• En Banc Denied: Walker Process Claims Stay out of the Federal Circuit

    By Dennis Crouch

    Xitronix Corp. v. KLA-Tencor Corp. (Fed. Cir. 2018)

    When Xitronix sued KLA-Tencor, it raised only one cause of action – “a Walker Process monopolization claim under § 2 of the Sherman Act and §§ 4 and 6 of the Clayton Act based on the alleged fraudulent prosecution of a patent.” See Walker Process Equipment, Inc. v. Food Machinery & Chemical Corp., 382 U.S. 172 (1965). The basic allegation was that KLA fraudulently obtained its U.S. Patent No. 8,817,260 with claims identical-to or broader than claims of KLA’s previously invalidated U.S. Patent No. 7,362,441.

    The district court rejected the case on summary judgment based upon a lack of evidence of fraud – reasoning that the PTO probably has power to override the court. The district observed wrote:

    [T]he Court suspects the examiner was in fact aware of the Court’s [invalidity] holding but chose to ignore it. It would not be the first time the PTO, an administrative agency, overrode a final judgment of an Article III court, and it will likely not be the last.

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  • Graffiti: Copyrightable Art, Illegal Activity, or Both?

    While existing graffiti may indeed provide a tempting edge for a new marketing campaign, or as the backdrop for a great commercial, companies will need to decide if it is worth the legal or public relations risk.  If the original graffiti artist cannot be found, or is unwilling to allow their art to be used, it may end up being less expensive to start from scratch than to manage the fallout from an allegation of stolen artwork, damaged reputation, and a lawyer for the lawsuit that follows.


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  • Patent Families: U.S. Patents in the Same Family

    Patent Families: U.S. Patents in the Same Family

    A reader suggested this chart as we approach U.S. Patent No. 10,000,000.

    The chart below shows the percentage of U.S. patents with a prior issued U.S. patent in its family. The chart shows that around 20% of recently issued patents are part of a family that already has one U.S. patent. (I’ll note that less than 1/3 are divisional applications.)


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  • Amazon CEO Bezos is Knowingly Complicit in Online Sales of Counterfeit Goods, According to Report

    Although Amazon is typically quick to reference its anti-counterfeit policy as proof of its commitment to weeding out inauthentic products from its retail platform, watchdog groups continue to point at major concerns regarding Amazon’s true intentions regarding the sale of counterfeits. Most recent among these is a press release issued on June 5th by The Counterfeit Report which strongly suggests that Amazon and Jeff Bezos have every intention of skirting the rules to continue the financial…

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  • Independent judiciary requires reliability and factual credibility in economic analysis

    In a major ruling that underscores judicial independence, federal judge Richard J. Leon has just unconditionally approved the merger between AT&T and Time Warner, rebuffing the US government’s effort to stop the $85.4 billion deal.

    A Rube Goldberg machine or contraption
    Judge Leon made headlines during the trial when he questioned whether a key Justice Department theory, backed by a well-known testifying-expert economist, was a Rube Goldberg contraption: “a machine intentionally designed to perform a simple task in an indirect and over-complicated fashion. The UK equivalent of this is a Heath Robinson contraption: “any unnecessarily complex and implausible contrivance.” The Dane Robert Strom Peterson was similarly creative with “comic drawings of machines that perform very simple tasks through an unnecessarily complex and usually humorous series of actions.

    The judge was also quite damning in his written Decision:

    Page 149: “After hearing Professor Shapiro’s bargaining model described in open Court I wondered on the record whether its complexity made it seem like a Rube Goldberg contraption. Professor Carlton agreed at the trial that that was a fair description. But in fairness to Mr. Goldberg, at least his contraptions would normally move a pea from one side of a room to another. By contrast, the evidence at trial showed that Professor Shapiro’s model lacks both ‘reliability and factual credibility,’ and thus fails to generate probative predictions of future harm associated with the Government’s increased-leverage theory. Accordingly, neither Professor Shapiro’s model, nor his testimony based upon it, provides me with an adequate basis to conclude that the challenged merger will lead to anyraised costs on the part of distributors orconsumers — much less consumer harms that outweigh the conceded $350 million in annual cost savings to AT&T customers.” (citation omitted, emphasis already included)

    Professor Shapiro’s work on alleged patent holdup has similar failings, as I discussed, here(including my full analysis in a 12-page download), in August 2016, and as follows:

    I came upon a paper entitled “Patent Holdup: Myth or Reality? by Carl Shapiro, dated 6th October 2015, which was circulated as a hard-copy and presented at an IEEE-SIIT conference at the Intel-sponsored key-note address. In this, the author concedes that there are “few documented instances of actual holdups” and that they are “exceedingly difficult for researchers to detect and reliably quantify.” He has backed off from his previous claims of prevalence of “patent holdup” where he stated “patentees regularly settle with companies in the information technology industries for far more money than their inventions are actually worth. These companies are paying holdup money to avoid the threat of infringement.” Shapiro has retreated due to lack of empirical support for these original claims which is because portfolio licensing among many licensees on FRAND terms together with the courts ensure that holdup royalties are rarely demanded and are never paid. However, Shapiro takes another position where there is also no supporting evidence. He now claims that the social costs caused by the alleged “patent holdup” problem are in the actions taken to prevent holdup and in the opportunities forgone under the threat of “patent holdup.” (emphasis added)

    It is reassuring that even well-known and widely-cited economists are expected support their opinions with facts when testifying in court. Royalty-stacking theory peddlers should also beware because they are likewise devoid of supporting evidence while there is copious evidence and solid economic analysis to the contrary.

