February 2, 2007
Voda v. Cordis: Plaintiff May Not Assert Foreign Patents in US Courts
Dennis Crouch over at PatentlyO has an excellent review of this important patent decision.
Jan Voda, an Oklahoma medical doctor sued Cordis for infringement of his patent on an interventional cardiology catheter. Voda had obtained patents both in the US and abroad. Not wanting to waste time and money on multiple suits, Voda asked the US court to also determine his claims of foreign infringement based on his patents in the UK, Canada, France, and Germany. The US court agreed, but Cordis appealed — arguing that the district court improperly extended its jurisdiction.
In a 2–1 decision, the Federal Circuit (Gajarsa) has held that the district court cannot exercise supplemental jurisdiction over Voda’s foreign patent claims.
Click here to read Dennis's full review of the Federal Circuit Decision.
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February 25, 2005
APPEALS COURT CONFIRMS GENERAL CIGAR
NEW YORK--(BUSINESS WIRE)--Feb. 24, 2005--The Second Circuit Court of Appeals in New York has ruled today in favor of General Cigar Co., Inc. in a lawsuit filed by Cubatabaco in 1997 over trademark ownership of the Cohiba(R) brand in the United States.
The Second Circuit held that "General Cigar's legal right to the Cohiba mark has been established as against Cubatabaco. General Cigar has a right to use the mark in the United States because it owns the mark in the United States."
As a result of the ruling, General Cigar will be able to continue to manufacture the Cohiba brand and market it in the U.S.
Here is General Cigar's press release.
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February 22, 2005
HP Secretly Rendering Printer Cartridges Unusable?
(Via Slashdot.)
HP Secretly Rendering Printer Cartridges Unusable?:
Momoru writes "Looks like a woman is suing Hewlett Packard, claiming that their "smart chip" technology, besides giving information about ink usage, is also secretly programmed to not work after a certain certain date." From the article: "HP ink cartridges use a chip technology to sense when they are low on ink and advise the user to make a change. But the suit claims those chips also shut down the cartridges at a predetermined date regardless of whether they are empty."
Geof's iTunes currently playing 1979 from the album "Mellon Collie and the Infinite Sadness - Twilight to Starlight" by Smashing Pumpkins
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Children's signs licensing deal with P&G
Children's signs licensing deal with P&G:
Procter & Gamble Co.'s pharmaceuticals division has licensed the use of a enzyme discovered by a researcher at Cincinnati Children's Hospital Medical Center for the potential use in a treatment for congestive heart failure.
(Via Latest news from Cincinnati Business Courier.)
Geof's iTunes currently playing No! from the album "No!" by They Might Be Giants
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February 19, 2005
MGM Studios v Grokster
The U.S. Library of Congress - Copyright website has all the briefs filed in the Grokster case.
The United States has filed an amicus curiae (friend of the court) brief supporting the petitioners (plaintiffs) in MGM Studios Inc., et al v. Grokster, Ltd., No. 04-480 on the Supreme Court's docket. The Supreme Court granted a petition for a writ of certiorari on December 10, 2004. The Court will decide whether the providers of peer-to-peer
Posted by Geof at 9:25 AM | Comments (11) | TrackBack
February 17, 2005
National Inventor Hall of Fame Inductees Announced
Famed musician Les Paul, Segway inventor Dean Kamen and Alec Jeffreys who invented genetic fingerprinting are among the 13 world-class inventors who will be inducted into the National Inventors Hall of Fame (NIHF) later this year.
Other 2005 honorees are Leo Sternbach, the chemist who discovered Valium, Clarence Birdseye who gave the world the convenience of frozen foods, C. Donald Bateman for the ground proximity warning system, Robert Gundlach for the modern photocopier, Matthias Baldwin for the steam locomotive, Leopold Godowsky and Leopold Mannes for kodachrome color film, Garrett Morgan for the gas mask and traffic signal, Glenn Seaborg for plutonium isolation, Jacob Rabinow for optical character recognition and Selman Waksman for streptomycin.
The National Inventors Hall of Fame was co-founded in 1973 by the United States Patent and Trademark Office and the National Council of Patent Law Associations.
This year
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February 16, 2005
LISLE CORPORATION v. A.J. MANUFACTURING COMPANY
EXPERIMENTAL USE
A.J. Manufacturing Company (
The undisputed facts are that sometime in May 1989 Lisle became interested in developing an improved tie rod tool. The early prototype tool was similar to A.J.
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OSI Hopes To Decrease Number of Licenses
OSI Hopes To Decrease Number of Licenses:
Noksagt writes "Various outlets report that the OSI may cut down the increasing number of Open Source licenses. Right now there are about 50 approved licenses; incompatible licenses confuse and impede developers and end users alike. The OSDL has been pushing hard for this at LinuxWorld. Sam Greenblatt, a member of the OSDL board, said 'Eventually there should be three licenses: The GPL, a commercial version of the GPL, and, of course, there will be the BSD because you can't rid of it.'"
(Via Slashdot.)
iTunes currently playing Across the Universe from the album "Across the Universe - Single" by Alicia Keys, Alison Krauss, Billie Joe Armstrong, Bono, Brian Wilson, Norah Jones, Steven Tyler, Stevie Wonder, Tim McGraw & Velvet Revolver
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February 15, 2005
Henry Intellectual Property - Patents and Copyrights
As mentioned in the previous post, my grandmother passed away last week. While my mom and her brother and sister's were sorting through all the items in the home, my uncle Tom brought up a box of the "Buck-A-Neer" fishing lures that my grandfather and great-grandfather used to make and sell. A few years back I searched through the USPTO archives to see if they ever got a patent, but had no success. This weekend, my mom found the patent!! What a great find.
Here is a scan of the Official Letter Patent:
Here is a copy of the patent
The patent if for the "Buck-A-Neer" which was Manufactured by Buck Henry's Baits, located at 507 Belmont N.E., Warren, Ohio.
The product brochure:
If that wasn't impressive enough for the Henry family, I also have some original copyrights from my relatives that my grandmother had given me last year. One of the copyright registrations is dated April 1896.
I plan to have these items framed and placed in shadow box displays for in my office at the firm.
iTunes currently playing Landed from the album "Landed - Single" by Ben Folds
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February 11, 2005
Microsoft Researching Patent Law with New Experts
Microsoft Researching Patent Law with New Experts:
wikinerd writes "According to The Register, Microsoft seeks to hire new patent experts. In their words, patent experience itself "is helpful but not mandatory" and advance knowledge of patent law is not required. The applicants need only be Computer Science or Electrical Engineering PhD holders, without any qualification in law. They will be involved in prior art search, patentability research and technical analysis. The article outlines some of the most controversial MS patents, such as online bill payment."
(Via Slashdot.)
iTunes currently playing Video Killed the Radio Star from the album "I Want My 80's Box!" by The Buggles
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February 2, 2005
MERCK & CO., INC., v. TEVA PHARMACEUTICALS USA, INC.,
Be careful when acting as your own lexicographer
Teva Pharmaceuticals USA, Inc. (
In late 2000, Teva amended an existing ANDA and sought FDA approval to market generic versions of Merck
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January 25, 2005
INDEPENDENT INK, INC. v. ILLINOIS TOOL WORKS, INC. and TRIDENT, INC.
This case deals with a tying agreement requiring the purchasing on ink from Trident for a patented printhead product of Trident.
Independent Ink, Inc. (
Posted by Geof at 1:02 PM | Comments (8) | TrackBack
January 24, 2005
BREWSTER KAHLE v. JOHN ASHCROFT
America has had two distinct systems of copyright regulation since the founding. The first, established in 1790 and in effect until 1978, was an opt-in system of regulation. The second, effected through a series of statutory changes beginning in 1976, and continuing through today, is an opt-out system of regulation.
Kahle has filed his appeal with the 9th Circuit Court of Appeals. Kahle lost in District Court alleging that the change in the copyright system from the prior to 1976 system requiring the author to take action to opt-in for copyright protection to attached to the post 1976 standard of copyright being attached at the point of fixation in a tangible medium. This has resulted in all works obtaining copyright protection and Kahle alleges preventing society from benefitting from the arts.
The principal question raised by this appeal is whether this change from an opt-in to an opt-out system of copyright qualifies as a change in a
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TEVA PHARMACEUTICALS USA, INC., v. PFIZER INC.,
This decision pertains to The Hatch-Waxman Amendments. Teva had filed a paragraph IV certification in regards to one of Pfizer's patents.
