August 14, 2010
Plugged
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 | Comments (0)
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.
Continue reading "Tracking & Waiving"
Posted by Patent Hawk at 9:30 PM | Infringement | Comments (0)
August 7, 2010
Hang Up
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 | Comments (0)
August 5, 2010
Equivalent Spit
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.
Continue reading "Equivalent Spit"
Posted by Patent Hawk at 10:06 PM | Claim Construction | Comments (0)
August 4, 2010
Pig Out
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).
Posted by Patent Hawk at 10:03 PM | Claim Construction | Comments (6)
July 29, 2010
Plunger
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.
Posted by Patent Hawk at 5:48 PM | Claim Construction | Comments (6)
July 6, 2010
Garbage Bits
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.
Continue reading "Garbage Bits"
Posted by Patent Hawk at 8:47 PM | Claim Construction | Comments (1)
June 6, 2010
Channeled
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 | Comments (0)
June 4, 2010
Animated
Beginning
its enforcement campaign with the beginning of the alphabet, Silicon Graphics
sued ATI and AMD, ultimately for infringing
6,650,327, which claims pipelined floating point graphics calculations. Two
other patents had been asserted, but summary judgment in favor of defendants
wiped the litigation of those. Summary judgment of non-infringement, as well as
a district court finding that a Microsoft license covered part of the action,
wiped '327's assertion. But the counterclaim case proceeded to trial, where the
patent was found not invalid. Then, naturally, appeal from both sides. Besides
claim construction and infringement, a look herein at exhausting defenses and
counterclaims.
Posted by Patent Hawk at 1:06 PM | Claim Construction | Comments (9)
June 2, 2010
Spun
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.
Posted by Patent Hawk at 3:31 PM | Claim Construction | Comments (4)
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."
Continue reading "Patent Slips on Non-Slip Surface"
Posted by Patent Hawk at 3:57 PM | Claim Construction | Comments (2)
April 29, 2010
Dun In
Judson A. Bradford had some ideas for collapsible shipping containers. So he
patented.
5,725,119 came first. Then
6,230,916, a divisional of '119.
6,540,096 was a CIP of '916. Enforcement went nowhere: noninfringement. But
the CAFC revived Bradford's prospects owing to a too-narrow claim construction.
Of particular interest in this case is that Bradford damned himself in the '096
CIP having benefit of the earlier '119 parent prior date.
Posted by Patent Hawk at 3:09 PM | Claim Construction | Comments (1)
April 10, 2010
Outbid
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 | Comments (0)
March 31, 2010
Score Line
Pressure
Products Medical Supplies invented a valve remover for an introducer, netting
5,125,904 &
5,312,355. Under a rolling claim construction, the patents were found valid
and infringed by the jury, with Pressure Products awarded $1.1 million in damages. Appeal
rolled back the score.
Posted by Patent Hawk at 12:58 PM | Claim Construction | Comments (0)
March 30, 2010
Regulated
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 | Comments (0)
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.
Continue reading "Definitely Woolly Bully"
Posted by Patent Hawk at 1:06 PM | Claim Construction | Comments (0)
March 25, 2010
Preamble
"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.
Posted by Patent Hawk at 12:13 PM | Claim Construction | Comments (46)
March 5, 2010
Cool Analogy
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.
Continue reading "Cool Analogy"
Posted by Patent Hawk at 9:10 PM | Prior Art | Comments (6)
February 27, 2010
Static
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.
Posted by Patent Hawk at 4:59 PM | Claim Construction | Comments (3)
February 19, 2010
Floored
"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.
Posted by Patent Hawk at 9:37 AM | Claim Construction | Comments (0)
February 7, 2010
Deep Fryer
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.
Posted by Patent Hawk at 1:29 PM | Infringement | Comments (1)
January 22, 2010
Vexed Fax
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 | Comments (0)
January 15, 2010
Going Up
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 | Comments (0)
December 22, 2009
Unpreserved
i4i sued Microsoft for a pissant feature in Word: editing custom XML.
But to i4i's business, the feature was puissant. A seven-day trial found
Microsoft willfully infringing a valid patent, with a jury award of $200
million. "Although statutorily authorized to triple the jury's damages award
because of Microsoft's willful infringement, the district court awarded only $40
million in additional damages. It also granted i4i's motion for a permanent
injunction." The inevitable appeal, widely expected to go more Microsoft's way
than not, did not. Procedural fumbling by supposedly the best lawyers money can
buy sold Microsoft short. Herein, CAFC case law heavy on burden and sufficiency,
in a case practically covering the gauntlet of patent enforcement.
