November 13, 2012
35 U.S.C §112 ¶1 requires that claimed invention be reduced to practice; that is, described in the patent specification such that one of skill in the relevant art area would be able to read the patent and implement the invention. Without this requirement, shambolic specifications would confer patents on rough ideas rather than practical inventions. Hence, evisceration of the written description requirement would make a mockery of the law, and the very purpose of the patent sanction. The courts don't see it that way.
Posted by Patent Hawk at 3:41 PM | § 112
May 14, 2012
Apple tried to get a preliminary injunction against Samsung over design and utility patents, accusing Samsung of infringing its "distinctive design." The district court was unpersuaded, finding, among other faults, that "Apple had failed to show a likelihood of success on the merits." The legal team at Quinn Emmanual, representing Samsung, outmaneuvered MoFo. With the exception of a quibble over legal error for one patent, remanding back for reevaluation, a CAFC panel affirmed, even as it did not often agree with the district court. (CAFC 2012-1105)
Posted by Patent Hawk at 2:31 PM | Injunction
January 9, 2012
Celsis In Vitro sued Life Technologies Corp. (LTC) for infringing 7,604,929, which claims methods for freezing hepatocytes, "an art well-known for its unpredictability." LTC got a preliminary injunction, which was appealed, arguing non-infringement and obviousness (CAFC 2010-1547). The bias was strong against LTC. LTC's infringement expert "really didn't offer anything in the way of opinions to address the proper interpretation of the patent's claims." Its claim construction arguments were "hokum." Its cited prior art was entirely off point ("not a single one of the astonishingly large body of literature was devoted to the [relevant] subject [matter]"). LTC's obviousness expert, having been found making much of "a wisp of a term that is buried in [an] article," was "unpersuasive." LTC's obviousness arguments were "nothing more than second guessing and hindsight." LTC is frozen out.
Posted by Patent Hawk at 8:42 PM | Injunction
October 13, 2011
Bosch is a large company selling patented car windshield wiper blades. Pylon is a small company selling patented car windshield wiper blades. Unfortunately for Pylon, Bosch owns the patents. Bosch successfully sued Pylon for infringement, but the district court refused to issue a permanent injunction based on equitability considerations. The plutocratic CAFC put paid to that.
Posted by Patent Hawk at 6:45 PM | Injunction
September 5, 2011
Suck It Up
Mytee Products filed a declaratory judgment action against Harris Research over 6,266,892 and 6,298,577, which claim carpet cleaning nozzles. The DJ went poorly. "After summary judgment proceedings and a jury trial, both patents were found to be not invalid and infringed. Harris moved for a permanent injunction, which the district court granted." The CAFC affirmed. This is a case of "be careful what you wish for," and make sure you have decent lawyers making your wish.
Posted by Patent Hawk at 11:23 AM | Prior Art
June 1, 2011
Kimberly-Clark sued First Quality for infringing four patents claiming various facets of disposable "training" pants for toddlers. Kimberly-Clark got a preliminary injunction. After that tiff was headed to appeal, the district court modified its claim construction. Here is another case where the district court didn't pay attention, followed by a CAFC panel that disregards a critical admission made by a patent holder. Either the courts need training pants for patent adjudication, or the smell of corporate bias wafts again ("Kimberly-Clark, a major participant in the personal care industry...," the CAFC respectfully observed).
Posted by Patent Hawk at 10:22 AM | Injunction
November 2, 2010
AstraZeneca sought and got a preliminary injunction against Apotex, which was hankering to launch a generic version of the asthma drug Pulmicort. Apotex did manage to invalidate "kit" claims of asserted 6,598,603 and 6,899,099. Appeal left things as at district court, with dissent on the injunction, owing to a different take on validity.
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.
June 3, 2009
The Rubber Meets The Road
Titan Tire sued Case for infringing D360,862, claiming a tractor tire. "In May 2007, Titan filed a motion for a preliminary injunction to prohibit Case from selling backhoes with infringing tires." The motion was denied, because Titan "was not likely to withstand" an obviousness challenge. On appeal, the CAFC exposits on preliminary injunctions, and adds a dash on design patent obviousness.
May 14, 2009
Altana Pharma sued competitor Teva over 4,758,579, going to an antiulcer drug. Altana asked for a preliminary injunction. Teva shot back with a decent obviousness argument, so the judge denied the motion, because it was dubious that the patent would withstand the enforcement attempt given the "substantial question" of validity raised. The CAFC agreed.
Posted by Patent Hawk at 9:43 PM | Injunction
January 1, 2009
Acumed sued Stryker over 5,472,444, which claims an orthopedic nail for mending the upper arm bone. Acumed got a permanent injunction, which was trashed by the CAFC in the wake of eBay's strict four-factor metric. On remand, same result: permanent injunction. On appeal, the district court skated: found within its discretion. Tip for district court judges: it's not how you rule, but how you nail it.
December 1, 2008
Two recent Supreme Court cases affirming the power of the police state, unrelated to the mercantile motives of patents, nonetheless toll the death knell for the "substantial question of patentability" defense in fighting a patent-holder's motion for a preliminary injunction. Judge Newman, in a 2-1 decision in Abbott v. Sandoz last month, read the tea leaves, leaving dissenting Judge Gajarsa wagging a worthless finger.
