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
September 18, 2012
37 CFR 1.56 requires a "duty to disclose information material to patentability," but the CAFC won't uphold it. "[T]his court has now made clear that "[t]o prevail on a claim of inequitable conduct, the accused infringer must prove that the patentee acted with the specific intent to deceive the PTO." Therasense, 649 F.3d at 1290. Moreover, '[a] finding that the misrepresentation or omission amounts to gross negligence or negligence under a 'should have known' standard does not satisfy this intent requirement.'" 1st Media v. Electronic Arts (CAFC 2010-1435). Accountability is certainly not what the CAFC is about.
Posted by Patent Hawk at 4:39 PM | Inequitable Conduct
April 9, 2012
5,750,561 owner Aventis sued Hospira and Apotex for infringing the cancer drug concoction. Co-inventor Jean-Louis Fabre withheld references from the PTO during prosecution, and it caught up with him, and Aventis. "There simply is no justification for telling the [PTO] about the prior art disclosing the problem [Fabre] examined while concealing key prior art disclosing the solution he chose." Overcoming the high hurdle of inequitable conduct set in Therasense, '561 had terminal cancer before it was shot in the heart. The claims were also found obvious. Affirmed on appeal (CAFC 2011-1018).
Posted by Patent Hawk at 12:21 PM | Inequitable Conduct
June 27, 2011
American Calcar (ACI) sued Honda for infringing 15 car computer patents. The number of patents asserted hardly made up for spotty quality. Only one was found valid and infringed at district court. Nine were appealed over validity, infringement, and inequitable conduct. The whiff of impropriety by ACI, while not legal damnation, was enough to bias the courts, and, in the end, let Honda drive on, patent toll free.
Posted by Patent Hawk at 5:56 PM | Infringement
May 25, 2011
Deep Six to Rule 56
Therasense, now Abbott, got into a patent battle involving 5,820,551 and similar patents claiming "disposable blood glucose test strips for diabetes management." The ubiquitous allegation of inequitable conduct found purchase, for failing to disclose in U.S. prosecution highly relevant prosecution posturing in Europe. Upheld on appeal. Now, in a 6-5 en banc bungle that wipes away much history and seasoned sense that demands accountability for prosecution weaseling, a new rigid rule rules the roost, sending the '551 chicken back to the broiler of district court. The irony is that the new rigid rule, in the name of tightening, actually loosens the bonds obliging honesty. A CAFC majority seems unable to consider the dynamics of consequence.
Posted by Patent Hawk at 10:46 PM | Inequitable Conduct
April 23, 2011
John Larry Sanders got a couple fertilizer patents. The child, 6,210,459, was asserted against Mosaic and Cargill. Oddly, in two separate instances, different claim terms were construed to be the same. Also odd was the district court letting Mosaic amend its pleadings to add an inequitable conduct charge. "The parties stipulated to noninfringement under the court's claim construction." Sanders appealed for some patent fertilizer. It may have gotten more than it wanted.
Posted by Patent Hawk at 4:44 PM | Claim Construction
December 24, 2010
Lazare Kaplan International owns patents claiming laser microinscribing of gemstones. Two of them, 6,476,351 and descendant 7,010,938, were asserted against PhotoScribe and others. Claim construction resulted in a summary judgment of literal noninfringement. But Lazare was allowed to argue the doctrine of equivalents to the jury. The jury found the patents not infringed, and not valid. In a bench trial that followed, the district court found inequitable conduct, for failing to disclose "the Gresser machine" to the USPTO. Under contract, Herbert Gresser created a nifty machine to air-cushion the inscriber for Lazare. '351 mentioned Gresser's work (and patent, 4,392,476, which Lazare also owns), but only in passing.
Posted by Patent Hawk at 3:28 PM | Claim Construction
November 9, 2010
The application that led to 5,260,291 took 13 years to allowance. Prosecutors twiddled by ignoring office actions and filing continuations. Nine years into it, ownership changed hands, where, for the first time, the prosecutor argued against examiner's rejection on lack of utility, relying upon animal tests for the claimed cancer treatment. '291 issued in November 1993. From there the cancer spread.