On January 24, 2003, after Pfizer failed to sue Teva within the forty-five-day period following PfizerPosted by Geof at 2:33 PM | Comments (0) | TrackBack
January 4, 2005
RIAA Loses DMCA Subpoena Case Against Charter
The latest from Slashdot
RIAA Loses DMCA Subpoena Case Against Charter:
BrynM writes "According to an opinion published today (PDF), the RIAA has lost its case against Charter Communications regarding subpoenas for the cable ISP's users to be identified for copyright infringement in the Eastern District of Missouri. You may remember that Charter Communications filed a motion to block the RIAA's subpoena back in late 2003. Now Charter has prevailed. Here's the blurb from the Court 'Civil case - Digital Millennium Copyright Act. District court erred in issuing subpoenas on internet providers to obtain personal information about the providers' subscribers who were alleged to be transmitting copyrighted works via the internet through peer-to-peer programs; the internet providers' function was limited to acting as a conduit for the allegedly copyrighted material, and Section 512(h) of the Act does not authorize subpoenas in such circumstances; case remanded with directions. Dissent by Judge Murphy. [PUBLISHED] [Bye, Author, with Murphy and Bright, Circuit Judges]'"(Via Slashdot.)
iTunes currently playing Sweet Child O' Mine from the album "Appetite for Destruction" by Guns N' Roses
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January 3, 2005
Fresh Patents Served Weekly
RSS in Government has an excellent post detailing the ability to get new published patents and patent applications via RSS. The service is provided by FreshPatents.com.
(Via RSS in Government.)
iTunes currently playing Holiday / Boulevard of Broken Dreams (Live) from the album "Sessions@AOL - EP" by Green Day
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Starbucks Verbose Vessels
The Brand Autopsy has a post regarding changes coming to Starbucks standard blurbs on their paper cups with inspiring messages designed to get customers to think and discuss.
(Via Brand Autopsy.)
iTunes currently playing Lightning Crashes (Acoustic Version) from the album "Awake: Best of Live (Acoustic) - EP" by Live
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December 30, 2004
Giant Slayer - Former D&S Associate
This month's Corporate Counsel available at Law.com has an article about a former associate from my firm who has taken on some of the pharma giants in the past few years ....
Jay Deshmukh was on the phone one fall day in 2002 with his outside counsel. The trio -- Deshmukh, vice president for intellectual property of New Delhi-based generic drugmaker Ranbaxy Laboratories Limited, plus William Zimmerman and Darrell Olson, partners at Irvine, Calif.-based Knobbe, Martens, Olson & Bear -- reviews patents and confers daily about their findings. But this wasn't one of their ordinary conversations.
Click here for rest of the article.
(Via Law.com.)
iTunes currently playing Just Like Heaven from the album "Kiss Me Kiss Me Kiss Me" by The Cure
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December 23, 2004
Apple's Patent Strategy
Some of apple's patent strategy has started to be revealed as the patent applications are being published. On interesting application involves detecting when the iPod is dropped (rapid acceleration) to then shut off the hard drive. You may remember IBM advertising this in their Thinkpad ads. It will be interesting if this triggers an interference. I haven't read all the details of the application and I am no expert on the IBM Thinkpad so its hard to say.
Click on the thumbnail for a copy of the patent application.
Some of the other interesting applications include:
Patent application for the Expose feature of OS X.
Patent application for the method in which record labels and artists encode iTunes music.
Patent application for iChat AV and iSight camera that allows the remote user to refocus the camera on a different area.
Patent application for many improvements to the iPod - most of which have been announced, but the wireless and Bluetooth versions are just starting to be available via add ons.
What is impressive is that Apple definitely files their IP early in the development game rather than right before public announcement and risk leaks.iTunes currently playing She Blinded Me With Science from the album "The Golden Age of Wireless" by Thomas Dolby
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December 21, 2004
AP sends BCS a cease and desist letter to stop them from including AP in BCS poll
NEW YORK -- The Associated Press has told the Bowl Championship Series to stop using its college football poll to determine which teams play for the national title and in the most prestigious bowl games.
Could this all be because California got left out of the BCS? Its time for a playoff system.
Read the whole article
iTunes currently playing Another Day (Single) from the album "The Complete U2 - Another Day" by U2
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December 18, 2004
Apple sues over unanounced product leak
Apple sues over unanounced product leak:
Apple is suing unnamed individuals who leaked details about an unannounced product by posting detailed information on the Web. Apple's complaint, which was filed with the Santa Clara County California Superior Court on Dec. 13, alleges that "an unidentified individual, acting alone or in concert with others, has recently misappropriated and disseminated through Web sites confidential information about an unreleased Apple product." Apple said it did not know the "true names...(Via iPodlounge.)
iTunes currently playing Yahweh (Alternate Version) from the album "The Complete U2 - Unreleased & Rare" by U2
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December 13, 2004
EA Obtains Exclusive NFL Licensing Rights
EA Obtains Exclusive NFL Licensing Rights:
Grub writes "EA has signed a 5-year agreement with the NFL that gives them exclusive rights to use NFL players, teams, and stadiums in their products. CEO Larry Probst, 'The five-year agreement will usher NFL fans through the console technology transition with new ideas and innovative game play experiences.' This is a crushing blow to competitors and an enormous victory for EA, who will undoubtably make sure everyone knows that only they have NFL players and teams come next year's football game advertising bonanza."(Via Slashdot.)
iTunes currently playing Sussex Carol from the album "Best Loved Christmas Carols" by Choir Of King's College, Cambridge
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November 23, 2004
New Patent Fees
The FY2005 Omnibus Appropriations Bill passed by Congress over the weekend will substantially change the current patent fee system.
For example, the filing fee for a utility patent application for a large entity will increase from $790 to $1000. The cost of independent claims has increased dramatically from $88 per claim in excess of 3 to $200 per claim in excess of 3. Similarly the excess total claim fee of $18 per claim in excess of 20 has been increased to $50 per claim in excess of 30. The USPTO will finally start charging for large specifications and drawings - $250 for each 50 sheets in excess of 100.
The new fees will be in effect as soon as the Bill is signed by the President.
More details can be found at www.aipla.org and www.ipo.org.
iTunes currently playing One Step Closer from the album "The Complete U2 - How to Dismantle an Atomic Bomb" by U2
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September 27, 2004
Does the Patent System Need an Overhaul?
Does the Patent System Need an Overhaul?: "Two professors argue that seemingly innocuous reforms have caused a shift away from encouraging innovation in favor of exploiting patents largely for lawsuits."
(Via New York Times: Technology.)
Posted by Geof at 10:33 PM | Comments (3)
EWeek Details Linux to Windows Migration
EWeek Details Linux to Windows Migration: "nakhla writes "Even though we always hear stories of companies migrating from Windows to Linux, eWeek is running a story describing several companies that have migrated from Linux to Windows. Among their reasons are inadequate support options, application compatibility issues, stability problems, and the added cost of troubleshooting.""
(Via Slashdot.)
Posted by Geof at 10:32 PM | Comments (10)
September 13, 2004
New Logo and Tagline for Xerox
Xerox is saying goodbye to an old slogan as it moves beyond "The Document Company," to include technology and consulting. [New York Times: Technology]
Posted by Geof at 9:41 PM | Comments (10) | TrackBack
Speech Code From I.B.M. to Become Open Source
I.B.M. plans to announce that it will contribute some of its speech-recognition software to two open-source software groups. [New York Times: Technology]
Posted by Geof at 9:40 PM | Comments (11) | TrackBack
Beatles vs Apple
loid_void writes "Beatles fan Steve Jobs could lose a large bite of his Apple to his idols, says a report in Forbes. The Beatles' company, Apple Corps., is involved in a legal battle with Jobs' Apple Computer, claiming the hardware manufacturer is in breach of a 1991 agreement that that forbids it from using the trademark for any application "whose principle content is music." The two companies have been involved in a number of court battles over the years involving the use of the Apple trademark." Good summary of all the wacky misadventure the two mega corporations have had. [Slashdot]
Posted by Geof at 9:38 PM | Comments (9) | TrackBack
August 23, 2004
Patent Attorneys/Agents Discussion Group
One great resource I haven't plugged in a while is the PatentLawPractice Yahoo Group which is moderated by patent attorney Stephan Kinsella. Right now, topics discussed include: (1) filing assignments in provisional patent applications; (2) marketing tips for new solo patent attorneys; and (3) the "a J.D. is not a doctorate degree" debate (Stephan would love to hear from anyone who has graduated from SMU law about whether their dipoloma includes the word "doctorate" or not).
[Stephan, about 6 months ago, taunted me for listing (in my law firm bio) my degree as being a "Juris Doctorate." Upon further review...my diploma actually reads "Juris Doctor" (I admitted I was in error and the web page was soon corrected). If you want the full scoop on the Doctor v. Doctorate issue...check out the posts in the Yahoo Group.]
[The Invent Blog]Posted by Geof at 9:04 PM | Comments (2) | TrackBack
August 18, 2004
Electronic Filing System improvements
Most of you probably received this e-mail from the USPTO this morning....
