Typhoon Touch v. Dell: Claims Saved From Aristocrat Invalidity But No Infringement Found

By Chris Reaves A massive infringement suit against the major players in the touch-screen mobile market ended in the Federal Circuit, which confirmed that two patents required that a computer have specific software installed, not merely the capacity to run said software should it be installed.  In a small comfort to the patent holder, the Circuit also reversed a holding that certain patent claims were unsupported means-plus-function claims, finding that a textual description of the procedure involved qualified as an “algorithm” for Aristocrat purposes. Background In 1988, prosecution began on a chain of patent applications that culminated in Patents No. 5,379,057 (‘057) and No. 5,675,362 (‘362), issued in 1995 and 1997 respectively.  Both patents disclosed a “portable, keyboardless computer” with components including “a touch-sensitive screen … configured for entry of responses” and an “application generator for generating [at least one] data collection application and for creating different functional libraries”. Typhoon Touch Technologies, Inc., the present assignee of the patents, sued

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Federal Circuit Overturns District Court’s Claim Construction in Markem-Imaje Corp. v. Zipher Ltd.

.By Zi Wang In Markem-Imaje Corp. v. Zipher Ltd., 657 F.3d 1293 (Fed. Cir. 2011), the Federal Circuit per curiam majority overturned the district court’s claim construction and summary judgment of noninfringement. Markem-Imaje Corp. sued Zipher Ltd. and Videojet Technologies, Inc. (together “Zipher”), requesting a declaratory judgment that Zipher’s ‘572 patent is not infringed by Markem.  The ‘572 patent is directed to a heat transfer printing apparatus that provides increased control over the acceleration, deceleration, speed, and positional accuracy of the printing operation.  In transfer printers in general, the ink ribbon is wound on two spools, one spool for supplying the ribbon for positioning on the substrate, and the other spool for taking up the ribbon after use.  Maintaining correct ribbon tension is essential for proper functioning of the printer.  The patent specification explains the problems with the mechanism that has been used to provide ribbon tension in prior art printers.  It then distinguishes the prior apparatus from what the

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Federal Circuit Defines Language of 35 U.S.C. § 271(e)(2) in a Hatch-Waxman Controversy

By Kevin M. Repper In the case of AstraZeneca Pharmaceuticals LP v. Apotex Corp., No. 2011-1182 (Fed. Cir. 2012), Astrazeneca holds the rights to three patents related to the drug rosuvastatin calcium. Two of the three patents involve methods of using rosuvastatin compounds. One of which is a method of treating heterozygous damilial hypercholesterolemia (HeFH) and the other is a method of lowering cardiovascular disease risk for individuals who have normal cholesterol levels but demonstrate elevated circulating C-reactive protein (CRP). The method of use patents expire in 2021 and 2018, respectively. Apotex, a generic pharmaceutical manufacturer, filed an Abbreviated New Drug Applications (ANDA) with the FDA seeking to market generic rosuvastatin for treating hypercholesterolemia (HoFH) and hypertriglycerdemia while omitting or “carving out” patented indications directed towards the treatment of HeFH and elevated CRP. Under the Hatch-Waxman Act, the filed ANDA must provide a list of all the related patents and if the method of use patents do not claim a

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Linsanity Hits Trademark Registration both in the United States and China

By Evelyn Li New York Knicks’ rising star Jeremy Lin has filed a trademark application with the United States Patent and Trademark Office for the term “Linsanity” on Feb. 13th, 2012. Three different fillings under the same term came to the agency before Lin acted on claiming his IP rights. Yenchin Chang, one of two California applicants who works as an importer/exporter, has paid the $1,625 filing fee to use the phrase on sports apparel so that he could “be a part of the excitement.” The other California applicant, Slayton, purchased the domain name http://www.linsanity.com. None of those three applicants have any ties to Jeremy Lin. 15 USC §1052 (c), states that no trademark shall be refused registration unless it “Consists of or comprises a name, portrait, or signature identifying a particular living individual except by his written consent, or the name, signature.” Also, in determining whether a particular living individual with that “name” would be associated with the mark,

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Vexatious Plaintiff Is Slapped With $4.5M In Fees

By Zi Wang In MarcTec LLC v. Johnson & Johnson, 664 F.3d 907 (Fed. Cir. 2012), the Federal Circuit affirmed the district court’s holding that the case is exceptional and awarded a total amount of more than $4.5 million in attorney and expert fees to the defendant. Plaintiff MarcTec filed suit against Cordis, a subsidiary of Johnson & Johnson, alleging the latter of infringing the ‘753 and ‘290 patents. The two patents-in-suit are directed at surgical devices and implants with a therapeutic-agent-containing coating bonded by heat.  According to the prosecution history, in order to overcome the PTO’s rejection over the ‘417 patent, the patentee highlighted the fact that the coating is to be bonded by heat.  The patentee also tried to distinguish his invention from stents during prosecution for similar reasons.  The allegedly infringing product in question is the Cypher stent manufactured by Cordis.  The product utilizes the technology disclosed by the ‘417 patent, the same patent plaintiff distinguished and

