Patent Law

Toothless Vampire

Posted on May 06, 2008
4,579,530 "claims a method of fabricating porcelain veneers for teeth." Most of its teeth were pulled during reexamination, leaving only one independent claim. Owner PSN Illinois asserted '530 against Ivoclar Vivadent. The patent had no bite...

An Inconvenient Truth

Posted on May 06, 2008
The New York Times gives pesky perfectionist professor John F. Duffy his 15 minutes of fame. Duffy had the temerity to finger the criminal gang commonly known as Congress for passing a law in 1999 letting the USPTO director appoint appeal board judges...

EPO Oppositions & Appeals

Posted on May 05, 2008
From HLBBshaw: "After grant of a European patent, there is a nine-month window in which a person may file centrally at the EPO a notice of opposition to the patent, alleging that the patent was wrongly granted. Oppositions are relatively common because they represent an economically attractive way of removing an IP obstacle to a planned commercial activity over a substantial market place...

Righting Whitening

Posted on May 04, 2008
Procter & Gamble sued Johnson & Johnson for patent infringement over Listerine Whitening ® Quick Dissolving Strips, marketed as superior to P&G's Crest Whitestrips ®, because they dissolve more quickly. You wouldn't want to have patience in whitening your teeth, because you need a smoke, or cup of coffee, or some other neurotransmitting tooth-staining jones you can't shuck off, you vain but weak-willed Pavlovian simian...

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Finite Genus Killer

Posted on May 03, 2008
Xerox filed a patent related to electrophotography. The examiner piled on §103(a) combos. Appeal before the BPAI, arguing against 'obvious to try.' The issue was whether a "claimed species is obvious over prior art which discloses a genus containing the species...

Appeal Brief Summary

Posted on May 02, 2008
In the past few years, patent examiners increasingly nitpick, sticklers for the rules and beyond. Appeals are burgeoning, as are non-compliance notices for appeal briefs under MPEP 1205.03. A common area for complaint is the summary: either too little or too much...

Patent Prosecution Highway - Bridge Two

Posted on May 02, 2008
After recent finalization of the Patent Prosecution Highway across the Pacific, construction will soon begin on a route spanning the Atlantic. The USPTO and EPO have announced a cooperative program to "leverage fast-track patent examination procedures already available in both offices to allow applicants to obtain corresponding patents faster and more efficiently", adding another bridge to the developing global patent prosecution highway network...

Stranded R&D

Posted on May 02, 2008
In 1980, Congress passed the Bayh-Dole Act. Overnight with its passage, universities and government-funded R&D labs gained a comparative advantage in funding R&D. Universities and government labs have a cost advantage in that many had already spent tens of billions of dollars setting up research labs for non-commercial purposes, including teaching and curious exploration...

Garbage In

Posted on April 30, 2008
Jon W. Dudas, USPTO numero uno: "We are getting more and more unpatentable ideas, worse and worse quality applications." Craven worm lying through his teeth, or imbecile trying to impress the rubes? You be the judge....

Every Patent Affects Two Different Markets

Posted on April 30, 2008
There are two different markets relevant to every valuable patent. First, there is the market for the R&D work that results in the patent. Prices in this market are set by the opportunity costs for the time of scientists and engineers who are capable of theorizing about and experimenting with the technology...

Paying for Garbage

Posted on April 30, 2008
The New York Times reports $4.3 million spent in the past 15 months lobbying at the wounded Patent Act. The anti-patent Coalition for Patent Fairness alone forked out $2.5 million, lining the pockets of Sen. Leahy & Sen. Hatch. Pro-patent rival Coalition for 21st Century Patent Reform spent $1...

To Naught

Posted on April 29, 2008
Rambus, having participated in proceedings leading to the industry standard for dynamic memory chips, patented portions of it. As chronicled in the Patent Prospector, that bit of seeming unseemliness has not been altogether well received during Rambus' patent enforcement campaigns...

How Patent Reform is like a Sombrero

Posted on April 29, 2008
With much of the intense pressure to put patent reform into law past, now is an opportune moment in time to step back and reflect on the bigger picture of patent law in the United States. What bigger picture is there to be seen? Our vision of the patent system, and of the need for its reform, can be understood better upon consideration of the sombrero...

Grinding

Posted on April 28, 2008
Congress Daily reported last Thursday that "more than 20 high-tech and financial services industry executives, as well as corporate patent counsels," met "with Sen. Orrin Hatch, R-Utah... to discuss controversial components of a bill that would overhaul the U...

