Patent Law

Dead Man's Hand

Posted on December 05, 2008
Lame duck USPTO lawyer James Toupin did his best to sew a silk purse from a sow's ear in oral arguments at the CAFC today, in USPTO v. Tafas & GSK. Of course, anyone who will say anything to win arguments is oxymoronic to having integrity. In this case, the disgraceful USPTO argued that its rules to limit continuations are piddling, while the reality is the rule changes are substantial, and the likely impacts considerable...

Rutabaga

Posted on December 04, 2008
Samy Gharb fell off the turnip truck and wandered into the Federal Circuit Court of Appeals. After having his patent assertion against Unitronics squashed flatter than hammered shit, including "a permanent injunction to preclude Gharb from threatening Unitronics and its customers with infringement litigation," Gharb, unable to read the legal dictum on the wall, appealed...

Distinction

Posted on December 04, 2008
The USPTO rules changes successfully challenged by Dr. Tafas and GlaxoSmithKline head to oral arguments before the CAFC Friday. The beetles in the patent office rolling their dung ball up the hill this far practically defines the difference between determined cunning and intelligence...

Consequence of Silence

Posted on December 02, 2008
Qualcomm "breached its duty to disclose" two patents before a standards-setting organization, the Joint Video Team (JVT). Consequently, the district court deemed the patents "unenforceable against the world," and, finding the case exceptional, awarded competitive combatant Broadcom attorneys fees...

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Inside Job

Posted on December 02, 2008
Joe Mullin penned a sagging saga of supposedly secret patenting in his entry about Odom v. Microsoft. The Joe Zone of the Unknown will shrink soon, as infringement contentions are due Friday....

Whaling

Posted on December 01, 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...

Frivolous

Posted on November 30, 2008
Triune Star sued Disney, LG Electronics, and others, for infringing 6,122,521, which claims an infrared cell phone camera. Triune conceded that defendants didn't have such a product, thus didn't literally infringe. Illinois district court Judge Mihm blew off the possibility of doctrine of equivalents owing to prosecution estoppel...

Suppression

Posted on November 27, 2008
Hal "The Snoop" Wegner: "The PTO has systematically suppressed access to its internal decisions. Anecdotal evidence suggests that access to petitions decisions would reveal widespread practice violations by Examiners, sometimes upheld by Technology Center Directors as well...

Zemplar

Posted on November 25, 2008
The laugh riot of Abbott and Costello quieted when years of drinking rot-gut begat Costello chronic kidney failure. Interstellar quasar TV transmission from earth to Qo'noS, Klingon home world, made the comedy duo a cross-species phenomenon. Few humans could so touch the funny bone of Klingons, owing partly to the fact that the Klingon funny bone is quite tiny...

Brass in Pocket

Posted on November 24, 2008
RPX is a patent troll basher that is putting it's money where it's mouth is. RPX, a self-titled "defensive patent aggregator," is buying patents to keep them from being asserted against its pals. RPX's initial pals are IBM and Cisco....

Wireless

Posted on November 24, 2008
Reed Hundt, former elementary school principal, was FCC chairman in the Clinton administration. In 2006, he wrote a genuinely stupid opinion piece in Forbes disparaging the U.S. patent system, suggesting arbitrarily slashing patent grants by 90%, and other lunacy...

Insect Screen

Posted on November 23, 2008
Anderson sued Pella for infringing its bug screen patent, 6,880,612. Summary judgment motions were swatted aside. Then Obzilla buzzed in. Drunk on KSR bug juice, the district court reconsidered, and squashed the patent. On appeal, how creative an ordinary bug screen maker could be becomes factual...

Plugged

Posted on November 20, 2008
Medegen sued ICU for infringing 5,730,418, claiming "a needle-free valve for intravenous (I.V.) therapy used to administer fluids to a medical patient." '418 solves the problem of "retrograde flow," "the reverse flow of fluid out of the patient's body and back into the catheter tubing," by using a sliding plug...

Perfection

Posted on November 20, 2008
Throw the confetti; break out the champagne; the USPTO has finally achieved perfection. According to the USPTO's FY 2008 Performance and Accountability Report, the PTO has met 100-percent of its performance goals. We can all stop worrying about poor examination quality and dishonest mis-management, because this is perfection baby!...

Gamy

Posted on November 19, 2008
In their initial press release, Article One Partners declared "the current U.S. Patent System is outdated, archaic, and stifling to innovation." Their solution? Game the system....

