Anticipate This!™ | Patent and Trademark Law Blog

They Invented What? (No. 241)

Posted in They Invented What? by Jake Ward on October 23, 2014

U.S. Patent No. D250,901:  Toy figure.

JW Note:  A spooky TIW? in view of the upcoming Halloween holiday.  Hat tip to the Creepy IP series at the U.S. Patent and Trademark Office.

lagoonmonster

The ornamental design for a toy figure, substantially as shown.

A Statue for Toulmin.

Posted in General Commentary by Jake Ward on October 10, 2014

Jake Ward:

A top post at the AT! Blog recently – and one of my favorites over the past several years. Enjoy!

Originally posted on Anticipate This!™ | Patent and Trademark Law Blog:

flyer  

In the small city of Springfield, Ohio, now stands an 8-foot statue dedicated to the Wright Brother’s patent attorney, Harry Toulmin.  Mr. Toulmin was the patent lawyer who prepared and prosecuted the patent for Wilbur and Orville Wright’s flying machine . . . yes, the original airplane.

According to this article at Law.com, Toulmin helped the Wright brothers apply for five patents, including the 1906 flying machine’s patent (U.S. Pat. No. 821,393 or the ‘393 patent).  Other Wright patents also include U.S. Pat. Nos. , , , , and ,

The above article fails to mention, however, that the brothers only turned to Toulmin after the original application they had drafted themselves was rejected by the USPTO.  The ‘393 patent drafted by Toulmin had broad claims covering methods of controlling a flying machine, regardless of whetherthe machine was powered.  In particular, the patent described a system that allowed the aircraft to be controlled in flight, and specifically a…

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They Invented What? (No. 240)

Posted in They Invented What? by Jake Ward on August 4, 2014

U.S. Patent No. 8,609,158:  Diane’s manna.

JW Note:  Thanks to Guy L. for bringing this patent to our attention.  Guy tells us that his favorite quotes also include:

Column 1, Line 24:

“Exhibit G has a combination that is so strong after you quit taking it, that every drug manufacturer on this planet will be wanting to kill me.”

Column 3, Line 12:

“I am almost normal when I take my favorite best method.”

Column 18, Line 10:

Some ingredients include “sand, dirt, rock, volcanic ash…”

Column 20, Line 41:

“The Dr’s had me on $800 per month mood stabilizers”

ABSTRACT:

This is a potent drug with narcotic benefits made from distinctly and uniquely combined and processed interchangeable seed and seed derivatives that are so potent that it removes or alleviates depression, mood disorders, Attention Disorder symptoms, thought disorder, mental illness, pain, right lip retardation symptoms, physical problems, Lymph Node cancer and many other illness symptoms. It removes bumps in the neck within a week or two. It is interchangeable in most aspects. It can be combined and processed with Pharmaceuticals and medicines to create new drugs. These Pharmaceuticals are now long lasting. I prefer the daily dose, but this drug can last months. It is extremely strong or potent and can be made weak to make your little Attention deficit child normal. It is an incredible mood stabilizer and reduces psychosis. Use it for cancer patient and for people with pain issues. It works.

BACKGROUND:

This medicine is a continual drug made from interchangeable ingredients that heals and alleviates the symptoms of many illnesses including cancer and mental illness and pain and many others with the unique benefit it can be combined with medicines like Zyprexa with the benefit of this combination lasting months with a extremely strong, narcotic in nature and easily tamed medicinal benefit for over 21 days. Although please understand, I don’t need to add Zyprexa or Ibuprofen to this medicine because it is good enough to do the job without adding any medicine to it.

This is a food. I used basic food to make this drug. You can use the plants and ingredients from the backyard, the field, or the grocery store to make this drug. This is a medicine that continues inside the human and animal body that will work on most or many symptoms in Exhibit A. Exhibit A and B are a complete or mostly complete list of mine and Micah’s illness symptoms. I started with simple 1 to 3 ingredients combinations of which were all interchangeable, even the processes were interchangeable. Exhibit G has a combination that is so strong after you quit taking it, that every drug manufacturer on this planet will be wanting to kill me. I did it. It is a food combination. This is a food that can be interchanged with many other like kind ingredients. The processes used are many, but I sampled all of them and eliminated many of the side-effects by eliminating combinations that do not work. It is a processed drug. It is a drug. I spent almost 6 years sampling and changing these to make one interchangeable ingredient great one (with many variations) in best methods exhibit and favorite best methods exhibit and have used hundreds and written thousands. They all are good, but some are better than others. The interchangeability of this drug and the number of interchangeability and processing of ingredients up to 7 is so crucial to making strong or weak drugs and the 7 ingredient combination makes this drug continually medicate the body and it can make other medicines continue also. I can use 3 ingredients, 1 or 7, other combinations and more additions and processes them all many ways.