August 9, 2010
Not A Golden Hour
Golden Hour Data Systems sued emsCharts and Softtech for infringing 6,117,073. '073 claims integration of medical dispatch, clinical services, and billing. Trial went Golden Hour's way, but the district court afterward held JMOL no joint infringement of claims, and found '073 unenforceable due to inequitable conduct. Golden Hour appealed. Herein, incredible case law developments: the inequitable conduct mulligan; and joint infringement only by proven puppeteering. And another case where "the single most reasonable inference" is hamstrung.
August 7, 2010
Ring Plus asserted 7,006,608 against Cingular. '608 generally claims generating and delivering messages while the phone is ringing. This includes replacing or overlaying the ringback sound. Claim construction "determined that the steps of the asserted claims must be performed in a specific order." That led to noninfringement. But the thing that really rung Ring Plus's bell was finding inequitable conduct. The squeeze on the sleaze didn't hold up on appeal, but only because the prosecutor got the benefit of a doubt that shouldn't have been there.
Posted by Patent Hawk at 1:08 PM | Inequitable Conduct
June 14, 2010
Opium for the Masses
Par Pharmaceutical filed an ANDA to make a time-released version of the opiate tramadol. Patent holder Purdue sued for infringing 6,254,887 & 7,074,430. What was Purdue smoking? The asserted claims were readily obvious in light of 5,580,578. A charge of inequitable conduct by submitting "a materially misleading declaration" was merely "overly aggressive" "positive spin," not intent to deceive.
Posted by Patent Hawk at 5:12 PM | Prior Art
June 11, 2010
Advanced Magnetic Closures ("AMC") sued Rome Fastener ("Romag") for clasping 5,572,773, claiming "a magnetic snap fastener commonly used in women's handbags." Undisputed claim construction showed asserted "claim 1 only covers fasteners with rivet holes that increase magnetic attraction, but not rivet holes that do not increase magnetic attraction." "In an attempt to prove its claims, AMC submitted re-constructed evidence, presented contradictory testimony, and engaged in evasive litigation tactics." AMC's suit came unfastened as Romag found putting the stink on AMC a snap.
May 28, 2010
Leviton, rather fond of patent litigation, got into a patent battle with Shanghai Meihao, asserting a patent that was a real stinker. Not content to find intent, CAFC majority missed the boat on an easy inequitable conduct call: they wanted a trial for something decided on summary judgment. Like being in a forest and not thinking that there any trees nearby.
Posted by Patent Hawk at 10:51 PM | Inequitable Conduct
May 18, 2010
Sales Assistant Killed
Jerome Johnson got thoughtful while working "at a farm equipment dealership." 5,367,627 claims a computerized sales assistance system for finding particular parts. Jerome sold the patent to Orion in 2004. Orion sued Hyundai and 20 other automakers. The 20 others settled, but Hyundai fought on. Hyundai lost, to the tune of $34 million, plus interest and ongoing 2% royalty. Failing post-judgment JMOL, Hyundai appealed over anticipation and inequitable conduct.
May 15, 2010
The Napkin of Death
Esquel Enterprises filed a DJ against TAL Apparel over 5,568,779, claiming methods of making garment seams that reduce pucker. A finding of inequitable conduct, and attorneys fees award was reversed on appeal. On remand, Esquel got the same result. TAL appealed. A split opinion at the CAFC reveals rancor over what was considered a facile finding of intent.
Posted by Patent Hawk at 1:22 PM | Inequitable Conduct
May 5, 2010
Emcore sued Optium for infringing laser-based optical fiber communication patents 6,282,003 and 6,490,071. Optium charged Emcore for inequitable conduct because Emcore failed to cite to the patent examiner a relevant article. Emcore did not dispute that the inventors knew of the prior art. At district court, a special master found the prior art material, though inequitable conduct not a summary judgment slam dunk.
