October 9, 2016

Aiding Abstraction

Affinity Labs v. DirectTV et al (CAFC 2015-1845) is another instance of willy-nilly patent ineligibility. A CAFC panel found "the claims are directed not to an improvement in cellular telephones but simply to the use of cellular telephones as tools in the aid of a process focused on an abstract idea. That is not enough to constitute patentable subject matter." Apparently, tools are only useful if their process is not focused on abstract idea. A confession in the opinion makes the large point: "we have acknowledged that 'precision has been elusive in defining an all-purpose boundary between the abstract and the concrete.'"

Posted by Patent Hawk at 2:04 AM | § 101

Viral Infection

The abstraction of patent law into utter arbitrariness continues. In Intellectual Ventures v. Symantec and Trend Micro (CAFC 2015-1769), a CAFC panel finds virus-protection software an abstract idea, ineligible for patent protection. The court is still unable to draw a clear line of patentability, instead relying on gibberish ("the category of abstract ideas is not limited to economic or commercial practices or methods of organizing human activity; an inventive concept sufficient to transform the claimed abstract idea into a patent-eligible application"). Judge Mayer, in concurrence, confuses invention with free speech, opining the non sequitor that "patents constricting the essential channels of online communication run afoul of the First Amendment." Mayer opines that "claims directed to software implemented on a generic computer are categorically not eligible for patent." No one in their right mind has any idea, abstract or not, what constitutes a "non-generic" computer, as all computers are functionally equivalent (function being the sine qua non of utility, which is what patents are all about). What is clear is that large corporations now have little to fear, except lawyers fees, from any method patent that involves a microprocessor.

Posted by Patent Hawk at 1:50 AM | § 101

Another Bite For The Apple

In Apple v. Samsung (2015-1171), the CAFC once again demonstrated its lawless bias and caprice, reversing an appeals panel to reinstate the erroneous obviousness decision by the district court, finding for Apple against Samsung (no surprise there). Judge Reyna, in dissent: "The majority's en banc review is simply a do over."

Posted by Patent Hawk at 1:27 AM | Prior Art

August 31, 2016

Obvious Fabrication

In Arendi v. Apple, Google, Motorola Mobility (CAFC 2015-2073), the patent appeals board exercised illicit bias towards reexamination petitioners Apple et al by adding a missing limitation to a prior art reference and thereby declaring 7,917,843 obvious via "common sense." The CAFC reversed, not wanting the PTO's biases so obvious.

Patent law is the only law in the land where no evidence is required for condemnation. As the CAFC stated: "'Common sense' may only be applied when combining references that disclose all the required limitations. Though less common, in appropriate circumstances, a patent can be obvious in light of a single prior art reference if it would have been obvious to modify that reference to arrive at the patented invention." To be sufficiently obvious, the limitation in question has to be "unusually simple and the technology particularly straightforward. 'Common sense' - whether to supply a motivation to combine or a missing limitation - cannot be used as a wholesale substitute for reasoned analysis and evidentiary support, especially when dealing with a limitation missing from the prior art references specified."

Posted by Patent Hawk at 11:53 PM | Prior Art

July 30, 2016

Voice Input

Northern California district court judge Vince Chhabria is one of many on the federal bench whose corruption would deny the rights of patent holders to protect the largest corporations. When Unwired Planet asserted patents against Apple that had a claim element of "voice input," Chhabria ridiculously limited the construction so as to allow non-infringement. As the CAFC put it on appeal (2015-1725), "the district court erred in its construction of 'voice input.' The claims require a voice input, not a voice channel."

Posted by Patent Hawk at 4:50 PM | Claim Construction

Symbol Generator

Advanced Group Information sued startup Life460 for its mobile phone app that lets people set up ad hoc familial networks. The asserted patents, 7,031,728 and 7,672,681, were found indefinite under §102 ¶ 2 because there was no disclosed support for a "symbol generator" claim element, which is quite simple software. (CAFC 2015-1732). Another instance of careless prosecution and patent assertion.

