Tuesday, September 2, 2014
Monday, September 1, 2014
Chinese patent trolls are now attacking US-based entities
There has been a recent surge of cases involving Chinese non-practicing entities suing US companies for violating broad and vague patents that they claim to hold. These NPEs, often known as patent trolls, are companies that don't actually invent or innovate, but just buy up patents for the purpose of making money through litigation. In essence, patent trolls are manipulating the legal system for their own personal gain.
One example of this is Personal Audio LLC, a Chinese patent troll, which used extremely complicated legalese to deliver a nonsensical court case to many large media companies in the US. One of these cases was based on the vague and complicated claim that a company that creates podcasts violated their patent on podcasting technology.
As I wrote about in a previous blog post, this is becoming an increasingly large problem because state-sponsored patent trolls are now interfering in the market for intellectual property. A technology hub in China known as Zhongguancun recently received a $15 million grant to create a patent-troll entity known as Ruichuan IPR Funds. This would mainly be designed to buy up patents and then use these to litigate against foreign companies.
China has an interesting system known as the Utility Model Patent system (UMP), wherein applicants can basically have a cheap, fast-track to getting a patent, without much examination or review. This is problematic because it leads to situations where non-practicing entities can quickly get patents that they don't deserve to have and use it to litigate against perfectly legitimate companies. Even if they don't actually have a claim to their patent and are ultimately invalidated, they cost the legitimate company a huge sum in legal fees having to defend their fair practices. China is now using this as an offensive technique to cripple US businesses operating in China, and in doing so, give Chinese companies a chance.
Source: http://www.commdiginews.com/business-2/chinese-patent-trolls-attack-us-entities-24936/
One example of this is Personal Audio LLC, a Chinese patent troll, which used extremely complicated legalese to deliver a nonsensical court case to many large media companies in the US. One of these cases was based on the vague and complicated claim that a company that creates podcasts violated their patent on podcasting technology.
As I wrote about in a previous blog post, this is becoming an increasingly large problem because state-sponsored patent trolls are now interfering in the market for intellectual property. A technology hub in China known as Zhongguancun recently received a $15 million grant to create a patent-troll entity known as Ruichuan IPR Funds. This would mainly be designed to buy up patents and then use these to litigate against foreign companies.
China has an interesting system known as the Utility Model Patent system (UMP), wherein applicants can basically have a cheap, fast-track to getting a patent, without much examination or review. This is problematic because it leads to situations where non-practicing entities can quickly get patents that they don't deserve to have and use it to litigate against perfectly legitimate companies. Even if they don't actually have a claim to their patent and are ultimately invalidated, they cost the legitimate company a huge sum in legal fees having to defend their fair practices. China is now using this as an offensive technique to cripple US businesses operating in China, and in doing so, give Chinese companies a chance.
Source: http://www.commdiginews.com/business-2/chinese-patent-trolls-attack-us-entities-24936/
The new patent on the block: anti-piracy patenting
A new patent awarded to a company known as Verance seeks to disrupt digital media piracy through the use of embedded watermarks. The brilliance of the invention lies in the fact that watermark will allow the digital content to be identified without being decrypted, making for easier recognition of pirated content.
There are a few important patent-related observations I would like to make regarding this case. I think that the Verance technology serves as a great example of the principles of filing for a patent discussed in some earlier posts. It is clearly patent-eligible and has a great deal of utility, it is definitely novel and non-obvious, and finally, the patent was extremely technical and lengthy, indicating that it was certainly an adequate description.
The patent demonstrated satisfaction of these requirements through showing the steps involved in the creation of this invention, as well as the unique instances in which this technology would be useful to fill the gap that the previous technology does not fill. It demonstrated that there were important times when this product would be uniquely useful, thereby fulfilling the utility requirement.
Source: http://torrentfreak.com/patent-allows-watermarking-of-already-encrypted-movies-140831/
There are a few important patent-related observations I would like to make regarding this case. I think that the Verance technology serves as a great example of the principles of filing for a patent discussed in some earlier posts. It is clearly patent-eligible and has a great deal of utility, it is definitely novel and non-obvious, and finally, the patent was extremely technical and lengthy, indicating that it was certainly an adequate description.
The patent demonstrated satisfaction of these requirements through showing the steps involved in the creation of this invention, as well as the unique instances in which this technology would be useful to fill the gap that the previous technology does not fill. It demonstrated that there were important times when this product would be uniquely useful, thereby fulfilling the utility requirement.
Source: http://torrentfreak.com/patent-allows-watermarking-of-already-encrypted-movies-140831/
United Therapeutics reaffirms the fight for pharmaceutical patents
This Friday, United Therapeutics scored an important win in the fight against generic pharmaceuticals by blocking Novartis from selling a generic version of UT's drug Remodulin. Remodulin is a massive money-maker for United Therapeutics, so they were loath to allow generic manufacturers to copy their formula and create cheaper versions of the drug.
One interesting aspect of the outcome of this court case was that it caused United Therapeutics' shares to spike. This is perfect proof that patent litigation affects company's profit margins and by transitive connection, the entire economy as a whole. There must therefore be a lot of thought put into the patent litigation process since it does have the ability to affect economics so much. The implication of this is that there is a lot of interest on all sides of patent litigation, so there must be care taken to prevent the powers that have money from influencing the outcome of legislation and litigation regarding intellectual property. Unfortunately, we have already seen this materialize somewhat as money does have a huge impact on the outcome of court cases today in the United States.
Another interesting observation is that Novartis will still eventually be able to market a generic version of Remodulin; they just have to wait until 2017 when the patent expires. At that point, there is clearly a question of what the patent is for -- is it really protecting the inventor and the consumer, or is it just allowing these giant pharmaceutical companies to make more money?