Continue reading "Unpreserved"
Posted by Patent Hawk at 8:57 PM | Case Law | Comments (1)
December 13, 2009
So Unlike Concrete
In
an extremely messy patent case involving claim construction (and correction),
noninfringement, invalidity, laches, indefiniteness, trade secrets, and topped
with several business torts, Ultimax Cement had its quick-set concrete patents
crumble by a sledgehammer summary judgment at district court, and so Ultimax
sought repair at the CAFC. The foundation of the patent problem: lack of careful
proofreading by the prosecutor.
Continue reading "So Unlike Concrete"
Posted by Patent Hawk at 1:04 AM | Claim Construction | Comments (3)
December 8, 2009
Actually Factual
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.
Continue reading "Actually Factual"
Posted by Patent Hawk at 5:26 PM | Infringement | Comments (1)
October 2, 2009
Claim Aneurism
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.
Continue reading "Claim Aneurism"
Posted by Patent Hawk at 11:10 PM | Claim Construction | Comments (1)
September 24, 2009
Stamped
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 | Comments (0)
September 14, 2009
No Padding
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 | Comments (0)
September 9, 2009
Petrified Wood
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."
Continue reading "Petrified Wood"
Posted by Patent Hawk at 12:02 PM | Claim Construction | Comments (0)
September 3, 2009
Healthy Assertion
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?
Continue reading "Healthy Assertion"
Posted by Patent Hawk at 7:25 PM | § 112 | Comments (5)
July 30, 2009
Claimless
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 | Comments (0)
July 27, 2009
Erased
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 | Comments (0)
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.
Continue reading "Off the Shelf"
Posted by Patent Hawk at 9:49 PM | Claim Construction | Comments (17)
June 24, 2009
Mastered
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 | Comments (0)
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.
Continue reading "Out of the Ditch"
Posted by Patent Hawk at 6:07 PM | Claim Construction | Comments (1)
June 13, 2009
Twang
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.
Posted by Patent Hawk at 10:20 AM | Prior Art | Comments (3)
June 9, 2009
Biocide
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.
Posted by Patent Hawk at 8:40 PM | Claim Construction | Comments (5)
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.
Continue reading "Outside the Membrane"
Posted by Patent Hawk at 10:23 PM | Claim Construction | Comments (15)
May 27, 2009
Projection
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 | Comments (0)
May 25, 2009
Exercise
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.
Posted by Patent Hawk at 2:12 PM | Claim Construction | Comments (10)
May 22, 2009
Overreaching Thoughtlessness
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.
Continue reading "Overreaching Thoughtlessness"
Posted by Patent Hawk at 5:04 PM | Claim Construction | Comments (0)
May 21, 2009
Linear
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 | Comments (0)
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.
Continue reading "Product by Process"
Posted by Patent Hawk at 9:15 PM | Claim Construction | Comments (37)
May 12, 2009
Witless Fitness
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.
Continue reading "Witless Fitness"
Posted by Patent Hawk at 10:24 PM | Claim Construction | Comments (0)
May 1, 2009
Cents-less
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 | Comments (0)
April 27, 2009
Smoked
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 | Comments (0)
April 10, 2009
Trunked
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 | Comments (0)
March 31, 2009
Shadows
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 | Comments (0)
March 17, 2009
Canned
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 | Comments (0)
March 13, 2009
Spiked
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.
Posted by Patent Hawk at 8:02 PM | Claim Construction | Comments (11)
February 14, 2009
Calmed Waters
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.
Continue reading "Calmed Waters"
Posted by Patent Hawk at 1:22 PM | Claim Construction | Comments (0)
February 2, 2009
Wounded
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 | Comments (0)
January 11, 2009
Bad Coordinates
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.
Continue reading "Bad Coordinates"
Posted by Patent Hawk at 12:10 AM | Claim Construction | Comments (5)
December 15, 2008
Fingered
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 | Comments (0)
December 13, 2008
Blue Grass
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 | Comments (0)
November 20, 2008
Plugged
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 | Comments (0)
November 3, 2008
Amazin' Claimin'
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.
Continue reading "Amazin' Claimin'"
Posted by Patent Hawk at 12:44 AM | Claim Construction | Comments (2)
October 14, 2008
Down Boy
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 | Comments (0)
October 10, 2008
Complexities
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.
Continue reading "Complexities"
Posted by Patent Hawk at 1:27 PM | Claim Construction | Comments (0)
September 26, 2008
In the Fire
Broadcom
and Qualcomm have a cell phone chip patent war going on. A major
clash was appealed, with blood spilled.
Broadcom got a permanent injunction, even though it didn't practice the claimed invention. While the courts found it "generally in the public interest to uphold patent rights," an injunction would not have been granted if not for giving Qualcomm a "sunset provision" to wean itself from infringement. This ruling could be a roadmap for future injunctive relief.
