Posts Tagged: "patent"

my iPhone can be a bell that you physically shake and it goes “ding” like a hotel desk bell; or it can be a carpenter’s level to help hang pictures, level a cabinet; or, it can be a compass that swings this way and that just like the one from a long ago scouting exercise; or it can be a flashlight. Clearly, one can patent a bell, level, or compass in whatever form it exists, it is a device. That much is not in dispute. But, what about the “code” that creates that “device”. It is now that we have the conundrum: is software (the code that both creates and instructs the machine) patentable apart from the machine? The answer to this question, when phrased in this way, is self-evident; yes, of course it is patentable. For the same reasons machines have always been patentable, they are a part of the “useful” arts. You see, the software is the machine. The machine is software. These are one in the same “thing”. If this is all so simple, then what is the argument about?

It is absolutely critical to understand that a reference, such as an issued patent or published patent application, does not need to be identical to an invention in order for the reference to qualify as prior art. A reference can be used as prior art for whatever the reference explains. For example, if you design 5-wheel transportation device you are going to have to distinguish all other wheeled transportation devices, regardless of whether they are identical. So if a patent examiner finds a 4-wheeled transportation device that will be used against you as prior art. It will be up to you to explain why your 5-wheel device is not obvious in light of the 4-wheel device. The critical question will be this: Why wouldn’t it have simply been obvious to simply add another wheel?

Microsoft already has a massive patent portfolio, but it has continued to increase in recent weeks. We’ve pulled up a trio of patents related to online gaming through Microsoft’s Xbox LIVE network, including methods of using gamer profiles on multiple consoles as well as validating untrusted games for inclusion on the LIVE network. Another Microsoft patent also shows the technology developer’s interest in improving means of advertising within multiplayer games online. Patent applications that caught our attention include a couple related to virtual reality applications, especially one that involves virtual manipulation of a physical environment in response to a story being read. We also look at an application regarding a dynamic system of using workout videos to create an individualized exercise experience for Xbox console users.

U.S. Secretary of Commerce Penny Pritzker today announced the appointment of Michelle K. Lee as the next Deputy Under Secretary of Commerce for Intellectual Property and Deputy Director of the U.S. Patent and Trademark Office (USPTO). Lee currently serves as the Director of the USPTO’s Silicon Valley satellite office and will begin her new role at USPTO headquarters in Alexandria, VA, on January 13, 2014.

There are several varieties of a stay. With post grant proceedings we’re talking mostly about discretionary stay. Every district court has inherent right to do this. Judges are generally favorable to granting stays with more being granted than not. “All a judge has to do is get burned once by not granting a stay, going to trial to the end, and then having claims invalidated by the Board and then having to have an appeal,” says John J. Marshall, law professor at Villanova University School of Law, previously Of Counsel at Drinker Biddle. The initial stay before a petition is granted is short. Then after the petition is granted, the district court judges are more likely to grant a stay, because IPR will simplify issues that might be important to the district court judge. That quick timeline is one of the factors that helps you get a stay for concurrent litigation and getting ammunition for use in district court claim construction. In fact, you may find that these factors are so persuasive that if a defendant in district court case files a petition for IPR, and you, as another defendant, can’t join because you are past the one month joinder cutoff, you still may be asked to stay your case until other defendant’s IPR concludes. As of October 2013, contested stay motions pending IPR petitions have a 68.5 percent grant rate and those pending CBM petitions have an 83 percent grant rate, according to a Finnegan infographic based on the published PTO AIA statistics. Those are really good rates. It’s something to consider even in districts like Delaware or East Texas.

The major beneficiaries are not the patent trolls- but the thousands of single patent owners and small high tech start ups who for the first time ever-are able to monetize the enormous investments in time, money and ingenuity that they have made in their inventions. The fact is- today, small patent owner and small tech start ups have real options to liquidate their intellectual property assets that they didn’t have before Intellectual Ventures and Acacia Research Group entered the market in the mid-2000s. If patent trolls sue big companies- then the owners of these patents were able to liquidate their investments. When the multinationals have to worry about these entities suing them it is good for the owners of the patents.

A goal of nearly every defendant is to lower the total cost of resolution of any legal issue. As counsel for the defendant, you have to weigh the settlement and licensing costs of a patent dispute against the total defense cost and how long it takes to resolve the dispute with certainty. Today, CBM, IPR, and PGR are the lowest possible cost options. Speed is one of the biggest benefits. The statute requires that a PGC proceeding must be completed in 12 months after institution, and in rare cases this extends to 18 months if the PTAB exercises a good cause exception. APJs are motivated to stay on deadline.

