August 08, 2008
DJ Action Dismissed - 1st Post MedImmune
In what appears to to be the first dismissal of a declaratory judgment action post the Supreme Court’s decision in MedImmune, a court in Minneapolis dismissed two counts seeking declaratory judgment of non-infringement and invalidity (Case 08–cv-00816).
According to the ruling:
“However, although MedImmune lowers the bar for declaratory judgment jurisdiction, a substantial controversy is still required. In the post-MedImmune authorities relied on by[Plaintiff], a patentee has either demonstrated a preparedness to litigate against the prospective declaratory judgment plaintiff, accused the prospective declaratory judgment plaintiff of infringement, affirmatively asserted its rights to license fees, or engaged in some combination of all three. For example, in Micron Technology, Inc. v. MOSAID Technologies, Inc., 518 F.3d 897 (Fed. Cir. 2008), ...
Under these circumstances, the Federal Circuit found that the record demonstrated a “substantial controversy” between the parties under the MedImmune standard.” (Emphasis added).
The instant case is distinguishable because [Defendant] has not demonstrated an intent to litigate against [Plaintiff], has not accused [Plaintiff] of infringement, and has not demanded licensing fees. There is no evidence that [Defendant] has pursued litigation against [Plaintiff].
Considering all the circumstances, the Court finds there is no substantial controversy regarding the … Patent supporting declaratory judgment jurisdiction. Specifically, [Defendant] has not yet established any position on whether [Plaintiff] infringes the ‘356 Patent. [Defendant]’s letter to Plaintiff was a means of gathering information regarding potential infringement, not an assertion of an already determined legal interest adverse to [Plaintiff]. Therefore, because the parties have not established positions of adverse legal interests, there is no substantial controversy regarding the ‘356 patent. Accordingly, this Court does not have subject matter jurisdiction over Counts II and III of [Plaintiff]’s Complaint.
A copy of the decision in PDF format can be found by clicking the link (Dismissal Order (26 KB)).
Posted by Douglas Sorocco at 10:14 AM
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July 20, 2008
It’s summer… and we are taking a break.
It is summer down here in Phosita-land and we are taking a break from all things blogging.
We will be back shortly with new info, new tutorials and some exciting announcements.
Enjoy your summer break – and don’t hate us for the sunshine!
Posted by Douglas Sorocco at 08:50 PM
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April 07, 2008
phosita ::: quick links for 2008-04-07
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An interesting published patent application - including a means for making a marriage proposal.
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U.S. Senate negotiators are getting closer to hammering out disagreements that are holding up a patent system overhaul, but President George Bush's administration still has concerns about the bill, an administration official said Friday.
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As a tablet PC owner and enthusiast - interesting to know that there is a potential patent portfolio that may require licensing by Microsoft.
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ACLU filed a friend of the court brief urging CAFC to uphold the denial of a patent they claim would violate freedom of speech. ACLU argues that the inventor is seeking a patent for an abstract idea that is not patentable under the First Amendment.
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University of Florida professor Michael Moulton thinks copyright law protects the lectures he gives to his students, and he's headed to court to prove it.
Posted by Douglas Sorocco at 06:33 AM
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March 31, 2008
phosita ::: quick links for 2008-03-31
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A snarky take on CNET's interview with USPTO Commissioner Dudas - and yes, he used the term "trolls".
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The Sturgis Area Chamber of Commerce filed a trademark infringement lawsuit against a motorcycle rally in Kentucky without the city of Sturgis' knowledge or consent, according to a release from the city.
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"In case you were thinking of building your own atom bomb, you may want to weigh your intellectual property liability. It seems there are over 2000 patents covering the atom bomb.
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In a Markman hearing or brief, you really shouldn't state - “Nothing herein should be construed as an admission by BSN.” Could they not have found a better source than Wikipedia?
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"By providing no affordable alternative to settle patent disputes - and no real penalties for those who deliberately rip off a patented idea - the system actually puts a patent-holder's property at greater risk."
