded by the courts insured that Typhoon would run out of wind in its assertion, and so it did. The easiest trip-up is claim construction. Sure enough, all it took to take the Typhoon down were a few soft keystrokes. In the finale, the CAFC couldn't resist whipping up self-contradictory case law on means-plus-function claim elements.
Posted by Patent Hawk at 9:44 PM | Claim Construction
October 6, 2011
About the only time the CAFC is on the square is when two competitors duke it out. So it was with IGT v. Bally (CAFC 2010-1364, -1365). Then again, with Judges Newman and Moore on a panel, one might expect a bit of justice. The claimed invention were slot machines with a patented bonus payout. Lord knows that sort of thing deserves 20 years' protection for genius invention. Ironic comedy in that the major event was figuring out how to construe "one" for a one-armed bandit. The conclusion: "one" can be more than one, but not if the claim reads "only one." Judges tend to be mathematically as well as logically challenged. At least they figured out that "predetermined" and "predefined" were pretty much the same thing. The payout from the courts: some claims were infringed, some not. CAFC affirmed.
Posted by Patent Hawk at 10:29 PM | Claim Construction
September 10, 2011
A skittish Markem-Imaje sought declaratory judgment from 7,150,572, which claims a transfer printing device. It got a summary judgment of non-infringement. '572 owner Zipher appealed, where CAFC Judges Clevenger and Linn got chided by Judge Newman for illiteracy, a remarkable feat considering the extensive parsing of the spec in the majority opinion. Another exercise in extra-legal bias by this corrupt court.
Posted by Patent Hawk at 9:27 AM | Claim Construction
August 23, 2011
6,826,298 claims an automated semiconductor wafer defect inspection system. Owner Camtek asserted against August Technology, winning a $6.8 million award for lost profits and an injunction. August Tech appealed. An interesting claim construction issue over a wafer being wafers is walked all over by the CAFC extending the § 102(b) on-sale bar to cover eventual invention.
Posted by Patent Hawk at 4:47 PM | Prior Art
August 11, 2011
North Georgia Judge Thomas Thrash is a claim construction curmudgeon. 6,587,550 claim 13, an email apparatus claim, reads "the computer being programmed to detect analyze the electronic mail communication." Oops. What else could it be but "detect and analyze"? After all, you can't go dropping verbs for claim construction. Thrash trashed about, spooked to fix it, so he ruled the claim indefinite. The CAFC patched it and pitched it back.
Posted by Patent Hawk at 10:02 PM | Claim Construction
July 9, 2011
Somewhat subtlety, but most assuredly corruptly, the courts are on a continuing crusade to limit patent protection. In the past four years, the capriciously subjective Obzilla (KSR) has trampled many patents, where an objective evidentiary standard would have left them standing. In this episode, Retractable Technologies v. Becton, the crusade against patent enforcement continues, but from a different angle, with the CAFC distorting well-settled claim construction precedent to squeeze the scope of claims.
Posted by Patent Hawk at 1:30 PM | Claim Construction
June 27, 2011
American Calcar (ACI) sued Honda for infringing 15 car computer patents. The number of patents asserted hardly made up for spotty quality. Only one was found valid and infringed at district court. Nine were appealed over validity, infringement, and inequitable conduct. The whiff of impropriety by ACI, while not legal damnation, was enough to bias the courts, and, in the end, let Honda drive on, patent toll free.
Posted by Patent Hawk at 5:56 PM | Infringement
June 4, 2011
Knowles Electronics put MemsTech before the ITC because "the importation and sale of certain silicon microphone packages violated § 337 of the Tariff Act of 1930 as amended, 19 U.S.C § 1337." In other words, patent infringement. Knowles' patents were found valid and infringed by MemsTech's importation. MemsTech appealed, in a matter of interest only for a review of crusty case law.
Posted by Patent Hawk at 3:13 PM | ITC
April 27, 2011
The beauty of intellect is in connecting the dots: perceiving holistically. Only rarely does context not matter. Claim construction is exemplary. A lovely example of eye for detail coupled to holistic awareness arises courtesy of Western Wisconsin Magistrate Judge Stephen L. Crocker, who, in the interest of judicial economy, keeps his eye on the prize.
Posted by Patent Hawk at 1:08 PM | Claim Construction
April 24, 2011
Claim construction is a legal greased pig: hard to tackle. Grabbing it invariably results in a lot of squealing. Creative Internet Advertising sued Yahoo! over 6,205,432, which claims an instant squealing program. The litigation had lots of claim construction squealing about antecedent basis and sequence. A jury found '432 infringed and not invalid. "The district court enhanced the jury's damages award and ordered an ongoing royalty despite Yahoo!'s efforts to design around the patent." Yahoo! squeals. Again. And yet more squealing on appeal: a CAFC panel judge joins in.
Posted by Patent Hawk at 2:45 PM | Claim Construction
April 23, 2011
John Larry Sanders got a couple fertilizer patents. The child, 6,210,459, was asserted against Mosaic and Cargill. Oddly, in two separate instances, different claim terms were construed to be the same. Also odd was the district court letting Mosaic amend its pleadings to add an inequitable conduct charge. "The parties stipulated to noninfringement under the court's claim construction." Sanders appealed for some patent fertilizer. It may have gotten more than it wanted.
Posted by Patent Hawk at 4:44 PM | Claim Construction
April 22, 2011
5,411,474 has bloat down to a science. "To create more working space during laparoscopic procedures, surgeons inflate the abdominal cavity with gas... The claimed apparatus aims to deliver gas 'within 2°C of the predetermined temperature.'" '474 owner Lexion Medical sued Northgate for infringement, and won on summary judgment. This in the second round, after a round trip to get claim construction cleared up at the CAFC in round one.
Posted by Patent Hawk at 10:38 PM | Claim Construction
March 22, 2011
Real Estate Alliance (REAL) faced a declaratory judgment action by a large herd of realtors, who were very afraid of 4,870,576 and CIP 5,032,989, claiming "a graphical user interface for finding available real estate properties." A bum claim construction led to stipulation of non-infringement. Appeal got REAL something better.
Posted by Patent Hawk at 12:18 PM | Claim Construction
March 21, 2011
5,355,964 claims a pile driver. In an obscure litigation strategy, owner American Piledriving Equipment drove infringement suits around: in 7 different districts. Each had different claim constructions. Two were on appeal: "Eastern District of Virginia and the Northern District of California each granted summary judgment of noninfringement in favor of their respective defendants, despite adopting different constructions of two key claim terms." Another case where the CAFC cleans up from random lawyering, and a modest miss by a district court.
Posted by Patent Hawk at 2:09 PM | Claim Construction
March 9, 2011
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 24, 2011
Claim Construction Tumor
In balloon brachytherapy, a balloon is inserted into the body proximate to a tumor. The balloon has a lumen, acting as a radiation source to fry the tumor. 6,482,142 claims a device for performing balloon brachytherapy. '142 owner Hologic sued SenoRx for infringement. Action at the district resulted in prior art invalidity based upon claim construction. On appeal, a wrong call by a CAFC panel majority points to a chronic disease in tolerating ambiguity.
Posted by Patent Hawk at 9:55 PM | Claim Construction
February 19, 2011
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.
Posted by Patent Hawk at 3:32 PM | § 112
January 27, 2011
Warsaw Orthopedic successfully sued Globus Medical for infringing 6,530,929 and 7,008,422, which claim a spine stabilization device. On appeal, the claim construction was found stable, as was infringement, but the broad construction shook loose anticipation JMOL.
January 26, 2011
6,000,024 claims a binary tree parallel computing system. A root node distributes problem portions to tree nodes, each with their own processing elements. Results are passed back up the tree. '024 owner Fifth General Computer sued IBM for infringing '024. All hinged on what was at root.
Posted by Patent Hawk at 2:12 PM | Claim Construction
January 24, 2011
5,220,919 claims a booze detector which sniffs the air near the skin of the lubricated one. Owner AMS sued four for tippling infringement. The district court, a little tipsy in its claim construction, nonetheless walked a straight line to noninfringement. The appeals court sobered things up.
January 23, 2011
5,287,270 claims a computerized billing system, ostensibly for phone calls. Who uses it? Patent owner Centillion thought Qwest did, so it sued for infringement. The district court summarily found otherwise, because "no single party practices all of the limitations of the asserted claims." A phone user used the front end, while Qwest handled the back end. Appeal dialed it in differently.
January 20, 2011
Two concomitant litigations between Arlington and Brideport over 5,266,050 & 6,521,831, in the same district court, produced different constructions of the same claim term. The later case (Arlington II) construed "spring metal adaptor" ('050) and "spring steel adaptor" ('831) as requiring a "split" that the earlier construction had not. What sprung from construction was noninfringement. Until appeal.
January 10, 2011
St. Clair sued Fuji Photo Film and seven other digital camera makers for infringing four digital photo format patents: 5,138,459; 6,094,219; 6,233,010; and 6,323,899. The district court found infringement based upon claim construction. The negative of that was found on appeal.
December 24, 2010
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 21, 2010
Tessera designs semiconductors, and thereby manufactures patent litigations. This episode emanates from the ITC, in an action against several parties: Spansion, Freescale, ATI, STMicro, and Qualcomm. Motorola settled. 5,852,326 and 6,433,419, going to a particular semiconductor packaging, were asserted. After typical bureaucratic discord, the ITC found the patents valid and infringed. The inevitable CAFC appeal inevitably went to claim construction, infringement, and validity.
Posted by Patent Hawk at 11:36 PM | ITC
December 20, 2010
Bollocks to the Dollops
Akamai Technologies, with MIT riding shotgun, asserted: 6,108,703; 6,553,413; & 7,103,645 against Limelight Networks. The patents generally claim delivering content dollops that go along with serving a web page. The district court judge overturned the jury's finding of joint infringement of the asserted '703 claims. That was one for appeal by Akamai, along with claim construction tiffs that led to non-infringement on the other patents. Joint infringement requires that the major infringer controls the minor infringer (an agent that is "contractually obliged"), or it'll blow the joint.
Posted by Patent Hawk at 1:49 PM | Infringement
December 11, 2010
To limit blood loss during surgery, in a modern variant of cauterization, argon gas-enhanced electrosurgical instruments are used to zap tissue. Three competitors tried to zap each other with their patents: ConMed (4,781,175), Canady (5,207,675) and ERBE (5,720,745). "The patents have been the subject of a variety of litigation since their issuance." This episode is on non-infringement of '745 by Canady by way of claim construction.
Posted by Patent Hawk at 10:23 PM | Claim Construction
November 5, 2010
Talk about a plaintiff's dream. Finjin sued Secure Computing and Webwasher for infringing anti-malware scanning software patents 6,092,194; 6,804,780; and 7,058,822. Defendants counterclaimed 6,357,010 and 7,185,361. "A jury found that none of the patents was invalid, that Finjan did not infringe Defendants' patents, and that Defendants willfully infringed all asserted claims of Finjan's patents. The district court awarded damages to Finjan, enhanced the award under 35 U.S.C. § 284, and imposed a permanent injunction against Defendants." Appeal only slightly tarnished the victory.
November 2, 2010
AstraZeneca sought and got a preliminary injunction against Apotex, which was hankering to launch a generic version of the asthma drug Pulmicort. Apotex did manage to invalidate "kit" claims of asserted 6,598,603 and 6,899,099. Appeal left things as at district court, with dissent on the injunction, owing to a different take on validity.
October 13, 2010
The Invention Zone
6,730,817 claims a process for making a refrigerant gas that won't deplete atmospheric ozone and turn Earth into more of a baking oven than humans are busy otherwise doing. Owner Solvay sued Honeywell for infringing '817. For their pains, Solvay had some asserted claims found infringed, but "invalid under 35 U.S.C. § 102(g)(2) because Honeywell was a prior inventor." Appeal got the invalidity ozone depleted from district court summary judgment.
