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
Hoffmann-La Roche got 7,718,634 & 7,410,957, which claimed a dosing regime for treating osteoporosis. Against the law, the district court and a CAFC panel (2013-1128) found the patents obvious by now-routine hand-waving. Judge Newman dissented over "this court invoking judicial hindsight to reconstruct the patented subject matter." Outliers aside, the anti-patent regime continues apace.
Posted by Patent Hawk at 12:30 AM | Prior Art
April 9, 2014
United Video Properties, which owns TV Guide and Rovi, decided it wanted a prime cut of Amazon for infringing 6,769,128 & 7,603,690. Carefully biased claim construction insured noninfringement. The lynchpin was prosecution estoppel. Ironically, a term was struck ("Internet delivered data") during prosecution that actually broadened claim scope. But of course, with Amazon being the target, the court skewed claim construction to get Amazon off the hook. (CAFC 2013-1396).
Posted by Patent Hawk at 1:27 AM | Infringement
Trolling Shot Down
To extort license revenue, DataTern sued only the customers of Microsoft and SAP database products for patent infringement (5,937,402 & 6,101,502). Microsoft and SAP and were let alone. But, in response to customer complaints about DataTern, those two software giants filed a DJ against DataTern's assertion. DataTern argued lack of subject matter jurisdiction, to no avail. The fix was in. Summary judgment of noninfringement for all claims of the patents, upheld on appeal. The district court had allowed that to apply to all SAP products, but the CAFC (2013-1184) pared that back to the single product in dispute.
Posted by Patent Hawk at 1:05 AM | Infringement
April 1, 2014
According to blackletter law, the U.S. patent office issues valid patents, enforceable in courts. For well over a decade, corporations have been crying that this is fouling their freedom to readily pilfer others' inventions. Paid-for politicians, like NY senator Charles Schumer, cry for the need to "pass strong, effective reforms that will eradicate the scourge of patent trolls plaguing startups and other US innovators." This does not connect the dots. According to the law, the people with patents are the innovators, which makes the startups well-heeled thieves paying for accomplices like Schumer. If the problem is anywhere as bad as they say, why is no one demanding that patent office issue a recall of their defective patents, just as car companies are eventually forced to issue recalls? After all, the problem is with the patent agency, not those who reasonably thought they were granted an enforceable right.
Posted by Patent Hawk at 3:45 PM | The Patent System
March 28, 2014
Making It Up
Patent subject matter eligibility under 35 USC §101 has been clarified by the Supreme Court in recent years. In providing new guidance to examiners, USPTO management decided to ignore the law and inventively go their own way. The guidance criteria has an examiner ask whether a claim is "significantly different" than "judicial exceptions." Such "exceptions" to patentability (i.e., cannot be patented) are "abstract ideas, laws of nature/natural principles, natural phenomena, and natural products." Explaining what "significantly different" means is well elaborated. But the upshot is that for years to come, patents will be denied or granted based upon criteria that are not well rooted in law. In other words, business as usual at the patent office.
Posted by Patent Hawk at 2:36 PM | The Patent Office
March 20, 2014
Enablement Out of Order
In Alcon v. Barr (2012-1340), a CAFC panel reminds that the U.S. patent regime is rotten to the core. Applicants may get patents for so-called "inventions" that don't work: "a patent does not need to guarantee that the invention works for a claim to be enabled. It is well settled that an invention may be patented before it is actually reduced to practice."
Posted by Patent Hawk at 2:29 AM | The Patent System
A vexatious corruption haunts the USPTO: examiners that repeatedly pull applications out of appeal with a new rejection. Freda Nelson plagued this inventor for years with her fresh witless rejections after my filing for appeal. In the recent patent board appeal - ex parte Sheklam (2012/009,005) - the offending unnamed examiner is caught out. Other experienced prosecutors report that examiners gaming the system in this way is not especially unusual. PTO management continues to largely turn a blind eye to this practice.
Posted by Patent Hawk at 2:19 AM | Prosecution
February 27, 2014
Claim Construction Corruption
In the 1998 Cybor case, the CAFC granted itself the power to reconstrue claims de novo. That ruling has repeatedly raised controversy. In en banc rehearing of Lighting Ballast v. Philips, a majority of six reaffirmed the might of the CAFC to do as it damn well pleased. Judge Newman wrote the tortured but cogent majority opinion. Four judges dissented, including Chief Judge Rader. Their complaint: "construing the claims of a patent at times requires district courts to resolve questions of fact." Of course it does. But it would difficult to put the fix in if the fix wasn't baked in to begin with. The CAFC can't trust all the circuit court judges to be as corrupt as it is.
Posted by Patent Hawk at 3:08 AM | Claim Construction
Dialing It In
Cyberfone sued major media companies in this country, asserting 8,019,060, which was granted post-Bilski. The simple fact is that a patent troll can't sue the TV media industry and expect to get away with it. The courts won't have it, however they have to corrupt case law. The district court buried the patent under § 101 without even bothering to construe the claims. The CAFC readily concurred. The claims went to computerized transaction manipulations. However useful, abstract enough.
Posted by Patent Hawk at 2:48 AM | § 101