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Unpublished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 Lansa found art, two unpublished user manuals for a software product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Continue reading "Unpublished"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 (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.
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.
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)
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.
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.
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.
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.
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.
Posted by Patent Hawk at 12:36 AM | Infringement | Comments (1)
Newsfeed (RSS)
Recommended:
Recommended:
Recommended: