Patent Law

Rear View 2008

By Gary Odom and Jordan Kuhn

Patent reform fell off Congress' radar while the USPTO hit a nadir in bad management. The Supreme Court was mercifully mum, except for exhausting patents, while the CAFC went into the weeds on more than one occasion.

In the continuing war between Broadcom and Qualcomm, Qualcomm queued for a whipping at the ITC and in court. It got so bad that Qualcomm had its patent declared "unenforceable against the world" by an exuberant district court judge. The CAFC dialed that back. Qualcomm did show its soft side, by getting along with Nokia.

Rambus's patent assertions withstood scathing attack by competitors over patenting a memory standard.

The USPTO increasingly resembled an organized crime ring. The Office got shot down in district court trying to throttle patenting with rules changes limiting claims and continuations. Subversive suppression, as the agency made its web site unsearchable, and buried a body of BPAI appeals, along with keeping quiet on what it should have made public about its proposed rule changes. Management bad-mouthed everybody in sight: their employees and patent applicants, who were as good as "trolls".

Article One Partners rolled out its scheme to short stocks by shilling patent quality, paying for prior art as a prelude that smacks of front running. Perfectly legit, maybe, but the kind of patent game rigging that stinks up the joint.

A sour note from the ivory tower of academia as two professors failed to discover that the patent system is intended to promote invention, but did discover that companies infringe patents and have to pay for it.

A new shop opened up to help inventors get sturdy, enforceable patents. Its clients have been gratified.

For all the stir, no patent reform emerged from Congress in election year 2008. As predicted.

Obzilla continue to run amok, ceaselessly stomping patents as obvious. But science fiction turned into fantasy as an Obzilla black hole formed, where patents wouldn't be obvious, but could be anticipated. Anticipation turned into its own beast, as inherency rendered prior art anticipatory through the power of subliminal suggestion.

In a jurisprudential ironic twist, enablement was hobbled. But 'a' was empowered to escape its singularity and become a cast of thousands.

The bar was raised for inequitable conduct, the ubiquitous accusation by patent infringers of sleaze that more often than not points to the accuser as the sleazy, not the patent holder. Example: Microsoft.

The charade of the jury system suffered wear and tear as trier of fact, as a judge overruled and the CAFC turned into a jury, sifting facts to its suiting. Judge Newman was disgusted.

The CAFC poisoned the well for design patents by incredible incoherence in vaguely observing an "ordinary observer."

Talk about poisoning. The CAFC made process patents bilious with Bilski, ruling that a patentable method has to be "tied to a particular machine," without being particular about what constitutes "particular," or "transform a particular article," without being particular about what an "article" is. Whatever the incoherence meant, it smelled real bad for software patents. Judges Newman and Radar wailed in dissent at linking "patent eligibility to the age of iron and steel at a time of subatomic particles and terabytes." And the PTO couldn't help itself kicking software processes in the groin.

A lawyer named Bliss blasted a patent and was called on the carpet by the CAFC for not being expert enough. The court then agreed with him. Another precedential ruling that only set a precedent for further incoherence, as the CAFC decided that being an expert is like pornography: they only know it when they see it.

The year's finale at the CAFC was a harsh harbinger that the way of life carved in the Eastern District of Texas for fast action patent jurisprudence may be going the way of the dodo. Judge T. John Ward penned a weak denial of a transfer motion that the appeals court tore apart, in the process turning an eight-factor metric into "the 100-mile rule": how far away is the defendant? Carefully crafted balancing acts from the bench may be the only salvation for EDT as the showcase for takin' care of patent business.

Full post as published by The Patent Prospector on January 02, 2009 (boomark / email).