Patent Law

Snuffing Candles

Posted on June 15, 2009
Tackling Bilski and patents in general, the Wall Street Journal presents one of the more subtle propaganda pieces seen: "The greatest innovations today are better methods rather than new machines. We shouldn't grant monopolies on concepts." Quoting IBM's David Kappos: "As things now stand, the vagueness of patent law means the 'precious time of skilled scientists and engineers is too often spent defending against costly and time-consuming litigation, instead of creating innovations that drive economic growth...

USPTO Beta Site

Posted on June 15, 2009
The USPTO has released a new beta version of its website, "redesigned to improve the look and feel, as well as to enhance the user experience with improved navigation." While the new site is not yet entirely up to date, the layout appears much improved over the current dreadful design...

Pompous Pirate

Posted on June 14, 2009
Rambus has been bullied by the European Union to license its patents on the cheap. Europe constantly seeks to denigrate patent protection because they are lagging behind in technological prowess and world commercial competitiveness, and have scant chance of catching up...

Twang

Posted on June 13, 2009
William Guess and George Morgan filed a patent application for "a musical instrument that includes a keyboard attached to a guitar body." Claim 1, the only independent, was a Jepson claim: a product claim listing a preamble that is typically in the prior art, followed by a listing of novel improvements...

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Appeal of Appeal

Posted on June 12, 2009
Patent allowances are way down, hence appeals are way up. Since January, the BPAI backlog has nearly doubled to over 10,000 pending appeals. At the current rate of 500 disposals per month, the backlog would take over 20 months to eliminate, not accounting for new appeals that are being filed at a rate 2 1/2 times faster than the Board's disposal rate...

Top Dogs

Posted on June 11, 2009
The most valuable patents are naturally the ones covering the most profitable technologies. It would be a facile conclusion that the most valuable patents might also be the most litigated. Take patented drugs as an example. Because only drug companies provoke litigation over drug patents, the number of litigations for such are low...

Biocide

Posted on June 10, 2009
To sanitize meat, processors directly apply biocides. To that end, Ecolab got 6,010,729, 6,103,286, and 6,113,963, which it asserted against competitor FMC. FMC counterclaimed 5,632,676. A jury found some of Ecolab's asserted claims invalid, while FMC's '676 withstood validity challenge...

Woe

Posted on June 09, 2009
"During the past decade, innovation has stumbled. And that may help explain America's economic woes." So opines faux economist at Business Weak, Michael Mandel. Lacking a "government-constructed "innovation index" that would allow us to conclude unambiguously that we've been experiencing an innovation shortfall," Mandel points to the epitome of irrational exuberance, the stock market...

No Bubbles

Posted on June 08, 2009
The American anachronism of patent interferences to determine priority often creates a mess when invoked. And so it was when Affymetrix concocted an interference against Agilent for a genetic analysis technique involving mixing fluids. The BPAI gave the prize to Affymetrix, after Agilent couldn't convince the Board that Affymatrix was playing fast and loose meeting the written description requirement...

Litigation Bible

Posted on June 08, 2009
The "Patent Case Management Judicial Guide" is a stellar compendium covering all aspects of patent litigation, not just judicial case management. Professor Peter S. Menell at U.C. Berkeley School of Law headed this collaborative effort. Highly recommended...

False Marking

Posted on June 08, 2009
Coffee drinker Matthew Pequignot sued Solo Cup for false marking, after noticing on coffee cup lids patent marks for long-expired patents. He then went after Gillette and Proctor & Gamble. Pequignot sued qui tam, on behalf of the government. In March, D...

The Diamond

Posted on June 07, 2009
Bilski's and Warsaw's "managing... consumption risk costs," are miserable claims to be scuttling to the Supreme Court on the topic of patentable subject matter, because they clearly are not patentable under §112 ¶2, not to mention §101. At issue is whether the CAFC misconstrued §101, in limiting processes to: 1) machine dependence or 2) transformation...

Double Coverage

Posted on June 05, 2009
Heather Knox has a 36C breast size, and isn't shy about sharing that fact with the world. "I'm 40. Gravity has taken its toll on me. Even at 30, gravity had taken its toll on me." Ms. Knox wanted anti-gravity support, so she combined a push-up bra with a full coverage bra, and burst a seam with 7,074,108...

Uppity

Posted on June 05, 2009
Wage slaves typically assign their inventions to their employer. Boat designer Borden Larson got uppity about it and sued his former employer Correct Craft, trying to get back a right he had signed away. Larson lashed out in state court. Correct Craft dragged it into federal court...

The Rubber Meets The Road

Posted on June 03, 2009
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...