April 28, 2010
Dr. Hannis Stoddard went to the animal shelter to retrieve his lost dog. Apparently taken by what he saw, "Dr. Stoddard made it his mission to implement a better system of dealing with the identification and processing of recovered animals." So he started Avid Identification Systems. As it always does in gentle creative souls, compassion led to patenting, and patenting led to litigation, as it always does with valuable technology. Good intentions pave the road to hell. And so Dr. Stoddard became ensnarled in a charge of inequitable conduct.
February 27, 2010
Trading Technologies sued eSpeed and Ecco for infringing 6,772,132 & 6,766,304, which go to displaying "static price levels" on a computerized board for commodity trading. One service product infringed, but others literally did not, and applying the doctrine of equivalents was proscribed. Defenses to indefiniteness and inequitable conduct went nowhere, as did on-sale bar (§ 102(b)) based on a provisional priority date. Affirmation on appeal toted up dynamic case law quotes, not on sale, but ones that litigators must buy.
February 19, 2010
"Pergo and Alloc are direct competitors in the field of laminate flooring. Pergo owns the 6,421,970 and 6,397,547 patents, which relate to mechanical joints that enable flooring panels to be joined without the use of glue or other fasteners, such as nails or metal clips. Alloc brought a declaratory judgment action against Pergo seeking a declaration that the '970 and '547 patents were invalid, unenforceable, and not infringed. Pergo counterclaimed for infringement of both patents." Both patents were found "invalid on multiple grounds and not infringed." Having achieved its goal, Alloc then overreached to inequitable conduct, which the district court denied.
January 29, 2010
5,820,551 claims single-use test strips for measuring blood sugar, useful for diabetics. Becton, Dickinson and Company threw down a declaratory judgment (DJ) action on competitor Abbott over a couple other patents. Abbott countered with a suit that also asserted '551. Weak move. The DJ worked: summary judgment of non-infringement and anticipation of numerous claims of one patent. '551 underwent a bench trial, and didn't survive the operation: invalid due to obviousness and unenforceable due to inequitable conduct. Abbott appealed.
Posted by Patent Hawk at 1:25 AM | Prior Art
September 26, 2009
Teva and Sandoz tangled with AstraZeneca by trying to butt in on its patented antipsychotic drug. Their filing an ANDA riled AstraZeneca to assert infringement of 4,879,288. Defendants filed a summary judgment motion of inequitable conduct, which the district court denied. Another recitation on the high bar for finding inequitable conduct.
August 5, 2009
Particular Inequitable Conduct
Exergen stuck SAAT and others for infringing 5,012,813; 6,047,205 and 6,292,685, claiming infrared thermometers taking skin readings. A jury awarded over $2.5 million in lost profits. SAAT appealed, getting '205 claims invalidated on anticipation, and skirting infringement on '813 and '685, thus winning overall. SAAT failed to prevail on inequitable conduct via Rule 9(b), requiring "particularity."
May 20, 2009
4,701,069 claims a road shoulder rumble strip, to alert errant drivers. Dickson Industries filed a declaratory judgment action against '069's owner, the Patent Enforcement Team (PET), after PET approached one of Dickson's customers, Midstate Traffic Controls, for a license. Midstate balked at that, then turned around and sued Dickson for indemnification. The two settled, prompting Dickson's DJ in Western Oklahoma, this nation's hotbed for rumble strip patent adjudication.
Posted by Patent Hawk at 1:19 PM | Inequitable Conduct
April 5, 2009
Mapping the Territory
A patent is supposed to be an instruction manual. 35 U.S.C. §112 ¶1 requires an inventor to describe her invention "in such full, clear, concise, and exact terms" that it would "enable any person skilled in the art to which it pertains." Windbags who fail the concise requirement are seldom punished. Clarity is as often observed in the breach as not, with infrequent repercussion. Teasing out meaning is tolerated - pointing out obtuse passages for support is not regarded untoward. But fail "full" or "exact," and you're in a peck of trouble. Herein, a broad claim of an early advance falls short. And in an invigorating dissenting concurrence, the sin of not enabling enablement.