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
Improvements to the Patent Electronic Filing System (EFS)
The United States Patent and Trademark Office (USPTO) is pleased to announce improvements to the Patent Electronic Filing System (EFS). Beginning Sunday, August 22, 2004 the Office will make available EFS-ABX version 1.1 and ePAVE version 5.1d.
The New Authoring Tool - EFS-ABX
EFS-ABX is the new authoring tool used to create patent application specifications. EFS-ABX allows users to develop a patent application completely in Microsoft® Word which greatly improves the workflow of creating a patent specification over current authoring tools. Additional features and benefits of EFS-ABX include:
· EFS-ABX converts all images contained in the Microsoft® Word file to TIFF files. Users no longer need to scan and save every image in their specification as a TIFF file and are now able to create and edit graphics using any tool and format that is integrated with Microsoft® Word.
· EFX-ABX validates the application specification against USPTO business rules and format requirements.
· EFS-ABX allows users to import a Microsoft Word document and an XML file created using the previous authoring tool, PASAT.
ePAVE Version 5.1d
The new ePAVE software still includes all of the familiar functions of the previous version, and has been updated to accept only specifications created using EFS-ABX to ensure that the legal record at the USPTO matches what the customer created and intended. ePAVE 5.1d also includes an enhanced Address Book Feature available on all data entry screens.
To accommodate changes to the EFS Server related to the release of the new versions of the EFS software, EFS will be unavailable from 11:00 PM Saturday, August 21, 2004 until 4 PM Sunday, August 22, 2004.
During this time the USPTO EFS server will NOT accept electronic filings of Patent Applications and related documents. External customers are strongly encouraged to submit ‘in process’ Patent Application Specifications using ePAVE 5.1a, prior to the scheduled outage. Submissions after 4 PM Sunday, August 22, 2004 will require that the user install and use both EFS-ABX v1.1 and ePAVE 5.1d.
Customer Software Requirements
The new version of EFS requires Microsoft® Windows2000 with Service Pack 2 or later or Windows XP with Service Pack 1, and Microsoft® Word as provided in Microsoft® Office 2000 or Office XP. For questions and additional information on the system requirements, please contact the Patent Electronic Business Center (see the Getting Started Section below for contact information).
Getting Started
[The Invent Blog]
The USPTO is mailing a diskette with the upgraded EFS software to all of our e-filing customers. Software downloads and information regarding enhancements, upgrades, frequently asked questions, and support are also available on our website. Please visit the Electronic Filing Software page at: <http://www.uspto.gov/ebc/efs/index.html>. You can also request free copies of our software on CD by contacting the Patent Electronic Business Center. The Patent EBC is a complete customer service center that supports all Patent e-business products and service applications. EBC representatives can be reached at 703-305-3028 or toll free at 866-217-9197 between the hours of 6 a.m. and midnight Monday through Friday EST, or by e-mail at: ebc@uspto.gov <mailto:ebc@uspto.gov>. Additional information is available on the Patent EBC Web site at: <http://www.uspto.gov/ebc/index.html>.Posted by Geof at 9:35 PM | Comments (3) | TrackBack
August 8, 2004
CAN-SPAM Is A Bust
Doc Ruby writes "The Congressional chatter about 'canning spam', in the CAN-SPAM law since January, has turned out to really mean 'they can still spam'. TechWeb News reports that 'In July, compliance fell for the first time under one percent to a measly 0.54 percent', from its 3% max. The researchers claim the ball has been dropped by 'law enforcement'. Those police are probably too busy deleting the 80% spam from their email, like everyone else."[ Slashdot]
Posted by Geof at 12:07 AM | Comments (0) | TrackBack
August 3, 2004
Does Your Employer Own Your Thoughts?
MJ writes "Evan Brown has finally lost his 7 year court battle over ownership of thoughts in his brain. Judge Henderson of the 219th District Court in Collin County, Texas granted DSC Communications Corporation, Inc (now Alcatel, USA) a Final Judgement granting DSC ownership of Mr. Brown's idea of a reverse compiler that Mr. Brown claims to have begun formulating twelve years before his employment at DSC and during his off-time while at DSC. Mr. Brown has received media coverage in print, televion and on the Internet: The John Marshall Journal of Computer & Information Law, Wired, Computerworld. This rings similar to previous Slashdot articles on employer/employee IP rights." [Slashdot]
Posted by Geof at 8:52 PM | Comments (0) | TrackBack
July 30, 2004
Sqrat -- A Copyright Case That Explains Summary Judgments
Here's a copyright infringement case, Silberstein v. Fox Entertainment Group Inc., just recently decided in the Southern District of New York, that explains quite a lot about summary judgments and how they are decided, as well as quite a bit about copyright. I thought you would find it helpful, even though it isn't a Utah case, because while there are differences from place to place, as you know, the general concepts apply. I think you will understand the hearing on the upcoming IBM partial summary judgment motion better -- what isn't likely to fly as well as what might -- if you read it. Of course, you have to extrapolate. It's a long decision, and you may not all find this as fascinating as I do, so I've marked the particularly helpful or essential sections in colored text so you can skim, if you wish. [GrokLaw]
Posted by Geof at 10:07 PM | Comments (8) | TrackBack
July 29, 2004
Apple & Real disharmony
Following Real Network's announcement of Harmony, which allows music in other formats to be played on an iPod, Apple issued the following statement:
We are stunned that RealNetworks has adopted the tactics and ethics of a hacker to break into the iPod(R), and we are investigating the implications of their actions under the DMCA and other laws. We strongly caution Real and their customers that when we update our iPod software from time to time it is highly likely that Real's Harmony technology will cease to work with current and future iPods.[MacMegasite]Posted by Geof at 11:18 PM | Comments (9) | TrackBack
July 26, 2004
Toyota Patents Winking, Laughing, Crying Car
theodp writes "If the patent system ain't broke, don't fix it: The NY Times/IHT reports that four inventors working for Toyota in Japan have won a patent for a car that they say can help drivers communicate better by glaring angrily at another car cutting through traffic, as well as appear to cry, laugh, wink or just look around." The article goes on to describe "...a car with an antenna that wags, an adjustable body height, headlights that vary in intensity and hood slits and ornamentation designed to look like eyebrows, eyelids and tears." [Slashdot]
Posted by Geof at 11:05 PM | Comments (10) | TrackBack
Maybe Software Patents Won't Kill FOSS After All
Roblimo writes "Lawrence Rosen, attorney for the Open Source Initiative, doesn't seem to be as worried about software patents' effects on open source development as some Slashdot readers. In this article he says, 'Don't be too paranoid about the patent problem. It's a real problem, but not a catastrophe. Any patent owner that tries to assert its patents against open source software has many hurdles to leap before the royalty checks start to arrive.'" [Slashdot]
Posted by Geof at 11:04 PM | Comments (0) | TrackBack
July 22, 2004
DMCA hammer comes down on tech service vendor
This just in: A district court in Boston has used the DMCA to grant a preliminary injunction against a third party service vendor who tried to fix StorageTek tape library backup systems for legitimate purchasers of the system.
How is this a DMCA violation? Well, it turns out that StorageTek allegedly uses some kind of algorithmic "key" to control access to its "Maintenance Code", the module that allows the service tech to debug the storage system. The court found that third party service techs who used the key without StorageTek's permission "circumvented" to gain access to the copyrighted code in violation of the DMCA, even though they had the explicit permission of the purchasers to fix their machines.
What does this ruling mean? If it stands up on appeal, it means StorageTek has a monopoly on service for all of its machines. No independent vendor will be able to compete with them for service contracts because no independent vendor will be authorized to "access" the maintenance code necessary to debug the machine.
The DMCA was meant to stop digital piracy, not inhibit legitimate competition in the computer services market. How many more markets will we allow this law to kill before someone fixes it?
p.s. The Court also found, in a bizarre twist of logic, that while it is legal to load a program into RAM for repairs, it's illegal to allow it to persist in RAM while you fix it. I don't even know where to begin with that one.
[LawGeek]Posted by Geof at 11:10 PM | Comments (0) | TrackBack
Donuts: is there anything they can't infringe?
According to an article in Newsday.com, Krispy Kreme has sued Entenmann's for trademark infringement in the U.S. District Court for the Middle District of North Carolina (04-CV-628 -- complaint here). Krispy Kreme alleges straightforward trademark infringement of their registered mark "Original Glazed" as well as trade dress infringement.
