May 6, 2009
Doubled Over
Dr.
Frits Jacobus Fallaux got stubborn and stayed that way. The fifth in a family
series ran into a double patenting rejection. The examiner applied the normal
one-way test for obviousness-type, i.e., non-statutory double patenting on some
claims. Rather than file a terminal disclaimer to overcome, which would have
limited patent term, Fallaux countered that the more rarely applied two-way test
was appropriate.
Continue reading "Doubled Over"
Posted by Patent Hawk at 11:42 PM | Prosecution | Comments (4)
May 5, 2009
This Round
Rivals
Monsanto and DuPont have battled over patents through the years. In the late
1990s, Monsanto went after DuPont for breaching a licensing agreement on
pest-resistant corn, resulting in a revised licensing agreement. In 2002, DuPont
licensed Monsanto's Roundup Ready seed technology, which allows crops to be
sprayed with herbicide Roundup and survive. DuPont came up with its own Optimum
GAT herbicide resistant trait for soybeans and corn, but found out in field
tests it wasn't quite up to snuff. So, DuPont stacked the Roundup Ready trait on
top of the Optimum GAT trait, and found it plow-worthy. Monsanto found it
complaint worthy.
Posted by Patent Hawk at 7:05 PM | Litigation | Comments (0)
May 4, 2009
Feeling Taxed
The
same companies that crusade to evade paying any "patent tax" to inventors are
now crusading to evade corporate income tax. On Monday, President Obama outlined
proposals for cracking down on overseas tax havens, and eliminating tax breaks
for U.S. corporations that do business overseas. Computer tech companies soiled
their diapers in protest. "This is a $60 billion hit on American employers that
their foreign competitors won't feel," wailed the Silicon Valley Leadership
Group, representing such esteemed companies as HP, Cisco, and Oracle. Duh.
Continue reading "Feeling Taxed"
Posted by Patent Hawk at 9:14 PM | Patents In Business | Comments (9)
Practicing
The objection absurd, but patents as tradable commodities has raised some
ruckus, even as the loudest howler monkeys are disingenuously self-serving. The
flip side of that same fake coin is that patent
holders, including inventors, should be required to commercialize their
invention. In other words, patents and products should be synonymous. Another
boil of similar ilk is that reinvention should obviate infringement. Herein,
dispelling such nonsensical notions.
Posted by Patent Hawk at 5:14 PM | The Patent System | Comments (14)
May 3, 2009
All Hat, No Cattle
200
years ago this week, Ms. Mary Dixon Kies became the first American woman granted
a patent. Ms. Kies invented a way to weave silk with straw. She aspired to apply
her invention in the booming hat industry. But her patent never made her any
money.
Posted by Patent Hawk at 11:50 PM | Patents In Business | Comments (0)
Shameless
Former
Intel honcho Andy Grove, now 72, but still sucking corporate teat, had a very
public senior moment over patents: "Patents themselves have become products.
They're instruments of investment traded on a separate market, often by
speculators motivated by the highest financial return on their investment." "You
should not grant a monopoly to people who don't produce."
Posted by Patent Hawk at 11:20 PM | Patents In Business | Comments (13)
May 2, 2009
Reasonable Royalty
35 U.S.C. §284
awards damages "in no event less than a reasonable royalty for the
use made of the invention by the infringer." Reasonable royalty is thus the
lowest award possible for patent infringement, and in no way bounds what
infringement should cost. §284 also allows award of enhanced damages, regardless
of willfulness: "[T]he court may increase the damages up to three times the
amount found or assessed." Herein, a gander at the damages floor: reasonable
royalty.
Continue reading "Reasonable Royalty"
Posted by Patent Hawk at 3:27 PM | Damages | Comments (2)
May 1, 2009
Cents-less
Every
Penny Counts, founded by spare change king Dr. Bertam Burke, sued debit/credit
card vendors for its patented "method for donating 'excess cash' to charities
and savings accounts." "He describes his invention as a way of solving this
'problem of loose change.'" Based upon claim construction of "excess cash," the
district court summarily ruled non-infringement. On appeal, no change, but the
court's two cents about considering the accused product in claim construction.
Posted by Patent Hawk at 10:43 AM | Claim Construction | Comments (0)
April 30, 2009
Lunatic
David
Simon, Chief Patent Counsel at Intel, in testimony today before the House about
pending patent legislation, comes off as a raving sociopath. Let's begin with
his corporate arrogance, a pandemic disease among his
Coalition brethren. "As one of
America's leading innovators, Intel recognizes the critical importance of a
strong and effective patent system that protects actual inventions and thereby
provides an essential incentive for inventors... Too often, the patent law... is
being used to extract unjustified payments from true innovators..." And who
might the "true innovators" be?
Posted by Patent Hawk at 9:24 PM | The Patent System | Comments (19)
Troubling
"A
strong and predictable patent system fosters the collaborative development and
funding required to transform basic research into commercially viable
technologies and stable, high-paying jobs. It is troubling to many small
technology companies that, at a time of such grave economic uncertainty,
Congress would seek to fundamentally alter the economic structure of our
nation's patent system." - Bernard J. Cassidy of Tessera, telling the House
Judiciary Committee what boneheads they are with their crappy patent bill, but
in a politic way, of course.
Posted by Patent Hawk at 9:53 AM | The Patent System | Comments (3)
On the Make
Apple
is trend setting again: following the model of Qualcomm, and more recently, AMD,
into design house and patent provocateur, leaving the nasty risk of
manufacturing to cost-conscious Asians. Apple has been hiring semiconductor
engineers for many moons, building a cadre for designing next-generation chips.
No fabrication intended. The only hard-shell cover for innovation is patent
protection.
Continue reading "On the Make"
Posted by Patent Hawk at 8:59 AM | Patents In Business | Comments (5)
April 29, 2009
Corrected Vision
Revolution
Eyewear myopically started a patent fight with competitors, including Contour
Optik. Revolution's assertion went blind, but Contour saw 20/20 money with
RE37,545. On appeal, "the only matter left in this lawsuit is Contour's '545
patent infringement action."
Continue reading "Corrected Vision"
Posted by Patent Hawk at 8:54 PM | § 112 | Comments (0)
Con Man
Sen.
Patrick Leahy (D-Vt), Senate Judiciary Chairman, attempts to sew a silk purse
from a sow's ear with proposed patent legislation, disingenuously spinning in
Business Week that it gives "ingenuity freer rein." "It has been more than
50 years since Congress significantly updated the patent system." In truth,
Leahy
wants to go backwards, before the 1946 Patent Act, when apportionment of
damages was so wrecking the patent system that the Patent Commissioner at the
time called it "one of the sorest spots in the enforcement of the law in the
United States."
Posted by Patent Hawk at 7:53 PM | The Patent System | Comments (10)
April 28, 2009
In the Wind
The
Open Invention Network,
Linux advocacy group, is publicly tilting at the big windmill: looking for prior
art to invalidate the three file management patents that Microsoft asserted
against TomTom. Keith Bergelt, CEO: "The patent vetting activity offered by the
Linux Defenders portal offers a unique opportunity to bring to bear the
collective knowledge, passion and ingenuity of the Linux community to better
explore the validity of the patents..." If the guy was looking for something more than window dressing for the penguin geeks, he'd give
amateur hour short shrift and call Patent
Hawk.
Posted by Patent Hawk at 9:21 PM | Prior Art | Comments (2)
April 27, 2009
Seeking Reversal
"A
patent by its very nature is anticompetitive." So
the CAFC
remarked last October in allowing reverse payment by Bayer to generic drug
makers, so that Bayer could keep its patented monopoly over antibacterial Cipro®
for a bit longer. Stanford law professor
Mark Lemley has
penned
a petition to the Supreme Court, to lay the burden of overturning reverse
payments before the august body, this nation's numero uno woolly bully. Lemley
thinks the CAFC ruling "contains fundamental errors of economic reasoning and
would shield many anti-competitive agreements from the reach of antitrust law,
causing great harm to competition."
Continue reading "Seeking Reversal"
Posted by Patent Hawk at 10:36 PM | Patents In Business | Comments (0)
Squall Calmed
Skipping
church to tithe in another way, on Sunday, Qualcomm agreed to pay Broadcom $891
million to settle their patent dispute. $200 million passes hands next quarter.
Its kitty bulging, the
Wall Street
Journal thinks Broadcom "primed to start executing on its wireless
strategy."
Posted by Patent Hawk at 12:37 PM | Patents In Business | Comments (0)
Smoked
Humans
have grossly overfished the oceans, all the while treating the seas as one huge
toilet. Tuna, for example, is so polluted with mercury that even the U.S.
government warns against its frequent consumption. But let that not affect claim
construction in a patent case. As the appeals court put it: "The tuna fish
enjoyed by U.S. diners is often caught in and shipped from distant locations.
Given the relatively long travel time required to deliver tuna to U.S.
consumers, importers seek out ways of preserving the fresh look and taste of
their fish. This case involves a patent dispute that centers on a method of
curing tuna fish meat using cooled smoke."
Posted by Patent Hawk at 12:16 PM | Claim Construction | Comments (0)
April 25, 2009
China Ascendant
In
the 18th century, America was the world's leading intellectual property thief:
appropriating copyrighted works and infringing patents as part of its economic
development. That same disapprobation has been applied to China in the past
decade, as it was to Japan in the 1950s. China only started allowing
intellectual property in 1985. Today, it leads the world in patent applications:
over 800,000 in 2008.
Continue reading "China Ascendant"
Posted by Patent Hawk at 8:14 PM | International | Comments (6)
April 24, 2009
Toyed
Mind
Enterprises successfully sued Vast Resources for its patent claiming a
lubricious glass rod with a bulbous tip, the patent titled "Sex aid". On
appeal, the defendant was able to convince the CAFC that there was nothing new
to getting nude with attitude, even if the gist had a probing assist. The legal
gist: mere substitution of materials is obvious.
Posted by Patent Hawk at 4:38 PM | Prior Art | Comments (9)
April 23, 2009
Sagging
For
the first time, the USPTO "issued more patents to foreigners than to Americans,"
reports
Business Week. "[T]he slippage comes amid recent reports that show the U.S.
losing its edge when it comes to innovation." South Korea, China, and Japan are
becoming more productive inventors. "All told, American inventors received
92,000 patents in 2008, down 1.8% from the year before and a rise of just 1.4%
over the past decade. Meantime, patients issued to foreigners rose 4.5%, to
93,244, in 2008 and 28.6% since 1998."
Posted by Patent Hawk at 1:01 PM | International | Comments (7)
April 22, 2009
Buy
According to a recent poll of small and mid-sized computer technology
companies, 64% were interested in buying patents this year, up from a trough of
32% last year. Of those responding with interest in acquisition, 39% reported as
planning to buy, with 25% considering the possibility. The first hurdle is
quality assessment and valuation.
Posted by Patent Hawk at 9:06 PM | Patents In Business | Comments (8)
Advanced
Qualcomm announced that it is in "advanced" talks to settle its long-running patent war with Broadcom. Both sides have taken hits and scored wins, but Broadcom has chalked up a better score to date. Qualcomm postponed it Q2 earnings announcement until next Monday. Sounds like it needs some good news to cover some bad news.
Posted by Patent Hawk at 4:33 PM | Patents In Business | Comments (0)
April 21, 2009
Peeing on the Pool
Four
companies pooled patents covering the industry standard for music and data CDs.
The standard, set in the early 1990s, was codified in the "Orange Book." The
Orange Book standard created compatibility for CD readers and writers, thus
creating a single market. Consumers could buy CDs, knowing that they would work
with any player, because of the Orange Book standard. If you want to manufacture
a CD writer, you have to first pop to the one-stop shop for a patent pool
license.
Continue reading "Peeing on the Pool"
Posted by Patent Hawk at 10:41 PM | Antitrust | Comments (1)
April 17, 2009
27
Gary
Odom was a software developer for 20 years, and had some patentable ideas
beginning in the
late 1980s, but lacked the resources to patent them. When he got a
chance to work in the patent field, he jumped on it. Months after going to work
for a patent boutique in Portland Oregon, he started filing, pro se, patents of
his own inventions, starting with modular software construction, then web
personalization. Looks like his third patent family might worth something. Odom
invented active tool groups, which Microsoft popularized with its Office 2007
Ribbon.
In an ongoing licensing campaign, having previously filed suit against Microsoft
and Autodesk, today Odom
filed against 28 other infringers.
Posted by Patent Hawk at 6:09 PM | Litigation | Comments (43)
April 16, 2009
History Lesson
"Five
years ago, a group of 15 corporate giants, which ironically had built their
success on patents but now rely primarily on their market power and acquisitions
for growth, wanted to weaken the U.S. Patent System and the protection it
offered the new generation of innovators. These companies are trying to retain
their position by pulling the economic ladder up behind themselves, and by
forcing guaranteed access - on the cheap - to technology developed by others." -
Dan Leckrone of the TPL Group, in the
San Francisco Chronicle.