I am a minister who has prayed my way through this medicine.

THE INVENTION CLAIMED IS:

1. A method of treating a human suffering from cancer, pain, and Bipolar disorder consisting essentially of administering to said human therapeutically effective amounts of evening primrose oil, rice, sesame seeds, green beans, coffee, meat, cheese, milk, green tea extract, evening primrose seeds, and wine.

Washington Redskins Trademark Registrations are Cancelled

Posted in General Commentary by Kristen Fries on June 19, 2014

Today the United States Patent and Trademark Office cancelled six of the Washington Redskins’ trademarks, all of which involved the term “redskins.”  The Trademark Trial and Appeal Board (TTAB) concluded that “Redskins” was disparaging of Native Americans.

The full opinion of the TTAB can be found here.

The USPTO also issued a media fact sheet explaining what the decision means and what the decision does not mean.

Limelight Networks v. Akamai Technologies

Posted in Opinion Commentary by Kristen Fries on June 16, 2014

The Supreme Court of the United States holds a defendant, in a patent infringement suit, is not liable for inducing infringement under 35 U.S.C. § 271(a) when no one has directly infringed under 35 U.S.C. § 271(a) or any other statutory provision.

(Supreme Court 2014, 12-786)

The opinion for a unanimous Court was delivered by Justice Alito.  The decision reversed the Federal Circuit’s decision that essentially made it easier to prove that a company is liable based on the theory of induced infringement

FACTS:

The patent at issue claims a method of delivering electronic data using a “content delivery network.”  The patent is assigned to the Massachusetts Institute of Technology and exclusively licensed to respondant, Akamai Technologies.   One of the steps of the method includes storing certain components of a content provider’s Web site on servers provided by Akamai.  This step is known as “tagging.”  Petitioner Limelight Networks, Inc. performs several steps claimed in the patent.  However, the customers of Limelight Networks (in an arguable assumption) perform their own tagging.

In 2006, Akamai sued Limelight in the United States District Court for District of Massachusetts for infringement.  A jury, finding Limelight infringed the patent, awarded more than $40 million in damages.  In view of the Federal Circuit’s decision in Muniauction v. Thomson Corp., 532 F.3d 1318 (2008), the District Court granted a motion for reconsideration by Limelight and held that Muniauction precluded a finding of direct infringment under § 271(a).  A panel for the Federal Circuit affirmed.  However, on en banc review, the Federal Circuit reversed holding a judgment could be found in favor of Akamai based on induced infringement.  The Federal Circuit explained that liability could be found when a defendant carries out some of the steps and encourages others to carry out the remaining steps of, even if no one is liable for direct infringement.

OPINION:

In the opinion, the Court stated “[t]he Federal Circuit’s analysis fundamentally misunderstands what is means to infringe a method patent.”  The Court concluded that Limelight cannot be liable for inducing infringement that never occurred directly since the steps performed were not attributed to one defendant. The Court warned that the Federal Circuit’s decision would “require the courts to develop two parallel bodies of infringement law: one for liability for direct infringement and one for liability for inducement.”  The Court also found Alkamai’s arguments comparing induced infringement to tort law unpersuasive.  The case was remanded for further proceedings consistent with the Supreme Court’s opinion.  The Court declined to revisit the merits of Muniauction.

Note:  The Federal Circuit may revisit and/or clarify the Muniauction decision on remand.  The Supreme Court acknowledged the concern that infringement could be avoided by dividing performance of method steps among multiple parties without direction or control.  However, the Supreme Court is leaving the opportunity to revisit the Municauction case with the Federal Circuit.

REVERSED AND REMANDED.

Octane Fitness, LLC v. ICON Health and Fitness, Inc. and Highmark, Inc. v. Allcare Health Mgmt. Sys. Inc.

Posted in Litigation Commentary by Kristen Fries on April 30, 2014

The determination of whether a case is “exceptional” under the attorney fee-shifting provision of The Patent Act is left to a broad discretion of the District Court.