According to the complaint, Krispy Kreme's trade dress count is premised upon:
For many years, and since long before the conduct of Entenmann's described below, Krispy Kreme has dressed its KRISPY KREME line of products and services, and presented such products and services to the consuming public and the trade throughout the United States, in highly distinctive packaging. This packaging consists of numerous eyecatching visual elements (collectively the "Trade Dress") that serve to identify and distinguish Krispy Kreme's products and services from those of other manufacturers. Among the distinctive components of Krispy Kreme's Trade Dress is the appearance on doughnut boxes of a series of colored dots spaced uniformly against a field of white.
Apparently, Entenmann's allegedly infringing packaging includes a graphical element of tiny blue dots on a white background. This graphical elements is only found on their glazed donut packages and these packages also contain the term "ORIGINAL GLAZED".
-----
Yes, I must admit, when I think of original glazed donuts and white boxes with blue dots, I think Krispy Kreme! (Not.) Comon guys, you make a gazillion dollars a month selling warm sugar dough to millions of Americans for $12.99 a dozen. Is this silliness really necessary?
[LawGeek]Posted by Geof at 11:10 PM | Comments (8) | TrackBack
Fed. Circuit Panel Grills Chamberlain over Garage Door DMCA Claim
A bit of good news re: the DMCA. According to Drew Clark at Tech Daily, the Federal Circuit had some pretty serious questions for Chamberlain in its appeal over whether the DMCA can outlaw interoperable garage door opener remotes:
"In a free market, aren't consumers free to assume they can use a product" without a specific warning to the contrary? Judge Sharon Prost asked.
Judge Richard Linn questioned whether "now consumers have no expectation that when they put a key in the ignition of their car and start 26 computers, they are not violating the law?"
They must be on notice that they are breaking the law if they do not follow the manufacturer's directions, Fink said. Just as consumers who view DVDs on players without licensed encryption keys violate the law, so do consumers who use unauthorized door openers, he said.
And then, the true motives come out:
Fink said Chamberlain is not concerned about piracy but about competing products that use weak security systems. He said his company could be blamed for theft due to a faulty product.
Nope, not about piracy. It's about competing products and finding a way to crush them through law suits rather than through an actual battle in the marketplace. Fortunately, the judges weren't so easily amused:
But that position led Judge Arthur Gajarsa to ask whether someone disabling a homeowner's security system meant to protect a Picasso painting would constitute a DMCA violation. Fink said he does not know.
[LawGeek]Posted by Geof at 11:10 PM | Comments (11) | TrackBack
July 5, 2004
Software Patents Quality Continues to Drop?
Gregory Aharonian of Internet Patent News Service and advocate for software patent reform recently updated his software patent statistics through the end of 2003. As noted by Greg, the pendency times for software applications are worsening. Greg also assertes that the amount of non-prior art cited is decreasing as well. These factors Greg asserts correlated with decreasing software patent quality for the last ten years.
"Despite the ever increasing volume of non-patent prior art, the average software patent is citing only 1 to 2 non-patent prior art items - that is ludicrous. Second, the vast majority of software patents (about 60%) still cite no non-patent prior art, indicating that software patent seekers still refuse to take quality seriously, and that the PTO has failed completely in providing examiners with the time and resources to search out the non-patent prior art - a failure that has lasted for decades with the apparent blessing of the software industry and Congress."
Greg's table of data can be found at http://www.bustpatents.com/softpats.htm
I agree with Greg that the pendency time for software patents is getting worse each year. It seems almost common place to wait at least 3 years for the first office action. However, I have noticed that recently, the Examiners are getting access to better non-patent prior art. I agree with Greg that there is definitely a much greater amount of prior art contained in magazine and journal articles and conference papers. Recently a few Examiners have started citing to some symposium papers from the ACM Portal and Digital Library. The problem is that many Examiners apparently do not know about such resources or do not bother to utilize such resources.
Posted by Geof at 9:05 PM | Comments (8) | TrackBack
July 3, 2004
Hunting for Prior Art on the Acacia Patent and Other Strategies
The Register has an article by Robin Bloor on a patent, Patent No. 5,132,992 being used as a litigation weapon by Acacia Technologies. The article's title indicates that it is a special threat to open source. Actually, it's a threat to anyone with a web site and streaming video or audio. The article correctly points that out, and it goes on to mention the submarine patent threat to open source. A Groklaw reader asked for more information on this patent, so here it is. It turns out that the Register article doesn't tell you that you may be able to do something about this patent. [GrokLaw]
Posted by Geof at 11:44 PM | Comments (7) | TrackBack
July 2, 2004
New Patent Bar examination procedure
Well, the USPTO Patent Bar exam has gone high-tech and now will be computer administered.
Candidates for registration to practice in patent cases before the USPTO must apply to the Office of Enrollment and Discipline by completing a registration application form and submitting all required documentation and government fees. A commercial test delivery provider, Thomson Prometric, will administer the computer-based examination. The location of Thomson Prometric test sites and Thomson Prometric test delivery policies are available at the Thomson Prometric web site, www.prometric.com. Thomson Prometric also provides a toll free number (1-800-479-6369) for USPTO registration examination applicants. As an alternative to test administration by Thomson Prometric, a USPTO administered examination will be offered once per fiscal year at a date and location to be determined. An applicant applying for the examination should carefully review his or her application information and documentation before submitting the application.
What to Bring to the Testing Center. For admission to the examination, an applicant must bring a current, valid State or Federal government issued ID, such as a driver's license or passport, containing both applicant
Posted by Geof at 11:20 PM | Comments (8) | TrackBack
June 28, 2004
RIAA Petitions Supremes in Verizon Case
This seemed to go under the radar. After failing at the appeals level and on their petition for rehearing en banc, the RIAA filed a petition for cert to the Supreme court in RIAA v. Verizonon May 24. Many people doubted that the RIAA would bother, and, with the Doe lawsuits proceeding, this might not have much practical difference to the RIAA's lawsuit campaign. But it's still very much worth keeping an eye on. [A Copyfighter's Musings]
Posted by Geof at 10:14 PM | Comments (3) | TrackBack
Linux Users Unite: Stop SCO!
The SCO Group, Inc. recently announced that it plans to sue individual Linux users if they refuse to pay the company a $700 licensing fee. This is an effort designed by SCO to bolster its licensing claims against IBM and Red Hat by beating up on people who can't afford a multimillion-dollar defense. SCO hasn't proven that it has a right to collect this money at all, so its attempt to hold end-users liable is a terrible misuse of the legal system. Tell Congress that SCO's tactics are unacceptable! [EFF: Action Center Alerts]
Posted by Geof at 9:11 PM | Comments (1) | TrackBack
June 24, 2004
New Microsoft CAN-SPAM Documents Online
Microsoft has filed eight new complaints under the CAN-SPAM Act. GigaLaw.com has posted copies of the complaints in the CAN-SPAM Library (click on "Litigation").
Most of the complaints name "John Doe" defendants; in other words, Microsoft does not know the identity of the spammers and, presumably, will issue subpoenas in an attempt to find out the names and contact information for the spammers.
These are not the first complaints filed by Microsoft under the new CAN-SPAM Act, which went into effect January 1, 2004. In March, Microsoft joined EarthLink, AOL and Yahoo in announcing multiple lawsuits against multiple defendants. Microsoft's two complaints from March also are included in the CAN-SPAM Library.
(Comment on this post in the GigaLaw.com Discussion Forums.) [GigaLaw.com]Posted by Geof at 8:58 PM | Comments (4) | TrackBack
June 22, 2004
Scary Patent #1: Microsoft's Human Circuit Patent
Remember when you were a kid and you accidentially stuck your finger in the wall socket? Well, watch out kids, next time you shock yourself, you might have to pay Microsoft a licensing fee.
Seriously, though, the USPTO today issued Microsoft a patent on Methods and apparatus for distributing power and data to devices coupled to the human body. The patent describes itself thusly:
The human body is used as a conductive medium, e.g., a bus, over which power and/or data is distributed. Power is distributed by coupling a power source to the human body via a first set of electrodes. One or more devise to be powered, e.g., peripheral devices, are also coupled to the human body via additional sets of electrodes. The devices may be, e.g., a speaker, display, watch, keyboard, etc. A pulsed DC signal or AC signal may be used as the power source. By using multiple power supply signals of differing frequencies, different devices can be selectively powered. Digital data and/or other information signals, e.g., audio signals, can be modulated on the power signal using frequency and/or amplitude modulation techniques.
Sounds pretty creepy to me.
[LawGeek]Posted by Geof at 11:09 PM | Comments (6) | TrackBack
June 21, 2004
Only Four More Days to Submit Your Silly Patent to EFF's Contest
EFF's first Patent Busting Contest ends this Wednesday, June 23. Make sure to submit your entry if you want us to do some busting on it! Winners will be announced one week later on June 30.