Inducing infringement was rehashed. Unlike willfulness, where a clearing opinion means nothing, it can mean something when considering inducing infringement, which "may be established through circumstantial evidence," considering the totality of circumstances.
Further, the CAFC found obvious error with district court claim construction. Further evidence of a trial court system ill-equipped for patent cases. On appeal, Broadcom made one of the most bizarre claim construction arguments possible: that if a claim were properly construed, it would be prima facie invalid in light of cited prior art, ergo, could not construed that way. So what, the court ruled. It's invalid.
Continue reading "In the Fire"
Posted by Patent Hawk at 9:30 PM | Injunction | Comments (0)
September 12, 2008
Scarecrow
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 | Comments (0)
September 2, 2008
Kneed
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 | Comments (0)
August 31, 2008
Phoning It In
800 Adept successfully sued Targus for
two patents routing 800 number calls to a
local service location. A 24-day jury trial spat a $18 million patent
infringement award, attorneys fees for it being an exceptional case, permanent
injunction, and Targus "liable under state law for tortious interference with
Adept's business relationships," worth $7 million. Found willful, the award
ballooned to $49 million. Targus' 10 counterclaim patents, covering much the
same territory, bit dust. Overturned on appeal on claim construction, and other
trial court errors.
Continue reading "Phoning It In"
Posted by Patent Hawk at 3:14 PM | Claim Construction | Comments (0)
August 28, 2008
Heated Argument
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.
Continue reading "Heated Argument"
Posted by Patent Hawk at 2:41 PM | Claim Construction | Comments (0)
August 22, 2008
Shoe Shoo
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 | Comments (0)
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.
Continue reading "In the Aorta"
Posted by Patent Hawk at 11:16 AM | Injunction | Comments (0)
August 16, 2008
Enlargement Stress
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.
Continue reading "Enlargement Stress"
Posted by Patent Hawk at 1:55 PM | Claim Construction | Comments (0)
August 7, 2008
Summary Misjudgment
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.
Continue reading "Summary Misjudgment"
Posted by Patent Hawk at 11:01 AM | Claim Construction | Comments (2)
July 24, 2008
Silly Syllables
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.
Continue reading "Silly Syllables"
Posted by Patent Hawk at 9:10 PM | Claim Construction | Comments (1)
June 25, 2008
Bottled
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.
Posted by Patent Hawk at 1:39 PM | Claim Construction | Comments (1)
June 23, 2008
Carded
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 | Comments (0)
June 4, 2008
Partially
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 | Comments (0)
May 28, 2008
Reactor
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 | Comments (0)
May 22, 2008
Cleanup Crew
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.
Continue reading "Cleanup Crew"
Posted by Patent Hawk at 3:56 PM | Claim Construction | Comments (1)
May 19, 2008
Careful Assertion
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.
Continue reading "Careful Assertion"
Posted by Patent Hawk at 10:03 PM | Litigation | Comments (0)
May 14, 2008
Squashed Mango
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.
Continue reading "Squashed Mango"
Posted by Patent Hawk at 12:49 PM | Claim Construction | Comments (0)
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.
Continue reading "Broken and Unbroken"
Posted by Patent Hawk at 12:04 AM | The Patent System | Comments (0)
May 8, 2008
Claim Stink
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.
Continue reading "Claim Stink"
Posted by Patent Hawk at 10:00 PM | Claim Construction | Comments (0)
Kiosk Mirage
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.
Continue reading "Kiosk Mirage"
Posted by Patent Hawk at 2:01 AM | Claim Construction | Comments (0)
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.
Continue reading "Out of Gear"
Posted by Patent Hawk at 10:10 PM | Claim Construction | Comments (0)
May 6, 2008
Toothless Vampire
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.
Continue reading "Toothless Vampire"
Posted by Patent Hawk at 7:23 PM | Claim Construction | Comments (0)
April 20, 2008
Beaming Down
Finisar sued
DirecTV in East Texas for infringing
5,404,505, garnering from a jury a $78.9 million reasonable royalty damages award for willful
infringement. The district court tacked on $25 million while denying
injunctive relief. On appeal, a claim construction error vacated the verdict, as well as
raising from the grave potentially invalidating prior art.
Continue reading "Beaming Down"
Posted by Patent Hawk at 12:31 AM | Prior Art | Comments (0)
April 18, 2008
Unforseeable
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.
Continue reading "Unforseeable"
Posted by Patent Hawk at 1:04 PM | Claim Construction | Comments (1)
April 17, 2008
Hospital TV
Zenith
has a couple patents (5,495,301;
5,502,513) for TV remote controls for hospital room use. Zenith sued PDI for
infringement. PDI won a summary judgment of prior art invalidity on claim 1 of
'301, and non-infringement on both patents. Zenith appealed. Herein reminders
that: 1) practicing the prior art does not prove anticipation; 2) determining
anticipation by public use doesn't require an enablement finding. "We must
simply determine whether the public use related to a device that embodied the
invention."