Posted by Patent Hawk at 11:20 PM | The Patent System | Comments (1)
WaMu
Washington
Mutual (WaMu) is a poster child of the mortgage-lending irrational exuberance
that led to the current economic depression. A run on the bank last September
led to its wrenching government-mandated rescue by JP Morgan Chase. WaMu was the
biggest bank failure in U.S. history, and was sold in a hastily arranged wamu-bam-thank-you-man
auction. WaMu is now suing the FDIC, for selling it off for only $1.9 billion,
claiming it had no such right. Meanwhile, JP Morgan has filed its own suit,
seeking title to disputed WaMu assets, including its tiny portfolio of eight
patents granted and pending, as well as over 300 domestic and international
trademarks, and 1,300 Web domain names. The Delaware district court judge
handling WaMu's bankruptcy case has given WaMu permission to hire a consulting
firm to valuate the bank's IP assets.
Posted by Patent Hawk at 10:11 PM | Patents In Business | Comments (2)
Potato Row to be Hoed in Seattle
In
the case of Pace International LLC v. Industrial Ventilation, Inc.,
currently planted in Washington State, Judge Lasnik recently denied Defendants'
motion to transfer the case to Idaho, despite all the spuds
being based there.
Continue reading "Potato Row to be Hoed in Seattle"
Posted by Mark Walters at 3:40 PM | Litigation | Comments (1)
April 14, 2009
Star Crossed
In
2001, smokeless tobacco maker Star Scientific sued R.J. Reynolds over patents
for lower carcinogens while curing tobacco. Maryland district court Judge Marvin
Garbis found Star
guilty of
inequitable conduct. In a landmark ruling, the
CAFC overturned.
Then, in hopes of further delay, RJR tried to put the patents out to pasture on
reexam. But
trial is set for May 18, while the reexam smolders on. The most recent curveball
from RJR: a motion to deny Star a chance to present its damages theory to the
jury.
Continue reading "Star Crossed"
Posted by Patent Hawk at 11:42 PM | Litigation | Comments (0)
Low Blow to MoFo
Last
Wednesday, former Morrison & Foerster client
Ecast sued MoFo for no mojo in Ecast's to-and-fro with Arachnid and Rowe, who
had sued Ecast for jukebox patent infringement. Ecast, claiming legal
malpractice, wants its money back: a "staggering" $4.8 million in attorneys fees
for what it considers a hopelessly botched defense.
Continue reading "Low Blow to MoFo"
Posted by Patent Hawk at 12:30 AM | Litigation | Comments (0)
April 13, 2009
Hunkering Down
The
USPTO is battening the hatches for the turbulent waves of the current economic
storm. Herein, today's "USPTO Weekly Extra - Budget Update: Supplemental on Training
and Other Issues."
Continue reading "Hunkering Down"
Posted by Patent Hawk at 12:54 PM | The Patent Office | Comments (13)
April 12, 2009
The Garden of Invention
The
Garden of Invention by Jane S. Smith is a captivating biography of Luther
Burbank, esteemed botanist. But more than a biography, as it chronicles the
science and business of plants during Burbank's lifetime. Admittedly, the book's
appeal relies upon one's interest in the topic. For me, the most fascinating
chapter was the last, that plants were not patentable in Burbank's time. That
last chapter, "The Garden as Intellectual Property," narrates the bramble that
led to the patenting of plants, beginning with the Plant Patent Act of 1930.
Well informed, expertly written and illustrated, for one looking to flower with
knowledge about horticulture, The Garden of Invention is a lovely bloom.
Posted by Patent Hawk at 12:20 PM | Patents In Business | Comments (0)
Double Patenting Dilemma
Takeda
Pharmaceutical filed a patent application for cephem
antibiotic compounds, and the process for making those compounds, in Japan, in
December 1974. Takeda in 1975 filed corresponding applications in the UK and US.
The US family started with
4,098,888 &
4,298,606.
In 1990, Takeda filed for what became
5,583,216, which covered a process for making the compounds
claimed in '888 and '606. Anonymous requests for reexamination of '216 led to a
double patenting dilemma, which the appeals court resolved badly, not thinking
through the implications of its ruling.
Continue reading "Double Patenting Dilemma"
Posted by Patent Hawk at 9:32 AM | Prosecution | Comments (0)
April 11, 2009
Burning the Ships
Marshall
Phelps, Microsoft VP for IP policy and strategy, writes a first-person account
of Microsoft coming to Jesus about patents in the self-serving book
Burning the Ships. It's a corporate mea culpa sleight of hand, a
pseudo-folksy self-absorbed Business Week as People magazine for business people
book. Americans love to read fiction posing as fact about naughty boys coming
clean and making good. What Phelps effects is classic propaganda, by admitting
past mistakes and claiming redemption, though neither accurately so, and never
explaining the meaning of the transformation when Microsoft retains its same old
patterns of behavior. In other words, what Phelps never does is cut the crap.
