December 4, 2013
Single Amputation Kills Whole Family
Ohio Willow Wood came up with some patented designs for cushions over amputated limbs. One was amputated during litigation-related reexam. That was enough to effectively kill the whole family. "Collateral estoppel protects a party from having to litigate issues that have been fully and fairly tried in a previous action and adversely resolved against a party-opponent. Our precedent does not limit collateral estoppel to patent claims that are identical. Rather, it is the identity of the issues that were litigated that determines whether collateral estoppel should apply." (CAFC 2013-1642)
Posted by Patent Hawk at 3:47 PM | Prior Art
December 1, 2013
Biting for Apple
The U.S. government treats Apple computer as a favored son. The CAFC (2013-112) overturned a district court's judgment that an injunction against Samsung was unjustified. With no backing in law, as Apple's arguments were generally ill-conceived, but by strong bias, the CAFC told the district court to take another look, and find favor towards Apple as it does.
Posted by Patent Hawk at 4:32 PM | Injunction
November 4, 2013
Synthes went after Spinal Kinetics over 7,429,270, which claims an artificial spinal disc. In dissent over claim construction and written description, where the CAFC affirmed the district court's damning the patent, fledgling Judge Taranto demonstrates the easy corruption of U.S. courts.
Posted by Patent Hawk at 4:16 PM | § 112
October 30, 2013
7,214,017 was shipped into reexamination by a competitor to its owner: Randall Manufacturing. While the examiner rejected numerous claims, the patent board couldn't see a motivation to combine references. But the CAFC could, finding the failure to do so "a blinkered focus."
Posted by Patent Hawk at 9:46 PM | Prior Art
October 22, 2013
Screwed to the Bone
In re Biedermann is exemplary of the USPTO's arrogant disregard for the law, and even decency to patent applicants. Lutz Biedermann and Jurgen Harms tried to patent a bone screw. The patent board concocted a new rejection, but refused to give applicants the proper opportunity to argue against it. On appeal, the CAFC vacated and remanded (CAFC 2013-1080), reminding the curmudgeons at the patent office to show the passing semblance of fairness.
Posted by Patent Hawk at 3:03 PM | Prosecution
October 13, 2013
Broadcom nailed Emulex for infringing 7,058,150, claiming a data transceiver. On appeal, the CAFC twisted now canonical case law regarding obviousness handed down by the Supreme Court in KSR v. Teleflex (2007). Thus the CAFC continues to build self-contradictory case law.
Posted by Patent Hawk at 11:40 PM | Prior Art
October 9, 2013
In Kruse v. Volkswagon (CAFC 2012-1352), the corrupt courts couldn't cotton to a decent claim construction. The disputed term went to combustion. In dissent, CAFC Judge Wallach observed blackletter law with: "The construction that stays true to the claim language and most naturally aligns with the patent's description of the invention will be, in the end, the correct construction." In this case, the CAFC construction violated every principle. Wallach: "A construction that excludes disclosed embodiments, violates the doctrine of claim differentiation, and invalidates a dependent claim cannot stay true to the claim language and the written description of the invention."
Posted by Patent Hawk at 1:58 AM | Claim Construction
October 2, 2013
There is a natural order, and it must be defended. So, as part of a concerted campaign by the Obama administration, Congress and the courts, to reserve profiting from patents to corporations, the Federal Trade Commission (FTC) plans, using their subpoena power, to persecute "patent trolls": a deprecating term used to describe patent-holding companies which are not respected by the political establishment, as they nick their revenues from favored corporations. The FTC's investigation is intended to intimidate and drain the reserves of these patent-holding companies, so as to drive them out of business. Failing that, the FTC can apply further pressure by launching an antitrust enforcement effort.
Posted by Patent Hawk at 2:27 PM | The Patent System
September 22, 2013
Design patents, the product equivalent of trademarks, are intended to ward off copycats. In High Point Design v. Buyers Direct (BDI), over the look of fuzzy slippers, the CAFC lays out the latest over design patent novelty. BDI's Snoozies® takes it on the chin from High Point's Fuzzy Babba®.
Posted by Patent Hawk at 3:14 AM | Design Patents
September 11, 2013
Rule 11 Steamrolled
Republican plutocratic toads in the House Judiciary Committee are once again hopping to deny justice. As Public Citizen explains: "The deceptively named 'Lawsuit Abuse Reduction Act; (H.R. 2655) would slow litigation and increase its costs by encouraging additional legal maneuvers and requiring unnecessary court orders."
Posted by Patent Hawk at 9:40 PM | The Patent System
September 7, 2013
The Greed Gene
Bayer CropScience sued Dow Agrosciences over a claim to bogus genetics. Its assertion was found not infringed; affirmed on appeal. (CAFC 2103-1002)
When the inventors applied for the patent at issue, they had sequenced one gene coding for one enzyme, using a test purportedly capable of finding other, similar genes. In writing its claims, the owner - now Bayer CropScience AG - decided to claim a broad category based on the function of the particular enzyme, defining the category by using a term with an established scientific meaning. In doing so, Bayer got ahead of the science: experiments had not confirmed that the term even applied to the particular enzyme whose gene Bayer's inventors had sequenced. Soon science showed that it did not, and Bayer knew as much years before its patent issued - but did not change its claim language. When it ultimately sued Dow AgroSciences for infringement, Bayer recognized that the term used, in its established scientific meaning, did not cover the accused product (itself different from the particular enzyme whose gene Bayer's inventors had sequenced), so it argued for a broad functional claim construction.