Continue reading "Hospital TV"
Posted by Patent Hawk at 2:49 AM | Prior Art | Comments (0)
April 14, 2008
CIP Junk
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.
Posted by Patent Hawk at 1:10 AM | Claim Construction | Comments (4)
April 12, 2008
Viral
Hilgraeve
Corporation, owner of computer virus detector patent
5,319,776, sued McAffee and lost on
non-infringement. Next, it sued
Symantec and lost again in district court, but had an unfavorable claim
construction reversed on appeal. Symantec settled, buying the patent. In that
process, Symantec picked up the lawsuit Hillgraeve had brought against
Computer Associates (CA).
Posted by Patent Hawk at 3:51 PM | Claim Construction | Comments (0)
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.
Continue reading "Down to History"
Posted by Patent Hawk at 5:52 PM | Claim Construction | Comments (1)
April 7, 2008
Only If, Take 2
O2
enforced its DC-to-AC converter patents against Beyond Innovation and others.
Construction of the claim term "only if" sparked a slight disagreement among
defendants, but was only "two simple plain English words" to O2. The district
court judge agreed with O2: no construction needed. The appeals court did not.
Continue reading "Only If, Take 2"
Posted by Patrick Anderson at 7:45 PM | Claim Construction | Comments (0)
April 3, 2008
Only If
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 | Comments (0)
April 1, 2008
Pipeline Stage
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.
Continue reading "Pipeline Stage"
Posted by Patent Hawk at 8:40 PM | Claim Construction | Comments (0)
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 | Comments (0)
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.
Continue reading "Mixed Claim Types"
Posted by Patent Hawk at 12:11 AM | Claim Construction | Comments (3)
March 21, 2008
Undocked
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 | Comments (0)
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.
Continue reading "Old & Inexperienced"
Posted by Patent Hawk at 11:42 AM | Claim Construction | Comments (0)
February 28, 2008
Screening
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 | Comments (0)
February 22, 2008
Factual Fiction
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."
Continue reading "Factual Fiction"
Posted by Patent Hawk at 2:38 PM | § 112 | Comments (0)
February 6, 2008
Batter Out
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 | Comments (0)
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.
Continue reading "Trying to Change the Channel"
Posted by Patent Hawk at 12:57 PM | Claim Construction | Comments (1)
January 30, 2008
Outlet Inclusion
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.
Continue reading "Outlet Inclusion"
Posted by Patent Hawk at 12:21 PM | Claim Construction | Comments (1)
January 19, 2008
Between
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 | Comments (0)
January 17, 2008
Oops!
Abbott
had lousy lawyers defending it against
Innogenetics patent
5,846,704. Abbott passed an opportunity to correct a court mistake, thus
leaving it without expert testimony from one expert. Abbott farted around on
invalidating the patent, not producing the ringer until the last day of
discovery. And Abbott simply blew the chance to have the inventor of the
anticipating art act as expert witness. For all its pains, its defense crumbled
with a losing claim construction, Abbott suffered summary judgment of
infringement, and ordered to pay Innogenetics attorneys' fees because its
inequitable conduct charge was "exceptional" in its vacuity. In liability trial, Abbott's expert
testimony was soiled because it "rested on an inaccurate understanding" of a key
claim limitation. Abbott was dinged $7 million and its infringement found
willful by jury; the willfulness charge lifted by the district court judge, who
knew how high that bar had been raised
In re Seagate. But Abbott then was pinned with a permanent injunction.
Appeal gave Abbott another chance, which it largely threw away.
Posted by Patent Hawk at 1:18 PM | Case Law | Comments (0)
January 15, 2008
A
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 | Comments (0)
January 7, 2008
Unstenting
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.
Posted by Patent Hawk at 6:56 PM | Claim Construction | Comments (1)
December 26, 2007
Singular
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 | Comments (0)
December 22, 2007
Lexicography
Flexsys
slammed Sinorgchem at the ITC, winning a limited exclusion order. Sinorgchem
appealed. The CAFC instructed the ITC on claim construction.
Continue reading "Lexicography"
Posted by Patent Hawk at 1:38 AM | Claim Construction | Comments (5)
December 13, 2007
Covered
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.
Posted by Patent Hawk at 12:48 AM | Claim Construction | Comments (1)
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.
Continue reading "Closed Circuit Claim Construction"
Posted by Patent Hawk at 2:15 PM | Claim Construction | Comments (0)
November 2, 2007
Illumination in Range
Mr.
