December 4, 2012
Rotary Equivalents
Deere sued Bush Hog for infringing
6,052,980, claiming a rotary cutter for tilling soil. Bush Hog got off
the hook with an ersatz claim construction leading to non-infringement by way of
denying the doctrine of equivalents. On appeal, the CAFC gave a tutorial on the
doctrine while rototilling the district court's summary judgment.
Continue reading "Rotary Equivalents"
Posted by Patent Hawk at 8:11 PM |
November 29, 2012
Eyewear
Revision Military sued Balboa for infringing its protective eyewear design patents. The district court wrongly applied its own circuit law, rather than Federal circuit law, in denying a preliminary injunction, as well as applying an out-of-date criteria for determining whether an injunction should be granted. On appeal, that decision was reversed. The CAFC panel (2011-1628) also reminded that it has discarded its own earlier law with regard to figuring out whether to grant an injunction; instead reverting back to case law of 1871. That the courts make laws willy-nilly highlights that Congress is ever-negligent in writing statute, as well as the fact that court-fabricated law, particularly with regard to patents, is capricious.
Posted by Patent Hawk at 1:23 PM | Design Patents
November 22, 2012
Sourcing Injustice
The caprice of the courts is one of two main reasons that the U.S. patent system is terminally broken. The other cause is of course the USPTO: a cesspool of incompetence, as evidenced by how few granted patents legally claim actual invention, and the multitude of applications that linger in examination for up to a decade or more. ePlus v. Lawson illustrates how unpredictable the courts are, as well as how unjust the CAFC is.
Continue reading "Sourcing Injustice"
Posted by Patent Hawk at 2:11 PM | § 112
November 18, 2012
Drill Bit
Transocean got patents on an oil drilling rig, particularly the drill bit. In the first appeal of its assertion against Maersk, the CAFC found that the patents were obvious in light of two references: "Horn and Lund teach every limitation of the asserted claims and provide a motivation to combine their respective teachings." But on the second appeal, the CAFC reversed itself, that the patents weren't obvious, because Transocean had commercial success.
Posted by Patent Hawk at 10:06 PM | Prior Art
November 14, 2012
Clamp Cramped
The core concept behind rule of law is that evidence is required to make a determination. Rule of law is turned into a sham when courts have the power to arbitrarily decide matters based upon their own bias. That sham is exactly what patent law (using the term "law" loosely) became with the 2007 Obzilla ruling by the Supreme Court (KSR; Obzilla a portmanteau for the Godzilla of obviousness). This week's episode involves a hand-waving incantation of obviousness by the ITC, affirmed by the CAFC...
Continue reading "Clamp Cramped"
Posted by Patent Hawk at 1:51 PM | Prior Art
November 13, 2012
Pig Heart
35 U.S.C §112 ¶1 requires that claimed invention be reduced to practice; that is, described in the patent specification such that one of skill in the relevant art area would be able to read the patent and implement the invention. Without this requirement, shambolic specifications would confer patents on rough ideas rather than practical inventions. Hence, evisceration of the written description requirement would make a mockery of the law, and the very purpose of the patent sanction. The courts don't see it that way.
Posted by Patent Hawk at 3:41 PM | § 112
November 6, 2012
Discretion
RE40,449 claims an unimaginative voting system. Voter Verified unsuccessfully asserted it against Premier Election Solutions and Diebold. The district court held claims 1-93 not infringed, and 94 invalidated. The CAFC affirmed (CAFC 2011-1553). Most notable was how crookedly the deal went down. Voter Verified cited 17 instances of district court abuse of discretion. These included letting the other side introduce disputed expert declarations, refusing to allow discovery, and disregarding the court's own case management procedures to issue summary judgment against Voter Verified. The CAFC would have none of it. "Voter Verified's contentions are wholly without merit." Code words for "we don't care." District court judges, with "considerable discretion," can do as they please.
Posted by Patent Hawk at 10:13 PM | Case Law
October 26, 2012
Cruel Hoax Reexamined
Under the current regime, a patent grant is always provisional. Most any patent can be invalidated by a competent party with deep pockets - deep enough to tear apart the slight edge of innovation that a patent claims; if not by fact, by confusion. With an erstwhile IBMer at its helm, the USPTO is open for business to help large corporations kill small-fry patents. Even if a patent determined valid by a court ruling can still be invalidated through reexamination at the PTO. Res judicata has a hollow ring.
