Saturday, October 16, 2010

"Thousands of overpaid lawyers"

Discussing the case of In Re Richard F. Schwemberger , PatentHawk has some pretty strong comments about patent lawyers who take on basically unwinnable cases but pocket the money:

A personal tale - An inventor called Platinum Patents, all hot to trot from a dime-store provisional to the real chinchilla. I sang the "combo a no-go 'cause o' Obzillo" [KSR] ditty. He tooted, "so, what are you, the sales prevention department?" I snorted, "yeah, that's me, that's who I am. I'd take your dough, but I've got a real bad reality addiction, with an empathy hangover. Sorry. Sue me." Regrettably, I forget to add the California-style clincher "have a nice day." :-)

Next time you want patented sunshine blown up your ass, call Howard, or the thousands of overpaid lawyers like him. If instead you want the dirty skinny with flint-nosed attitude from the sharpest tack in the box, a dyed-in-the-wool Attila the Hun Charm School graduate, you know who to call. Witty banter at no extra charge.

Around these parts, patent lawyers who tell like it is go by the name "dream crushers."

***Within the case, on the dead TSM requirement:

The Supreme Court has cautioned that although it
may be valuable to identify a particular reason to combine
two references, the obviousness analysis is not limited to
this inquiry. See KSR Int'l Co. v. Teleflex Inc., 550 U.S.
398, 418-19 (2007). Rather, “[i]f a person of ordinary skill
can implement a predictable variation [of a work], § 103
likely bars its patentability.” Id. at 417. Similarly, “if a
technique has been used to improve one device, and a
person of ordinary skill in the art would recognize that it
would improve similar devices in the same way, using the
technique is obvious unless its actual application is be-
yond his or her skill.” Id. In evaluating obviousness,
therefore, “a court must ask whether the improvement is
more than the predictable use of prior art ecording to their established functions.” Id.

However, the Board found that a person of
ordinary skill in the relevant art would have known how
to move rod 21 below the top of the staple line or to move
bar 38 above the bottom of the staple line. Initial Deci-
sion, slip op. at 10. Mr. Schwemberger points to no con-
trary evidence showing that this relatively minor design
change would be outside the scope of ordinary skill.


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