Posted by Patent Hawk at 1:23 AM | Injunction
October 22, 2008
Sandoz prompted a classic drug patent battle with Abbott Labs by filing an ANDA. Abbott got a preliminary injunction, which Sandoz appealed. The CAFC covers anticipation for the second day standing, and Judge Newman paints Obzilla in softer tones than recently seen.
Posted by Patent Hawk at 12:10 AM | Prior Art
October 14, 2008
As part of their ongoing patent war, Broadcom put Qualcomm before the ITC for infringing 6,714,983. The ITC did not find direct infringement, but did find inducing infringement, hence "issued a limited exclusion order ("LEO") against the importation of all downstream products containing the accused technology." By doing so, the ITC showed no respect for due process, and exceeded its statutory authority. Also herein, more caprice by the CAFC in complicating claim construction, and inconsistency in defining prior art.
Posted by Patent Hawk at 4:42 PM | Injunction
September 26, 2008
In the Fire
Broadcom and Qualcomm have a cell phone chip patent war going on. A major clash was appealed, with blood spilled.
Broadcom got a permanent injunction, even though it didn't practice the claimed invention. While the courts found it "generally in the public interest to uphold patent rights," an injunction would not have been granted if not for giving Qualcomm a "sunset provision" to wean itself from infringement. This ruling could be a roadmap for future injunctive relief.
Inducing infringement was rehashed. Unlike willfulness, where a clearing opinion means nothing, it can mean something when considering inducing infringement, which "may be established through circumstantial evidence," considering the totality of circumstances.
Further, the CAFC found obvious error with district court claim construction. Further evidence of a trial court system ill-equipped for patent cases. On appeal, Broadcom made one of the most bizarre claim construction arguments possible: that if a claim were properly construed, it would be prima facie invalid in light of cited prior art, ergo, could not construed that way. So what, the court ruled. It's invalid.
Posted by Patent Hawk at 9:30 PM | Injunction
August 18, 2008
In the Aorta
Dr. Jan K. Voda, M.D., sued Cordis for infringing two catheter patents: 5,445,625 & 6,083,213, getting a 7.5% royalty, and even enhanced damages and attorneys fees for willfulness. In light of eBay, Voda overreached for a permanent injunction. In a ruling replete with succinct case law infusions, appeal of most everything found the district court ruling in the right vein, except, most notably, willfulness in light of Seagate.
Posted by Patent Hawk at 11:16 AM | Injunction
August 3, 2008
Novo Nordisk sued Sanofi-Aventis for infringing 7,241,278. Novo then motioned for a preliminary injunction. Denied. Affirmed on appeal because Novo "failed to show a reasonable likelihood of success on the merits." Sanofi had "raised substantial questions," including whether claim construction would go Novo's way. In other words, in order to get a preliminary injunction, the plaintiff has to demonstrate a clear-cut case, while the defendant merely has to raise doubt.
March 24, 2008
AG Design sued Trainman Lantern for infringing 7,118,245. The west Washington district court judge granted a preliminary injunction on the likelihood of infringement under doctrine of equivalents (DOE), the accused device missing a claimed feature of multiple plug-in ports. The appeals court found fault on a few fronts.
February 29, 2008
Money Changes Everything
MercExchange's patent assertion against eBay's "Buy It Now" feature resulted in a Supreme Court ruling that, using a four-factor test, essentially denied injunctive relief unless the patent holder was a direct competitor to an infringer. Thursday, eBay announced that it bought three patents from Merchange for an undisclosed amount, including 5,845,265, the centerpiece of the matter.
Posted by Patent Hawk at 10:08 PM | Patents In Business
February 19, 2008
A pair of preliminary injunctions vacated on appeal, putting claim construction and KSR as the cruxes of justification. In Erico v. Vutec & Doc's Marketing, though hotly contested, KSR Obzilla stomped in to quash a preliminary injunction. In Chamberlain Group v. Lear, a rather obvious inconsistency in claim construction resulted in preliminary injunction reversal.
December 19, 2007
Have a Cigar
Insisting on injunctive relief for patent infringement by eBay for its "Buy it now" feature, MercExchange is like a pit bull with rags for brains. After last year's overturning the CAFC practice of granting injunctions "automatic like a dog," the Supreme Court decision in eBay v. MercExchange sewed a new garment out of old cloth, updating "the traditional four-factor test" for granting injunctions: (1) are you screwed without an injunction?; (2) what do you mean, money's not enough? (the prostitution test); (3) considering both sides, who's seriously damaged one way or the other?; (4) are consumers screwed by an injunction?. Back in deliverance district court after giving MercExchange $30 million in eBay bucks, the judge had MercExchange squeal like a pig.
