June 13, 2016
Following the dictum of "I know it when I see it," and in keeping with the Supreme Court's practice of granting the judiciary arbitrary power, the Supreme Court today in Halo Electronics v. Pulse Electronics (14-1513) found that willful infringement is whatever a court can rationalize. "Section 284 of the Patent Act provides that, in a case of infringement, courts 'may increase the damages up to three times the amount found or assessed.' 35 U.S.C. §284. The pertinent language of §284 contains no explicit limit or condition on when enhanced damages are appropriate. At the same time, however, discretion is not whim."
Posted by Patent Hawk at 3:24 PM | Damages
May 31, 2016
In Enfish v. Microsoft et al, the CAFC (2015-1244) continues to split hairs about software as patentable subject matter under §101. Enfish's 6,151,604 and 6,163,775 claim a "self-referential" database, where the database is a single table with "the table's columns defined by rows." (The garden-variety relational database uses multiple tables with references between tables.)
The district court found claiming a self-referential database to be prima facie unpatentable for being abstract ("the concept of organizing information using tabular formats"). But the CAFC reversed, seeing the claims as "directed to a specific improvement to the way computers operate." Because "the claims are directed to a specific implementation of a solution to a problem in the software arts," self-referencing was considered not to be abstract to the appeals court, even though self-referencing is most certainly an abstract idea.
Any logician would have a seizure trying to ferret a rational rule base under current case law for software standing up to §101 when it does not direct physical activity. What most certainly cannot be patented is anything that involves financial or business practices, no matter how specific or novel. The CAFC found in First Choice Loan Services v. Mortgate Grader (2016) that "computational methods which can be performed entirely in the human mind" are not patentable. Beyond the court-sanctioned vagary of being "specific" in this instance, how fiddling with a self-referential table is something other than a mental method, and so passes muster under §101, is inscrutable.
Posted by Patent Hawk at 11:38 PM | § 101
March 28, 2016
Apple v. Samsung Saga
The long-running patent battle between Apple and Samsung took a comedic turn when the CAFC (2015-1171) threw out a $120 million judgment against Samsung for infringing Apple touch-screen patents that were obvious (8,046,721 & 8,074,172). Through bogus claim construction, the district court was also reversed in finding Samsung infringing Apple's 5,946,647 patent, which claimed an "analyzer server" that Samsung did not employ in its similar technology. The upshot: pathetic jurist work by Northern California Judge Lucy H. Koh.
Posted by Patent Hawk at 10:31 PM | Prior Art
February 28, 2016
Zoltek sued the US Air Force and Navy for making carbon fiber sheets for its aircraft claimed under Re 34,162. The federal trial court gave the government a ridiculous degree of deferrence, and found in its favor out of legal ignorance. Fortunately for Zoltek, the CAFC decided to play its role with decency.
Posted by Patent Hawk at 2:12 PM | § 112
Fellowes got 7,963,468, claiming a particular paper shredder, and sued competitor ACCO for infringement the day the patent was issued. ACCO filed a reexam which stayed court proceedings.
Posted by Patent Hawk at 12:53 PM | Prior Art
January 22, 2016
The Unpatentable Mind
First Choice Loan Services sued Mortgage Grader for infringing its financial transaction patents. In light of the Supreme Court's Alice decision, the district court found the patent claims directed to unpatentable abstract ideas. The CAFC affirmed (2012-1042). "Computational methods which can be performed entirely in the human mind are the types of methods that embody the 'basic tools of scientific and technological work' that are free to all men and reserved exclusively to none."
Posted by Patent Hawk at 1:32 PM | § 101
Commil USA v Cisco (CAFC 2012-1042) illustrates the incompetence of the patent law system in the US. The case went up to the Supreme Court and back down to the CAFC before being settled on a rather simple, well-established technical fact of non-infringement: Cisco did not run a claimed protocol at each mobile device. Instead, Cisco used a single copy of the protocol for all connected devices. This overturned a jury verdict which the district court judge had let stand. The CAFC panel noted that "a reasonable jury" could not have found what it did. Which is to say the reasonable juries do not exist. Not to mention district court judges on up.