One interesting aspect of the outcome of this court case was that it caused United Therapeutics' shares to spike. This is perfect proof that patent litigation affects company's profit margins and by transitive connection, the entire economy as a whole. There must therefore be a lot of thought put into the patent litigation process since it does have the ability to affect economics so much. The implication of this is that there is a lot of interest on all sides of patent litigation, so there must be care taken to prevent the powers that have money from influencing the outcome of legislation and litigation regarding intellectual property. Unfortunately, we have already seen this materialize somewhat as money does have a huge impact on the outcome of court cases today in the United States.
Another interesting observation is that Novartis will still eventually be able to market a generic version of Remodulin; they just have to wait until 2017 when the patent expires. At that point, there is clearly a question of what the patent is for -- is it really protecting the inventor and the consumer, or is it just allowing these giant pharmaceutical companies to make more money?
China joins the patent war -- on the side of the patent trolls.
Today, I want to discuss the topic of state-funded or state-controlled patent operations. It has long been the case that several countries, including France, Japan, and Korea, have state-operated patent administrations. These patent operations function the same way as private trolls do, in that they buy up and own patents, then use those to deter other businesses from competing.
This is extremely problematic because it is harmful to competition and prevents innovation from happening. It is an abuse of what patents are meant for, in that they are no longer protecting inventors and innovators, but rather just harming other companies that may want to compete. In fact, this is the exact reason that China is joining this patent game -- because they want to protect domestic businesses against international competition. This protectionist attitude is harmful to competition and ends up hurting domestic consumers by denying them access to better products at cheaper prices.
Patent trolls, as we have discussed several times before, are extremely harmful to the economy. A Boston University Law study quantifies the impact that patent trolls have on the American economy, quoting a $29 billion impact to businesses last year from direct costs, such as legal fees. This figure does not even take into account all the losses associated with hindered innovation and productivity.
The problem of patent trolling is even further magnified when the actor is a state government. Many state governments have admitted that they use these tactics maliciously to hurt foreign companies in favor of domestic ones. Since the government of the country in question is the one adjudicating any international patent conflicts, it has a huge ability to bend the law in favor of the domestic companies. This is a violation of justice and is a serious impact to American businesses as well.
Source: http://www.washingtontimes.com/news/2014/aug/31/roff-the-frightening-emergence-of-government-paten/
This is extremely problematic because it is harmful to competition and prevents innovation from happening. It is an abuse of what patents are meant for, in that they are no longer protecting inventors and innovators, but rather just harming other companies that may want to compete. In fact, this is the exact reason that China is joining this patent game -- because they want to protect domestic businesses against international competition. This protectionist attitude is harmful to competition and ends up hurting domestic consumers by denying them access to better products at cheaper prices.
Patent trolls, as we have discussed several times before, are extremely harmful to the economy. A Boston University Law study quantifies the impact that patent trolls have on the American economy, quoting a $29 billion impact to businesses last year from direct costs, such as legal fees. This figure does not even take into account all the losses associated with hindered innovation and productivity.
The problem of patent trolling is even further magnified when the actor is a state government. Many state governments have admitted that they use these tactics maliciously to hurt foreign companies in favor of domestic ones. Since the government of the country in question is the one adjudicating any international patent conflicts, it has a huge ability to bend the law in favor of the domestic companies. This is a violation of justice and is a serious impact to American businesses as well.
Source: http://www.washingtontimes.com/news/2014/aug/31/roff-the-frightening-emergence-of-government-paten/
Tuesday, July 15, 2014
Anderson v. Kimberly-Clark: More on Design Patents
In a case recently seen by the Federal Circuit Court, the plaintiff, Anderson, claimed that Kimberly-Clark had infringed on several patents for a disposable underwear, admittedly a somewhat comical patent. Kimberly-Clark rebutted this argument by claiming that it did not infringe on the designs, as a neutral observer would clearly be able to distinguish the design.
This is important because the precedent for design patent cases has defined infringement as a situation in which an ordinary observer that is familiar with the previous design would confuse the new design as being the same as the old one. The key word in this sentence is "same", since this puts the burden on Anderson to show that Kimberly-Clark's designs actually look the same as theirs.
The Federal Circuit court ultimately agreed with Kimberly-Clark's argument that there was no patent infringement, though they did not invalidate Anderson's patents, as in many other cases. This is a significant ruling because it has the potential to spark more boldness in the design industry in terms of creating similar but different designs. I believe this is actually a good thing since it will encourage more design competition, which will benefit the consumer by providing more choices for similar products. The only harm from design patent infringement would come if a consumer actually believed that two different designs were the same and confused the two, but this is clearly not the case.
Source: http://patentlyo.com/patent/2014/07/federal-circuit-dismissal.html
This is important because the precedent for design patent cases has defined infringement as a situation in which an ordinary observer that is familiar with the previous design would confuse the new design as being the same as the old one. The key word in this sentence is "same", since this puts the burden on Anderson to show that Kimberly-Clark's designs actually look the same as theirs.
The Federal Circuit court ultimately agreed with Kimberly-Clark's argument that there was no patent infringement, though they did not invalidate Anderson's patents, as in many other cases. This is a significant ruling because it has the potential to spark more boldness in the design industry in terms of creating similar but different designs. I believe this is actually a good thing since it will encourage more design competition, which will benefit the consumer by providing more choices for similar products. The only harm from design patent infringement would come if a consumer actually believed that two different designs were the same and confused the two, but this is clearly not the case.
Source: http://patentlyo.com/patent/2014/07/federal-circuit-dismissal.html
Thursday, June 26, 2014
Foxconn vs. Japanese Manufacturers
Foxconn, the Taiwanese manufacturing giant, has sued three major Japanese corporations over patent infringement. These Japanese corporations are major players in the market for producing electronics as well as many other consumer goods and include Japanese manufacturing giants Mitsubishi, Toshiba, and Funai Corp.
