Going Digital and The Rise of Internet of Things

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These days it is difficult to peruse the popular media, business periodicals and legal journals without reading about businesses undergoing a “digital transformation” and the rise of the Internet of Things (IoT). But what exactly is the Internet of Things?

Before preparing to do this webinar I have to admit that I thought the Internet of Things, or IoT as it is commonly referred to, was more of a marketing ploy than anything else. You hear all the time that the Internet of Things will connect everything. That is nice, but what exactly does that mean? What are the innovation implications? What are the legal ramifications? As you start to understand what is really contemplated by the Internet of Things your eyes open and jaw begins to drop. When Ray Millien writes that this is the 4th Industrial Revolution he really is not exaggerating.

Much of the technology developed for the IoT focuses on data analytics and data processing, areas for which current case law has raised significant barriers to utility patent protection in the United States. Perhaps those barriers will be reduced in coming years, but the reality is that the Internet of Things lives in the cloud and data is the currency, which raises myriad of issues.

With IoT transitions, lawyers must first educate themselves and then adopt their traditional lawyering approaches in order to capture and secure rights for such IP. A failure to recognize and adapt will result in a failure of IP law practitioners’ essential job function: helping to create client profitability and enabling long-term business growth.

But, how do you protect intellectual property (IP) related to the Internet of Things and its accompanying sensor hardware, wireless communications, big data, software analytics and cloud computing advances? We are only just now starting to come out of the software patent wilderness with the Federal Circuit recognizing that at least some software is patent eligible.

Join Gene Quinn (IPWatchdog.com), Ray Millien (Chief IP Counsel for GE Oil & Gas) and Julia Elvidge (President of Chipworks) on Thursday, December 1, 2016, at 12pm Eastern, for an panel discussion on the Internet of Things, what it is, what it means for the future of innovation, and what legal issues will be confronting clients (and lawyers) in this 4th Industrial Revolution.

In addition to your questions we will discuss:

What “going digital” means and the concept of IoT;
How to develop new approaches better suited to the rapidly changing, connected-yet-disconnected network of innovations forming IoT
New and existing approaches to guard IP while at the same time facilitating interoperability; and
IP protection in the interoperable world of the IoT

CLICK HERE to register.

Gene Quinn Gene Quinn is a patent attorney and a leading commentator on patent law and innovation policy. Mr. Quinn has twice been named one of the top 50 most influential people [...see more]

Warning & Disclaimer: The pages, articles and comments on IPWatchdog.com do not constitute legal advice, nor do they create any attorney-client relationship. The articles published express the personal opinion and views of the author as of the time of publication and should not be attributed to the author’s employer, clients or the sponsors of IPWatchdog.com.

Join the Discussion

4 comments so far.

Anon
December 2, 2016 08:27 am
I agree with E.G. (and caution against Gene’s desired way of viewing software as a method).

Software is a “ware.” It falls into the statutory category of manufacture, as it is manufactured to be a machine component.

The statutory category of process is where methods belong. Software being executed (as opposed to the software itself) is what falls into the statutory category of process.

I caution against Gene’s approach because there are just far too many anti-software patent people who are only too eager to conflate and confuse what software is and what the execution of software does (and this is easy to do because the easiest way to describe the “ware” – more an artifact of language than anything else – is by using action words).

In a day of pitched battles and purposeful obfuscations, it is simply better to be accurate (and consistently so) by recognizing what software IS and then pointing out that it is only the ease of description for Persons Having Ordinary Skill In The Art to describe in the action terms that reflect the execution of the software.
EG
December 2, 2016 07:57 am
Hey Gene,

I actually view software as being the functional equivalent of hardware/firmware, but unlike hardware/firmware, can be modified/changed without replacing the hardware/firmware. Those who view software as being unpatentable don’t get that software is machine-like in how it works/operates. Again, I’ll use by my B-2 bomber example: try telling a B-2 bomber pilot that the software that keeps his bomber from crashing is “abstract.”
Gene Quinn
December 1, 2016 09:27 am
Very Confused-

The code itself is copyrightable, not patentable. But there needs to be a distinction drawn between the code (which is copyrightable) and the overall software system as defined by the algorithms (which is and should be patentable).

Software is best described as a method and methods have always been patent eligible dating back to 1790. The method describes the how and why of what is happening. In order for software to exist it has to be configured to run in association with some hardware, which is why the Federal Circuit originally in Bilski tried to create the Machine or Transformation test (which the Supreme Court rejected). That way the software would have to be tethered to some tangible hardware, which makes sense when you are trying to ensure that the claims written would not cover a mental process, for example.

You need to be careful with software patents and not just focus on the claims. I understand that is what the district courts do, it is what examiners do and, unfortunately, also what the Federal Circuit does. That, however, is not the proper claim analysis. In order to understand what the claims actually cover black letter patent law requires you to review the specification and understand the terms and concepts that are being discussed in the claims. So it may at times seem that the claims are rather slim, but if the language there harkens back to what is discussed in the specification (which is nearly always the case) then the concepts from the specification give meaning to what is in the claims. So what at first glance can seem like a naked software claim that is just patenting the instructions themselves will frequently (if not most often) be tied to a particular technological structure discussed in the specification.

Eventually you will see the Federal Circuit come to terms with the fact that a full blown claim interpretation is necessary to review software patent claims even for patent eligibility considerations. I see it coming on the horizon now that all the bad cases seem to largely be cleared.

-Gene
Very Confused
November 30, 2016 10:50 pm
Gene,
I’m very confused on some of your past software comments. In a recent post about should a judge step down, you stated something along the lines of that no one would think that purely software code is patentable. But then, in the same post, state that software is patentable. I think what you mean is Hardware storing the software or hardware configured by the software to perform certain steps, but you really shouldn’t call it simply software, because software is simply instructions/code by its very definition. Therefore one cannot and should not be allowed to receive a patent on simply software since software alone can not do anything without hardware. To receive a patent on the instructions themselves would seem to allow someone to claim infringement on a person who says the steps outloud, a person who admits to thinking/reading/writing the steps, or any device that the owner of the software patent forcibly transmits the instructions to. Although I have always been very confused as to why could not the software be claimed as purely a method, since the method would inherently require some form of hardware for the method to actually be executed and would not even simply tie one down to just stored code or configured hardware?