March 19, 2009
Judge Linn, concurring in Larson v. Aluminart, observed that the CAFC "has significantly diverged from the Supreme Court's treatment of inequitable conduct and perpetuates what was once referred to as a "plague" that our en banc court sought to cure in Kingsdown Medical Consultants, Ltd. v. Hollister Inc., 863 F.2d 867, 876 n.15 (Fed. Cir. 1988) (en banc) (quoting Burlington Indus., Inc. v. Dayco Corp., 849 F.2d 1418, 1422 (Fed. Cir. 1988) ("[T]he habit of charging inequitable conduct in almost every major patent case has become an absolute plague."))."
February 13, 2009
Ms. Rothman bore her first child in March 2000, then "sought out a nursing garment that would conceal her stomach while providing easy nursing access and full breast support. Unable to locate anything more elaborate than "just basically nursing bras," Ms. Rothman undertook the task of designing her own garment." With a design in mind, she sewed together parts from other clothing products, along with additional fabric. Then she patented her "Topless Topnotch Nursing Top." 6,855,029. That done, and no longer nursing, Ms. Rothman, aka Glamourmom, got down to the business of patent enforcement. Alas.
December 21, 2008
6,673,064 claims a laser catheter. Dr. Peter Rentrop sicked '064 on Spectranetics, and copped a cool half million. Spectranetics, after sloppily stirring as much trouble for Rentrop as it could, appealed losing on obviousness, among other profundities. The appeals court reminded Spectranetics that they could have floated that boat, but didn't, and it's water under the bridge now.
December 1, 2008
Consequence of Silence
Qualcomm "breached its duty to disclose" two patents before a standards-setting organization, the Joint Video Team (JVT). Consequently, the district court deemed the patents "unenforceable against the world," and, finding the case exceptional, awarded competitive combatant Broadcom attorneys fees. The appeals court found "the scope of the remedy of unenforceability as applying to the world... too broad."
Posted by Patent Hawk at 11:21 PM | Inequitable Conduct
October 11, 2008
Effective Filing Date
Technology Licensing (TLC) went after Gennum for infringing a family of patents going to video synchronization. The most interesting facet of this case pivoted on patent priority date. With a continuation-in-part (CIP), a claim is entitled to the effective filing date of an application that provides written description support for the claim. The effective filing date becomes an issue when invalidating prior art exists between the initial parent filing date and the filing date of a later CIP. Plus, other songs in this dance hall: "Beast of Burdens of Proof," "Cutting a Bitch on Rule 56," and "Reaching to Delve With a Thin 112."
Posted by Patent Hawk at 9:37 PM | Prior Art
October 4, 2008
There is no question that inequitable conduct allegations drain resources and inject uncertainty into litigation. And, no doubt, the defense is overpled. But it is also undeniable that serious breaches of the duty of candor occur.
Furthermore, the reported instances of inequitable conduct represent only a small fraction of the cases which involve credible evidence of inequitable conduct. Most such cases presumably settle before trial. Accordingly, the inequitable conduct doctrine, like other defenses to patent infringement, curtails litigation in some cases, and presumably tends to function most efficiently where the evidence is the most compelling and the allegations the most meritorious. Eliminating the defense would lead to an increase in the instances of successful enforcement of patents procured through deception, and, likely, an increase in attempts to mislead the USPTO.
September 29, 2008
Praxair sued Advanced Technology Materials (ATMI) for infringing three patents: 6,007,609; 6,045,115; and 5,937,895. All claim pressurized storage tanks. '609 and '115 went down on inequitable conduct, '895 on §112 ¶2 indefiniteness. On appeal, '609 and '895 popped back up from the grave, while '115 remained buried in a 2-1 split decision. Herein, the CAFC in full caprice.