This case is of note because Foxconn is the world's largest manufacturer of electronics and is responsible for many of the most used electronic consumer devices on the market, including those made by Apple, Sony, and Nokia. Though there are not yet many details out, this case may have something to do with the battle between Apple and Samsung over the smartphone patent market.
This is indicative of the new innovations that are happening in the high technology sector, with specific regards to consumer electronics. This is an extremely competitive market and new inventions keep coming out every few years. This sort of case really does force us to ask the question: should something be changed about the patent industry so that we don't see a new patent infringement case every other day?
I believe that the USPTO needs to seriously revisit the intellectual property laws that surround how patents are granted to the technology industry. The fact that these companies keep suing each other is indicative of the fact that competition is happening, not that intellectual property violation is happening. When different companies invent similar products to the benefit of the consumer, that is something our system should strive to encourage, not discourage. Furthermore, the smartphone industry has produced so many products that are very similar in many ways (appearance, design), but have many different features. By encouraging companies to learn from their competitors and produce an even better product with cooler features, we would be helping to advance the smartphone market, rather than hold it back.
This is a serious flaw with the intellectual property system that must be examined and rectified by the USPTO.
Sources:
http://online.wsj.com/articles/taiwans-foxconn-sues-japanese-companies-over-patent-claims-1403697706
http://timesofindia.indiatimes.com/tech/tech-news/Foxconn-sues-Toshiba-Mitsubishi-over-patent-violation/articleshow/37194301.cms
This case is of note because Foxconn is the world's largest manufacturer of electronics and is responsible for many of the most used electronic consumer devices on the market, including those made by Apple, Sony, and Nokia. Though there are not yet many details out, this case may have something to do with the battle between Apple and Samsung over the smartphone patent market.
This is indicative of the new innovations that are happening in the high technology sector, with specific regards to consumer electronics. This is an extremely competitive market and new inventions keep coming out every few years. This sort of case really does force us to ask the question: should something be changed about the patent industry so that we don't see a new patent infringement case every other day?
I believe that the USPTO needs to seriously revisit the intellectual property laws that surround how patents are granted to the technology industry. The fact that these companies keep suing each other is indicative of the fact that competition is happening, not that intellectual property violation is happening. When different companies invent similar products to the benefit of the consumer, that is something our system should strive to encourage, not discourage. Furthermore, the smartphone industry has produced so many products that are very similar in many ways (appearance, design), but have many different features. By encouraging companies to learn from their competitors and produce an even better product with cooler features, we would be helping to advance the smartphone market, rather than hold it back.
This is a serious flaw with the intellectual property system that must be examined and rectified by the USPTO.
Sources:
http://online.wsj.com/articles/taiwans-foxconn-sues-japanese-companies-over-patent-claims-1403697706
http://timesofindia.indiatimes.com/tech/tech-news/Foxconn-sues-Toshiba-Mitsubishi-over-patent-violation/articleshow/37194301.cms
Alice v CLS Ruling
The Supreme Court issued a massive ruling last week in the case of CLS v. Alice regarding software patents. In a previous post, I discussed the importance of this case because it would determine whether software patents should be allowed at all. This has been an extremely controversial issue, with many opposers claiming that a software-implemented solution of an already existing invention should not be given patent protection since it is not novel or original.
In the case, Alice Corp held a patent for a financial solution which had been implemented in a software mechanism. The financial solution, however, was a commonly known one which had no unique novelty except for the fact that it was being done on a computer, whereas before it had been done on paper. So, they sued over this patent and CLS claimed that the patent should be invalidated on the basis that it has no uniqueness and that any person holding ordinary skill in the art would be able to come up with a similar solution.
The Supreme Court's ruling had two major pillars, which will have a major impact on the way that software patents are granted in the future. First, they determined that abstract ideas cannot be patented. This was relevant because the ideas patented by Alice Corp were abstract theories about how to implement a financial solution. Second, they ruled that the mere implementation of an idea in a software-based mechanism is insufficient.
This was a hugely important ruling because it will redefine the way in which software solutions are patented and protected. In the future, I expect that it will be much more difficult to get a software patent but I believe this is a good thing for a few main reasons. First, it will increase the competitiveness of the market and allow many more people to implement software solutions. This is a really great thing because more people will be able to innovate in the field of software without the worry of infringing on patents. Second, it will remove the ability of people to make patents based on pre-existing solutions, which should drive people towards new inventing.
Sources:
http://www.vox.com/2014/6/26/5841192/why-last-weeks-ruling-was-bad-news-for-software-patents
http://www.scotusblog.com/case-files/cases/alice-corporation-pty-ltd-v-cls-bank-international/
In the case, Alice Corp held a patent for a financial solution which had been implemented in a software mechanism. The financial solution, however, was a commonly known one which had no unique novelty except for the fact that it was being done on a computer, whereas before it had been done on paper. So, they sued over this patent and CLS claimed that the patent should be invalidated on the basis that it has no uniqueness and that any person holding ordinary skill in the art would be able to come up with a similar solution.
The Supreme Court's ruling had two major pillars, which will have a major impact on the way that software patents are granted in the future. First, they determined that abstract ideas cannot be patented. This was relevant because the ideas patented by Alice Corp were abstract theories about how to implement a financial solution. Second, they ruled that the mere implementation of an idea in a software-based mechanism is insufficient.
This was a hugely important ruling because it will redefine the way in which software solutions are patented and protected. In the future, I expect that it will be much more difficult to get a software patent but I believe this is a good thing for a few main reasons. First, it will increase the competitiveness of the market and allow many more people to implement software solutions. This is a really great thing because more people will be able to innovate in the field of software without the worry of infringing on patents. Second, it will remove the ability of people to make patents based on pre-existing solutions, which should drive people towards new inventing.