[LawGeek]Posted by Geof at 10:08 PM | Comments (8) | TrackBack
June 13, 2004
Give Us Your Tired, Your Weak, Your Silly Patents
We're officially launched the first phase of EFF's Patent Busting Project: Our Patent Busting Contest. Check it out:
We're currently seeking nominations for ten patents that deserve to be revoked because they are invalid. Sadly, we don't have the resources to challenge every stupid patent out there. In order to qualify for our ten most-wanted list, a patent must be software or Internet-related and there must be a good reason to suspect that the patent claims are invalid. We're especially interested in patents that target tools of free expression, such as streaming media, blogging tools, and voice over IP (VoIP) technology. Most importantly, the patent-holder must be aggressively enforcing its patent and suing (or threatening to sue) alleged infringers. We're particularly interested in cases where the patent-holder is trying to force small businesses, individuals, nonprofits, and consumers to pay licensing fees. Deadline to enter is June 23.
[LawGeek]Posted by Geof at 3:26 PM | Comments (7) | TrackBack
June 8, 2004
Silly Internet Patent #15: Microsoft's Patented CVS To-Do List
From an EFF supporter:
If Santa Claus insists on making a list and checking it twice this year, he may be slapped with a patent infringement lawsuit. On Tuesday, Microsoft was granted a patent for a Task list window for use in an integrated development environment, which describes how a to-do list of tasks related to the development of a project can be constructed from comments contained in source code and later checked for completion.
Here's Claim One:
A computer-implemented method for managing development-related tasks, the method comprising:
(a) during an interactive code development session, evaluating source code to determine whether a comment token is present;
(b) in response to determining that the source code contains a comment token, inserting a task into a task list; and
(c) in response to completion of a task, modifying the task list during the interactive code development session to indicate that the task has been completed.
I'm not familiar enough with CVS and SDK systems to know if this is original or not, but it seems to me that it'd be pretty obvious based on many traditional business methods. For instance, the idea of extracting tasks from group project comments and organizing them as a To-Do lists has been taught in business schools and organizational psychology programs for years.
[LawGeek]Posted by Geof at 11:04 PM | Comments (11) | TrackBack
June 7, 2004
Contest Over BlackBerry Patent
Judges are scheduled to ponder whether the Canadian maker of the BlackBerry handheld e-mail device should be barred from doing business in the United States. [New York Times: Technology]
Posted by Geof at 10:06 PM | Comments (2) | TrackBack
June 6, 2004
IBM's Memo in Opposition to SCO's Expedited Motion for Protective Order - as text
Here is IBM's Memorandum in Opposition to SCO's Expedited Motion for Protective Order. Thanks go to Henrik Grouleff for transcribing it. IBM patiently explains how ridiculous SCO's request for more delay is. In addition to all the reasons we can think of, IBM points out that no discovery from them will help SCO prepare for the depositions it seeks to postpone on the grounds that it hasn't received all discovery items it just asked IBM for: "Moreover, as SCO well knows, review of IBM's documents is not necessary for any of the depositions next week. Two of the witnesses scheduled next week, Messrs. Frasure and Wilson, are former employees of AT&T, not IBM. SCO as the purported successor of AT&T's rights, should have these documents, to the extent they exist, in its files. Similarly, Mr. Rodgers was employed by Sequent, not IBM, and IBM does not have any of his documents. The final deponent, BayStar, is an investor in SCO, wholly unrelated to IBM, and that deposition apparently will not go forward." Footnote 1 is of interest, because it seems BayStar really wants out: "IBM agreed to postpone the BayStar deposition provided that BayStar was amenable to doing so. IBM tried diligently to reach BayStar to discuss this issue, but BayStar has ignored our calls and letters. SCO, on the other hand, has talked to BayStar. This morning, we finally received a message from BayStar's counsel stating that the deposition would not go forward next week." Unfortunately, the referenced exhibits are paper-only, so we don't have them yet. [GrokLaw]
Posted by Geof at 11:56 AM | Comments (0) | TrackBack
May 30, 2004
EFF Starts Patent-Busting Project
PubPat won't be all alone in the patent fight. EFF has announced that the Parker Family Foundation has donated $50,000 so that EFF can set up what they are calling EFF's Patent-Busting Project. "We are concerned about the growing number of illegitimate software and Internet patents," said Glenn Parker, trustee of The Parker Family Foundation. "By investing in EFF, we know that we will be helping to protect the rights of individuals, nonprofits and others that have legitimate noncommercial uses of software and Internet technology." They are seeking to attack overly broad or trivial patents which they believe are interfering with innovation with the result that technologies built on prior inventions "can be tied up in litigation for years". "We seek to attack these types of patents," said Jason Schultz, EFF staff attorney and project leader. "By doing so, we hope to clear the way for the public to enjoy the benefits of these technologies and help build the case for stronger reform to the patent system. These patents strip our right to use publicly available knowledge, disrupt ongoing research and innovation, and threaten to shut down important community-based projects." The patents will be challenged under a legal process called reexamination, which you will remember is the process that PubPat successfully used recently with regard to the cotransformation patent. PubPat also recently asked the United States Patent and Trademark Office to revoke Microsoft's patent on the FAT File System, submitting prior art and saying that the patent is causing significant public harm. Reexamination is the way third parties to advocate affirmatively for the invalidity of the patents. [GrokLaw]
Posted by Geof at 2:26 PM | Comments (0) | TrackBack
May 26, 2004
Fair use in cellphone ringtones?
/. has a story on the fair use vs. music industry teeth-gnashing issues of turning snippets of commercial music into ringtones.Xingtone's desktop software allows you to create mobile phone ringtones using digital audio files on your computer. As seen here, The software evokes the same ``oh wow, oh no'' reaction from the labels that greeted the original Napster. The fear is that people will make 30 second long ringtones out of popular songs, thus compounding the file-sharing problem while robbing the music industry of a new source of revenue.
Buy from Amazon |
Discuss this story [MobileWhack]Posted by Geof at 9:06 PM | Comments (4) | TrackBack
April 20, 2004
The Patent Busting Project
The Electronic Frontier Foundation has announced a Patent Busting Project.
Their top 10 list of patents to target:
- One-click online shopping (U.S. Patent No. 5,960,411.)
- Online shopping carts (U.S. Patent No. 5,715,314.)
- The hyperlink (U.S. Patent No. 4,873,662.)
- Video streaming (U.S. Patent No. 5,132,992.)
- Internationalizing domain names (U.S. Patent No. 6,182,148.)
- Pop-up windows (U.S. Patent No. 6,389,458.)
- Targeted banner ads (U.S. Patent No. 6,026,368.)
- Paying with a credit card online (U.S. Patent No. 6,289,319.)
- Framed browsing; (U.S. Patent Nos. 5,933,841 & 6,442,574.) and
- Affiliate linking (U.S. Patent No. 6,029,141.)
They hope to collect prior art to invalidate these patents. More information on the Patent Busting Project can be found at http://www.eff.org/Patent/
Posted by Geof at 10:30 AM | Comments (7) | TrackBack
GOLDEN BLOUNT, INC. v. ROBERT H. PETERSON CO.
Robert H. Peterson Co. (
There is nothing to explain how the limitations of the claims, as construed, compare to the allegedly infringing device. See, e.g., Cybor Corp., 138 F.3d at 1454 (explaining that
Posted by Geof at 9:45 AM | Comments (12) | TrackBack
April 15, 2004
Rights to televise firework show
Nice legal battle over copyight rights involving the broadcasting of the 15th annual Thunder over Louisville. According to the Courier Journal, Zambelli International has been issued a copyright for its script of Thunder Over Louisville in the latest development in a battle over broadcast rights for Saturday's massive fireworks show.
WAVE-TV paid the Kentucky Derby Festival $50,000 for exclusive broadcast rights to Thunder in a bidding process that three of the four major Louisville stations participated in.
But WHAS-TV, which had been the "official" Thunder station for several years, was outbid. It later announced it would broadcast the event without a contract, contending that Thunder is a news event on public property open for anyone to see, including its cameras.
Read more on the controversy here
Quite an interesting issue. Obviously, broadcasting the music associated with the show would trigger copyright violations. While there are news reporting exceptions - not many courts would find a 28 minute broadcast with several songs to be news coverage. Should be interesting to see if the KDF or Zambelli seek an injunction to keep WHAS11 from broadcasting the show.
Posted by Geof at 11:14 AM | Comments (2) | TrackBack
April 13, 2004
SIERRA APPLIED SCIENCES, INC. v. ADVANCED ENERGY INDUSTRIES, INC.