Continue reading "Cruel Hoax Reexamined"
Posted by Patent Hawk at 4:59 PM | Case Law
October 23, 2012
Cruel Hoax
The concept behind rule of law
is that the outcome of disputes may
reasonably be expected to go a certain way. The upshot of such
consistency is to limit legal action between parties, as the outcome,
according to the law, is fairly clear. Conversely, patent law under the
current court regime bears no resemblance to rule of law. Instead,
conflicting precedents allow case-by-case bias to be exercised. A
corrupt incompetence is pervasive. The failure of the CAFC to perform
its basic function is highlighted in Flo Healthcare Solutions v.
USPTO (CAFC 2011-1476).
In sum, as a former USPTO commissioner put it, the patent system has
become "a cruel hoax."
Posted by Patent Hawk at 9:23 PM | Case Law
October 9, 2012
Small Beer
The CAFC went tribal in Beer
v. United States (2010-5012).
The CAFC convened en banc to give judges within its purview
cost-of-living pay increases, capped by long-winded rationalization.
The gall was too much for Judges Dyk and Bryson, who dissented,
observing that the ruling runs against both statute and Supreme Court
precedence. "Under the Will's bright-line vesting rule [by SCOTUS],
Congress was free to "abandon" a statutory formula and revoke a planned
cost-of-living adjustment ("COLA"), as long as the revoking legislation
was enacted into law before the COLA 'took effect.'" This same
disregard for rule of law is regularly visited upon patent cases, which
are routinely decided by bias.
Posted by Patent Hawk at 10:02 PM | Case Law
September 30, 2012
Out of Whack
The USPTO's curmudgeonly incompetence was on display at the CAFC last week. Abbott Diabetes Care had its patents put under reexamination by a third party. The PTO denied the patent it had once granted; a failure of initial examination. In the reexam, the construction of "electrochemical sensor" was disputed. The CAFC found that "the Board's construction of 'electrochemical sensor' is unreasonable and inconsistent with the language of the claims and the specification." The patent appeals board also reversed itself before the CAFC on having agreed with the examiner on rejecting new claims based upon "official notice," which is shorthand for "no evidence." (CAFC 2011-1516).
Posted by Patent Hawk at 10:22 AM | Prosecution
September 23, 2012
Litter Box
Outside The Box Innovations launched a DJ in North Georgia. A biased judge gave them much of what they asked for: invalidity, non-infringement, even inequitable conduct. A confused CAFC panel (CAFC 09-1171) muddled through reversing much of what the district court had ruled. The queen of dissent, Judge Newman, once again adroitly pointed out how idiotically incompetent her colleagues were, in ignoring or mangling statute, case law, and not-so-common sense. One gem from Judge Newman to illustrate: "It is highly unusual to construe routine patent claims so as to exclude the embodiments in the drawings, when there is no prosecution disclaimer. The purpose of patent drawings is to focus the subject matter on which a patent is sought." The nonsense never ends with the largely insensible CAFC.
Posted by Patent Hawk at 9:59 PM | Case Law
September 21, 2012
Reasonable?
Obzilla reaps another victim. Peter Droge and his cohorts thought they invented a DNA recombination technique. But a combination of a prior art patent and an article by two of the three applicants made the technique obvious, the patent board ruled, to which a CAFC panel agreed (CAFC 2011-1600). There was no argument over the evidence prima facie, only about what was reasonable. The inventors argued that similar work in prokaryotic cells "would not lead a skilled artisan to expect" the same result in eukaryotic cells. This argument was solidly backed by the prior art prokaryote workers teaching away: the relevant protein co-factors are present in prokaryotic cells, but not eukaryotic cells. But the CAFC is beyond reason in applying hindsight, and in backing the PTO if "a reasonable mind might accept as adequate to support a conclusion." In other words, facts just don't matter that much. To the CAFC and the USPTO nowadays, science is merely a matter of opinion. "'Obviousness does not require absolute predictability of success... all that is required is a reasonable expectation of success. In re Kubin, 561 F.3d 1351, 1360 (Fed. Cir. 2009) (citing In re O'Farrell, 853 F.2d 894, 903-04 (Fed. Cir. 1988))." Case-by-case subjectivity is now called rule of law.
Posted by Patent Hawk at 10:02 PM | Prior Art
September 18, 2012
Double Standard
37 CFR 1.56 requires a "duty to disclose information material to patentability," but the CAFC won't uphold it. "[T]his court has now made clear that "[t]o prevail on a claim of inequitable conduct, the accused infringer must prove that the patentee acted with the specific intent to deceive the PTO." Therasense, 649 F.3d at 1290. Moreover, '[a] finding that the misrepresentation or omission amounts to gross negligence or negligence under a 'should have known' standard does not satisfy this intent requirement.'" 1st Media v. Electronic Arts (CAFC 2010-1435). Accountability is certainly not what the CAFC is about.
