Earlier today in Perfect Web Technologies, Inc. v. Infousa, Inc. the United States Court of Appeals for the Federal Circuit determined that the district court properly ruled the relevant patent claims of US Patent No. 6,631,400 were invalid as a result of being obvious. In so doing, Judge Linn writing for the panel (consisting additional of Judges Prost and Dyk) determined that the claims in question were obvious as a result of being common sense. Undoubtedly the Supreme Court ushered in a new era when it decided that rather than ground obviousness determinations in objective fact they should be subjectively open to whim and fancy.
Sounds very unsound, these "determinations in objective fact" that are newly open to "whim and fancy," wouldn't you agree, gentle reader? Quinn calls for a far more objective measure when applying the "common sense" test. "The process matters, truth matters and by the very nature of what I observe every day a good many things that I think are common sense simply are not common or sensible in the minds of others. A moving, unpredictable target just cannot be the standard." Ah, yes, but life, and patent process are not so simple, Mr. Quinn, and to suggest that every case must fall cleanly and exactly into a given legal space is just not realistic. That's why we have judicial opinions and a variety of processes in place to allow a defendant multiple chances to make sure the judgment is sound and one that is agreeable to more than one legal expert. Or?
OregonLive.com: A Portland patent-holder is fighting a legal battle against a competing product that he claims infringers on his medical device. According to Bryan Denson, a reporter for The Oregonian, the case is an on-going one that is growing a bit long in the tooth:
An appeals court Wednesday reversed a judgment against a Florida company accused of infringing on a Portland doctor's patented device for repairing shoulders and other joints.
Portland jurors determined in June 2008 that Arthrex Inc. had intentionally infringed on a patent owned by Dr. John O. Hayhurst and licensed to Smith & Nephew Inc., a global medical technology business.
Wednesday's reversal by the U.S. Court of Appeals for the Federal Circuit, based in Washington, D.C., sends the case back to Portland's U.S. District Court for a third trial.
The device in question is one that led Dr. Hayhurst to "accuse Arthrex of using a similar anchor, often used in surgeries for torn rotator cuffs, which infringes on their patent" to which Arthrex counters that their device uses a different method of attachment, "much like a nail" whereas Hayhurst's "invention operates more like a clothespin." For more details on this particular patent case, check out Denson's Reversal sends medical patent case back to Portland.
SFGate.com: Should the owners of cleantech patents share them with developing countries in an attempt to help the world fight global warming in a united effort that spans economic and national boundaries or is it better if the patent holders gain as much return on their ideas as possible to help them develop their technologies while remaining profitable? Lois Kazakoff joins the conversation:
The debate is of particular interest to the Bay Area because many of the companies and institutions involved are here. Both UC Berkeley and the Lawrence Berkeley National Laboratory have expertise in international collaboration on clean tech research and development, including the invention of fuel-efficient cookstoves for Africa's poor.
The Center for Environmental Public Policy at UC Berkeley has released a report on the battle over intellectual property rights in the transfer of low-carbon technologies to developing countries. You can read the report, "Who owns the Clean Tech Revolution?" here.
Recognizing the issue is deadlocked, organizers of the U.N. climate conference that begins next week in Copenhagen have put forth proposals for "technology action programs" that would help bring climate-saving technologies to poor nations.
To learn what one IP expert thinks is the way forward in this bitter IP stalemate, be sure to check out the rest of Kazakoff's Skirmishes in the Clean Tech revolution.
NewsBlaze: Digital Rights Management (DRM) is a hot intellectual property area and IP purveyor and auctionhouse Ocean Tomo is putting some DRM patents on the block for sale. From ICAP Ocean Tomo Engaged to Sell Intellectual Property Portfolio of DRM Technology Owned by Samantha Inventions come more details:
ICAP Ocean Tomo announced today it has been engaged to sell an intellectual property portfolio of 6 issued U.S. patents relating to DRM (Digital Rights Management) technology. Cited by industry giants Sony, Microsoft, and Hitachi, the assets support a wide range of business models such as content downloads, music subscription services, DVD digital copy, and DRM software tools.
The patents disclose techniques and methods enabling enhanced protection of audio and video content, as well as secure delivery of digital content for playback on computers, portable devices, and network devices.
All parties involved seem quite pleased with the planned sale, and as Dean Becker, ICAP Ocean Tomo President puts it, "We are very excited to be working with Samantha Inventions to bring this valuable technology to market."
PatentBaristas.com: The protection of cultural and traditional knowledge has taken a step in the right direction with a new agreement between India and the United States. Stephen Albainy-Jenie explains: "India and United States have signed two inter-governmental agreements on Intellectual Property Rights (IPR) to help prevent what they say is the misappropriation of traditional knowledge through mistaken issuance of patents, what some call biopiracy." Biopiracy theft is "a process in which living resources or traditional knowledge and practices are patented, thus applying intellectual property restrictions to their use. The resources in question are predominantly from developing countries, and are the subject of patent applications by companies in developed countries." The agreement will enable the USPTO "to search the database of India’s traditional knowledge" while at the same time "prevent the patenting, and thereby misappropriation, of existing traditional knowledge." A good sounding way to get more protecetion for traditional understandings of local areas that have sometimes been co-opted for profit without benefiting those who hold the knowledge in question. Read Albainy-Jenei's U.S. Patent Office Gains Access to Traditional Knowledge Digital Library (TKDL) for the rest of this refreshing story.
Bonus IP piece o' the day: District looks to trademark Byrnes High Rebels logo by Lee G. Healy at GoUpstate.com.