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(IPO) has made a call to arms agains the patent reform legislation in the Senate (S.1145), which may be considered for a vote within the next few weeks. IPO is all-out against the dreaded Applicant Quality Submissions (AQS).
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Interesting concept - anonymous insight and rankings of patent Examiners. It could get testy and there are already a couple of snarky comments. Will it be informative or simply a place to rant? I wonder how many internal versions exist of this ...
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Looking for photos to use in your blog etc? This tool allows you to search flickr tags - including an option to only return Creative Commons licensed images. Check each individual image for limitations - but most allow for non-commerical use.
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If the judge asks for help, be helpful. "The record reveals that counsel made little effort to simplify the case, but instead presented the district court with a firestorm of issues and arguments... and an aggressive use of statements in that record ..."
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Good for this blog for correcting the erroneous assertion that a patent was invalidated. Rejections do not equal invalidated. It ain't ever over in the USPTO until the "appropriately sized for her" lady sings...
Posted by Douglas Sorocco at 06:35 AM
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March 26, 2008
tell us how you really feel - part II
Any time you see a blog post with a picture of Alfred E. Neuman in it - 
you know it has to be good.
This time it is the Patent Prospector blasting away at the "over-credentialed chowderheads" who have been huffing and puffing about the havoc patents are inflicting on the economy and innovation.
Lots of good quotes (a couple of which are a bit too risque for PHOSITA), but my favorite:
Jamming what fits into a theoretical construct, leaving as offal inconvenient contrary facts.
Use of "offal" and Alfred E. Neuman in a patent blog post - I am in awe.
Posted by Douglas Sorocco at 08:14 AM
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March 25, 2008
tell us how you really feel
It is getting very "springy" here in Oklahoma and folks are getting a bit goofy - so, I guess it should come as no surprise that we have been chuckling about this snippet from my RSS reader tonight...
If you were wondering what this is about - have a read over at Politico for the full angst, political intrique, a bank heist, and patent rhetoric.
Posted by Douglas Sorocco at 10:08 PM
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phosita ::: quick links for 2008-03-25
- No more blogging anonymously, as the author of Patent Troll Tracker did at first. Blogs relating to Cisco's operations must state that the author is a Cisco employee and that Cisco doesn't necessarily share the opinions put forth.
- An online calculator for patent attorneys, businesses and inventors determine the expiration date and maintenance fee dates for United States utility patents.
- You are a European institution, the European Central Bank, and you seek the invalidation of what has been granted as a valid right by another European institution, the European Patent Office (EPO).
- Good post (and comments) on the pros and cons of including claims in provisional patent applications.
- There is so much wrong in this I don't even know where to start - good for a laugh if nothing else.
- A good response to the "laughable link" in this list. All some business owners should look at this from Knobbe Martens.
- Interesting debate over whether the costs of patents are worth it - using IBM's licensing revenues as a straw man.
- "Let me explain why the marketing expert early on is so important. Then you can see how you can use this concept to help spur on success in your inventing and patenting activities as well."
Posted by Douglas Sorocco at 06:21 AM
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March 24, 2008
phosita ::: quick links for 2008-03-24
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Major patent Offices are looking at ways of sharing search and examination reports in order to reduce the unnecessary duplication of work as far as possible. The PCT was specifically designed to address this issue, and yet it is not being routinely used.
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The Life Sciences Symposium on public policy patent landscaping in the life sciences is taking place within the context of a cooperation program between the FAO and WIPO on patent landscaping for policymakers.
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Bio, which favors strict protection, versus tech, which relies on speed to market. “We may go 10 to 15 years to develop a drug,” he said. “They’ve got to get out to market quickly to sell as many widgets as possible until it becomes obsolete."
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Patent attorneys are hailing the Western District of Wisconsin as the nation's newest so-called rocket docket, characterized by speedy trials and a jury pool friendly to patent holders.
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The US patent and trademark office has upheld stem cell patents held by the University of Wisconsin alumni association, or WARF.
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The U.S. International Trade Commission said it would launch an investigation into some 30 companies including Sony Corp on possible patent infringements related to Blu-ray disc players and other products.
