May 14, 2012
Copycat
Apple tried to get a preliminary
injunction against Samsung over design and utility patents, accusing
Samsung of infringing its "distinctive design." The district court was
unpersuaded, finding, among other faults, that "Apple had failed to
show a likelihood of success on the merits." The legal team at Quinn
Emmanual, representing Samsung, outmaneuvered MoFo. With the exception
of a quibble over legal error for one patent, remanding back for
reevaluation, a CAFC panel affirmed, even as it did not often agree
with the district court. (CAFC 2012-1105)
Posted by Patent Hawk at 2:31 PM | Injunction
May 12, 2012
No Breiner
Sheldon Breiner tried to get a patent on networked data collation from far-flung places. With Obzilla riding shotgun, the examiner combined three far-flung references, supplying motivation to combine as "obvious to one of ordinary skill in the art." Rejection affirmed at the BPAI. Breiner took it to the CAFC, which reminded of the now high bar to overturning the PTO: "this court will not overturn the Board's decision if a reasonable mind might accept the evidence as adequate to support a conclusion." (CAFC 2011-1387).
Posted by Patent Hawk at 4:53 PM | Prosecution
May 7, 2012
Lead Compound
In a close-call case, Otsuka v. Sandoz et al (CAFC 2011-1126, 1127, precedential), generic drug makers couldn't invalidate 5,006,528, for lack of identifying a prior art lead compound to derive the patented drug, even under the highly subjective standard of Obzilla. "In keeping with the flexible nature of the obviousness inquiry, the reason or motivation for modifying a lead compound may come from any number of sources and need not necessarily be explicit in the prior art." The ruling also gives a nuanced reading of nonstatutory double patenting. Here too, the subjectivity of "unpredictability" plays a lead role. The contours of obviousness continue to be a case-by-case guessing game.
Posted by Patent Hawk at 9:15 PM | Prior Art
May 4, 2012
Misplaced
It should come as no surprise, for those who are worldly wise, that most patent prosecutors are not adept. Take it as gospel from Patent Hawk, who reads dozens of patents a day. But that doesn't mean you can successfully sue prospecutors for malpractice. Bad for business. Case in point: Minkin v. Gibbons (CAFC 2011-1178), a state patent prosecution malpractice matter that ended up at the CAFC, because the federal courts now take any case concerning patents. Judge O'Malley objects, but she appears in a vast minority.
Posted by Patent Hawk at 6:11 PM | Case Law
April 25, 2012
Zapped
In Zapmedia v. Apple,
Zapmedia tried to backpedal from prosecution estoppel (to overcome
prior art) in the family of the asserted patent: 7,343,414.
Apple's law firm set up solid arugments of claim construction and
non-infringment that the courts easily agreed with. (CAFC 2011-1546):
See TIP Sys., LLC v. Phillips & Brooks/Gladwin, Inc., 529
F.3d 1364, 1371 (Fed. Cir. 2008) ("[P]rosecution history of a related
patent application may inform construction of a claim term, when the
two applications are directed to the same subject matter and a clear
disavowal or disclaimer is made during prosecution of the related
application.").
Posted by Patent Hawk at 8:46 PM | Claim Construction
April 23, 2012
Aggrandizement
Landmark Screens v. Morgan, Lewis & Bockius and Thomas D. Kohler tells of a sorry tale of alleged negligence, malpractice and fraud in a patent prosecution. The California state court was biased against Landmark, the company which had its patent filing ruined. Case dismissed. Landmark then sought recourse in federal district court, which tossed the case under pretext of statute of limitations. On appeal, the CAFC decided they had subject matter jurisdiction, even though admittedly "a fraud action, governed by state law, not patent law or patent practice."
Posted by Patent Hawk at 4:49 PM | Case Law
April 19, 2012
Redox
In re Mousa, a chemical compound prosecution, the CAFC affirmed anticipation by inherency. "[W]hen the PTO shows sound basis for believing that the products of the applicant and the prior art are the same, the applicant has the burden of showing that they are not." In re Spada, 911 F.2d 705, 708 (Fed. Cir. 1990) (citations omitted). Applicant failed to prove what could not be proven - that the PTO's unsubstantiated conjecture was wrong. Rejection without direct evidence was copasetic (inherent redox reaction), but "appellant's unsupported statements... are not sufficient evidence to rebut the examiner's contention." In re Hoke, 560 F.2d 436, 438 (C.C.P.A. 1977).
