March 10, 2015

Lost Credibility

In Warsaw Orthopedic v. Nuvasive, Southern California district court Judge Cathy Ann Bencivengo demonstrated her incompetence in patent law by granting damages inappropriately. A CAFC panel (CAFC 2013-1576, -1577) reminded: "a patentee is entitled to either a reasonable royalty or lost profits-- not both. At oral argument, counsel for Warsaw admitted it was not entitled to both a reasonable royalty and lost profits on a single sale, nor was it seeking both."

Posted by Patent Hawk at 11:36 PM | Damages

February 18, 2015


Helferich licensed relevant portions of its patent portfolio to mobile handset manufacturers. Then it turned around and sued content providers that feed users through their handsets. In a whitewash ruling, Judge John W. Darrah of Illinois district court found non-infringement via exhaustion. A CAFC panel (2014-1196) reversed that sloppiness, noting that the lower court "did not focus on the particulars of any of Helferich's claims." "We see no sound basis for expanding exhaustion doctrine to hold that authorized sales to persons practicing the handset claims exhaust the patentee's rights to enforce the asserted content claims against different persons."

Posted by Patent Hawk at 2:39 AM | Exhaustion

February 2, 2015

Clear Error

The CAFC has long internally fretted about its self-indulgence of de novo review in claim construction, which is a legal interpretation of technical facts. In Teva v. Sandoz, the Supreme Court settled that score.

When reviewing a district court's resolution of subsidiary factual matters made in the course of its construction of a patent claim, the Federal Circuit must apply a "clear error," not a de novo, standard of review.

Posted by Patent Hawk at 4:12 AM | Claim Construction

January 17, 2015


In Bard v. Gore (CAFC 2014-1114), the CAFC abandons all pretense of equitable rule of law by ignoring its own precedents and exercising biased caprice. In dissent, Judge Newman sharply points this out.

This case returns to the Federal Circuit on appeal of a district court decision on remand from an en banc decision of this court. The issue is willful infringement and its consequences, which this en banc court remanded for de novo determination as a matter of law, vacating the judgment entered on the jury verdict.
The panel majority, while mentioning that willful infringement is now a matter of law, does not undertake the required de novo review... In all events, the question as it relates to willfulness is whether the defense of invalidity could reasonably be raised, not whether it eventually succeeded... On the entirety of the premises and applying the correct legal standards, the judgment of willful infringement cannot stand.
Extensive precedent supports judicial refusal to enhance damages when the case is close and the equities counsel moderation, not punishment... Thus, regardless of whether willfulness was a supportable ruling, the doubling of the damages award is untenable.

Posted by Patent Hawk at 11:33 PM | Infringement

December 26, 2014

Not Withdrawn

Prosecutorial nitwittery went unchecked by the district court, but a CAFC panel checked it by siding with the USPTO in refusing to withdraw a terminal disclaimer. 6,194,187 issued. Its owner, the Japanese Foundation for Cancer Research, then filed a terminal disclaimer, which the PTO accepted. The patent office later refused to withdraw the disclaimer, and so was sued for it. Defending the PTO via deference, the CAFC found "that the PTO did not act arbitrarily, act capriciously, or abuse its discretion in declining to use any inherent authority that it might have in withdrawing the terminal disclaimer."

Posted by Patent Hawk at 1:41 PM | Prosecution


The death watch for software under §101 continues. In Content Extraction and Transmission v. Wells Fargo et al (CAFC 2013-1588), patents that claim scanning a document and recognizing certain keywords are damned as an "abstract idea," using oxymoronic pseudo-logic that "the concept of data collection, recognition, and storage is undisputedly well-known." Asserting software patents against the cossetted financial sector is itself the kiss of death. The corruption of the patent system via court fiat is largely complete, the grim reapers in black sitting on benches in dead-end jobs having triumphed as the lords of plutocratic benevolence, giving away the meager inventions of the meek to corporate behemoths.

