Patently-O Bits & Bytes by Lawrence Higgins

HigginsFalse Marking Statute Found Unconstitutional

  • The Northern District of Ohio has found that the false marking statute (35 USC 292) is unconstitutional. [Link] Judge Polster applied the Morrison sufficient control analysis, and held the false marking statute invalid because the government lacks sufficient control to enable the President to "take Care that the Laws be faithfully executed. This case will surely be appealed to the CAFC and maybe even the Supreme Court. [Link] Already on appeal to the Federal Circuit is FLFMC, LLC v. Wham-O. In that case, Wham-O has argued that the statute is unconstitutional.

Motorola sues TiVo for patent infringement

  • Motorola contends that TiVo is infringing on patents that they acquired when they bought Imedia Corporation that are related to digital video recorders (DVR's). Motorola claims that the Imdeia Patents were filed in 1995 while; TiVo filed Patents were filed in 1998. The patents that Motorola obtained from Imedia are patent #'s 5,949,948, 6,304,714, and 6,356,708. Motorola asserts that the TiVo patent #'s 6,233,389 and 7,529,465 claim the same technology as their patents. [Link]

Is the patent backlog decreasing?

  • USPTO Commissioner for Patents Bob Stoll recently reported that the total backlog awaiting first office action by examiners decreased in February to 718,857 from 721,831 in January. Stoll also noted that there is a decline in the first action pendency time to an average of 24.2 months for January 2011 from 24.6 months in December 2010. Currently the USPTO has received over 11,000 more patents as compared to this time last year. [Link]

Sony Playstation 3 consoles seized after patent infringement suit

  • LG has won a preliminary injunction in Europe against Sony in a patent infringement suit. [Link]The injunction states that no shipments of the Playstation 3 can be shipped into Europe for at least 10 days. Also LG has filed a similar request with the US International Trade Commission, seeking to bar import of the Playstation 3. The complaint to the USITC alleges that Sony infringed at least one or more claims in US patent #'s 7,701,835, 7,577,080, 7,619,961 and 7,756,398 relating to the playback of Blue-ray Discs. [Link]

Patent Jobs:

  • Halcyon Molecular is seeking an IP strategist for their Silicon Valley location. [Link]
  • Life Technologies is looking for a Patent Attorney with 4-8 years experience and an EE or physics background. [Link]
  • McGinn IP Law Group is seeking a Patent Attorney with a BSEE. [Link]
  • ST-Ericsson is looking for an IP Attorney with more than 7 years experience to work at their Santa Clara location. [Link]

Upcoming Events:

  • Northwestern Journal of Technology and Intellectual Property will hold its 6th annual Symposium on Friday March 4th from 9am-5pm. The Symposium will discuss "The Economics of Intellectual Property and Technology," the keynote speaker will be Michael Fricklas. [Link] (Free Event, however CLE credit available for $200)
  • Berkeley Center for Law and Technology will hold an event on March 10th entitled, "Beyond Piracy: Managing Patent Risks in the New China." Presenters include Sharon Barner, Robert Merges, and Robert Barr to name a few. [Link]
  • The USPTO and USWCC will hold a Women's Entrepreneurship Symposium on March 11th. The event will be held at the USPTO headquarters in Alexandria, Va. The keynote speaker will be U.S. Senator Mary Landrieu will be the keynote speaker. [Link]
  • The George Washington University Law School will host an Intellectual Property Panel Symposium on March 18th. Guest panelists are Bruce Sewell, Mike Jacobson, John Whealan and Chief Judge Radar will be the keynote speaker. [Link]

47 thoughts on “Patently-O Bits & Bytes by Lawrence Higgins

  1. 47

    Northern District Update:

    In a motion filed March 8, the government alleged that it should be allowed to intervene because it was not given proper notice that the constitutionality of the provision was being challenged in the case.

    The government also maintained that the judge’s ruling improperly characterized the false marking law as a criminal statue and should be reconsidered.

    Suits brought under the law are in fact civil matters, the government said, and as such, “they do not cut to the heart of the executive’s constitutional duty to take care that the laws are faithfully executed.”

    In addition, because the government can intervene in a false marking suit, it “retains sufficient authority over the case to satisfy the obligation of the take care clause,” the government argued.

    So let’s see – Judge Polster based his view on the premise thathte Government could not intervene, the Government does intervene and the good Judge allows and hears the motion, but sticks to his guns.

    Let’s let 6 handle the logic here: the government intervenes, but the judge says the government cannot intervene (but lets the government intervene).

    Anyone see the problem here?

    Anyone?

    Bueller?

    Bueller?

    Bueller?

  2. 46

    Not so fast.

