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
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
June 4, 2014
Contravening the confused CAFC once again, SCOTUS ruled in Limelight v. Akamai that direct infringement requires a single party. Further, "liability for inducement must be predicated on direct infringement."
Posted by Patent Hawk at 6:13 PM | Infringement
April 9, 2014
United Video Properties, which owns TV Guide and Rovi, decided it wanted a prime cut of Amazon for infringing 6,769,128 & 7,603,690. Carefully biased claim construction insured noninfringement. The lynchpin was prosecution estoppel. Ironically, a term was struck ("Internet delivered data") during prosecution that actually broadened claim scope. But of course, with Amazon being the target, the court skewed claim construction to get Amazon off the hook. (CAFC 2013-1396).
Posted by Patent Hawk at 1:27 AM | Infringement
Trolling Shot Down
To extort license revenue, DataTern sued only the customers of Microsoft and SAP database products for patent infringement (5,937,402 & 6,101,502). Microsoft and SAP and were let alone. But, in response to customer complaints about DataTern, those two software giants filed a DJ against DataTern's assertion. DataTern argued lack of subject matter jurisdiction, to no avail. The fix was in. Summary judgment of noninfringement for all claims of the patents, upheld on appeal. The district court had allowed that to apply to all SAP products, but the CAFC (2013-1184) pared that back to the single product in dispute.
Posted by Patent Hawk at 1:05 AM | Infringement
January 22, 2014
In the continuing campaign to abridge the rights of non-corporate patent holders, the august priests of the plutocracy proclaim through nuance that only pittances are due patent peasants. In Medtronic v. Mirowski, the Supreme Court unanimously rules that patent holders must always prove their patents worthy.
Posted by Patent Hawk at 6:10 PM | Infringement
September 7, 2013
The Greed Gene
Bayer CropScience sued Dow Agrosciences over a claim to bogus genetics. Its assertion was found not infringed; affirmed on appeal. (CAFC 2103-1002)
When the inventors applied for the patent at issue, they had sequenced one gene coding for one enzyme, using a test purportedly capable of finding other, similar genes. In writing its claims, the owner - now Bayer CropScience AG - decided to claim a broad category based on the function of the particular enzyme, defining the category by using a term with an established scientific meaning. In doing so, Bayer got ahead of the science: experiments had not confirmed that the term even applied to the particular enzyme whose gene Bayer's inventors had sequenced. Soon science showed that it did not, and Bayer knew as much years before its patent issued - but did not change its claim language. When it ultimately sued Dow AgroSciences for infringement, Bayer recognized that the term used, in its established scientific meaning, did not cover the accused product (itself different from the particular enzyme whose gene Bayer's inventors had sequenced), so it argued for a broad functional claim construction.
Posted by Patent Hawk at 3:34 PM | Infringement
June 27, 2013
The reckless disregard for the law continues at the CAFC. In Commil v. Cisco Systems (2012-1042), a panel majority holds "that evidence of an accused inducer's good-faith belief of invalidity may negate the requisite intent for induced infringement." Judge Newman, in dissent: "A belief of invalidity cannot avoid liability for infringement of a patent whose validity is sustained. The panel majority's contrary holding is devoid of support in law and precedent."
Posted by Patent Hawk at 12:56 PM | Infringement
March 18, 2013
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
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
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
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.
Posted by Patent Hawk at 12:52 AM | Infringement
September 5, 2012
Last week, in Akamai Technologies v. Limelight Networks (CAFC 2009-1372), a CAFC en banc 6-5 divided court fabricated its own law of induced infringement; which got ignored a few days later, as the court again capriciously followed its bias of the moment.
Posted by Patent Hawk at 12:48 AM | Infringement
August 26, 2011
For years, Star Scientific has been trying to smoke R.J. Reynolds Tobacco for infringing its tobacco curing patents: 6,202,649 & 6,425,401, but couldn't get the match to strike. Down-and-dirty litigation tactics tarnished Star. As usual, the corporate giant won again, as the CAFC displayed divisions within.
