November 23, 2014

Bad Injector

"Antares is a developer of automatic injection devices used to self-administer pharmaceuticals." It got a patent (7,776,015) that it wanted broadened under reissue (35 U.S.C. § 251), as it had not bothered to file a continuation. Owing to prosecutorial and patent office incompetence, the reissue claims went to a different invention. Asserted in litigation, the CAFC caught the reissue error (district court Judge Sue L. Robinson did not) and pitched the patent (CAFC 2014-1648).

Posted by Patent Hawk at 8:20 PM | Reissue

May 3, 2011


6,034,423 claims a semiconductor chip package lead frame. But it didn't claim enough to satisfy inventors Shahram Mostafazadeh and Joseph O. Smith, who framed themselves into less patent coverage than they thought they deserved later. But Mostafazadeh & Smith lacked the foresight to file a continuation before issuance. So they resorted to a reissue, in an attempted chip chisel that fizzled.

Continue reading "Framed"

Posted by Patent Hawk at 10:22 PM | Reissue

April 18, 2010


RE36,885 claims a hypodermic safety syringe. '885 is fifth in a family dating back to 1990. MBO amended claims in the parent application, and in a succeeding CIP, to overcome prior art. In a cousin to the reissued '885, MBO argued over the prior art. The examiner allowed the claims, but MBO abandoned that application to pursue 5,755,699, which would later reissue as '885. MBO sought the reissue that became RE '885 to get broader claims. Which it did. But, in enforcement, the reissue was captured by recapture.

Continue reading "Stuck"

Posted by Patent Hawk at 12:28 PM | Reissue

August 16, 2008

Enlargement Stress

Todd Brady came up with "a building construction assembly that allows a header in a wall some vertical freedom of movement relative to the studs, such that stresses applied to the assembly do not result in wall cracks. Such a configuration is useful when stresses vary in a wall, for example, through accumulation of snowfall or from an earthquake." Hence 5,127,760. After losing in claim construction during an infringement assertion, Brady attempted correction, 12 years after issuance. The reissue couldn't stand the stress.

Continue reading "Enlargement Stress"

Posted by Patent Hawk at 1:55 PM | Claim Construction

April 3, 2007

Bad Solution

Central Admixture Pharmacy Services (CAPS) sued Advanced Cardiac Solutions (ACS) for infringing 4,988,515, claiming a nourishing solution used during heart surgery. The heart of the matter was CAPS' Certificate of Correction, changing a claim term, and thereby broadening the scope of the claims. [CAFC 06-1307]

Continue reading "Bad Solution"

Posted by Patent Hawk at 11:53 AM | Claim Construction

January 24, 2007

The Needle and the Damage Done

MBO Labs asserted RE36,885 against Becton-Dickinson. An unfavorable Markman led to a conceded defeat of summary judgment via non-infringement. So MBO appealed the claim construction. (CAFC 06-1062)

Continue reading "The Needle and the Damage Done"

Posted by Patent Hawk at 4:11 PM | Claim Construction

January 19, 2007


Ortho-McNeil Pharmaceutical sued Caraco Pharmaceutical Laboratories for infringing 5,336,691 after Caraco filed an ANDA. This claim construction dual was about defining the range meant by the claim term "about."

Continue reading "About"

Posted by Patent Hawk at 3:40 PM | Claim Construction

October 16, 2006

Reissue Reissue Issue

Medrad was granted 5,494,036, "Patient infusion system for use with MRI." But the patent itself needed an infusion, so, within two years of issue, Medrad filed for a reissue. It got the reissue (RE 37,602), but in the process, neglected to file a reissue declaration (per 37 C.F.R. § 1.175). Asserted, it fell on the procedural error. So, Medrad filed for a reissue of the reissue (RE 36,648). But that didn't fly in court either, because the basis of the 2nd reissue was procedural, deemed outside the scope of the reissue statute (35 U.S.C. § 251). In the appeal (CAFC 06-1082), § 251 is interpreted as offering broad relief as a curative for prosecution error.

Continue reading "Reissue Reissue Issue"

Posted by Patent Hawk at 10:36 AM | Reissue

October 12, 2006


Medtronic, a medical device maker, filed a declaratory judgment action against Guidant, more precisely, the interests holding RE 38,119, a re-issue of 4,928,688. Reissue is the issue, and in a non-precedential CAFC ruling (05-1515), the boundaries of recapture are encapsulated.

Continue reading "Recapture"

Posted by Patent Hawk at 7:56 PM | Reissue

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.

Continue reading "On the Rise"

Posted by Patent Hawk at 1:16 PM | Claim Construction

March 2, 2006

Claim Construction Myopia

Aspex Eyewear sued Miracle Optics for infringing RE37,545, over an eyeglass frame held together with magnets. The district court limited claim scope owing to prosecution estoppel. The CAFC (04-1138) reminded that a prosecution disclaimer of claim coverage required "reasonable clarity and deliberateness."

Continue reading "Claim Construction Myopia"

Posted by Patent Hawk at 1:43 PM | Claim Construction