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
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
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
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."
Posted by Patent Hawk at 6:09 PM | § 112
September 7, 2014
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
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
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
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
July 13, 2014
6,128,415 claims a device profile to rid digital image distortion. The courts found it patent ineligible for being an abstraction. The CAFC (2013-1600): "For all categories except process claims, the eligible subject matter must exist in some physical or tangible form." The noose tightens on patenting software.
Posted by Patent Hawk at 1:28 AM | § 101
July 9, 2014
The U.S. courts have done their best to limit patent scope and validity within the past decade, in reponse to corporate complaint. The sensible formula of writing a specification in problem-solution form turned into a formula for obviousness without evidence after KSR. In X2Y Attenuators v. ITC (2013-1340), the CAFC affirms another trick: terming a feature as "essential" in the disclosure limits any claim to that feature to the embodiment specifically disclosed. X2Y also created a corrupt precedent, in allowing any claim limitations in earlier applications to leak into a later CIP without claim construction, to argue invalidity. With the courts corrupted to mega-corporate interests, the broken U.S. patent system continues to squash invention by inventors and small companies with caprice.
Posted by Patent Hawk at 2:11 PM | Claim Construction
June 19, 2014
Down The Rabbit Hole
The Supreme Court affirmed the CAFC in invalidating financial patents in Alice v. CLS Bank under §101. "The claims at issue are drawn to the abstract idea of intermediated settlement, and that merely requiring generic computer implementation fails to transform that abstract idea into a patent-eligible invention." Reading between the plutocratic lines, any claim to computerized finances is going to prove unenforceable. The courts are simply not going to allow financial institutions to be pickpocketed by clever patentees.
Posted by Patent Hawk at 8:50 AM | § 101
June 13, 2014
The CAFC, like other courts, decides how to rule, then fits the law to suit the ruling. The same judges on a CAFC panel that were at diametric ends over the same issue in Allergen v. Apotex were happy to affirm an obviousness finding of the district court in Bristol-Myers Squibb v. Teva. In doing so, it summarized case law in this area, if only in this case.
Posted by Patent Hawk at 2:56 PM | Prior Art
June 12, 2014
The CAFC continues its rampage against the rule of law. In Allergan v. Apotex (CAFC 2013-1245), a panel finds obviousness over the very reference the USPTO carefully considered (Johnstone), finding the reference "does not teach away," and that "there was nothing left for a chemist to do." In dissent, Judge Chen notes: "This is not a situation in which there are a finite number of identified, predictable solutions. Rather, the single sentence in Johnstone actually proposes hundreds of thousands, or even millions, of variations." Thus, the panel majority - new Chief Judge Prost and Judge Reyna - ignores the repeated precedence of KSR, Ruschig, Eli Lilly and others to achieve a new level of caprice.
Posted by Patent Hawk at 8:15 AM | Prior Art
June 4, 2014
Contravening the confused CAFC once again, SCOTUS ruled in Limelight v. Akamai that direct infringement requires a single party. Further, "liability for inducement must be predicated on direct infringement."
Posted by Patent Hawk at 6:13 PM | Infringement
June 2, 2014
The CAFC's long-standing standard of indefiniteness - that a patent claim was definite unless "insolubly ambiguous" - has been a unreasonable evisiceration of statute. In Nautilus v. Biosig (13-369), the Supreme Court put reason back in.
To tolerate imprecision just short of that rendering a claim 'insolubly ambiguous' would diminish the definiteness requirement's public-notice function and foster the innovation-discouraging 'zone of uncertainty'. A patent is invalid for indefiniteness if its claims, read in light of the patent's specification and prosecution history, fail to inform, with reasonable certainty, those skilled in the art about the scope of the invention. [A] patent must be precise enough to afford clear notice of what is claimed. The standard adopted here mandates clarity, while recognizing that absolute precision is unattainable.
Posted by Patent Hawk at 4:05 PM | § 112
May 23, 2014
CAFC Chief Judge Rader Resigns in Disgrace
Randall Rader has resigned in disgrace. His avowed disdain of patent trolls, bias towards corporations, and role in dissembling case law into confusion had nothing to do with it. Instead, according to the Wall Street Journal, his praising a litigator in a letter that became public - Edward Reines of Weil Gotshal & Manges - did him in. Reines had appeared a couple of times before Rader on the bench, leaving the Chief Judge in thrall. Rader characterized himself as "inexcusably careless." Not exactly the qualifications you look for in someone on the bench. Next up for Chief Judge is Sharon Prost.
Posted by Patent Hawk at 7:44 PM | The Patent System
May 22, 2014
The Wall Street Journal reported on the suspicious circumstances at the CAFC over Chief Judge Rader recusing himself from Microsoft v. DataTern (2014) only after the opinion had been published, and after fully participating and shaping what was decided. The court took the highly irregular step of vacating the opinion. Transparency is beyond this court, which prefers to exercise its biases with as much secrecy as possible. Rader has been an outspoken corporate sycophant, denouncing non-corporate inventors as patent parasites that do not deserve their legal rights.
Posted by Patent Hawk at 9:02 PM | The Patent System
May 11, 2014
Double Standard of Indefiniteness
The CAFC has long maintained that granted claims are definite under §112(b) unless "unsoluably ambiguous." On May 6, the CAFC decided something different with regard to definiteness during prosecution. They could have waited, as the Supreme Court will decide, within a month or so, how claim definiteness should be construed. In re Packard (2013-1204), a CAFC panel declared that a prosecution claim is indefinite if an examiner says so, sui generis, without consideration of the specification. This is contrary to black-letter law, and, recently, the CAFC's own ruling in Energizer Holdings v. ITC (CAFC 2006) ("The definiteness inquiry 'focuses on whether those skilled in the art would understand the scope of the claim when the claim is read in light of the rest of the specification'").
Posted by Patent Hawk at 11:34 PM | § 112
April 14, 2014
In Univ. of Pittsburgh v. Varian Medical (CAFC 2012-1575), CAFC Judge DYK caught cohorts Lourie and O'Malley (the majority) out for sloppy work product. A means-plus-function claim element was given cursory treatment by the majority, completely missing the meat of the claim element in construction, which Judge DYK pointed out. This is typical of the random competence by the CAFC, where the law is shambolic.
Posted by Patent Hawk at 12:40 AM | Claim Construction