May 16, 2013
Down the Rabbit Hole
Alice, a corporation from Down Under, got a family of system and method patents that broadly claimed computerizing escrow as a way of mitigating settlement risk. CLS got spooked and got a summary declaratory judgment of invalidity via §101 without the judge bothering to construe the claims. In an en banc appeal, the CAFC, in affirmance, displays a profound ignorance of the law with a stunning absence of cogency.
Continue reading "Down the Rabbit Hole"
Posted by Patent Hawk at 10:17 PM | § 101
April 7, 2013
No Benefits
Steve Morsa filed a patent claiming benefits processing. The PTO rejected over prior art, first arguing anticipation; then, when that deficiency was pointed out, hand-waving obviousness. Morsa made cogent, reasonably undeniable arguments, based on evidence, that the prior art used was not in fact prior art - that it was published nearly two years later. Morsa argued that the supposed prior art wasn't enabling, nor a solid basis for obviousness. The PTO didn't care a whit for any of it. The Board granted a rehearing only to pile on new grounds of rejection, without allowing Morsa any opportunity whatsoever to refute the rejections. On appeal, a CAFC panel didn't bother to examine the facts, nor follow the law. Largely ignorning Morsa's arguments, the CAFC rubber-stamped the PTO. The only issue that caught the CAFC's attention was the examiner dismissing Morsa's prior art enablement argument by saying the he had failed to file any expert declartion or affidavit in support. That odious requirement went too far. "We see no reason to require such submissions in all cases," the CAFC panel opined. "Here, Morsa identified specific, concrete reasons why he believed the short press release at issue was not enabling, and the Board and the examiner failed to address these arguments." For this a partial remand, though to moot point - only to clean a smudge on the claims' death warrant. The claims were damned over an unsupported conjecture of obviousness. One more chip on the pile exposing the fundamentally lawless process of caprice by the U.S. patent office and at the CAFC. (CAFC 2012-1609)
Posted by Patent Hawk at 12:11 AM | Prosecution
April 4, 2013
Means
In Saffran v. Johnson & Johnson, the CAFC (2012-1043) satisfied its plutocratic bias, relieving J&J of a pesky infringement by narrowing claim construction from that emanating from esteemed Judge T. John Ward in the Eastern District of Texas. The interesting facet in this case was a reminder that relying upon means-plus-function claim language is always fraught with the danger of inadequate disclosure. "'[a] patentee cannot avoid providing specificity as to structure simply because someone of ordinary skill in the art would be able to devise a means to perform the claimed function.' Blackboard, Inc. v. Desire2Learn, Inc., 574 F.3d 1371, 1385 (Fed. Cir. 2009). Under § 112, ¶ 6, the question is not what structures a person of ordinary skill in the art would know are capable of performing a given function, but what structures are specifically disclosed and tied to that function in the specification."
Posted by Patent Hawk at 1:30 PM | Claim Construction
March 31, 2013
Patent Law By Design
Tim Owens added a internal (unclaimed) trapazoidal region to his bottle design application. The examiner considered it a substantial change (new subject matter), as did the PTO appeal Board and CAFC. That may seem unremarkable, except it represents a substantial change in the law by PTO fiat, backed by the appeals court.
Continue reading "Patent Law By Design"
Posted by Patent Hawk at 2:32 PM | Design Patents
March 18, 2013
Gamey
In
Aristocrat v. International Game (CAFC
2010-1426), there was no direct infringement of gaming machine method claims
because the accused infringer didn't control a player's actions. Bad claims
drafting was the root problem here. Many prosecutors don't understand how claims
are treated in litigation, as in this instance. On the finer point of indirect
infringement, the CAFC noted inattention all around: "neither the parties, nor
the district court in its summary judgment order, expend significant time on the
question of indirect or induced infringement." The district court found
non-infringement based upon outdated case law. (The CAFC and SCOTUS
substantially change patent law willy-nilly on an irregular basis.) Current law
of indirect infringement, under the Akamai precedent, is based upon the
notion of a hypothetical "single party would be liable as a direct infringer."
With all the facts and law before it, but too inattentive to do its job
properly, the CAFC remanded for the district court to figure it out, while
giving the law firms involved another welcome boost for more fees to their
clients.
