September 1, 2010
Fit To Be Tied
Raymond
E. Stauffer, esquire, hankers to look dapper, in idiosyncratic fashion,
preferring bow ties to the normal skinny bib known as a necktie. A man with
taste such as Stauffer's may sojourn to a classy clothier such as
Brooks Brothers. But in his
shopping excursion, Stauffer was bemused to find that bow ties he had purchased
were marked, with numbers of patents expired over 50 years ago (1955). Umbrage
drove Stauffer to the courthouse, where he sallied forth with "a qui tam
action under
35 U.S.C. § 292, alleging that Brooks Brothers had falsely marked its bow
ties."
Continue reading "Fit To Be Tied"
Posted by Patent Hawk at 8:10 PM | Standing | Comments (2)
August 30, 2010
Misuse
Compact discs (CDs) became commercially viable by creating an international
standard, insipidly called the "Orange Book." Philips was instrumental in
developing the Orange Book standard, as well as holding patents covering a
portion of the standard. CD maker Princo licensed Philips' CD patent portfolio,
then peeved itself, that it was forced to license irrelevant patents as part of
the deal. So Princo stopped paying licensing fees, and got hauled before the ITC
for its failure to pay the rent. The ITC found patent misuse, which the
CAFC reversed
and remanded. The ITC took the hint, and turned a deaf ear to Princo's
patent misuse defense. Princo appealed. A
CAFC
divided panel then ruled in confusion, again remanding. All
involved filed petitions for an en banc rehearing. So here we are.
Posted by Patent Hawk at 5:20 PM | Antitrust | Comments (0)
August 28, 2010
Shocking
Pass
& Seymour (P&S) has patents claiming ground fault circuit interrupters (GFCIs):
5,594,398;
7,164,564;
7,212,386; and
7,283,340. GFCIs halt a ground fault: preventing shocking a consumer laying
hands upon a defective household appliance plugged into the wall. "GFCIs operate
by detecting a difference in electrical current flowing into and out of the
connected appliance." Pass & Seymour sought to shock alleged importing
infringers by plugging them into the ITC. Some claims sizzled to a importation
ban, while others fizzled out. All finding fault, all appealed.
Posted by Patent Hawk at 12:00 AM | ITC | Comments (3)
August 25, 2010
On A String
From
reading his newsletter, one gathers the decided impression that Greg Aharonian
has the emotional stature of an infant. [I know I'll get comments from readers
who will swear their infants are more mature than Greg. Point taken.] In his
ranting newsletter, where screaming ALL CAPS and !!!!!!!! are the norm,
Aharonian boiled over newly minted patent
7,779,753, which claims a tea ball on a serving string. Congratulations to
Ms. Winnie Yu for securing intellectual property protection for her creative
endeavor. Perhaps Ms. Yu would be so gracious as to invite Mr. Aharonian over
for tea. Or, upon thoughtful consideration, perhaps not.
Continue reading "On A String"
Posted by Patent Hawk at 5:17 PM | Prosecution | Comments (62)
August 22, 2010
Crushed
A
"bundle breaker" is a machine that separates stacked sheets of corrugated
cardboard.
6,655,566 claimed an improvement that allowed a bundle breaker to
simultaneously separate stacks of different heights. George M. Martin is this
country's king of cardboard stacking. Martin has been stacking cardboard since
1960, and has about 90% of the cardboard stacker machine market. Martin has sold
bundle breakers, which incorporate '566's claimed technology, since 2002. Martin
sued chief competitor Alliance Machine Systems International for infringement. A
hung jury resulted in the judge breaking Martin's
potential bundle by ruling the asserted claims obvious. Martin stacked his hopes
on the CAFC.
Posted by Patent Hawk at 1:15 PM | Prior Art | Comments (1)
August 20, 2010
Deep Rig
Transocean
Offshore Deepwater Drilling innovates so humans can drive around on the cheap
until they pollute themselves out of existence. And, as anything that lives in the Gulf of Mexico would tell you (if it could talk),
pollution begins at the wellhead. Transocean tried drilling rival Maersk for infringing
6,047,781,
6,068,069, and
6,085,851, in South Texas, where
they love oil like cattle love grazing. But apparently not those patents, because the district court held
the asserted claims invalid, not infringed, and Maersk not acting willfully.
