Posts Tagged: "patent"

In the latest decision (“Ultramercial-3”), the panel reached the opposite conclusion and affirmed the dismissal. This apparent turnaround was based on two intervening events: (1) the Supreme Court’s Alice decision in June; and (2) the fact that Chief Judge Rader was no longer on the court, and his place on the panel was taken by Judge Mayer. Much has, and will be, written about the first of these factors, so I would like to focus on the second, and in particular, the diametrically opposed views of Judges Rader and Mayer on a very important procedural issue; namely, whether the lack of patent-eligible subject matter should be a basis for dismissing a case at the outset based only on the “intrinsic” evidence, i.e., the patent itself and its prosecution history in the USPTO, without any discovery, expert testimony and/or claim construction.

Many of the technologies we discuss in more detail below pertain to railway and other vehicular technologies. A few patent applications discuss improvements to electrical utility systems, including one technique for monitoring plant activity near electrical grid components to identify exactly when to clear vegetation away from power lines. The strong patent portfolio enjoyed by General Electric enjoyed a number of important additions in recent weeks. Some of the most intriguing that we saw today involve medical innovations, including systems for the synchronization of imaging data collected during a procedure to better guide a medical professional during a procedures. We’re also sharing a patent protecting a useful technology for locating defects in an underground cable to ensure consistent delivery of electrical utilities. Gas turbines and another innovation regarding railway tech is also explored more deeply in today’s column.

The Australian Full Federal Court recently handed down its decision in Research Affiliates LLC v Commissioner of Patents. The decision is an important addition to Australian case law concerning the patentability of business methods and software. Judges Kenny, Bennett, and Nicholas ruled that the Appellant’s claimed computer implemented method for generating an index for use in securities trading was unpatentable as an abstract idea. The Court held that “[t]he claimed method in this case clearly involves what may well be an inventive idea, but it is an abstract idea. The specification makes it apparent that any inventive step arises in the creation of the index as information and as a scheme. There is no suggestion in the specification or the claims that any part of the inventive step lies in the computer implementation.

As humans, all of our greatest dreams and biggest fears about technology seem to be provoked by the stirring topic of robotic technologies. Robots have the potential to eliminate a great amount of monotonous work, provide assistance to human workers and serve in highly specialized environments, like hospitals or factories. At the same time, people can be concerned with how this technology will change daily life and worry about increasing isolation among humans or the loss of a job as a result. Even major names in technology development have showed signs of being spooked by robotics. In a talk given at a technology symposium held at the Massachusetts Institute of Technology, SpaceX CEO Elon Musk called robots the “biggest existential threat” to the human race, even arguing for national and international regulatory oversight on artificial (AI) development.

While there can be disingenuous arguments made about the abstractness of a media product or a sponsor message, who in their right mind could ever even suggest that “an Internet website” is abstract? Is “an Internet website” abstract? Is the “general public” abstract? Is a consumer abstract? Contemplate these questions as you, a member of the general public continues to read this article on this Internet website! We apparently have jumped the shark and turned the law of software patent claims into a useless, ridiculous philosophy assignment that asks whether something that clearly exists doesn’t exist. So are you, a consuming member of the general public who reads Internet websites real, or are you abstract?

A look into the recently published patent applications assigned to Dow from the U.S. Patent and Trademark Organization shows us that GMOs and herbicides have been a major area of focus for Dow and Dow AgroSciences, its chief subsidiary in agricultural chemical engineering. Plastics used for packing fragile items or for providing a barrier between soil and building foundations in construction projects. The patent portfolio of Dow has also been increasing recently, incorporating chemical engineering innovations designed for a wide range of industrial sectors. One patent protects a method of developing fragrances for laundry detergents which evaporate less quickly, helping clothes to retain a fragrance for a longer period of time. Oil-in-water emulsions were the focus of a number of patents which we decided to share today, including one discussing a herbicidal composition for agricultural uses. Another patent we noticed protects a topically-applied pharmaceutical drug designed to treat bacterial infections or acne rosacea.

