Patent Law

Self-Inflicted

Posted on May 23, 2008
Tessera Technologies is crowing over its "battled-tested" (sic) victory in getting Micro Electronics to take a license under threat of ITC action. Micro Electronics didn't hire Patent Hawk, so was unable to squash Tessera's assertion. Those well-equipped with Patent Hawk ammunition are successfully fighting back...

Enablers

Posted on May 23, 2008
There appears to be a rampant addiction to poor claims drafting, injecting claims with vague language, unnecessary legalese, and unbounded scope. This addiction spirals downward into a vat of confusion during prosecution, and eventually hits rock bottom during litigation as judges try desperately to resuscitate claim meaning...

Cleanup Crew

Posted on May 22, 2008
Eastern Kentucky Senior Judge William O. Bertelsman needed some help with claim construction. His first stab was appealed and remanded, the CAFC unable to douse the conflagration owing to an undeveloped record. On second appeal, the CAFC again mops up and remands...

Late

Posted on May 21, 2008
Golden Bridge Technology hammered Nokia and Lucent for infringing 6,574,267, claiming a mobile communication system. The district court granted invalidity in summary judgment. Golden Bridge appealed with freshly minted arguments, which the CAFC refused to consider, deeming them too little too late...

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No Comprende el Postulado

Posted on May 20, 2008
Squalls of claim construction confusion howl in the halls of patent courts. The problem originates with incompetent prosecutors fond of squirrely claim language, and inventors failing to appreciate that precise language is essential to breathing life into their inventions...

Careful Assertion

Posted on May 20, 2008
Overreaching patent assertion can foil the whole venture, and foul the asserted patents in the process. Being circumspect about claim construction, infringement analysis, and prior art, can turn a problematic case into a winner....

Big Gorilla Cuts A Dud

Posted on May 20, 2008
In an ongoing tussle in various venues, Microsoft had accused patent bad-boy Alcatel-Lucent before the ITC of infringing four patents claiming telephone/computer integration. In the first round, the ITC administrative law judge found one infringed. Today, the full commission peeled the last banana, finding non-infringement...

Punching the Clock

Posted on May 20, 2008
Taiwanese memory maker Nanya Technology started a losing patent war against Fujitsu. Licensing talks over DDR SDRAM chip patents fell apart in 2005. Nanya then sued Fujitsu in this country's tropical patent hot spot - Guam, for antitrust, asserting three patents, and a declaratory judgment (DJ) motion over 15 Fujitsu patents...

Big Cheese

Posted on May 18, 2008
St. Clair Intellectual Property Consultants thought it had a tiger by the tail - a tidy patent portfolio for digital camera photo storage. St. Clair started a shotgun enforcement campaign, including against Kodak. Kodak claimed it had acquired rights to the patents through agreement with the inventors' former employers, Mirage Systems...

Conflict and Cooperation

Posted on May 18, 2008
Culture and law intersect at the personal level. Everybody lives in the two worlds simultaneously. But lawyers often behave as if there is no world but law. This was not a mistake made by the Founding Fathers of this nation. To be fair to us today, except for one day in September of 2001, we have not had much visceral experience with how conflicts between culture and law may result in violence...

Dispositive

Posted on May 16, 2008
CAFC Chief Judge Paul R. Michel graphed a signifying, that petitioning appeal upon appeal don't amount to more than just jivin'. En banc and certiorari might as well be in a dead language as to anyone's chances of being granted....

Clotted

Posted on May 15, 2008
Aventis owns 5,389,618 / RE 38,743, claiming a blood clotting drug. Amphastar and Teva filed FDA ANDAs, prompting suit by Aventis. Amphastar shot back with an affirmative defense of inequitable conduct - Aventis failed to disclose that relied-upon studies, done by a non-inventor, Dr...

Priority

Posted on May 14, 2008
DuPont sued MacDermid Printing for infringing 6,773,859, claiming digital thermal printing. '859 was based on a provisional application. The USPTO mistakenly issued the patent without reference to the provisional. DuPont had that corrected. MacDermid brewed a tempest in a teapot over priority date, confusing the district court judge, who refused a motion to issue a preliminary injunction...

Squashed Mango

Posted on May 14, 2008
6,148,377 claims a network-based device-shared memory space. Mangosoft hoped '377 might be an express to payout from Oracle, but its only stop was local....

Another Nail

Posted on May 13, 2008
Acumed successfully went after Stryker for infringing 5,472,444. After discovery, Strkyer started selling what Acumed would later, in a second complaint, accuse as further infringement. The district court dismissed the second suit as old news. Acumed appealed...

