Patent Law

She Lit a Candle and Showed Me the Way

Posted on March 27, 2008
Patent examiners act as gatekeepers between inventors and the pearly entrance to patent glory. With the patent office hell-bent on rejection, achieving salvation can come down to knowing thy gatekeeper. Enter USPTO Examiners, a spanking new website, offering deliverance while boasting "We Examine the Examiners...

Busybody

Posted on March 27, 2008
Mother hen AIPLA is clucking over the Eastern District of Texas. 28 U.S.C. §1391, the venue statute, grants broad latitude: any venue where a "defendant is subject to personal jurisdiction at the time the action is commenced." Not good enough for AIPLA...

Killing the Crap Shoot

Posted on March 26, 2008
Over a third of patent cases are reversed and remanded on appeal. Faulty claim construction is the reason half the time. As it is, district court trial resembles a $3-$5 million roll of the dice. Hal Wegner's prescription: "One of the single most important reforms of the patent system is a direction from the legislature that all patent cases should be handled by a pool of patent-experienced trial judges...

Rambus Rambles

Posted on March 26, 2008
Memory chip patent holder Rambus saw its stock soar 39% on news that a San Jose jury dismissed charges from competitors Hynix, Micron, and Nanya, that Rambus rigged the playing field by getting patents on the SDRAM memory standard. This is a turnaround from a 2001 jury verdict validating a fraud charge from Infineon, and a 2006 FTC ruling of deception, now on appeal...

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Clown Time Is Over

Posted on March 25, 2008
The wrinkle with Frenkel got the heave-ho, snuffing the anonymous blogging disco at Cisco. "A few Cisco employees used poor judgment... We believe we have learned a valuable lesson from this regrettable situation." Zorro don't live here no more...

On Behalf

Posted on March 25, 2008
Connecticut Congressman Christopher Shays wrote the Chairman of the ITC last week, carping about the ITC sitting on its thumbs during a PTO reexam while Tessera's patents wither on the vine. Administrative Law Judge Essex entered an order staying the action at the request of the defendants...

Protecting IP in China

Posted on March 25, 2008
The USPTO is offering a two-day seminar on protecting intellectual property in China. The program is free and will take place April 2-3 in Houston, TX. So, throw your Chi-pod in your Louis Vuitton knock-off and skip down to the Lone Star State....

Dim Lantern

Posted on March 24, 2008
AG Design sued Trainman Lantern for infringing 7,118,245. The west Wisconsin district court judge granted a preliminary injunction on the likelihood of infringement under doctrine of equivalents (DOE), the accused device missing a claimed feature of multiple plug-in ports...

Skewering Rubes

Posted on March 24, 2008
The trolls of patent policy are academics. Over-credentialed chowderheads. Charts and graphs depicting meaningless statistics, the meaning sucked out by being out of proper context. Jumping to conclusions like frogs on hot sand, all the while paying lip service to the complexity of reality...

Amateur Hour

Posted on March 23, 2008
WikiPatents and the USPTO-condoned Peer to Patent projects are attempts at solutions looking for a problem. The implicit conjecture is that patent examiners are limited in their search capabilities, and a helping hand is just what they need. Nothing could be further from the truth...

Praise the Dudas

Posted on March 22, 2008
Jeff Wold of IAM Magazine praises Jon Dudas for bringing home the bacon: "What the Patent Prospector and other Dudas critics fail to acknowledge is that fee diversion has ended on his watch." Wrong attribution....

Undocked

Posted on March 21, 2008
Computer Docking Station Corp. (CDSC) took Dell, Gateway, and Toshiba to dock for infringing 5,187,645, but bombed out: summary judgment of noninfringement, upheld on appeal. Prosecution estoppel was the death knell: "the patentee disavowed an interpretation of "portable computer" that would encompass a computer with a built-in display or keyboard...

Willfully

Posted on March 20, 2008
Australian patent-holding company QPSX Developments 5 sued Nortel, Juniper Networks, Lucent, Cisco and Alcatel in June 2005 for infringing 5,689,499, in the east Texas. All settled but Nortel. Nortel lost....

Old & Inexperienced

Posted on March 20, 2008
Marketing Displays Inc. (MDI) has numerous patents on promotional signage, including "menuboards," "used in the fast food restaurant industry to depict a restaurant's menu items and prices." Competitor LSI filed a declaratory judgment action in Eastern Kentucky for noninfringement and invalidity...

Don't Feel So Restricted

Posted on March 20, 2008
From MPEP 802.02: Restriction practice is designed to require applicants to "elect a single claimed invention (e.g., a combination or subcombination invention, a product or process invention, a species within a genus) for examination when two or more independent inventions and/or two or more distinct inventions are claimed in an application...