October 3, 2010
Ordinary & Extreme
The childishness of corporations is no better illustrated than in patent litigation, where, instead of coming to cross-license, the little boys fight it out in court. For their fat fees, lawyers egg this sort of thing on. So it was with Extreme Networks and Enterasys. Then again, what would you expect of a company whose imagination runs so vacant as to name itself "extreme." In this battle, Enterasys held the short straw at district court: asserted 5,195,181 & 5,430,727 were found not infringed in summary judgment. Enterasys's expert excluded from testifying was salt in the wound. Appeal was but slight relief from the grief.
September 23, 2010
7,156,100 claims a mask stuck down the throat, to deliver anesthetic gas during surgery, and provide an unobstructed airway. The poetically named Lanryngeal Mask Company (LMA) sued Ambu for infringement. For that, "all claims were invalid for lack of written description under 35 U.S.C. § 112" in summary judgment, along with noninfringement. Gasping for air, LMA appealed. At issue was claim construction, and whether the inventor had acted as his own lexicographer. "A patentee may act as its own lexicographer and assign to a term a unique definition that is different from its ordinary and customary meaning; however, a patentee must clearly express that intent in the written description."
September 21, 2010
Shallow End of the Pool
Philips, Fujitsu, and LG Electronics are in a patent pool that claims wireless communication protocol standards. Netgear was the target of their "licensing" campaign. For summary judgment, "the plaintiffs argued that by simply complying with the standard, Netgear necessarily infringed the asserted claims." The district court found the hand-waving assertion of infringement off-putting, and denied the motion. On to appeal.
Posted by Patent Hawk at 3:06 PM | Infringement
September 13, 2010
6,986,764 claims "photoselective vaporization of tissue," though that phrase appears only in the preamble. A district court judge found the patent not infringed because the accused product didn't do it. A CAFC majority reversed, figuring the preamble was not a limitation. Judge DYK dissented, suggesting that such claim ablation is a violation.
August 14, 2010
Dr. Gregory W. Baran invented a biopsy sampling needle with spring-loaded action to pull a plug from a corpse. This innovation netted the doctor 5,025,797 and CIP 5,400,798. Dr. Baran decided to plug Medical Device Technologies, AMT Svergie AB and Gedon AB for infringement. Claim construction of "detachable" and "releasably" forced Dr. Baran to stipulate noninfringement for '798 asserted claims. '797 went down to noninfringement in summary judgment. The only thing left of Dr. Baran's case after appeal was an autopsy of lousy lawyering by the plaintiff.
Posted by Patent Hawk at 4:10 PM | Claim Construction
August 11, 2010
Tracking & Waiving
Enovsys sued Sprint Nextel for infringing 5,918,159 and 6,560,461, which claim tracking mobile phones. Undisputed claim construction led to disputed infringement. "After a nine-day trial, the jury found Sprint Nextel infringed both patents and awarded approximately $2.78 million in damages." Sprint Nextel appealed.
Posted by Patent Hawk at 9:30 PM | Infringement
August 7, 2010
Ring Plus asserted 7,006,608 against Cingular. '608 generally claims generating and delivering messages while the phone is ringing. This includes replacing or overlaying the ringback sound. Claim construction "determined that the steps of the asserted claims must be performed in a specific order." That led to noninfringement. But the thing that really rung Ring Plus's bell was finding inequitable conduct. The squeeze on the sleaze didn't hold up on appeal, but only because the prosecutor got the benefit of a doubt that shouldn't have been there.
Posted by Patent Hawk at 1:08 PM | Inequitable Conduct
August 5, 2010
Chronic excessive throat mucus is a wage of sin: bad diet, pudgy lifestyle. Drug companies make their wages off such sin. "Guaifenesin is an expectorant used to thin, loosen, and help expel mucus that causes congestion. It was first approved by the Food and Drug Administration (FDA) in 1952." But it's still patented in various forms. 6,372,252 claims sustained release, as if that were gee-whiz chemistry. Adams sued Perrigo after Perrigo filed an ANDA for an extended mucus reducer. Herein, the significance of equivalence.
Posted by Patent Hawk at 10:06 PM | Claim Construction
August 4, 2010
Merial got a line on a virus infecting swine, and patented it: 6,368,601. Intervet developed a vaccine for treating the virus. Then Intervet filed a declaratory judgment action against Merial. The district court ruled noninfringement in summary judgment based on claim construction of six disputed terms. Merial squealed and appealed. Dissent by Judge DYK raised the specter of a rehearing, as to whether an isolated DNA sequence is patentable subject matter (§101).
July 29, 2010
Becton tried to stick Tyco with infringing syringe patent 5,348,544. It did. But Tyco got the district court judge to grant a new trial on infringement, because Becton changed its infringement theory at trial. Tyco lost the second trial. Tyco appealed. The CAFC plunged into contentious claim construction.
July 6, 2010
Telcordia sued Cisco for infringing network data transfer patents 4,893,306; 4,835,763; and RE36,633. '306 was knocked out by noninfringement in summary judgment. '763 and '633 ran the gauntlet through trial to a $6.5 million damages award. The district judge then tacked on prejudgment interest, an accounting for interim sales, and "ordered the parties to negotiate the terms of a royalty that would apply to the accounting and to post-judgment sales." Telcordia appealed the '306 claim construction. Cisco cross-appealed '306 and '763 validity, as well as the post-trial damages award and ongoing royalty negotiation dictate.
June 6, 2010
Japan-based Funai Electric, by virtue of 6,115,074, owns a piece of the U.S. digital TV broadcast standard. "At the suggestion of the lead inventor of the '074 patent and after the '074 provisional patent application was filed, the ATSC adopted the A/65 Standard... The Federal Communications Commission ("FCC") mandated that, effective May 29, 2008, transmission of digital broadcast television signals comply with the ATSC A/65 standard. 47 C.F.R. § 73.682(d). Furthermore, beginning on March 1, 2007, all digital televisions ("DTVs") sold in the United States must be capable of receiving broadcasts compliant with the ATSC A/65 Standard. See 47 C.F.R. § 15.117(a), (b), (h), (i)." The ITC was the venue for this inevitable patent battle. Here we tune into another show of how devilish claim construction can be.
Posted by Patent Hawk at 8:16 AM | Claim Construction
June 4, 2010
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.
June 2, 2010
Haemonetics sued Fenwal for infringing centrifuge patent 6,705,983. Litigation whirled away all but claim 16 as asserted. District court claim construction defined a "centrifugal unit" as a vessel, even, though the claim preamble read a "centrifugal unit comprising a centrifugal component and a plurality of tubes." '983 was found not invalid and infringed, resulting in $11.3 million in lost profits damages and $4.3 million in reasonable royalty damages. Appeal paid more attention to the preamble. Plus, a new spin to the old standard of §102 ¶2.
May 24, 2010
Patent Slips on Non-Slip Surface
Microthin.com sued SiliconeZone computer mouse pad patents 5,942,311 & 5,997,995, which claim "a thin, non-slip mat or pad made of plastic" and a method of making the same, respectively. After claim construction, the district court, by summary judgment, found the asserted claims, claim 1 of each patent, anticipated by 5,738,325. Microthin.com appealed construction of the claim term "non-slip," wanting the term to include "not sticky."
April 29, 2010
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.
April 10, 2010
Close-call patent litigation cases are not unusual, but many are exercises in denial. In this episode, Bid for Position bid for doggedness over 7,225,151, which claims a method for conducting a continuous auction. Having lost on non-infringement by a clear-cut claim construction, appeal makes Bid's grasping lawyers look doggedly witless. The not-so-thin line between advocacy and asininity is traversed again.
Posted by Patent Hawk at 6:02 PM | Claim Construction
March 31, 2010
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
March 30, 2010
Power-One sued Artesyn for infringing power supply regulator patents, particularly monitoring point-of-load (POL) regulators. A permanent injunction resulted, followed by Artesyn's appeal over claim construction, namely, the term "POL regulator", with a side of obviousness. The CAFC turned both aside.
Posted by Patent Hawk at 12:38 PM | Claim Construction
March 29, 2010
Definitely Woolly Bully
Enzo sued Applera (and Tropix) for infringing six patents "directed to various techniques for labeling and detecting nucleic acids, such as DNA and RNA." Enzo conceded non-infringement of 5,082,830 based upon claim construction. Applera nailed three (5,328,824; 5,449,767; 5,476,928) for indefiniteness and anticipation. The other two washed away as these four went to appeal. On appeal, "substantially" is found definite as §112 ¶2 metes and bounds meets ground round.
Posted by Patent Hawk at 1:06 PM | Claim Construction
March 25, 2010
"In July of 1990, Jeffrey and Claudia Griffin conceived of the idea of using a scratch-off label to mark beverage containers and cups so that attendees of a gathering or party could keep track of their beverage cups." And so they got 5,154,448. Michael Marrin formed Upardi to make labels, and containers with labels, under license of '448. "The relationship between Michael Marrin and the Griffins broke down swiftly, due primarily to differences in opinion about the appropriate payment obligations under the license." The Griffins terminated the license. Marrin filed a DJ, and the Griffins countered with complaint of willful infringement. Summary judgment found the patent invalid as anticipated, based upon the claim preamble not carrying any weight. The Griffins appealed.
March 5, 2010
5,955,955 claims a computer drive bay fan, meant to cool the hard drives right in their own living room. '955 owner Comaper sued Antec for infringement. Trial found Antec willfully infringing some claims. Some claims were obvious to the jury, others validly novel. Appeal found that "irreconcilably inconsistent." The CAFC resolution was to define analogous art as either "from the same field of endeavor," or "reasonably pertinent to the particular problem with which the inventor is involved." Upon that the CAFC created its own reconcilable inconsistency.
February 27, 2010
Trading Technologies sued eSpeed and Ecco for infringing 6,772,132 & 6,766,304, which go to displaying "static price levels" on a computerized board for commodity trading. One service product infringed, but others literally did not, and applying the doctrine of equivalents was proscribed. Defenses to indefiniteness and inequitable conduct went nowhere, as did on-sale bar (§ 102(b)) based on a provisional priority date. Affirmation on appeal toted up dynamic case law quotes, not on sale, but ones that litigators must buy.
February 19, 2010
"Pergo and Alloc are direct competitors in the field of laminate flooring. Pergo owns the 6,421,970 and 6,397,547 patents, which relate to mechanical joints that enable flooring panels to be joined without the use of glue or other fasteners, such as nails or metal clips. Alloc brought a declaratory judgment action against Pergo seeking a declaration that the '970 and '547 patents were invalid, unenforceable, and not infringed. Pergo counterclaimed for infringement of both patents." Both patents were found "invalid on multiple grounds and not infringed." Having achieved its goal, Alloc then overreached to inequitable conduct, which the district court denied.
February 7, 2010
SEB sued Montgomery Ward and others for infringing 4,995,312 by selling a cheap deep fryer manufactured by Pentalpha. Speedy justice meant that getting to trial took a mere seven years, whereupon a jury found willful infringement, awarding $4.65 million in damages, which the district court judge hence cut by $2 million. The district court had awarded enhanced damages and attorneys' fees to SEB, but then snatched them back in light of the 2007 CAFC Seagate ruling that willfully gutted willfulness. Herein, a tale of disingenuity, and an appeal decision greasing understanding of inducing infringement.
January 22, 2010
Catch Curve owns a family of five fax patents, the parent of which is 4,994,926. The patents "patents focus on the use of a computer-based device known as a 'store and forward facility,' or SAFF." A SAFF can forward a fax over telephone lines to a fax machine or to another SAFF. Catch Curve sued Venali with its five patents. A narrow claim construction resulted in requiring the use of the facsimile protocol, and that transmission was over a switched telephone network. Caught out, Catch Curve curtailed its assertion, but lost in summary judgment on noninfringement, leading to a last gasp transmission to the appeals court.