Posted by Patent Hawk at 7:44 PM | Inequitable Conduct
August 25, 2008
In a touchstone ruling, Star Scientific v. R.J. Reynolds, the CAFC resets the high bar for inequitable conduct:
The burden of proving inequitable conduct lies with the accused infringer. The patentee need not offer any good faith explanation unless the accused infringer first carried his burden to prove a threshold level of intent to deceive by clear and convincing evidence. If a threshold level of intent to deceive or materiality is not established by clear and convincing evidence, the district court does not have any discretion to exercise and cannot hold the patent unenforceable regardless of the relative equities or how it might balance them. Even if a threshold level of both materiality and intent to deceive are proven by clear and convincing evidence, the court may still decline to render the patent unenforceable.
August 2, 2008
Proving inequitable conduct requires jumping "a high bar." There are two prongs to inequitable conduct: the materiality of omission (failing to disclose relevant information to the patent office), and intent to deceive. The Eisai CAFC ruling last week elucidated the current standard, with the contentious Aventis ruling in May shedding heat and light. For prosecutors, here's a checklist to guard against a patent going rancid.
Posted by Patent Hawk at 11:34 AM | Inequitable Conduct
August 1, 2008
There Is No Arizona
Whether Arizona has a functioning patent court remains an open question. Research Corporation Technologies (RCT) sued Microsoft for infringing its halftoning six-pack patent portfolio. After RCT won summary judgment of infringement, the case was transferred to a different judge, who reversed the ruling and granted Microsoft's motion of non-infringement, without opinion. At Microsoft's behest, the judge then scrapped the scheduled jury trial, and ran a kangaroo court for inequitable conduct. Appeal turned the tables once again.
July 21, 2008
Eisai sued Dr. Reddy's Labs and Teva for infringing 5,045,552 after the two filed ANDAs to make a generic version prior to patent expiration. '552 claims a digestive antacid. Eisai overcame obviousness and inequitable conduct arguments to prevail. In its affirmation, the CAFC elucidated the current standard for chemical obviousness.
June 19, 2008
Wily guys Mork & Beaty of Scanner Technologies got semiconductor packaging inspection patents. I thought it was Mork and Mindy, but I was wrong again. In the patenting process, they got hot under the collar about a competitor's product, hastening prosecution with a "make special" petition. Enforcing the patents, which were about ball grid arrays (BGA), turned out to be not such a ball. Defendant ICOS fought back with an affirmative defense of bad juju, patent street jive for inequitable conduct. Courts love street jive. Works every time. Well, not this time. At least, not for that.
June 17, 2008
Ole Nilssen, patent goofball extraordinaire, in rather massive assertion against Osram Sylvania, was found to have committed inequitable conduct in multiple ways, a ruling affirmed on appeal. In awarding attorney fees in this exceptional case, Nilssen's conduct went beyond inequitable conduct, to litigation misconduct, the trial court judge ruled. 2-1, the CAFC agreed. The CAFC puts plaintiffs on notice that prosecution and litigation tactics that resemble shenanigans parades will not be tolerated.
Posted by Patent Hawk at 11:49 PM | Inequitable Conduct
May 23, 2008
John Wong got 5,568,779 for TALtech, claiming a seam for wash-and-wear dress shirts that don't pucker when laundered. Wong didn't disclose all the prior art he knew of, including the prior art that was the inspiration for his invention. The district court found inequitable conduct. The appeals court starches that shirt: "If the material is cumulative to other disclosed material, as a matter of law, the inventor is not obligated to disclose it." And, a lesson on best mode.
May 15, 2008
Aventis owns 5,389,618 / RE 38,743, claiming a blood clotting drug. Amphastar and Teva filed FDA ANDAs, prompting suit by Aventis. Amphastar shot back with an affirmative defense of inequitable conduct - Aventis failed to disclose that relied-upon studies, done by a non-inventor, Dr. Uzan, had used different dosages, thus muddying the results.