Sources:
http://www.vox.com/2014/6/26/5841192/why-last-weeks-ruling-was-bad-news-for-software-patents
http://www.scotusblog.com/case-files/cases/alice-corporation-pty-ltd-v-cls-bank-international/
Thursday, June 19, 2014
Wednesday, June 18, 2014
"Redskins" name protected no more
In a very strange and interesting move, the US Patent and Trademark Office canceled the trademark held by the Washington Redskins professional football team over the controversial mascot held by this organization.
This team name has longed been criticized by the Native American community for being offensive to their community. In this vein, the USPTO decided that this offensive title should not be licensed to the football team in its effort to convince them to change their team name. There has been a great deal of pressure from the American public to drop this controversial name, as it is clearly offensive to Native Americans. However, Redskins owner Dan Snyder has held firm on this, claiming that the Redskins team name is completely dissociated from Native Americans. This is definitely not true, though, since their mascot is a caricature of a Native American and since many fans and supporters come to games dressed in mockeries of traditional Native headdresses and garbs.
This is extremely interesting and relevant to the field of patents because it establishes patents as a tool to implement social change. Since patents and trademarks are necessary for licensing products, it brings up the question of whether morally questionable products should be allowed to be protected under United States intellectual property laws. Patents have the ability to influence society in the positive direction by making sure that only inventions that benefit the world can be licensed, and not inventions that offend people or cause harm to people. However, there is a negative side to this, in that we must trust the judgment of the courts in determining what is moral and immoral in terms of inventions.
Source: http://money.cnn.com/2014/06/18/news/companies/patent-office-redskins/
This team name has longed been criticized by the Native American community for being offensive to their community. In this vein, the USPTO decided that this offensive title should not be licensed to the football team in its effort to convince them to change their team name. There has been a great deal of pressure from the American public to drop this controversial name, as it is clearly offensive to Native Americans. However, Redskins owner Dan Snyder has held firm on this, claiming that the Redskins team name is completely dissociated from Native Americans. This is definitely not true, though, since their mascot is a caricature of a Native American and since many fans and supporters come to games dressed in mockeries of traditional Native headdresses and garbs.
This is extremely interesting and relevant to the field of patents because it establishes patents as a tool to implement social change. Since patents and trademarks are necessary for licensing products, it brings up the question of whether morally questionable products should be allowed to be protected under United States intellectual property laws. Patents have the ability to influence society in the positive direction by making sure that only inventions that benefit the world can be licensed, and not inventions that offend people or cause harm to people. However, there is a negative side to this, in that we must trust the judgment of the courts in determining what is moral and immoral in terms of inventions.
Source: http://money.cnn.com/2014/06/18/news/companies/patent-office-redskins/
What is Tesla's real motive?
As I wrote about a few days ago, Tesla recently opened up all of its patents to the market, stating that it wanted its competitors to use them to move the field of electric car technology forward. This sounds extremely noble and altruistic, but is it possible Tesla has some other motives? In Elon Musk's words Tesla will not initiate patent lawsuits against anyone who, in good faith, wants to use our technology.” This, however, begs the question, what exactly does "in good faith" mean?
I believe Tesla has other motives for wanting to open up their patents. Namely, it is in Tesla's best interest to see as many electric cars on the market as possible, because more electric cars means wider adoption and implementation of the super-chargers that Tesla believes are necessary for their vehicles to become popular around the country. One big hurdle currently facing Tesla is that there are not that many charging stations located around the country, which is a serious detriment to anyone looking to drive their Tesla farther than a few hundred miles from home. With other, larger companies getting in on the electric car market, Elon Musk hopes they will help him in the building of these super-chargers, thereby making electric cars far more widespread.
There is an additional component to this. Tesla is currently by far the leader in terms of electric car battery technology. I believe that Tesla is confident that they will maintain this lead, as they have already established themselves as a company that makes an extremely high quality product. Therefore, they don't see a significant threat to sharing their technology with other companies because they already have a huge head start, both in brand-recognition in the EV market as well as in quality of product.
Sure, all of these things may have positive impacts on global climate pollution and on reduction of green house gases, but ultimately, Tesla, like all other corporations in a capitalist market, has to take care of its bottom line first. It is an extremely admirable move because they have found a way to maximize their profits while benefitting the world as a whole. I can't wait until Tesla releases an affordable vehicle that I believe will dominate US markets and return the United States to the top spot in international automobile production.
Source: http://www.businessweek.com/articles/2014-06-12/why-elon-musk-just-opened-teslas-patents-to-his-biggest-rivals
I believe Tesla has other motives for wanting to open up their patents. Namely, it is in Tesla's best interest to see as many electric cars on the market as possible, because more electric cars means wider adoption and implementation of the super-chargers that Tesla believes are necessary for their vehicles to become popular around the country. One big hurdle currently facing Tesla is that there are not that many charging stations located around the country, which is a serious detriment to anyone looking to drive their Tesla farther than a few hundred miles from home. With other, larger companies getting in on the electric car market, Elon Musk hopes they will help him in the building of these super-chargers, thereby making electric cars far more widespread.
There is an additional component to this. Tesla is currently by far the leader in terms of electric car battery technology. I believe that Tesla is confident that they will maintain this lead, as they have already established themselves as a company that makes an extremely high quality product. Therefore, they don't see a significant threat to sharing their technology with other companies because they already have a huge head start, both in brand-recognition in the EV market as well as in quality of product.
Sure, all of these things may have positive impacts on global climate pollution and on reduction of green house gases, but ultimately, Tesla, like all other corporations in a capitalist market, has to take care of its bottom line first. It is an extremely admirable move because they have found a way to maximize their profits while benefitting the world as a whole. I can't wait until Tesla releases an affordable vehicle that I believe will dominate US markets and return the United States to the top spot in international automobile production.