Rolfes, an employee of Phillips, sent a letter to Iwasaki Electric, offering to
licensing
5,109,181, which claimed a particular halogen lamp. No reply; litigation
disco. On appeal, some light shed on claimed ranges and the doctrine of
equivalents.
Continue reading "Illumination in Range"
Posted by Patent Hawk at 2:26 PM | Case Law | Comments (0)
October 12, 2007
Speechless
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 | Comments (0)
October 4, 2007
Later Generation
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.
Continue reading "Later Generation"
Posted by Patent Hawk at 9:51 PM | Claim Construction | Comments (0)
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."
Continue reading "Comprised of Counterfeit"
Posted by Patent Hawk at 12:26 PM | Claim Construction | Comments (4)
September 26, 2007
Ears Ringing
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.
Continue reading "Ears Ringing"
Posted by Patent Hawk at 12:15 PM | Claim Construction | Comments (1)
September 16, 2007
Ordinary Observer
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.
Continue reading "Ordinary Observer"
Posted by Patent Hawk at 8:00 PM | Design Patents | Comments (2)
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.
Continue reading "Prosecution Estoppel Bolted Down"
Posted by Patent Hawk at 1:32 AM | Claim Construction | Comments (0)
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.
Continue reading "A Vista for Visto"
Posted by Patent Hawk at 8:13 PM | Claim Construction | Comments (0)
August 26, 2007
Pulling Teeth
Ormco asserted
four orthodontic software and appliance patents in the same family against Align Technology
(5,447,432;
5,683,243;
6,244,861 and
6,616,444). Align counterclaimed with
6,554,611 and
6,398,548. All asserted claims by both parties were found
unenforceable. Ormco and Align appealed.
Continue reading "Pulling Teeth"
Posted by Patent Hawk at 8:47 PM | Claim Construction | Comments (0)
July 24, 2007
Process Capability
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.
Continue reading "Process Capability"
Posted by Patent Hawk at 10:02 PM | Claim Construction | Comments (0)
July 23, 2007
Heart Attack
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.
Continue reading "Heart Attack"
Posted by Patent Hawk at 9:11 PM | Claim Construction | Comments (0)
July 16, 2007
Controller(s)
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.
Continue reading "Controller(s)"
Posted by Patent Hawk at 9:34 PM | Claim Construction | Comments (0)
July 5, 2007
Foreseeability
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)
Continue reading "Foreseeability"
Posted by Patent Hawk at 2:37 PM | Claim Construction | Comments (0)
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).]
Continue reading "Lame General Purpose"
Posted by Patent Hawk at 2:48 PM | Claim Construction | Comments (0)
Heading
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 | Comments (0)
June 27, 2007
Claim Traction
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)
Continue reading "Claim Traction"
Posted by Patent Hawk at 10:08 PM | Claim Construction | Comments (0)
Cat's Claw
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 | Comments (0)
June 18, 2007
Tripping
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 | Comments (0)
May 23, 2007
Clown Time is Over
Grossly
overreaching by asserting
5,721,832 against Overstock, silly Furnace Brook had the temerity to appeal
its
district court summary dismissal. (CAFC
2007-1064)
Continue reading "Clown Time is Over"
Posted by Patent Hawk at 8:19 PM | Claim Construction | Comments (0)
May 21, 2007
Claim Whacker
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).
Continue reading "Claim Whacker"
Posted by Patent Hawk at 10:01 PM | Claim Construction | Comments (0)
April 27, 2007
Truckin' Estopped
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.
Continue reading "Truckin' Estopped"
Posted by Patent Hawk at 11:48 AM | Claim Construction | Comments (0)
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)).
Continue reading "Claim Construction Roller Coaster"
Posted by Patent Hawk at 1:39 PM | Claim Construction | Comments (0)
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.
Continue reading "Humerus Claim Construction Nailed"
Posted by Patent Hawk at 2:37 PM | Claim Construction | Comments (0)
April 6, 2007
Vest Turkey
"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.
Continue reading "Vest Turkey"
Posted by Patent Hawk at 8:37 PM | Claim Construction | Comments (0)
April 3, 2007
Bad Solution
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]
Continue reading "Bad Solution"
Posted by Patent Hawk at 11:53 AM | Claim Construction | Comments (0)
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.
Continue reading "Doctrine of Equivalents Screwed"
Posted by Patent Hawk at 7:23 PM | Claim Construction | Comments (0)
March 2, 2007
Containment
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."
Continue reading "Containment"
Posted by Patent Hawk at 12:26 PM | Claim Construction | Comments (0)
February 27, 2007
Filler Thriller 2
In
its second appearance before the Court of Appeals (CAFC
2006-1407), Aquatex
v. Technique Solutions, applying
the doctrine of equivalents in light of prosecution estoppel, and functional
equivalence, are the issues at hand. Can Aquatex have its
6,371,977 patent claims for fiberfill apply to non-synthetic material?