April 30, 2008
Paying for Garbage
The New York Times reports $4.3 million spent in the past 15 months lobbying at the wounded Patent Act. The anti-patent Coalition for Patent Fairness alone forked out $2.5 million, lining the pockets of Sen. Leahy & Sen. Hatch. Pro-patent rival Coalition for 21st Century Patent Reform spent $1.8 million.
April 23, 2008
Bayer Bioscience appealed to the CAFC in a third round of the battle against Monsanto, pleading for the reversal of the district court decision granting attorney fees to Monsanto under 35 U.S.C. § 285, warranted due to Bayer's exceptional inequitable conduct. Not wanting to disappoint, Bayer failed to challenge the district court's discretionary determination to award attorney fees, instead clinging to battles already lost, only to lose again.
Posted by Mr. Platinum at 12:15 PM | Inequitable Conduct
February 2, 2008
Pass the Glue
In F&G Research v. Dynapoint (Taiwan), the CAFC ruled Allen D. Brufsky a scumbag: having "significantly misrepresented the facts," relying on "vague allegations without basis in the record," and showing "a willingness to mislead the court." It's a shame, because Brufsky has one gorgeous web site. You'd think a guy with taste would have class, but there you go.
January 26, 2008
Monsanto brought a declaratory judgment action against Bayer Bioscience to preclude infringement for its transgenic corn products. It worked: the patents were found both non-infringed and invalid by inequitable conduct. Bayer's appeals were futile.
January 8, 2008
Six attorneys involved in a Qualcomm video patent assertion fiasco against Broadcom were sanctioned for "monumental" discovery violations, and referred to the State Bar of California for possible discipline. Presiding U.S. Magistrate Judge Barbara Major found:
[The attorneys] assisted Qualcomm in committing this incredible discovery violation by intentionally hiding or recklessly ignoring relevant documents, ignoring or rejecting numerous warning signs that Qualcomm's document search was inadequate, and blindly accepting Qualcomm's unsupported assurances that its document search was adequate.
October 10, 2007
Ole Nilssen reaped a slew of patents related to electrical lighting. He asserted 15 against Osram Sylvania. Osram got the district court to find five reasons that the patents were unenforceable due to inequitable conduct, and the CAFC concurred. While not egregious in outrageousness, the number of reasons puts Nilssen in the Guinness Book of Bad Patents.
Posted by Patent Hawk at 1:21 PM | Inequitable Conduct
October 9, 2007
Trial Lawyers' Nightmare
19 attorneys that represented Qualcomm in its debauched video compression patent suit against Broadcom are fighting to defend themselves against accusation of hiding evidence, hobbled by sacrosanct attorney-client privilege.
August 13, 2007
Out of the Loop
Patent attorney Michael Teschner (pictured below) had a patent he had a hand in prosecuting go down to inequitable conduct, on failure to disclose prior art. Teschner fruitlessly appealed to step in and clear his name.
Posted by Patent Hawk at 10:54 AM | Inequitable Conduct
July 26, 2007
Scratch & Sniff
Premier International sued Apple in 2005 for infringing 6,763,345 and 6,243,725 with the Apple iPod and iTunes. The patents claim building playlists. Apple is looking to build its own playlist for hearing the off-key hit of inequitable conduct.
Posted by Patent Hawk at 9:23 PM | Inequitable Conduct
July 23, 2007
Toprol-XL® is a drug used to treat heart-related malfunctions. Astra owns two patents for its active ingredient, metoprolol succinate; patents which Astra asserted against generic drug makers seeking FDA approval; patents with a peculiar pedigree. The district court found Astra's metoprolol patents invalid owing to double patenting, and inequitable conduct, owing to the peculiar pedigree. Astra appealed the invalidity finding of one asserted patent, leaving the other dead without appeal.
