June 26, 2012
Poof to Proof
In one of many patent battles in the mobile phone war, Apple and Motorola squared off in Eastern Illinois, with stellar law firms as representation, naturally. Judge Posner dismissed the matter, finding that neither side had shown damages. Quotes from that decision: "Apple argues last-minute that any act of infringement, even if it gives rise to no measurable damages, is an injury entitling it to a judgment... Any intimation that proof of infringement is alone enough to warrant a remedial order was scotched by the Supreme Court in eBay Inc. v. MercExchange, L.L.C.,... 'Going for broke' is the inescapable characterization of Motorola's damages claim... Motorola has provided no evidence for calculating a reasonable royalty... The problem is not that damages cannot be calculated, but that on the eve of trial, with the record closed, it became apparent that the parties had failed to make a responsible calculation... Without an actual or prospective tangible injury, a federal court has no subject-matter jurisdiction. It would be ridiculous to dismiss a suit for failure to prove damages and allow the plaintiff to refile the suit so that he could have a second chance to prove damages. This case is therefore dismissed with prejudice."
June 22, 2012
Wrigley sued Cadbury over its menthol gum patent, 6,627,233. Cadbury counterclaimed with 5,009,893. Wrigley was found not chewing into '593 (noninfringement). Then Wrigley got hit a lick on its own mentholated stick. '233 was found anticipated and obvious; judgment affirmed on appeal (CAFC 1201-1140,-1150; precedential). In dissent, Judge Newman stepped on that sticky wad. "The district court erred in holding the '233... obvious on only part of the evidence, ignoring the evidence that supports unobviousness... The district court also granted summary judgment of invalidity on the ground of anticipation, not relying on any reference cited for obviousness, but relying on a different reference that does not show the claimed combination at all, but merely presents the ingredients on lists." Rule of law is gummed up at the CAFC (and in courts across the country). Chew on that.
June 10, 2012
Cite Not Right
Two sets of inventors at interference odds before the PTO got the CAFC to rule that patent prosecutors have to write legibly, at least as far as citing antecedent applications when filing continuations. In Harari v. Hollmer (CAFC 2011-1276), overruling PTO willingness to let the slop slide, careless prosecutor citation downed the continuation.
June 3, 2012
Marcus and Neil Mintz invented a sausage claimed in 5,413,148. Distributor-turned-competitor PCM smartly filed a DJ and smoked Mintz's meat over a short order cooking of summary judgement non-infringement and invalidity. On appeal, the CAFC decided it was time for a new sketch of Obzilla.