Posted by Patent Hawk at 3:30 PM | § 112

June 13, 2016

Egregiously Willful

Following the dictum of "I know it when I see it," and in keeping with the Supreme Court's practice of granting the judiciary arbitrary power, the Supreme Court today in Halo Electronics v. Pulse Electronics (14-1513) found that willful infringement is whatever a court can rationalize. "Section 284 of the Patent Act provides that, in a case of infringement, courts 'may increase the damages up to three times the amount found or assessed.' 35 U.S.C. §284. The pertinent language of §284 contains no explicit limit or condition on when enhanced damages are appropriate. At the same time, however, discretion is not whim."

Posted by Patent Hawk at 3:24 PM | Damages

May 31, 2016


In Enfish v. Microsoft et al, the CAFC (2015-1244) continues to split hairs about software as patentable subject matter under §101. Enfish's 6,151,604 and 6,163,775 claim a "self-referential" database, where the database is a single table with "the table's columns defined by rows." (The garden-variety relational database uses multiple tables with references between tables.)

The district court found claiming a self-referential database to be prima facie unpatentable for being abstract ("the concept of organizing information using tabular formats"). But the CAFC reversed, seeing the claims as "directed to a specific improvement to the way computers operate." Because "the claims are directed to a specific implementation of a solution to a problem in the software arts," self-referencing was considered not to be abstract to the appeals court, even though self-referencing is most certainly an abstract idea.

Any logician would have a seizure trying to ferret a rational rule base under current case law for software standing up to §101 when it does not direct physical activity. What most certainly cannot be patented is anything that involves financial or business practices, no matter how specific or novel. The CAFC found in First Choice Loan Services v. Mortgate Grader (2016) that "computational methods which can be performed entirely in the human mind" are not patentable. Beyond the court-sanctioned vagary of being "specific" in this instance, how fiddling with a self-referential table is something other than a mental method, and so passes muster under §101, is inscrutable.

Posted by Patent Hawk at 11:38 PM | § 101

March 28, 2016

Apple v. Samsung Saga

The long-running patent battle between Apple and Samsung took a comedic turn when the CAFC (2015-1171) threw out a $120 million judgment against Samsung for infringing Apple touch-screen patents that were obvious (8,046,721 & 8,074,172). Through bogus claim construction, the district court was also reversed in finding Samsung infringing Apple's 5,946,647 patent, which claimed an "analyzer server" that Samsung did not employ in its similar technology. The upshot: pathetic jurist work by Northern California Judge Lucy H. Koh.

Posted by Patent Hawk at 10:31 PM | Prior Art

February 28, 2016


Zoltek sued the US Air Force and Navy for making carbon fiber sheets for its aircraft claimed under Re 34,162. The federal trial court gave the government a ridiculous degree of deferrence, and found in its favor out of legal ignorance. Fortunately for Zoltek, the CAFC decided to play its role with decency.

Continue reading "Sheeted"

Posted by Patent Hawk at 2:12 PM | § 112


Fellowes got 7,963,468, claiming a particular paper shredder, and sued competitor ACCO for infringement the day the patent was issued. ACCO filed a reexam which stayed court proceedings.

Continue reading "Shredded"

Posted by Patent Hawk at 12:53 PM | Prior Art

January 22, 2016

The Unpatentable Mind

First Choice Loan Services sued Mortgage Grader for infringing its financial transaction patents. In light of the Supreme Court's Alice decision, the district court found the patent claims directed to unpatentable abstract ideas. The CAFC affirmed (2012-1042). "Computational methods which can be performed entirely in the human mind are the types of methods that embody the 'basic tools of scientific and technological work' that are free to all men and reserved exclusively to none."

Posted by Patent Hawk at 1:32 PM | § 101

Not Running

Commil USA v Cisco (CAFC 2012-1042) illustrates the incompetence of the patent law system in the US. The case went up to the Supreme Court and back down to the CAFC before being settled on a rather simple, well-established technical fact of non-infringement: Cisco did not run a claimed protocol at each mobile device. Instead, Cisco used a single copy of the protocol for all connected devices. This overturned a jury verdict which the district court judge had let stand. The CAFC panel noted that "a reasonable jury" could not have found what it did. Which is to say the reasonable juries do not exist. Not to mention district court judges on up.

