January 17, 2015
In Bard v. Gore (CAFC 2014-1114), the CAFC abandons all pretense of equitable rule of law by ignoring its own precedents and exercising biased caprice. In dissent, Judge Newman sharply points this out.
This case returns to the Federal Circuit on appeal of a district court decision on remand from an en banc decision of this court. The issue is willful infringement and its consequences, which this en banc court remanded for de novo determination as a matter of law, vacating the judgment entered on the jury verdict.
The panel majority, while mentioning that willful infringement is now a matter of law, does not undertake the required de novo review... In all events, the question as it relates to willfulness is whether the defense of invalidity could reasonably be raised, not whether it eventually succeeded... On the entirety of the premises and applying the correct legal standards, the judgment of willful infringement cannot stand.
Extensive precedent supports judicial refusal to enhance damages when the case is close and the equities counsel moderation, not punishment... Thus, regardless of whether willfulness was a supportable ruling, the doubling of the damages award is untenable.
Posted by Patent Hawk at 11:33 PM | Infringement
December 26, 2014
Prosecutorial nitwittery went unchecked by the district court, but a CAFC panel checked it by siding with the USPTO in refusing to withdraw a terminal disclaimer. 6,194,187 issued. Its owner, the Japanese Foundation for Cancer Research, then filed a terminal disclaimer, which the PTO accepted. The patent office later refused to withdraw the disclaimer, and so was sued for it. Defending the PTO via deference, the CAFC found "that the PTO did not act arbitrarily, act capriciously, or abuse its discretion in declining to use any inherent authority that it might have in withdrawing the terminal disclaimer."
Posted by Patent Hawk at 1:41 PM | Prosecution
The death watch for software under §101 continues. In Content Extraction and Transmission v. Wells Fargo et al (CAFC 2013-1588), patents that claim scanning a document and recognizing certain keywords are damned as an "abstract idea," using oxymoronic pseudo-logic that "the concept of data collection, recognition, and storage is undisputedly well-known." Asserting software patents against the cossetted financial sector is itself the kiss of death. The corruption of the patent system via court fiat is largely complete, the grim reapers in black sitting on benches in dead-end jobs having triumphed as the lords of plutocratic benevolence, giving away the meager inventions of the meek to corporate behemoths.
Posted by Patent Hawk at 1:27 PM | § 101
December 10, 2014
DDR Holdings v. Hotels.com illustrates the incompetence and caprice of Federal courts in handling patent cases. Asserted claims in 6,993,572 & 7,818,399 were found valid and infringed by a jury. District court Judge Rodney Gilstrap in East Texas rebuked motions as a matter of law (JMOL) over invalidity and infringement. On appeal, '572 was found blatently anticipated by the prior art. An extensive CAFC sidebar on §101 shows how unsettled patentability is.
Posted by Patent Hawk at 2:43 PM | § 101
November 23, 2014
"Antares is a developer of automatic injection devices used to self-administer pharmaceuticals." It got a patent (7,776,015) that it wanted broadened under reissue (35 U.S.C. § 251), as it had not bothered to file a continuation. Owing to prosecutorial and patent office incompetence, the reissue claims went to a different invention. Asserted in litigation, the CAFC caught the reissue error (district court Judge Sue L. Robinson did not) and pitched the patent (CAFC 2014-1648).
Posted by Patent Hawk at 8:20 PM | Reissue
Verstata asserted software patents against rival Callidus, which counterclaimed with its own patents. Callidus filed limited reexamination proceedings against the Verstata patents, and asked the court for a stay pending reexam. The district court denied the stay. The CAFC reversed that.
Posted by Patent Hawk at 8:07 PM | Case Law
November 17, 2014
Not So Wild Tangent
Ultramercial sued Hulu and WildTangent for infringing 7,346,545, which claims receiving payment for a consumer viewing Internet advertising. The district found the patent invalid under § 101. The CAFC balked at that, but reversed itself after the Supreme Court Alice ruling (CAFC 2010-1544). "We do not purport to state that all claims in all software-based patents will necessarily be directed to an abstract idea," the court stated. But since Alice, not one has yet to pass muster.
Posted by Patent Hawk at 4:56 AM | § 101
November 10, 2014
Texas gets a lot of patent cases, but the judges there are as incompetent as in the rest of the country. In Azure Networks v. CSR, East Texas Judge Michael H. Schneider got bamboozled into an ersatz claim construction for "MAC address" during an assertion of 7,756,129, claiming a personal network device. Based upon two brief descriptive passages, the district court decided that the patentee had acted as its own lexicographer. On appeal (CAFC 2013-1459), a CAFC panel pointed out how stupid Judge Schneider was: "The statements in the specification relied upon by the district court neither define 'MAC address' nor exclude universal addresses. Nothing in the specification or the prosecution history shows an attempt to distinguish over prior art."
Posted by Patent Hawk at 9:10 PM | Claim Construction
October 22, 2014
Obvious After the Fact
A petition for rehearing en banc at the CAFC for a drug obviousness case (Bristol-Myers Squibb v. Teva - CAFC 2013-1306) was denied. What was remarkable was the inane confusion at the court. Judges Dyk and Wallach stated that "post-invention evidence" is rightly not allowed in considering obviousness. As Judge Newman observed: "Precedent is clear that the information and comparative data presented as evidence of nonobviousness need not have existed before the patent application was filed," noting the secondary consideration of commercial success, and citing several instances where evidence of unexpected results found later were considered relevant to obviousness. The CAFC continues to be an inexcusably pathetic excuse for a patent court: creating self-contradictory precedent and thereby failing to provide guidelines that the patent office and patent community may reasonably rely upon.