Posted by Patent Hawk at 1:28 PM | Claim Construction
January 15, 2010
5,689,094 claims personal recognition that tells an elevator where to go. Patent owner Schindler Elevator tried to get a lift over Otis Elevator, but Otis got a summary judgment of noninfringement by construction of claim, which was a shame, because, on appeal, the district court took the blame. The CAFC told the district court where to go, while leaving the final destination indefinite.
Posted by Patent Hawk at 10:32 PM | Claim Construction
December 22, 2009
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.
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.
December 8, 2009
Source Search Technologies (SST) sued LendingTree over 5,758,328, which claims an online vending system employing request for quote (RFQ) posting to select potential vendors, to which the vendors respond. "The '328 patent claims to solve the "too much" or "too little" information problem commonly associated with running searches over a network or system." The asserted claims were found infringed but obvious, thus invalid, in summary judgment. The appeal, narrowed to a single claim (14), let the CAFC panel reiterate its caution to district courts: be not hasty in granting summary judgment if the scent of "genuine issues of material fact" is in the air.
October 2, 2009
Edwards Lifesciences sued Cook over four patents claiming intraluminal grafts to treat aneurisms. The claimed invention was construed to require a "malleable wire," which the accused products lacked, having instead "self-expanding wires." Hence non-infringement. In summary judgment. Affirmed on appeal because the specification narrowly disclosed the claimed invention, which the prosecution history corroborated.
September 24, 2009
Kara Technology owns 6,505,179 and 6,505,179, claiming verifying the authenticity of documents, such as postage stamps and airline tickets. Kara sued erstwhile business partner Stamps.com for infringement. Kara got a bad claim construction and lost at trial. And so, from the CAFC, another reminder about stamping claims with undue limitations.
Posted by Patent Hawk at 11:00 PM | Claim Construction
September 14, 2009
Lydall sued Federal Mogul for infringing RE39,260. "The '260 patent is directed to flexible insulating shields that can be used for thermal and acoustic insulation." It came as no consolation that there was no insulation from a claim construction that rendered the assertion a dereliction.
Posted by Patent Hawk at 12:38 AM | Claim Construction
September 9, 2009
Carpenter Ron Nystrom has been trying to beam Trex and others with 5,474,831, claiming a wood flooring. In his first suit against Trex, he lost on claim construction, appealed, got a remand, but had waived equivalents, and so the case fell to the floor. So Nystrom filed a second suit. "In this suit, Nystrom based his infringement claim solely on the doctrine of equivalents."
Posted by Patent Hawk at 12:02 PM | Claim Construction
September 3, 2009
Martek and Lonza vend a health supplement made "by extracting lipids from fermented microorganisms - specifically certain microalgae." Martek owns patents it asserted against Lonza: 5,340,594; 5,698,244; 6,410,281; and 6,451,567. Some claims were found infringed in district court, and thereupon the inevitable appeal. Lonza attacked priority date by way of parent enablement; fought the finding of infringement via questionable testing; argued prior invention with uncorroborated evidence; and tried to clobber the claim construction using the file wrapper as a club. Meanwhile, Martek had its own appeal query: what's an animal?
July 30, 2009
Wavetronix sued EIS for infringing its traffic monitoring patent: 6,556,916. On summary judgment, '916 was found not infringed. Wavetronix appealed, begging the court to construe a crucial term that was never construed in the first place, as the Utah district court never entered a claim construction order. The CAFC reluctantly agreed to construe the claim term, and after doing so, affirmed non-infringement.
Posted by Patent Hawk at 7:45 PM | Claim Construction
July 27, 2009
Was it pitiable prosecution and excrescent examination, or just deviously scrappy litigation? Blackboard's 6,988,138, claiming an Internet education system, got erased by Desire2Learn on appeal. Indefiniteness for lacking a backing structure for a means-plus-function limitation, and a devious claim construction gone awry, left Blackboard with a failed assertion.
Posted by Patent Hawk at 4:45 PM | Claim Construction
July 20, 2009
Off the Shelf
Saint-Gobain sought declaratory judgment of noninfringement and invalidity over refrigerator shelf patents owned by competitor Gemtron. Gemtron counterclaimed and ended up as plaintiff. The dispute came down to a single limitation in a single claim, over when the claimed invention had the glass panel shelf bottom snap into the frame. The answer: no set time.
June 24, 2009
Peter Hochstein and Jeffrey Tenenbaum scored one against Microsoft in their Xbox patent match, ongoing since 2004. East Michigan Judge Paul D. Borman has adopted a critical claim construction determined by his special master in the case. Claim 39 of 5,292,125 involves a communication circuit. Microsoft wanted a non-infringement knockout, construing the circuit within a particular configuration which it does not employ. The special master didn't find any such narrowing limitation in the claim. Looks like this one is going down to the wire, with Microsoft outboxed.
Posted by Patent Hawk at 8:47 PM | Claim Construction
June 17, 2009
Out of the Ditch
Jack Cartner got 5,197,284, claiming a deceleration circuit for a hydraulic motor. Cartner sued Alamo for infringement. Claim construction went poorly for Cartner. So poorly that Cartner stipulated, under the district court's claim construction, that the patent was "invalid for failure to meet the written description requirement of 35 U.S.C. § 112." There was no failure to appeal.
June 13, 2009
William Guess and George Morgan filed a patent application for "a musical instrument that includes a keyboard attached to a guitar body." Claim 1, the only independent, was a Jepson claim: a product claim listing a preamble that is typically in the prior art, followed by a listing of novel improvements. Rejected over a single prior art reference. Upheld all the way through the CAFC.
June 9, 2009
To sanitize meat, processors directly apply biocides. To that end, Ecolab got 6,010,729, 6,103,286, and 6,113,963, which it asserted against competitor FMC. FMC counterclaimed 5,632,676. A jury found some of Ecolab's asserted claims invalid, while FMC's '676 withstood validity challenge. Both infringed the other's surviving claims, FMC willfully so. Reasonable royalties to both. Post-trial motions of non-infringement by Ecolab and invalidity by FMC were shunted by the district court, and so appeals from both.
June 2, 2009
Outside the Membrane
Amgen and Ariad got into a tussle over 6,410,516. Ariad started with a DJ action, asserting invalidity and noninfringement. Amgen counterclaimed infringement. '516 claims reducing a specific protein's activity (NF-kB). The claim construction crux was whether the claimed activity occurred outside a cell, inside, or it didn't matter. But of course it mattered.
May 27, 2009
The hit-or-miss ITC scores another miss in its handling of Norgren's patent assertion against SMC. An administrative law judge (ALJ) found non-infringement on a faulty claim construction, and the Commission let the matter drop. The CAFC had to get the flow going again for Norgren.
Posted by Patent Hawk at 9:40 PM | ITC
May 25, 2009
In the American regime, claim construction is an intricate art form. At times, a claim construer must ponder context in view of other claims, and read the entrails of prosecution history to divine meaning. Herein, real-time isn't instantaneous, it has realistic slack. And, as always, singular may be plural unless proscribed.
May 22, 2009
Philips Lumileds went after Epistar at the ITC over 5,008,718 and succeeded. Because the ITC didn't even let Epistar argue prior art invalidity. And the ITC went so far as to block importation of "products by entities not named as respondents before the ITC." On appeal, the CAFC affirmed the Commission's claim construction, but remanded for shutting Epistar out of any defense, not to mention its overbroad exclusion order.
Posted by Patent Hawk at 5:04 PM | Claim Construction
May 21, 2009
Linear Technology "filed a complaint with the United States International Trade Commission ("the Commission") under section 337 of the Tariff Act of 1930, 19 U.S.C. § 1337(a)(1)(B), alleging that Advanced Analogic Technologies, Inc. ("AATI") imported and/or sold for importation certain electronic voltage regulators that infringe U.S. Patent No. 6,580,258 ("the '258 patent")." The ITC, randomly competent, made something of a hash of the matter. It did find some infringement. And so both sides appealed. Where broad, the ITC's claim construction held up. In the single instance the ITC construed narrowly, it goofed. But that made all the difference in infringement.
Posted by Patent Hawk at 6:29 PM | Claim Construction
May 19, 2009
Product by Process
Abbott Labs got into two patent spats with generic drug makers, in different districts, over 4,935,507, which claims a chemical composition by process, the result being an antibacterial drug. In one, where Abbott sued, Abbott lost on noninfringement in summary judgment. In the other, which was started by Lupin as a declaratory judgment action, Abbott failed to secure a preliminary injunction in counter-claim. Both losses were from claim construction. The CAFC took them both on appeal in a single decision, a seminal ruling on product-by-process claims.
May 12, 2009
Jonathan Monti co-invented exercise equipment which he pumped up to 6,932,749 and other patents. Suffering hasty-inventor syndrome, he tried to interest Fitness Quest (FQ) in his equipment before getting his patent. After getting the patent, he induced FQ into a declaratory judgment motion with an accusing letter. His flabby spec led to a losing claim construction, and summary judgment of non-infringement. But, on appeal, the CAFC gave him a little muscle.
Posted by Patent Hawk at 10:24 PM | Claim Construction
May 1, 2009
Every Penny Counts, founded by spare change king Dr. Bertam Burke, sued debit/credit card vendors for its patented "method for donating 'excess cash' to charities and savings accounts." "He describes his invention as a way of solving this 'problem of loose change.'" Based upon claim construction of "excess cash," the district court summarily ruled non-infringement. On appeal, no change, but the court's two cents about considering the accused product in claim construction.
Posted by Patent Hawk at 10:43 AM | Claim Construction
April 27, 2009
Humans have grossly overfished the oceans, all the while treating the seas as one huge toilet. Tuna, for example, is so polluted with mercury that even the U.S. government warns against its frequent consumption. But let that not affect claim construction in a patent case. As the appeals court put it: "The tuna fish enjoyed by U.S. diners is often caught in and shipped from distant locations. Given the relatively long travel time required to deliver tuna to U.S. consumers, importers seek out ways of preserving the fresh look and taste of their fish. This case involves a patent dispute that centers on a method of curing tuna fish meat using cooled smoke."
Posted by Patent Hawk at 12:16 PM | Claim Construction
April 10, 2009
Mark Felix sued car maker Honda for infringing 6,155,625, claiming a pickup truck with a storage compartment, like a car trunk. Felix had no horsepower for broad claim construction, and so died on the road: the district court granted summary judgment of noninfringement. In appeal affirmation, a reminder of the nuance that prosecution estoppel goes to subject matter, not a claim per se.
Posted by Patent Hawk at 7:57 PM | Claim Construction
March 31, 2009
Cordis and Boston Scientific went after each other over intravascular stent patents, each found infringing. On appeal, not much changed, spotlighting a case where settlement was precluded only by poor judgment. Of most interest is a fine shading of when prior art isn't. And a reminder that what an inventor thought is irrelevant to claim construction.
Posted by Patent Hawk at 7:26 PM | Prior Art
March 17, 2009
Crown Packaging and Rexam Beverage Can are trying to pop patents on each other. Crown tried to crown Rexam with 6,935,826, while Rexam counterclaimed to cane Crown with 4,774,839. Both came a cropper in summary judgment of non-infringement. From the appeal came a squeal of "no deal," with a toot of there being a dispute in fact.
Posted by Patent Hawk at 11:21 PM | Claim Construction
March 13, 2009
The best day for ICU Medical in asserting 6,682,509 against Alaris Medical Systems was the day it filed. '509 claims a needleless valve, used in medical IVs. Herein, a claim construction saga, with a written description twist, that finds the district court copasetic and ICU spiked with patent loss, shelling out for the other side's attorneys fees, and sanctions.
