Tuesday, February 10, 2009

Article One announces prize award concerning US 6,784,873

Article One announced award of a $50K prize for art (potentially) invalidating U.S. Patent No. 6,784,873 (relevant to accused infringer Garmin). There were two pieces of art, and the split was 35/15.

A press release noted:

The Study was won by Article One community members, called Advisors, from the United States. Two Advisors submitted publicly available evidence, known as prior art, that predates the subject patent. The first prior art reference is a 1991 international (WIPO) publication of a pending patent application assigned to MicroSlate Inc.; and the second is an excerpt from an out-of-print 1998 textbook on a Microsoft Windows Operating system, Windows CE.

Article One gives further details on the prior art:

Primary prior art no. 1 (from RickyJames): 1991 International (WIPO) Publication of a Patent Application, WO 91/12578 A1.
Primary prior art no. 2 (from anonymous): Douglas Boling, Programming Microsoft® Windows® CE, 1998, Microsoft Press, pages xiii-xix and 750-755.

Windows CE is not backward compatible with MS-DOS or Windows. The "book" was a promo piece by Microsoft. Wikipedia notes: Windows CE (also known officially as Windows Embedded Compact post version 6.0, and sometimes abbreviated WinCE) is Microsoft's operating system for minimalistic computers and embedded systems. Windows CE is a distinctly different operating system and kernel, rather than a trimmed-down version of desktop Windows.

Article One included a "claim chart". The appearance of the Microsoft "book" is in the form of repeated references to pp. 750-755, rather than to a cite to a particular page (and/or line number). Some portions of the Boling book were posted.

Future targets of Article One:

Sony (alleged infringer) Blue-Ray disc drives technology (Sony is accused of patent infringement)
Apple's (patent owner) iPhone multi-touch technology
Emergency 911 location technology for mobile phone industry, including Verizon, AT&T, etc. (alleged infringers)
Eli Lilly's (patent owner) Cymbalta drug
AstraZeneca's (patent owner) Crestor drug
Penwest Pharmaceuticals (patent owner) Opana ER drug
Sepracor's (patent owner) Xyzal drug

Of Apple and US 7,479,949, see the IPBiz post Obvious?

Of Cymbalta, from biz.yahoo :

US drug major Eli Lilly, continuing its fight against the generic launch of its second-largest selling drug, Cymbalta, sued Sun Pharma on December 4. This was in response to the Indian drug major filing an abbreviated new drug application (ANDA) with the US Food and Drug Administration (FDA), seeking to launch a generic version of the anti-depressant.

Last month, Lilly had sued Indian drug majors Wockhardt, Aurobindo Pharma and Lupin for alleged infringement of its patent for Cymbalta (duloxetine hydrochloride), which expires in 2013.

Cymbalta's sales were worth $2.1 billion in 2007, next only to Lilly's anti-psychotic drug Zyprexa. Sales for Zyprexa were worth $4.76 billion during the year. Cymbalta, used to treat anxiety disorders, achieved sales worth $716 million during the third quarter of this fiscal, registering a 40% growth.

"RickyJames" seems to be Ricky Roberson. See also Rickyjames Says WOO - HOO !!! which includes text:

I submitted 79 different examples of prior art on the GRMN study and had only a handful rejected as not relevant. The legal nuances of what constitutes prior art, and especially INVALIDATING prior art, are apparently subtle. The patent that was my personal favorite and that I thought would be totally invalidating apparently wasn’t, from a legal standpoint. Some of my patent submissions were deemed legally not relevant even when I couldn’t tell a difference from the patent I had submitted just before it. Ultimately I submitted tens of US Patents for consideration to AOP and none of them were the one that got me the GRMN prize. Only when I kept going and dug into WIPO patents did I come across the winner – and I didn’t even know it when I found it. It was just one more item in a batch submission I made one week.

If one ever wanted an argument against peer-to-patent, the above-paragraph is it.


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