This case raises the jurisdictional issue of when a patent suit seeking a declaratory judgment of noninfringement or invalidity presents a
The analysis of whether a patentee
Posted by Geof at 3:48 PM | Comments (9) | TrackBack
April 12, 2004
INLAND STEEL COMPANY v. LTV STEEL COMPANY
This case arises from a patent infringement action in the United States District Court for the Northern District of Illinois, No. 91-CV-4451, in which Inland Steel Company accused USX Corporation of patent infringement. USX appeals from a decision of the district court denying its motion for attorney fees and costs based on the district court
Inland Steel sued USX, alleging that USX had infringed two of its patents, U.S. Patent Nos. 4,421,574 and 4,483,723. The district court trifurcated the case, intending to hold separate trials on patent infringement, validity, and, if necessary, damages. The trial on infringement proceeded before a jury, which found that USX had infringed the patents. During the pendency of the case, USX initiated reexamination procedures for the patents in the United States Patent and Trademark Office (
Posted by Geof at 9:38 AM | Comments (7) | TrackBack
MONSANTO COMPANY v. HOMAN MCFARLING
The United States District Court for the Eastern District of Missouri entered summary judgment against defendant Homan McFarling and in favor of the Monsanto Company ("Monsanto") under Federal Rule of Civil Procedure 54(b) on some, but not all, of the claims being litigated. See Monsanto Co. v. McFarling, No. 4:00CV84 CDP (E.D. Mo. Nov. 15, 2002) (granting final judgment under Rule 54(b)); (E.D. Mo. Nov. 15, 2002) (granting Monsanto's motions for summary judgment). The district court held that, when McFarling replanted some of Monsanto's patented ROUNDUP READY
McFarling argues that Monsanto has committed patent misuse because Monsanto has impermissibly tied an unpatented product to a patented product. In McFarling's words, "[b]y prohibiting seed-saving, Monsanto has extended its patent on the gene technology to include an unpatented product
Posted by Geof at 9:27 AM | Comments (0) | TrackBack
April 8, 2004
EDWARD H. PHILLIPS v. AWH CORPORATION et al.
Case deals with claim interpretation of "baffles". The Federal Circuit held the specification only gave one embodiment of "baffles".
Edward Phillips appeals from the decision of the district court granting the defendants
In 1989, Phillips entered into an agreement with AWH Corporation, Hopeman Brothers, Inc., and Lofton Corporation (collectively
Posted by Geof at 12:18 PM | Comments (1) | TrackBack
April 7, 2004
NORIAN CORPORATION v. STRYKER CORPORATION
Norian Corporation charged Stryker Corporation with infringement of Norian's United States Patent No. 5,336,264 (the '264 patent) and United States Patent No. 6,002,065 (the '065 patent). Trial was held in part to a jury and in part to the bench. The United States District Court for the Northern District of California held that the claims in suit are invalid or not infringed. The Federal Circuit affirmed the judgment as to the '264 patent, and reversed as to the '065 patent.
"Consisting of" is a term of patent convention meaning that the claimed invention contains only what is expressly set forth in the claim. See Vehicular Techs. Corp. v. Titan Wheel Int'l, Inc., 212 F.3d 1377, 1382-83 (Fed. Cir. 2000). However, while "consisting of" limits the claimed invention, it does not limit aspects unrelated to the invention. It is thus necessary to determine what is limited by the "consisting of" phrase.
The invention is a kit containing specified chemicals, and the claims are explicitly limited in that no other chemical can be included in the composition. See In re Gray, 53 F.2d 520, 521 (CCPA 1931) (because the chemical composition claim used the term "consists" it was "therefore drawn to an alloy of silver and indium without other elements"). While the term "consisting of" permits no other chemicals in the kit, a spatula is not part of the invention that is described. Cf. Mannesmann Demag Corp. v. Engineered Metal Prods., 793 F.2d 1279, 1282-83 (Fed. Cir. 1986) ("The presence of additional elements is irrelevant if all the claimed elements are present in the accused structure.").
It is undisputed that the BoneSourceThe meaning of a technical term in a patent claim is determined in accordance with its usage in the specification, elaborated if appropriate by the prosecution history and with due consideration to usage in the field of the invention. A technical term in a patent document has the meaning that it would be understood to have by persons knowledgeable in the field of the invention and the prior art. A technical term is not properly removed from its context in order to seek its meaning. See Netword, LLC v. Centraal Corp., 242 F.3d 1347, 1352 (Fed. Cir. 2001) ("The claims are directed to the invention that is described in the specification; they do not have meaning removed from the context from which they arose."). Whether a term appearing in a patent claim is subject to limitations beyond its abstract general meaning is determined in the context of the invention described in the specification, the prosecution history, and the prior art. See Toro Co. v. White Consol. Indus., Inc., 199 F.3d 1295, 1299 (Fed. Cir. 1999); Hoechst Celanese Corp. v. B.P. Chems. Ltd., 78 F.3d 1575, 1578 (Fed. Cir. 1996).
After a patent has issued, validity is determined objectively based on prior art and the other requirements of patentability. There may of course be estoppels generated by prosecution amendment and argument, but the presence and "strength" of the presumption of validity does not warrant inquiry into the examiner's understanding or competence or gullibility. See Brooktree Corp. v. Advanced Micro Devices, Inc., 977 F.2d 1555, 1574 (Fed. Cir. 1992) (a patent is presumed valid, in part because of the expertise of patent examiners and the presumption that they have done their jobs properly).
Introspection and speculation into the examiner's understanding of the prior art or the completeness or correctness of the examination process is not part of the objective review of patentability. See Kahn v. General Motors Corp., 135 F.3d 1472, 1480 (Fed. Cir. 1998) (the presumption of validity does not change even when evidence not previously before the examiner is presented at trial). Misleading statements by patent applicants, if intentionally made and material to patentability, can produce unenforceability, not invalidity.
A patent may be rendered unenforceable if an applicant, with intent to mislead or deceive the examiner, fails to disclose material information or submits materially false information to the PTO during prosecution. Scripps Clinic & Research Found. v. Genentech, Inc., 927 F.2d 1565, 1573-74 (Fed. Cir. 1991); Kingsdown Med. Consultants, Ltd. v. Hollister, Inc., 863 F.2d 867, 872 (Fed. Cir. 1988) (en banc). When both materiality and deceptive intent have been established by clear and convincing evidence, decision of the ultimate issue of inequitable conduct is within the discretion of the district court. A discretionary decision is subject to review to determine whether "it was based on a clearly erroneous finding of fact or a misinterpretation or misapplication of law, or manifested a clear error of judgment." Glaverbel Societe Anonyme & Fosbel, Inc. v. Northlake Mktg. & Supply, Inc., 45 F.3d 1550, 1557 (Fed. Cir. 1995).
Posted by Geof at 11:07 AM | Comments (10) | TrackBack
April 6, 2004
NOVARTIS PHARMACEUTICALS CORPORATION v. EON LABS MANUFACTURING, INC.
Appellants Novartis Pharmaceuticals Corporation, Novartis AG, Novartis Pharma AG, and Novartis International Pharmaceutical Ltd. (collectively
The central issue in this case is the meaning of the claim term
Posted by Geof at 9:38 AM | Comments (0) | TrackBack
April 1, 2004
DR. HARRY GAUS v. CONAIR CORPORATION
Dr. Harry Gaus filed this patent infringement action in the United States District Court for the Southern District of New York, No. 94 Civ. 5693, alleging that certain of Conair Corporation
As this court has explained,
Posted by Geof at 2:59 PM | Comments (0) | TrackBack
DYNACORE HOLDINGS CORPORATION v. U.S. PHILIPS CORPORATION et al.
Dynacore Holdings Corp. and Dynacore Patent Litigation Trust (collectively,
In order to prove vicarious liability for indirect infringement, a plaintiff who demonstrates direct infringement must also establish that the defendant possessed the requisite knowledge or intent to be held vicariously liable. Hewlett-Packard Co. v. Bausch & Lomb, 909 F.2d 1464, 1469 (Fed. Cir. 1990); Moba v. Diamond Automation, 325 F.3d 1306, 1318 (Fed. Cir. 2003). Determinations of knowledge or of intent relevant to patent law issues pose challenging factual determinations that we review after a trial to ascertain whether the trial court misapplied the law, made clearly erroneous findings of fact, or abused its discretion. See Molins PLC v. Textron, 48 F.3d 1172, 1182 (Fed. Cir. 1995). When we review such factual determinations de novo following a summary judgment, we construe all facts in the light most favorable to the non-movant. Mazzari, 323 F.3d at 1005.
To prevail under a theory of indirect infringement, Dynacore must first prove that the defendants
Posted by Geof at 2:52 PM | Comments (4) | TrackBack
UNOVA, INC. v. ACER INCORPORATED et al.
