A couple of years ago, we wrote about a patent infringement lawsuit
filed by a guy named Gary Odom, who is better known in the patent blogging world as the Patent Hawk
. He's an... aggressive supporter of all things patent, and has a way with words, often shown off in his inimical insult-to-backuppable-statement ratio
, seen at times here in the Techdirt comments. The "patent" (7,363,592
) was on editable toolbars in software. What's amusing in our post on the initial lawsuit is to see the usual crew of defenders insisting that the patent likely is valid, in part because of Odom's job as a prior art searcher, suggesting he would clearly know of any prior art that would invalidate the patent. We were also told that Odom's "expertise" on the subject was something we should learn from. A few months later, Odom used the same patent to sue 28 more companies
Odom also talked a big, big game about the lawsuits and the patents (referring to himself in the third person!) on his own website
Odom thoroughly searched the prior art before asserting his tool groups patent. He's filed accelerated examination (AE) continuations. AE requires a fairly exhaustive search of the prior art, and identification of how the claims are supported in the specification, as well as mapping the closest prior art to the claims.
Odom filed '592 in late 2000. Seven years later active tool groups burst into the commercial marketplace, introduced, and actively promoted, by Microsoft. It has spread like wildfire as a new user interface standard. Belated infringement coupled with commercial success is itself an indicator of non-obviousness.
As an aside, punters, who have commented that Odom's claims are Bilskied out, don't know what they are talking about. The CAFC has been concerned about overreaching business method patents. Bilski required, for software patents, that claims transform the subject matter, and have tangibility (according to one interpretation), i.e., representational of non-computer existence. Odom's tool groups are like containers in a toolbox, and his claims alter the condition of those groups.
The case took a weird turn when Microsoft first countersued Odom
, pointing out that he had been working under contract for Microsoft at the time he filed the patents, and his contract stipulated that he wouldn't file for certain patents or file patent infringement claims against Microsoft.
Odom also made fun of reporter Joe Mullin's reporting on that twist in the case, but then quickly deleted his post
, though it was preserved elsewhere. The response showed the level of cocky attitude we've come to expect from Odom, in which he insisted that "there is drama afoot in this case," and that "time will tell whose hands are clean."
I don't know exactly whose hands are clean, but I am pretty sure that Odom has now lost this case badly. We had seen the news a few months back about how first Odom's attempt to file the case in East Texas (despite living in Oregon and Microsoft being in nearby Seattle) failed as the case was shifted to Oregon. Then we saw how Odom's own lawyer had tried to get out of the case, and Odom tried to prevent him from doing so. Later, after the lawyer was allowed off the case, and Odom couldn't find anyone else willing to take the case (odd if the case were really strong), he finally decided to drop it. Of course, Microsoft had already filed the counterclaims, and the court went forward on that... and didn't just rule that Microsoft didn't infringe, it invalidated Odom's patent as (oops!) having prior art that made the claims obvious to those skilled in the art. In fact, the court seemed to find the "obviousness" of the patent... well... quite obvious:
However, the court held that the asserted claims presented “one of the clearest” cases of obviousness that had come before it because Odom had simply “cob-bled together various pieces of what was already out there in a manner . . . that would have been obvious to anyone skilled in the art at the time of the invention.”
Odom appealed, challenging the claim construction, the question of whether or not Microsoft infringed and about the invalidity of his own patent. He also claimed that the district court was "biased" against him. The Federal Circuit appeals court (CAFC) has now ruled and
once again rejected the claims of our friendly Patent Hawk
(pdf, found via Mike Wokasch
The court goes through a discussion on the obviousness of editable toolbars... which should drive any real programmer nuts. The fact that lawyers and a court had to waste all this time debating the patentability of editable toolbars
is just crazy. The key point, however, is that there was a previous patent that more or less beat Odom to the punch on pretty much everything in his patent. That's extremely
embarrassing for Odom, since his entire job
is supposedly his ability to find prior art for people. If he can't do it for himself...
Those same concepts are claimed in the ’592 patent except that the groups of tools are on a single toolbar. That is an insignificant advance over Kavalam. KSR Int’l Co., 550 U.S. at 417 (“If a person of ordinary skill can implement a predictable variation [of a prior art work], § 103 likely bars its patentability.”). Kavalam explains that although its invention has been described in the context of a web browser, employing collections of buttons and toolbars that are relevant to that application, a person of skill in the art would appreciate that the inven-tion can be adopted to other applications where a different arrangement or combination of tools may be desired. Kavalam, col.15, l.63–col.16, l.12. The district court thus did not err in determining that the manner in which ’592 patent divides up toolbars into groups and claims manipu-lation of tool groups would have been a common sense variation of Kavalam for a person of skill in the art. Likewise, it would have also been a trivial change for a person of skill in the art designing such alterable tool groups to add an indicator that could indicate any altered condition of the tool group.
The court then, piece by piece, dismantles the claim of "judicial bias" that Odom made, as it finds no such evidence. All of this couldn't have happened to a nicer guy, really.