February 8, 2010

Unpublished

ResQNet sued Lansa in 2001 for infringing five patents related to terminal emulation. Lansa found art, two unpublished user manuals for a software product called Flashpoint, that it argued anticipated one of the asserted patents, 6,295,075. But the district court wouldn't admit the art as public, and hence not legally prior art. Lansa tried to argue that NewLook 1.0 anticipated '075 by being sold more than a year prior to 075's filing date, but NewLook 1.0 "lacked an essential limitation," so was not found to be invalidating prior art. Alas for Lansa, a later version of NewLook was found to have the feature, and so infringed. Then there were the issues of damages, and sanctions....

Continue reading "Unpublished"

Posted by Patent Hawk at 2:52 PM | Prior Art | Comments (1)

February 7, 2010

Deep Fryer

SEB sued Montgomery Ward and others for infringing 4,995,312 by selling a cheap deep fryer manufactured by Pentalpha. Speedy justice meant that getting to trial took a mere seven years, whereupon a jury found willful infringement, awarding $4.65 million in damages, which the district court judge hence cut by $2 million. The district court had awarded enhanced damages and attorneys' fees to SEB, but then snatched them back in light of the 2007 CAFC Seagate ruling that willfully gutted willfulness. Herein, a tale of disingenuity, and an appeal decision greasing understanding of inducing infringement.

Continue reading "Deep Fryer"

Posted by Patent Hawk at 1:29 PM | Infringement | Comments (0)

February 2, 2010

Inherent Anticipation

Abbott sued Beckton, Dickinson and Company and Nova Biomedical for infringing 5,628,890, which claims a glucose sensor. A jury found '890 anticipated. Abbott appealed the trial judge's jury instruction over the meaning of anticipation. The CAFC surveyed the boundary of inherency, and found the nugget: "all elements must be disclosed in an anticipatory reference in the same way as they are arranged or combined in the claim."

Continue reading "Inherent Anticipation"

Posted by Patent Hawk at 2:48 AM | Prior Art | Comments (3)

January 29, 2010

Diabetic

5,820,551 claims single-use test strips for measuring blood sugar, useful for diabetics. Becton, Dickinson and Company threw down a declaratory judgment (DJ) action on competitor Abbott over a couple other patents. Abbott countered with a suit that also asserted '551. Weak move. The DJ worked: summary judgment of non-infringement and anticipation of numerous claims of one patent. '551 underwent a bench trial, and didn't survive the operation: invalid due to obviousness and unenforceable due to inequitable conduct. Abbott appealed.

Continue reading "Diabetic"

Posted by Patent Hawk at 1:25 AM | Prior Art | Comments (0)

January 26, 2010

Restricted Reply

37 CFR § 41.37, on appeal briefs, fully covers regulation of arguments made on appeal: "Any arguments or authorities not included in the brief or a reply brief filed pursuant to § 41.41 will be refused consideration by the Board, unless good cause is shown." 37 CFR § 41.41, on reply briefs: "A reply brief shall not include any new or non-admitted amendment, or any new or non-admitted affidavit or other evidence." In a January 7, 2010 expanded-panel BPAI ruling ex parte Borden, denying a rehearing of an appeal, the Board ruled much more restrictively on reply briefs: "The reply brief is not an opportunity to make arguments that could have been made during prosecution, but were not. Nor is the reply brief an opportunity to make arguments that could have been made in the principal brief on appeal to rebut the Examiner's rejections, but were not."

Continue reading "Restricted Reply"

Posted by Patent Hawk at 12:40 AM | Prosecution | Comments (0)

January 25, 2010

Quinn the Eskimo

Charming Gene Quinn of IPWatchdog is running a hot streak. An anonymous comment crowning Quinn "the King of Douchebags" put him enough out of sorts to change his web site to admit only registered supplicants to comment on his blog. One can only speculate as to his apoplexy if he instead had been titled the Queen of Douche Bags. Quinn's expressed desire is "to encourage an atmosphere free of the petty and vile Internet discourse that so many traffic in these days." Apparently, someone else has the same goal. Invent Help is suing Quinn for "false and misleading claims in their Internet advertising." Invent Help and Quinn compete to service inventors. Quinn opines that "they apparently do not like the fact that I have written about invention submission scams..." Apparently not.

