April 14, 2014

Incomplete Means

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

Terminal Dose

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

Gaming Appeal

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

February 26, 2014

Something Amiss

Something is amiss. A U.S. government agency is granting the right for individuals to harass businesses of all sorts and sizes for infringing what is supposed to be the legal right of exclusionary practice. Paying no regard for the law or facts relevant to the matter before them, Federal courts routinely protect businesses from these harassers. One may call this abject corruption, but only the harassers with their legal rights summarily stolen are complaining. Everyone else with any political juice wants the harassment to stop, most notably corporate sycophants in the form of the Federal judiciary, and state and federal legislators. The solution is simple: only allow patents to be owned by corporations approved by the government. Effectively, that is what has happened anyway. Make it the law of the land. Stop shirking from supporting big business, so that the injustice and inequality that made this nation what it is can continue to thrive, while wage slaves of all stripes toil and live hand-to-mouth, with no prospect of prospering from their inventions. There is a natural order and it must be defended.

Posted by Patent Hawk at 3:24 AM | The Patent System

February 21, 2014

Putting IP Writers In Their Place

Putting Intellectual Property In Its Place (2014, Oxford University Press) was written by three academics who got a grant from the Canadian government. Focused on tedious dribble, the book appears well researched, though the authors, while able to form sentences, have no clue how to write. Much of this slender volume has nothing to do with IP. There is a single chapter with a story about Canadian plant patents that is guaranteed to cure insomnia within a page or two. Otherwise, the book covers obscure tales of copyrights that no one not locked away in solitary confinement with this single book could possibly have any interest in.

Posted by Patent Hawk at 6:14 PM | The Patent System

February 15, 2014

Secret Invalidation

The lawlessness of the CAFC continues unabated. In Solvay v. Honeywell (CAFC 2012-1660), the court illicitly finds for a domestic company over a foreign rival. In dissent, Judge Newman observes:

The court today creates a new class of secret prior art, holding that a privately performed experiment, without publication or public knowledge or use or sale or inclusion in a United States patent application, is invalidating "prior art." Heretofore the role of secret prior art has been carefully circumscribed. The new general rule here adopted contravenes the policy and the letter of patent law, wherein inventors are charged only with knowledge of what is known or knowable as defined by statute, subject to special limited circumstances.

Continue reading "Secret Invalidation"

Posted by Patent Hawk at 2:52 PM | Prior Art

February 3, 2014

Without Means

An irascible PTO patent board insisted that "a receiver adapted to receiving" invoked the means-plus-function interpretation of §112 ¶6. This in an application for an automatic light switch. The CAFC reversed, finding sufficient structure to understand the bounds of the invention. (Enocean v. Face International CAFC 2012-1645)

Posted by Patent Hawk at 3:19 PM | Prosecution

Senior Silence

The CAFC has a self-censoring rule that a senior judge may not dissent, or even join a dissent, in denying a rehearing en banc. What liberty can a country have when a judge is barred from expressing an opinion?! (Middleton v. Shinseki CAFC 2013-7014).

Posted by Patent Hawk at 3:07 PM | Case Law

January 22, 2014


An untold number of patent applications languish at the USPTO, which refuses to grant or even examine them, either because they are considered too valuable to be granted to a non-corporate entity, or out of sheer spite. Gilbert P. Hyatt, prolific inventor with over 70 issued patents, can't get the patent office off its duff. So he (once again) went to Federal court "to compel the PTO to decide two appealed patent applications, each of which has been pending before the PTO since the early 1970s - over 40 years ago." The U.S. patent system is broken, but in none of the ways that so-called patent reformers, who represent corporate interests, care to address. Instead, well-heeled efforts focus on rigging the game further against inventors like Mr. Hyatt (e.g., the Goodlatte "abusive litigation" legislation currently making its way through Congress). [Hyatt's complaint]

Posted by Patent Hawk at 6:28 PM | Prosecution

Unchanging Burden

In the continuing campaign to abridge the rights of non-corporate patent holders, the august priests of the plutocracy proclaim through nuance that only pittances are due patent peasants. In Medtronic v. Mirowski, the Supreme Court unanimously rules that patent holders must always prove their patents worthy.

Continue reading "Unchanging Burden"

Posted by Patent Hawk at 6:10 PM | Infringement

January 17, 2014

System Claims

Arrogant conceit is a common occupational hazard of Federal district court judges; what the appeals court more benignly observes as "an ambiguity on the grounds for decision." So it was with Judge Donovan W. Frank in Minnesota, who appears to know nothing about patent law. More particularly, "the stipulated judgment provided no factual context for the claim construction issues presented by the parties." Frank flunked by reading the spec into the claims, and by not knowing what a system claim was. On appeal, CAFC chief Judge Rader condescends to point out blackletter law: "a system claim generally covers what the system is, not what the system does." (Superior Industries v. Masaba (CAFC 2013-1302))

Posted by Patent Hawk at 2:09 PM | Claim Construction

January 9, 2014

Sunk By Restriction

A CAFC panel decides that satisfying a restriction requirement by eliminating drawings in a design patent application is prosecution estoppel. "In the design patent context, the surrender resulting from a restriction requirement invokes prosecution history estoppel if the surrender was necessary, as in Festo, 'to secure the patent.'" This continues the judicial trend of chopping away patent rights.

Continue reading "Sunk By Restriction"

Posted by Patent Hawk at 3:54 PM | Design Patents

December 27, 2013


The CAFC has declared the everyday antics of patent plaintiff lawyers to be exceptional. Vacating a district court judge's decision not to award attorneys fees under 35 U.S.C. § 285, an appeals court panel decreed that "litigation misconduct and unprofessional behavior may suffice." That specifically includes asserting infringement "despite an objectively low likelihood that it would prevail." Mind-reading is allowed in coming to this conclusion. (Kilopass Technology v. Sidense - CAFC 2013-1193)

Posted by Patent Hawk at 9:58 PM | Case Law