Posted by Patent Hawk at 3:29 PM | Injunction
November 26, 2007
Injunctions Since eBay
The 2006 Supreme Court ruling in eBay v. MercExchange was the last significant SCOTUS denouement on patent injunctions since Continental Paper Bag in 1908. A balanced assessment, applying "principles of equity" of the infringement in light of the infringed party and the infringer was the theme of the eBay decision. Though the language of the court was muddy, the presumed clarion call was that non-practicing patent holders would be hard put to get an injunction; that being direct competitors would be the best bet to stop infringement in its tracks. An exception proves the rule, as a survey of 28 post-eBay district court dances by Andrew Beckerman-Rodau of Suffolk University reveals.
September 26, 2007
Vonage, the best of the VoIP providers, had its bell rung twice for patent infringement in the past couple of days. Yesterday, a jury found Vonage infringed Sprint patents; a $70 million tab in the offing. Vonage will, of course, appeal. But, with history as a guide, that offers little succor, as Vonage lost its appeal for two of three Verizon patents it infringed, and the third still looms. Being the best by snitching others' IP is running the company into the ground.
September 25, 2007
Eran makes and markets rain gutter covers, covered by 5,557,891. Fired employees set up shop as competitors, named GP Industries. Eran sent a scary letter to its customers and distributors that GPI's product would be infringing '891. GPI responded with a declaratory judgment motion to kill '891 and stop the alleged tortious business interference. Eran responded with a patent infringement and trade secret theft suit. GPI then successfully sought a preliminary injunction against Eran further bad-mouthing them. The appeals court barked "not so fast."
July 31, 2007
Injunction & Reexamination
Hal Wegner reports: "More than fourteen months after the Supreme Court decision in eBay Inc. v. MercExchange, the eBay case continues in Norfolk. Just this past Friday, the court denied a permanent injunction while offering interesting observations on the interplay between patent reexamination and litigation."
Posted by Patent Hawk at 2:10 AM | Injunction
June 8, 2007
ITC Hangs Up Qualcomm
Conflicted in administering harsh medicine, the U.S. International Trade Commission (ITC) hesitated for weeks, then, in a 4-2 decision yesterday, banned the import of new models of cell phones and PDAs using Qualcomm chips that infringed Broadcom patents.
Posted by Patent Hawk at 1:31 AM | Injunction
January 5, 2007
Abbott's Preliminary Injunction Rabbit
Abbott Labs sued Andrx, Roxane, and Teva for infringing patents related to extended release clarithromycin (6,010,718; 6,551,616; 6,872,407), sold by Abbott as Biaxin XL. The three defendants had filed ANDAs, which were approved. Abbot successfully moved for a preliminary injunction against all three from marketing their generic versions. Here is the case Andrx appealed (CAFC 06-1101).
Posted by Patent Hawk at 12:58 PM | Injunction
December 11, 2006
Sanofi markets Plavix®, used for heart attacks and strokes, and covered by 4,847,365. Maneuvering by the Hatch-Waxman Act playbook, Apotex filed an ANDA for a generic version, triggering an infringement suit by Sanofi. Apotex counterclaimed with invalidity. In due time, the FDA approved the ANDA. Sanofi and Apotex settled... well, except that government regulators, the FTC and state attorney generals, nixed the settlement as not copasetic.
Posted by Patent Hawk at 12:21 AM | Injunction
August 20, 2006
In the months following the Supreme Court eBay v. MercExchange decision, recent rulings demonstrate a revised trend in granting injunctions, most notably recognizing marketplace clout. Granting a permanent injunction to TiVo against competitor EchoStar, though stayed for the time being, illustrates the power injunctive relief can provide.
June 15, 2006
Principles of Equity
z4 Technologies won a jury award of damages against Microsoft ($115m) and Autodesk ($18m) for infringing software piracy patents 6,044,471 and 6,785,825. Microsoft's infringement was found willful. But the same Eastern District of Texas court has ruled (6:06-CV-142), in light of the recent eBay case, that a permanent injunction against Microsoft is not within "the principles of equity."
May 30, 2006
Reflection on the Supreme Court's mud sling on injunctions in eBay v. MercExchange appears to embolden infringers to fight on. The knock-on effect may be to raise damage awards, fueling outcry for patent reform.
Posted by Patent Hawk at 12:31 AM | Injunction
May 19, 2006
Speculation is bubbling about what impact the MercExchange v. eBay Supreme Court ruling is going to have. With regard to injunctions, the general forecast is muted, though it may cast a long shadow over posturing and the quality of asserted patents.
May 15, 2006
The U.S. Supreme Court, in a deceptive unanimous decision, has muddied the basis for granting a permanent injunction against patent infringers, with self-subversive concurring opinions tacked on. In the closely watched case of MercExchange v. eBay, eBay will be allowed to continue to infringe, at least for now.
November 28, 2005
eBay has been granted a hearing before the Supreme Court in its effort to avert a permanent injunction for infringing patents belonging to MercExchange. At issue is the general use of injunctions for patent infringement; the Appeals Court thought it appropriate in its March ruling (03-1600).
Posted by Patent Hawk at 10:10 AM | Injunction
May 19, 2005
Injunctive Relief - Historical Perspective
The U.S. patent office was founded in 1790. Injunctive relief against further infringement for the remaining duration of a patent's life has been available since 1819. From then into the early 20th century, injunctions against further infringement were generally granted as a matter of course.
Posted by Patent Hawk at 2:11 AM | Injunction