Patent Law

Patents, Property, and Corporations: a Historical and Economic Reminder

Posted on March 14, 2008
Economists Bessen and Meurer have published a book, Patent Failure, detailing the results of their study of the economic benefits of the patent system. In their own words, a central theme in the conclusions from their study is that "patents often fail to perform effectively as property rights...

Davids Against Goliaths

Posted on March 13, 2008
Digital media, digital imaging, and wireless communications are the patented technologies owned by three small inventors who have recently filed lawsuits against major corporations....

Never put patents in a corner!

Posted on March 13, 2008
"Many of life's failures are people who did not realize how close they were to success when they gave up." -Thomas Edison As regular readers know, the author is aware of imperfections in the current patent system in the United States. In that regard, he was very pleased to read about what looks like some good work done by a couple of economists on the patent system...

Guitar Hero

Posted on March 13, 2008
Gibson, the electric guitar maker, owns 5,990,405, claiming a system for simulating user participation in a pre-recorded musical performance, much like Activision's "Guitar Hero" game, a billion-dollar hit in North America alone, selling 16 million copies...

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Down & Outed

Posted on March 12, 2008
Rick Frenkel had a juvenile impulse to blog anonymously. The juvenility was not so much anonymity per se, it was blogging as he did - trying to out others with staying masked. The inevitable occurred - Frenkel pissed off attorneys, including the legendary Ray Niro, who put a bounty out for Frenkel's identity after Niro took umbrage...

Inequitable Conduct Policy

Posted on March 12, 2008
Former USPTO Commissioner Harry Manbeck, now with Rothwell, Figg, Ernst & Manbeck, has written the Senate Judiciary Committee with a wise perspective on one ill-considered decimation proposed in the folly codified as S. 1145: "I believe that it would be a mistake to eviscerate the [inequitable conduct] doctrine as it now stands...

They Call This Reportage?

Posted on March 11, 2008
Mareen Farrell gives a garbled account of the patent scene in Forbes: "They Call This Intellectual Property?" Farrell surmises the source of pendency: "Blame part of the pile-up on pesky filers of overly obvious patents." With no sense of perspective, Farrell mentions KSR, but then rails about silly patents issued before the PTO made patent grants as scarce as hen's teeth...

Reaction to Reaction

Posted on March 11, 2008
Last week, in reaction to the 2007 Patent Deform Act being stalled, the Coalition for Patent Fairness (CPF) signaled false compromise. Now, defenders of patent sensibility react. From the Coalition for 21st Century Patent Reform - "This proposed language from the Coalition for Patent Fairness does nothing to move patent reform closer to adoption...

Did Bayh-Dole end Corporate R&D?

Posted on March 11, 2008
Thirty-years ago, many large corporations had entire in-house divisions devoted to R&D. Think of IBM's Watson and ARC Labs, AT&T Bell Labs, and Xerox PARC. Since that time, these R&D labs have greatly diminished in size or disappeared altogether. At the same time, the pace of innovation in the United States has not been slowed...

Appeallusion - Part II

Posted on March 11, 2008
As previously reported, the current affirmance rate of the USPTO Board of Patent Appeals and Interferences (BPAI) yields the illusion of high-quality examination at the PTO. Let's glance at rates that better demonstrate the unfortunate reality....

Cells Unstemed

Posted on March 11, 2008
WARF is a patent holding company for the University of Wisconsin scientific community. Three WARF stem cell patents that had validity aspersions cast by "public interest" busybody Dan Ravicher of PUBPAT have survived USPTO reexamination, albeit with some amendment...

Pooked

Posted on March 09, 2008
Physicists are realizing that dark energy holds the universe together. It's old feed for wranglers at the corporate software corral that dark energy keeps the cattle in the pen. So, Novell Vice President Miguel de Icaza last week whining that Novell striking a patent licensing deal with Microsoft was like bedding the dark-side beast sounded less than intriguing; in fact, it sounded just like whining...

Uncompromising Damages

Posted on March 09, 2008
The Coalition for Patent Fairness and Financial Services Roundtable last week wrote Senators Leahy, Hatch, and Specter, tweaking a smidge their insistence on damages apportionment as a sure means to clog the courts, maximize litigation cost, and eviscerate patent enforcement...

Gold Standard

Posted on March 08, 2008
A patent discloses an invention that is useful, valuable, and innovative; a patent that protects invention with the broadest possible claims, but still novel and non-obvious over the prior art; claims applicable under the doctrine of equivalents, untainted by prosecution estoppel; a patent that cites the most relevant prior art...

Patent Looting

Posted on March 07, 2008
A mob of more than 180 German police and customs officials goose-stepped into Europe's largest gadget uber-fair, and hauled off 68 cartons of booty alleged to be patent infringing. While "innocent until proven guilty" is the lip service, guilty until proven innocent is the reality worldwide; the raid was instigated by "criminal complaints by the holders of patent rights in the run-up to CeBit...