February 14, 2009
Contech Stormwater Solutions sued Baysaver Technologies and Accubid Excavation for infringing 5,707,527, which claims "a method of storm water filtration that utilizes replaceable water-permeable baskets and a 'siphon effect.'" Claim construction was followed with defendants' successfully motioning for noninfringement, which was affirmed on appeal.
Posted by Patent Hawk at 1:22 PM | Claim Construction
February 2, 2009
Kinetic Concepts (KCI) sued Blue Sky Medical Group and others for infringing 5,636,643 and 5,645,081, which claim a way to treat wounds. The West Texas trial judge had trouble construing "wound." As in, changed his mind a few times along the way, up to and including giving jury instructions, when he gave up entirely on construing the term. None of that fazed the jury, who found the patents valid, but not infringed. In the inevitable appeal, the CAFC had trouble construing "wound" too. In yet another split decision, any claim to consistency in claim construction method by the CAFC appears mortally wounded.
Posted by Patent Hawk at 11:32 PM | Claim Construction
January 11, 2009
Vehicle IP sued General Motors and others over 6,535,743, claiming "a system for providing directions." The defendants evaded infringement in summary judgment over construction of the term "coordinate." The district court construed a coordinate as multiple numbers. The defendants' systems used a single scalar value. 2-1, the CAFC agreed.
December 15, 2008
Welker Bearing sued PHD for infringing patents claiming clamping fingers securing a work piece for welding. The disputed claim term was "mechanism for moving said finger," construed as a means-plus-function claim. While "means for" typically signals the claim form, "mechanism" is a sometimes substitute term for "means."
Posted by Patent Hawk at 6:47 PM | Claim Construction
December 13, 2008
iLOR sued Google for infringing 7,206,839. Losing claim construction, the Kentucky district court judge denied iLOR's preliminary injunction motion, granted Google's summary judgment of noninfringement, and sua sponte dismissed the "action" with prejudice. On appeal, the CAFC figured the goose wasn't yet cooked, as Google had outstanding counterclaims. The single disputed claim term shows that stretching claim construction to incredulity is a surefire formula for throwing away money on lawyers.
Posted by Patent Hawk at 11:23 PM | Claim Construction
November 20, 2008
Medegen sued ICU Medical for infringing 5,730,418, claiming "a needle-free valve for intravenous (I.V.) therapy used to administer fluids to a medical patient." '418 solved the problem of "retrograde flow," "the reverse flow of fluid out of the patient's body and back into the catheter tubing," by using a sliding plug. The plug was a disputed claim term, with the district court granting a narrow construction, specific to usage context, upon which ICU got a summary judgment of non-infringement.
Posted by Patent Hawk at 4:38 PM | Claim Construction
November 3, 2008
5,188,861 claims a process for flavoring dried fruit. Patent holder Amazin' Raisins sued Ocean Spray Cranberries, hoping to squeeze some fruity lucre. Ocean sprayed them down, Amazin' losin' on claim construction. Non-infringement summary judgment was upheld on appeal. Another sloppy prosecutor's handicraft turns a juicy invention rancid.
October 14, 2008
As part of their ongoing patent war, Broadcom put Qualcomm before the ITC for infringing 6,714,983. The ITC did not find direct infringement, but did find inducing infringement, hence "issued a limited exclusion order ("LEO") against the importation of all downstream products containing the accused technology." By doing so, the ITC showed no respect for due process, and exceeded its statutory authority. Also herein, more caprice by the CAFC in complicating claim construction, and inconsistency in defining prior art.
Posted by Patent Hawk at 4:42 PM | Injunction
October 10, 2008
Predicate Logic sued Distributive Software over 5,930,798, claiming "measurement and analysis technologies for use in software development."
During the litigation, Distributive requested ex parte reexamination of the '798 patent, and the claims were allowed as amended during reexamination. Distributive then argued to the district court that the asserted claims were invalid because the amendment during reexamination improperly broadened the claims. The district court agreed and granted Distributive's motion for summary judgment of invalidity.
Herein, raking over the stricture against broadening claims, or even "substantive change," during reexamination.
Posted by Patent Hawk at 1:27 PM | Claim Construction
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.
Posted by Patent Hawk at 9:30 PM | Injunction
September 12, 2008
Duratech Industries jumped the gun and got North Dakota district court to grant non-infringement declaratory judgment protection from 6,375,104, owned by Bridgeview Manufacturing. '104 claims a hay bale handler. But Duratech put up a straw man for claim construction, construing a means-plus-function limitation that wasn't. Appeal was a roll in the hay for Bridgeview.
Posted by Patent Hawk at 11:58 AM | Claim Construction
September 2, 2008
Orthopedic implant makers Howmedica Osteonics and Wright Medical got into a patent brawl. They settled. A few times. Sort of. Howmedica sued again over 5,824,100, claiming a knee prosthesis, and lost its infringement kick on claim construction, which it appealed. Ambiguous claim language led to a construction Mexican standoff in the courts.
Posted by Patent Hawk at 9:54 PM | Claim Construction
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.
Posted by Patent Hawk at 3:14 PM | Claim Construction
August 28, 2008
Lexion Medical sued Northgate for infringing 5,411,474 and 6,068,609, which claim techniques for heating a patient's gut in preparation for laparoscopic surgery. '609 was stomped by Obzilla JMOL, while '474 eked out $721,662 in jury-awarded damages. On appeal, an overturned claim construction vacated the award, but Obzilla remained triumphant.
Posted by Patent Hawk at 2:41 PM | Claim Construction
August 22, 2008
DSW sued Shoe Pavilion for infringing 6,948,622 and D495,172, claiming a shoe display rack. Shoe Pavilion responded by removing the offending racks. The district court booted the case. The CAFC booted the district court, for importing a limitation into claims unjustifiably, and not properly awarding damages. Shoe Pavilion owed for the time it was infringing. "Because patent infringement is a strict liability offense, the nature of the offense is only relevant in determining whether enhanced damages are warranted."
Posted by Patent Hawk at 1:04 PM | Damages
August 18, 2008
In the Aorta
Dr. Jan K. Voda, M.D., sued Cordis for infringing two catheter patents: 5,445,625 & 6,083,213, getting a 7.5% royalty, and even enhanced damages and attorneys fees for willfulness. In light of eBay, Voda overreached for a permanent injunction. In a ruling replete with succinct case law infusions, appeal of most everything found the district court ruling in the right vein, except, most notably, willfulness in light of Seagate.
Posted by Patent Hawk at 11:16 AM | Injunction
August 16, 2008
Todd Brady came up with "a building construction assembly that allows a header in a wall some vertical freedom of movement relative to the studs, such that stresses applied to the assembly do not result in wall cracks. Such a configuration is useful when stresses vary in a wall, for example, through accumulation of snowfall or from an earthquake." Hence 5,127,760. After losing in claim construction during an infringement assertion, Brady attempted correction, 12 years after issuance. The reissue couldn't stand the stress.
Posted by Patent Hawk at 1:55 PM | Claim Construction
August 7, 2008
Uniloc sued Microsoft for infringing 5,490,216, claiming an anti-piracy software registration system. Microsoft's product activation system was accused. The district court judge granted summary judgment of non-infringement despite concession by Microsoft.
July 24, 2008
The University of Texas (UT) sued a slew of companies for infringing 4,674,112. It lost on claim construction, and so appealed, but with only silliness to back it up.
June 25, 2008
Industrial Dynamics (IDC) was found infringing 6,298,974, owned by Heuft Systemtechnik. The patents claim bottle handling inspection for bottling plants. On appeal, IDC successfully challenged the claim construction.
June 23, 2008
Realsource asserted 5,732,136, claiming a debit card transaction method, against several retailing chains, including Best Buy, Starbucks, Costco, Lowe's and others. Realsource might have had a real invention, but like so many, the prosecutor was sloppy with language, and did not bother disclosing possible alternate embodiments. Enforcement floundered on claim construction.
Posted by Patent Hawk at 1:40 PM | Claim Construction
June 4, 2008
Brocar sued retailer Target and others for infringing 6,049,928, claiming a baby diaper changing station able to resist vandalism. It's kiddie kung fu thing. Not really. Anyway, claim construction resulted in noninfringement. On appeal, affirmed.
Posted by Patent Hawk at 5:40 PM | Claim Construction
May 28, 2008
TubeMaster makes custom catalyst reactors. Cat Tech asserted 6,905,660. Tubemaster counterclaimed for declaratory judgment (DJ). The district court granted summary judgment of non-infringement based upon claim construction, including DJ on non-accused configurations. Cat Tech appealed. A CAFC panel crafted crucial case law on declaratory judgment.
Posted by Patent Hawk at 9:18 PM | Declaratory Judgment
May 22, 2008
Eastern Kentucky Senior Judge William O. Bertelsman needed some help with claim construction. His first stab was appealed and remanded, the CAFC unable to douse the conflagration owing to an undeveloped record. On second appeal, the CAFC again mops up and remands.
May 19, 2008
Overreaching patent assertion can foil the whole venture, and foul the asserted patents in the process. Being circumspect about claim construction, infringement analysis, and prior art, can turn a problematic case into a winner.
Posted by Patent Hawk at 10:03 PM | Litigation
May 14, 2008
6,148,377 claims a network-based device-shared memory space. Mangosoft hoped '377 might be an express to payout from Oracle, but its only stop was local.
Posted by Patent Hawk at 12:49 PM | Claim Construction
May 10, 2008
Broken and Unbroken
Referring to patents, the Economist thinks it "a pity" that a "rewrite" of "broken laws" is "back on the shelf." Wrong. The patent statutes are not what's broken, with one ghastly exception. It's the USPTO and the courts that are broken.
Posted by Patent Hawk at 12:04 AM | The Patent System
May 8, 2008
Lucent sued Microsoft, Gateway, and Dell for infringing 5,649,131 and 4,701,954, claiming two very different technologies. '131 claims a communications protocol between a web server (host) and a terminal. '954 is for digitizing speech. Another claim construction tussle, again illustrating the awkward immaturity of claim construction case law, floundering on the bedrock of bad claim language, pitiable prosecution, and disingenuity by the patent owner.
Posted by Patent Hawk at 10:00 PM | Claim Construction
6,105,007 is a bastard child. Its parent was for interfacing to a loan processing system, user interfaces requiring "varying degrees of human interaction." '007 was more Cylon, seeking "to capture a system that processed financial accounts 'without human intervention.'" The '007 claims mutated as well during prosecution. Predictably, '007 assertion created a claim construction dilemma requiring human intervention. In construing the crucial term, the CAFC acquitted itself poorly, defying case law by applying a ginned gimp, displaying again a distaste for broad claims.
Posted by Patent Hawk at 2:01 AM | Claim Construction
May 7, 2008
Out of Gear
Solomon Technologies took Toyota to the ITC over 5,067,932, accusing the transaxles on Toyota's hybrid models. An ITC judge found no infringement, and the asserted claim not enabled. Solomon appealed.
Posted by Patent Hawk at 10:10 PM | Claim Construction
May 6, 2008
4,579,530 "claims a method of fabricating porcelain veneers for teeth." Most of its teeth were pulled during reexamination, leaving only one independent claim. Owner PSN Illinois asserted '530 against Ivoclar Vivadent. The patent had no bite. But necromancer CAFC did. The appeals court raises dead claims as a way to damn claim scope.
Posted by Patent Hawk at 7:23 PM | Claim Construction
April 20, 2008
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.
Posted by Patent Hawk at 12:31 AM | Prior Art
April 18, 2008
Honeywell sued Hamilton Sundstrand over 4,380,893 and 4,428,194. One of asserted claims had been an unamended dependent rewritten into independent form, triggering presumption of prosecution estoppel, though why that should be is the locus of dispute. In a previous CAFC appearance, infringement from doctrine of equivalents (DOE) had been vacated, with the district court to examine whether the Festo presumption could be rebutted. This episode, a 2-1 panel majority oversteps applying DOE.
