September 17, 2015

Fanned Obvious

ABT sued Emerson Electric for infringing 5,547,017, which claimed fan operations for an air-conditioning system. A judge and jury found the patent infringed, and awarded royalties. On appeal, the CAFC reversed (2014-1618, 2014-1700), finding the patent obvious "as a matter of law" in light of four references which disclose four claimed features, but do not combine them as '017 did, or even suggest such a combination. Lacking evidence, the CAFC surmised "the motivation or rationale for combining those references can be found in the nature of the problem addressed, if not directly from the disclosures of the references themselves."

Posted by Patent Hawk at 1:58 AM | Prior Art

August 19, 2015

PTO Jitter

Power Integrations got 6,249,876 for "a technique for reducing electromagnetic interference by jittering the switching frequency of a switched mode power supply." Assertion against Fairchild Semiconductor was successful all the way through appeal, notably finding the patent non-obvious based upon a careful claim construction. On a dual track of reexamination instigated by Fairchild, the patent office found '876 obvious, based upon their sloppy claim construction. On appeal, the CAFC found that the patent "board fundamentally misconstrued Power Integrations' principal claim construction argument and failed to provide a full and reasoned explanation of its decision." The CAFC awarded costs to Power Integrations, and kicked the case back to the PTO, telling the patent examining poohbahs to get their act together.

Posted by Patent Hawk at 4:41 AM | The Patent Office

July 12, 2015

Abstract Juggernaut

The steamrolling of software patents continues. Intellectual Ventures asserted two patents against Capital One that went to appeal (CAFC 2014-1506). One claimed tracking spending related to a pre-set limit. The other claimed web page customization based upon user history. Both were found grasping at an abstraction, and so patent ineligible under §101.

Posted by Patent Hawk at 5:09 AM | § 101

June 24, 2015

Abstract Loss

Internet Patents asserted 7,707,505 against Active Network and others. The district court found '505 patent ineligible under §101, which the CAFC affirmed. On appeal, Judge Newman (CAFC 2014-1048) seemed to agree that case law for §101 has all the clarity of someone speaking while gargling a mouthful of marbles. "Recently, the courts have focused on the patent eligibility of 'abstract ideas,' for precision has been elusive in defining an all-purpose boundary between the abstract and the concrete, leaving innovators and competitors uncertain as to their legal rights." In this case, "retaining information lost in the navigation of online forms" was found to be an abstract idea. The notion that the U.S. Federal courts dispense just or even predictable patent jurisprudence continues only as an abstraction.

Posted by Patent Hawk at 7:14 PM | § 101

May 23, 2015

No Way For Means

The incompetence of the patent office was demonstrated with 5,663,757, which EON asserted against 17 defendants. '757 survived two reexaminations. Then the district court found the patent indefinite for eight different means claim elements relying upon a disclosure that had no means for meeting the means. The CAFC affirmed (2014-1392).

Posted by Patent Hawk at 7:09 PM | § 112


Fenner Investments sued Verizon Wireless for infringing 5,561,706, which claimed locating and tracking "personal identification numbers." Claim construction of "personal identification numbers" as being personal led to stipulation of non-infringement. Fenner insisted "personal identification numbers" meant device-specific, not personal, despite the specification stating "personal identification numbers are not associated with any particular communications unit or physical location but are associated with individual users," and arguing the same to overcome prior art during prosecution. A CAFC panel (2013-1640) affirmed.

Posted by Patent Hawk at 7:01 PM | Infringement

April 27, 2015

Elevator Music

Info-Hold sued Muzak and Applied Media Technologies for infringing 5,991,374, which claims playing the music ubiquitously found in commercial establishments. Ohio district court judge Timothy S. Black demonstrated bias towards Muzak in his claim construction. Such corruption is common in district courts throughout the country, and is often let pass on appeal, if the CAFC shares the same plutocratic bias. In this case, the CAFC (2013-1528) reversed and remanded.