Posted by Patent Hawk at 1:07 PM | § 112
July 21, 2011
Conjugated estrogens are a mixture used to treat post-menopausal hot flashes by artificially ramping lost hormonal production. For that benefit runs a greater risk of breast cancer, heart attack, or stroke. Duramed asserted 5,908,638 against Paddock Labs to treat its post-grant ANDA, the generic replacement syndrome that afflicts profitable patented drugs. Paddock eluded infringement because of prosecution estoppel over the claimed moisture barrier coating on the pill - what's in the prior art is foreseeable. Here is a backhand of Obzilla.
Posted by Patent Hawk at 9:48 PM | Infringement
June 28, 2011
Serious body builders take a variety of supplements, not because they are serious about their health, but because they are serious about their ego. Brains and brawn seldom mix. And so it seems with at least one bodybuilder supplement maker. Creative Compounds filed a DJ against competitor Starmark Laboratories over 7,109,373. Starmark shot back, asserting infringement, and the comeuppance of Creative's 7,129,273 as invalid. Starmark found favor at district court: "summary judgment on all counts and denied Creative's motion to dismiss for lack of jurisdiction." The appeals court backed the district court on everything but subject matter jurisdiction. But the punch of that was moot, because Creative's '273 was effectively invalidated, and so can never be successfully asserted.
Posted by Patent Hawk at 4:03 PM | Prior Art
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
June 2, 2011
Advanced Software sued competitor Fiserv for infringing a check fraud and forgery patent reliant upon encryption, 6,792,110 found not infringed in summary judgment. On appeal, lots of garbage arguments by freewheeling litigators, typical of every litigation. The stunner is the CAFC descending into gobbledygook guidance, leaving claim construction an encrypted process for district courts. Herein, a limiting preamble whose limitations can be ignored for determining infringement. The CAFC continues to astonish with legal turbidity.
Posted by Patent Hawk at 4:24 PM | Infringement
May 31, 2011
SEB had commercial success with an electrical deep fryer that it patented: 4,995,312. Sunbeam asked Pentalpha, owned by Global-Tech Appliances, "to supply Sunbeam with deep fryers meeting certain specifications. Pentalpha purchased an SEB fryer that was made for sale in a foreign market and thus lacked U. S. patent markings, copied all but the fryer's cosmetic features, and retained an attorney to conduct a right-to-use study without telling him it had copied directly from SEB's design. Failing to locate SEB's patent, the attorney issued an opinion letter stating that Pentalpha's deep fryer did not infringe any of the patents that he had found. Pentalpha then started selling its fryers to Sunbeam, which resold them in this country under its own trademarks at a price that undercut SEB's."
Posted by Patent Hawk at 11:00 AM | Infringement
May 19, 2011
Allergan sued Apotex and Exela for infringing 5,424,078 and related patents, claiming eye drops to treat glaucoma. The litigations were prompted by the would-be infringers exposing their intentions by filing ANDAs. The generic rascals were routed, failing to invalidate, and failing to skirt infringement. Apotex appealed obviousness, and knocked down '078 on appeal, but not its relations. Lousy lawyering comes to fore as factoring in, as did, for Exela, clever counsel.
Posted by Patent Hawk at 8:12 PM | Prior Art
April 24, 2011
Claim construction is a legal greased pig: hard to tackle. Grabbing it invariably results in a lot of squealing. Creative Internet Advertising sued Yahoo! over 6,205,432, which claims an instant squealing program. The litigation had lots of claim construction squealing about antecedent basis and sequence. A jury found '432 infringed and not invalid. "The district court enhanced the jury's damages award and ordered an ongoing royalty despite Yahoo!'s efforts to design around the patent." Yahoo! squeals. Again. And yet more squealing on appeal: a CAFC panel judge joins in.
Posted by Patent Hawk at 2:45 PM | Claim Construction
April 20, 2011
TiVo bludgeoned EchoStar with 6,233,389, winning at trial in 2006 and on appeal in 2008. EchoStar wouldn't settle, and TiVo got a temporary injunction. EchoStar's supposed workaround "was not more than colorably different from the infringing software, and did continue to infringe the software claims." The district court, then an appeals panel, found contempt. The CAFC agreed to hear the issue en banc, to "clarify the standards governing contempt proceedings in patent infringement cases." With a roaring dissent, clarification was awfully noisy.