April 17, 2008
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."
Posted by Patent Hawk at 2:49 AM | Prior Art
April 14, 2008
PowerOasis had a dysfunctional family of patents, notably 6,466,658 and 6,721,400. The patents claim telecommunications access via a vending machine. PowerOasis went after T-Mobile, who successfully broke the family lineage, that these CIP children weren't entitled to their parent's birth date. On appeal, the written description requirement is recited as part and parcel of determining priority date for a CIP. There is no presumption that a CIP is entitled to an earlier filing date.
April 12, 2008
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 10, 2008
Down to History
Luma sued Stryker and Karl Storz Endoscopy for infringing its medical imaging patent 5,740,801. The claim construction went to a special master, who construed the contested terms "graphical objects" and "still frame buffer." Summary judgment motions for noninfringement and invalidity followed and were granted. Luma appealed. The CAFC delved into the prosecution history to get to the bottom line.
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.
Posted by Patrick Anderson at 7:45 PM | Claim Construction
April 3, 2008
O2 Micro sued Beyond Innovation and others for infringing patents claiming inverter controllers, DC-to-AC converter circuits, used as part of fluorescent lamps to backlight laptops and TVs. The claims went specifically to a feedback control loop. Infringement was appealed over claim construction of "only if," which the district court hadn't bothered to construe, because its meaning was plain, even though the litigation controversy riveted on that term. The district court judge's failure to construe "only if" was erroneous, the CAFC ruled.
Posted by Patent Hawk at 1:46 PM | Claim Construction
April 1, 2008
MEC sued Texas Instruments and Intel for infringing 5,471,593, losing on summary judgment, for invalidity owing to terminally sloppy claims drafting (indefiniteness), and noninfringement. On appeal, the claims slop was sifted to definiteness, but, because the district court had properly construed "pipeline stage" as temporal, rather than positional, noninfringement was affirmed. What was left in no doubt was that '593 claims were badly drafted.
Posted by Patent Hawk at 8:40 PM | Claim Construction
And = Or
Mylan tripped the ANDA wire, triggering a lawsuit from Ortho-McNeil for infringing 4,513,006, covering topiramate, an accidentally discovered anticonvulsant. Mylan got a migraine over a claim construction that defined "and" as "or." In a rare fruitless incantation, Mylan invoked the sacred patent killer Obzilla, who was scared off this episode by a rare sighting of hindsight reasoning. TSM, seldom seen onstage since the coming of Obzilla, played a cameo role.
Posted by Patent Hawk at 2:43 AM | Claim Construction
March 29, 2008
Mixed Claim Types
Both the USPTO and the courts proscribe claims mixing statutory claim classes as both unpatentable subject matter under §101 and indefinite under §112 ¶2. But, as is often the case with claim construction, the line may seem fuzzy. Herein a guide.
March 21, 2008
Computer Docking Station Corp. (CDSC) took Dell, Gateway, and Toshiba to dock for infringing 5,187,645, but bombed out: summary judgment of noninfringement, upheld on appeal. Prosecution estoppel was the death knell: "the patentee disavowed an interpretation of "portable computer" that would encompass a computer with a built-in display or keyboard." All the accused products were laptop computers with built-in display or keyboard.
Posted by Patent Hawk at 1:13 PM | Claim Construction
March 20, 2008
Old & Inexperienced
Marketing Displays Inc. (MDI) has numerous patents on promotional signage, including "menuboards," "used in the fast food restaurant industry to depict a restaurant's menu items and prices." Competitor LSI filed a declaratory judgment action in Eastern Kentucky for noninfringement and invalidity. In response, MDI filed for reexamination, which confirmed patentability of all claims. In the meantime, the suit was stayed. After rekindling the litigation flame, the bamboozled judge ruled noninfringement on summary judgment, based upon a hellacious claim construction dustup. MDI appealed.
Posted by Patent Hawk at 11:42 AM | Claim Construction
February 28, 2008
The University of California and Abbott went after Dako for infringing DNA screening patents 5,447,841 and 6,596,479. After a district court priority blunder, and turning aside a preliminary injunction motion, claim construction gave Dako a noninfringement out; until appeal.
Posted by Patent Hawk at 2:28 PM | Claim Construction
February 22, 2008
For now, the CAFC retains a polite fiction: "We review claim construction de novo on appeal. Cybor Corp. v. FAS Tech., Inc., 138 F.3d 1448, 1456 (Fed. Cir. 1998) (en banc);" de novo because claim construction is considered a matter of law, not a factual inquiry. In today's Aristocrat nonprecedential reversal and remand, summary judgment of indefiniteness in claim construction was ruled in error because "genuine issues of material fact remained pertinent."
Posted by Patent Hawk at 2:38 PM | § 112
February 6, 2008
Wilson Sporting Goods owns baseball bat patent 5,415,398, but it can't get a hit to first base. In the patent's third appearance before the CAFC, Wilson strikes out as Miken Composites keeps its walk of non-infringement.
Posted by Patent Hawk at 7:05 PM | Claim Construction
January 31, 2008
Trying to Change the Channel
TiVo successfully sued EchoStar for infringing 6,233,389, claiming time-shifted TV program recording and playback; a jury finding finding infringement for both software and hardware claims, awarding $74 million in damages. EchoStar had an injunction stayed pending appeal. On appeal, EchoStar did its best to tweak the claim construction to avert disaster.
January 30, 2008
Oatey sued IPS for infringing its patent on residential washing machine outlet boxes, 6,148,850. After Markman, the district court granted summary judgment of non-infringement, based on a claim construction excluding a depicted embodiment. The exclusion was excluded on appeal.
January 19, 2008
Travel Caddy sued Outside the Box Innovations (OTB) for infringing 6,991,104, which goes to a bag for storing and carrying tools. Denied a preliminary injunction based upon claim construction, Travel Caddy fruitlessly appealed, though in a close 2-1 call over what it means to use "between."
Posted by Patent Hawk at 12:07 AM | Claim Construction
January 17, 2008
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 15, 2008
Baldwin Graphic Systems sued Siebert for infringing 5,974,976 and Re 35,976, aimed at cleaning printing presses. After Markman, the district judge granted summary judgment of non-infringement of both patents. The CAFC differed on the claim construction by an 'a': 'a' not connoting singularity. On another point, similar terms may play differently in different claim classes.
Posted by Patent Hawk at 2:07 PM | Claim Construction
January 7, 2008
Cordis separately sued Medtronic and Boston Scientific for infringing "patents covering vascular stents that are used to treat coronary artery disease;" winning both cases. Losers appealed. In the blowup, Cordis had a claim invalidated, so appealed that. All appeals were consolidated, resulting in one long ruling focused on claim construction and prosecution estoppel.
December 26, 2007
Hyperphase sued Google for infringing four patents with Google's AutoLink and AdSense technologies. AutoLink, part of Google Toolbar, adds links to a web page. AdSense puts context-sensitive ads on web pages. The district court granted summary judgment of non-infringement on a narrow claim construction; overturned, because a nominal claim reference to one can be plural.
Posted by Patent Hawk at 11:29 AM | Claim Construction
December 22, 2007
Flexsys slammed Sinorgchem at the ITC, winning a limited exclusion order. Sinorgchem appealed. The CAFC instructed the ITC on claim construction.
December 13, 2007
Randi Black's 7,152,606 covers a nipple cover, one that got good coverage from Eastern District of Texas Judge John Love's Markman hearing, adopting most of the language the plaintiff preferred on the crucial term "nipple cover." The defendants had argued for an unreasonably narrow construction.
November 28, 2007
Closed Circuit Claim Construction
Elbex Video sued Sensormatic Electronics for infringing closed-circuit TV patent 4,989,085. The district court granted summary judgment of non-infringement based on claim construction. On appeal, the CAFC went 2-1 in not finding the prosecution estoppel that the district court perceived.
For a prosecution statement to prevail over the plain language of the claim, the statement must be clear and unmistakable such that the public should be entitled to rely on any “definitive statements made during prosecution.” Omega, 334 F.3d at 1324.
Posted by Patent Hawk at 2:15 PM | Claim Construction
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.
Posted by Patent Hawk at 2:26 PM | Case Law
October 12, 2007
5,799,273 covers software speech recognition. Asserted by AllVoice against Nuance Communications, summary judgment shot the patent down to indefiniteness and best mode. The appeals court reversed. The district court had failed to consider the level of one of ordinary skill in construing the claims; definite enough to one skilled enough. The CAFC also relied upon claim differentiation for construction. As to best mode: "every claim need not contain every feature taught in the specification."
Posted by Patent Hawk at 2:10 PM | Claim Construction
October 4, 2007
Genetically engineered herbicide-resistant plant seeds are the blooming sprout in the agri-business patent crop. Monsanto, which has an extensive portfolio, tried to twist Sygenta's ear of corn for infringing 5,538,880, 6,013,863 and 4,940,835. One fact that led to summary judgment of non-infringement was that Sygenta's seeds were a later generation, the progenitor seed pre-dating the asserted patents. Another was that Syngenta had license to produce progeny seeds. And the kicker was that Sygenta didn't perform all the process steps of an asserted claim: Monsanto did the initial claimed steps. Another problem that Monsanto had was claiming a process for all plants, when it had fiddled just a few.
Posted by Patent Hawk at 9:51 PM | Claim Construction
September 27, 2007
Comprised of Counterfeit
5,283,422, owned by CIAS, claims a counterfeit detection system, intended for slot machines and the like. '422 was asserted against Alliance Gaming. Alliance successfully got a summary judgment of non-infringement which the appeals court affirmed, even though the district court's claim construction was a bit off.
The little claim construction gem here is the CAFC chatting about the fabled claim term family: "comprising," and its down-at-the-heel cousin: "consists of."
September 26, 2007
Vonage, the best of the VoIP providers, had its bell rung twice for patent infringement in the past couple of days. Yesterday, a jury found Vonage infringed Sprint patents; a $70 million tab in the offing. Vonage will, of course, appeal. But, with history as a guide, that offers little succor, as Vonage lost its appeal for two of three Verizon patents it infringed, and the third still looms. Being the best by snitching others' IP is running the company into the ground.
September 16, 2007
Arminak and Calmar sell trigger sprayers to makers of liquid household products. Arminak sought declaratory judgment from two of Calmar's design patents for sprayer shrouds: 381,581 & 377,602. The district court found non-infringement in summary judgment. On an affirming appeal, the CAFC lays down case law on assessing design patent infringement, finding an "ordinary observer" to have a keen eye; akin to SCOTUS KSR in having "ordinary" be extraordinary. Overturning 136-year precedent, the virulent anti-patent KSR disease spreads to design patents.
September 7, 2007
Prosecution Estoppel Bolted Down
Harvey Gillespie got a couple of patents for mine roof bolts: 5,230,589 and 5,259,703, which Dywidag Systems got nailed infringing. Dywidag asserted that prosecution estoppel narrowed claim construction, but the argument didn't hold in district court. The appeals court hit the roof.
Posted by Patent Hawk at 1:32 AM | Claim Construction
September 3, 2007
A Vista for Visto
Visto sued Microsoft for infringing three data synchronization patents: 6,085,192; 6,708,221 and 7,039,679. Microsoft counterclaimed with three of its own data sync patents: 5,946,691; 6,125,369 and 6,560,655. Claim construction generally went Visto's way.
Posted by Patent Hawk at 8:13 PM | Claim Construction
August 26, 2007
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.
Posted by Patent Hawk at 8:47 PM | Claim Construction
July 24, 2007
Cybersettle sued the National Arbitration Forum (NAF) for infringing its online dispute resolution patent: 6,330,551. District court claim construction & summary judgment cross-motions put the infringement hurt on NAF. The appeals court had a different take on the claims: the difference between what's possible and what's done.