Posted by Patent Hawk at 8:46 PM | Claim Construction

Not Final

Automated Merchandising Sytems (AMS) sued Crane for infringing four patents. Crane responded by filing inter partes reexaminations on the patents. The parties settled. AMS tried to stop the reexams, but the PTO refused. And the courts refused to contravene the PTO refusal.

Continue reading "Not Final"

Posted by Patent Hawk at 4:29 PM |

April 8, 2015

Disparate Legal Precedents

In Vasudevan v Tibco et al (CAFC 2014-1094), the district court managed a clean claim construction that went to accessing "disparate databases." It then ruled in summary judgment that the specification did not meet the written description requirement and was not enabled (both deficiencies in meeting §112(a)). It did so with solid reasoning.

A specification must "contain a written description of the invention." 35 U.S.C. § 112 ¶1 (2006). The test for the sufficiency of the written description "is whether the disclosure of the application relied upon reasonably conveys to those skilled in the art that the inventor had possession of the claimed subject matter as of the filing date."
A specification must "enable" a person of skill in the art to make and use the claimed invention. 35 U.S.C. § 112 ¶1 (2006). Enablement is a legal question based on underlying factual determinations.

On appeal, the CAFC reversed on the §112(a) decision, inscrutably asserting there was "genuine issues of material fact," without pointing out what they could possibly be, given that the patent holder had every opportunity to disclose the facts prior to the district court's decision, and failed to do so to statutory satisfaction. According to the CAFC in this ruling, a patentee need not adequately describe an invention or be in possession of it when filing the patent.

Posted by Patent Hawk at 3:33 AM | § 112


In Apotex v. Daiichi Sankyo v. Mylan (CAFC 2014-1281, -1292), the CAFC grabs the litigation cudgel that a district court refused to pick up because it did not perceive a controversy meriting litigation. The CAFC reversed, as the parties involved had financial stakes in who first gets to make a generic version of a drug going off patent. The case illustrates the byzantine inanity that characterizes the U.S. drug patent system.

Posted by Patent Hawk at 3:09 AM | Case Law

March 10, 2015

Lost Credibility

In Warsaw Orthopedic v. Nuvasive, Southern California district court Judge Cathy Ann Bencivengo demonstrated her incompetence in patent law by granting damages inappropriately. A CAFC panel (CAFC 2013-1576, -1577) reminded: "a patentee is entitled to either a reasonable royalty or lost profits-- not both. At oral argument, counsel for Warsaw admitted it was not entitled to both a reasonable royalty and lost profits on a single sale, nor was it seeking both."

Posted by Patent Hawk at 11:36 PM | Damages

February 18, 2015


Helferich licensed relevant portions of its patent portfolio to mobile handset manufacturers. Then it turned around and sued content providers that feed users through their handsets. In a whitewash ruling, Judge John W. Darrah of Illinois district court found non-infringement via exhaustion. A CAFC panel (2014-1196) reversed that sloppiness, noting that the lower court "did not focus on the particulars of any of Helferich's claims." "We see no sound basis for expanding exhaustion doctrine to hold that authorized sales to persons practicing the handset claims exhaust the patentee's rights to enforce the asserted content claims against different persons."

Posted by Patent Hawk at 2:39 AM | Exhaustion

February 2, 2015

Clear Error

The CAFC has long internally fretted about its self-indulgence of de novo review in claim construction, which is a legal interpretation of technical facts. In Teva v. Sandoz, the Supreme Court settled that score.

When reviewing a district court's resolution of subsidiary factual matters made in the course of its construction of a patent claim, the Federal Circuit must apply a "clear error," not a de novo, standard of review.

Posted by Patent Hawk at 4:12 AM | Claim Construction

January 17, 2015


In Bard v. Gore (CAFC 2014-1114), the CAFC abandons all pretense of equitable rule of law by ignoring its own precedents and exercising biased caprice. In dissent, Judge Newman sharply points this out.