Posted by Patent Hawk at 1:09 AM | Prior Art
October 17, 2014
Robert Bosch sued Snap-On for infringing 6,782,313, which claims a motor vehicle diagnostic tester. Alas, the tester had no specification support for a testing device. The courts found insufficiency under 35 U.S.C. § 112, ¶ 6, even though there was no explicit "means for" element. Another stupid patent assertion with another stupid patent bites dust. (CAFC 2014-1040). But then, Robert Bosch is a German company, and their nickel-slick lawyers got paid regardless.
Posted by Patent Hawk at 1:31 AM | § 112
October 12, 2014
EMD Millipore sued Allpure over its device to put "a medium" into and get out of a jar (6,032,543). It lost in summary judgment, for noninfringement, owing to prosecution estoppel. It's easy to tell how lame the assertion was when the claim construction argument went to the meaning of the term "removed." Hamilton, Brook, Smith & Reynolds represented the plaintiff. One can only wonder whether they saw it coming, as they should have. (CAFC 2014-1140)
Posted by Patent Hawk at 4:59 PM | Infringement
September 10, 2014
In Interval Licensing v. AOL, the CAFC embraced the newly invigorated standard of indefiniteness inaugurated by the Supreme Court in Nautilus v. Biosig. In an unobtrusive manner, the appeals court affirmed invalidity under 35 U.S.C. § 112(b), based upon claiming "an unobtrusive manner."
Posted by Patent Hawk at 6:09 PM | § 112
September 7, 2014
In buySAFE v. Google (CAFC 2013-1575), a CAFC panel furthers the Supreme Court rulings of Bilski and Alice in finding that software which effects "a contractual relationship" or "commercial transactions" are not patent-eligible subject matter.
Posted by Patent Hawk at 4:31 AM | § 101
August 27, 2014
Planet Bingo got patents for a computer managing a game of bingo, starting with parent 6,398,646. It assertion against VKGS lasted only until summary judgment, where all claims were found patent ineligible under § 101. Like Alice and Bilski, there is no bingo no more for patents claiming to "organize human activity." The courts consider that too abstract. Speaking of abstraction, try this on for gibberish: "Abstract ideas may still be patent-eligible if they contain an "'inventive concept' sufficient to 'transform' the claimed abstract idea into a patent-eligible application."" Sounds like organizing case law into coherency ought to be patentable, as it would be novel. (CAFC 2013-1663).
Posted by Patent Hawk at 4:01 AM | § 101
August 16, 2014
The district court and CAFC found Dr. Bernard Charles Sherman, founder and chairman of Apotex, guilty of inequitable conduct in his patenting of an antihypertensive claimed in 6,767,556. "Dr. Sherman breached his duty of candor, good faith, and honesty before the PTO." Typical CEO behavior, especially in the big leagues. But then, Dr. Sherman was just another crooked player in a very crooked game. Abusing the law is bread-and-butter business for Federal judges, particularly when patents are asserted by small fry against corporate giants.
Posted by Patent Hawk at 10:38 PM | Inequitable Conduct
I/P engine sued Google, Target, and Gannett (a media conglomerate) over 6,314,420 & continuation 6,775,664. Judge and jury at district court found the patents infringed, and neither anticipated nor obvious. As these were major U.S. corporations, there was no way that those decisions would be upheld on appeal. Sure enough. The CAFC panel majority agreed with Google that "as a matter of law [the claimed invention] simply combines content-based and collaborative filtering, two information filtering methods that were well-known in the art." To rub it in the noses of unreasonable citizens who waste their time on jury duty: "no reasonable jury could conclude otherwise." In concurrence, Judge Mayer thought the claims "fall outside the ambit of 35 U.S.C. § 101."
Posted by Patent Hawk at 10:26 PM | Prior Art
August 11, 2014
In ScriptPro v Innovation Associations, the district court rightly granted summary judgment of invalidity for 6,910,601 under 35 U.S.C. § 112(a) because the claims left out sensors that were disclosed as essential, and otherwise the claimed invention simply could not work. Ignoring the facts particular to the technology, the CAFC reversed (2013-1561), blithely stating that "it is common, and often permissible, for particular claims to pick out a subset of the full range of described features, omitting others."
Posted by Patent Hawk at 12:17 AM | § 112
July 13, 2014
6,128,415 claims a device profile to rid digital image distortion. The courts found it patent ineligible for being an abstraction. The CAFC (2013-1600): "For all categories except process claims, the eligible subject matter must exist in some physical or tangible form." The noose tightens on patenting software.
Posted by Patent Hawk at 1:28 AM | § 101
July 9, 2014
The U.S. courts have done their best to limit patent scope and validity within the past decade, in reponse to corporate complaint. The sensible formula of writing a specification in problem-solution form turned into a formula for obviousness without evidence after KSR. In X2Y Attenuators v. ITC (2013-1340), the CAFC affirms another trick: terming a feature as "essential" in the disclosure limits any claim to that feature to the embodiment specifically disclosed. X2Y also created a corrupt precedent, in allowing any claim limitations in earlier applications to leak into a later CIP without claim construction, to argue invalidity. With the courts corrupted to mega-corporate interests, the broken U.S. patent system continues to squash invention by inventors and small companies with caprice.
Posted by Patent Hawk at 2:11 PM | Claim Construction
June 19, 2014
Down The Rabbit Hole
The Supreme Court affirmed the CAFC in invalidating financial patents in Alice v. CLS Bank under §101. "The claims at issue are drawn to the abstract idea of intermediated settlement, and that merely requiring generic computer implementation fails to transform that abstract idea into a patent-eligible invention." Reading between the plutocratic lines, any claim to computerized finances is going to prove unenforceable. The courts are simply not going to allow financial institutions to be pickpocketed by clever patentees.
Posted by Patent Hawk at 8:50 AM | § 101