CIP Not A Divisional

Posted on March 07, 2008
Teva's ANDA for a generic version of Pfizer's Celebrex, an arthritis treatment, predictably met with infringement assertion: 5,466,823; 5,563,165; and 5,760,068. Teva lost, and appealed, whereupon the CAFC found double patenting in the '068. Safe harbor for divisionals under 35 U...

Cock-up

Posted on March 06, 2008
Tessera stock shot up 16% after it sank in to the motley fools commonly called "investors" that the non-final rejection in Tessera's patent exam was not equivalent to falling off a cliff. As Scot Griffin, general counsel for Tessera, reminded: "Claims of a patent can not be invalidated in reexamination until the process is fully complete, including all appeals...

Punted

Posted on March 05, 2008
The power of patents to stock punters was apparent on Tuesday as Tessera Technologies shares were battered in the wake of a non-final office action in a patent reexamination; the price ravaged 39%, losing $8.99, closing at $14.07. Like a kindergarten "time out," share trading was halted mid-day after a free-fall of 52%; trading in massive volume...

Contra-Validity

Posted on March 05, 2008
Bayer tried to take Barr down for its aspirant generic version of oral contraceptive Yasmin®; using 6,787,531 as the preventive pill. Following trial, springing from the bushes of a 96-page opinion, Obzilla claims another victim....

Appeallusion

Posted on March 05, 2008
The current affirmance rate of the USPTO Board of Patent Appeals and Interferences (BPAI) yields the illusion that examiners deserve a pat on the back for a job well done, but behind every illusion lies reality. Let's peek at the man behind the curtain...

End Software Patents

Posted on March 04, 2008
A fantasy propaganda site called End Software Patents (ESP) seeks an end to what doesn't exist: software patents.</p...

Bang for Bucks

Posted on March 04, 2008
Senators Leahy & Hatch keep pounding their old tom-toms for the Patent Deform Act, but it's just to pacify their patrons; the dancers have moved to another tune. A Patent Prospector confidential source reports: The latest from Washington is that (Senate Majority leader) Reid has said the bill won't come to the floor before April...

Grasp by Analogy

Posted on March 03, 2008
On the Supreme Court, Justice Antonin Scalia can't resist indulging in sarcasm as modus operandi. Contrast that with the poised maturity of persnickety Justice Ruth Bader Ginsberg, who revels in the devils in the details. Justice Stephen Breyer: "The point is to try to focus on a matter that is worrying me...

Visto Victorious

Posted on March 03, 2008
A week before trial, Microsoft has settled with Visto assertion of three Visto data sync patents; terms undisclosed, of course. In 2006, Visto won $7.7 million in damages against Seven Networks for the same patents. Meanwhile, Canadian chowderhead Research in Motion (RIM), aiming to pay as much as possible, goes to trial in July against four Visto patents...

New Rules

Posted on March 02, 2008
While not to date considered a rocket docket, the patent litigation rulebook crafted in the Northern District of California has been an inspiration for other districts: the Eastern District of Texas and Southern District of New York included. Effective March 1, 2008, North California has a revised rulebook in play...

Practice Makes Perfect?

Posted on March 02, 2008
Statistics is a craft; running the numbers is the easy part. The tough bit comes down to data quality: how reliable is the base of data employed? Heterogeneity is the bane of statistical reliability: comparing apples to oranges tells you nothing about either apples or oranges...

Crippling

Posted on March 01, 2008
Using the San Jose Mercury News for a soapbox, Daniel Leckrone, head of the patent prospecting TPL Group, ripped into proposed legislation currently withering on the vine in the Senate. If passed in its existing form, the bill masquerading under the euphemism "Patent Reform Act" will stifle growth and prosperity for the average U...

Money Changes Everything

Posted on March 01, 2008
MercExchange's patent assertion against eBay's "Buy It Now" feature resulted in a Supreme Court ruling that, using a four-factor test, essentially denied injunctive relief unless the patent holder was a direct competitor to an infringer. Thursday, eBay announced that it bought three patents from Merchange for an undisclosed amount, including 5,845,265, the centerpiece of the matter...

Narrow Escape

Posted on March 01, 2008
WARF, son of Mogh, has again evaded death at the hands of Romulans: this episode, one posing as a USPTO patent examiner. 7,029,913, claiming in vitro culturing of Klingon stem cells, passed reexamination....

Pedaling Exhaustion

Posted on March 01, 2008
John Osborne at Morgan & Finnegan argues for reversal in his article: "Justice Breyer's Bicycle and the Ignored Elephant of Patent Exhaustion: An Avoidable Collision in Quanta v. LGE "- The parties and amici in Quanta v. LGE have proposed either (1) eliminating any ability to restrict downstream use of a product made under a patent (Petitioners) or (2) allowing an essentially unfettered right to restrict a purchaser's use rights by contract (Respondent)...

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