Posts Tagged: "patent"

Supporters of CLS Bank have largely responded that software patents hurt innovation. But that can’t be! One of the areas critics always say has been allegedly hamstrung by patents, the smartphones industry, is barely over 6 years old. Have patents stopped innovation of smartphones? Hardly. In fact, with every new version companies tout just how much more the phones do and how they are so far superior to the previous model. Thus, it is easy to see that those claiming that software patents block innovation simply ignore market reality and how the functionality of current devices (which is thanks to software) match up with previous generations of devices over the last 6 years. Corporate critics must also ignore their own marketing of new smartphones, which directly contradicts the ridiculous claim that software patents are preventing innovation. Still they make these and other specious arguments as if they are true.

The Department of Commerce’s United States Patent and Trademark Office (USPTO) today commemorated the issuance of the 700,000th design patent during a ceremony with United States Secretary of Commerce Penny Pritzker at Langdon Education Campus in Washington, DC. The patent for the ornamental design for a “Hand-Held Learning Apparatus” was issued to Jason Avery of Berkeley, California and is currently assigned to Emeryville, California-based LeapFrog Enterprises, Inc. (NYSE: LF). The ceremony also included the launch of a new Intellectual Property (IP) Patch developed as a joint project between the USPTO, Girl Scout Council of the Nation’s Capital and the Intellectual Property Owners Education Foundation (IPO).

As a result of filing the world’s highest number of patent applications, China is often attacked for trading in quality for quantity. However, Michael Lin of Marks&Clerk explains that a better understanding of the State Intellectual Property Office (SIPO) and the Chinese patent system shows that patent quality is in fact, not declining but increasing.

Last week the United States Patent and Trademark Office announced that they will be holding a roundtable event on April 10, 2014, to discuss President Obama’s desire to find ways to allow the public to provide the Patent Office with prior art… [T]he real problem facing the Patent Office isn’t just that the industry by and large has completely rejected preissuance submissions, but rather the real problem is why. I have repeatedly heard this: “Why would I want to file prior art to help make the patent stronger?” In fact, at a recent conference I heard one attorney who had filed a preissuance submission explain that a strategic decision was made not to file the best prior art because if the patent examiner issues the patent anyway the client decided they wanted to hold on to the best prior art to challenge the patent later.

Samsung has received dozens of patents for truly unique technologies, such as one patent protecting better walking and balancing controls for two-legged humanoid robots. Other patents recently issued to Samsung protect methods of identifying the likely presence of unknown viruses in e-mails, better systems of personal data and content broadcasting from mobile devices and a solar cell energy collection technology for use with handheld electronic devices… describes a system of linking applications on a single electronic device. By linking applications, a user can more easily switch between programs without using a multi-window view, which limits usable space on a touchscreen. Better methods of providing flash storage memory for smartphone devices and reader methods for adding multimedia effects of their choosing to an eBook are reflected in other patent applications we discovered.

Opponents of the rule point out that it could lead to unwilling and unnecessary joinder — a point raised particularly by universities and venture capitalists who fear they may be hauled into costly patent litigation against their will if their licensees/startups ever need to enforce their patent rights in court. Still others point to the fact that these joinder provisions would only apply to patent cases — and only against plaintiffs — and would thus create a litigation process unique to patents in district courts. Furthermore, district court judges would lose most of their existing broad discretion to determine whether the facts truly warrant joinder in each unique case.

U.S. patent litigation has followed the centuries-old “American Rule” under which each party to a litigation pays its own legal fees and costs, regardless whether it wins or loses the litigation. A narrow exception exists in patent cases, but only in “exceptional cases” under 35 U.S.C. § 285, such as where the losing party engaged in litigation misconduct, or if the patent was fraudulently procured, or if the losing party raised arguments that were both objectively baseless and made in bad faith. Despite the long tradition of litigants paying their own legal fees and costs, Congress has shown interest in changing the playing field and deviating from the American Rule in patent cases. This comes at a time when the U.S. Supreme Court is already considering two cases that relate to the definition of “exceptional cases” in § 285 that may well alter how this existing exception to the American Rule is applied in practice.

And the game goes on, with sophisticated tactics and subterfuges. Some patent holders obfuscate their patent ownerships behind shell companies, including some large technology companies who find it useful to play the part of the NPE to harass competitors. Others use negotiations as fishing expeditions with the intent to prepare stronger cases in the court room – making escalations go even faster. Complaints are prepared before a first contact is made. Even those who would prefer to negotiate rather than sue are forced to sue to capture the attention of the accused infringer, many of whom simply refuse to discuss licensing or settlement unless they are sued. The IP game becomes a race to the courtroom. There are no obvious winners (except for the attorneys representing the parties) as legal fees keep escalating. Litigation could be avoided in many circumstances, but the IP game fosters a power struggle in which each party assumes the worst from the other and defends itself, at high legal expenses, against imaginary threats. Both sides, the users and owners of patented technologies, are antagonized.