Posted by Patent Hawk at 1:27 PM | § 101

December 10, 2014

Horrid Host

DDR Holdings v. illustrates the incompetence and caprice of Federal courts in handling patent cases. Asserted claims in 6,993,572 & 7,818,399 were found valid and infringed by a jury. District court Judge Rodney Gilstrap in East Texas rebuked motions as a matter of law (JMOL) over invalidity and infringement. On appeal, '572 was found blatently anticipated by the prior art. An extensive CAFC sidebar on §101 shows how unsettled patentability is.

Continue reading "Horrid Host"

Posted by Patent Hawk at 2:43 PM | § 101

November 23, 2014

Bad Injector

"Antares is a developer of automatic injection devices used to self-administer pharmaceuticals." It got a patent (7,776,015) that it wanted broadened under reissue (35 U.S.C. § 251), as it had not bothered to file a continuation. Owing to prosecutorial and patent office incompetence, the reissue claims went to a different invention. Asserted in litigation, the CAFC caught the reissue error (district court Judge Sue L. Robinson did not) and pitched the patent (CAFC 2014-1648).

Posted by Patent Hawk at 8:20 PM | Reissue


Verstata asserted software patents against rival Callidus, which counterclaimed with its own patents. Callidus filed limited reexamination proceedings against the Verstata patents, and asked the court for a stay pending reexam. The district court denied the stay. The CAFC reversed that.

Continue reading "Stay"

Posted by Patent Hawk at 8:07 PM | Case Law

November 17, 2014

Not So Wild Tangent

Ultramercial sued Hulu and WildTangent for infringing 7,346,545, which claims receiving payment for a consumer viewing Internet advertising. The district found the patent invalid under § 101. The CAFC balked at that, but reversed itself after the Supreme Court Alice ruling (CAFC 2010-1544). "We do not purport to state that all claims in all software-based patents will necessarily be directed to an abstract idea," the court stated. But since Alice, not one has yet to pass muster.

Posted by Patent Hawk at 4:56 AM | § 101

November 10, 2014

Wrong Address

Texas gets a lot of patent cases, but the judges there are as incompetent as in the rest of the country. In Azure Networks v. CSR, East Texas Judge Michael H. Schneider got bamboozled into an ersatz claim construction for "MAC address" during an assertion of 7,756,129, claiming a personal network device. Based upon two brief descriptive passages, the district court decided that the patentee had acted as its own lexicographer. On appeal (CAFC 2013-1459), a CAFC panel pointed out how stupid Judge Schneider was: "The statements in the specification relied upon by the district court neither define 'MAC address' nor exclude universal addresses. Nothing in the specification or the prosecution history shows an attempt to distinguish over prior art."

Posted by Patent Hawk at 9:10 PM | Claim Construction

October 22, 2014

Obvious After the Fact

A petition for rehearing en banc at the CAFC for a drug obviousness case (Bristol-Myers Squibb v. Teva - CAFC 2013-1306) was denied. What was remarkable was the inane confusion at the court. Judges Dyk and Wallach stated that "post-invention evidence" is rightly not allowed in considering obviousness. As Judge Newman observed: "Precedent is clear that the information and comparative data presented as evidence of nonobviousness need not have existed before the patent application was filed," noting the secondary consideration of commercial success, and citing several instances where evidence of unexpected results found later were considered relevant to obviousness. The CAFC continues to be an inexcusably pathetic excuse for a patent court: creating self-contradictory precedent and thereby failing to provide guidelines that the patent office and patent community may reasonably rely upon.

Posted by Patent Hawk at 1:09 AM | Prior Art

October 17, 2014

No Means

Robert Bosch sued Snap-On for infringing 6,782,313, which claims a motor vehicle diagnostic tester. Alas, the tester had no specification support for a testing device. The courts found insufficiency under 35 U.S.C. § 112, ¶ 6, even though there was no explicit "means for" element.  Another stupid patent assertion with another stupid patent bites dust. (CAFC 2014-1040). But then, Robert Bosch is a German company, and their nickel-slick lawyers got paid regardless.