Posted by Patent Hawk at 1:04 PM | Infringement

November 30, 2015

Toxic Species

"To be sure, it is well-settled that a narrow species can be non-obvious and patent eligible despite a patent on its genus. An earlier disclosure of a genus does not necessarily prevent patenting a species member of the genus. But that is not the situation here." ~ CAFC in Prometheus Labs v. Roxane Labs (2014-1634)

Prometheus v. Roxane illustrates the turpitude of the US patent system. With 5,360,800, Prometheus patented a poison for treating irritable bowel syndrome. It its first run, the drug (Lotronex) was taken off the market after killing numerous takers. After adding restrictions for its usage, the drug was relaunched. "The number of severe incidents associated with Lotronex dropped, but the rate of adverse events did not change." Prometheus was then issued method patent 6,284,770, taking account in the claims the restrictions for medical application.

Prometheus sued Roxane for infringement. The courts found '770 obvious for double-patenting; "at best, the claims at issue are a combination of known elements, combined in a known way, to produce expected results."

Posted by Patent Hawk at 7:52 PM | Prior Art

October 7, 2015

Irreparable Harm

Samsung slavishly copied patented features of the Apple iPhone in making its copycat mobile phone. Apple won its patent battle, but was denied an injunction by the district court because, it ruled, Apple failed to show irreparable harm. The CAFC (2014-1802) reversed, agreeing with Apple that there was a "causal nexus" between the copied features and damage to Apple's "reputation as an innovator, lost market share, and lost downstream sales."

Posted by Patent Hawk at 5:03 AM | Injunction

No Compliance

Media Rights Technologies sued Capital One for infringing 7,316,033, which claims "a method of preventing unauthorized recording of electronic media." The claims require a multi-function "compliance mechanism," but the disclosure does not cover two of the four associated functions. The CAFC (2014 - 1218) affirmed the district court ruling of indefiniteness.

Posted by Patent Hawk at 4:52 AM | § 112

Claim Strain

5,847,053 and its continuation 6,111,023 claim thin-film polymers with robust strength. The claims specify a "strain hardening coefficient" without bothering to explain in the disclosure how to figure the coefficient. Patent owner Dow Chemical sued Nova Chemicals for infringement and won, at least until Nova appealed over indefiniteness in light of the Supreme Court's Nautilus ruling. Echoing Nautilus, the CAFC (2014-1431) invalidated the patents for failing to "be precise enough to afford clear notice of what is claimed."

Posted by Patent Hawk at 4:39 AM | § 112

September 17, 2015

Fanned Obvious

ABT sued Emerson Electric for infringing 5,547,017, which claimed fan operations for an air-conditioning system. A judge and jury found the patent infringed, and awarded royalties. On appeal, the CAFC reversed (2014-1618, 2014-1700), finding the patent obvious "as a matter of law" in light of four references which disclose four claimed features, but do not combine them as '017 did, or even suggest such a combination. Lacking evidence, the CAFC surmised "the motivation or rationale for combining those references can be found in the nature of the problem addressed, if not directly from the disclosures of the references themselves."

Posted by Patent Hawk at 1:58 AM | Prior Art

August 19, 2015

PTO Jitter

Power Integrations got 6,249,876 for "a technique for reducing electromagnetic interference by jittering the switching frequency of a switched mode power supply." Assertion against Fairchild Semiconductor was successful all the way through appeal, notably finding the patent non-obvious based upon a careful claim construction. On a dual track of reexamination instigated by Fairchild, the patent office found '876 obvious, based upon their sloppy claim construction. On appeal, the CAFC found that the patent "board fundamentally misconstrued Power Integrations' principal claim construction argument and failed to provide a full and reasoned explanation of its decision." The CAFC awarded costs to Power Integrations, and kicked the case back to the PTO, telling the patent examining poohbahs to get their act together.

Posted by Patent Hawk at 4:41 AM | The Patent Office

July 12, 2015

Abstract Juggernaut

The steamrolling of software patents continues. Intellectual Ventures asserted two patents against Capital One that went to appeal (CAFC 2014-1506). One claimed tracking spending related to a pre-set limit. The other claimed web page customization based upon user history. Both were found grasping at an abstraction, and so patent ineligible under §101.

Posted by Patent Hawk at 5:09 AM | § 101