Posted by Patent Hawk at 7:08 PM | Case Law
April 12, 2011
6,757,898 claims a networked medical database, over which McKesson sued Epic Systems. Epic licenses the accused product, MyChart, to healthcare providers. Epic's second summary judgment motion of non-infringement convinced the district court judge, after the first failed because the judge wanted a better feel for the facts. The appeals court only wanted a better feel of control.
Posted by Patent Hawk at 1:41 PM | Infringement
March 26, 2011
Innovention Toys successfully sued MGA Entertainment,Wal-Mart Stores, and Toys "R" Us for infringing 7,264,242, "which claims a chess-like, light-reflecting board game." The win at district court was, of course, appealed. The CAFC panel found that the district court strayed from the path in determining nonobviousness, and remanded.
Posted by Patent Hawk at 4:00 PM | Prior Art
March 21, 2011
5,355,964 claims a pile driver. In an obscure litigation strategy, owner American Piledriving Equipment drove infringement suits around: in 7 different districts. Each had different claim constructions. Two were on appeal: "Eastern District of Virginia and the Northern District of California each granted summary judgment of noninfringement in favor of their respective defendants, despite adopting different constructions of two key claim terms." Another case where the CAFC cleans up from random lawyering, and a modest miss by a district court.
Posted by Patent Hawk at 2:09 PM | Claim Construction
February 19, 2011
Ronald A. Katz sued a crop of companies over his call processing patent portfolio in a variety of venues. Consolidation led to loss at district court. For the umpteenth time, a CAFC ruling demonstrates the random competence of all involved before the appeals panel. Patent litigation is a crap shoot because a lot of what comes out of lawyers, whether on the bench or belting it out, is crap. It helps when patent claims are largely crap, which is not at all unusual either. Once again, the CAFC proves its worth in sorting it all out.
Posted by Patent Hawk at 3:32 PM | § 112
January 24, 2011
5,220,919 claims a booze detector which sniffs the air near the skin of the lubricated one. Owner AMS sued four for tippling infringement. The district court, a little tipsy in its claim construction, nonetheless walked a straight line to noninfringement. The appeals court sobered things up.
January 23, 2011
5,287,270 claims a computerized billing system, ostensibly for phone calls. Who uses it? Patent owner Centillion thought Qwest did, so it sued for infringement. The district court summarily found otherwise, because "no single party practices all of the limitations of the asserted claims." A phone user used the front end, while Qwest handled the back end. Appeal dialed it in differently.
January 4, 2011
Locking Up Damages
Uniloc sued Microsoft over its product activation software, infringing Uniloc's 5,490,216. Uniloc convinced a jury of willful infringement, to the tune of $388 million, plus $86 million in interest. Microsoft then swayed the district court judge to pitch the jury verdict. The inevitable appeal furthered court reform of the patent laws, particularly damages methodology. Goldscheider and his dedicated flock of followers are belatedly shoved into oblivion, and the whole hog market rule is butchered again.
December 21, 2010
Tessera designs semiconductors, and thereby manufactures patent litigations. This episode emanates from the ITC, in an action against several parties: Spansion, Freescale, ATI, STMicro, and Qualcomm. Motorola settled. 5,852,326 and 6,433,419, going to a particular semiconductor packaging, were asserted. After typical bureaucratic discord, the ITC found the patents valid and infringed. The inevitable CAFC appeal inevitably went to claim construction, infringement, and validity.
Posted by Patent Hawk at 11:36 PM | ITC
December 20, 2010
Bollocks to the Dollops
Akamai Technologies, with MIT riding shotgun, asserted: 6,108,703; 6,553,413; & 7,103,645 against Limelight Networks. The patents generally claim delivering content dollops that go along with serving a web page. The district court judge overturned the jury's finding of joint infringement of the asserted '703 claims. That was one for appeal by Akamai, along with claim construction tiffs that led to non-infringement on the other patents. Joint infringement requires that the major infringer controls the minor infringer (an agent that is "contractually obliged"), or it'll blow the joint.