For the Corporations

Posted on March 20, 2008
Michael Meurer, interviewed in Forbes, equated the worth of the patent system to its value to corporations: For most firms, the headache of a patent lawsuit is greater than the benefit of the patents they get and can use against other people... The patent system can't work unless it provides an incentive to innovators...

Hedgerow

Posted on March 19, 2008
Hedge fund Riley Investment Management has gotten uppity about Transmeta giving a $10 million bonus to John O'Hara Horsley, Transmeta general counsel. Calling the bonus "outrageous, illegal and unconscionable," Riley filed a lawsuit accusing Horsely, Transmeta executives, and board members, of gross mismanagement, breach of fiduciary duty, waste of corporate assets, and abuse of control...

Fully Funded Again

Posted on March 19, 2008
The Senate last week, by unanimous approval, slipped into its 2009 budget an amendment to condemn diverting funds from the USPTO. The Senate version of the budget is sliced and diced in April, but PTO funds won't be on the plate. That means the USPTO 2009 budget will exceed two billion dollars...

Beware

Posted on March 19, 2008
Mr. Shun-Kuo Su of Taiwan gives an across-the-puddle perspective in Forbes of U.S. patent deform in the making: [T]he bill would eliminate patent-holders' protection against frivolous lawsuits... These and other changes in the proposed legislation would cause inventors' costs to skyrocket...

Safe Harbor

Posted on March 19, 2008
Amgen complained to the ITC about Roche importing a particular hormone as an infringement of Amgen process and product patent claims. Roche got off the hook using 35 U.S.C. §271(e)(1), the "safe harbor" statute, because the importation was allowed for drug development...

Nortel Phones It In

Posted on March 18, 2008
Toronto-based Nortel Networks, known to hammer competitors with patent litigation suits, spent $560,000 lobbying for patent legislation in 2007; a Canadian company paying for the U.S. to foul its patent regime; guess they figure patents are a zero-sum game to them...

When failure = success? Patents stimulate new ventures.

Posted on March 18, 2008
"If I had a world of my own, everything would be nonsense. Nothing would be what it is because everything would be what it isn't. And contrary-wise; what it is it wouldn't be, and what it wouldn't be, it would. You see?" - Alice in Wonderland The PatentlyO posts from Bessen and Meurer are taking a trip to crazy-town...

Dish Wishing

Posted on March 18, 2008
Dish Network, formerly EchoStar, remains in denial, now begging the CAFC for a reversal of its upholding a $73.9 million jury damages award for infringing TiVo patents. Dish points to an expert witness they claim was self-contradictory, thus leaving infringement in doubt...

Drama

Posted on March 17, 2008
Professor Dennis Crouch: "Over the past two decades, the number of patents being litigated has risen dramatically." Crouch then shows a graph that's clear as mud: one axis labeled "Patent Count;" the other "Year Complaint Was Filed...

Here Boy

Posted on March 17, 2008
USPTO statistics show reexamination to be an effective tool for bringing questionable patent claims to dock: 64% of claims are amended, 10% cancelled; 26% emerge unscathed. S. 1145 eliminates inter partes reexamination (Sec. 5), substituting a terminal one-year open season...

Crossroads Ahead?

Posted on March 16, 2008
Patent holders have been hit hard the past couple of years. Declaratory judgment motions may now be filed at the drop of a hat, obliterating licensing negotiation without first suing, thus rendering litigation de rigueur.  Obzilla is still wrecking havoc in combo-Tokyo, whilst Thomas Jefferson spins in his grave...

Litigation Trends

Posted on March 15, 2008
What litigators already know: rocket dockets are the best bet; jury trials trump bench trials for awards; being plaintiff is advantageous. East Virginia and Western Wisconsin have the fastest rockets in their dockets, but offer only an average 50-50 chance of success...

Damages Trends

Posted on March 15, 2008
Contrary to propaganda, patent damages are not burgeoning; rather, remaining fairly constant. On average, awarded damages in software cases are less than for mining patents, and almost a third less than telecom patent cases. Juries award larger damages, but that may be a statistical anomaly for the types of cases tried before jury rather than at the bench...

Half Blind

Posted on March 15, 2008
35 U.S.C. §284 sets patent award "damages adequate to compensate for the infringement but in no event less than a reasonable royalty for the use made of the invention by the infringer." Georgia-Pacific v. United States Plywood enumerated 15 factors upon which royalty determination may be made, and has become the bedrock of damages case law...

Failure

Posted on March 14, 2008
James Bessen and Michael Meurer take a swing at the U.S. patent system in their new book, Patent Failure: "Innovators have grown frustrated with the failings of the American patent system." The book is fiction, based on fallacious premises and sophistic analyses...

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