Posts in Technology & Innovation

The recent Supreme Court decision in the Myriad case, like past decisions, did not announce a clear rule that can be extrapolated from the decision and applied in other technology areas. Consequently, the determination of what subject matter is patent-eligible continues to be unclear. Patent law specifically identifies four broad categories of subject matter—process, machine, manufacture, or composition of matter—that are patent-eligible.

What’s regrettable is that the White House didn’t wait for such empirical data on patent litigation and instead rehashed the findings of discredited studies of PAE-related lawsuits and their purported economic consequences. Specifically, I mean the infamous $29 billion victims are said to have paid to patent trolls in 2011, a number that has echoed around the Internet and made it into congressional debate despite its dubious origins. The number was produced by a study that failed to adequately define just what a troll is – even universities and many manufacturers were included – and then harvested its data not from a reputable polling or academic institution but from a company that has a dog in the patent fight and profits from fueling fears about infringement lawsuits.

In Ultramercial I and II, the patentee (Ultramercial) asserted that U.S. Pat. No. 7,346,545 (the ‘545 patent) was infringed by Hulu, LLC (“Hulu”), YouTube, LLC (“YouTube”), and WildTangent, Inc. (“WildTangent”). The ‘545 patent relates to a method for distributing copyrighted products (e.g., songs, movies, books, etc.) over the Internet for free in exchange for viewing an advertisement with the advertiser paying for the copyrighted content. WildTangent’s motion to dismiss for failure to state a claim was granted by the district court based on the claimed method being patent-ineligible under 35 U.S.C. § 101

This week in IPWatchdog’s Companies We Follow, our series returns to focus once again on Samsung and its recent appearances at the U.S. Patent & Trademark Office. As has often been the case recently, many of the more intriguing patents and patent applications from Samsung deal with electronic device development. One patent document protects a better system of constructing biochips to monitor drug trials. An application filed by Samsung describes a devised method of allowing mobile phones to give off fragrance in response to user interaction. Upgrades to electro-wetting displays, which use water and oil to affect light displays, are featured in a second patent application.

Flying under the AMP v. Myriad radar recently was Federal Circuit’s Organic Seed Growers v. Monsanto. In Organic Seed Growers, the Federal Circuit denied declaratory relief to a band of more than 60 farmers, seed vendors, and agricultural organizations from California to Florida (and even Canada) seeking to invalidate 23 of Monsanto’s patents relating to various technologies for genetically modified seeds. The band of agriculturists grows, uses, or sells conventional seeds that do not incorporate Monsanto’s technologies. Many have organic certifications, and generally eschew transgenic seeds and glyphosate-based herbicides such as Monsanto’s Roundup® herbicide.

One patent application we look at in this column features a system of increasing wireless data transmission security by sending data signals through a user’s body. An issued patent protects AT&T’s rights regarding a system of matching an unknown person’s face to a known contact on an electronic device. We also feature another patent application about a protective covering for a device that extends the functionality of that device’s touchscreen. We’ve also picked a few other intriguing patent applications that fall outside of AT&T’s typical development focus. One patent application would protect a newly devised system of augmenting TV broadcasts with links to additional media content. Another application describes a sensor for detecting airborne respiratory triggers at hospitals.

A number of interesting patent applications deal with Google’s efforts to improve online mapping applications. One such application would protect a system of downloading map tiles for offline routing. An issued patent assigned to Google protects a system of depicting multi-level buildings three-dimensionally so that browsers can view flooring plans. Other USPTO activity showcases Google’s focus on creating better media systems for mobile devices. One patent application would protect a system of synchronizing magazine content on apps for better layout among different devices. Another patent application allows users to selectively view images to conserve data usage. Finally, we look at a patent application filed to protect a system of ranking news articles based on the source publication’s quality.

As a major developer of electronics, Sony Corporation often files patent applications and is awarded patents from the U.S. Patent & Trademark Office. This week at IPWatchdog’s series Companies We Follow, we take a closer look at some interesting patent documents assigned to Sony which the USPTO has released this month.

A few of the patent applications we profile here offer better methods of providing professional software services to electronic device users. One patent application improves the ability for amateur videographers to render 3D graphics while editing video. Another application would protect a new system of user camera settings that analyzes prior photos to determine user preferences for lighting and more.

Other applications we feature here would protect some very interesting improvements to electronic devices. For example, one application we look at would protect a remote control that can also help a user interact with their home’s telephone system. One final patent application we feature makes it easier for smart phone users to take pictures without their hands getting in the way of the display screen. We also look at one patent that allows users to build personal libraries of DRM-protected digital content that are accessible across multiple devices.