Useful

Posted on May 13, 2008
The CAFC's sua sponte en banc rehearing of Bilski's claimed risk management process, so far denied as unpatentable subject matter, indicates the appeals court's desire to draw a "bright line test for determining whether a claimed invention embodies statutory subject matter," a "quest" that a BPAI judge in Bilski's case deemed "an exercise in futility...

In The Weeds

Posted on May 12, 2008
Rep. Howard Berman, Chairman of the House subcommittee overseeing the USPTO, does his job in an April 29 letter to PTO Director Jon Dudas, demanding answers: did you sully the agency's reputation by consorting with RIM when it was under the gun from NTP, and you had NTP patents under reexamination?; why haven't you considered deferred examination?; explain inconsistencies in patent application projection for the future; document methodology in meeting application demand; why so pig-headedly clueless about examiner attrition?; justify managerial lurching in its various incarnations...

Multiples

Posted on May 12, 2008
Malcolm Gladwell in The New Yorker idyllically fuses discovery with invention in his thematic presentation of a strawman: "In The Air: Who says big ideas are rare?" The ostensible topic is that discoveries and inventions are often made contemporaneously by multiple people...

Pitiable

Posted on May 11, 2008
Professors James Bessen and Michael J. Meuer (BM), who should be thoroughly discredited for their tripe, appear to have duped many people who should know better. What they demonstrate to the discerning is how little patent emperors have no clothes....

Nadir

Posted on May 11, 2008
The phrase "with all due respect" is common to arguments traversing claim rejection. But how much respect is due for utter breakdown of "examination on the merits"? This is not a rhetorical question....

Going Solo

Posted on May 11, 2008
Last month, seven major telecommunications patent holders: Alcatel-Lucent, Ericsson, NEC, NextWave Wireless, Nokia, Nokia Siemens Networks and Sony Ericsson, agreed to limit patent licensing fees, so as to engender continuing evolution of 3G mobile technologies, and limit litigation...

Feathering the Nest for Inventors

Posted on May 11, 2008
Sensible patent reform should focus on feathering the nest for inventors in the United States. There is nothing more important to our long-term prospects within the global economy....

Broken and Unbroken

Posted on May 10, 2008
Referring to patents, the Economist thinks it "a pity" that a "rewrite" of "broken laws" is "back on the shelf." Wrong. The patent statutes are not what's broken, with one ghastly exception. It's the USPTO and the courts that are broken...

IP is not an Asset: Inventors were meant to be Free

Posted on May 10, 2008
Earlier this week, Peter J. Wallison argued that conventions in fair value accounting may in part be the cause for the recent bubble markets. Specifically, Wallison pointed to the convention (implemented under FASB 157) that requires assets to be carried at "market" values, even when those assets are not being held for trading purposes...

Claim Stink

Posted on May 09, 2008
Lucent sued Microsoft, Gateway, and Dell for infringing 5,649,131 and 4,701,954, claiming two very different technologies. '131 claims a communications protocol between a web server (host) and a terminal. '954 is for digitizing speech. Another claim construction tussle, again illustrating the awkward immaturity of claim construction case law, floundering on the bedrock of bad claim language, pitiable prosecution, and disingenuity by the patent owner...

Dead, For Now

Posted on May 09, 2008
The Economist: "On May 5th the Senate removed the bipartisan Patent Reform Act from its calendar."...

Kiosk Mirage

Posted on May 08, 2008
6,105,007 is a bastard child. Its parent was for interfacing to a loan processing system, user interfaces requiring "varying degrees of human interaction." '007 was more Cylon, seeking "to capture a system that processed financial accounts 'without human intervention...

Out of Gear

Posted on May 08, 2008
Solomon Technologies took Toyota to the ITC over 5,067,932, accusing the transaxles on Toyota's hybrid models. An ITC judge found no infringement, and the asserted claim not enabled. Solomon appealed....

Squealing

Posted on May 08, 2008
It's official. Elvis Costello to the contrary, clown time is not over. The USPTO is appealing dénouement of illegality accorded its proposed examination rule changes....

What Adam Smith taught the Founding Fathers

Posted on May 08, 2008
As evidenced by his lecture on discoveries and inventions, Abraham Lincoln had a deep understanding of the patent system.  It is amazing how his lecture, which is now well over 150 years old, can seem so fresh today.  He and Charlie Munger have inspired me to undertake a historical review of other important lessons of the imminent dead...

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