    There are 2 situations in which “infringe” is used:

    link to dictionary.reference.com

    When it is used with an object, as in with the object “patent”, the correct usage is “infringe a patent”. It is only when used without an object that “infringe” is usually followed by “on” or “upon”.

    And as for defining acceptable speech as what Federal Judges use, much of what they say is just plain gobbledygook.

  3. 45

    Oh, but my flame wars 6 I be startin (just like my dances I start with a sharp stick) be more than mere be otchin – they done serve the prime purpose of entertainin me.

    What could be more beneficial than that?

  4. 44

    “Yet still there you are, on your donkey at the edge of the rye fields, looking for windmills to be otch yet.”

    Says the man that starts a daily flame war, intentionally. And who rarely says anything which is not directed to, in essence, merely starting a flame war.

    Hello Pot? Yes, I have a mister Kettle on the other line.

  5. 43

    Yep Sunshine – the chuckles you provide are based in part because you think that you have a clue and that your typical “sniff” comments actually are insightful.

    Yet still there you are, on your donkey at the edge of the rye fields, looking for windmills to be otch yet.

    Nothin but chuckles.

  6. 41

    In context Sunshine, the only meaning is as I observed: consistently no meaning.

    But then again, projecting is one of your best (well, at least most often) practiced “skills”, aint it?

  7. 40

    It most definitely has a meaning, ping. Maybe you need to Google a bit … harder? LOL.

  8. 39

    Fluffin’

    Absolutely no meaning – much like most any Sunshine Malcolm post.

    Gee, whatta surprise.

  9. 37

    “I’m told that it’s shameless creeps like these that keep the wheels of American commerce turning.”

    Waaht? You don’t take the good Dr. Stone’s motivation at face value?

    At least they’re going to be “Made In The YouEssOfAaaY”.

    If he actually gets any orders, that is.

  10. 36

    re:

    I’m told that it’s shameless creeps like these that keep the wheels of American commerce turning.

    I’ve seen that it’s shameless creeps like you that keep the wheels of mere comment sections on blog Chuckle-wagon wheels turning.

    But thanks for today’s Windmill of the day.

  11. 35

    link to cityroom.blogs.nytimes.com

    A personal escape harness inspired by the victims who jumped from the World Trade Center will be available in time for the 10th anniversary of Sept. 11 attacks, its inventor announced Tuesday at the TED conference in Long Beach, Calif.

    I’m told that it’s shameless creeps like these that keep the wheels of American commerce turning.

  12. 34

    “Meanwhile, filings …continue unabated.”

    Of possible interest to this point is that it appears that some of the heavier-filing LLCs are actually related entities. File a bunch of cases under one LLC name, form a 2nd LLC, file another bunch of cases….

    One wonders if this tactic is in any way geared toward at least partially disguising who is receiving much of the settlement monies?

  13. 33

    This Polster, J. seems like a smart feller. Well-reasoned opinion. I’ll bet 6’s infatuation with NAL that it will stand (assuming the FLFMC/Wham-O Court doesn’t beat it to the punch).

  14. 32

    Infringing on is perfectly accepted speech, many Federal Judges use the same language. Do not worry Mr. Higgins infringing on, is perfectly acceptable!

  15. 31

    Ah, now, you see – a flame war is when TWO sides are bickering (with respect to the late Bill Hicks)

  16. 27

    Meanwhile, filings by Patent Group in E.D. Texas continue unabated.

    Since when is ED Texas bound by rulings in ND Ohio?

  17. 26

    “The Northern District of Ohio has found that the false marking statute (35 USC 292) is unconstitutional.”

    Meanwhile, filings by Patent Group in E.D. Texas continue unabated.

  18. 25

    Besides, I started a mini-flame war between second wind, you and ping.

    No, you did not.

  19. 24

    Mr. Higgins, be deterred.

    Your inarticulation is seen by some as but one manifestation of a larger problem.

  20. 23

    Or all these cases could be thrown out as there is zero evidence of anyone being harmed by marking with an expired patent.

    The main reason a lot products are so-marked is simply because changing the process so that they are not marked entails costs.

  21. 22

    My choice of moniker isn’t entertaining enough? Besides, I started a mini-flame war between second wind, you and ping. I view that as mere flatulence, but some might consider it to be entertainment.

  22. 21

    Well I am not sure that the Judge fully comprehends the relevant arguments that must be entertained to reach a conclusion concerning the constitutionality of the false marking statute. Remember one has only 15 to 17 days to respond to a motion. This is an enormous issue. Moreover, a District Court judge typically relies upon the arguments of counsel to reach a decision. It is my belief that this case was poorly argued. It will probably take the Federal Circuit to address the issue before we can have clarification on the subject. Let us wait and see what other arguments are made in response to this attack on the statute before we all get excited. I think that all will be quite surprised. For an analogous issue was addressed over 147 years ago.