Posted by Douglas Sorocco at 06:25 AM
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March 23, 2008
can the airlines taser you in your seat?
Maybe … Well, they probably don’t want to – but an inventor has developed a way to do so – all while you seat securely in your seat.
United States Patent 6,933,851
Hahne, et al. August 23, 2005Air travel security method, system and device
A method of providing air travel security for passengers traveling via an
aircraft comprises situating a remotely activatable electric shock device on each of the passengers in position to deliver a disabling electrical shock when activated; and arming the electric shock devices for subsequent selective activation by a selectively operable remote control disposed within the aircraft. The remotely activatable electric shock devices each have activation circuitry responsive to the activating signal transmitted from the selectively operable remote control means. The activated electric shock device is operable to deliver the disabling electrical shock to that passenger.
I just want to know who gets to us the “selectively operable remote control” – it may be a new revenue generator for the airlines. And while the initial drawings show it being worn on the wrist, the inventors have not limited it to such a configuration – for those of you looking for a nice choker necklace, they haven’t left you out in the cold.
I would be willing to spend up to $100 in order to be able to shock the SOB who decides to slam his seat back into my knees over and over… or… or…
Hmm – perhaps turning each flight into a lord of the flies situation isn’t such a good idea afterall.
I did breathe a sigh of relief, however – it doesn’t appear that the patent has been assigned to any airline. Whew…
[Via Sore Eyes, via Bruce Schneier, via Techdirt]
UPDATE: Well, it seems that while the airlines themselves do not appear to be interested in the device – there is a company developing the technology into an actual product – Lamperd Less Lethal. They have even put up a YouTube showing the benefits of the technology and how it can be used – complete with scary/serious voice over (warning, scenes of 9/11 shown):
And it appears that the Department of Homeland Security has “some interest” (entire PDF of letter (378 KB)):
In discussion with my colleagues and immediate superior, we find your ideas have merit and believe it would be of great help on the borders and indeed for anywhere else, for which the temporarily restraint of large numbers of individuals in open area environments by a small number of agents or Law Enforcement Officers (LEOs). We see the potential uses to include prisoner transportation, detainee control and the military security forces might have some interest. In addition, it is conceivable to envision a use to improve air security, on passenger planes.
So – you never know. In the near future, you could be wearing a choker and being tasered by some unknown “keeper of the device”.
Posted by Douglas Sorocco at 08:58 AM
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March 22, 2008
phosita ::: quick link for 2008-03-22
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Very good overview of the legal difference between "buying" a book and "licensing" the content of a book. Add in some discussion of the first sale doctrine and you have an overall good outline of copyright and eBook concerns.
(tags: ebook)
Posted by Douglas Sorocco at 06:18 AM
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March 21, 2008
yet another Teenage inventor - false teeth for cats
So, it is turning out that today is interesting teenager inventor Friday at PHOSITA. This time we are thankful to Rachel Gilbert for developing feline false teeth.
Seventeen year old British college student Rachel Gilbert has reached the final of a national competition, the Ideas Igloo Roadshow, with her design for feline false teeth.
They look a little ghoulish, but have a noble purpose: "When animals suffer broken or rotten teeth, they have had to be removed," Rachel told her local newspaper, The Sheffield Star. "The gum can become infected and they find it difficult to chew food. We aim to reduce animals' suffering and improve their quality of life." Local vets are already on board with the design, which was created after taking a mold from a cat with damaged teeth. This revolution in animal dentistry could also be extended to dogs and sheep.
Rachel and her team of eight now have two minutes to pitch their idea to a panel of American Inventor-style entrepreneurs for a chance to win £2000 (around $4000) to help launch their business.
Good luck Rachel! Just watch out so that you don't become the "crazy cat lady" who lives at the end of everyone's block.
Via: Teenager designs false teeth for cats (no, really)
Posted by Douglas Sorocco at 06:51 PM
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Necessity is the Mother - or sister - or daughter - of Invention
Via CrunchGear — Nerdy Brit girls invent dope sunlight-sensitive nail polish to quash school rules
Some students at a British high-school wanted to wear colored nail
polish, but their school prohibited any kind of make up. They found the ban to be unfair so they came up with a novel approach that would keep them out of detention, but allow them to wear their blood-red fingertips.