A surprising conclusion of ineptitude.
Continue reading "Filler Thriller 2"
Posted by Patent Hawk at 1:04 PM | Case Law | Comments (0)
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.
Continue reading "The Cup Not Runneth Over"
Posted by Patent Hawk at 11:23 AM | Claim Construction | Comments (0)
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.
Continue reading "Who Done It"
Posted by Patent Hawk at 2:15 PM | Claim Construction | Comments (0)
February 9, 2007
Deep Freeze
Dippin' Dots owns 
5,126,156, which claims a process for making ice cream.
"The Dippin’ Dots brand is known to patrons of amusement parks, stadiums, shopping malls, and the like." After Dippin's distributors turned competitors, Dippin' flipped into patent
enforcement, suing left and right. Counterclaim included antitrust, on what defendants called a fraudulently acquired patent. Claim construction, infringement, prior art
(including a newly minted definition of "obvious"), inequitable conduct; it's all in the dip. (CAFC 05-1330)
Continue reading "Deep Freeze"
Posted by Patent Hawk at 3:14 PM | Claim Construction | Comments (0)
February 5, 2007
Unenabled Alternative
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.
Continue reading "Unenabled Alternative"
Posted by Patent Hawk at 1:37 PM | Claim Construction | Comments (1)
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."
Continue reading "Wooden Claim Construction"
Posted by Patent Hawk at 12:39 AM | Claim Construction | Comments (0)
January 24, 2007
The Needle and the Damage Done
MBO
Labs asserted
RE36,885 against Becton-Dickinson. An unfavorable Markman led to a conceded
defeat of summary judgment via non-infringement. So MBO appealed the claim
construction. (CAFC
06-1062)
Continue reading "The Needle and the Damage Done"
Posted by Patent Hawk at 4:11 PM | Claim Construction | Comments (0)
January 22, 2007
Indefinite Curing
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)
Continue reading "Indefinite Curing"
Posted by Patent Hawk at 6:43 PM | Claim Construction | Comments (0)
January 19, 2007
About
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 | Comments (0)
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 | Comments (0)
January 8, 2007
Overall Design
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).
Continue reading "Overall Design"
Posted by Patent Hawk at 11:39 AM | Claim Construction | Comments (0)
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).
Continue reading "Abbott's Preliminary Injunction Rabbit"
Posted by Patent Hawk at 12:58 PM | Injunction | Comments (0)
January 4, 2007
Light Sensor
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.
Continue reading "Light Sensor"
Posted by Patent Hawk at 1:33 PM | Claim Construction | Comments (0)
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.
Continue reading "Dispensing Claim Construction"
Posted by Patent Hawk at 11:04 PM | Claim Construction | Comments (0)
December 14, 2006
Jabbed
DSU Medical sued Japanese medical supply company JMS and
SE Asian manufacturer ITL for
direct, inducement, and contributory infringement of
5,112,311 and
5,266,072,
which claim a guarded winged-needle device that reduces the risk of getting
stuck with the needle. The defendants avoided getting stuck with claims 46-47
and 50-52 of '311 by proving invalidity, but JMS got jabbed $5 million for
infringing '311 claims 49, 53-54. Though long-winded in doing so, the CAFC (04-1620)
wholly concurred with the trial court.
Posted by Patent Hawk at 11:09 AM | Claim Construction | Comments (0)
December 12, 2006
Inoperable?
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.
Continue reading "Inoperable?"
Posted by Patent Hawk at 4:18 PM | Claim Construction | Comments (0)
December 9, 2006
Wireless
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 | Comments (0)
November 30, 2006
Unwired
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 | Comments (0)
November 15, 2006
Knocked Out
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)
Continue reading "Knocked Out"
Posted by Patent Hawk at 10:34 AM | Claim Construction | Comments (0)
November 13, 2006
Detachably Secured
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.
Continue reading "Detachably Secured"
Posted by Patent Hawk at 10:54 AM | Claim Construction | Comments (0)
November 5, 2006
Rightfully Burned
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.
Continue reading "Rightfully Burned"
Posted by Patent Hawk at 4:42 PM | Litigation | Comments (0)
October 19, 2006
Fragile Gel
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."
Continue reading "Fragile Gel"
Posted by Patent Hawk at 3:51 PM | Claim Construction | Comments (0)
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?
Continue reading "Claim Construction Incongruity"
Posted by Patent Hawk at 12:04 AM | Claim Construction | Comments (0)
October 2, 2006
Blowup
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 | Comments (0)
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.