Gardner proposes to make it patent misuse to charge much more in the United States for the same drug than in the rest of the G7. According to Gardner, “it would be presumptive patent misuse to charge more than 125% of the average price in the other 6 countries in the G7 and it would be conclusive patent misuse to charge more than 150%.” This innovative change would be a simple change in the U.S. patent laws and would be very impactful. Said Gardner, “If the patent is being ‘misused’ in this way, the patent would be invalidated and/or unenforceable, opening up competition for generics. So the owner of a drug patent would have a strong interest in avoiding losing the protection of the patent and would hold down U.S. prices and/or drive up prices around the world. Either way, we (the U.S. consumers) would over time end up paying the real price of patented medicines, not the exaggerated price which includes a subsidy for foreigner consumers.”

Mylan Inc. (NASDAQ: MYL) recently prevailed in the United States District Court for the Northern District of West Virginia in a patent dispute involving Perforomist® (formoterol fumarate) Inhalation Solution, which has as the active ingredient a bronchodialating compound. The district court confirmed the validity of all patents asserted by Mylan. At issue were U.S. Patent Nos. 6,667,344; 6,814,953; 7,348,362; and 7,462,645, which cover Perforomist through June 2021.

The Board cancelled 95.2% of all claims for which trial was instituted, and cancelled 82.9% of all claims that were initially challenged by the petitioner… These bleak statistics have lead Federal Circuit Chief Judge Randall Rader to at the AIPLA annual meeting in October 2013 call the PTAB “death squads killing property rights.” Then again on Friday, March 21, 2014, at a conference hosted by the George Mason University School of Law, Chief Judge Rader said he was “troubled” by the many differences between proceedings at the PTAB and in the district courts, particularly pointing to the disparities in the treatment of the same evidence concerning the same claims. Rader mentioned that his recent comments about the Board being a “death squad” for patents in contested proceedings may be more accurate than some originally thought, considering the dismal track record for survivability of challenged claims in the first wave of final written decisions.

The featured patent application describes smarter methods of building playlists for digital content, like songs. This system can dynamically update playlists based on a user’s changing taste or if another user with a compatible device walks into the room. We also picked up on a few other patent applications featuring revolutionary technologies, including one microphone headset component that enables voice processing by sending data signals through an owner’s bones and body tissues. Issued patents make up the true strength of any corporation’s intellectual property portfolio, so we wrap up today with a look at Apple’s recently issued patents. We have a trio of patents we’ve noticed that protect some useful software systems for digital media consumption, including one patent that protects a system of renting digital content for a finite amount of time. We also feature a couple of hardware patents, including one protective case with a hinged cover that can selectively cover an iPhone’s touchscreen and a new method of packaging devices so that potential customers can interact with them before buying one.

That only three briefs are filed in support of Alice Corporation is a little misleading in this case, however, since many of the briefs that were filed in support of neither party come out and directly support the patent eligibility of software. For example, the IBM amicus brief, which was filed in support of neither party, concludes that a Section 101 patent eligibility analysis is the wrong analysis to use in this and similar cases since the abstract idea doctrine is unworkable and yet to be defined by the Supreme Court. IBM suggests the Court use Section 103, the obvious analysis and the well developed case law under KSR, to determine patentability in this and similar cases. Thus, while IBM did not take a position on the specific merits of the case, as with many of the briefs filed, if the Supreme Court were to follow the IBM counsel it would lead to an Alice victory. Even Microsoft/Adobe/HP, which does not support Alice on these claims urged the Supreme Court to find software patent eligible. Thus, characterizing the position of the amici based on whether the support Alice, support CLS Bank or support neither party has proved quite difficult in this matter.

Whether your annual patent budget is in the tens of thousands of dollars or the tens of millions of dollars, the pressure to do more with less is becoming increasingly essential, even for critical budget items like the development and protection of patents. In addition to the competitive edge that a strong patent portfolio provides, there are many financial benefits to creating efficiencies in a patent budget. Additionally, being able to apply for patents in multiple jurisdictions will help build your patent portfolio, which is attractive to investors. Finally, well-written and well-translated patent applications can help prevent costs associated with office actions, longer time to grant and litigation.

The featured patent application describes better security systems for smart batteries in use by a wide array of mobile electronic devices. The advanced circuitry of these batteries would allow for the same amount of compatibility among generic chargers while dissuading would-be copiers from cloning batteries. We also discuss some interesting innovations related to computerized key fobs for secure vehicle access and a couple of improvements to integrated circuit and semiconductor manufacturing. Our check-in with Texas Instruments’ recently issued patents continues where we left off with electronics manufacturing technologies. TI was recently awarded the right to protect a couple of new manufacturing system and hardware improvements, including a device that can provide better cleaning of semiconductor wafers without damaging electronic circuitry. We were also piqued by a newly patented system that allows classroom instructors to check the work of their students through their calculators.