Patent Law

Growing Green

Posted on September 09, 2008
Eco-Patent Commons, a portfolio of environmentally-friendly patents pledged to the public domain, originally announced in January, grew greener yesterday, with the addition of patents from Xerox, DuPont and Bosch, more than doubling the number of enviro-pats now freely available...

Just Walk Away PA

Posted on September 06, 2008
PA Advisors got its hands on 6,199,067, saddled up the palomino, and rode on down to East Texas, aiming to get a little from Microsoft subsidiaries, Google, Yahoo!, Facebook, and others. After chatting with Facebook, PA took a powder, deciding not to pursue the suit further...

Old Art Never Dies

Posted on September 05, 2008
A common patent litigation strategy has been to seek reexamination after losing in court, as in the case herein. Defendant counsel has more rhetorical power before the court, as contrasted to a single injection to the PTO for reexam, after which the patentee tries to hold granted ground while an infringer watches from the sidelines...

Kneed

Posted on September 03, 2008
Orthopedic implant makers Howmedica Osteonics and Wright Medical got into a patent brawl. They settled. A few times. Sort of. Howmedica sued again over 5,824,100, claiming a knee prosthesis, and lost its infringement kick on claim construction, which it appealed...

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Fire Eater

Posted on September 03, 2008
Patents become a public nuisance when worth a pretty penny. Hal Wegner thinks the price tag of infringement should have flamed the NTP patent reexaminations. "With a $600 million plus settlement in one litigation coupled with ongoing litigations against other alleged infringers, BlackBerryGate represents a billion dollar...

Down with the Docket

Posted on September 02, 2008
With its natural panache of rip and snort for the court, the Statistics Division for the Administrative Office of U.S. Courts released its annual report: "Judicial Business of the United States Courts." Using the hoary Roma system, the latest stats run in a calendar year skewed to September 2007...

Phoning It In

Posted on August 31, 2008
800 Adept successfully sued Targus for two patents routing 800 number calls to a local service location. A 24-day jury trial spat a $18 million patent infringement award, attorneys fees for it being an exceptional case, permanent injunction, and Targus "liable under state law for tortious interference with Adept's business relationships," worth $7 million...

101 Love

Posted on August 30, 2008
USPTO Deputy Commissioner for Patent Examination Policy John J. Love took it upon himself to interpret 35 U.S.C. §101 for software method claims. Months ago in an internal memo to examiners, Love encouraged 101 rejections for method claims that merely recite computer usage in the preamble...

Heated Argument

Posted on August 28, 2008
Lexion Medical sued Northgate for infringing 5,411,474 and 6,068,609, which claim techniques for heating a patient's gut in preparation for laparoscopic surgery. '609 was stomped by Obzilla JMOL, while '474 eked out $721,662 in jury-awarded damages. On appeal, an overturned claim construction vacated the award, but Obzilla remained triumphant...

Cheese

Posted on August 28, 2008
Microsoft and Nikon have consummated a photo finish to a patent cross-licensing agreement, though the picture is fuzzy. Details went undisclosed, other than indicating that Microsoft is being compensated by Nikon for its gorilla hug. Since Microsoft started banging its patent drum at the end of 2003, it has wrestled over 500 licensing agreements...

High Stakes High Definition

Posted on August 27, 2008
Orinda has filed against Sony for its Blu-ray high-definition DVD players. 5,438,560 claims basic optical disk recording, accounting for bad disk sectors. Complaint filed in the Eastern District of Texas....

Pulp Business

Posted on August 27, 2008
In 2002, Immersion sued Microsoft & Sony for patent infringement. In 2003, Microsoft settled, with Microsoft paying Immersion $26 million. In a secret codicil, Immersion was to pay a kickback to Microsoft from the proceeds of successfully suing Sony for the same infringement...

Unsettling

Posted on August 26, 2008
The application of statistics is relatively simple. Statistics is taught at college for many fields. But properly applying statistics seems to elude many. A recent patent reexamination analysis by lawyers is exemplary: a small sample size of biased data, rendering it rather meaningless...

Prove It

Posted on August 25, 2008
In a touchstone ruling, Star Scientific v. R.J. Reynolds, the CAFC resets the high bar for inequitable conduct: The burden of proving inequitable conduct lies with the accused infringer. The patentee need not offer any good faith explanation unless the accused infringer first carried his burden to prove a threshold level of intent to deceive by clear and convincing evidence...