Continue reading "On the Rise"
Posted by Patent Hawk at 1:16 PM | Claim Construction | Comments (0)
September 13, 2006
Aesthetic Correction
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).
Continue reading "Aesthetic Correction"
Posted by Patent Hawk at 12:50 PM | Claim Construction | Comments (1)
August 30, 2006
Obviousness Aligned
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).
Continue reading "Obviousness Aligned"
Posted by Patent Hawk at 12:00 PM | Prior Art | Comments (0)
August 18, 2006
Tissue Issues
Cook
Biotech, exclusive licensee, and Purdue Research Foundation, owner of
5,554,389, sued ACell for infringement. In the appeal (CAFC
05-1458), there was
a significant issue of claim construction, an interesting insight into seeking
damages, and an applied corollary to the "all limitations" rule in figuring
infringement under the doctrine of equivalents.
Continue reading "Tissue Issues"
Posted by Patent Hawk at 12:33 PM | Case Law | Comments (0)
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.
Continue reading "Claim Construction Black Hole"
Posted by Patent Hawk at 3:20 PM | Claim Construction | Comments (0)
August 2, 2006
Dependent Claims
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.
Continue reading "Dependent Claims"
Posted by Patent Hawk at 6:21 PM | Claim Construction | Comments (0)
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.
Continue reading "Wireless & Witless"
Posted by Patent Hawk at 1:46 PM | Claim Construction | Comments (0)
July 13, 2006
No Rest
Flex-Rest
sued Steelcase for infringing patents
for computer keyboard rests (5,709,489
&
5,961,231). Flex-Rest's case followed the nightmare cliché: "The plaintiff's
best day is the day they file."
Posted by Patent Hawk at 1:42 PM | Litigation | Comments (0)
July 7, 2006
Exhaustion
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 | Comments (0)
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.
Continue reading "Prosecution Estoppel Aide"
Posted by Patent Hawk at 12:20 PM | Claim Construction | Comments (2)
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."
Continue reading "Return of Unistroke"
Posted by Patent Hawk at 12:10 PM | Claim Construction | Comments (0)
May 16, 2006
Means-Plus-Function Claims
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.
Continue reading "Means-Plus-Function Claims"
Posted by Patent Hawk at 10:03 PM | Claim Construction | Comments (0)
May 11, 2006
Host Interface
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.
Continue reading "Host Interface"
Posted by Patent Hawk at 12:14 PM | Claim Construction | Comments (0)
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.
Continue reading "Up the Creek"
Posted by Patent Hawk at 2:24 PM | Litigation | Comments (0)
April 19, 2006
Lava Flow
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 | Comments (0)
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.
Continue reading "Universal Remote Control"
Posted by Patent Hawk at 1:40 AM | Claim Construction | Comments (0)
March 31, 2006
Booked
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 | Comments (0)
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.
Continue reading "Claim Construction Nightmare"
Posted by Patent Hawk at 11:28 AM | Claim Construction | Comments (0)
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.
Continue reading "Claim Construction Implant"
Posted by Patent Hawk at 10:14 AM | Claim Construction | Comments (0)
March 3, 2006
Blinking Claims
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.
Continue reading "Blinking Claims"
Posted by Patent Hawk at 12:17 PM | Claim Construction | Comments (0)
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."
Continue reading "Claim Construction Myopia"
Posted by Patent Hawk at 1:43 PM | Claim Construction | Comments (0)
February 24, 2006
Depressing Claims
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."
Continue reading "Depressing Claims"
Posted by Patent Hawk at 11:51 AM | Claim Construction | Comments (0)
February 22, 2006
Novelty Lock
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.
Continue reading "Novelty Lock"
Posted by Patent Hawk at 9:57 AM | Claim Construction | Comments (0)
February 15, 2006
Adjustable
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 | Comments (0)
February 1, 2006
Still Drilling
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.
Continue reading "Still Drilling"
Posted by Patent Hawk at 1:33 PM | Claim Construction | Comments (0)
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.
Continue reading "Claim Scope Per Disclosure Redux"
Posted by Patent Hawk at 12:09 AM | § 112 | Comments (0)
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.
Continue reading "In The Body"
Posted by Patent Hawk at 11:59 AM | Claim Construction | Comments (0)
December 27, 2005
Poker-Faced Injunction
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).
Continue reading "Poker-Faced Injunction"
Posted by Patent Hawk at 11:19 AM | Claim Construction | Comments (0)
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".
Continue reading "Down to "a""
Posted by Patent Hawk at 10:30 AM | Claim Construction | Comments (0)
November 29, 2005
Claim Breadth
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.
Continue reading "Claim Breadth"
Posted by Patent Hawk at 11:59 AM | Claim Construction | Comments (0)
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.