Nothing Doing

Posted on April 28, 2008
CAFC Judge Linn wondered out loud last week about the quality of BPAI, the patent appeals board. Small wonder. Last year, John Duffy opined that a  35 U.S.C. §6, enacted in 1999, is unconstitutional under Article 2. The 1999 Act allowed the PTO Director to appoint BPAI judges, but Article 2 requires that such "inferior" officials be appointed, at the least, by a department head, which the PTO honcho is not...

Sleep Lite

Posted on April 28, 2008
LiteCubes sued Canada-based GlowProducts for infringing 6,416,198, as well as copyright infringement. '198 claims a light that looks like an ice cube. After found infringing, GlowProducts filed a motion to dismiss for lack of subject matter jurisdiction...

21st Century Schizoid Everyman

Posted on April 26, 2008
Sitrick v. Dreamworks stirred muddy water. Marc Brown of McDermott Will & Emery worries: "Without realizing it, a recent series of Federal Circuit decisions has established a standard for enablement that may arguably be higher than any patent can meet...

International IP Dictionary

Posted on April 26, 2008
Research and Markets announced an international intellectual property law dictionary for ?266. Covers patents, copyright, and trademarks, both U.S. and international terms. For patents, has a "Short History of Patent Law in the United States," and "Charts on Sources of United States Domestic Patent Law...

Judicial Disappointment

Posted on April 25, 2008
In an otherwise less than remarkable non-precedential decision by the CAFC, Circuit Judge Richard Linn took the opportunity in a concurring opinion to express "disappointment" and "concern" over the current state of the patent system, suggesting that "the circumstances that led up to this appeal may be more symptomatic of certain failures of the patent system than merely reflective of the peculiar facts of this case"...

Lincoln's Famous Words

Posted on April 24, 2008
On February 11, 1859, Abraham Lincoln gave a lecture to the inhabitants of Jacksonville, Illinois on the topic of discoveries and inventions.  His most famous words from this lecture are the last few that were recorded:"Next came the Patent laws...

Objectively Baseless

Posted on April 24, 2008
Dominant Semiconductors, being found to infringe a number of LED patents owned by OSRAM GmbH, filed suit against OSRAM alleging unfair competition, intentional interference with contractual relations, interference with prospective economic advantage, and trade libel arising from OSRAM's communication to customers regarding Dominant's possible infringement...

Three Strikes

Posted on April 23, 2008
Bayer Bioscience appealed to the CAFC in a third round of the battle against Monsanto, pleading for the reversal of the district court decision granting attorney fees to Monsanto under 35 U.S.C. § 285, warranted due to Bayer's exceptional inequitable conduct...

Antecedent Basis

Posted on April 22, 2008
They killed the bunny patent. It's enough to make you cling to your guns and religion. Energizer tried to zap Chinese battery makers using the ITC, but the ITC pulled the plug. Twice. On appeal, a non-precedential decision, owing to all-around discord in the panel...

Facile Treatment

Posted on April 21, 2008
Here we go again. "There should be greater penalties in respect of patent holders who make unjustified threats of legal proceedings. "Patent trolls" should not be allowed to flourish and to hold public and private investors in research and development to ransom...

A New Kind of Patent Boutique?

Posted on April 20, 2008
The state of the legal profession is in flux. The exogenous forces of globalization and technology are straining and breaking the traditional business frameworks for the provision of legal services. How might the future look?...

Avoiding Consistency Traps

Posted on April 20, 2008
"A foolish consistency is the hobgoblin of little minds." -Ralph Waldo Emerson At Patent Prospector, we're not shy about speaking out when we see academics, business people, or government officials doing silly things. Because of that, it's really a pleasure to be able to give kudos to the same people when praise is deserved...

Beaming Down

Posted on April 20, 2008
Finisar sued DirecTV in East Texas for infringing 5,404,505, garnering from a jury a $78.9 million reasonable royalty damages award for willful infringement. The district court tacked on $25 million while denying injunctive relief. On appeal, a claim construction error vacated the verdict, as well as raising from the grave potentially invalidating prior art...

Made in China

Posted on April 19, 2008
China's free-for-all in intellectual property is becoming past tense. The number of patents and patent lawsuits has doubled in the past five years. Over 850,000 Chinese patents are now active. The big winners are Chinese patent lawyers....

Unforseeable

Posted on April 18, 2008
Honeywell sued Hamilton Sundstrand over 4,380,893 and 4,428,194. One of asserted claims had been an unamended dependent rewritten into independent form, triggering presumption of prosecution estoppel, though why that should be is the locus of dispute...

Abandoning His Post

Posted on April 18, 2008
John Whealan, former solicitor of the USPTO, has been soliciting PTO-favorable legislation for the past year, "assisting" Sen. Leahy in bungling patent reform. In a signal of defeat for the bill, S. 1145, Whealan, who has been on leave from the PTO, is abandoning his temporary post with the Senate May 1...

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