Posted by Patent Hawk at 4:39 PM | Inequitable Conduct
September 5, 2012
Inducing Insanity
Last week, in Akamai
Technologies v.
Limelight Networks (CAFC 2009-1372),
a CAFC en banc 6-5 divided court fabricated
its own law of induced infringement; which got ignored a few days later, as the court again capriciously followed its bias of the moment.
Continue reading "Inducing Insanity"
Posted by Patent Hawk at 12:48 AM | Infringement
September 2, 2012
Another Club
"Patents have become another club to wield in court to pound your foes into submission," opines San Jose Mercury News columnist Chris O'Brien. It would have been an thoughtful statement in 1800, but it's a stale sentiment now. Yet O'Brien must pound the corporate tom-tom: that patents in the hands of inventors are "a drain" on the economy, "a tax." No such outcry met Apple's lopsided patent thrashing of Samsung, where a jury went tribal against a foreign conglomerate. "The Apple lawyers were better at presenting their case," said a juror in the Apple-Samsung matter. "I had an open mind but most of the time was on the Apple side." Denial of bias is exceedingly common, though a tad atypical in being so openly admitted in a single sentence.
Posted by Patent Hawk at 7:48 PM | The Patent System
August 26, 2012
Double Patenting
The U.S. courts find favor with an American company over a foreign one again; the CAFC concocting corrupt case law to offend common sense. Teva (Israeli) asserted that Eli Lilly (American) got an extension for its chemotherapy patents by double patenting. The difference between the original patent and its extension would have been obvious. Ignoring the spirit and letter of patent law, expressly forbidding patent extensions, the CAFC declares: "The focus of the obviousness-type double patenting doctrine thus rests on preventing a patentee from claiming an obvious variant of what it has previously claimed, not what it has previously disclosed." (CAFC 2011-1561).
Posted by Patent Hawk at 9:05 PM | Case Law
August 23, 2012
Recapture
Xicor got a patent (5,977,585) for an incremental improvement relating to EEPROMs (static computer memory chips). Xicor sought a reissue, to recapture subject matter previously surrendered during prosecution, because the original claims were too broad. The USPTO, with negligent incompetence, allowed the recapture (RE38,370). Greenliant Systems and Silicon Storage Technology had to pursue a DJ to get rid of the patent. The CAFC, always happy to put a patent in the public domain, affirmed (CAFC 2011-1514).
Posted by Patent Hawk at 12:42 PM | Prosecution
August 16, 2012
Isolated
In the long-running Myriad
case, a split (2-1) CAFC panel (2010-1406)
opined that a method for isolating a DNA sequence was not patentable,
but that isolated DNA was. A confused Judge Bryson dissented
with the observation that "a human gene is not an invention." DNA
sequences are not genes. Genes are a conceptual mapping of various DNA
strands to a presumed trait; something approaching mental fiction,
considering how genetics actually works. So, while confused on the
details, Bryson was right in the gist that isolated DNA is not an
invention. The majority was positively bonkers that "the claimed
molecules represents a nonnaturally occurring composition of matter"
that deserved patent protection. Isolated DNA is an organic derivative,
unchanged from its original form in chemical sequence (otherwise, the
isolation would entirely miss the point), not a concocted chemical
composition that even remotely represents invention, especially
considering any and every method to obtain the compound is not novel.
That withstanding, wherever one may want to draw the line on the
originality of chemical extraction and isolation as a patentable
chemical composition, the large point is that bits of the human genome
are, for the moment, patentable subject matter. The public policy implications with
regard to affordable advances in health research could not be more
profound. The public discourse of this issue through the courts is
still just getting started.
Posted by Patent Hawk at 7:53 PM | § 101
August 15, 2012
Froth
The waste that typifies the
U.S. patent system continues unabated. As this blog regularly
documents, observations by
parties entrenched in the processes reveal a badly broken system,
chockablock
with incompetence at the USPTO and corruption in the courts. Today's
insight comes courtesy of CAFC Judge
Dyk. In Meyer v. Bodum, over milk frothing patents, Meyer
managed to obtain the favoritism of the district court judge (a common occurrence, as many Federal district court judges are logically
challenged, to put it mildly, and rule by bias, as emotions readily sway the weak-minded), thus prohibiting Bodum
from espousing its invalidity defense. A
$50,000 infringement payout was capriciously topped off by the judge
with enhanced damages and attorneys fees. On to appeal, where a very
different froth was featured.
Posted by Patent Hawk at 2:27 PM | Case Law
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