Posted by Patent Hawk at 1:49 PM | Infringement
November 5, 2010
Talk about a plaintiff's dream. Finjin sued Secure Computing and Webwasher for infringing anti-malware scanning software patents 6,092,194; 6,804,780; and 7,058,822. Defendants counterclaimed 6,357,010 and 7,185,361. "A jury found that none of the patents was invalid, that Finjan did not infringe Defendants' patents, and that Defendants willfully infringed all asserted claims of Finjan's patents. The district court awarded damages to Finjan, enhanced the award under 35 U.S.C. § 284, and imposed a permanent injunction against Defendants." Appeal only slightly tarnished the victory.
October 13, 2010
The Invention Zone
6,730,817 claims a process for making a refrigerant gas that won't deplete atmospheric ozone and turn Earth into more of a baking oven than humans are busy otherwise doing. Owner Solvay sued Honeywell for infringing '817. For their pains, Solvay had some asserted claims found infringed, but "invalid under 35 U.S.C. § 102(g)(2) because Honeywell was a prior inventor." Appeal got the invalidity ozone depleted from district court summary judgment.
September 21, 2010
Shallow End of the Pool
Philips, Fujitsu, and LG Electronics are in a patent pool that claims wireless communication protocol standards. Netgear was the target of their "licensing" campaign. For summary judgment, "the plaintiffs argued that by simply complying with the standard, Netgear necessarily infringed the asserted claims." The district court found the hand-waving assertion of infringement off-putting, and denied the motion. On to appeal.
Posted by Patent Hawk at 3:06 PM | Infringement
September 13, 2010
6,986,764 claims "photoselective vaporization of tissue," though that phrase appears only in the preamble. A district court judge found the patent not infringed because the accused product didn't do it. A CAFC majority reversed, figuring the preamble was not a limitation. Judge DYK dissented, suggesting that such claim ablation is a violation.
September 10, 2010
Spine Solutions, Inc. (SSI) sued Medtronic for infringing 6,936,071, which claims a spinal implant, "used to replace discs between vertebrae in the spinal column that have degenerated or become diseased." Summary judgment of infringement for claims 1 and 2, and dismissal of "all of Medtronic's 35 U.S.C. § 112 defenses" led to stipulated capitulation by Medtronic, setting up a trial on damages and obviousness. SSI was going for lost profits even though it didn't sell or make any device covered by '071. But SSI's sister companies did. SSI was allowed to amend its complaint to include them. The jury found '071 not invalid, and willfully infringed, to the $5.7 million in lost profits, and an 18% reasonable royalty on $9.1 million in infringing sales. Whereupon the district court doubled the damages and awarded attorneys fees. Adding insult to injury, the court entered a permanent injunction. All that left Medtronic a lot to appeal. And some of it was appealing to the CAFC.
September 6, 2010
Even for an ace, patent litigation is a team sport. It's one thing if your scummy contingency lawyers breach contract and walk away, for you to soldier on (more on that later). But to sue a major corporation pro se - foolhardy becomes an understatement. Case in point: Roger Marx Desenberg sued Google for infringing 7,139,732. Desenberg couldn't even reach first base: the district court "dismissed the complaint under Federal Rule 12(b)(6) for failure to state a claim upon which relief can be granted."
August 20, 2010
Transocean Offshore Deepwater Drilling innovates so humans can drive around on the cheap until they pollute themselves out of existence. And, as anything that lives in the Gulf of Mexico would tell you (if it could talk), pollution begins at the wellhead. Transocean tried drilling rival Maersk for infringing 6,047,781, 6,068,069, and 6,085,851, in South Texas, where they love oil like cattle love grazing. But apparently not those patents, because the district court held the asserted claims invalid, not infringed, and Maersk not acting willfully. Transocean had to pitch its bit to the CAFC.
Posted by Patent Hawk at 2:35 PM | Prior Art
August 14, 2010
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
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.
Posted by Patent Hawk at 9:30 PM | Infringement
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 5, 2010
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.