Posted by Patent Hawk at 1:04 PM | Infringement
November 30, 2015
"To be sure, it is well-settled that a narrow species can be non-obvious and patent eligible despite a patent on its genus. An earlier disclosure of a genus does not necessarily prevent patenting a species member of the genus. But that is not the situation here." ~ CAFC in Prometheus Labs v. Roxane Labs (2014-1634)
Prometheus v. Roxane illustrates the turpitude of the US patent system. With 5,360,800, Prometheus patented a poison for treating irritable bowel syndrome. It its first run, the drug (Lotronex) was taken off the market after killing numerous takers. After adding restrictions for its usage, the drug was relaunched. "The number of severe incidents associated with Lotronex dropped, but the rate of adverse events did not change." Prometheus was then issued method patent 6,284,770, taking account in the claims the restrictions for medical application.
Prometheus sued Roxane for infringement. The courts found '770 obvious for double-patenting; "at best, the claims at issue are a combination of known elements, combined in a known way, to produce expected results."
Posted by Patent Hawk at 7:52 PM | Prior Art
October 7, 2015
Samsung slavishly copied patented features of the Apple iPhone in making its copycat mobile phone. Apple won its patent battle, but was denied an injunction by the district court because, it ruled, Apple failed to show irreparable harm. The CAFC (2014-1802) reversed, agreeing with Apple that there was a "causal nexus" between the copied features and damage to Apple's "reputation as an innovator, lost market share, and lost downstream sales."
Posted by Patent Hawk at 5:03 AM | Injunction
Media Rights Technologies sued Capital One for infringing 7,316,033, which claims "a method of preventing unauthorized recording of electronic media." The claims require a multi-function "compliance mechanism," but the disclosure does not cover two of the four associated functions. The CAFC (2014 - 1218) affirmed the district court ruling of indefiniteness.
Posted by Patent Hawk at 4:52 AM | § 112
5,847,053 and its continuation 6,111,023 claim thin-film polymers with robust strength. The claims specify a "strain hardening coefficient" without bothering to explain in the disclosure how to figure the coefficient. Patent owner Dow Chemical sued Nova Chemicals for infringement and won, at least until Nova appealed over indefiniteness in light of the Supreme Court's Nautilus ruling. Echoing Nautilus, the CAFC (2014-1431) invalidated the patents for failing to "be precise enough to afford clear notice of what is claimed."
Posted by Patent Hawk at 4:39 AM | § 112
September 17, 2015
ABT sued Emerson Electric for infringing 5,547,017, which claimed fan operations for an air-conditioning system. A judge and jury found the patent infringed, and awarded royalties. On appeal, the CAFC reversed (2014-1618, 2014-1700), finding the patent obvious "as a matter of law" in light of four references which disclose four claimed features, but do not combine them as '017 did, or even suggest such a combination. Lacking evidence, the CAFC surmised "the motivation or rationale for combining those references can be found in the nature of the problem addressed, if not directly from the disclosures of the references themselves."
Posted by Patent Hawk at 1:58 AM | Prior Art
August 19, 2015
Power Integrations got 6,249,876 for "a technique for reducing electromagnetic interference by jittering the switching frequency of a switched mode power supply." Assertion against Fairchild Semiconductor was successful all the way through appeal, notably finding the patent non-obvious based upon a careful claim construction. On a dual track of reexamination instigated by Fairchild, the patent office found '876 obvious, based upon their sloppy claim construction. On appeal, the CAFC found that the patent "board fundamentally misconstrued Power Integrations' principal claim construction argument and failed to provide a full and reasoned explanation of its decision." The CAFC awarded costs to Power Integrations, and kicked the case back to the PTO, telling the patent examining poohbahs to get their act together.