By the Book

Posted on August 24, 2008
Responding to definitions of terms in a reexamination Examiner's Answer, an Appellant filed a reply that included dictionary definitions, to rebut the examiner's construction. The reply brief was refused entry, on the ground that the dictionary definitions constituted "new evidence...

Pulp Non-Fiction

Posted on August 24, 2008
Any competent statistician will tell you that sample size is telling. So why do Andrew S. Baluch and Stephen B. Maebius just look at the first 30 of 308 inter partes reexaminations since late 1999, when the practice began? From the smattering, the two Foley & Lardner attorneys find reexamed claims downed a whopping 73% of the time...

The Power of Arsy

Posted on August 24, 2008
Patent Examiners have been getting a bad rap in the patent blogosphere. Insults attacking their competence, work ethic, intelligence, moral character, and English skills are flung. In moments of weakness, this author has occasionally chimed in. But examiner incompetence should not be so easily disparaged...

Pennies Saved, Patent Lost

Posted on August 23, 2008
5,883,964 and 6,035,027 patented computerized phone callback, a scheme for lower international phone bills, because foreigners want a pretty peso for a phone call. Enforcing the patents was spent because the patentee sold out before patenting....

Shoe Shoo

Posted on August 22, 2008
DSW sued Shoe Pavilion for infringing 6,948,622 and D495,172, claiming a shoe display rack. Shoe Pavilion responded by removing the offending racks. The district court booted the case. The CAFC booted the district court, for importing a limitation into claims unjustifiably, and not properly awarding damages...

Incurable

Posted on August 21, 2008
Leggett & Platt sued VUTEk for infringing 6,755,518, which claims inkjet printing, in particular, cold curing of the ink to affix it. '518 was baked in the oven of invalidity. One heat source was prior art, namely prior VUTEk patents. No scorched-earth prior art search needed...

Dead Cash Cow Still Milks

Posted on August 20, 2008
Astrazeneca sued Apotex and Impax for infringing patents of "pharmaceutical preparations containing omeprazole, the active ingredient in Prilosec." Filing ANDAs prompted the patent assertion. The patents expired, but that didn't moot the suit...

The Marshall Plan

Posted on August 20, 2008
Crucial reading for those interested in the notable docket of rocket, the Eastern District of Texas, in this week's Texas Lawyer. With 232 patent cases filed in Marshall in the past year, trial dates for filing there are now running to 2012. Judge T. John Ward's patent litigation mill is slowing, but faring...

Dealing with KSR Chat

Posted on August 20, 2008
K&L Gates is hosting a webinar on "Strategies for Dealing with Obviousness Rejections by the PTO in the Aftermath of KSR." If you haven't gotten enough tips on playing cards with Obzilla from the Patent Prospector, sign up....

MPEP E8r7

Posted on August 20, 2008
PDFs of Revision 7 of the Eight Edition of MPEP are now available. These are July 2008 changes from the September 2007 r6. The HTML version, this prosecutor's preference, is pending. Wish they provided a specific change list....

Vacuum Suction

Posted on August 19, 2008
Hal Wegner cited "an informed source" that John Doll is likely to be the Acting Director of the USPTO in 2009, upon the expected departure of political hack and pathetic sack Jon Dudas. "A nonstatutory arrangement between Commerce and the PTO makes the Commissioner for Patents the Acting Director in the absence of a superior political appointee...

Unoriginal

Posted on August 19, 2008
In a shocking, unprecedented ruling, one branch of government stands up for another. Cooper Technologies had a continuation patent subjected to inter partes reexamination. Cooper carped that wasn't kosher, as the original (first) application was filed in 1993, and the law stated that "the inter partes reexamination procedure is available for "any patent that issues from an original application filed in the United States on or after" November 29, 1999...

Tool Groups

Posted on August 18, 2008
Inventor Gary Odom, founder of Patent Hawk, has asserted 7,363,592 against Microsoft. '592 claims a feature of the tool groups used in the Office 2007 tool ribbon. '592 has a priority date of November 2000. Complaint filed in the Eastern District of Texas...

In the Aorta

Posted on August 18, 2008
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...

Googled

Posted on August 18, 2008
GraphOn has sued Google in the Eastern District of Texas for infringing four patents related to network servers: 6,324,538; 6,850,940; 7,028,034; and 7,269,591. GraphOn has sued before with this portfolio, and wrestled a settlement recently out of hapless AutoTrader...

Religion

Posted on August 17, 2008
An anonymous reader at Slashdot, the e-gathering place for philosophic technology sophisticates, worries: I am a developer for a medium-sized private technology company getting ready for an IPO. My manager woke up one morning and decided to patent some stuff I did recently...

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