Posted by Patent Hawk at 10:02 PM | Claim Construction
July 23, 2007
Toprol-XL® is a drug used to treat heart-related malfunctions. Astra owns two patents for its active ingredient, metoprolol succinate; patents which Astra asserted against generic drug makers seeking FDA approval; patents with a peculiar pedigree. The district court found Astra's metoprolol patents invalid owing to double patenting, and inequitable conduct, owing to the peculiar pedigree. Astra appealed the invalidity finding of one asserted patent, leaving the other dead without appeal.
Posted by Patent Hawk at 9:11 PM | Claim Construction
July 16, 2007
William Gerold consulted for AutoMed, then Microfil, designing automated drug dispensers. AutoMed went after Gerold and Microfil for infringing its patents (6,449,927 & 6,742,671). Summary judgment of non-infringement was appealed over claim construction (CAFC 06-1620). The appeals court, in yet another 2-1 decision, ignores the claim language itself, attendant specification indefiniteness, and lack of enablement, to arbitrarily determine facts of technology as a matter of law; thus differing from the straightforward district court construction and appeals court dissent, which read the claims as they were drafted.
Posted by Patent Hawk at 9:34 PM | Claim Construction
July 5, 2007
The Festo case, stumbling through the courts for almost twenty years, has already written a bible on prosecution estoppel under the doctrine of equivalents. The case has been before the Supreme Court twice, CAFC en banc twice, and now makes its third appearance before the CAFC.
Today a new chapter is written, on whether an equivalent is foreseeable, and thus subject to surrender from prosecution estoppel. In a nutshell, what was within the prior art was foreseeable, but the ruling puts devils in the details, and sets the stage for a third Supreme Court appeal.
It may come as no surprise that the CAFC ruling went 2-1, with a dissent that scolds the majority for ignoring precedent, self-contradiction, fostering hindsight reasoning, and being downright illogical. (CAFC 05-1492)
Posted by Patent Hawk at 2:37 PM | Claim Construction
July 4, 2007
Lame General Purpose
In asserting 5,913,685, going to computer-assisted CPR, inventor and pro se legal one-man band Donald Hutchins stupidly tried to stretch the claimed "general purpose computer system" to be encompassed within a microprocessor; stupid because of prosecution estoppel that went to the heart of claim construction: Hutchins had put the term in to overcome prior art using dedicated microprocessors. Neither the district or appeals courts bought Hutchins' jive. (CAFC 06-1539) [Depiction of Hutchins (238) after the verdict, consoled (242) by his cartoon wife (236).]
Posted by Patent Hawk at 2:48 PM | Claim Construction
4,914,436, owned by Honeywell, claims a system for warning pilots of flight conditions. Asserted against Universal Avionics, the district court judge adopted Honeywell's claim construction, and the trial that followed went the same heading. Universal appealed; in a 2-1 affirming decision, the CAFC befuddles, encouraging participants to treat patent litigation as a crap shoot. (CAFC 06-1046)
The dissent is more compelling than the majority opinion.
It is the responsibility of those who seek the benefits of the patent system to draft claims that are clear and understandable. When courts fail to enforce that responsibility in a meaningful way they inevitably contribute an additional element of indeterminacy to the system.
Posted by Patent Hawk at 1:50 PM | Claim Construction
June 27, 2007
The Saunders Group sued Comfortrac, Care Rehab and Orthopaedic Products for infringing 6,899,690, claiming a lightweight cervical traction device. The district court granted summary judgment of noninfringement on a narrow claim construction. With a lot to consider in a tightly reasoned case, the appeals court found the district court claim construction needing therapy. (CAFC 06-1576)
Posted by Patent Hawk at 10:08 PM | Claim Construction
William Young patented a surgery procedure for removing cat claws. In suing Lumenis for infringing, the district court ruled in summary judgment the asserted patent indefinite under 35 U.S.C. § 112, ¶ 2, over the claim term "near," and unenforceable for inequitable conduct, in part because Young was tardy giving the patent office a litigation deposition during reexamination, though timely enough for the examiner to consider its import. Young successfully appealed. (CAFC 06-1455)
Posted by Patent Hawk at 1:07 PM | Claim Construction
June 18, 2007
Biomedino appealed an indefiniteness ruling for claims of its asserted 6,602,502 against Waters Technologies. '502 went to detecting psychoactive drugs in the blood. While the courts differed on the applicable paragraph, Biomedino's patent trip turned out to be a bummer.
Posted by Patent Hawk at 11:30 AM | § 112
May 23, 2007
Clown Time is Over
Posted by Patent Hawk at 8:19 PM | Claim Construction
May 21, 2007
Steven Byrne asserted RE34,815, claiming a particular landscaping edge trimmer using a string cutter, against Black & Decker, which countered with a summary judgment motion of non-infringement after discovery; granted. Byrne appealed the claim construction (CAFC 06-1523).
Posted by Patent Hawk at 10:01 PM | Claim Construction
April 27, 2007
PODS ran over Porta Stor for infringing 6,071,062, claiming moving storage containers onto and from trucks. On appeal (CAFC 06-1504), the district court's claim construction was reversed, prosecution estoppel made road kill of the doctrine of equivalents, and so went the infringement ruling.
Posted by Patent Hawk at 11:48 AM | Claim Construction
April 18, 2007
Claim Construction Roller Coaster
Intamin sued Magnetar for infringing 6,062,350, claiming a roller coaster brake system. The district court found, in summary judgment, non-infringement, based upon claim construction; appealed (CAFC 05-1546). Also at issue was the threshold of investigation required to trigger an infringement complaint (Rule 11(b)).
Posted by Patent Hawk at 1:39 PM | Claim Construction
April 12, 2007
Humerus Claim Construction Nailed
Acumed successfully sued Stryker for infringing 5,472,444, claiming a nail to fix a badly broken arm. The district court hurt Stryker with willful infringement and a permanent injunction. Stryker appealed the claim construction (CAFC 06-1260) in hopes of a break.
Posted by Patent Hawk at 2:37 PM | Claim Construction
April 6, 2007
"Stadium Seat Turkey Vest" got Cabela in trouble. With a product name like that, you'd expect no less. Anyway, Bass Pro sued Cabela for infringing 5,620,227, claiming a combination of wearable vest with a portable seat. They settled. Two years later, Cabela launched "EZ Chair Combo." Bass Pro was not amused.
Posted by Patent Hawk at 8:37 PM | Claim Construction
April 3, 2007
Central Admixture Pharmacy Services (CAPS) sued Advanced Cardiac Solutions (ACS) for infringing 4,988,515, claiming a nourishing solution used during heart surgery. The heart of the matter was CAPS' Certificate of Correction, changing a claim term, and thereby broadening the scope of the claims. [CAFC 06-1307]
Posted by Patent Hawk at 11:53 AM | Claim Construction
March 20, 2007
Doctrine of Equivalents Screwed
According to Festo, prosecution estoppel forecloses enforcement under the doctrine of equivalents (DOE) owing to surrendered claim scope during prosecution to gain allowance. In litigation, the rub becomes how closely associated the narrowing of a claim is to the rejection, and whether the equivalent in the accused product was foreseeable at the time of prosecution. In Cross Medical v Medtronic (CAFC 05-1415), the majority find Festo in full flower, while a well-reasoned concurrence rails at the very principle of tangentiality.
Posted by Patent Hawk at 7:23 PM | Claim Construction
March 2, 2007
Franklin Electric sued OPW for infringing 5,085,257, which claims a sump cover. Summary judgment of noninfringement was based upon a narrow claim construction of "facilitate positioning." The appeals court (CAFC 06-1442) took a different view, not reading too much into the figures, and noting that "[A]n attribute of the preferred embodiment cannot be read into the claim as a limitation."
Posted by Patent Hawk at 12:26 PM | Claim Construction
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.
Posted by Patent Hawk at 1:04 PM | Case Law
February 23, 2007
The Cup Not Runneth Over
Nouri Hakim sued Avent for infringing 6,321,931 and 6,357,620, which claim a spill-proof drinking cup. Avent dodged the infringement stains by a narrow claim construction and some Italian prior art. Hakim appealed (CAFC 05-1398), but had no juice.
Posted by Patent Hawk at 11:23 AM | Claim Construction
February 20, 2007
Who Done It
MyMail sued a bunch of Internet service providers (ISPs), including America Online, for infringing 6,571,290, which claims "fungible intercourse over a network". After claim construction, the district court granted summary judgment of non-infringement. MyMail appealed (CAFC 06-1147), a tilting at windmills, as it had already conceded defeat in claim construction.
Posted by Patent Hawk at 2:15 PM | Claim Construction
February 9, 2007
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)
Posted by Patent Hawk at 3:14 PM | Claim Construction
February 5, 2007
Medtronic sued BrainLAB for infringing four patents claiming "image-guided surgery products that enable the precise localization of surgical instruments used during surgery." In its own surgical operation, BrainLAB removed a jury-implanted infringement tumor, using careful claim construction, narrowing to non-infringement, that the judge approved as a matter of law. Medtronic's appeal was to no avail.
January 28, 2007
Wooden Claim Construction
Anderson sued Fiber Composites, both composite wood makers, for infringing six patents in two groups. At the district level, claim construction split the difference in decision. Both parties appealed (CAFC 05-1434). The core issue was whether the process to make a product could be read into the claims. In this case, the CAFC observed, prosecution estoppel narrowed construction: "An applicant’s argument that a prior art reference is distinguishable on a particular ground can serve as a disclaimer of claim scope even if the applicant distinguishes the reference on other grounds as well."
Posted by Patent Hawk at 12:39 AM | Claim Construction
January 24, 2007
The Needle and the Damage Done
Posted by Patent Hawk at 4:11 PM | Claim Construction
January 22, 2007
Star Scientific owns 6,202,649 and 6,425,401, which claim methods for curing tobacco to reduce nitrosamine (TSNA), a carcinogen. Star sued R.J. Reynolds for infringement. RJR argued that claim terms to getting the right "controlled environment" were indefinite. (Maryland MJG-01-1504)
Posted by Patent Hawk at 6:43 PM | Claim Construction
January 19, 2007
Ortho-McNeil Pharmaceutical sued Caraco Pharmaceutical Laboratories for infringing 5,336,691 after Caraco filed an ANDA. This claim construction dual was about defining the range meant by the claim term "about."
Posted by Patent Hawk at 3:40 PM | Claim Construction
January 12, 2007
Not A Card
E-Pass shot blanks in asserting 5,276,311, which claims a method of replacing a bunch of credit cards with a single "multi-function card", against the makers of Palm PDAs and VISA. Following a narrow claim construction from the district court, E-Pass appealed, with the original district court ruling vacated by the CAFC. Next round: summary judgment of non-infringement by the district court on a slightly broader claim construction. So E-Pass appealed again (CAFC 2006-1356, -1357, -1358).
Posted by Patent Hawk at 1:36 PM | Claim Construction
January 8, 2007
Amini Innovation sued Anthony California for infringing dresser furniture design patent D488,936. Anthony got a district court summary judgment of non-infringement. The appeals court: "not so fast." (CAFC 06-1096).
Posted by Patent Hawk at 11:39 AM | Claim Construction
January 5, 2007
Abbott's Preliminary Injunction Rabbit
Abbott Labs sued Andrx, Roxane, and Teva for infringing patents related to extended release clarithromycin (6,010,718; 6,551,616; 6,872,407), sold by Abbott as Biaxin XL. The three defendants had filed ANDAs, which were approved. Abbot successfully moved for a preliminary injunction against all three from marketing their generic versions. Here is the case Andrx appealed (CAFC 06-1101).