Outside the Membrane

Posted on June 03, 2009
Amgen and Ariad got into a tussle over 6,410,516. Ariad started with a DJ action, asserting invalidity and noninfringement. Amgen counterclaimed infringement. '516 claims reducing a specific protein's activity (NF-kB). The claim construction crux was whether the claimed activity occurred outside a cell, inside, or it didn't matter...

Replay

Posted on June 03, 2009
TiVo bludgeoned EchoStar with its patents, winning at trial in 2006 and on appeal in 2008. EchoStar wouldn't settle, and TiVo got a temporary injunction. EchoStar supposedly developed a workaround. But TiVo alleged it was a faux workaround. A bench trial in February has resulted in a ruling today from East Texas Judge Folsom that EchoStar is in contempt of court, with an order that the company stop using TiVo technology (aka permanent injunction)...

Air Quality

Posted on June 02, 2009
PureChoice asserted RE38,985 against Honeywell. '985 claims an air quality monitoring system. What exactly is air quality? That was one problem leading to indefiniteness. The other problem was claiming two different sensors that couldn't be differentiated...

Ensnarement

Posted on June 01, 2009
Depuy Spine has been trying to screw Medtronic with 5,207,678, claiming a pedicle screw, used in spinal surgeries. Medtronic skirted literal infringement. On remand from the CAFC, the issue then became doctrine of equivalents, whereupon Medtronic reared an ensnarement defense...

Byoki

Posted on June 01, 2009
Byoki is the Japanese word for sick. Bilski is the American word for sick patent method case law. At the time of handing down the CAFC decision, Chief Judge Michel didn't consider Bilski much of a change, even as it immediately roiled understanding of patentability for processes, especially software...

Scam Artists

Posted on May 30, 2009
Class act Alysha Schertz (pictured) at the BizTimes Milwaukee brings the locals up to snuff on the patented skanky in "Patent trolls try to rip off high tech firms." "Scam artist patent trolls can create major headaches for some companies...

Still in Diapers

Posted on May 30, 2009
The impulse to see what you can get away with strikes infants of all ages. In Boss Industries v. Yamaha Motor, both sides displayed a touch of the syndrome. Boss sued Yamaha for infringing three snowmobile seat patents. Boss lost on claim construction; easily affirmed on appeal...

Breaking

Posted on May 29, 2009
Every Penny Counts is running a problematic enforcement campaign with a bankrupt patent family. Florida district court Judge Paul A. Magnuson saw through claim 15 of 6,112,191, which ostensibly claims an apparatus, but really claims a method, as not being patentable subject matter...

Projection

Posted on May 28, 2009
The hit-or-miss ITC scores another miss in its handling of Norgren's patent assertion against SMC. An administrative law judge (ALJ) found non-infringement on a faulty claim construction, and the Commission let the matter drop. The CAFC had to get the flow going again for Norgren...

Typo

Posted on May 27, 2009
In 1991, Peter Hochstein and Jeffrey Tenenbaum came up with the idea of playing networked video games and chatting simultaneously. 5,292,125 resulted. In 2002, Microsoft launched an online Xbox gaming service that did just that. Litigation ensued in 2004...

Friends Again

Posted on May 27, 2009
SanDisk and Samsung have renewed their patent cross license for another seven years. Plus, Samsung will provide SanDisk with a guaranteed slice of its flash memory output. Punters applauded SanDisk in particular, with shares flashing 15%....

Extraordinary No More

Posted on May 25, 2009
"The writ of mandamus is available in extraordinary situations to correct a clear abuse of discretion or usurpation of judicial power. In re Calmar, Inc., 854 F.2d 461, 464 (Fed. Cir. 1998)." Not any more. The high courts are regularly disingenuous in attempting to maintain a myth of continuity...

Exercise

Posted on May 25, 2009
In the American regime, claim construction is an intricate art form. At times, a claim construer must ponder context in view of other claims, and read the entrails of prosecution history to divine meaning. Herein, real-time isn't instantaneous, it has realistic slack...

Bracing

Posted on May 24, 2009
A patent license agreement is only as tight as its drafting. CoreBrace owns 7,188,452, claiming a brace used in making earthquake-resistant steel-framed buildings. Star Seismic took a non-exclusive license to '452 from the inventor, granting Star the right to "make, use, and sell" licensed products...

Change A'Coming?

Posted on May 24, 2009
Gene Quinn relates insight from Mark Malek, fellow attorney at Zies Widerman & Malek, who spoke recently with an anonymous examiner who "told Mark that about 2 weeks ago management told the examining corps that they need to start issuing patents." Possibly a bit of sunshine in an otherwise dreary era at the PTO...

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