The Federal Circuit issued a decision in CardSoft v. Verifone, which the Court overturned the district court’s claim construction. Overturning a district court’s claim construction is hardly unusual, and perhaps more typical than it really should be, but that is another story for another day. What was unique about this particular case was that the Federal Circuit also went on to rule that CardSoft had waived any argument that the defendants had infringed under what they determined to ultimately be the correct claim construction.

Neighborhood-aware networks, which can provide digital services to many homes within the same neighborhood, are the focus of a few filings. Qualcomm is also seeking to protect both an electronic scale with conversion table software and a pair of headphones with a novel technique for overcoming popping and clicking noises when plugging the headphone connector into an audio port. The strength of Qualcomm’s patent portfolio is a major reason why this company is so successful internationally. Most of the patents recently issued to this corporation protect various mobile device innovations, including the use of an inclinometer to detect the incline of a device display and adjusting the way an image is rendered to improve the view relative to the incline. Gesture-based financial transaction completed across mobile devices, as well as methods of providing location information on indoor environments, have also been protected for Qualcomm through patents issued over the past few weeks.

The label “anti-patent” is not meant as a criticism or insult. Instead I mean it is a purely descriptive way that recognizes a distinct and very real viewpoint; one that we have seen periodically throughout history but which is inconsistent with what the Framers believed. Therefore, I disagree with Judge Chen that it is not helpful to recognize that there are Judges on the Federal Circuit who, based on their written decisions, show a tendency to eschew a pro-patent viewpoint.

The most recent patent applications published show that development of electric and hybrid electric vehicles are prominent among all three. Some of these patent applications describe novel applications of known energy generation and storage technologies, including air batteries and solar cells, to automobile environments. Self-driving cars manufactured by Toyota will benefit from a technology designed to improve the accuracy of determining a car’s actual location on the road. These three corporations each have strong patent portfolios which have increased in recent weeks and we took special notice of a couple of patents issued in the field of fuel cell technologies. Honda has earned the right to protect an indoor vehicle that drives in response to the tilting motion of a seated rider. We also feature two patents directed towards safety systems which are designed to provide warnings to drivers in response to potential road hazards.

Most patent owners and users cannot bear the costs or risks associated with enforcing and licensing their patents. The potential cost of this waste to the American economy has been estimated to be as large as $1 trillion annually, representing a five percent reduction in potential GDP… using conservative assumptions of the impact on the economy of increased innovation, could generate social benefits ranging between $100 and $200 billion per year. This estimated range easily could be surpassed if the U.S. can achieve enhanced licensing of existing patents, and if any market solutions also enable the dissemination of more knowledge that could increase the numbers of patented innovations themselves.

This theme reemerged later when we talked generally about computer implemented innovations. Judge Linn explained that wrestling with patent eligibility as it applies to innovations that require machine intervention “is a very complex issue,” which is made more complicated when you try and rationalize opinions from the Supreme Court. “I have great difficulty rationalizing the Supreme Court’s opinions in Flook and Diehr, and in many regards I think those decisions are irreconcilably in conflict,” Judge Linn said… “I don’t look at it as a low point. I look at it as an indication of the complexity of the issues,” Linn said. He went on to explain that the Court was “trying to resolve this complex issue in a way that made sense but reflected the precedent we had before us from the Supreme Court. In the end we just couldn’t agree. We got to the point where we recognized that the Supreme Court would have to give us the answer.”

The unfortunate reality is the United States is no longer the most favorable jurisdiction for innovators. There has been a full assault on patent rights that started at least as early as 2005. Ever since we have seen proposed legislative change after proposed legislative change, as well as a never ending stream of cases at the Supreme Court and Federal Circuit that continue to weaken patent rights. Innovators are under attack from ever expanding judicial exceptions that render more and more subject matter patent ineligible, and from an ever expanding view of what it means to be obvious. This coupled with fresh new ways to challenge issued patents and concern about a patent litigation explosion that doesn’t exist is leading to extraordinary mischief in the Courts, on Capitol Hill and in the White House.