June 17, 2013
Reverse payment deals to effectively extend patent protection for drug makers has been approved by the courts. But the FDA took a dim view in one instance, finding antitrust implications. For that it got slapped down by the district and appeals court, for lack of jurisdiction. But the Supreme Court (12-416), in the interest of "public policy," was wont to let the government do its job as it saw fit. Never one for bright-line rules, reverse payments are generally okay, unless a Federal regulator decides otherwise.
Posted by Patent Hawk at 2:27 PM | Antitrust
June 13, 2013
9-0, the Supreme Court (12-398) ruled in the Myriad case that isolating DNA was not patentable, but creating DNA was. "In this case, by contrast, Myriad did not create anything. To be sure, it found an important and useful gene, but separating that gene from its surrounding genetic material is not an act of invention." The incompetent CAFC had ruled that isolating DNA was patentable.
Posted by Patent Hawk at 9:45 PM | § 101
June 5, 2013
Open Season on Inventors
Political consensus by the powers that be has been achieved. It's open war on inventors. Any individual inventor who tries to enforce a legally granted patent is persona non grata before the courts. Said inventor will have to pay for defendant costs after being robbed of asserted patents. That is the fervent wish of Chief Judge Osama bin Rader of the Court of Appeals, Federal Circuit (CAFC).
Posted by Patent Hawk at 4:35 PM | The Patent System
June 4, 2013
Patent Police State
The gross incompetence of the USPTO in years past continues to come a cropper. 35 U.S.C. § 271 states "whoever without authority makes, uses, offers to sell, or sells any patented invention... infringes the patent." The natural capitalist response has been for companies to buy patents to assert against makers, sellers, and, at the extreme, users, to extort licenses. Perfectly legal. But big business has been in an uproar about ceaseless assertions. Now the President has stepped in to confront the law and put the plutocracy on firmer footing. Law & order only go so far. Fuck the law. And that's an order.
Posted by Patent Hawk at 8:18 PM | The Patent System
May 29, 2013
The USPTO supposedly grants patent rights based upon inventive merit, though historically that has sometimes been an impolite fiction. The chairs of the judiciary committees in Congress, Senator Patrick Leahy and Rep. Bob Goodlatte, would like to remove basic rights to trial that have been in place since the 19th century. These paid corporate hacks would repeal 35 USC § 145, which grants the right to trial against patent office abusive practices. The rationale, a logical non sequitur, is supposed abuse of patents by patent holders. Goodlatte: "Abusive patent litigation and specifically patent trolls have a significant impact on American competitiveness." Leahy: "Patent trolling activity casts a pall on the system because it hinders innovation." In short, Congressional abusers of basic fairness would like to let the patent office abuse patent applicants because they think that non-corporate patent holders abuse the patent system by practicing their basic rights of ownership.
Posted by Patent Hawk at 9:16 PM | The Patent System
May 26, 2013
Few federal judges are more than randomly competent, particularly with patent cases. Judges, never the brightest legal minds, mostly rely upon their instincts, trusting emotional bias, and in the finale wrapping legal window-dressing around their prejudicial rulings. Judge William M. Conley in the Western District of Wisconsin seems to fit the bill of the judicial collective. In Douglas Dynamics v. Buyers Products, he blew the claim construction, wrongly granted summary judgment of non-infringement on a claim, and denied a permanent injunction against a direct competitor (snow plow makers). The CAFC reversed (CAFC 2011-1291).
Posted by Patent Hawk at 9:30 PM | Case Law
May 21, 2013
Going To Seed
In Bowman v. Monsanto, the Supreme Court creates a glaring exception to patent law as a boon to corporate power. Such plutocratic largesse is the norm, as is ignoring facts to rule by bias, while crafting law from the bench without respect to statute. The abject corruption of the courts in this country continues.
Posted by Patent Hawk at 4:31 PM | Exhaustion
May 16, 2013
Down the Rabbit Hole
Alice, a corporation from Down Under, got a family of system and method patents that broadly claimed computerizing escrow as a way of mitigating settlement risk. CLS got spooked and got a summary declaratory judgment of invalidity via §101 without the judge bothering to construe the claims. In an en banc appeal, the CAFC, in affirmance, displays a profound ignorance of the law with a stunning absence of cogency.