Posted by Patent Hawk at 12:58 PM | Injunction
January 4, 2007
DESA owns 5,598,066, for motion-activated security lights, a popular item with home-owning suburbanites. DESA sued EML Technologies and Costco for infringement. Claim construction of the claimed sensor means at the district court dimmed infringement, DESA conceded. Appealing, the CAFC (06-1168) remanded with a proper claim construction.
Posted by Patent Hawk at 1:33 PM | Claim Construction
December 29, 2006
Dispensing Claim Construction
Ventana Medical Systems sued BioGenex Labs for infringing 6,352,861, which claimed automated staining of microscope slides. The asserted stain didn't take well in claim construction: the district court found non-infringement based on a narrow construction disclosed throughout the patent and in prosecution history. By 2-1, the CAFC majority used a different microscope (CAFC 06-1074), though the dissent concurred with the district court decision. Here, in a turnabout from previous rulings, where claims would not be construed broader than the disclosed embodiments, or broader than envisioned by the inventors, the appeals court muddies the tenets of claim construction.
Posted by Patent Hawk at 11:04 PM | Claim Construction
December 14, 2006
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
December 12, 2006
Classified Cosmetics sued Del Labs for infringing 6,589,541. Del got a district court summary judgment that the patent was invalid because it was inoperable. The appeals court [CAFC 06-1010] mused the district court ruling as inoperable.
Posted by Patent Hawk at 4:18 PM | Claim Construction
December 9, 2006
In April 2005, Golden Bridge sued Nokia & Lucent in the patent enforcement capital of the United States, the Eastern District of Texas, for infringing 6,574,267, which claims spread-spectrum, multiple channel transmission to wireless devices. Thursday, Golden Bridge got shot out the saddle.
Posted by Patent Hawk at 10:25 PM | Prior Art
November 30, 2006
Maurice Mitchell Innovations LP sued Intel in December 2004 in the Eastern District of Texas for infringing 4,875,154, which claims bus switching for a CPU. The problem was that the disclosure wasn't fully wired for the claims.
Posted by Patent Hawk at 5:05 PM | Claim Construction
November 15, 2006
Abrasix/AstraZeneca successfully sued Mayne Pharma for infringing 5,714,520, 5,731,355, & 5,731,356, covering the intravenous anesthetic Dirprivan®, getting literal and doctrine of equivalents (DOE) judgments in district court. Mayne appealed, and got a crucial claim construction reversed, but that did not overturn the DOE infringement. (CAFC 06-1118)
Posted by Patent Hawk at 10:34 AM | Claim Construction
November 13, 2006
Akeva sued Adidas for two athletic shoe patents: 6,662,471 & 6,604,300, specifically improved heels. In a non-precedential ruling, the CAFC (06-1090) affirmed a district court claim construction restricting the meaning of the term "secured" to its specific usage in the specification.
Posted by Patent Hawk at 10:54 AM | Claim Construction
November 5, 2006
Furnace Brook owns 5,721,832, and is slinging it to see what it will stick on. After getting tossed in summary judgment for its overreaching assertion against Overstock.com, Furnace is on fire, sending out lowball solicitations to license. These clowns are going to give patent trolls a bad name.
Posted by Patent Hawk at 4:42 PM | Litigation
October 19, 2006
Halliburton has successfully drilled for multi-billion dollar contracts in Iraq, thanks to its Dick Cheney connection. But drilling on the patent front, it couldn't gel, its claims too fluidly fragile to be construed. The indefinite claim term lost in lubrication: "fragile gel."
Posted by Patent Hawk at 3:51 PM | Claim Construction
October 10, 2006
Claim Construction Incongruity
Hal Wegner makes a provacative point that the CAFC reviewing claim construction de novo as a question of law totally ignores the fact-based inquiry required for claim construction. Is claim construction a finding of fact, or the product of legal analysis rooted in fact?
Posted by Patent Hawk at 12:04 AM | Claim Construction
October 2, 2006
Aero Products, which makes & sells inflatable air mattresses, sued Intex Recreation for patent (5,367,726) and trademark infringement. Aero won both, and Intex appealed (CAFC 05-1283). There was a claim construction dispute of interest, as well as an award of double damages on appeal.
Posted by Patent Hawk at 2:00 PM | Damages
September 20, 2006
On the Rise
Ms. Yoon Ja Kim was in the know about the dough, and so we go blow to blow to show ConAgra, accused, but not rising like baking bread to infringement.
Posted by Patent Hawk at 1:16 PM | Claim Construction
September 13, 2006
MIT sued Abacus Software, Corel, Microsoft, and Roxio for infringing 4,500,919, claiming a color processing system for making copies, specifically, using the right color combination from a limited palette of inks. The district court found non-infringement based on a contested claim construction. The CAFC differed on the construction (05-1142).
August 30, 2006
One might get the impression, for all the ruckus over KSR v. Teleflex in front of the Supreme Court, that 35 U.S.C. §103(a), the prior art obviousness clause, is broken. Not so. §103 is badly drafted, but it has teeth as currently interpreted by the Appeals Court. If you think its teeth need further straightening, consider this orthodontics case: Ormco v. Align (CAFC 05-1426).
Posted by Patent Hawk at 12:00 PM | Prior Art
August 18, 2006
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.
Posted by Patent Hawk at 12:33 PM | Case Law
August 14, 2006
Claim Construction Black Hole
Hal Wegner uncorks an update to his 2005 paper, "The Non-Precedential Claim Construction Black Hole," elaborating on: 1) the mess of non-precedential Federal Circuit rulings related to patent claim construction; 2) the blanket of secrecy maintained by the USPTO Patent Board of Appeals & Interferences; 3) claim construction as a matter of law affords flip-flop arguments on appeal.
Posted by Patent Hawk at 3:20 PM | Claim Construction
August 2, 2006
Pfizer sued generic drug maker Ranbaxy for infringing patents related to Pfizer's blockbuster, cholesterol-lowering Lipitor®. Ranbaxy was found to have infringed, which it appealed, and lost on one of the asserted patents. But the interesting part of today's CAFC ruling (06-1179), where Ranbaxy prevailed, concerns statutory definition of dependent claims under 35 U.S.C. § 112, ¶ 4, which requires that a dependent claim narrow the scope of the claim upon which it depends.
Posted by Patent Hawk at 6:21 PM | Claim Construction
July 26, 2006
Wireless & Witless
Wireless Agents appealed a district court denial of preliminary injunction in its suit against Sony Ericsson Mobile Communications, pressing 6,665,173. The spat was over preliminary claim construction, with the district judge hinting heavy that Wireless' case was groundless, and the appeals court [CAFC 06-1054] rubbing it in.
Posted by Patent Hawk at 1:46 PM | Claim Construction
July 13, 2006
Posted by Patent Hawk at 1:42 PM | Litigation
July 7, 2006
LGE sued several OEMs for patent infringement in selling computer systems. The OEMs had bought Intel microprocessors, which where under LGE license, but then combined them with non-licensed components. The license excluded such combination, thus opening the door for infringement assertion. But an 1873 ruling states that "[A]n unconditional sale of a patented device exhausts the patentee's right to control the purchaser's use of the device thereafter," providing the basis for the district court to grant summary judgment of noninfringement on system claims. There were also claim construction disputes. The appeals court differed from the district court in instances, particularly in regard to patent exhaustion.
Posted by Patent Hawk at 1:30 PM | Claim Construction
June 30, 2006
Prosecution Estoppel Aide
Momentus Golf sued Swingrite Golf for infringing 5,582,407, a "golf club swing aide." Swingrite swung a district court summary judgment of non-infringement based on prosecution estoppel which narrowed claim scope. Momentus drove to the appeals court (CAFC 05-1614), which gave the district court a mulligan.
June 8, 2006
Return of Unistroke
Xerox has had a hellacious struggle enforcing 5,596,656, the notorious "unistroke" patent. Xerox targeted 3Com’s “Graffiti”, used in the Palm PDAs. In this episode of a continuing saga, the patent lives to fight another day, as Xerox successfully appeals (CAFC 04-1470), at least partly, an invalidity summary judgment, because of "genuine issues of material fact remaining in dispute."
Posted by Patent Hawk at 12:10 PM | Claim Construction
May 16, 2006
Applied Medical Resources sued United States Surgical for infringing 5,385,553, a surgery facilitating device, the latest suit in a long line of litigation. In its ruling, the CAFC enunciated a precise process for determining infringement of a means-plus-function claim.
Posted by Patent Hawk at 10:03 PM | Claim Construction
May 11, 2006
Inpro II Licensing sued T-Mobile & Research in Motion for infringing 6,523,079, losing on a narrow claim construction of "host interface," and doing no better on appeal (CAFC 2006, 05-1233). Inpro should have known better.
Posted by Patent Hawk at 12:14 PM | Claim Construction
May 9, 2006
Up the Creek
Old Town Canoe sued Confluence Holdings for infringing 4,836,963, which goes to a process for making plastic boat hulls by rotational molding. Confluence got a summary judgment of non-infringement based upon claim construction, but lost counterclaim motions on invalidity and enforceability. So the parties appealed the rulings that went against them. The CAFC (05-1123) found the district court had been hasty in some of its summary judgment rulings, glossing over disputable facts. And a well-reasoned dissent argued that the whole case was overdone.
Posted by Patent Hawk at 2:24 PM | Litigation
April 19, 2006
Lava Trading sued Sonic Trading Management and RoyalBlue for infringing 6,278,982, which claims an aggregating stock trading system. Lava lost on claim construction, so appealed. The CAFC (05-1177) found the flaw in the district court's construction, and remanded. What the CAFC fails to see is its own flaw in claim construction logic.
Posted by Patent Hawk at 11:46 AM | Claim Construction
Universal Remote Control
Phillips sued Contec and its suppliers for infringing two patents related to universal remote controls. The appeals court (CAFC 05-1351) upheld the Delaware district court's summary judgment split decision based upon claim construction.
Posted by Patent Hawk at 1:40 AM | Claim Construction
March 31, 2006
On Demand Machine Corporation (ODMC) owns 5,465,213, an invention of Harvey Ross, which goes to on-demand book publishing. Lightning Source, Ingram Industries and Amazon, sued by ODMC, were found to have infringed '213, and so appealed (CAFC 05-1074), based upon what they asserted was an erroneous claim construction provided to the jury at trial.
Posted by Patent Hawk at 12:23 PM | Claim Construction
March 23, 2006
Claim Construction Nightmare
Hillerich & Bradsby (H & B) went to bat for a declaratory judgment action against 5,415,398, owned by Wilson Sporting Goods, and got a solid hit with the trial court: noninfringement, plus costs & fees. Then it was Wilson's time at the plate in the appeals court (CAFC 05-1103). Owing to district court incompetence, this case is another log on the fire for a national patent court.
Posted by Patent Hawk at 11:28 AM | Claim Construction
March 20, 2006
Claim Construction Implant
Diro, owner of 5,749,731, sued Straumann for infringement of its dental implant apparatus. The Massachusetts district court tossed the case via summary judgment for noninfringement. Diro appealed (CAFC 05-1168). Part of Diro's problem was what was implanted in the preamble of the claim.
Posted by Patent Hawk at 10:14 AM | Claim Construction
March 3, 2006
Fiber Optic Designs sued Seasonal Specialties over 6,830,358, for festive LED light strings. Fiber Optic Designs wanted a preliminary injunction, but the trial court wasn't sure, so turned them down. Dissatisfied, Fiber Optic Designs appealed (CAFC 05-1488). The appeals court was dissatisfied too.
Posted by Patent Hawk at 12:17 PM | Claim Construction
March 2, 2006
Claim Construction Myopia
Aspex Eyewear sued Miracle Optics for infringing RE37,545, over an eyeglass frame held together with magnets. The district court limited claim scope owing to prosecution estoppel. The CAFC (04-1138) reminded that a prosecution disclaimer of claim coverage required "reasonable clarity and deliberateness."