In two slip opinions rendered April 29, 2014, SCOTUS addressed issues regarding awarding attorneys fees under 35 U.S.C. § 285 to prevailing parties in “exceptional” patent infringement cases. Under 35 U.S.C. § 285, a District Court is authorized to award attorney’s fees to prevailing parties in “exceptional cases.” The CAFC had used a Brooks Furniture standard defining an “exceptional case as one which involves “material inappropriate conduct” or is both “objectively baseless” and “brought in subjective bad faith.” Under the Brooks Furniture standard, an exceptional case must be established by clear and convincing evidence.

 

OCTANE FITNESS

In the opinion delivered by Justice Sotomayor, the Court, in a 9-0 decision, construed the term “exceptional” in its plain and ordinary meaning and held that exceptional means “uncommon,” “rare,” and “not ordinary.” The Court held that the CAFC has applied too rigid of a standard in determining whether a case is an exception case and rejected the Brooks Furniture standard.

According to Justice Sotomayor, the § 285 statute is “patently clear” and imparts flexibility on the District Court to decide whether a case is exceptional. Octane, slip op. at 7. “[A]n ‘exceptional’ case is simply one that stands out from others with respect to the substantive strength of a party’s litigating position (considering both the governing law and the facts of the case) or the unreasonable manner in which the case was litigated.” Id. at 7-8. Therefore, the intent of the statute only requires that the litigation present either subjective bad faith or exceptionally meritless claims. Additionally, the Court held that a preponderance of the evidence standard is the appropriate standard to use to establish entitlement of fees, rather than a clear and convincing evidence standard. Id. at 11.

Reversed and Remanded

 

HIGHMARK

In this opinion, also delivered by Justice Sotomayor, the Court used the Octane case as precedent to unanimously hold that “an appellate court should apply an abuse-of-discretion standard in reviewing all aspects of a district court’s § 285 determination.” Highmark, slip op. at 5.

Vacated and Remanded

 

The Octane opinion can be found here and the Highmark opinion can be found here.

Note: The holdings in these cases, relaxing the standard required for district courts to determine whether a case is “exceptional” may aid in thwarting certain “patent trolls” from asserting patent claims that are meritless or brought in bad faith. Stay tuned to see how these rulings affect the litigation process, the legislative process regarding patent reform, and if the holdings will actually send the trolls back under the bridge or if the trolls will just find another way out.

Alice Corp. v. CLC Bank Int’l: Notable Quotes from the Oral Arguments.

Posted in Litigation Commentary by Kristen Fries on April 18, 2014

The link to the transcript for the March 31, 2014 oral arguments before the SCOTUS in Alice Corp. v CLC Int’l can be found here.

Background: Alice Corporation, petitioner, owns the four patents-in-suits which are directed toward a computerized trading platform for the execution of a previously agreed-upon exchange, known as “settlement.” The inventions include electronically maintained accounts for each party in the settlement and after receiving transactions from each party, the computer system effects the exchange. The United States District Court for the District of Columbia declared each of Alice’s patents invalid for not defining patent-eligible subject matter. The U.S Court of Appeals for the Federal Circuit affirmed the decisions, in an en banc rehearing.

Issue: Whether claims to computer-implemented inventions – including claims to systems and machines, processes, and items of manufacture – are directed to patent-eligible subject matter within the meaning of 35 U.S.C. § 101 as interpreted by this Court.

Per usual, we will preface our thoughts with the following disclaimer:  “It is generally a futile effort to predict how the Supreme Court will rule on any given issue.”  That being said, below are some quotes that we found of particular interest:

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They Invented What? (No. 239)

Posted in They Invented What? by Jake Ward on April 16, 2014

U.S. Patent No. 4,151,613Protective device for the buttocks and hips of a person for use in skateboarding.

JW Note:  For all our readers who are also skateboarding enthusiasts!

skatebutt

What is claimed is:

1. A flexible, unitarily molded, protective device for wearing on and protecting the buttocks and hips of a person engaging in the sport of skateboarding comprising:

a. casing means having resilient means disposed therein and having a generally rectangular configuration adapted to be worn around a person’s midsection and comprising cutout sections in the upper portion providing upwardly extending arm members;
b. said arm members comprising slot means containing a belt member therethrough;
c. said rectangular casing means including a lower main body portion comprising tongue means and annular slot means at each side;
d. a pair of double stranded cord means secured to the lower central portion of said main body portion and to said annular slot means on each side of said lower body portion whereby said device is worn and secured around a person’s waist by securing said belt member to the person’s waist and securing each of said cord means around each of the person’s legs.

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