Patently-O Bits and Bytes

  • SanDisk and Samsung are in merger talks. One of the driving ‘synergies’ is that Samsung lays out “several million dollars” annually for flash-memory patent licenses.
  • WSJ says Intellectual Ventures now holds over 20,000 patents. So far, IV had not filed any lawsuits.
  • Patents are not helping Lehman in its collapse. The company employed 20,000+ but only holds 10 issued patents. (It did hold several others as collateral). [After I wrote this I saw two other comments on the same topic Zura BM]
  • Stents: After a new trial, Cordis again won its patent infringement suit against Boston Scientific and Medtronic. Now, Judge Robinson will reinstate the $600 million in damages plus interest from the original 2002 verdict.
  • No Subject Matter Jurisdiction: In ExcelStor v. Papst, the CAFC held that it does not have appellate subject matter jurisdiction over claims of patent licensee fraud or breach of contract.
  • Strike: EPO examiners are scheduled to go on strike tomorrow – but just for one day. They want better patent quality. “Constant decisions in favour of quantity damage the quality of the patents.”
  • Jones Day Hates The WWW? The Cleveland based mega-firm has sued the operator of for announcing that two Jones Day associates had purchased expensive homes. BlockShopper apparently crossed the line when it added a link to the firm’s website. [Hricik][Ambrogi][Randazza, who, by the way is a great writer][Levy].
  • Risperdal: Last week, the CAFC held that Apotex could not challenge Janssen’s patent if the purpose was simply to prevent the exclusive generic from potentially extending the start of its 180 days of exclusivity. In a parallel decision, the DC Circuit has held that TEVA has no right to be the exclusive generic. Although no written decision has issued, the court apparently decided that TEVA’s paragraph IV certification was not sufficient because it challenged a patent that had already been de-listed from the orange book by the patentee. Other generics should be on the market very shortly.


30 thoughts on “Patently-O Bits and Bytes

  1. Ah Frodo, Erhardtstrasse. So it was the Technical Board of Appeal. Sorry it was boring. Clear all along who was going to win then? No surprise when the Chair announced the Decision? I ask because it can be a bit scary for patentee’s EPO counsel, esp. when after lunch Chair says “The oral proceedings are resumed. The patent is revoked. The oral proceedings are closed” because there’s no further instance to which one can appeal.

  2. Max,

    I was thinking of the one on Erhardtstrasse in Munich. I was there a few months ago for an opposition. Opposition was boring, but the lunch sure made up for it and the beer with my lunch helped kill the boredom!

  3. “Maybe he was an annoying white European male, who made good numbers, but just didn’t play well with the other children.”

    Maybe it was e6k, who was fired for obvious reasons. We haven’t heard from him for a day or so, have we?

  4. Maybe he was an annoying white European male, who made good numbers, but just didn’t play well with the other children.

  5. From Europe, thinking Occam, could it not just be that the individual let go after 22 months was brilliant at meeting targets but displayed an alarming lack of aptitude and talent for examining patent applications? New hires in some patent law firms, apparently enjoying all the attributes of a brilliant patent attorney, sometimes just don’t “get it” and not only that, they have difficulty grasping that they don’t get it, and can’t see the point in sitting quiet, listening carefully and then digesting what they have heard. Eventually, they are let go. Preferably just before the end of the period specifically provided for such decisions, rather than any later, when resentments are even higher. Having read this blog for months, on the dubious usefulness of USPTO metrics, I should have thought that to be the most simple and obvious explanation (rather than, for example, Eye’s “white male” explanation).

  6. incidents like that firing also decrease morale and result in more examiners leaving

    (I have worked at firms like that before. Firms which are no longer in existence)

  7. News from POPA and A-EYE – Someone should investigate that incident using FOIA requests, for example, and post a nice article for all to see. I mean, the PTO is all about “reform”, so they should be happy to help.

  8. Just received this from the POPA newsletter. I personally think POPA is usually a bunch if whiners, but this is ridiculous.

    A new hire was just fired after his 22 month at the PTO. This is still within the 2 year probationary period where you can be fired for any reason.

    The person had 97% production over the last 3 quarters and 100% production over the last two quarters. He had 3 workflow subtractions (means he handed in 3 amended cases 1 bi-week late).

    PTO fired him citing production, workflow, and quality (even though no complaints were made prior to firing).

    If he were a non-probationary employee he would have had successful production rating and get this, he would have received an outstanding workflow rating for one quarter and at least a commendable rating for another quarter.

    Seems to me that you shouldn’t be fired, even if you are probationary, for meeting satisfactory and outstanding levels of rating.

    No wonder why there is such a big backlog and they can’t hire enough examiners. The ones they hire either quit out of disgust, or the ones that stay get fired with 100% production.

