I suppose it’s natural that your views on the patent system depend largely on who you are and where you stand. Thus it doesn’t surprise me that, according to a recent article, Sun Microsystem’s President and CEO Jonathan Schwartz thinks the U.S. is “too free to issue patents.” Striking a little closer to home, he also has some choice comments for “spurious litigators” (who? me?) who, supposedly, somehow stand in the way of “innovation.”
Continue Reading Sun Head Slams Patent System

While perusing the Traumatic Brain Injury Blog, I found an interesting article entitled, “When Will Trial and Appellate Courts Stop Usurping the Role of the Jury?” Seems we patent litigators aren’t the only ones seeing a disturbing trend against letting juries actually decide cases.

The always interesting subject of “do it yourself patenting” came up in Steve Nipper’s “The Invent Blog” earlier today. (Steve somewhat graphically likens this to pulling your own teeth.) Obviously, those of us professionally engaged in obtaining and enforcing patents have a personal stake in the matter – which might bias our thinking a bit. But still, I agree with Steve and think there’s a lot to be said for leaving patent prosecution to those who know what they’re doing. As someone who frequently has to defend the validity of patents in court, I speak from experience here.
Continue Reading Do it yourself?

Monday’s Federal Circuit decision in Insituform Technologies v. CAT Contracting, et al. answers one of the deepest, most profound questions ever to arise in patent jurisprudence. That question – asked by corporate executives everywhere – is, “Why does patent litigation cost so damn much?”

The Insituform decision is a fascinating example of a system run amok. It’s remarkable not for its actual holding, but for its account of the tortured history the case has had in the fourteen years since being filed. Procedure and endless obsessing over minutiae have displaced lesser concerns, such as rendering a more-or-less reasoned decision while the litigants are still young enough to care.
Continue Reading That’s where my money goes…

A couple of cases from the Federal Circuit this week suggest (to me anyway) that the court has no intention of relinquishing any real power any time soon. The march toward total control over the outcome of patent cases thus continues.

In Astrazeneca AB, et al. v. Mutual Pharmaceutical Company, Inc. the Federal Circuit once again relies on features of the preferred embodiment to find limitations that don’t actually appear in the claims. In Laboratory Corporation of America Holdings, et al. v. Chiron Corporation, the court considers a narrow procedural issue and concludes that it has the power to decide questions that actually affect the outcome of patent cases. The net result is to consolidate the power of the Federal Circuit to determine the final outcome in patent cases with little, if any, say from others.
Continue Reading And the Beat Goes On…

Move over pajama-clad “Rathergate” bloggers, the real action this week was (as always) on the patent litigation front. September 20, 2004 marked the DUE DATE for various “Friends of the Court” to file their Amicus Briefs in Phillips v. AWH Corp., a case now before the entire panel of Federal Circuit judges.

The Phillips case is terribly important because it might well define how patent claims are interpreted in decades to follow. That is, or should be, of interest to those of us who enforce patent rights, particularly on behalf of the “little guy.” Dennis Crouch’s excellent Patently Obvious contains links to at least eleven of the briefs and summarizes the basic arguments they make. They make for fascinating reading.
Continue Reading Ya’ Gotta Have Friends! (Or, “With Friends Like These…”)