December 22, 2009
Unpreserved
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.
Continue reading "The Rubber Meets The Road"
Posted by Patent Hawk at 6:03 PM | Injunction | Comments (2)
May 14, 2009
Dubious
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 | Comments (0)
January 1, 2009
Nailed
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.
Posted by Patent Hawk at 1:47 PM | Injunction | Comments (2)
December 1, 2008
Whaling
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 | Comments (0)
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.
Continue reading "Preliminary Jam"
Posted by Patent Hawk at 12:10 AM | Prior Art | Comments (0)
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.
Posted by Patent Hawk at 4:42 PM | Injunction | Comments (0)
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 | Comments (0)
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 | Comments (0)
August 3, 2008
Injunkedtion
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.
Continue reading "Dim Lantern"
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 | Comments (0)
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.
Continue reading "Preliminary Injunction"
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 | Comments (0)
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.
Continue reading "Ears Ringing"
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."
Continue reading "Injunction & Reexamination"
Posted by Patent Hawk at 2:10 AM | Injunction | Comments (0)
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.
Continue reading "ITC Hangs Up Qualcomm"
Posted by Patent Hawk at 1:31 AM | Injunction | Comments (0)
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 | Comments (0)
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.
Continue reading "Injunction Kabuki"
Posted by Patent Hawk at 12:21 AM | Injunction | Comments (0)
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.
Continue reading "Irreparable Harm"
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.
Continue reading "Tumbling Dice"
Posted by Patent Hawk at 12:31 AM | Injunction | Comments (0)
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.
Continue reading "Injunction Juncture"
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.
Continue reading "Injunction Mud"
Posted by Patent Hawk at 12:49 PM | Injunction | Comments (6)
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).
Continue reading "Supreme Injunction"
Posted by Patent Hawk at 10:10 AM | Injunction | Comments (0)
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.
Continue reading "Injunctive Relief - Historical Perspective"
Posted by Patent Hawk at 2:11 AM | Injunction | Comments (0)
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