Posted by Patent Hawk at 9:11 PM | Claim Construction
June 28, 2007
Star Scientific sued tobacco giant R.J. Reynolds in May 2001 for infringing its tobacco curing patents. R.J. Reynolds fought back, winning invalidity by indefiniteness in January for 6,202,649 and 6,425,401, and now egregious inequitable conduct for 6,805,134. Law firms participated in a cover-up.
June 27, 2007
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
May 18, 2007
McKesson Information Solutions sued Bridge Medical for infringing 4,857,716. The patent was trashed by inequitable conduct; a district court ruling upheld at the appeals level (CAFC 06-1517) in a split decision. Has the appeals court, in the dissent of Judge Newman, returned "to the "plague" of encouraging unwarranted charges of inequitable conduct, spawning the opportunistic litigation that here succeeded despite consistently contrary precedent"?
Posted by Patent Hawk at 2:38 PM | Inequitable Conduct
March 20, 2007
Cantor sued Brokertec over 6,560,580, which claimed trading fixed income securities, replacing the prior art of "open outcry" trading. When Cantor asserted '580, it dredged a past it could not erase: Cantor had initially failed to disclose earlier work, then put forth a disingenuously deceptive declaration to cover that up. About intent to deceive: "The affirmative act of submitting an affidavit must be construed as being intended to be relied upon."
Posted by Patent Hawk at 10:50 AM | Inequitable Conduct
March 15, 2007
In a press release celebrating its prosecution con job, the USPTO wants your patent application on virtual methamphetamine. Just like the self-destructive nature of chemical speed on the human body, accelerated examination may feel like a rush towards patent grant, while leaving the patent holder with open-ended liability.
Posted by Patent Hawk at 7:22 PM | Prosecution
February 14, 2007
Intent to Deceive
Cargill, in its assertion of canola oil patents against Canbra Foods and Dow Agrosciences, slipped on oily slicks: on-sale bar and inequitable conduct.
Posted by Patent Hawk at 1:04 PM | Inequitable Conduct
February 9, 2007
Dippin' Dots owns 5,126,156, which claims a process for making ice cream. "The Dippin’ Dots brand is known to patrons of amusement parks, stadiums, shopping malls, and the like." After Dippin's distributors turned competitors, Dippin' flipped into patent enforcement, suing left and right. Counterclaim included antitrust, on what defendants called a fraudulently acquired patent. Claim construction, infringement, prior art (including a newly minted definition of "obvious"), inequitable conduct; it's all in the dip. (CAFC 05-1330)
Posted by Patent Hawk at 3:14 PM | Claim Construction
August 25, 2006
Netflix sued Blockbuster for patent infringement in April, and Blockbuster retorted in countersuit that Netflix was just attempting monopolization via unenforceable patents; unenforceable owing to inequitable conduct: that Netflix didn't disclose known prior art. Netflix tried, unsuccessfully, to get the judge to dismiss the countersuit.
Posted by Patent Hawk at 12:00 AM | Inequitable Conduct
August 7, 2006
To say that Norwegian Ole K. Nilssen went about it the wrong way would be understatement. Though not found guilty of unclean hands, the man is a disgrace. Pray tell, I am referring to five kinds of inequitable conduct. Is there a Guinness record for this sort of thing?!
Posted by Patent Hawk at 3:45 PM | Inequitable Conduct
August 4, 2006
In Bayer AG v. Housey Pharmaceuticals, today the U.S. Court of Appeals (CAFC 06-1083) affirmed that Dr. Gerard M. Housey is a lying weasel, his four patents 4,980,281; 5,266,464; 5,688,655; and 5,877,007 voided for inequitable conduct. This guy made a seriously lousy impression on the court.