Unova, Inc. appeals from the decision of the United States District Court for the Central District of California entering summary judgment in favor of Hewlett-Packard Company on the ground that a settlement agreement between Unova and Compaq Computer Corporation released Hewlett-Packard from liability for infringement of various patents owned by Unova. Unova, Inc. v. Acer Inc., No. 02-03772 ER (C.D. Cal. Nov. 19, 2002) (
Unova owns several patents that relate to
Posted by Geof at 2:43 PM | Comments (7) | TrackBack
March 30, 2004
MONSANTO COMPANY v. BAYER BIOSCIENCE N.V.
Monsanto sells genetically altered corn seeds that produce corn that expresses a Bt toxin at insecticidal levels. After Monsanto filed this action for declaratory relief and Aventis filed its counterclaim, Monsanto filed motions for summary judgment requesting that the four patents in suit be held unenforceable, invalid, and not infringed.
The district court granted MonsantoMonsanto Company filed an action in the United States District Court for the Eastern District of Missouri, No. 4:00CV1915, seeking a declaratory judgment that its transgenic corn products did not infringe four patents owned by Aventis CropScience N.V., a predecessor of appellant Bayer BioScience N.V. The patents at issue claim a variety of methods and products relating to the insertion of bacterial DNA into plants to give the plants resistance to certain insects. Besides contending that it did not infringe any of the four patents, Monsanto alleged that the four patents were unenforceable and that various claims of the patents were invalid. Aventis counterclaimed, alleging that Monsanto infringed certain claims of each of the four patents.
To hold a patent unenforceable for inequitable conduct, a court must find, by clear and convincing evidence, that the applicant omitted or misrepresented material facts with the intention of misleading or deceiving the patent examiner. See Glaxo Inc. v. Novopharm Ltd., 52 F.3d 1043, 1048 (Fed. Cir. 1995); Monon Corp. v. Stoughton Trailers, Inc., 239 F.3d 1253, 1261 (Fed. Cir. 2001); Upjohn Co. v. Mova Pharm. Corp., 225 F.3d 1306, 1312 (Fed. Cir. 2000). Once the challenger has shown the requisite levels of materiality and intent, the district court must balance the equities to determine whether the patentee has committed inequitable conduct that warrants holding the patent unenforceable. See Hoffmann-La Roche, Inc. v. Promega Corp., 323 F.3d 1354, 1359 (Fed. Cir. 2003).
While intent can sometimes be inferred from misleading conduct itself, see Paragon Podiatry, 984 F.2d at 1191, such an inference
Posted by Geof at 2:14 PM | Comments (0) | TrackBack
CHIRON CORPORATION v. GENENTECH, INC.
After a jury trial, the United States District Court for the Eastern District of California entered judgment in favor of Genentech that all claims of U.S. Patent No. 6,054,561 are invalid under 35 U.S.C.
Section 120 of title 35 provides:
Posted by Geof at 2:04 PM | Comments (576) | TrackBack
March 29, 2004
SUMMIT TECHNOLOGY, INC. v. NIDEK CO., LTD. et al.
Summit Technology, Inc. (
Posted by Geof at 2:28 PM | Comments (0) | TrackBack
March 24, 2004
GLOBETROTTER SOFTWARE, INC. v. ELAN COMPUTER GROUP, INC.
The main appeal by Ken Greer (
Posted by Geof at 10:07 AM | Comments (12) | TrackBack
March 21, 2004
INT'L RECTIFIER CORP. v. SAMSUNG ELECS. CO., LTD.
This opinion addresses two appeals. Both appeals stem from contempt proceedings following the entry of a permanent injunction barring Samsung Electronics Co., Ltd., and Samsung Semiconductor, Inc. (collectively
Posted by Geof at 6:42 PM | Comments (0) | TrackBack
INTERNATIONAL RECTIFIER CORPORATION v. IXYS CORPORATION
IXYS Corporation (
Posted by Geof at 6:32 PM | Comments (0) | TrackBack
March 17, 2004
BRISTOL-MYERS SQUIBB COMPANY et al. v. PHARMACHEMIE B.V.
The question in this patent case is whether the patent in suit is invalid for double patenting. The district court held on summary judgment that an earlier patent, which stemmed from the same application as the patent in suit, could not be used as a reference against the patent in suit for double patenting purposes. The Federal Circuit disagreed with a key conclusion on which the district court
Posted by Geof at 9:15 PM | Comments (2) | TrackBack
March 8, 2004
Q-PHARMA, INC. v. THE ANDREW JERGENS COMPANY
This decision involves attorney's fees and Rule 11 motions.
The Andrew Jergens Company appeals from the decision of the United States District Court for the Western District of Washington denying its motion for Rule 11 sanctions against Q-Pharma, Inc. Q-Pharma, Inc. v. Andrew Jergens Corp., No. C01-1312P (W.D. Wash. Sept. 10, 2002) (
Posted by Geof at 3:59 PM | Comments (20) | TrackBack
March 5, 2004
GEN-PROBE INC. v. VYSIS, INC.
Among other rulings, the district court found that substantial evidence supported the jury
Posted by Geof at 3:06 PM | Comments (0) | TrackBack
March 2, 2004
PATENT FEE BILL H.R. 1561 scheduled for debate March 3rd
Long-pending patent fee bill H.R.1561, originally scheduled for debate on Feb. 11, will come to the House floor tomorrow. IPO is urging its members to contact or re-contact their members of Congress TODAY in support of the bill. Passage is necessary in order to stop fee diversion and give the USPTO about $200 million a year in additional funds to reduce backlogs and improve patent quality.
The IPO recommends (1) VOTE FOR passage of H.R.1561 and (2) VOTE AGAINST an amendment that might be offered by Rep. Don Manzullo (R-IL) to exempt small entities from the fee increase. The Manzullo amendment would deprive the USPTO of tens of millions of dollars.
Posted by Geof at 9:49 AM | Comments (1) | TrackBack
March 1, 2004
BANCORP SERVICES, L.L.C. v. HARTFORD LIFE INSURANCE COMPANY et al.
An appeal from a district court decision holding a patent invalid for indefiniteness. The Federal Circuit found that the patent is not indefinite, and reversed the district court
Posted by Geof at 11:59 AM | Comments (9) | TrackBack
PFIZER INC. v. DR. REDDY
Pfizer Inc. appeals the judgment of the United States District Court for the District of New Jersey, ruling that defendants Dr. Reddy's Laboratories, Ltd. and Dr. Reddy's Laboratories, Inc. (together "Dr. Reddy's") do not infringe the extended term of Pfizer's United States Patent No. 4,572,909 ("the '909 patent"), and on this ground dismissing the complaint.
The issue was whether the Hatch-Waxman patent extension for Pfizer
Posted by Geof at 11:41 AM | Comments (1) | TrackBack
February 20, 2004
CHEF AMERICA, INC. v. LAMB-WESTON, INC.
The Federal Circuit just released the decision in this case. The opinion is based on claim construction regarding the claim phrase
Posted by Geof at 12:37 PM | Comments (5) | TrackBack
February 19, 2004
Intellectual Property Owners Association
I am a member of the IPO. It is an excellent organization committed to intellectual property issues around the world. Please consider joining the IPO.
Why Join?
To support the IPO campaign for adequate USPTO funding
To promote more certain, more effective, and lower cost IP laws worldwide
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Posted by Geof at 4:40 PM | Comments (1) | TrackBack
February 17, 2004
SULZER TEXTIL A.G. and SULZER TEXTILE, INC. v. PICANOL N.V.
The Federal Circuit just released a decision in this matter. Download Opinion
"This case presents a question as to the nature and extent to which district courts are required to give jury instructions in patent cases in which claim construction rulings on disputed claim terms are made prior to trial and followed by the parties during the course of the trial. We hold that it is the duty of trial courts in such cases to inform jurors both of the court
Posted by Geof at 12:46 PM | Comments (6) | TrackBack
February 13, 2004
UNIVERSITY OF ROCHESTER v. G.D. SEARLE & CO., INC. et al.
The University of Rochester (
Posted by Geof at 5:30 PM | Comments (1) | TrackBack
February 12, 2004
Superguide Corp. v. Directv
Decision includes analysis towards claim construction involving claim language, ordinary and customary meaning, dictionaries and prosecution history.
SuperGuide Corporation (
Posted by Geof at 12:19 PM | Comments (2) | TrackBack
WIPO LAUNCHES ELECTRONIC FILING OF INTERNATIONAL PATENT APPLICATIONS
Companies and inventors seeking patent protection in multiple countries will, from February 12, 2004, have the possibility to electronically file their international application under the World Intellectual Property Organization
Posted by Geof at 9:48 AM | Comments (7) | TrackBack
February 11, 2004
LIEBEL-FLARSHEIM COMPANY v. MEDRAD, INC.