Posted by Patent Hawk at 4:41 AM | The Patent Office
July 12, 2015
The steamrolling of software patents continues. Intellectual Ventures asserted two patents against Capital One that went to appeal (CAFC 2014-1506). One claimed tracking spending related to a pre-set limit. The other claimed web page customization based upon user history. Both were found grasping at an abstraction, and so patent ineligible under §101.
Posted by Patent Hawk at 5:09 AM | § 101
June 24, 2015
Internet Patents asserted 7,707,505 against Active Network and others. The district court found '505 patent ineligible under §101, which the CAFC affirmed. On appeal, Judge Newman (CAFC 2014-1048) seemed to agree that case law for §101 has all the clarity of someone speaking while gargling a mouthful of marbles. "Recently, the courts have focused on the patent eligibility of 'abstract ideas,' for precision has been elusive in defining an all-purpose boundary between the abstract and the concrete, leaving innovators and competitors uncertain as to their legal rights." In this case, "retaining information lost in the navigation of online forms" was found to be an abstract idea. The notion that the U.S. Federal courts dispense just or even predictable patent jurisprudence continues only as an abstraction.
Posted by Patent Hawk at 7:14 PM | § 101
May 23, 2015
No Way For Means
The incompetence of the patent office was demonstrated with 5,663,757, which EON asserted against 17 defendants. '757 survived two reexaminations. Then the district court found the patent indefinite for eight different means claim elements relying upon a disclosure that had no means for meeting the means. The CAFC affirmed (2014-1392).
Posted by Patent Hawk at 7:09 PM | § 112
Fenner Investments sued Verizon Wireless for infringing 5,561,706, which claimed locating and tracking "personal identification numbers." Claim construction of "personal identification numbers" as being personal led to stipulation of non-infringement. Fenner insisted "personal identification numbers" meant device-specific, not personal, despite the specification stating "personal identification numbers are not associated with any particular communications unit or physical location but are associated with individual users," and arguing the same to overcome prior art during prosecution. A CAFC panel (2013-1640) affirmed.
Posted by Patent Hawk at 7:01 PM | Infringement
April 27, 2015
Info-Hold sued Muzak and Applied Media Technologies for infringing 5,991,374, which claims playing the music ubiquitously found in commercial establishments. Ohio district court judge Timothy S. Black demonstrated bias towards Muzak in his claim construction. Such corruption is common in district courts throughout the country, and is often let pass on appeal, if the CAFC shares the same plutocratic bias. In this case, the CAFC (2013-1528) reversed and remanded.
Posted by Patent Hawk at 8:46 PM | Claim Construction
Automated Merchandising Sytems (AMS) sued Crane for infringing four patents. Crane responded by filing inter partes reexaminations on the patents. The parties settled. AMS tried to stop the reexams, but the PTO refused. And the courts refused to contravene the PTO refusal.
Posted by Patent Hawk at 4:29 PM |
April 8, 2015
Disparate Legal Precedents
In Vasudevan v Tibco et al (CAFC 2014-1094), the district court managed a clean claim construction that went to accessing "disparate databases." It then ruled in summary judgment that the specification did not meet the written description requirement and was not enabled (both deficiencies in meeting §112(a)). It did so with solid reasoning.
A specification must "contain a written description of the invention." 35 U.S.C. § 112 ¶1 (2006). The test for the sufficiency of the written description "is whether the disclosure of the application relied upon reasonably conveys to those skilled in the art that the inventor had possession of the claimed subject matter as of the filing date."
A specification must "enable" a person of skill in the art to make and use the claimed invention. 35 U.S.C. § 112 ¶1 (2006). Enablement is a legal question based on underlying factual determinations.
On appeal, the CAFC reversed on the §112(a) decision, inscrutably asserting there was "genuine issues of material fact," without pointing out what they could possibly be, given that the patent holder had every opportunity to disclose the facts prior to the district court's decision, and failed to do so to statutory satisfaction. According to the CAFC in this ruling, a patentee need not adequately describe an invention or be in possession of it when filing the patent.
Posted by Patent Hawk at 3:33 AM | § 112