Posted by Patent Hawk at 10:06 PM | Claim Construction
July 29, 2010
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.
July 19, 2010
Paradox Security Systems sued ADT and other home security companies for infringing RE39,406, which claims a telephone line coupler circuit. Paradox's expert was waylaid by defendants for not explaining how the accused products met a means-plus-function limitation. The district court judge ruled non-infringement as a matter of law. Appeal found the same short circuit.
Posted by Patent Hawk at 7:05 PM | Infringement
June 23, 2010
"An annuity is a contract that guarantees the payment of money to an annuitant upon certain intervals. Annuities are typically used to provide individuals with long-term economic protection against the risk of outliving their assets." 7,089,201, owned by Lincoln National Life Insurance Company claims "computerized methods for administering variable annuity plans," particularly, paying out "even if the account value is exhausted." Nervy competitor Transamerica filed a DJ.
Posted by Patent Hawk at 10:52 AM | Infringement
June 16, 2010
Wordtech sued a school district in California, and Integrated Networks Solutions (INSC), along with four INSC employees, for infringing CD copier patents 6,141,298; 6,532,198; and 6,822,932. The school district settled. Only after that did INSC attempt to allege invalidity, a motion denied by the district court. Jury trial "found that all defendants infringed all three patents willfully. After trial, the district court found the case "exceptional" under 35 U.S.C. § 285 and awarded treble damages, attorneys' fees, interest, and costs to Wordtech." The only appeal challenge was for the liability verdicts against two INSC employees.
Posted by Patent Hawk at 11:11 AM | Infringement
June 15, 2010
Database monolith Oracle tried to put a DJ hurt on 5,894,554 as invalid and/or unenforceable. Patent owner epicRealm counterclaimed infringement, then passed the torch to Parallel Networks to carry on. '554 goes to "efficiently managing dynamic web page requests. Specifically, the claimed invention seeks to lighten a web server's processing load by allowing it to off-load dynamic web page requests to one or more page servers."
Posted by Patent Hawk at 9:12 PM | Infringement
June 4, 2010
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.
April 29, 2010
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.
April 12, 2010
Global Locate took SiRF and others to the ITC to stop the defendants from importing products infringing six of its GPS patents, which claim methods for improving signal reception. Global Locate prevailed. The defendants appealed. At issue were standing, infringement, and whether GPS-based methods were patentable subject matter under the Bilski standard.
Posted by Patent Hawk at 10:10 PM | Standing
April 10, 2010
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
March 10, 2010
i4i Review Redux
Microsoft has prevailed upon the CAFC to rehear, en banc, only the willfulness portion of its affirmation of the district court ruling in i4i v. Microsoft. In other words, the CAFC cut Microsoft a break, probably because the CAFC wants another bite at cleaning up the willfulness standard. A revised CAFC ruling was issued today that takes out the sentence: "Microsoft does not challenge the jury instructions on willfulness or the sufficiency of the evidence supporting the jury's willfulness finding," and adds a section on willfulness to its revised ruling.
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 7, 2010
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.
January 15, 2010
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
January 9, 2010
Restaurant Technologies (RTI) sued Jersey Shore Chicken for infringing 5,249,511, which claims a system for supplying and disposing of cooking oil in restaurant fryers. If RTI had a good prosecutor, the patent wouldn't have read like a product manual, with too few embodiments, especially for means-plus-function claims. Herein, RTI gets fried pursuing denial to a bitter end.
Posted by Patent Hawk at 11:12 PM | Infringement
December 22, 2009
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.
December 16, 2009
Experts are the litigation equivalent of hired guns. They are only as good as the guidance given by the attorneys providing their payday on what bullets to shoot where. A case in point is Intellectual Science and Technology v. Sony. 5,748,575, one of five patents left standing on appeal, claims concurrent reading of computer CDs. The district court pitched the case on summary judgment for non-infringement after the plaintiff's expert failed to convince, as his declaration was "merely conclusory." The appeals court gave a lesson in how an expert ought to spurt.
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.
December 8, 2009
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.
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.
Posted by Patent Hawk at 1:16 PM | Claim Construction