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The Harari Cases: Copied Claims Found Unsupported Despite Proper Incorporation of Prior Applications

By Chris Reaves After a lengthy prosecution led to two interferences over new, copied claims, a Federal Circuit panel reviewed whether the new claims were supported by the old description.  The Circuit found that the application properly incorporated the complete disclosures of two prior applications.  However, it also found, in a limitation on a prior ruling in Baldwin Graphics, that the indefinite article “a” in a “consisting of” clause meant “one and only one” in the specific context of the claim. Background Eliyahou Harari and his colleagues filed Patent Application Nos. 07/337,566 (‘566) and 07/337,579 (‘579), and much later, after “a chain of continuations and a divisional,” 09/056,398 (‘398).  The applications claimed various methods for programming computer memory arrays.  ‘398 added claims that it admitted were “substantial copies” or “near exact copies” of those in Patent Nos. 5,619,454, filed by Roger Lee, and 6,426,898 and 6,493,280, filed by Andrei Mihnea.  Nonetheless, as ‘398 was a child application of ‘566, which

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Breach of Consent or EPIC Fail?

By Dan McPheeters As we touched on in our prior post, the Electronic Privacy Information Center (EPIC) has filed a lawsuit against Google alleging that the controversial new privacy policies that were implemented on March 1st violated the consent decree Google entered into with the FTC last October. The lawsuit was subsequently dismissed when a District Court judge agreed with the FTC that Courts lack the authority to force a federal agency to take action under a consent decree; however, since EPIC is appealing the ruling, the legal question posed by the lawsuit is still relevant. Interestingly, while the FTC has yet to take any formal action against the search giant, key officials have made their feelings known and they are not favorable to the once-beloved tech icon. Moreover, an analysis of the consent decree itself can help shine a light on whether Google has actually done anything wrong in implementing its new privacy policy. The consent decree at the

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Much Ado About Google

By Dan McPheeters Google has been taking flak recently for its “new” privacy policy, which rolled out on March 1st. From tech bloggers calling the company “evil” (and showcasing their graphic design skills in the process) to accusations of illegality from European and American regulators, the company has surely taken a PR hit of late. But that simply begs the question: has the company actually done anything wrong, or have they merely completed the metamorphosis from lovable David to hated Goliath? On a personal level, as someone who grew up in the 90’s it is interesting to see Bill Gates viewed as a beloved philanthropist and Google as an evil, invasive company hell-bent on eviscerating its users’ privacy in the unholy name of profit. The juxtaposition is somewhat jarring. Meanwhile, there are those in the media who have pointed out that the privacy policies have not actually changed, and that if anything the policy has been made more transparent and

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Levi Strauss Wins a Trademark Infringement Lawsuit in China

By Evelyn Li Levi Strauss recently won a trademark lawsuit in China against four Chinese companies on its trademark infringement claim regarding its double-arc stitching design. Levi asked the court to order the four companies to immediately stop using its double-arc stitching design, destroy all infringing products and delete all Internet ads. Moreover, it also asked for compensation of 1 million yuan from the infringers, “Jasonwood” brand owners and their manufacturer. The Chinese companies argued that they designed their trademark based on the letter “J,” and it is different from Levi Strauss’ design. But the court was not convinced. The main issues in the case were: (1) whether the two trademarks were in fact similar; (ii) whether the double-arc mark on Levi Strauss’s jeans has gained distinctiveness as required by the Trademark Law of China so that any similar marks used on the same class of goods would cause confusion among the relevant public; and (iii) whether the plaintiff Levi

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Right Decision; Wrong Reason — The Prometheus Patents Seem to Satisfy § 101

By Robert Lower The Supreme Court handed down its decision in Mayo v. Prometheus Laboratories March 20, 2012, holding U.S. Patent Nos. 6,355,623 and 6,680,302 invalid for failure to satisfy 35 U.S.C. § 101. Prometheus is the exclusive licensee to these patents, which boil down to a process for calculating a dosing regimen for a drug that threads the needle between an inefficacy and overdose, based on the level of metabolites in patients’ blood. The court referenced the first claim of the ‘623 patent in reaching its opinion: We claim: 1. A method of optimizing therapeutic efficacy for treatment of an immune-mediated gastrointestinal disorder, comprising: (a) administering a drug providing 6-thioguanine to a subject having said immune-mediated gastrointestinal disorder; and (b) determining the level of 6-thioguanine in said subject having said immune-mediated gastrointestinal disorder, wherein the level of 6-thioguanine less than about 230 pmol per 8 x 108 red blood cells indicates a need to increase the amount of said

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