This case returns to the Federal Circuit on appeal of a district court decision on remand from an en banc decision of this court. The issue is willful infringement and its consequences, which this en banc court remanded for de novo determination as a matter of law, vacating the judgment entered on the jury verdict.
The panel majority, while mentioning that willful infringement is now a matter of law, does not undertake the required de novo review... In all events, the question as it relates to willfulness is whether the defense of invalidity could reasonably be raised, not whether it eventually succeeded... On the entirety of the premises and applying the correct legal standards, the judgment of willful infringement cannot stand.
Extensive precedent supports judicial refusal to enhance damages when the case is close and the equities counsel moderation, not punishment... Thus, regardless of whether willfulness was a supportable ruling, the doubling of the damages award is untenable.

Posted by Patent Hawk at 11:33 PM | Infringement

December 26, 2014

Not Withdrawn

Prosecutorial nitwittery went unchecked by the district court, but a CAFC panel checked it by siding with the USPTO in refusing to withdraw a terminal disclaimer. 6,194,187 issued. Its owner, the Japanese Foundation for Cancer Research, then filed a terminal disclaimer, which the PTO accepted. The patent office later refused to withdraw the disclaimer, and so was sued for it. Defending the PTO via deference, the CAFC found "that the PTO did not act arbitrarily, act capriciously, or abuse its discretion in declining to use any inherent authority that it might have in withdrawing the terminal disclaimer."

Posted by Patent Hawk at 1:41 PM | Prosecution


The death watch for software under §101 continues. In Content Extraction and Transmission v. Wells Fargo et al (CAFC 2013-1588), patents that claim scanning a document and recognizing certain keywords are damned as an "abstract idea," using oxymoronic pseudo-logic that "the concept of data collection, recognition, and storage is undisputedly well-known." Asserting software patents against the cossetted financial sector is itself the kiss of death. The corruption of the patent system via court fiat is largely complete, the grim reapers in black sitting on benches in dead-end jobs having triumphed as the lords of plutocratic benevolence, giving away the meager inventions of the meek to corporate behemoths.

Posted by Patent Hawk at 1:27 PM | § 101

December 10, 2014

Horrid Host

DDR Holdings v. illustrates the incompetence and caprice of Federal courts in handling patent cases. Asserted claims in 6,993,572 & 7,818,399 were found valid and infringed by a jury. District court Judge Rodney Gilstrap in East Texas rebuked motions as a matter of law (JMOL) over invalidity and infringement. On appeal, '572 was found blatently anticipated by the prior art. An extensive CAFC sidebar on §101 shows how unsettled patentability is.

Continue reading "Horrid Host"

Posted by Patent Hawk at 2:43 PM | § 101

November 23, 2014

Bad Injector

"Antares is a developer of automatic injection devices used to self-administer pharmaceuticals." It got a patent (7,776,015) that it wanted broadened under reissue (35 U.S.C. § 251), as it had not bothered to file a continuation. Owing to prosecutorial and patent office incompetence, the reissue claims went to a different invention. Asserted in litigation, the CAFC caught the reissue error (district court Judge Sue L. Robinson did not) and pitched the patent (CAFC 2014-1648).

Posted by Patent Hawk at 8:20 PM | Reissue


Verstata asserted software patents against rival Callidus, which counterclaimed with its own patents. Callidus filed limited reexamination proceedings against the Verstata patents, and asked the court for a stay pending reexam. The district court denied the stay. The CAFC reversed that.

Continue reading "Stay"

Posted by Patent Hawk at 8:07 PM | Case Law

November 17, 2014

Not So Wild Tangent

Ultramercial sued Hulu and WildTangent for infringing 7,346,545, which claims receiving payment for a consumer viewing Internet advertising. The district found the patent invalid under § 101. The CAFC balked at that, but reversed itself after the Supreme Court Alice ruling (CAFC 2010-1544). "We do not purport to state that all claims in all software-based patents will necessarily be directed to an abstract idea," the court stated. But since Alice, not one has yet to pass muster.

Posted by Patent Hawk at 4:56 AM | § 101