Continue reading "Quinn the Eskimo"

Posted by Patent Hawk at 8:11 PM | | Comments (17)

January 22, 2010

Vexed Fax

Catch Curve owns a family of five fax patents, the parent of which is 4,994,926. The patents "patents focus on the use of a computer-based device known as a 'store and forward facility,' or SAFF." A SAFF can forward a fax over telephone lines to a fax machine or to another SAFF. Catch Curve sued Venali with its five patents. A narrow claim construction resulted in requiring the use of the facsimile protocol, and that transmission was over a switched telephone network. Caught out, Catch Curve curtailed its assertion, but lost in summary judgment on noninfringement, leading to a last gasp transmission to the appeals court.

Continue reading "Vexed Fax"

Posted by Patent Hawk at 1:28 PM | Claim Construction | Comments (0)

January 19, 2010

Scan This

"Believe it or not, in our patent office -- now, this is embarrassing -- this is an institution responsible for protecting and promoting innovation -- our patent office receives more than 80 percent of patent applications electronically, then manually prints them out, scans them, and enters them into an outdated case management system. This is one of the reasons why the average processing time for a patent is roughly three years." - President Obama

Continue reading "Scan This"

Posted by Patent Hawk at 12:57 AM | The Patent Office | Comments (9)

January 15, 2010

Going Up

5,689,094 claims personal recognition that tells an elevator where to go. Patent owner Schindler Elevator tried to get a lift over Otis Elevator, but Otis got a summary judgment of noninfringement by construction of claim, which was a shame, because, on appeal, the district court took the blame. The CAFC told the district court where to go, while leaving the final destination indefinite.

Continue reading "Going Up"

Posted by Patent Hawk at 10:32 PM | Claim Construction | Comments (0)

January 14, 2010

Bull Run

For the 17th year running, IBM has gotten the most U.S. patents. "Their patent department is a profit center," observed Bruce Lehman, former PTO director, and now head agent provocateur at the International Intellectual Property Institute. IBM made something in the neighborhood of $1.1 billion from patent licensing in 2009. But patent maven Ocean Tomo holds that Microsoft's patent portfolio is three-fold more valuable than IBM's. "The ultimate value is not some rating," toots Manny Schecter, IBM's chief patent counsel. "It's the leverage we are able to get from the patent [licensing] negotiations." Right there is the rub about Microsoft and patents: they don't know how to monetize patents, nor even valuate them.

Continue reading "Bull Run"

Posted by Patent Hawk at 1:15 AM | Patents In Business | Comments (1)

January 9, 2010

Unfried Chicken

Restaurant Technologies (RTI) sued Jersey Shore Chicken for infringing 5,249,511, which claims a system for supplying and disposing of cooking oil in restaurant fryers. If RTI had a good prosecutor, the patent wouldn't have read like a product manual, with too few embodiments, especially for means-plus-function claims. Herein, RTI gets fried pursuing denial to a bitter end.

Continue reading "Unfried Chicken"

Posted by Patent Hawk at 11:12 PM | Infringement | Comments (0)

January 8, 2010

Nabbed

However one may wish the USPTO well, they certainly are stingy bastards, seemingly bent on cheating their constituency, inventors, at every turn. Herein, Wyeth has to fight all the way to the CAFC to get their patent legally extended because the patent office was tardy in allowing a grant. This episode is a sad comment on David Kappos, early in his tenure at the helm of the agency.

Continue reading "Nabbed"

Posted by Patent Hawk at 12:22 AM | The Patent Office | Comments (48)

January 5, 2010

Interference

The noxiousness of the faux first-to-invent regime that the U.S. alone clings to is seldom exposed to the harsh daylight of the appeals court. Philips got its pulse up over a patent it inherited when it drew the short straw in a BPAI interference against Cardiac Science. Philips sued in Washington district court, where the judge sua sponte ditched the case with prejudice, provoking appeal. The CAFC reminded of the intricate rules that the PTO ignored, and the district court failed to heed.

Continue reading "Interference"

Posted by Patent Hawk at 11:44 PM | Prosecution | Comments (8)

December 31, 2009

Broken: The USPTO

This begins a series on what is wrong with patents in this country. The constitutional goal of patents is "to promote the progress of science and useful arts." But patents present irrepressible contradictions of purpose by the players of the patent game, and the pursuit of self interest by the players reveals their flaws and limits. Which is to say that the room for improvement would fit the several elephants of what is obviously wrong, but seldom acknowledged by those involved. Aside from incompetence, which weighs in heavily, two factors stress the patent system: politics and money. Let's begin with the place where patents are birthed: the patent office.