Source: http://www.businessweek.com/articles/2014-06-12/why-elon-musk-just-opened-teslas-patents-to-his-biggest-rivals
Patents as a metric to record innovation
Researchers at the University of Oxford have used complicated data mining algorithms to investigate the nature of innovation. In order to do this, they utilized the record of patents held by the USPTO.
This is important because it establishes patents as a mechanism for recording history, through inventions and discoveries which have advanced society forward. Since most, if not all, of the major inventions in American history have been protected under the patent system, this is an effective way of measuring technological progress, from the lightbulb all the way up to the smartphone.
This is important because it establishes patents as a mechanism for recording history, through inventions and discoveries which have advanced society forward. Since most, if not all, of the major inventions in American history have been protected under the patent system, this is an effective way of measuring technological progress, from the lightbulb all the way up to the smartphone.
The US Patent Office uses an intricate system to record patents, wherein patents are stored by a number that specifies if and how each invention uses prior technologies. Thereby, the researchers were able to gain an understanding of the flow of technology from one to another, leading to more and more new innovations. They were interesting in studying "to what extent invention is the refinement of existing combinations of technologies and to what extent it is the result of new combinations of technologies" (Tech Review).
Their findings were extremely intriguing. They determined that whereas 40 percent of inventions were on the basis of already existing combinations of technology, an entire 60 percent of new inventions are based on new combinations of technology. This is hugely important because it indicates to us that most of inventions that are happening are still on the basis of ingenuity and creativity. The patent process has recorded this creativity and gives us the ability to study how inventors were coming up with new, brilliant ideas.
Source: http://www.technologyreview.com/view/528436/data-mining-200-years-of-patent-office-records-to-reveal-the-nature-of-invention/
Facebook in court for potential patent violation
A case was recently brought forth by Mr. Joannes Van Der Meer, a Dutch computer programmer, who alleged that Facebook infringed on his patents, when he attempted to launch a social network site known as Surfbook over 10 years ago. Facebook, on the other hand, has defended themselves by saying that the patents granted to Van Der Meer were obvious and therefore, should be invalidated.
One tricky complication with regards to this case is that though the patents were granted in 2001 and 2002, a full year before the launch of Facebook, Mr. Van Der Meer passed away in 2004. As such, Facebook is being sued not by Van Der Meer himself, but a company known as Rembrandt Social Media. Rembrandt, incidentally, is actually a company that specializes in suing on behalf of patent holders and has thus been accused of being a patent troll.
As a company with a well-known history of intellectual property violation lawsuits, Facebook has been very successful at fighting these cases. The most well-known example, dramatized in the movie The Social Network, is the story of how Mark Zuckerberg, Facebook's founder, supposedly stole the idea from the Winklevoss twins during his time at Harvard. In the time that Facebook has been around, it has had to defend against several similar lawsuits and has succeeded in settling all but one outside of court. In that one case, Facebook was victorious in front of a jury.
Rembrandt is making the argument that several of Facebook's key features, including its "like" button were directly copied from Van Der Meer's Surfbook. On the other hand, Facebook has said that many of these were obvious ideas, and as such, they should not have been patentable in the first place. One thing that will certainly help Facebook will be the hindsight bias that will inevitably influence the jurors. By seeing how rapidly the space of online social media and social networking has evolved, it may be hard to deny that such innovations as Facebook would not have inevitably come into being, even without Van Der Meer's Surfbook.
It will be extremely interesting to see the outcome of this case, as it may have large monetary repercussions for the social networking giant, Facebook.
Source: http://abcnews.go.com/US/wireStory/trial-underway-patent-case-facebook-24093943
One tricky complication with regards to this case is that though the patents were granted in 2001 and 2002, a full year before the launch of Facebook, Mr. Van Der Meer passed away in 2004. As such, Facebook is being sued not by Van Der Meer himself, but a company known as Rembrandt Social Media. Rembrandt, incidentally, is actually a company that specializes in suing on behalf of patent holders and has thus been accused of being a patent troll.
As a company with a well-known history of intellectual property violation lawsuits, Facebook has been very successful at fighting these cases. The most well-known example, dramatized in the movie The Social Network, is the story of how Mark Zuckerberg, Facebook's founder, supposedly stole the idea from the Winklevoss twins during his time at Harvard. In the time that Facebook has been around, it has had to defend against several similar lawsuits and has succeeded in settling all but one outside of court. In that one case, Facebook was victorious in front of a jury.
Rembrandt is making the argument that several of Facebook's key features, including its "like" button were directly copied from Van Der Meer's Surfbook. On the other hand, Facebook has said that many of these were obvious ideas, and as such, they should not have been patentable in the first place. One thing that will certainly help Facebook will be the hindsight bias that will inevitably influence the jurors. By seeing how rapidly the space of online social media and social networking has evolved, it may be hard to deny that such innovations as Facebook would not have inevitably come into being, even without Van Der Meer's Surfbook.
It will be extremely interesting to see the outcome of this case, as it may have large monetary repercussions for the social networking giant, Facebook.
Source: http://abcnews.go.com/US/wireStory/trial-underway-patent-case-facebook-24093943
Thursday, June 12, 2014
Tesla opens up their patents to the market
In an unprecedented move, Tesla CEO Elon Musk has announced that he will be opening up all of Tesla's patents for others to use to replicate the technology.
Writing on Tesla's official website, Musk revealed that he no longer believes that patents are serving the purpose for which they were made. Today, instead of incentivizing innovation, they are merely hurting competition which is making it harder for the market to move forward. The electric car industry is a great example of this, as many car manufacturers have barely, if at all, ventured into this field. Tesla is far ahead of any of the competition in terms of their technology, and is as such, the only car manufacturer to have made a really successful electric car (with a few exceptions).