Transocean had to pitch its bit to the CAFC.
Posted by Patent Hawk at 2:35 PM | Prior Art | Comments (0)
August 14, 2010
Plugged
Dr.
Gregory W. Baran invented a biopsy sampling needle with spring-loaded action to
pull a plug from a corpse. This innovation netted the doctor
5,025,797 and CIP
5,400,798. Dr. Baran decided to plug Medical Device Technologies, AMT
Svergie AB and Gedon AB for infringement. Claim construction of "detachable" and
"releasably" forced Dr. Baran to stipulate noninfringement for '798 asserted
claims. '797 went down to noninfringement in summary judgment. The only thing
left of Dr. Baran's case after appeal was an autopsy of lousy
lawyering by the plaintiff.
Posted by Patent Hawk at 4:10 PM | Claim Construction | Comments (0)
August 13, 2010
Inherent
King
Pharmaceuticals sued Eon Labs for infringing
6,407,128 &
6,683,102 after Eon filed an ANDA to make a generic version of the muscle
relaxant claimed, metaxalone,
which was first patented in 1962 (3,062,827).
Eon got summary judgment of invalidity via six prior art references, three of
which the court relied upon. The district court found claims inherently
anticipated. "To inherently anticipate, the prior art need only give the
same results as the patent, not better." One claim was found inherently obvious.
Other claims, in both '128 and '102, were found wanting under §101 for lack of
transformation: the claims' "informing" limitation was ethereal. Whereupon
appeal, with its own special informing about "informing" being unpatentable. "It
is not invention to perceive that the product which others had discovered had
qualities they failed to detect."
Posted by Patent Hawk at 11:46 AM | Prior Art | Comments (0)
August 11, 2010
Tracking & Waiving
Enovsys
sued Sprint Nextel for infringing
5,918,159 and
6,560,461, which claim tracking mobile phones. Undisputed claim construction
led to disputed infringement. "After a nine-day trial, the jury found Sprint
Nextel infringed both patents and awarded approximately $2.78 million in
damages." Sprint Nextel appealed.
Continue reading "Tracking & Waiving"
Posted by Patent Hawk at 9:30 PM | Infringement | Comments (0)
August 9, 2010
Not A Golden Hour
Golden
Hour Data Systems sued emsCharts and Softtech for infringing
6,117,073. '073 claims integration of medical dispatch, clinical services,
and billing. Trial went Golden Hour's way, but the district court afterward held
JMOL no joint infringement of claims, and found '073 unenforceable due to
inequitable conduct. Golden Hour appealed. Herein, incredible case law
developments: the inequitable conduct mulligan; and joint infringement only by
proven puppeteering. And another case where "the single most reasonable
inference" is hamstrung.
Continue reading "Not A Golden Hour"
Posted by Patent Hawk at 9:14 PM | Infringement | Comments (1)
August 7, 2010
Hang Up
Ring Plus asserted
7,006,608 against Cingular. '608 generally claims generating and delivering
messages while the phone is ringing. This includes replacing or overlaying the ringback sound. Claim construction "determined that the steps of the asserted
claims must be performed in a specific order." That led to noninfringement. But
the thing that really rung Ring Plus's bell was finding inequitable conduct. The
squeeze on the sleaze didn't hold up on appeal, but only because the prosecutor
got the benefit of a doubt that shouldn't have been there.
Posted by Patent Hawk at 1:08 PM | Inequitable Conduct | Comments (0)
August 5, 2010
Equivalent Spit
Chronic
excessive throat mucus is a wage of sin: bad diet, pudgy lifestyle. Drug
companies make their wages off such sin. "Guaifenesin is an expectorant used to
thin, loosen, and help expel mucus that causes congestion. It was first approved
by the Food and Drug Administration (FDA) in 1952." But it's still patented in
various forms.
6,372,252 claims sustained release, as if that were gee-whiz chemistry.
Adams sued Perrigo after Perrigo filed an ANDA for an extended mucus reducer.
Herein, the significance of equivalence.