  9. EPO Examiners picketing the EPO in Munich (both of them) are handing out to passers-by an 8 page leaflet which explains that the representatives of member States who sit on the Administrative Council of the EPO are often from the national Patent Offices of those member States. Whether or not they are from the national Office, their Government gets the cash flow from annuities on patents issued by the EPO. So, they have a financial interest in seeing the EPO issue as many patents as possible. They also (it seems) resent paying EPO Examiners a decent pension. The Examiners have a point. The representatives of national Governments who sit on the AC do indeed have a conflict of interest. Are they to put their national interest above the interests of those with a stake in the success of the EPO. Interesting question. The EPO as The United Nations. Should it be abolished?

  10. Which one Frodo? The EPO now runs at least 6 big buildings in Munich. Then there’s the EPO in The Netherlands, where about the same number of Examiners work. People flock from miles around, to eat in their cafeteria. Berlin is a great city, and the EPO has a branch there. Then there’s Vienna of course. Take your pick. I guarantee you won’t be disappointed. What we(!!!???) need to do is to change Article 166 of the EPC, which stipulates that the EPO Administrative Council (member States fill its seats) can invite any other “European” country to join. Now that all Europe is in, the member States should delete the word “European” from that Article of the EPC, so that all Asia can join too. New joiners get to staff the EPO with an allocation of Examiners, in proportion to the number of cases their State files at the EPO. How about branch offices in Tokyo and Beijing, thousands of Asian Examiners at the EPO, and a future EPO President from Japan. Why not? Patent law in Asia is more or less indistinguishable from the patent law of Germany.

  11. Has anyone seen the cafeteria at the EPO? It’s fantastic. If I worked there, there is no way I’d ever go on strike!

  12. You want a comment from Max? OK. EPO Examiners are 1) proficient in 3 languages 2) expert in their technical field 3)capable of seeing what the law is 4) capable of winning an argument with me. EPO management has great difficulty finding enough such people. Mgt presses for disposal of cases, faster and slicker. Ever more work keeps rolling in. Yet, still, most every Examiner is on his/her way home by around 5pm. Examiners suspect that they don’t get nearly as much compensation as the senior partner of those law firms that send in such s_t_ü_p_i_d replies to their brilliantly lucid OA’s. So they grumble about what unreasonable productivity demands management is now imposing on them. The human needs to grumble about management, no? It’s in our nature, no? For a disinterested view of the strike, read the Joff Wild blog on Zura and IAM. He has his finger on the pulse. I suspect he’s right, that out of the thousands of EPO Exrs, only a very few caused the strike, these being a SUEPO clacque and its friendship circle. The overweening majority will go on working superbly, and carry on grumbling naturally, in their coffee breaks. BTW, from another thread; brilliant as these Exrs are, they don’t “get” claim drafting. That’s our expertise.

  13. I wonder if and how much Jones Day paid to have their logo emblazoned on this article…

    Keep this up and pretty soon we might have to be paying for Patently-O.

  14. Portkey Surfer, you’re probably right, but this ended up being a pricey forum shopping spree, and with no goods to show for it.

  15. “Just finished the CEP Pilot curriculum on ‘common errors in petitions’.”

    The most common error is, of course, filing a petition and thinking that it will be decided in a timely enough manner to be of any value towards advancing prosecution.

  16. Just finished the CEP Pilot curriculum on “common errors in petitions”. Here’s a quick summary of the PTO stance:

    “don’t bother filing a petition in any of these common circumstances where you might think it would be helpful – you’re scr3wed.”

  17. Mr. Dhuey – I’m guessing that they were trying to forum shop. Maybe their state jurisdiction has bad juries for fraud claims or the plaintiff has a bad reputation? Unsure…and even in that case, I don’t understand the appeal to CAFC.

  18. Regarding ExcelStor v. Papst, I can’t figure out why ExcelStor filed suit in federal court. Why test the edges of federal court subject matter jurisdiction? Why not just file in state court on the main contract and fraud theories?

    The client might well wonder what it has achieved so far with the fees at the district court and the CAFC. Maybe ExcelStor should be grateful to the district judge. Imagine if the district court had denied the motion to dismiss and let the case move through discovery and resolution on the merits. The CAFC ruling of no SMJ would have been a lot more painful in that situation.

  19. “Strike: EPO examiners are scheduled to go on strike tomorrow – but just for one day. They want better patent quality. “Constant decisions in favour of quantity damage the quality of the patents”

    I urge my patent attorney and agent comrades in the US to take the day off in solidarity.

  20. Lehman supposedly has a pending business method application for a method of evaluating sub-prime loans.

    Could the examiner reject for lack of enablement?

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