Posted by Patent Hawk at 3:34 PM | Infringement
The nature of automation is labor saving: replacing labor by a machine performing a task. But in Accenture v. Guideware (CAFC 2011-1486), the CAFC decided that automation is unpatentable under § 101 if done using computer software. The war against software patents gains ground. A claim that poses "any risk of preempting an abstract idea," is unpatentable. Which means that any task requiring cognition is unpatentable. Which, because no task is mindless, means every task. Legislation from the bench continues unabated.
Posted by Patent Hawk at 3:19 PM | § 101
August 26, 2013
On the Bead
SinkMedica sued Histogen for infringing its dermatological patents; specifically, patent claims to culturing cells in three dimensions (6,372,494 & 7,118,746). The district court decided that to do so on beads was excluded from claim scope, because the patents mentioned this technique through prior art references, and somewhat disparagingly so. Two CAFC judges on a panel (Clevenger & Prost) went along on appeal (CAFC 2012-1560). In dissent Chief Judge Rader was frustrated, finding "the four references to beads relied on by this court are ambiguous," not the "clear and unmistakable disavowal" that case law requires.
Posted by Patent Hawk at 2:05 AM | Claim Construction
August 18, 2013
The CAFC has become so inured to blithe invalidation of patents that the finer points of law no longer matter. In a dust-up between rivals Hamilton Beach and Sunbeam, HB's 7,947,928 slow-cooker patent was invalidated under the on-sale bar of § 102(b). Yet, as the dissent pointed out, the supposed invalidating action was not the requisite commercial offer for sale.
Posted by Patent Hawk at 1:56 PM | Prior Art
August 13, 2013
Computer parts maker O2 Micro decided to play dirty in its patent assertion against rival Monolithic Power Systems and its customers, most notably falsifying the priority date of its asserted patents. The courts found "bad faith" along with "litigation misconduct and unprofessional behavior." The tab, upheld by the CAFC (12-1221), was $8.4 million in legal fees suffered by defendants. It hardly holds O2 liable for a massive fraud.
Posted by Patent Hawk at 3:36 PM | Case Law
August 7, 2013
3M v. Tredegar (CAFC 2012-1241) illustrates the inanity and caprice that comprises U.S. patent law. 3M's claims went to a particular laminate structure. The PTO grants Byzantine claim language, and the courts give it a pass by studiously ignoring statute requiring definiteness. In his panel opinion, Judge Plager whined that this was "an extreme example of problems with claim drafting and their ensuing consequences." Consensus was barely achieved in the process of partly overturning the district court's construction.
Posted by Patent Hawk at 1:06 AM | Claim Construction
August 5, 2013
Apple of The Nation's Eye
For those of you laboring under the assumption that rule of law still breathes in this utterly corrupt nation, consider this. Samsung won an import ban on Apple products from the ITC, including the wildly popular iPhone and iPad. But that would crimp Apple's profits. So the Obama administration waved it away. "For my friends, anything. For my enemies, the law." ~ Peruvian politician Óscar Benevides
Posted by Patent Hawk at 3:33 PM | The Patent System
July 25, 2013
In assertion, patent holders sling whatever they can at whoever they can. Par for the course of exploitative capitalism. But, as part of their war on patents (excepting those owned by large corporations), the CAFC issued a "model order" instructing trial courts to summarily dismiss seemingly redundant claims. Beside the sheer denial of legal right, this order contradicted Tafas v. Doll (CAFC 2009), which explicitly set no limit on claim assertion.
Posted by Patent Hawk at 5:13 PM | Litigation
July 12, 2013
Limelight Networks v. Akamai sits before the Supreme Court, awaiting a decision as to certiorari. At issue is whether an accused infringer "may be held liable for inducing patent infringement under 35 U.S.C. § 271(b) even though no one has committed direct infringement under §271(a)." The root problem was incompetent prosecution, in drafting claims that neglected to render a single party culpable.
Posted by Patent Hawk at 3:31 PM | Prosecution
July 10, 2013
Blind Pig & The Acorn
The CAFC concocted the "substantial evidence" standard so as to ignore appeals from PTO Board rejections. Rare is the instance when the appeals court will exercise otherwise. But in Smith & Nephew v. Synthes (CAFC 2012-1343), as part of the CAFC's proclaimed war on patents, a panel took the opportunity to invalid a patent, via excruciatingly detailed analysis, that the Board had wondrously found non-obvious. The claimed invention was clearly an incremental improvement at best. And it looks like the PTO Board was simply asleep at the switch on this one.
Posted by Patent Hawk at 10:47 PM | Prior Art