Posted by Patent Hawk at 10:17 PM | § 101
April 7, 2013
Steve Morsa filed a patent claiming benefits processing. The PTO rejected over prior art, first arguing anticipation; then, when that deficiency was pointed out, hand-waving obviousness. Morsa made cogent, reasonably undeniable arguments, based on evidence, that the prior art used was not in fact prior art - that it was published nearly two years later. Morsa argued that the supposed prior art wasn't enabling, nor a solid basis for obviousness. The PTO didn't care a whit for any of it. The Board granted a rehearing only to pile on new grounds of rejection, without allowing Morsa any opportunity whatsoever to refute the rejections. On appeal, a CAFC panel didn't bother to examine the facts, nor follow the law. Largely ignorning Morsa's arguments, the CAFC rubber-stamped the PTO. The only issue that caught the CAFC's attention was the examiner dismissing Morsa's prior art enablement argument by saying the he had failed to file any expert declartion or affidavit in support. That odious requirement went too far. "We see no reason to require such submissions in all cases," the CAFC panel opined. "Here, Morsa identified specific, concrete reasons why he believed the short press release at issue was not enabling, and the Board and the examiner failed to address these arguments." For this a partial remand, though to moot point - only to clean a smudge on the claims' death warrant. The claims were damned over an unsupported conjecture of obviousness. One more chip on the pile exposing the fundamentally lawless process of caprice by the U.S. patent office and at the CAFC. (CAFC 2012-1609)
Posted by Patent Hawk at 12:11 AM | Prosecution
April 4, 2013
In Saffran v. Johnson & Johnson, the CAFC (2012-1043) satisfied its plutocratic bias, relieving J&J of a pesky infringement by narrowing claim construction from that emanating from esteemed Judge T. John Ward in the Eastern District of Texas. The interesting facet in this case was a reminder that relying upon means-plus-function claim language is always fraught with the danger of inadequate disclosure. "'[a] patentee cannot avoid providing specificity as to structure simply because someone of ordinary skill in the art would be able to devise a means to perform the claimed function.' Blackboard, Inc. v. Desire2Learn, Inc., 574 F.3d 1371, 1385 (Fed. Cir. 2009). Under § 112, ¶ 6, the question is not what structures a person of ordinary skill in the art would know are capable of performing a given function, but what structures are specifically disclosed and tied to that function in the specification."
Posted by Patent Hawk at 1:30 PM | Claim Construction
March 31, 2013
Patent Law By Design
Tim Owens added a internal (unclaimed) trapazoidal region to his bottle design application. The examiner considered it a substantial change (new subject matter), as did the PTO appeal Board and CAFC. That may seem unremarkable, except it represents a substantial change in the law by PTO fiat, backed by the appeals court.
Posted by Patent Hawk at 2:32 PM | Design Patents
March 18, 2013
In Aristocrat v. International Game (CAFC 2010-1426), there was no direct infringement of gaming machine method claims because the accused infringer didn't control a player's actions. Bad claims drafting was the root problem here. Many prosecutors don't understand how claims are treated in litigation, as in this instance. On the finer point of indirect infringement, the CAFC noted inattention all around: "neither the parties, nor the district court in its summary judgment order, expend significant time on the question of indirect or induced infringement." The district court found non-infringement based upon outdated case law. (The CAFC and SCOTUS substantially change patent law willy-nilly on an irregular basis.) Current law of indirect infringement, under the Akamai precedent, is based upon the notion of a hypothetical "single party would be liable as a direct infringer." With all the facts and law before it, but too inattentive to do its job properly, the CAFC remanded for the district court to figure it out, while giving the law firms involved another welcome boost for more fees to their clients.
