February 27, 2014
Claim Construction Corruption
In the 1998 Cybor case, the CAFC granted itself the power to reconstrue claims de novo. That ruling has repeatedly raised controversy. In en banc rehearing of Lighting Ballast v. Philips, a majority of six reaffirmed the might of the CAFC to do as it damn well pleased. Judge Newman wrote the tortured but cogent majority opinion. Four judges dissented, including Chief Judge Rader. Their complaint: "construing the claims of a patent at times requires district courts to resolve questions of fact." Of course it does. But it would difficult to put the fix in if the fix wasn't baked in to begin with. The CAFC can't trust all the circuit court judges to be as corrupt as it is.
Posted by Patent Hawk at 3:08 AM | Claim Construction
Dialing It In
Cyberfone sued major media companies in this country, asserting 8,019,060, which was granted post-Bilski. The simple fact is that a patent troll can't sue the TV media industry and expect to get away with it. The courts won't have it, however they have to corrupt case law. The district court buried the patent under § 101 without even bothering to construe the claims. The CAFC readily concurred. The claims went to computerized transaction manipulations. However useful, abstract enough.
Posted by Patent Hawk at 2:48 AM | § 101
February 26, 2014
Something is amiss. A U.S. government agency is granting the right for individuals to harass businesses of all sorts and sizes for infringing what is supposed to be the legal right of exclusionary practice. Paying no regard for the law or facts relevant to the matter before them, Federal courts routinely protect businesses from these harassers. One may call this abject corruption, but only the harassers with their legal rights summarily stolen are complaining. Everyone else with any political juice wants the harassment to stop, most notably corporate sycophants in the form of the Federal judiciary, and state and federal legislators. The solution is simple: only allow patents to be owned by corporations approved by the government. Effectively, that is what has happened anyway. Make it the law of the land. Stop shirking from supporting big business, so that the injustice and inequality that made this nation what it is can continue to thrive, while wage slaves of all stripes toil and live hand-to-mouth, with no prospect of prospering from their inventions. There is a natural order and it must be defended.
Posted by Patent Hawk at 3:24 AM | The Patent System
February 21, 2014
Putting IP Writers In Their Place
Putting Intellectual Property In Its Place (2014, Oxford University Press) was written by three academics who got a grant from the Canadian government. Focused on tedious dribble, the book appears well researched, though the authors, while able to form sentences, have no clue how to write. Much of this slender volume has nothing to do with IP. There is a single chapter with a story about Canadian plant patents that is guaranteed to cure insomnia within a page or two. Otherwise, the book covers obscure tales of copyrights that no one not locked away in solitary confinement with this single book could possibly have any interest in.
Posted by Patent Hawk at 6:14 PM | The Patent System
February 15, 2014
The lawlessness of the CAFC continues unabated. In Solvay v. Honeywell (CAFC 2012-1660), the court illicitly finds for a domestic company over a foreign rival. In dissent, Judge Newman observes:
The court today creates a new class of secret prior art, holding that a privately performed experiment, without publication or public knowledge or use or sale or inclusion in a United States patent application, is invalidating "prior art." Heretofore the role of secret prior art has been carefully circumscribed. The new general rule here adopted contravenes the policy and the letter of patent law, wherein inventors are charged only with knowledge of what is known or knowable as defined by statute, subject to special limited circumstances.
Posted by Patent Hawk at 2:52 PM | Prior Art
February 3, 2014
An irascible PTO patent board insisted that "a receiver adapted to receiving" invoked the means-plus-function interpretation of §112 ¶6. This in an application for an automatic light switch. The CAFC reversed, finding sufficient structure to understand the bounds of the invention. (Enocean v. Face International CAFC 2012-1645)
Posted by Patent Hawk at 3:19 PM | Prosecution
The CAFC has a self-censoring rule that a senior judge may not dissent, or even join a dissent, in denying a rehearing en banc. What liberty can a country have when a judge is barred from expressing an opinion?! (Middleton v. Shinseki CAFC 2013-7014).
Posted by Patent Hawk at 3:07 PM | Case Law
January 22, 2014
An untold number of patent applications languish at the USPTO, which refuses to grant or even examine them, either because they are considered too valuable to be granted to a non-corporate entity, or out of sheer spite. Gilbert P. Hyatt, prolific inventor with over 70 issued patents, can't get the patent office off its duff. So he (once again) went to Federal court "to compel the PTO to decide two appealed patent applications, each of which has been pending before the PTO since the early 1970s - over 40 years ago." The U.S. patent system is broken, but in none of the ways that so-called patent reformers, who represent corporate interests, care to address. Instead, well-heeled efforts focus on rigging the game further against inventors like Mr. Hyatt (e.g., the Goodlatte "abusive litigation" legislation currently making its way through Congress). [Hyatt's complaint]
Posted by Patent Hawk at 6:28 PM | Prosecution
In the continuing campaign to abridge the rights of non-corporate patent holders, the august priests of the plutocracy proclaim through nuance that only pittances are due patent peasants. In Medtronic v. Mirowski, the Supreme Court unanimously rules that patent holders must always prove their patents worthy.