Posted by Patent Hawk at 2:13 PM | Infringement
March 6, 2013
Inequitable Estoppel
Bumper Boy asserted animal collar patents that the district court denied on non-infringement against Radio Shack via equitable estoppel, as Bumper Boy wrote a threatening letter, then did nothing for years. On appeal (CAFC 2012-1233), a 2-1 decision highlighted the often capricious court interpretation of the law in this country. A CAFC panel majority: 1) found that Bumper Boy mysteriously eluded equitable estoppel on a CIP even though "these claims do not draw on any new matter"; 2) completely ignored Radio Shack's invalidity arguments, contrary to law (ostensibly for not filing a cross-appeal, when it wasn't necessary. As the dissent pointed out: "the prevailing party need not file a cross-appeal in order to defend a judgment in its favor on any ground that is supported by the record.") Dissenting Judge Newman was rightly disgusted with colleagues Moore and Reyna.
Posted by Patent Hawk at 9:25 PM | Infringement
Inducing Move
In Move v. Real Estate Alliance (CAFC 2012-1342), Move duped the district court by having the judge whitewash non-infringement. On appeal, a CAFC panel found "the district court failed to conduct an indirect infringement analysis," as Move may have induced infringement: "knew of the asserted patent and performed or knowingly induced the performance of the steps of the claimed methods, and that all of those steps were in fact performed." Under the controversial Akamai precedent, "liability under § 271(b) may arise when the steps of a method claim are performed by more than one entity, provided that the other requirements for inducement are met."
Posted by Patent Hawk at 8:59 PM | Infringement
February 21, 2013
Function-Way-Result
Brilliant Instruments filed a declaratory judgment action against GuideTech over microprocessor timing error detection circuits (e.g., 6,181,649). Brilliant prevailed before the district court, which found non-infringement. GuideTech appealed, arguing that the district court got it wrong in considering the doctrine of equivalents.
Continue reading "Function-Way-Result"
Posted by Patent Hawk at 12:52 AM | Infringement
February 17, 2013
Ignoring the Preamble
Eric Jasinski tried to get a patent for testing computer memory via "verifying the accuracy of logical-to-physical mapping software designed for testing memory devices." In finding anticipation, the USPTO Board ignored the preamble limitation, which was also called out in the body of the claim. In a rare reversal by the CAFC (2012-1482) of patent office rejection, a panel rightly observed: "it also provides the criteria by which the previously-recited comparing limitation is analyzed. We thus conclude that the 'to verify/verifying' language is limiting." If there's a practical lesson here (aside from the capricious irrascibility of the PTO), it's to not rely on the preamble as limiting.
Posted by Patent Hawk at 12:56 AM | Prosecution
February 11, 2013
Assignment
Semiconductor Energy Laboratory (SEL) owns 6,900,463, which claims a certain semiconductor. Yujiro Nagata is the second-named of two inventors. "During prosecution in 1991, Nagata assigned his rights to applications and patents related to the '463 patent to SEL's founder Dr. Shunpei Yamazaki, and subsequently signed a substitute Declaration and Assignment of those applications and patents. From 2002 to 2003, Nagata assisted SEL in a patent infringement suit against another party and was paid for his cooperation and services relating to that litigation."
Posted by Patent Hawk at 1:32 PM | Case Law
February 7, 2013
Chilled Out
Arkema wants to compete against Honeywell in the automotive cooling system market. Honeywell had already tried to freeze them out with a patent infringment suit. So Arkema filed a declaratory judgment action to invalidate other relevant Honeywell patents. Judge William H. Yohn, Jr. in the Eastern District of Pennsylvania (Philadelphia) saw no cause for complaint. Facing undisputed facts, citing the SCOTUS MedImmune ruling, the CAFC (2012-1308) found otherwise. This appears another biased ruling by a district court judge for the American company (Honeywell) against a foreign interloper (France-based Akrema).
Posted by Patent Hawk at 12:17 AM | Declaratory Judgment
January 26, 2013
Twang
Ernie Ball v. Earvana presents episodic ineptness by a patent prosecutor, examiner, litigators and district court judge. 6,433,264 claims "a compensated nut for a stringed instruments," as a means for tuning for "fixed intonation portions [that] does not form a sinusoidal arc."
Posted by Patent Hawk at 12:43 AM | § 112
January 24, 2013
Conveyed
Rexnord Industries got an inter partes reexam on
6,523,680, which claims a radius conveyor belt system, after patent holder
Habasit accused Rexnord of infringement. The examiner crucified the patent on
the alter of prior art, but the PTO Board resurrected it, holding the patent
valid. Rexnord appealed to the CAFC.