Posted by Patent Hawk at 1:31 AM | § 112

October 12, 2014

Bad Medium

EMD Millipore sued Allpure over its device to put "a medium" into and get out of a jar (6,032,543). It lost in summary judgment, for noninfringement, owing to prosecution estoppel. It's easy to tell how lame the assertion was when the claim construction argument went to the meaning of the term "removed." Hamilton, Brook, Smith & Reynolds represented the plaintiff. One can only wonder whether they saw it coming, as they should have. (CAFC 2014-1140)

Posted by Patent Hawk at 4:59 PM | Infringement

September 10, 2014

Unobtrusive Manner

In Interval Licensing v. AOL, the CAFC embraced the newly invigorated standard of indefiniteness inaugurated by the Supreme Court in Nautilus v. Biosig. In an unobtrusive manner, the appeals court affirmed invalidity under 35 U.S.C. § 112(b), based upon claiming "an unobtrusive manner."

Continue reading "Unobtrusive Manner"

Posted by Patent Hawk at 6:09 PM | § 112

September 7, 2014

Abstraction Transaction

In buySAFE v. Google (CAFC 2013-1575), a CAFC panel furthers the Supreme Court rulings of Bilski and Alice in finding that software which effects "a contractual relationship" or "commercial transactions" are not patent-eligible subject matter.

Posted by Patent Hawk at 4:31 AM | § 101

August 27, 2014

Not Bingo

Planet Bingo got patents for a computer managing a game of bingo, starting with parent 6,398,646. It assertion against VKGS lasted only until summary judgment, where all claims were found patent ineligible under § 101. Like Alice and Bilski, there is no bingo no more for patents claiming to "organize human activity." The courts consider that too abstract. Speaking of abstraction, try this on for gibberish: "Abstract ideas may still be patent-eligible if they contain an "'inventive concept' sufficient to 'transform' the claimed abstract idea into a patent-eligible application."" Sounds like organizing case law into coherency ought to be patentable, as it would be novel. (CAFC 2013-1663).

Posted by Patent Hawk at 4:01 AM | § 101

August 16, 2014

Inequitable Conduct

The district court and CAFC found Dr. Bernard Charles Sherman, founder and chairman of Apotex, guilty of inequitable conduct in his patenting of an antihypertensive claimed in 6,767,556. "Dr. Sherman breached his duty of candor, good faith, and honesty before the PTO." Typical CEO behavior, especially in the big leagues. But then, Dr. Sherman was just another crooked player in a very crooked game. Abusing the law is bread-and-butter business for Federal judges, particularly when patents are asserted by small fry against corporate giants.

Posted by Patent Hawk at 10:38 PM | Inequitable Conduct

Collaborative Filtering

I/P engine sued Google, Target, and Gannett (a media conglomerate) over 6,314,420 & continuation 6,775,664. Judge and jury at district court found the patents infringed, and neither anticipated nor obvious. As these were major U.S. corporations, there was no way that those decisions would be upheld on appeal. Sure enough. The CAFC panel majority agreed with Google that "as a matter of law [the claimed invention] simply combines content-based and collaborative filtering, two information filtering methods that were well-known in the art." To rub it in the noses of unreasonable citizens who waste their time on jury duty: "no reasonable jury could conclude otherwise." In concurrence, Judge Mayer thought the claims "fall outside the ambit of 35 U.S.C. § 101."

Posted by Patent Hawk at 10:26 PM | Prior Art

August 11, 2014


In ScriptPro v Innovation Associations, the district court rightly granted summary judgment of invalidity for 6,910,601 under 35 U.S.C. § 112(a) because the claims left out sensors that were disclosed as essential, and otherwise the claimed invention simply could not work. Ignoring the facts particular to the technology, the CAFC reversed (2013-1561), blithely stating that "it is common, and often permissible, for particular claims to pick out a subset of the full range of described features, omitting others."

Posted by Patent Hawk at 12:17 AM | § 112