Posted by Patent Hawk at 6:10 PM | Infringement
January 17, 2014
Arrogant conceit is a common occupational hazard of Federal district court judges; what the appeals court more benignly observes as "an ambiguity on the grounds for decision." So it was with Judge Donovan W. Frank in Minnesota, who appears to know nothing about patent law. More particularly, "the stipulated judgment provided no factual context for the claim construction issues presented by the parties." Frank flunked by reading the spec into the claims, and by not knowing what a system claim was. On appeal, CAFC chief Judge Rader condescends to point out blackletter law: "a system claim generally covers what the system is, not what the system does." (Superior Industries v. Masaba (CAFC 2013-1302))
Posted by Patent Hawk at 2:09 PM | Claim Construction
January 9, 2014
Sunk By Restriction
A CAFC panel decides that satisfying a restriction requirement by eliminating drawings in a design patent application is prosecution estoppel. "In the design patent context, the surrender resulting from a restriction requirement invokes prosecution history estoppel if the surrender was necessary, as in Festo, 'to secure the patent.'" This continues the judicial trend of chopping away patent rights.
Posted by Patent Hawk at 3:54 PM | Design Patents
December 27, 2013
The CAFC has declared the everyday antics of patent plaintiff lawyers to be exceptional. Vacating a district court judge's decision not to award attorneys fees under 35 U.S.C. § 285, an appeals court panel decreed that "litigation misconduct and unprofessional behavior may suffice." That specifically includes asserting infringement "despite an objectively low likelihood that it would prevail." Mind-reading is allowed in coming to this conclusion. (Kilopass Technology v. Sidense - CAFC 2013-1193)
Posted by Patent Hawk at 9:58 PM | Case Law
December 4, 2013
Single Amputation Kills Whole Family
Ohio Willow Wood came up with some patented designs for cushions over amputated limbs. One was amputated during litigation-related reexam. That was enough to effectively kill the whole family. "Collateral estoppel protects a party from having to litigate issues that have been fully and fairly tried in a previous action and adversely resolved against a party-opponent. Our precedent does not limit collateral estoppel to patent claims that are identical. Rather, it is the identity of the issues that were litigated that determines whether collateral estoppel should apply." (CAFC 2013-1642)
Posted by Patent Hawk at 3:47 PM | Prior Art
December 1, 2013
Biting for Apple
The U.S. government treats Apple computer as a favored son. The CAFC (2013-112) overturned a district court's judgment that an injunction against Samsung was unjustified. With no backing in law, as Apple's arguments were generally ill-conceived, but by strong bias, the CAFC told the district court to take another look, and find favor towards Apple as it does.
Posted by Patent Hawk at 4:32 PM | Injunction
November 4, 2013
Synthes went after Spinal Kinetics over 7,429,270, which claims an artificial spinal disc. In dissent over claim construction and written description, where the CAFC affirmed the district court's damning the patent, fledgling Judge Taranto demonstrates the easy corruption of U.S. courts.
Posted by Patent Hawk at 4:16 PM | § 112
October 30, 2013
7,214,017 was shipped into reexamination by a competitor to its owner: Randall Manufacturing. While the examiner rejected numerous claims, the patent board couldn't see a motivation to combine references. But the CAFC could, finding the failure to do so "a blinkered focus."
Posted by Patent Hawk at 9:46 PM | Prior Art
October 22, 2013
Screwed to the Bone
In re Biedermann is exemplary of the USPTO's arrogant disregard for the law, and even decency to patent applicants. Lutz Biedermann and Jurgen Harms tried to patent a bone screw. The patent board concocted a new rejection, but refused to give applicants the proper opportunity to argue against it. On appeal, the CAFC vacated and remanded (CAFC 2013-1080), reminding the curmudgeons at the patent office to show the passing semblance of fairness.
Posted by Patent Hawk at 3:03 PM | Prosecution
October 13, 2013
Broadcom nailed Emulex for infringing 7,058,150, claiming a data transceiver. On appeal, the CAFC twisted now canonical case law regarding obviousness handed down by the Supreme Court in KSR v. Teleflex (2007). Thus the CAFC continues to build self-contradictory case law.
Posted by Patent Hawk at 11:40 PM | Prior Art
October 9, 2013
In Kruse v. Volkswagon (CAFC 2012-1352), the corrupt courts couldn't cotton to a decent claim construction. The disputed term went to combustion. In dissent, CAFC Judge Wallach observed blackletter law with: "The construction that stays true to the claim language and most naturally aligns with the patent's description of the invention will be, in the end, the correct construction." In this case, the CAFC construction violated every principle. Wallach: "A construction that excludes disclosed embodiments, violates the doctrine of claim differentiation, and invalidates a dependent claim cannot stay true to the claim language and the written description of the invention."
Posted by Patent Hawk at 1:58 AM | Claim Construction
October 2, 2013
There is a natural order, and it must be defended. So, as part of a concerted campaign by the Obama administration, Congress and the courts, to reserve profiting from patents to corporations, the Federal Trade Commission (FTC) plans, using their subpoena power, to persecute "patent trolls": a deprecating term used to describe patent-holding companies which are not respected by the political establishment, as they nick their revenues from favored corporations. The FTC's investigation is intended to intimidate and drain the reserves of these patent-holding companies, so as to drive them out of business. Failing that, the FTC can apply further pressure by launching an antitrust enforcement effort.
Posted by Patent Hawk at 2:27 PM | The Patent System