They invented nail polish that disappears when its not in the sun.
Presented with a problem, these students came up with a solution. I hope that their science teacher gives them an A. Better yet, one of the chemical power house colleges should recruit them and provide them with full scholarships.
Very amazing. Now if we could only put it on some eggs and hide them around the house….. I wonder if the eggs would disappear. Have a good weekend everyone! Posted by Douglas Sorocco at 06:15 PM
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March 18, 2008
why has the us supreme court been so interested in patent cases?
One answer may be business …
It may be an interesting coincidence, but I dare you to read the linked article from the NY Times about the Supreme Court and its seemingly pro-business rulings of late, and substitute the word “patent” for “business” ….
Though the current Supreme Court has a well-earned reputation for divisiveness, it has been surprisingly united in cases affecting [business] Patent interests. Of the 30 [business] Patent cases last term, 22 were decided unanimously, or with only one or two dissenting votes.
In opinions last term, Ruth Bader Ginsburg, Stephen Breyer and David Souter each went out of his or her way to question the use of lawsuits to challenge corporate wrongdoing — a strategy championed by progressive groups like Public Citizen but routinely denounced by conservatives as “regulation by litigation.” Conrad reeled off some of her favorite moments: “Justice Ginsburg talked about how ‘[private-securities fraud actions] Patent Litigation, if not adequately contained, can be employed abusively.’ Justice Breyer had a wonderful quote about how Congress was trying to ‘weed out unmeritorious [securities lawsuits] Patents.’ Justice Souter talked about how the threat of litigation ‘will push cost-conscious defendants to settle.’ ”
Is it just me?
Supreme Court Inc. - New York Times.
Posted by Douglas Sorocco at 10:03 PM
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March 17, 2008
In defense of offense...
A couple of months ago I came across Mike Dillon’s blog – The Legal Thing – covering all things legal from the perspective of General Counsel at Sun.
As GC for Sun, Mike’s daily routine must entail a significant amount of attention to intellectual property issues and his blog plows a lot of ground concerning this topic. The posts are informative – albeit they have a “big corporate shine” to them, much to the dismay of a lot of “anonymous commenters”. If you read many patent blogs, you can probably guess the identities of many of these “anonymous commenters” – but they do make for an interesting peek at the more reactionary component of our niche of the legal world.
That is a lot of setup for a recent post of Mike’s dealing with how Sun defends against patent “troll” lawsuits – namely, a good offense.
I recently shared dinner with a few other GCs of local technology companies. It was a nice evening in which we were able to relax and share insights (and commiserate) about topics of common interest. During the course of our meal while we were discussing rising legal costs, one of my table mates made a statement that I found somewhat bothersome. He said that when faced with patent "troll" litigation, he knows he is going to pay something to get rid of the lawsuit and so he economizes on the use of defense counsel. After all, the thinking goes, if your intent is to settle a case, why spend money on a strong defense?
His view is completely contrary to how we think about this problem at Sun. It's also symptomatic of the way many companies view this issue as a quarterly "cost of doing business" without considering the long term consequences of settlement both for individual companies and our industry.
Before going further, let me state that we respect the intellectual rights of third parties. When a third party claim has been clear and the terms reasonable, we have entered into licenses. However, those situations are easily distinguished from the cases that make up almost all of our present docket of patent litigation. These lawsuits have usually been filed with no advance notice, by plaintiffs that don't commercialize their patents (i.e. create and sell products) and in venues considered favorable to them. It's also almost always the case that these plaintiffs have done little or no investigation to ascertain whether our products infringe prior to filing their lawsuit.
I think the approach that Mike outlines is a good example of how to frame decisions when confronted with a freedom to operate issue – whether the FTO issue is brought to your attention through an offer to license, or a cease and desist, or a patent search, or even when you have been served with a complaint — i.e., “How do we play offense in this particular case or instance?”