Posted by Patent Hawk at 3:12 PM | Prior Art
April 18, 2012
Drug Abuse
In Caraco v. Novo, a unanimous Supreme Court reversed the CAFC on abuse of patent: "A generic manufacturer may employ the counterclaim provision to force correction of a use code that inaccurately describes the brand's patent as covering a particular method of using a drug. The brand submits misleading patent information to the FDA, delaying or blocking approval of a generic drug that infringes no patent and thus, under the statute,should go to market." The CAFC had found "that Caraco lacked 'a statutory basis to assert a counterclaim.'"
Posted by Patent Hawk at 2:31 PM | Case Law
April 9, 2012
French Fried
5,750,561
owner Aventis sued Hospira and Apotex for infringing the cancer drug
concoction. Co-inventor Jean-Louis Fabre withheld references from the
PTO during prosecution, and it caught up with him, and Aventis. "There
simply is no justification for telling the [PTO] about the prior art
disclosing the problem [Fabre] examined while concealing key prior art
disclosing the solution he chose." Overcoming the high hurdle of
inequitable conduct set in Therasense,
'561 had terminal cancer before it was shot in the heart. The claims
were also found obvious. Affirmed on appeal (CAFC 2011-1018).
Posted by Patent Hawk at 12:21 PM | Inequitable Conduct
No Access
5,875,435
claims an automated accounting system. '435 owner Noah Systems sued
Intuit for infringement. Intuit got the litigation stayed pending
reexam.
Reexam by "the PTO confirmed the patentability of the original claims
of the '435 patent and determined that new claims 19-56 were
patentable."
With litigation restarted, Intuit sold the district court on the
illicit idea that the claimed "access means" were indefinite under §112
¶2 "because the specification disclosed no algorithm by which the
computer was programmed to perform the function asserted in the
claims."
By law, that failing would be written description, §112 ¶1. But the fix
was in, and that was all that mattered. The district court ignored that
the claimed "access means" referred to entering a passcode, which was
well-documented in a figure and written description, as court documents
showed. Affirmed on appeal. (CAFC 2011-1390).
One more chip on a mountainous pile showing blatant patent court
corruption favoring well-regarded companies over patent holders.
Posted by Patent Hawk at 11:37 AM | § 112
April 3, 2012
Foolish Fiber
In Advanced
Fiber Technologies v. J&L Fiber Services, NY Senior Judge
Lawrence E. Kahn had some senior moments during claim construction.
Further innaity ensued on appeal. The CAFC went along with construing a
term that was not in the claims, but in the district court's claim
construction. "In those cases in which the correct construction of a
claim term necessitates a derivative construction of a non-claim term,
a court may perform the derivative construction in order to elucidate
the claim's meaning." There was no such necessity, as the non-claim
term in dispute inappropriately introduced a claim limitation that was
not in the claims. Hal Wegner commented: "the court has once again
demonstrated the difficulty if not impossibility of correctly
predicting claim construction."
Posted by Patent Hawk at 6:29 PM | Claim Construction
April 2, 2012
Applying Natural Laws
The Supreme Court ruling in Mayo
v. Prometheus was not a ruling
based in law. To the contrary. By admission of the practicality of the
claims, there was scant legal precedent to reach as far as SCOTUS did.
The decision was instead a social policy
decision - that society was better off not allowing monopolization of
heath care treatments. From a legal standpoint, the CAFC
got it right in following §101 that one "may obtain a patent," except
for what has been prohibited. The Supreme Court expanding the scope of
prohibition, that "a
patent could not simply recite a law of nature and then
add the instruction 'apply the law,'" is exactly what many patents do.
All gene patents do that, as do plant patents, for that
matter. By SCOTUS reasoning, any biological patent simply applies one
or more laws to nature
to achieve its effect. Even chemistry patents
simply apply the law of nature regarding covalent or ionic bonds.
Continue reading "Applying Natural Laws"
Posted by Patent Hawk at 12:13 PM | § 101
March 27, 2012
Not Infused
5,507,412
claims a system to deliver fluids from multiple sources into a
patient's body. An adjusting means is claimed to influence the fluid
flow from each source. There is a claimed programmable control means
coupled with the adjusting means. In the disclosure, the functions of
what the control device does are variously mentioned, but how the
control device functions is never described. '412 owner Ergo sued
CareFusion for infringement. Under the influence of 112 ¶ 2 by way of §
112 ¶ 6, the "district court held that the 'control means' terms are
indefinite for failure to disclose corresponding structure." The CAFC
affirmed. (CAFC 2011-1229).