Widely divergent views have formed in the wake of the Supreme Court’s decision in Association of Molecular Pathology v. Myriad Genetics, Inc., No. 12-398, slip. op. (U.S. Jun. 13, 2013). Some commentators have reacted with dire predictions for the biotech industry, suggesting that the Court’s holding has unduly narrowed patent protection traditionally granted to DNA technology and has disincentivized researchers in the field, particularly those from small start-ups. Other commentators suggest that the Supreme Court’s decision in Myriad will actually benefit genetic research, particularly researchers at the start-up level. The authors of this post tend to agree with this latter view.

Considered by many as the most comprehensive revision to the United States patent system in over 50 years, the America Invents Act (“AIA”) represents progressive legislative reform intended to align U.S. patent policy with global precepts, i.e., systems which reward the “first-to-file” a patent application. Many AIA provisions modify or completely change the former first-to-invent (“pre-AIA”) U.S. patent system, with the most immediate and conspicuous AIA component?the establishment of a filing-based regime as of March 16, 2013?serving as the hallmark and mark of U.S. patent reform.

Nonetheless, having only enjoyed 3-months of the AIA in its entirety, it is still too early to appreciate the de facto impact of this nascent legislation. The AIA has nevertheless ushered in transitional strictures that have uniquely placed research institutions in an ostensible patent?policy “reformation” with respect to technology evaluation and knowledge translation. While the pervasive nature of this new patent regime imparts an array of university-based concerns, the following Top 5 considerations are intended to reengage university professionals and employees with patent reform concepts and concerns during the initial “aftermath” of the AIA.

As a multinational corporation, Siemens AG is a frequent applicant at the U.S. Patent & Trademark Office. This week’s Companies We Follow series takes a look at Siemens’ recent applications and patent awards in the fields of consumer and medical electronics. One application we feature involves a safer system of extinguishing fires within a machine dryer. Another application describes a home heat pump that would conserve thermal energy from appliance wastewater. Siemens’ medical subsidiary, Siemens Medical Solutions, has also been awarded a USPTO patent to protect a system of fixing misalignments in angiograms.

Other documents we look at feature improvements to electrical systems. Another application improves smart metering systems that have resulted in improper appliance functioning for dishwashers and washing machines. Lastly, we look at a Siemens patent that improves systems of protecting wind turbine components from lightning strikes.

In TiVo v. Echostar, Echostar lost on infringement of TiVo’s patented DVR functionality. Judge Folsom issued an injunction and ordered that Echostar stop offering the service and disable all storage to and playback from the hard disk. Unfortunately for Echostar, they did not appeal the wording of the injunction and took no action against the disablement provision. Instead they designed around it by downloading new code to get the set-top box to operate in a different way, in what appeared to be a pretty clean design-around. TiVo filed a contempt motion. Echostar was sanctioned on the grounds that there were not “colorable differences” and their design-around infringed. The dissent argued that not only were there colorable differences but moreover the differences established non-infringement. After two years of back-and-forth and one too many trips to Judge Folsom, the original 70 million that Echostar had to pay for the initial infringement rose to 300 million because of Echostar doing what they thought would get them out of infringing.

One application assigned to IBM would protect a system of allocating software resources to a user’s network account once their presence is detected at a facility. An patent awarded by the USPTO protects an IBM invention involving a visual-based help tool for button icons within software applications. IBM is also involved in developing a number of systems to aid computer users on a personal basis. One application describes a system of ordering computer icons on a user interface based on contextual factors, like the time of the week. Two related applications would protect a system of analyzing web applications for possible malicious data, protecting millions of computer browsers. Lastly, we also look at a newly devised system of filtering online shopping reviews based on the characteristics of an individual shopper.

Obama’s action plan was heavily influenced by a report, “Patent Assertion and U.S. Innovation,” which was released by the President’s Council of Economic Advisers, the National Economic Council, and the Office of Science & Technology Policy. The full text of the report can be read here. It is surprising that a report that was prepared by such an august and high-level set of entities could be so blatantly biased and one-sided. The body of the report slams PAEs and points to everything that’s bad about them. It creates an artificial distinction by referring to “good” patent middlemen as “patent intermediaries,” although there is no indication in the report of what are the characteristics of a good “patent intermediary” versus an evil PAE.

Interest in design patents is increasing, in part, because they can be obtained relatively inexpensively and quickly. Dennis Crouch recently reported that from 2010-2012 the majority of design patents issue within 12-months of their filing date (see “Design Patents Are Still Relatively Quick” by Dennis Crouch, Patently-O, January 21, 2012,. In addition, most design patents issue without amendment and with little or no file wrapper estoppel, potentially leading to a “cleaner” patent with potentially fewer issues to be raised in litigation that could negatively affect the scope of the patent. The number of design patent filings has increased approximately 20% since 2009 (Robert Olszewski, “State of the Technology Center,” USPTO Design Day 2013), and, with this increase it is reasonable to expect an increase in design patent enforcement