Continue reading "Sugared Preliminary Injunction"
Posted by Patent Hawk at 11:53 AM | Claim Construction | Comments (0)
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.
Continue reading "De Novo Mongrel"
Posted by Patent Hawk at 1:26 AM | Claim Construction | Comments (0)
November 17, 2005
Device-Specific Style
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).
Continue reading "Device-Specific Style"
Posted by Patent Hawk at 1:27 PM | Claim Construction | Comments (0)
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).
Continue reading "Getting A Grip"
Posted by Patent Hawk at 10:40 AM | Claim Construction | Comments (0)
October 26, 2005
Shopping Carted
Dane Industries sued Ameritek Industries for infringement of two patents - 6,220,379 and 5,934,694, regarding a vehicle that retrieves shopping carts. Dane held the patents, but the inventor went to work for Ameritek.
Continue reading "Shopping Carted"
Posted by Patent Hawk at 10:36 AM | Case Law | Comments (0)
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.
Continue reading "Wavlet Not A Wave"
Posted by Patent Hawk at 11:22 AM | Claim Construction | Comments (0)
October 4, 2005
Lockably Construed
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".
Continue reading "Lockably Construed"
Posted by Patent Hawk at 12:01 AM | Claim Construction | Comments (0)
September 21, 2005
Skirting Markman
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.
Continue reading "Skirting Markman"
Posted by Patent Hawk at 11:59 AM | Claim Construction | Comments (0)
September 17, 2005
Free Motion Claim Construction
Free Motion got traction from the Appeals Court (05-1006) in its case against Cybex International and Nautilus for accused infringement of its 6,238,323 and 6,458,061 patents.
Continue reading "Free Motion Claim Construction"
Posted by Patent Hawk at 11:25 AM | Claim Construction | Comments (0)
September 14, 2005
Board Stiff
The CAFC (03-1092)
decked the District Court for a ruling about floor boards.
Continue reading "Board Stiff"
Posted by Patent Hawk at 11:42 AM | Claim Construction | Comments (0)
September 13, 2005
Festo in Fertilizer
Biagro sued Grow More over 5,830,255, for a fertilizer. Nothing grew from it.
Continue reading "Festo in Fertilizer"
Posted by Patent Hawk at 2:51 PM | Claim Construction | Comments (0)
September 9, 2005
Download This
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.
Continue reading "Download This"
Posted by Patent Hawk at 12:14 AM | Claim Construction | Comments (0)
August 20, 2005
Filler Thriller
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.
Continue reading "Filler Thriller"
Posted by Patent Hawk at 12:47 AM | Claim Construction | Comments (0)
August 18, 2005
Claim Construction Replay
Evidence is mounting of Phillips v AWH being a landmark ruling on claim construction - adding to the pile is the CAFC affirmation of a district court ruling in Pause v. TiVo (04-1263).
Continue reading "Claim Construction Replay"
Posted by Patent Hawk at 12:00 AM | Claim Construction | Comments (0)
August 17, 2005
Being Clear
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.
Continue reading "Being Clear"
Posted by Patent Hawk at 12:02 AM | Claim Construction | Comments (0)
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.
Continue reading "Have A Seat"
Posted by Patent Hawk at 2:02 PM | Claim Construction | Comments (0)
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.
Continue reading "Waiver & Estoppel"
Posted by Patent Hawk at 12:02 AM | Claim Construction | Comments (0)
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.
Continue reading "Claim Construction Priority Stack"
Posted by Patent Hawk at 12:30 AM | Claim Construction | Comments (0)
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?
Continue reading "Not Dissing Dictionaries"
Posted by Patent Hawk at 12:07 AM | Claim Construction | Comments (0)
July 12, 2005
Dissing Dictionaries
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.
Continue reading "Dissing Dictionaries"
Posted by Patent Hawk at 5:45 PM | Claim Construction | Comments (0)
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.
Continue reading "Conventional Claim Construction"
Posted by Patent Hawk at 2:13 AM | Claim Construction | Comments (0)
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.
Continue reading "A Close Shave of Claim Construction"
Posted by Patent Hawk at 1:01 AM | Claim Construction | Comments (0)
April 22, 2005
Claim Whiteout
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.
Continue reading "Claim Whiteout"
Posted by Patent Hawk at 6:15 PM | Claim Construction | Comments (0)
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)]
Continue reading "Claim Construction Instruction"
Posted by Patent Hawk at 12:02 AM | Claim Construction | Comments (0)
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.
Continue reading "District Court Insufficiently Boneheaded"
Posted by Patent Hawk at 12:06 AM | Claim Construction | Comments (0)
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.
Continue reading "The Claim Game"
Posted by Peter Haas at 9:14 AM | Claim Construction | Comments (0)
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