Kitchen Sink Solutions

Posted on November 19, 2008
The Chamber of Commerce has released a draft report outlining proposed solutions for problems that currently plague the USPTO. The report, aimed at providing recommendations to the incoming Administration, includes all of the usual suspects - all of them...

Musical Chairs

Posted on November 18, 2008
With USPTO Deputy Director Margaret Peterlin vamoose, John Doll steps in, with Deputy Commissioner for Patent Operations Margaret ("Peggy") Focarino filling Doll's erstwhile Commissioner for Patents chair. Effective immediately. Both Doll and Focarino have been with the Office for over 30 years...

Pay to Play

Posted on November 17, 2008
New 37 CFR § 11.8 now requires an annual $118 "practitioner maintenance fee," payable in advance, for all registered USPTO agents. Penalty for non-payment is suspension. Pro se prosecutors are still scot free....

Process Flavor de Jure

Posted on November 15, 2008
The techno-Neanderthal CAFC having roiled process claims with its bilious Bilski ruling, the question remains how to best draft software method claims. The economical "computer-implemented method" preamble may not fly now. Another charade exists...

Bad Brew on Good Chemistry

Posted on November 13, 2008
6,365,687 claimed a chemical process used in plastic packaging, first disclosed in 1958. Oddly, '687 underwent Director-ordered reexamination, and was found unpatentable by prior art and double patenting. A 2-1 appeal decision damned a patent for which inventors Dr...

Discipline

Posted on November 12, 2008
Patent practitioners take note. As of September 15, committing any crime, including those of immodest moral turpitude, such as being caught for commercial engagement of prosecution in your pants, can result in revoking your "privilege" to prosecute before the USPTO...

Jack It

Posted on November 11, 2008
Patently-O's Professor Dennis Crouch reports, as a straight man for unintentional comedy, that Senior IP Counsel at SAS US, Tim Wilson, having constructed a hypothetical demand curve "using the powerful computing resources of SAS," figures that if patents cost as much as $50,000, there would be a "dramatic decrease" in patent filings...

Getting Physical

Posted on November 09, 2008
Non-final office action, received post-Bilski, directed to claims with the preamble: "A computer-implemented method comprising:", followed by steps of computer file selection, storage, and network transfer/copy. Examiner rejection as follows: The claims lack the necessary physical articles or objects to constitute a machine or a manufacture within the meaning of 35 USC 101...

Lame Blaming About Claiming

Posted on November 07, 2008
CAFC Judge Plager recently mused out loud about claim construction, most strikingly, his and the court's technical incompetence. The fundamental problem with claim construction today is that too many claims are no longer describing hammers or machines or other physical objects--though we have had our share of interpretive trouble even with some simple things like what is a "board...

Embarrassing

Posted on November 05, 2008
Blogger Rick Frenkel, former Cisco IP honcho, ran a hot little number called Patent Troll Tracker. Anonymously. The bling was pissing on inventors using shell companies in asserting their patents, at least one of whom got pissed, namely Eric M. Albritton, plaintiff attorney for those being peed upon, in what Rick richly called the "Banana Republic of East Texas...

PCTs Down Under

Posted on November 04, 2008
Add IP Australia to the list of patent offices selectable as international searching authority and international preliminary examining authority for PCT applications filed with the USPTO. The Australian Patent Office joins the ranks of the USPTO, the EPO, and the Korean Intellectual Property Office, all eagerly awaiting to assist inventors with all of their PCT needs...

Divining Bilski

Posted on November 04, 2008
Bilski was nothing short of a jurisprudential obscenity, horrendous in its incoherence. To the degree it was coherent, it was ludicrous. That makes Bilski a definitive statement on the quality of the CAFC, most notably majority author Chief Judge Michel...

Genus Overclaim

Posted on November 04, 2008
Dr. Kenneth Alonso lost his appeal for patenting a cancer treatment because, while he claimed a genus, he had only disclosed some species, and insufficiently so. Disclosure coverage is at issue when the claimed genus is wide-ranging, and the disclosed species may not be fully representative...

Amazin' Claimin'

Posted on November 03, 2008
5,188,861 claims a process for flavoring dried fruit. Patent holder Amazin' Raisins sued Ocean Spray Cranberries, hoping to squeeze some fruity lucre. Ocean sprayed them down, Amazin' losin' on claim construction. Non-infringement summary judgment was upheld on appeal...

Bilking Bilski

Posted on November 02, 2008
35 U.S.C. § 101 cedes patentability to "any new and useful process," without further qualification. The CAFC Bilski ruling, limiting process claims to being tied to a particular apparatus or transforming something, has no basis in statute, and questionable case law heritage...

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