Musk makes another important point. Electric cars need to be an important part of the future, if something is to be done about the global climate crisis. Oil and gas powered vehicles are fundamentally problematic for the environment, but until the large car manufacturers -- GM, Toyota, Ford, Honda, etc -- make significant steps to transform their fleets into battery-powered vehicles, we will not see a significant reduction in carbon emissions. By opening up his technologies to the entire world, Mr. Musk has made a statement that saving the environment is more important to him and to his company than making money off the competitive advantage that Tesla's patents afford them.
I hope that other inventors will take this as an example of how to create innovation. Mr. Musk's open-mindedness and care for the entire world is something that all inventors need to have -- because ultimately, creating new products should be about helping the world, not about making money. I believe the patent approval process has become all about making more money, not what it should be about, and this move is indicative that Elon Musk feels that way too.
Source: http://www.teslamotors.com/blog/all-our-patent-are-belong-you
Writing on Tesla's official website, Musk revealed that he no longer believes that patents are serving the purpose for which they were made. Today, instead of incentivizing innovation, they are merely hurting competition which is making it harder for the market to move forward. The electric car industry is a great example of this, as many car manufacturers have barely, if at all, ventured into this field. Tesla is far ahead of any of the competition in terms of their technology, and is as such, the only car manufacturer to have made a really successful electric car (with a few exceptions).
Musk makes another important point. Electric cars need to be an important part of the future, if something is to be done about the global climate crisis. Oil and gas powered vehicles are fundamentally problematic for the environment, but until the large car manufacturers -- GM, Toyota, Ford, Honda, etc -- make significant steps to transform their fleets into battery-powered vehicles, we will not see a significant reduction in carbon emissions. By opening up his technologies to the entire world, Mr. Musk has made a statement that saving the environment is more important to him and to his company than making money off the competitive advantage that Tesla's patents afford them.
I hope that other inventors will take this as an example of how to create innovation. Mr. Musk's open-mindedness and care for the entire world is something that all inventors need to have -- because ultimately, creating new products should be about helping the world, not about making money. I believe the patent approval process has become all about making more money, not what it should be about, and this move is indicative that Elon Musk feels that way too.
Source: http://www.teslamotors.com/blog/all-our-patent-are-belong-you
Monday, May 19, 2014
Limelight v. Akamai: Implications for the world at large
In a recent ruling between Limelight and Akamai, the notion of indirect infringement came into question and threatens to affect the way that future infringement suits are viewed in general. Akamai sued Limelight for violating part of its process of delivering content to a user's screen; Limelight, however, claimed that since they were responsible only for parts of the process, whereas their partners were responsible for the rest, they could not be held liable for patent infringement. The district court supported Limelight, as did the court of appeals, but upon review, the Federal Circuit ruled on a 6 to 5 decision in favor of Akamai.
The reason this distinction is so important is that previously, in order to be accused of infringement, you had to have directly copied all the steps involved. However, with this ruling, if you are even partially implicated in infringement, this can cause severe problems. This affects, for example, app developers who create an app which does not directly infringe on some system, but coupled with the phone operating system may actually infringe.
Another reason this is so important is that this affects the scope of infringement which cases now must examine. Previously, only domestic infringement was counted when considering whether one company infringed on another's patents. However, today, because there is no requirement of direct infringement, liability can be given based on activity that happens outside of the United States. This has serious implications for the way that patents are prosecuted that we must definitely consider moving forward.
Source: http://dailycaller.com/2014/05/05/patent-case-could-upset-international-law/
The reason this distinction is so important is that previously, in order to be accused of infringement, you had to have directly copied all the steps involved. However, with this ruling, if you are even partially implicated in infringement, this can cause severe problems. This affects, for example, app developers who create an app which does not directly infringe on some system, but coupled with the phone operating system may actually infringe.
Another reason this is so important is that this affects the scope of infringement which cases now must examine. Previously, only domestic infringement was counted when considering whether one company infringed on another's patents. However, today, because there is no requirement of direct infringement, liability can be given based on activity that happens outside of the United States. This has serious implications for the way that patents are prosecuted that we must definitely consider moving forward.
Source: http://dailycaller.com/2014/05/05/patent-case-could-upset-international-law/
Determining a standard for "exceptional" patent cases
In two major cases recently ruled on by the Supreme Court, the highest court in the land found that "(1) the prior standard used by the U.S. Court of Appeals for the Federal Circuit for determining whether a case is "exceptional" pursuant to 35 U.S.C. § 285 was unduly restrictive and inconsistent with the statutory text, and (2) a district court's finding of an "exceptional case" is subject to the district court's discretion and should be reviewed for an abuse of discretion, not de novo."
The first of these cases, Octane Fitness v. Icon Health, was regarding a patent for exercise equipment. In this case, Icon Health sued Octane for violating a patent on an elliptical machine, but Octane was ultimately able to show that they did not violate this patent. After doing so, they filed a motion for legal fees, which the district court turned down on the basis that this case was not exceptional and did not show a baseless claim, in bad faith. The Supreme Court determined that district courses have the ability to determine what is an exceptional case, on a case-by-case basis taking into account the totality of the circumstances of the decision.
"The Supreme Court rejected the litigation misconduct portion of the Brooks Furniture standard as too restrictive because it appeared to apply only to independently sanctionable conduct. The court explained that "sanctionable conduct" is not the appropriate benchmark. Rather, a district court may award fees in the rare case in which a party's unreasonable conduct is "exceptional" enough to justify an award of fees even if the conduct is not sanctionable. The Supreme Court also found that the second prong of the Brooks Furniture standard, requiring a finding that the litigation was objectively baseless and that the claims were brought in subjective bad faith, to be unduly restrictive. The court found that a case presenting either subjective bad faith or "exceptionally meritless claims" may suffice for a finding of an exceptional case."