Continue reading "Equivalent Spit"
Posted by Patent Hawk at 10:06 PM | Claim Construction | Comments (0)
August 4, 2010
Pig Out
Merial got a line on a virus infecting swine, and patented it:
6,368,601. Intervet developed a vaccine for treating the virus. Then
Intervet filed a declaratory judgment action against Merial. The district court
ruled noninfringement in summary judgment based on claim construction of six
disputed terms. Merial squealed and appealed. Dissent by Judge DYK raised the specter of a
rehearing, as to whether an isolated DNA sequence is patentable subject matter (§101).
Posted by Patent Hawk at 10:03 PM | Claim Construction | Comments (6)
July 29, 2010
Plunger
Becton
tried to stick Tyco with infringing syringe patent
5,348,544.
It did. But Tyco got the district court judge to grant a new trial on
infringement, because Becton changed its infringement theory at trial. Tyco lost
the second trial. Tyco appealed. The CAFC plunged into contentious claim
construction.
Posted by Patent Hawk at 5:48 PM | Claim Construction | Comments (6)
July 28, 2010
Terminal
Eli
Lilly markets cancer drug
Gemzar®, the active ingredient of which is gemcitabine.
4,808,614 claims gemcitabine, and a method for treating viral infections
using gemcitabine.
5,464,826 claims using gemcitabine to treat cancer. Both patents, in the
same family, are owned by Lilly. Lilly did not file a terminal disclaimer for
'826. That would become a terminal mistake.
Posted by Patent Hawk at 4:04 PM | Case Law | Comments (0)
July 27, 2010
Lightening Up
The USPTO today issued
revised interim §101 guidelines in light of the SCOTUS Bilski decision. "The machine-or-transformation test remains an investigative tool and is a useful
starting point." Other stated criteria include: applying laws of nature (versus
the laws themselves), and more than "a mere statement of general concepts," for
which examples are given (e.g., mental activity). Examiners "should avoid
focusing on issues of patent-eligibility under 35 U.S.C. §101 to the detriment
of considering" other avenues of rejection (§§ 102, 103, and 112).
Posted by Patent Hawk at 1:14 PM | Prosecution | Comments (3)
July 22, 2010
Lock on Obzilla
Wyers
sued Master Lock for infringing
6,672,115,
7,165,426, and
7,225,649, applicable to hitch pin locks for trailer towing. A jury found the
patents nonobvious. Wyers secured an injunction along with $5.35 million in
reasonable royalty damages. Master couldn't break the lock to obviousness
post-trial, so it appealed. Herein, a thorough discussion of KSR, and
case law that will be cited for years to come.
Continue reading "Lock on Obzilla"
Posted by Patent Hawk at 7:15 PM | Prior Art | Comments (14)
July 19, 2010
Insecure
Paradox
Security Systems sued ADT and other home security companies for infringing
RE39,406, which claims a telephone line coupler circuit. Paradox's expert
was waylaid by defendants for not explaining how the accused products met a
means-plus-function limitation. The district court judge ruled non-infringement
as a matter of law. Appeal found the same short circuit.
Posted by Patent Hawk at 7:05 PM | Infringement | Comments (0)
July 14, 2010
Tidbit
Congress
is a cesspool of corruption, offering its members a variety of tricks to feather
their own nests, and pay back those cronies who help finance the con job
commonly called democracy. One legislative sleight of hand is a rider bill,
which is a bill attached to a different, typically unrelated bill, in a furtive
attempt to pass the rider without attracting scrutiny. Rider bills nearly always
cater to a special interest, and commonly involve a pork allocation to the
patron. Sen. Patrick Leahy of Vermont, where IBM has roots, has failed at least
five years running to get patent deform passed. This year's attempt is a sneak
attack: a rider onto a small business loan funding bill. In the interest of
compact passage, what was never a hit has been reduced to a tidbit.
Posted by Patent Hawk at 2:23 PM | The Patent System | Comments (4)
July 8, 2010
Behind the Times
In
the interest of less-than-compact prosecution, the USPTO is, for the time being,
adhering to the ancient military supply rule: "smoke 'em if you got 'em." The
day Bilski rolled out of the Supreme Court, Robert Bahr, Poobah for
Patent Examination Policy, pooted forth
a letter on the ruling, directing examiners to stick to the old standby
machine-or-transformation test, whereupon giving "the applicant" "the
opportunity to explain why the claimed method is not drawn to an abstract idea."
Posted by Patent Hawk at 8:10 PM | § 101 | Comments (36)
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