Continue reading "Burning the Ships"
Posted by Patent Hawk at 1:36 AM | Patents In Business | Comments (1)
April 10, 2009
Trunked
Mark
Felix sued car maker Honda for infringing
6,155,625, claiming a pickup truck with a storage compartment, like a car
trunk. Felix had no horsepower for broad claim construction, and so died on the
road: the district court granted summary judgment of noninfringement. In appeal
affirmation, a reminder of the nuance that prosecution estoppel goes to subject
matter, not a claim per se.
Posted by Patent Hawk at 7:57 PM | Claim Construction | Comments (0)
Gimped
Acting
Director John Doll sent this memo around the shop: "As
you know, the USPTO has made a number of difficult budgetary decisions this
fiscal year. Among these challenging decisions is that to limit - as detailed
in the
attached memorandum - even revenue-generating overtime. All Patents
production, revenue-generating overtime will be limited, effective Sunday, April
12, 2009."
Posted by Patent Hawk at 2:33 PM | The Patent Office | Comments (28)
Tagged
Singapore-based
Uniloc sued Microsoft in 2003 over
5,490,216, which claims a system for software product activation, which
Microsoft uses in its Windows operating systems (XP, Windows Server 2003) and
Office (XP version). '216 has a 1992 priority date. Wednesday, a Rhode Island jury found the patent valid, and
Microsoft willfully infringing. The tab: $388 million, with $194 million
attributable to foreign activations.
Posted by Patent Hawk at 12:22 AM | Litigation | Comments (2)
April 9, 2009
International Feel
Taking
a wide-angle lens to patent enforcement,
International
Patent Litigation is a knowing compendium of litigation practices around the
world, including numerous European countries, Japan, and the United States.
Alas, China is not covered. Editor David Wilson opens the book on "developing a
strategy and managing international patent litigation." From there and onwards,
a wealth of information.
Continue reading "International Feel"
Posted by Patent Hawk at 10:33 AM | International | Comments (16)
April 8, 2009
Toll Taken
"In
2000, TransCore sued a competitor, Mark IV Industries, for infringement of
several TransCore patents. That action was resolved by a settlement agreement,
in which Mark IV agreed to pay $4.5M in exchange for an unconditional covenant
not to sue and a release of all existing claims." Then TransCore sued again.
Posted by Patent Hawk at 3:39 PM | Case Law | Comments (2)
April 7, 2009
From R&D; to Patentee
While big IT whines
to Congress about patents being unfair to them, in the teeth of a
deep recession they are not remiss to keep fueling the fire of genius. From the
Wall Street
Journal:
Wary of emerging from the recession with obsolete products, big U.S. companies spent nearly as much on research and development in the dismal last quarter of 2008 as they did a year earlier, even as their revenue fell 7.7%, according to a Wall Street Journal analysis.
Continue reading "From R&D; to Patentee"
Posted by Patent Hawk at 10:18 PM | Patents In Business | Comments (2)
April 6, 2009
Fair
"Patent
laws shouldn't pick winners and losers. Current law is not fair to IT, so
something has to change... The current law is too easily abused to the
detriment of high-tech. That has to change." -
Silicon
Valley MercuryNews. The patent laws must be slanted to favor corporations
over inventors, just as financial shenanigans are socialized for the citizenry
to pay, while banks too big to fail are subsidized, with the resulting profits
privatized. Serve your country, fellow plebeians, so it can serve the rich.
Posted by Patent Hawk at 11:48 PM | The Patent System | Comments (13)
Foto Finish
FotoMedia
is on a tear over web-based photo sharing. Four suits have been filed, two in
mid-2007and two the middle of last year, totaling 66 defendants.
6,018,774;
6,542,936; and
6,871,231 asserted. Defendants are settling like flies on stink. Well over a
dirty dozen have settled, the latest being Kaboose, Bubbleshare, and BabyZone.
Makes you wonder if FotoMedia is giving a discount to companies with goofy
names. All settlements hush-hush and on the Q.T., naturally.
Posted by Patent Hawk at 10:53 PM | Litigation | Comments (0)
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