  23. 19

    Now be scared, Higgie-boy, if Maxi likes what ya be doin, ya either be in the wrong country or facing backwards in the saddle.

  24. 18

    Wind, should you not have a comma after “that”? I suggest you read “Eats shoots and leaves”.

    Mr Higgins, do not be deterred. I find “infringes on” rather charming, and “patent grants” totally inoffensive.

  25. 17

    I compliment you, Old Fart, on your choice of pseudonym. Perfectly apt, I must say.

    We have enough evil-smelling effluxions already on this blog, without having to suffer yet another.

    Can you next time emit something useful or entertaining instead?

  26. 16

    I second that Old Fart.

    “Infringing on” is almost as annoying as “when the patent grants”, which seems to be increasingly common in some quarters that should really know better.

  27. 15

    “Motorola contends that TiVo is infringing on patents that they acquired…”

    First – and Dennis should have taught you this on the first day of his patents course – a person doesn’t infringe *on* a patent. A person infringes a patent. Know-nothing journalists and U.S. senators say that a person infringes *on* a patent.

    Second, (a) “Motorola” is singular, so if you’re going to use a pronoun, use “it”; but (b) please stop using so many pronouns. Try, “Motorola contends that TiVo infringes patents that Motorola acquired…”

  28. 14

    Ugh, PS3s are only being held by customes in the Netherlands pending an investigation of whether they infringe a Dutch patent(s). There is no European injunction.

    Whether they can be imported into other countries depends upon whether there are patents there. The Euro-wide effect is a happenstance only in that goods destined for the whole of Europe were being first processed by Dutch customs.

  29. 13

    Lawrence Higgins is a 2L here at the University of Missouri School of Law and also a future patent attorney. He has a background in biology and chemistry. He also worked as my research assistant for a year before I asked him to start writing these Bits and Bytes posts. If you have material for Bits and Bytes, please e-mail Lawrence: lawrence.higgins@patentlyo.com .
    — Dennis

  30. 12

    Most any law student has the opportunity to wear a red tie. Even the female law students.

  31. 10

    Yes, but is he one of Dennis’ students? I hope so, it would be a great opportunity for a law student.

  32. 7

    Re Sony and the Playstation 3, I applaud the “injunction” in Europe. It appears that “Europe” may indeed have a functioning patent system rather than a collection of local systems.

    Max, if you could, can you explain what happened here? Were there patents in all Euro countries justifying the pan-Europe exclusion?

  33. 6

    Judge Polster applied the Morrison sufficient control analysis, and held it invalid because the government lacks sufficient control to enable the President to “take Care that the Laws be faithfully executed.

    Held “it” invalid? What does “it” refer to – the sufficient control analysis mentioned immediately prior to the “it,” or the statute that you mentioned quite a bit earlier? Since I’m pretty sure it’s the latter, you might want to consider an edit.

  34. 5

    Any chance of your judge joining mine at the CAFC? A panel featuring both of them would see through every smoke and mirror put up in front of them.

  35. 4

    There are only two reasons why a company will be sued for false marking on the basis of expired patents: (1) either they intentionally falsely marked their product for purposes of deceiving the public or (2) a registered patent attorney whose responsibility it was to advise his client of the approach of the patent’s expiration and the need to proactively plan for the cessation of product marking on the expiration date committed malpractice by failing to so act.

    We need a qui tam statute that allows any person to sue such malpracticing patent attorneys and split the recovery with their clients when those clients are just too blind to see who is responsible for their legal woes.

  36. 3

    That would be the one who sees issues more clearly than all the others, right?

    I suppose, but that’s nothing compared to the quality of the hearing you’ll get with Judge Sonar.

  37. 2

    Chief Judge Radar? That would be the one who sees issues more clearly than all the others, right? Good that he is the chief then.

  38. 1

    “The Northern District of Ohio has found that the false marking statute (35 USC 292) is unconstitutional. [Link] Judge Polster applied the Morrison sufficient control analysis, and held it invalid because the government lacks sufficient control to enable the President to “take Care that the Laws be faithfully executed. This case will surely be appealed to the CAFC and maybe even the Supreme Court. [Link] Already on appeal to the Federal Circuit is FLFMC, LLC v. Wham-O. In that case, Wham-O has argued that the statute is unconstitutional.”

    lulzlulzlulzlulzlulzlulzlulz

    NAL’s precious baby going down in flames.

    How long has this thing been on the books? Like forever? People are just now contesting it being constitutional? If this ruling is not reversed it’ll be a mockery of the whole system.

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