As Mike mentions, oftentimes it makes sense strategically and economically to simply license the patent – especially if the license allows you to preclude other competitors in the marketplace.
On the other hand, a careful analysis may lead to a determination that a license is unworkable – e.g., that the patent is invalid or because the license fee does not make economic sense. In such a circumstance, a zealous defense against an accusation of infringement may be in order – including the invalidation of the asserted claims.
In either case – taking a license or defending zealously – the accused infringer is approaching the case in an active/offensive manner and judging each case on its relative merits. Defaulting into paying to settle every case is no better than defaulting into aggresively defending every case.
The best defense to a patent infringement lawsuit?
Early analysis of the case and its relative merits (including the type of entity bringing the lawsuit). As each case and situation is unique, arbitrary “blanket rules” – while being easy to implement – don’t necessarily increase value to the corporation. Licensing everything or defending against everything is not a strategy – it is simply an invitation for disaster.
In any event, go on over and read Mike’s blog – I can guarantee that you will learn something.
The best offense...is a good defense.: the legal thing... by Mike Dillon.
Posted by Douglas Sorocco at 09:33 PM
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March 16, 2008
phosita ::: quick links for 3/16/2008
March 14, 1899: Zeppelin Gets Patent for a Really Big Idea
- Yes, I am a couple of days late on this one... but I think it was a good way to start a new week: let's talk about blimps. On March 14, 1899 - Count Ferdinand von Zeppelin received a U.S. patent for his rigid airship design. And no - he wasn't a member of the rock band.
Did Konami Inspire Gibson's Patent Suit? | Kotaku Australia
- Well, the ongoing saga continues of the patent infringement action that Gibson Guitar filed against the Guitar Hero franchise. Add a little bit of obsession and a dose of paranoia, and you can come up with all kinds of theories.
- No longer will we be idle, and watch as our community goes without representation in the United States of America.
Prank Makes Music Downloaders Wet Pants
- For nearly a century, Standford University's humor magazine - Chaparral - has published a fake edition of the Stanford Daily, the university's newspaper, on the Monday of the week preceding winter quarter exams. This year's effort was the first to include a Web site designed by a computer science major to accompany the main headline article about Stanford disclosing information on students who had been downloading music illegally. When students typed in their name at http://riaa.stanford.edu to see if they were likely to be contacted by the Recording Industry Association of America, a program told half the students they were in trouble. While randomly assigned, the response remained consistent regardless of how many times a student checked his name.
WIPO and Kellogg School of Management Offer IP Management Program
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As a response to the growing demand from the business community for executive programs on Intellectual Property (IP) management, the WIPO Worldwide Academy and the Kellogg School of Management - a leading business school - have teamed up for the second year running to offer the 2008 executive program on "Strategies for Management of Intellectual Property".
A press release by WIPO stated that this year’s program will be held at the Kellogg Campus in Chicago from June 9 to 12, 2008. The course will offer an opportunity to gain a practical understanding of the various strategies and approaches to enable effective development and optimization of a company’s intellectual property assets, to formulate effective IP-focused business strategies and to successfully negotiate IP licensing agreements with business partners.
Universities in India May Soon Own Patent Rights
- The Indian government is likely to enact a law to create uniform legal framework for government-funded research and give universities and research institutions ownership and patent rights for their innovations.
Companies see red over rights to the color magenta or use of stripes - International Herald Tribune
- A legal fight in the Netherlands - between Deutsche Telekom and Compello - over the use of the color magenta is pushing the boundaries of trademark law in the European Union.
- "Brands are in a position of power, and they need to act maturely rather than immaturely," said Paul Hughes, the creative director of Lava Graphic Design in Amsterdam, which last autumn organized the Free Magenta campaign that quickly spread through the blogosphere. "You're limiting what others can do. You're limiting the environment."
Patent filing shows DVR for Apple TV - The Unofficial Apple Weblog (TUAW)
- Because, the AppleBorg says I must mention it.....
Posted by Douglas Sorocco at 07:58 PM
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