    Government agencies pursuing policy objectives must be more diligent in their deliberations. Academics and other experts should also be more principled when publishing academic articles and giving speeches. As I recently wrote in another publication on the question of “Economists: Do They Have a Place?” following a conference panel speech on the topic:

    Economists need to take responsibility for what their own economic analysis relies upon. We need economists to publish, and as expert witnesses, but we need to flush out inapplicable theories, biases, and nonsense with more empirical testing, public debate including academic peer review, and rebuttal in litigation according to the applicable rules of evidence.

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  • USPTO and the IP5

    As high level drama proceeds between our trading partners, the heads of the IP5 (US, China, Japan, EPO, and South Korea) recently met in New Orleans.  Together, these five offices “handle approximately 80 percent of the world’s patent applications.” The focus of the meeting was further harmonization, reducing costs, and reducing the burden on inventors filing in multiple jurisdictions.

    More information on the IP5 cooperation can be found at www.fiveipoffices.org

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  • 経過



    $$ After 2 h at room temperature the mixture was filtered through Celite and the residue washed with AcOH/water (9:1, 30 ml). / 室温で2時間経過した後、この混合物をCeliteで濾過し、残渣をAcOH/水(9:1, 30mL)で洗浄した。(USP7649000)

    $$ An indicator device which changes colour in the presence of steam after a certain time period is deposited within the two parts. / 一定時間経過後に水蒸気の存在により変色する指示薬装置が、該二つの部分内に配置される。(USP7608219)

    $$ After the desired period of immersion the substrate is withdrawn from the fluidised bed and is heated so as to melt and fuse the adhering particles of the powder coating composition and complete the coating. / 所望の浸漬期間の経過後、基板を流動床から取り出し、粉末コーティング成分の付着粒子を溶融させるように基板を加熱し、コーティングを完了する。(USP7041340)

    $$ In this embodiment the programmed monitored time period Ct is delayed and started only after an interval Ci. / この実施の形態では、プログラムされたモニタ期間Ctは、遅延され、間隔Ciを経過した時点でのみ開始される。(USP6941671)

    $$ In addition, an `age array` can be retained for the master image which, for each pixel, holds the time elapsed since the temperature data therefor was last updated. / さらに、「エイジアレイ」は、各マスタ画像に関して保持されることができ、各ピクセルに関して、その温度データが最後に更新されてから経過した時間を保持する。(USP7029172)

    $$ This is achieved by referring to the duration of the stop, or the time elapsed since the presentation was stopped. / これは、前記停止の持続時間、又はプレゼンテーションが停止されて以来経過した時間を参照することによって達成される。(USP7578441)

    $$ According to a preferred embodiment of the invention, if the server receives a reply to its asynchronous request before expiry of the preset time period, then it will include information from the received reply within its reply to the client system which it sends within the synchronous session. / 本発明の望ましい実施例によれば、サーバがプリセット時間の経過前にそれの非同期要求に対する応答を受信する場合、それは、サーバが同期セッションにおいて送るクライアント・システムへのそれの応答の中にその受信した応答からの情報を含むであろう。 (USP6336135): expire

    $$ The indicator of the device may be so arranged as to provide the user with feedback as to the state of the means before activation, upon activation and once the "use by" or "period after opening" has expired / 装置の表示器は、作動前、作動時、及び「賞味期限」または「開封後使用期限」経過後の手段の状態について、ユーザーにフィードバックを与えるよう構成されていてもよい。(USP8944284)

    $$ Any fluid that does leak through the outlet over time can become adhered to the outlet or the surrounding vicinity creating a mess. / 時間の経過により吐出口を通って漏れる何れの流体も吐出口又はその周辺に付着して滓を生じる。(USP7651013)

    $$ The invention comprises a method for measuring the shape of objects which might have surface discontinuities using projected fringes, in which the pitch of the fringes is varied over time. / 本発明は、投影縞を使用し、縞のピッチを時間の経過につれて変化させることにより、不連続表面を有することがある物体の形状を測定する方法からなる。 (USP6208416)

    $$ A solution can be extracted (phase 300) at any time but the quality of that solution improves as time goes on. / 解はいつでも抽出できる(フェーズ300)が、段階の品質は時間の経過にしたがって向上する。 (USP6539228): time goes on

    $$ Addition of oxygen stabilises the voltage with time, as illustrated by line 2, although in the long term there may be a minor voltage fall (3) due to the effect of other impurities. / 酸素を添加すると、電圧はライン2で示すように、時間が経過しても安定しているが、長期間に及ぶと他の不純物の作用に起因する僅かな電圧低下(3)が起ることがある。(USP5436086): with time


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