Posted by Patent Hawk at 2:13 PM | Infringement
March 6, 2013
Bumper Boy asserted animal collar patents that the district court denied on non-infringement against Radio Shack via equitable estoppel, as Bumper Boy wrote a threatening letter, then did nothing for years. On appeal (CAFC 2012-1233), a 2-1 decision highlighted the often capricious court interpretation of the law in this country. A CAFC panel majority: 1) found that Bumper Boy mysteriously eluded equitable estoppel on a CIP even though "these claims do not draw on any new matter"; 2) completely ignored Radio Shack's invalidity arguments, contrary to law (ostensibly for not filing a cross-appeal, when it wasn't necessary. As the dissent pointed out: "the prevailing party need not file a cross-appeal in order to defend a judgment in its favor on any ground that is supported by the record.") Dissenting Judge Newman was rightly disgusted with colleagues Moore and Reyna.
Posted by Patent Hawk at 9:25 PM | Infringement
In Move v. Real Estate Alliance (CAFC 2012-1342), Move duped the district court by having the judge whitewash non-infringement. On appeal, a CAFC panel found "the district court failed to conduct an indirect infringement analysis," as Move may have induced infringement: "knew of the asserted patent and performed or knowingly induced the performance of the steps of the claimed methods, and that all of those steps were in fact performed." Under the controversial Akamai precedent, "liability under § 271(b) may arise when the steps of a method claim are performed by more than one entity, provided that the other requirements for inducement are met."
Posted by Patent Hawk at 8:59 PM | Infringement
February 21, 2013
Brilliant Instruments filed a declaratory judgment action against GuideTech over microprocessor timing error detection circuits (e.g., 6,181,649). Brilliant prevailed before the district court, which found non-infringement. GuideTech appealed, arguing that the district court got it wrong in considering the doctrine of equivalents.
Posted by Patent Hawk at 12:52 AM | Infringement
February 17, 2013
Ignoring the Preamble
Eric Jasinski tried to get a patent for testing computer memory via "verifying the accuracy of logical-to-physical mapping software designed for testing memory devices." In finding anticipation, the USPTO Board ignored the preamble limitation, which was also called out in the body of the claim. In a rare reversal by the CAFC (2012-1482) of patent office rejection, a panel rightly observed: "it also provides the criteria by which the previously-recited comparing limitation is analyzed. We thus conclude that the 'to verify/verifying' language is limiting." If there's a practical lesson here (aside from the capricious irrascibility of the PTO), it's to not rely on the preamble as limiting.
Posted by Patent Hawk at 12:56 AM | Prosecution
February 11, 2013
Semiconductor Energy Laboratory (SEL) owns 6,900,463, which claims a certain semiconductor. Yujiro Nagata is the second-named of two inventors. "During prosecution in 1991, Nagata assigned his rights to applications and patents related to the '463 patent to SEL's founder Dr. Shunpei Yamazaki, and subsequently signed a substitute Declaration and Assignment of those applications and patents. From 2002 to 2003, Nagata assisted SEL in a patent infringement suit against another party and was paid for his cooperation and services relating to that litigation."
Posted by Patent Hawk at 1:32 PM | Case Law
February 7, 2013
Arkema wants to compete against Honeywell in the automotive cooling system market. Honeywell had already tried to freeze them out with a patent infringment suit. So Arkema filed a declaratory judgment action to invalidate other relevant Honeywell patents. Judge William H. Yohn, Jr. in the Eastern District of Pennsylvania (Philadelphia) saw no cause for complaint. Facing undisputed facts, citing the SCOTUS MedImmune ruling, the CAFC (2012-1308) found otherwise. This appears another biased ruling by a district court judge for the American company (Honeywell) against a foreign interloper (France-based Akrema).
Posted by Patent Hawk at 12:17 AM | Declaratory Judgment
January 26, 2013
Ernie Ball v. Earvana presents episodic ineptness by a patent prosecutor, examiner, litigators and district court judge. 6,433,264 claims "a compensated nut for a stringed instruments," as a means for tuning for "fixed intonation portions [that] does not form a sinusoidal arc."
Posted by Patent Hawk at 12:43 AM | § 112
January 24, 2013
Rexnord Industries got an inter partes reexam on 6,523,680, which claims a radius conveyor belt system, after patent holder Habasit accused Rexnord of infringement. The examiner crucified the patent on the alter of prior art, but the PTO Board resurrected it, holding the patent valid. Rexnord appealed to the CAFC.
Posted by Patent Hawk at 12:26 PM | Prosecution