The Federal Circuit has just posted a decision involving summary judgement practice and claim construction in view of the specification and prosecution history. A copy of the decision can be viewed by clicking here
Posted by Geof at 1:03 PM | Comments (9) | TrackBack
National Inventors Hall of Fame announces 2004 Inductees
The accomplishments of this year's class of inventors range from medicine, engineering and computing to the discovery and identification of HIV, GPS technology, cataract eye surgery and advanced electronics. Among the honorees are American and French inventors Robert Gallo and Luc Montagnier for their HIV isolation and identification; African American, Norbert Rillieux, for automated sugar refining; and American chemist, Edith Flanigen, for molecular sieves. The annual induction ceremony will be held on May 1 in Akron, Ohio. This year's inductees are:
Frederick Banting (1891-1941), Charles Best (1899-1978), James Collip (1892-1965)
Purified InsulinVannevar Bush (1890-1974)
Differential AnalyzerHarry Coover (1919- )
SuperglueWallace Coulter (1913-1998)
Coulter PrincipleRay Dolby (1933- )
Dolby Noise ReductionEdith Flanigen (1929- )
Molecular sievesRobert Gallo (1937- ), Luc Montagnier (1932- )
HIV Isolation and IdentificationIvan Getting (1912-2003), Bradford Parkinson (1935- )
Global Positioning System-GPSJohn Gibbon (1903-1973)
Heart-Lung MachineLloyd Hall (1894-1971)
Food preservativesElias Howe (1819-1867)
Sewing MachineCharles D. Kelman (1930- )
Cataract SurgeryBernard Oliver (1916-1995), Claude Shannon (1916-2001)
Pulse Code ModulationNorbert Rillieux (1806-1894)
Automated Sugar RefiningJohn Roebling (1806-1869)
Suspension Bridge
Posted by Geof at 11:33 AM | Comments (6) | TrackBack
COMPROMISE REACHED ON USPTO FEE DIVERSION
Members of the House Judiciary and Appropriations Committees
reached a compromise agreement on the patent and trademark fee
bill, H.R.1561. The compromise will amend the bill to allow the
appropriators to approve annual funding levels for the USPTO,
but fee collections in excess of amounts appropriated will be
deposited in a Patent and Trademark Fee Reserve Fund and rebated
to USPTO users.Posted by Geof at 10:33 AM | Comments (0) | TrackBack
February 9, 2004
Top Ten List of Universities Receiving Patents
The Department of CommercePosted by Geof at 11:41 PM | Comments (0) | TrackBack
February 5, 2004
Apple, Unova resolve patent dispute.
Apple, Unova resolve patent dispute. Unova today announced the resolution of a patent dispute with Apple regarding patents held by both companies... [MacMinute.com: Up-to-the-minute Mac news -- around the clock, around the world.]
Posted by Geof at 9:36 PM | Comments (10) | TrackBack
February 2004 IP Law and
February 2004 IP Law and Business. The February 2004 IP Law and Business is on-line. On-line articles include: Global a Go-Go Patent battles are no longer just domestic disputes. By Susan Hansen Open or Closed? At the heart of the litigation between SCO and IBM is... [Nipper's Patent Law Blog]
Posted by Geof at 9:33 PM | Comments (7) | TrackBack
TiVo watchers uneasy after post-Super
TiVo watchers uneasy after post-Super Bowl reports. Privacy concerns resurface after Janet Jackson's Super Bowl flash dance prompts TiVo to show off that it can tell what viewers are watching. [CNET News.com - Front Door]
Posted by Geof at 9:28 PM | Comments (8) | TrackBack
Washington Post lets domain registration
Washington Post lets domain registration lapse. The company neglects to pay the $19 annual registration fee for its corporate domain name, an oversight that caused the company's internal e-mail system to crash for part of the day. [CNET News.com - Front Door]
Posted by Geof at 8:14 PM | Comments (7) | TrackBack
February 4, 2004
MGM v. Grokster Ninth Circuit
MGM v. Grokster Ninth Circuit Argument in MP3. The MGM v. Grokster Ninth Circuit Argument is now available on EFF's website in MP3 format for you court junkies. The case is basically about whether P2P software is legal or not under the Supreme Court's seminal 1984 Sony v.... [LawGeek]
Posted by Geof at 11:20 PM | Comments (6) | TrackBack
Indian Patents on-line. The Patent
Indian Patents on-line. The Patent Office in India now has patent data on-line. The data are split into two searchable datasets. The first contains published patent applications from January 1995 onwards. The second contains patent applications from January 1995 that can be opposed.... [Navigating the patent maze]
Posted by Geof at 9:35 PM | Comments (0) | TrackBack
Patent Cases from the Sixth
Patent Cases from the Sixth Circuit, 2003. In conjunction with my review of all the Circuit Courts of Appeals, and the Sixth Circuit in particular, I found these cases so I may as well link to them:
In E.I. duPont de Nemours & Co. v. Okuley (CIR6 09/17/2003) (PDF) the Court found that ownership [Patent Project]
Posted by Geof at 9:34 PM | Comments (7) | TrackBack
Fieldturf, Inc., et al. v.
Fieldturf, Inc., et al. v. Southwest Recreational Industries, Inc.
This opinion is particularly relative to standing issues.Posted by Geof at 2:19 PM | Comments (8) | TrackBack
Nomos Corp. v. Brainlab USA,
Nomos Corp. v. Brainlab USA, Inc., et al.
This case involves Claim construction: specification and means plus function; as well as the Doctrine of Eqquivalents and Infringement.
Posted by Geof at 2:18 PM | Comments (8) | TrackBack
February 3, 2004
Google v. Booble. Google v.
Google v. Booble (for adult search engine), via Internetnews.com. Article quotes me going way out on a limb saying that Google's argument is plausible. [The Trademark Blog]Posted by Geof at 10:12 PM | Comments (1) | TrackBack
Mad Croc, Angry Trademark Owner.
Mad Croc, Angry Trademark Owner.
Red Bull sued Mad Croc (distibutor of a competitive energy drink) in October. Red Bull has now announced a settlement involving a permanent injunction and a 'substantial payment' to Red Bull. [The Trademark Blog]Posted by Geof at 10:10 PM | Comments (8) | TrackBack
Tivo Tracks Superbowl Viewing Habits.
Tivo Tracks Superbowl Viewing Habits. ThePretender writes "Sprinkled in the Janet Jackson boob stories is an alarming bit of information: Tivo tracks subscribers' viewing habits. They know how many ... [Slashdot]
Posted by Geof at 9:15 PM | Comments (0) | TrackBack
January 26, 2004
A patent awarded to Nomadix
A patent awarded to Nomadix last week could force hotspot operators to pay royalties to Nomadix or change the way their networks work: Nomadix received a patent for technology that it claims it developed first which allows hotspot operators to redirect customers to a sign-up page, often referred to as a "gateway" page, when they first fire up their computers. "We're the first to develop this technology and we've been doing it for a while," said Joel Short, chief technology officer and senior vice president for Nomadix. Many hotspot networks, particularly the larger ones that charge for access, redirect customers to a specific home page where they can sign in or pay for access. Often their methods for redirect were developed in-house. Redirection involves the access point or back-end system capturing any Web page request from an unauthenticated user on the network and redirecting them to a page that contains login or usage information. "Some have copied what we've done," Short said. "We stand behind our intellectual property and now we're going to encourage those folks who provide that method to license the technology from us." STSN, Hilton Hotels, and some McDonald's restaurants have licensed Nomadix technology, but T-Mobile, Wayport, Cometa, Surf and Sip, and other hotspot operators don't have licenses. STSN and Nomadix have both received investments from the Intel Capital wireless fund. Most of the non-licensed operators have been reluctant to discuss the new patent. Cometa declined to comment on the matter. T-Mobile has been working on a comment since the middle of last week but has yet to provide a reaction to the new patent. Wayport and Surf and Sip are looking into the issue further before commenting. If Nomadix chooses to pursue companies that use redirect without licensing its technology, the operators will either have to pay license fees, argue the reasonableness of the patent in court, or forgo using redirect. Redirection allows new or existing customers to avoid installing client software for connecting to a network, although some networks are moving towards requiring special hotspot software, which would sidestep this issue. Many free community networks have also used redirection as a method of asking users to acknowledge that they are agreeing to a set of principles to use the free networks. Schlotzsky's Deli and many free or sponsored commercial networks also employ the method. Companies are not required to enforce patents as they are trademarks;... [Wi-Fi Networking News]
Posted by Geof at 8:27 PM | Comments (7) | TrackBack
January 17, 2004
Is the war on file
Is the war on file sharing over?. The music biz is declaring success, citing lawsuits and Apple's iTunes. But to music fans who recall the glory days of Napster, the fight goes on. [Salon.com]
Posted by Geof at 2:05 AM | Comments (10) | TrackBack