Posted by Patent Hawk at 10:52 AM | Inequitable Conduct
July 13, 2006
Posted by Patent Hawk at 1:42 PM | Litigation
June 26, 2006
Agfa and Creo compete in the computer-to-plate (CTP) large-scale printer market. Against Creo, Agfa asserted the patents of its "Galileo" system, for creating printing plates of different sizes: 5,655,452; 5,738,014; 5,788,455; 5,791,250; 5,992,324; & 6,000,337. Creo accused Agfa or inequitable conduct, for failing to disclose similar commercial prior art printing systems, including Creo's. Agfa patents are now found on the obituary page. [CAFC 05-1079]
Posted by Patent Hawk at 4:22 PM | Inequitable Conduct
June 14, 2006
Facing down a patent infringement suit by Netflix for online video rentals, on Tuesday, Blockbuster Video threw a temper tantrum in a 44-page counterclaim.
Posted by Patent Hawk at 1:04 AM | Litigation
June 12, 2006
PTO Inequitable Conduct?
NTP continues to pitch a fit over alleged shenanigans by the U.S. patent office in reexamining the NTP patents that netted $612.5 million from RIM.
Posted by Patent Hawk at 7:57 PM | The Patent Office
June 1, 2006
HP, Seiko Epson, and Lexmark settled out of court when Research Corporation Technologies (RCT) came knocking for infringing its image processing patents. Microsoft fought back, putting RCT's patents six feet under, and making RCT pay for the burial.
Posted by Patent Hawk at 12:04 AM | Inequitable Conduct
May 9, 2006
Up the Creek
Old Town Canoe sued Confluence Holdings for infringing 4,836,963, which goes to a process for making plastic boat hulls by rotational molding. Confluence got a summary judgment of non-infringement based upon claim construction, but lost counterclaim motions on invalidity and enforceability. So the parties appealed the rulings that went against them. The CAFC (05-1123) found the district court had been hasty in some of its summary judgment rulings, glossing over disputable facts. And a well-reasoned dissent argued that the whole case was overdone.
Posted by Patent Hawk at 2:24 PM | Litigation
February 27, 2006
Inequitable Conduct - Intent
S&G Tool Aid sued Astro Pneumatic Tool for threatening its customers with patent infringement (5,259,914), over a portable car sticker remover. S&G went whole hog, seeking declaratory judgment of non-infringement, inequitable conduct, unfair competition, tortious interference, false marking, and violations of the Lanham Act & New Jersey Fair Trade Act to boot. S&G got an inequitable conduct summary judgment ruling out of district court, "determining that there was clear and convincing evidence of materiality and intent to deceive" the patent office. The appeals court said (CAFC 05-1224), not so fast.
Posted by Patent Hawk at 10:40 AM | Inequitable Conduct
February 15, 2006
Indisputable Inequitable Conduct
Ferring B.V. sued Barr Labs for infringing 5,047,398, claiming an oral antidiuretic. Barr was granted summary judgment for inequitable conduct, as both materiality and intent were indisputable. The appeals court concurred (05-1284).
Posted by Patent Hawk at 11:40 AM | Inequitable Conduct
February 8, 2006
Dr. John Mercer was the supposed inventor of 5,767,678 & 6,232,780, claiming technology for horizontal drilling by which utility lines can be laid, patents assigned to Digital Control. These patents were asserted against The Charles Machine Works (CMW), aka DitchWitch, which tried burying Mercer's patents by inequitable conduct, and may yet succeed.
Posted by Patent Hawk at 8:07 PM | Inequitable Conduct
January 25, 2006
Nellcor Bites The Bullet
Facing a permanent injunction, and so biting the patent infringement bullet that delusional RIM (v. NTP) still thinks it can miraculously dodge, Nellcor, a division of Tyco Healthcare, itself a subsidiary of industrial conglomerate Tyco International, has agreed to fork over $330 million for infringing medical device patents owned by privately-held mighty mouse Masimo.
Posted by Patent Hawk at 1:59 PM | Litigation
August 3, 2005
Inequitable Depth of Field
James Frazier, a photographer and film maker, was awarded 5,727,236 for a camera lens offering extreme depth of field: in-focus images of subject matter both close-up and far away. Then he tried enforcing the patent, creating his own horror movie.
Posted by Patent Hawk at 12:01 AM | Inequitable Conduct