This case is important because it greatly broadened the basis on which penalties can be applied for frivolous litigation. This is a huge step towards curbing the patent wars we have seen in recent years, as well as deterring patent trolls from arbitrarily suing companies left and right, another phenomenon that has taken off in the last decade and threatens to undermine our patent protection process.
Source: http://www.mondaq.com/unitedstates/x/311714/Patent/Unanimous+Supreme+Court+Exceptional+Patent+Cases+Determined+At+District+Courts+Discretion+With+Appellate+Review+Only+For+Abuse
The first of these cases, Octane Fitness v. Icon Health, was regarding a patent for exercise equipment. In this case, Icon Health sued Octane for violating a patent on an elliptical machine, but Octane was ultimately able to show that they did not violate this patent. After doing so, they filed a motion for legal fees, which the district court turned down on the basis that this case was not exceptional and did not show a baseless claim, in bad faith. The Supreme Court determined that district courses have the ability to determine what is an exceptional case, on a case-by-case basis taking into account the totality of the circumstances of the decision.
"The Supreme Court rejected the litigation misconduct portion of the Brooks Furniture standard as too restrictive because it appeared to apply only to independently sanctionable conduct. The court explained that "sanctionable conduct" is not the appropriate benchmark. Rather, a district court may award fees in the rare case in which a party's unreasonable conduct is "exceptional" enough to justify an award of fees even if the conduct is not sanctionable. The Supreme Court also found that the second prong of the Brooks Furniture standard, requiring a finding that the litigation was objectively baseless and that the claims were brought in subjective bad faith, to be unduly restrictive. The court found that a case presenting either subjective bad faith or "exceptionally meritless claims" may suffice for a finding of an exceptional case."
This case is important because it greatly broadened the basis on which penalties can be applied for frivolous litigation. This is a huge step towards curbing the patent wars we have seen in recent years, as well as deterring patent trolls from arbitrarily suing companies left and right, another phenomenon that has taken off in the last decade and threatens to undermine our patent protection process.
Source: http://www.mondaq.com/unitedstates/x/311714/Patent/Unanimous+Supreme+Court+Exceptional+Patent+Cases+Determined+At+District+Courts+Discretion+With+Appellate+Review+Only+For+Abuse
FindTheBest: Taking a stand against patent trolls
Last year, FindTheBest.com a company that specializes in information organization, was handed a patent-related lawsuit for violating a patent owned by a company named Lumen View. A small amount of research revealed that Lumen View was in fact a non-practicing entity, known to many as a patent troll. They were suing on the basis of a match-making algorithm patent they owned, and were trying to use this patent simply for the basis of making money.
This case was a prototypical patent troll litigation suit, in that the troll attempted to scare the legitimate company into settling and paying them $50,000, a strategy which usually works due to a company's unwillingness to shell out lawyer's fees and time in fighting the case. However, FindTheBest decided that they were not willing to be taken advantage of and decided to fight this case. This resulted in a complete dismantling of the patent held by Lumen View. By fighting the case, FindTheBest was able to prove that Lumen View's patent should be deemed invalid since there is no originality or inventive step.
The interesting part of this is that FindTheBest has now filed a motion asking for Lumen View to pay their attorney's fees. Though this is something that recent court cases have definitely been supporting, as a means to prevent frivolous lawsuits such as this one, there is one key problem that is not being addressed. The structure of these patent trolls is such that as soon as they are asked to pay any money, they can immediately dissolve themselves and file for bankruptcy to avoid having to do so. Since these companies don't actually do anything, there is no cost to them of filing for bankruptcy and so, they can completely avoid having to pay lawyers' fees. This is a problem that the Supreme Court must address in future lawsuits, since by failing to discuss the penalties that patent trolls actually pay, they allow for this huge problem which is undermining the intellectual property protection system in the United States today.
Source: http://arstechnica.com/tech-policy/2014/05/findthebest-may-be-first-to-gain-from-supreme-courts-patent-fee-ruling/
This case was a prototypical patent troll litigation suit, in that the troll attempted to scare the legitimate company into settling and paying them $50,000, a strategy which usually works due to a company's unwillingness to shell out lawyer's fees and time in fighting the case. However, FindTheBest decided that they were not willing to be taken advantage of and decided to fight this case. This resulted in a complete dismantling of the patent held by Lumen View. By fighting the case, FindTheBest was able to prove that Lumen View's patent should be deemed invalid since there is no originality or inventive step.
The interesting part of this is that FindTheBest has now filed a motion asking for Lumen View to pay their attorney's fees. Though this is something that recent court cases have definitely been supporting, as a means to prevent frivolous lawsuits such as this one, there is one key problem that is not being addressed. The structure of these patent trolls is such that as soon as they are asked to pay any money, they can immediately dissolve themselves and file for bankruptcy to avoid having to do so. Since these companies don't actually do anything, there is no cost to them of filing for bankruptcy and so, they can completely avoid having to pay lawyers' fees. This is a problem that the Supreme Court must address in future lawsuits, since by failing to discuss the penalties that patent trolls actually pay, they allow for this huge problem which is undermining the intellectual property protection system in the United States today.
Source: http://arstechnica.com/tech-policy/2014/05/findthebest-may-be-first-to-gain-from-supreme-courts-patent-fee-ruling/
Patentability Requirement #5: Adequate Description
The fifth and final requirement of patentability is the one which causes many self-motivated inventors to fail in this process. This is the requirement of having an adequate and detailed description to clearly structure the invention and label its parts and components. "Once the first four patentability requirements are satisfied the applicant still must describe the invention with enough particularity such that those skilled in the art will be able to make, use and understand the invention that was made by the inventor."