Continue reading "Broken: The USPTO"

Posted by Patent Hawk at 9:53 AM | The Patent Office | Comments (18)

December 29, 2009

Stilted

William Armstrong and Joe Lin got a patent, 5,645,515, for a particular type of stilt used in construction, requiring a "resiliently lined yoke." Each formed a company for selling stilts: Armstrong created Southland Supply, while Lin sprouted Forest Group. "Southland sold stilts to Bon Tool, a tool reseller. Bon Tool later stopped purchasing from Southland and started purchasing stilts from a foreign supplier, Shanghai Honest Tool Co., Ltd. (Honest Tool), which manufactured identical replicas of Southland's stilts without a license from Forest." Forest sued Bon Ton for infringement. "Bon Tool counterclaimed alleging false marking pursuant to 35 U.S.C. § 292, a Lanham Act violation pursuant to 15 U.S.C. § 1125, and seeking a declaratory judgment that the '515 patent was invalid.

Continue reading "Stilted"

Posted by Patent Hawk at 6:46 PM | Case Law | Comments (1)

December 23, 2009

Pawns & Prawns

Two films about alien relocation reveal a stark difference in maturity - of their respective creators. James Cameron created cinema's most expensive cliché with Avatar, a juvenile cartoon sketch that won't go down as a science fiction classic. But what will, just released on DVD, is District 9. First-time director Neill Blomkamp portrays cartoonish characters that feel real, as does the film itself. All too real - in expressing human nature, something Cameron lampoons while aiming for the same mark. The two films overlap in many ways, making it easy to observe that District 9 puts Avatar to shame where it counts.

Posted by Patent Hawk at 11:51 AM | | Comments (7)

December 22, 2009

Unpreserved

i4i sued Microsoft for a pissant feature in Word: editing custom XML. But to i4i's business, the feature was puissant. A seven-day trial found Microsoft willfully infringing a valid patent, with a jury award of $200 million. "Although statutorily authorized to triple the jury's damages award because of Microsoft's willful infringement, the district court awarded only $40 million in additional damages. It also granted i4i's motion for a permanent injunction." The inevitable appeal, widely expected to go more Microsoft's way than not, did not. Procedural fumbling by supposedly the best lawyers money can buy sold Microsoft short. Herein, CAFC case law heavy on burden and sufficiency, in a case practically covering the gauntlet of patent enforcement.

Continue reading "Unpreserved"

Posted by Patent Hawk at 8:57 PM | Case Law | Comments (1)

December 19, 2009

Clogged

Footwear importer Seaway sued Walgreens drug stores for selling those colorful plastic clogs, thereby infringing D529,263, D545,032, and D545,033. The district court booted the case in summary judgment because of anticipation by clog design patent D517,789, owned by Crocs. Seaway appealed, to a split decision on the crucial perspective of §102 in applying the "ordinary observer" test. After failing to address validity in its sea-change Egyptian Goddess decision, a CAFC panel plays catch-up, and drops the ball.

Continue reading "Clogged"

Posted by Patent Hawk at 1:58 AM | Design Patents | Comments (1)

December 17, 2009

No Transaction

Bless his heart, Henry Gleizer couldn't let go of his automated transaction patent application, taking his appeal all the way to the CAFC. What wasn't obvious to Henry was that obviousness isn't just obvious, post-KSR, it's monstrously obvious. Gleizer was affronted with the ease of combination to stomp his claims. However inarticulate, articulated reasoning need be but a whisper to damnation. And that whispered word need only be "predictable."

Continue reading "No Transaction"

Posted by Patent Hawk at 2:03 AM | Prior Art | Comments (2)

December 16, 2009

Expert?

Experts are the litigation equivalent of hired guns. They are only as good as the guidance given by the attorneys providing their payday on what bullets to shoot where. A case in point is Intellectual Science and Technology v. Sony. 5,748,575, one of five patents left standing on appeal, claims concurrent reading of computer CDs. The district court pitched the case on summary judgment for non-infringement after the plaintiff's expert failed to convince, as his declaration was "merely conclusory." The appeals court gave a lesson in how an expert ought to spurt.

Continue reading "Expert?"

Posted by Patent Hawk at 12:36 AM | Infringement | Comments (1)