Posted by Patent Hawk at 1:43 PM | Claim Construction
February 24, 2006
SmithKline Beecham, maker of Paxil®, an anti-depression drug, is now self-medicating over the CAFC (04-1522) invalidating one of its patents, 6,113,944, claiming a process for making the drug. '944 was a follow-on, but not a continuation, of the original patent for the drug, 4,721,723. The appeals court ruled that "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."
Posted by Patent Hawk at 11:51 AM | Claim Construction
February 22, 2006
Lawman Armor sued Winner for infringing design patent 357,621, which claimed an ornamental design for the sliding hook portion of a vehicle wheel lock. After claim construction, the aptly-named Winner successfully moved for summary judgment of non-infringement based upon invalidity. The appeals court (CAFC 05-1253) locked it up.
Posted by Patent Hawk at 9:57 AM | Claim Construction
February 15, 2006
Curtiss-Wright Flow Control, accusing Velan of infringing 6,565,714, caught a break with a preliminary injunction. On appeal (05-1373), the CAFC had a qualm with the claim term "adjustable," finding the trial court's construction way outside the context of the specification, and so broad as to be meaningless; thus vacating the injunction and remanding. What's more, we learn the secret formula for Coke.
Posted by Patent Hawk at 7:57 PM | Claim Construction
February 1, 2006
Pason Systems faced down Varco over a preliminary injunction for infringing 5,474,142, owing to an unfavorable claim construction in district court that dimmed the prospect of Varco eventually succeeding. Varco got the Appeals Court (CAFC 05-1136) to drill deeper.
Posted by Patent Hawk at 1:33 PM | Claim Construction
January 9, 2006
Claim Scope Per Disclosure Redux
LizardTech got its wavelet compression patent dubbed by the CAFC (05-1062 panel) for overreaching in its claim beyond its specification, when only one embodiment had been disclosed. So, desperate, LizardTech appealed for an en banc hearing (05-1062 en banc); request denied. But in its snub, the CAFC put on a little fireworks show between the ruling majority and dissenters.
Posted by Patent Hawk at 12:09 AM | § 112
December 28, 2005
In The Body
Cannon Rubber sued The First Years (TFY) for infringing 5,749,850, which claimed a breast pump for pumping milk from the breast of a nursing mother. Under appeal review (CAFC 05-1063), the critical issue for infringement was claim construction of the phrase "in the body", referring to the location of a diaphragm used in the pump.
Posted by Patent Hawk at 11:59 AM | Claim Construction
December 27, 2005
Shuffle Master sued VendingData for infringing 6,655,684 claim 20, for a card shuffling and dealing device. The two sides differed over a crucial claim construction term: what constitutes forming a "set of cards". VendingData was found by the district court of Nevada to be holding the wrong set of cards, and slapped it with a preliminary injunction. Not so fast, cried VendingData to the appeals court (CAFC 05-1203).
Posted by Patent Hawk at 11:19 AM | Claim Construction
December 6, 2005
Down to "a"
Norian sued Styker for infringing 6,002,065, which is directed to kits “for preparing rapidly setting calcium phosphate compositions to be used as ‘bone cements’ in medical or dental procedures.” Continuing a losing streak, on second appeal (CAFC 05-1172), Norian got tossed in a narrowing claim construction, down to a single "a".
Posted by Patent Hawk at 10:30 AM | Claim Construction
November 29, 2005
IP Innovation sued eight companies for patent infringement of 4,877,404. Five settled, but three fought on. The Appeals Court (CAFC 04-1571), in affirming the district court's summary judgment of non-infringement, vindicated the defendants' fighting spirit.
Posted by Patent Hawk at 11:59 AM | Claim Construction
November 22, 2005
Sugared Preliminary Injunction
The district court granted a preliminary injunction in Pfizer & Warner-Lambert v. Teva & Ranbaxy for infringement of 4,743,450, which Teva Pharmaceuticals & Ranbaxy Pharmaceuticals appealed. And lost. CAFC 05-1331.
Posted by Patent Hawk at 11:53 AM | Claim Construction
November 18, 2005
De Novo Mongrel
Smarting from its en banc loss in Phillips v. AWH after winning earlier, AWH has petitioned the Supreme Court to address whether the appeals court has the right to de novo review of claim construction.
Posted by Patent Hawk at 1:26 AM | Claim Construction
November 17, 2005
MicroStrategy sued Business Objects for infringement of its 6,260,050 patent, to which the district court granted summary judgment of non-infringement, hinging on claim construction. Interestingly, MicroStrategy won its claim construction argument, but lost the interpretation of it with regard to infringement (CAFC 04-1572).
Posted by Patent Hawk at 1:27 PM | Claim Construction
November 15, 2005
Getting A Grip
Surprisingly, the district court couldn't get a grip on the claim term "hand-grip size case" for claim 1 in 6,043,663, owned by Joseph Kapusta, who sued Gale Corporation for infringement of a TV cable test instrument. The appeals court (CAFC) made it look easy (05-1091).
Posted by Patent Hawk at 10:40 AM | Claim Construction
October 26, 2005
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.
Posted by Patent Hawk at 10:36 AM | Case Law
October 5, 2005
Wavlet Not A Wave
5,710,835 covered wavelet transforms, an image compression technique. Claim 21 was a broad claim, claiming generically what was only disclosed specifically. In Lizardtech v. Earth Resource Mapping, the CAFC (05-1062) found the claim overreaching.
Posted by Patent Hawk at 11:22 AM | Claim Construction
October 4, 2005
Getting a lock on means-plus-function claim construction is tricky. In JWW v. Interact Accessories, the CAFC (04-1410) had to help the district court lock down the meaning of "lockably".
Posted by Patent Hawk at 12:01 AM | Claim Construction
September 21, 2005
Cytologic v. Ventana Medical Systems (CAFC 04-1446) presented a typical appeal over claim construction, except for having skirted a Markman hearing during district court trial.
Posted by Patent Hawk at 11:59 AM | Claim Construction
September 17, 2005
Free Motion Claim Construction
Posted by Patent Hawk at 11:25 AM | Claim Construction
September 14, 2005
The CAFC (03-1092) decked the District Court for a ruling about floor boards.
Posted by Patent Hawk at 11:42 AM | Claim Construction
September 13, 2005
Festo in Fertilizer
Biagro sued Grow More over 5,830,255, for a fertilizer. Nothing grew from it.
Posted by Patent Hawk at 2:51 PM | Claim Construction
September 9, 2005
Network Commerce sued Microsoft for infringing 6,073,124. The critical claim construction issue was definition of the term "download component". Both plaintiff and defendant got it wrong, but the CAFC (04-1445) said that the District Court got it right. As in Phillips v. AWH, intrinsic evidence trumped extrinsic.
Posted by Patent Hawk at 12:14 AM | Claim Construction
August 20, 2005
In Aquatex v Techniche Solutions (CAFC 05-1088), the Court of Appeals drove a curvy path of infringement analysis in light of claim construction and applying the doctrine of equivalents.
Posted by Patent Hawk at 12:47 AM | Claim Construction
August 18, 2005
Claim Construction Replay
Posted by Patent Hawk at 12:00 AM | Claim Construction
August 17, 2005
Terlep v. Brinkmann hinged on claim construction, specifically the definition of the word 'clear', in reference to an LED. The district court ruled that 'clear' meant more clear than less clear (as in, translucent). On appeal by Terlep, wishing things were a little less clear, the Court of Appeals (04-1337, August 16, 2005) reviewed the stack of claim construction evidence in the priority set forth in Phillips v AWH, and agreed with the district court. Ditto applying the doctrine of equivalence during infringement analysis, particularly in light of the precedent of Festo.
Posted by Patent Hawk at 12:02 AM | Claim Construction
August 12, 2005
Have A Seat
5,492,389, owned by Freedman Seating Company, covers bus seats. Freedman sued American Seating Company over it. (CAFC 04-1216, August 11, 2005). This trip, the doctrine of equivalence took a ride.
Posted by Patent Hawk at 2:02 PM | Claim Construction
August 6, 2005
Waiver & Estoppel
Two concepts affected appeal of claim construction in Harris v. Ericsson (CAFC 03-1625, decided Aug. 5, 2005): waiver & estoppel.
Posted by Patent Hawk at 12:02 AM | Claim Construction
July 16, 2005
Claim Construction Priority Stack
Phillips v. AWH hopefully marks a watershed ruling on claim construction. Let's begin by reviewing the highlights of Phillips v. AWH, then mix in NAC v. Plastipak. To finish the meal with some fruit, some comments on Judges Mayar's and Newman's raspberry in Phillips v. AWH.
Posted by Patent Hawk at 12:30 AM | Claim Construction
July 15, 2005
Not Dissing Dictionaries
If you saw the adjective "generally" in a patent claim, how would you define it? What method would you use for claim construction?
Posted by Patent Hawk at 12:07 AM | Claim Construction
July 12, 2005
In a long-awaited en banc appeals court ruling, which drew numerous amicus briefs, the CAFC inks an overwrought claim construction classic over the meaning of the term "baffles," declaring a priority stack, from intrinsic to extrinsic evidence, for construing disputed claim terms. Dissent finds the surface shiny, and the core rotten.
Posted by Patent Hawk at 5:45 PM | Claim Construction
May 7, 2005
Conventional Claim Construction
PC Connector Solutions had no solution for crappy claims tossed for non-infringement on summary judgment in district court, and upheld in the appeals court (04-1180). The problem: tradition and convention.
Posted by Patent Hawk at 2:13 AM | Claim Construction
April 30, 2005
A Close Shave of Claim Construction
Gillette owns 6,212,777, for wet-shave safety razors with multiple blades. Specifically, claim 1, the only independent, cited "a safety razor blade unit comprising a guard, a cap, and a group of first, second, and third blades." Gillette sued Energizer Holdings for patent infringement for coming out with a four-blade razor product. Count the blades, and therein the problem lies.
Posted by Patent Hawk at 1:01 AM | Claim Construction
April 22, 2005
Ever wonder what could happen if the patent office made a mistake in publishing a patent claim? Can it be fixed?
In Hoffer v. Microsoft (04-1103), the district court felt powerless to correct an obvious misnumbering by the patent office, but the appeals court had some whiteout.
Posted by Patent Hawk at 6:15 PM | Claim Construction
April 12, 2005
Claim Construction Instruction
Nazomi Communications sued Arm Holdings for patent infringement, and the Northern California District Court pitched the case on summary judgment of non-infringement based on a disputed claim construction. The rub that led to appeal was for one basic computer term - one term which gave the U.S. Court of Appeals for the Federal Circuit (CAFC) an opportunity for claim construction instruction. [Nazomi Communications v. Arm Holdings (04-1101)]
Posted by Patent Hawk at 12:02 AM | Claim Construction
March 29, 2005
District Court Insufficiently Boneheaded
Tranquil Prospects owns 5,222,985 and 4,636,214, about bone prostheses implants. Howmedica Osteonics, staring down the barrel of an infringement assertion gun, popped off the first shot by seeking a declaratory judgment in northern Indiana district court that the claims of both patents were invalid by reason of indefiniteness. One can only suppose that being plaintiff really carries a heavy presumption in northern Indiana.
Posted by Patent Hawk at 12:06 AM | Claim Construction
March 17, 2005
The Claim Game
A patent’s true value, to provide exclusive territory via a time-limited monopoly, appreciates or diminishes on the scope of its claims. Determining the scope of patent claims, therefore, is crucial. An opinion that, perhaps, will redefine the established guidelines of claim scope interpretation is anxiously awaited from an en banc sitting of the Court of Appeals for the Federal Circuit (CAFC) in Phillips v. AWH Corp. To better understand the context of this anxiously awaited opinion, some nuances of claim construction are presented.
Posted by Peter Haas at 9:14 AM | Claim Construction