October 7, 2015

Irreparable Harm

Samsung slavishly copied patented features of the Apple iPhone in making its copycat mobile phone. Apple won its patent battle, but was denied an injunction by the district court because, it ruled, Apple failed to show irreparable harm. The CAFC (2014-1802) reversed, agreeing with Apple that there was a "causal nexus" between the copied features and damage to Apple's "reputation as an innovator, lost market share, and lost downstream sales."

Posted by Patent Hawk at 5:03 AM | Injunction

December 1, 2013

Biting for Apple

The U.S. government treats Apple computer as a favored son. The CAFC (2013-112) overturned a district court's judgment that an injunction against Samsung was unjustified. With no backing in law, as Apple's arguments were generally ill-conceived, but by strong bias, the CAFC told the district court to take another look, and find favor towards Apple as it does.

Posted by Patent Hawk at 4:32 PM | Injunction

November 13, 2012

Pig Heart

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.

Continue reading "Pig Heart"

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)

Continue reading "Copycat"

Posted by Patent Hawk at 2:31 PM | Injunction

January 9, 2012

Frozen Out

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.

Continue reading "Wiped"

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.

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Posted by Patent Hawk at 11:23 AM | Prior Art

June 1, 2011

Training Pants

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).

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Posted by Patent Hawk at 10:22 AM | Injunction

November 2, 2010

Asthmatic Injunction

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.

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Posted by Patent Hawk at 12:40 AM | Injunction | Comments (2)

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.

Continue reading "Unpreserved"

Posted by Patent Hawk at 8:57 PM | Case Law | Comments (1)

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.

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Posted by Patent Hawk at 6:03 PM | Injunction | Comments (2)

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.

Continue reading "Dubious"

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.

Continue reading "Nailed"

Posted by Patent Hawk at 1:47 PM | Injunction | Comments (2)

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.

Continue reading "Whaling"

Posted by Patent Hawk at 1:23 AM | Injunction

October 22, 2008

Preliminary Jam

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.

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Posted by Patent Hawk at 12:10 AM | Prior Art

October 14, 2008

Down Boy

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.

Continue reading "Down Boy"

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.

Continue reading "In the Fire"

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.

Continue reading "In the Aorta"

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.

Continue reading "Injunkedtion"

Posted by Patent Hawk at 8:38 AM | Injunction | Comments (1)

March 24, 2008

Dim Lantern

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.

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Posted by Patent Hawk at 1:42 PM | Injunction | Comments (2)

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.

Continue reading "Money Changes Everything"

Posted by Patent Hawk at 10:08 PM | Patents In Business

February 19, 2008

Preliminary Injunction

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.

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Posted by Patent Hawk at 8:04 PM | Injunction | Comments (3)

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.

Continue reading "Have a Cigar"

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.

Continue reading "Injunctions Since eBay"

Posted by Patent Hawk at 6:16 PM | Injunction | Comments (2)

September 26, 2007

Ears Ringing

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.

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Posted by Patent Hawk at 12:15 PM | Claim Construction | Comments (1)

September 25, 2007

Gutter Mouth

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."

Continue reading "Gutter Mouth"

Posted by Patent Hawk at 4:45 PM | Injunction | Comments (1)

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."

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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.

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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).

Continue reading "Abbott's Preliminary Injunction Rabbit"

Posted by Patent Hawk at 12:58 PM | Injunction

December 11, 2006

Injunction Kabuki

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.

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Posted by Patent Hawk at 12:21 AM | Injunction

August 20, 2006

Irreparable Harm

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.

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Posted by Patent Hawk at 12:28 PM | Injunction | Comments (2)

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."

Continue reading "Principles of Equity"

Posted by Patent Hawk at 1:22 PM | Injunction | Comments (4)

May 30, 2006

Tumbling Dice

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.

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Posted by Patent Hawk at 12:31 AM | Injunction

May 19, 2006

Injunction Juncture

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.

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Posted by Patent Hawk at 12:37 AM | Injunction | Comments (4)

May 15, 2006

Injunction Mud

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.

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Posted by Patent Hawk at 12:49 PM | Injunction | Comments (9)

November 28, 2005

Supreme Injunction

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).

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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.

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Posted by Patent Hawk at 2:11 AM | Injunction