Posted by Patent Hawk at 12:26 PM | Prosecution
January 14, 2013
ITC Clash
The lawlessness of the CAFC continues. Before the ITC, InterDigital, an American company, managed to outmaneuver Nokia, a Finnish company, from importing products. Chief Judge Rader led a pack of nine in spouting nonsense in defense of domestic corporatism. Only Judge Newman had her wits about her. "InterDigital does not manufacture the patented invention in the United States, and no domestic industry produces the items for which exclusion is sought. The license that InterDigital seeks to impose on Nokia, on threat of exclusion of importation, is not a license to manufacture any patented product in the United States; it is a license to import products made in foreign countries. The panel majority errs in holding that Congress intended to authorize access to the ITC exclusion remedy in such circumstances. That is not the purpose of the "licensing" amendment to Section 337 of the Tariff Act. The panel majority erred in holding that the domestic industry requirement is met by licensing the importation of foreign-made products." (CAFC 2010-1093)
Posted by Patent Hawk at 1:18 AM | ITC
January 7, 2013
Hindsight Motivation
In re Chevalier (CAFC 2012-1254) is a garden-variety affirmation of obviousness, where hindsight motivation was used to combine prior art references to solve the problem of the claimed invention. "The Supreme Court stated in KSR that "when a patent claims a structure already known in the prior art that is altered by the mere substitution of one element for another known in the field, the combination must do more than yield a predictable result.'" Further, under its recent "substantial evidence" standard, the CAFC continues to make clear that some egregious error must be evident for it to give any traction to denying the USPTO its purview.
Posted by Patent Hawk at 11:34 PM | Prior Art
December 27, 2012
Outside the Box
The heart of the problem
with patents lies with obviousness. Before Obzilla came to town, some scintilla
of indication in the prior art had to exist before a claim could be considered
obviousness. KSR v. Teleflex reset obviousness calibration to
incorporate subjective evaluation; to read between the lines of prior disclosure.
No longer being beholden to facts invariably opened the door to hindsight
reasoning and adjudication bias, which has been a large part of the legacy of
KSR. That withstanding, the problem remains how as to how far "common sense" and
ethereal predictability should go as a matter of law. In C.W. Zumbiel v. Kappos, a CAFC
panel doesn't go far enough, as the dissent points out.
Continue reading "Outside the Box"
Posted by Patent Hawk at 4:54 PM | Prior Art
Slackers
Hal Wegner reports that "several dozen - or scores of hundreds - of patent applications remain pending" that predate the 1995 GATT treaty. If granted, these patents would have a 35-year term from filing date (20 is nominal), lasting to 2030. IPO Daily News reports that the patent backlog remains unchecked, holding steady at 1.25 million pending applications for the past three years. After an examiner hiring surge this past year, the only improvement is time to first office action.
Posted by Patent Hawk at 1:15 AM | The Patent Office
December 17, 2012
Dumping
Dumb judges have been dumped on the CAFC for decades. The few decent ones are fed up. Old saws Dyk and Clevenger are called out by a dissent from Judge Reyna, the penultimate member, over an anti-dumping appeal from a Chinese company.
Posted by Patent Hawk at 11:27 AM | Case Law
December 11, 2012
Mootness
The overbearing bumbling of the CAFC is ceaseless. In Nissim v. Clearplay (CAFC 2012-118), a panel majority reverses a district court's dismissal of overseeing a settlement as moot, while the dissent points out that "the district court was never, and is not now, obligated to retain jurisdiction to enforce the settlement agreement. This is particularly true here because the court determined that continuing to assert jurisdiction would not foster judicial economy." The majority opinion is rife with specious logic, misapprehension of fact, bias, and has no meaningful basis in law. For example, after pointing out "that the [district] court was exasperated with the parties," the CAFC majority claims that its own opinion "does not depend on a court's opinion of the litigants or of counsel." How disingenuous: to assert that something which bothers does not matter a whit; especially when the upshot of the ruling is to simply remand for further annoyance, while reminding the district court that it may do as it pleases, as long as it minds its tone.
Posted by Patent Hawk at 3:17 PM | Litigation
December 8, 2012
Low Mark
Highmark v Allcare (CAFC 2011-1219) hit a low mark for CAFC squabbling. There was an en banc ruckus over rehearing an exceptional case; specifically, to what degree deference is given to district court discretion on questions of law. The majority denied rehearing, while CAFC power mongers, including Chief Judge Rader, would give a district court "no deference." Such is the fractious fiction called "rule of law." Such petty disputes like this simmer for decades. This is a simple issue that should have been settled long ago.
Posted by Patent Hawk at 1:26 PM | Case Law
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