A brake-down of the major provisions, the Amendments that passed and some key Amendments that failed… On Thursday, December 5, 2013, the United States House of Representatives passed the Innovation Act by a vote of 325-91. Surprisingly, the Innovation Act (HR 3309) had only been introduced on October 23, 2013, and was marked-up on November 20, 2013. “This schedule suggests the fix was in,” said Congressman Dana Rohrabacher (R-CA) on December 3, 2013, “The clear message to little inventors: give thanks for your intellectual property rights, because you may not have them by this time next year.”

Dean Kamen: “I have a lot of concerns [that H.R. 3309] will serve to dramatically increase the barriers – especially for small inventors – to be able to get and protect their intellectual property, which as a consequence will prevent the public from getting access to what should become the next generation of great technology that will deal with all issues – health care, environment and education…If anything this country should be finding ways to strengthen the patent system in the global competitive environment, not make it harder to get and protect intellectual property. We need to add incentives, not add barriers.”

One of the things specifically alleged as demonstrating lack of control over his practice was his antiquated docketing system. Until 2005 Tachner used a “white board” system that was updated monthly and only included three months of data. It only had 3 columns, which were the client docket number, the type of action and the due date. If action were taken a handwritten line entry was placed after the due date. If action was not taken by the due date it would remain not the white board for a few months, but then ultimately removed without any action ever being taken. In 2005, this system was updated to a Word document that did not use tables, but instead included single line strings of data. There was no back-up docketing system, nor was any inventory of files ever done to ensure the integrity of the Word document docket. As you might imagine, this type of “docketing system” created problems.

We’re going in-depth to explore a patent application that would notify mobile device users of nearby events. These events would be collected from social media applications and filtered based on a user’s interest and proximity to the user, helping that person find interesting events that they were unaware of. Also, a couple of patent applications describe improvements to social networks available through Yahoo!, both on an individual and a group basis. The patent holdings of Yahoo! encompass a wide array of web services, especially those that are related to the website’s search engine. One recently issued patent protects a system of removing spam websites from search engine results, while another discusses a method of improving the accuracy of color-based searches. Collaboration on eBook documents and better notification systems for fantasy sports players are also on focus in a few other issued patents we’re exploring here.

As evidenced by the numbers above, the Board takes as many cases as they reasonably can within the statute. If there’s a good case to be made that a case could be litigated in PTAB, it’s usually accepted. As of last month, the office has instituted 192 trials and denied 32 trials for an overall institution rate of 85.7 percent, according to a statistics report compiled by the PTO. One example of this is Intellectual Venture Management, LLC v. XILINX, Inc., IPR2012-00018, Paper 12 (P.T.A.B. Jan. 24, 2013). Here, XILINX argued that IVM’s petition should be denied, because IVM failed to identify all the real parties in interest as required by 37 C.F.R. § 42.8(b)(1). XILINX pointed to another case in California where IVM was listed with 5 other defendants in a suit that had 63 entities as evidence of IVM’s failure. The Board ruled in IVM’s favor, saying that XINLINX had not given any argument for why the civil local rules of the Northern District of California are analogous to the Board’s rule on real parties in interest or for specifically why any of the 63 entities were real parties of interest.

Deriving energy from the sun has been aggressively, albeit periodically, pursued since at least the 1970s when the U.S. suffered through several gas shortages. But over time gas prices decreased, the technology could not compete with cheap alternatives, so interest waned, although it never thoroughly disappeared… The Obama Administration, which seems exceptionally cozy with Google, seems to have real disdain for software patents, which is the Google articulated position. Thus, it is hard to reconcile the Obama Administration positions that are in favor of alternative energy but which are also against the patent eligibility of software. So many alternative energy innovations today and in the future will incorporate software.

There is a battle cry against abusive litigants in the patent industry. Among the tactics suggested is a “loser pays” system to try to mirror Europe, where this type of abuse is minimal. The Congressional Research Service presents that 92% of companies who assert but do not make products (over broadly and derisively called “trolls”) lose litigation that reaches judgment on the merits… Defendants can call upon the PTO to trigger up front fee shifting for the patent owner and an accelerated PTO determination on the validity, even potentially before the court analyzes it. But there’s more. IPRs and CBMs can be used to drive settlement, either before or after filing. Pre-filing, a drafted petition can be shown to the patent owner as a basis to settle.

With Black Friday later this week, we take a closer look at one of the companies that has drastically changed the current reality of retail. As you can see, Amazon is busy finding new and more effective ways of putting consumers in touch with useful multimedia. Today’s featured patent application would protect a software widget for handheld electronic devices that allows playback of Amazon digital files. This widget would save system resources that typically get drained when users open multiple applications for video and audio playback or eBook reading. A couple of other patent applications discuss improved delivery systems for physical copies of media, including a system of creating custom shipping containers. Another patent application allows handheld electronic devices to conserve energy typically used by touchscreen operations.