March 10, 2010
i4i Review Redux
Microsoft
has prevailed upon the CAFC to rehear, en banc, only the willfulness portion of
its affirmation of the district court ruling in i4i v. Microsoft. In
other words, the CAFC cut Microsoft a break, probably because the CAFC wants
another bite at cleaning up the willfulness standard. A revised CAFC ruling was
issued today that takes out the sentence: "Microsoft does not challenge the jury
instructions on willfulness or the sufficiency of the evidence supporting the
jury's willfulness finding," and adds a section on willfulness to its revised
ruling.
Continue reading "i4i Review Redux"
Posted by Patent Hawk at 5:54 PM | Infringement | Comments (0)
March 9, 2010
Less Than Best Mode
The
American arm of Japan's Ajinomoto complained to the ITC to stop foreign imports
of dietary supplement lysine, under the aegis of
5,827,698 and
6,040,160. The snag was that their patent applications didn't actually
disclose their production techniques. That cost them the patents for failing to
meet best mode, and inequitable conduct for knowingly doing so.
Continue reading "Less Than Best Mode"
Posted by Patent Hawk at 4:18 PM | § 112 | Comments (6)
March 7, 2010
Whole Wallet
Taking
a break from the frigid east Washington winter, CAFC Judge Rader has been
marshalling in Marshall. Rader's adjudicating an East Texas patent brawl between
IP Innovation and Linux vendors Red Hat and Novell. Judge Rader takes no wooden
nickels as the Linux twins sought to toss IPI's damages expert as a Daubert
deuce. Herein the good Judge smokes one.
Continue reading "Whole Wallet"
Posted by Patent Hawk at 12:47 PM | Damages | Comments (2)
March 5, 2010
Cool Analogy
5,955,955
claims a computer drive bay fan, meant to cool the hard drives right in their
own living room. '955 owner Comaper sued Antec for infringement. Trial found
Antec willfully infringing some claims. Some claims were obvious to the jury,
others validly novel. Appeal found that "irreconcilably inconsistent." The CAFC
resolution was to define analogous art as either "from the same field of
endeavor," or "reasonably pertinent to the particular problem with which the
inventor is involved." Upon that the CAFC created its own reconcilable inconsistency.
Continue reading "Cool Analogy"
Posted by Patent Hawk at 9:10 PM | Prior Art | Comments (4)
March 3, 2010
Momentos
Media
Technologies sued Upper Deck for infringing two memorabilia patents:
5,803,501 &
6,142,532. After a trip to the CAFC on district court summary judgment over
res judicata (reversed), trial court proceedings were stayed pending
reexamination. Both patents made it through reexam unscathed. Then, based on
claim construction, Upper Deck got the upper hand by summary judgment over
obviousness.
Posted by Patent Hawk at 2:44 PM | Prior Art | Comments (14)
February 27, 2010
Static
Trading
Technologies sued eSpeed and Ecco for infringing
6,772,132 &
6,766,304, which go to displaying "static price levels" on a computerized
board for commodity trading. One service product infringed, but others literally did not, and applying the
doctrine of equivalents was proscribed. Defenses to
indefiniteness and inequitable conduct went nowhere, as did on-sale bar (§
102(b)) based on a provisional priority date. Affirmation on appeal toted up
dynamic case law quotes, not on sale, but ones that litigators must buy.
Posted by Patent Hawk at 4:59 PM | Claim Construction | Comments (3)
February 25, 2010
Crock
The
International Trade Clowns (ITC) handed a crock to clog maker Crocs when it
asserted
6,993,858 and
D517,789: '858 was found obvious and '789 not infringed. Crocs squealed and
appealed to the CAFC, which stepped in it and splattered the ITC with both feet:
utility and design patent case law.
Posted by Patent Hawk at 11:24 PM | ITC | Comments (9)
February 24, 2010
Fragments
Andrew
Chapman and David King had a patent idea "directed to divalent antibody
fragments comprising two antibody heavy chains and at least one polymer molecule
attached to the heavy chains in a site-specific manner on each chain...
Chapman's invention involves joining together two fragments with an interchain
bridge containing a polymer, thus achieving a circulating half-life that is
intermediate between that of an individual fragment and a whole antibody."
Posted by Patent Hawk at 6:34 PM | Prior Art | Comments (1)
February 19, 2010
Floored
"Pergo
and Alloc are direct competitors in the field of laminate flooring. Pergo owns
the
6,421,970 and
6,397,547 patents, which relate to mechanical joints that enable flooring
panels to be joined without the use of glue or other fasteners, such as nails or
metal clips. Alloc brought a declaratory judgment action against Pergo seeking a
declaration that the '970 and '547 patents were invalid, unenforceable, and not
infringed. Pergo counterclaimed for infringement of both patents." Both patents
were found "invalid on multiple grounds and not infringed." Having achieved its
goal, Alloc then overreached to inequitable conduct, which the district court
denied.
Posted by Patent Hawk at 9:37 AM | Claim Construction | Comments (0)
February 18, 2010
Relatively Stiff
Yousef
Daneshvar filed a patent application claiming : "an apparatus for dressing a
wound. The invention features a 'relatively stiff support' that is secured over
the wound using one or more 'relatively stretchable straps.'" The BPAI rejected
Daneshvar's claims as anticipated and obvious over
5,779,657. Daneshvar had to go to the CAFC to get PTO incompetence
overturned.
Continue reading "Relatively Stiff"
Posted by Patent Hawk at 10:42 AM | Prosecution | Comments (33)
February 9, 2010
Why the Hawk
A friend and client, India born, was telling me about the different prior art
search firms he had used. "The Indians are cheap, and you get what you pay for.
They find something and they quit. They know nothing about litigation, or U.S.
patent laws. They have no concept of story art. They just throw a piece or two
of art over the wall to you and declare victory. The European Patent Office
searches like examiners. What else would you expect? They do okay for a
superficial search, but for a litigation search, they are incomplete. Like the
Indians, the EPO also just cites references."
Continue reading "Why the Hawk"
Posted by Patent Hawk at 12:52 PM | Prior Art | Comments (2)
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.
Posted by Patent Hawk at 1:29 PM | Infringement | Comments (1)
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 (4)
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.
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 (18)
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.
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
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.
Posted by Patent Hawk at 10:32 PM | Claim Construction | Comments (0)
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