Should have been euthanized by 112 ¶ 1. The claim was definite enough,
but lacked written description.
Posted by Patent Hawk at 10:28 AM | § 112
March 20, 2012
Treatment
Prometheus Labs sued Mayo for
infringing drug treatment patents - which
simply claim monitoring treatment and adjusting dosage. The district
court ruled the patents not eligible subject matter (§101). The
CAFC reversed. Now the Supreme Court has once again reversed the
CAFC.
"The steps in the claimed processes (apart from the natural laws
themselves) involve well-understood, routine, conventional activity
previously engaged in by researchers in the field."
Posted by Patent Hawk at 10:15 AM | § 101
March 18, 2012
No Reexam Revival
Competitors Aspex Eyewear and
Marchon Eyewear myopically pummeled each other with patent suits for
over a decade. They eventually
settled. Aspex navigated a reexam with new and amended claims of a
patent subject to the settlement. Aspex nonetheless started a new spat,
claiming it had newly loaded dice. Citing res judicata, the courts
would have none of it. "Claims that emerge from reexamination do
not create a new cause of action that did not exist before." (CAFC 2011-1147)
Posted by Patent Hawk at 6:08 PM | Case Law
March 14, 2012
Condomization
The courts have the trickiest
part of protecting the interests of
the State. Laws are designed to protect the government and its minions
from liability, while maitaining a facile appearance of equity. Cracks
in the pavement of protection that inevitably appear by sloppy
legislation need patching by the courts. In Zoltek v. United States,
16 years down a road of judicial hand-wringing confusion, an en banc
CAFC sua sponte reverses itself, deciding another decade or so
needs to go by to settle the matter. Justice is swift and sure.
Continue reading "Condomization"
Posted by Patent Hawk at 1:16 PM | Case Law
March 10, 2012
Substantial Evidence
In re PepperBall Technologies,
where patents were found
obvious during reexam, the CAFC affirmed, as it "upholds the Board's
fact findings supported by substantial evidence, 5 U.S.C. § 706."
"Whether an invention would have been obvious is a legal question. What a reference teaches and whether a person with ordinary skill in
the art would have been motivated to combine the teachings of separate
references are questions of fact." (CAFC 2011-1137).
Under the substantial evidence standard of review, the CAFC must affirm
the PTO if there is substantial evidence to support the agency, even if
the CAFC would otherwise disagree.
Continue reading "Substantial Evidence"
Posted by Patent Hawk at 10:28 PM | Prior Art
March 8, 2012
Overstated
35
U.S.C. §251 affords "reissue of defective patents," with a caveat
as to claim scope. "No reissued patent shall be granted enlarging the
scope of the claims of the original patent unless applied for within
two years from the grant of the original patent." 5,940,600
claims managing computer data channels. Within 2 years of grant, '600
inventors filed a reissue application, seeking to broaden claim
scope. Granted. Outside the 2-year window, two more broadening reissues
were sought. The third reissue attempt ran afoul of PTO tolerance, as
the broadened claims sought were unrelated to those filed for within
the 2-year window. The CAFC appeal was another
disgrace for the patent office for its ham-handedness.
Posted by Patent Hawk at 8:26 PM | The Patent Office
March 6, 2012
Graph Off
GraphOn had patents on network
database transactions valuable enough
for MySpace to get the jump with a DJ action. Craigslist and Fox
Network piled in. These upstanding companies had enough credibility
with the district court judge to invalidate the patents in summary
judgment without so much as a decent claim construction.
On appeal, a CAFC panel lamented the slack claim work, but affirmed
with nothing more than handwaving dismissal of
GraphOn's objections to being railroaded.
Posted by Patent Hawk at 10:18 PM | Prior Art
March 5, 2012
Mulligan Stew
USPTO honcho David Kappos is
showing his chops as a political hack.
In announcing 506,000 patent applications in FY 2011, Kappos crowed
before Congress: "These figures confirm that innovation is alive and
well and will help speed our nation's economic recovery." But only
270,000 new applications were filed. The rest were RCEs, the signature
of either bumbling or desperation.
Continue reading "Mulligan Stew"
Posted by Patent Hawk at 12:08 PM | The Patent Office
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