There are three main pillars of this requirement that must be satisfied to demonstrate that one's description is sufficiently adequate. The first, known as the enablement requirement, requires that the inventor describes his or her patent in a way that would enable others to make use of it and license it if possible. This is extremely important because it comes back to the purposes of the intellectual property system. It is true that patents exist to protect patent-holders, but they also exist to enable others to make use of the patent in a legal way that benefits society. An inadequate description of the patent may make it hard for others to use the given invention, so it is extremely important that the description fulfills the enable requirement.
The second, known as the Best Mode requirement, requires the inventor to disclose the way in which he or she will use this invention. This is important because it also makes sure that inventions actually will be used in a useful, interesting way. However, this requirement has for the most part been eliminated from US patent law. A law passed in 2011, known as the America Invents Act (AIA), prevents a patent from being invalidated as a result of a failure to present the best mode of use. This leaves the system in a strange place because inventors are still required to disclose the best mode but this law prevents any penalization for failing to do so.
The third, known as the written description requirement, is probably the most confusing and least well-understood. "The written description requirement serves a teaching function, as a “quid pro quo” in which the public is given meaningful disclosure in exchange for being excluded from practicing the invention for a limited period of time." What this means is that the written description requires that the inventor provide the public with a meaningful understanding of the invention and how it will be used, in exchange for protection of their intellectual property. "For generations the written description requirement had been confined to making sure that what was originally filed in the patent application adequately defined the full parameters of the invention being claimed. Today, the written description requirement means much more, but the Federal Circuit has yet to be able to articulate the requirements in a coherent way. Commentators have called the new written description requirement a super-enablement requirement." Since this requirement has a great degree of vagueness, it is important to understand that the best thing to do is to describe the invention with as much detail as possible and to be as hyper-specific in the patent-filing process as is humanly possible.
Source: http://www.ipwatchdog.com/2012/06/09/patentability-overview-obviousness-and-adequate-description/id=25191/
There are three main pillars of this requirement that must be satisfied to demonstrate that one's description is sufficiently adequate. The first, known as the enablement requirement, requires that the inventor describes his or her patent in a way that would enable others to make use of it and license it if possible. This is extremely important because it comes back to the purposes of the intellectual property system. It is true that patents exist to protect patent-holders, but they also exist to enable others to make use of the patent in a legal way that benefits society. An inadequate description of the patent may make it hard for others to use the given invention, so it is extremely important that the description fulfills the enable requirement.
The second, known as the Best Mode requirement, requires the inventor to disclose the way in which he or she will use this invention. This is important because it also makes sure that inventions actually will be used in a useful, interesting way. However, this requirement has for the most part been eliminated from US patent law. A law passed in 2011, known as the America Invents Act (AIA), prevents a patent from being invalidated as a result of a failure to present the best mode of use. This leaves the system in a strange place because inventors are still required to disclose the best mode but this law prevents any penalization for failing to do so.
The third, known as the written description requirement, is probably the most confusing and least well-understood. "The written description requirement serves a teaching function, as a “quid pro quo” in which the public is given meaningful disclosure in exchange for being excluded from practicing the invention for a limited period of time." What this means is that the written description requires that the inventor provide the public with a meaningful understanding of the invention and how it will be used, in exchange for protection of their intellectual property. "For generations the written description requirement had been confined to making sure that what was originally filed in the patent application adequately defined the full parameters of the invention being claimed. Today, the written description requirement means much more, but the Federal Circuit has yet to be able to articulate the requirements in a coherent way. Commentators have called the new written description requirement a super-enablement requirement." Since this requirement has a great degree of vagueness, it is important to understand that the best thing to do is to describe the invention with as much detail as possible and to be as hyper-specific in the patent-filing process as is humanly possible.
Source: http://www.ipwatchdog.com/2012/06/09/patentability-overview-obviousness-and-adequate-description/id=25191/
Patentability Requirement #4: Nonobviousness
This fourth requirement of patentability is probably one of the most-oft discussed and definitely the one that I have written the most about on this blog. This requirement is that of non-obviousness, or the notion that an invention must be non-trivial and must be demonstrably original.
The reason for this goes back to the basis of the patent-awarding system. Patents were designed to protect unique, original inventions, so as to encourage those who have some extraordinary skill in an art to pursue their passions and move society forward. As such, the obviousness requirement mandates that an invention must demonstrate some ingenuity and skill beyond the scope of a person holding ordinary skill in the art (PHOSITA).
There are four factual questions that need to be asked to determine obviousness. First, one must understand the differences between the prior art and the current invention. Second, one must compare the difference in skill required for this invention and in the field from those of ordinary skill. This allows the court to determine that this invention is really one requiring extraordinary ingenuity and skill. Third, one must understand what a PHOSITA would call obvious, since they are the only ones qualified to judge what can be obvious in that given field. Finally, there must be some objective evidence of obviousness or non-obviousness.
This objective evidence can include "(1) the commercial success of the invention; (2) whether the invention satisfied a long felt need in the industry; (3) failure of others to find a solution to the problem at hand; and (4) unexpected results." These are extremely important measures of evaluating the obviousness of a given invention because if it is found to be a unique solution that others could not determine that brings about a great deal of commercial success, then clearly there is some unique value-add from this invention that prior art did not enable.
There are many many court cases which have debated the issue of obviousness and it is from these standards that we have developed these metrics for determining obviousness.
Source: http://www.ipwatchdog.com/2012/06/09/patentability-overview-obviousness-and-adequate-description/id=25191/
The reason for this goes back to the basis of the patent-awarding system. Patents were designed to protect unique, original inventions, so as to encourage those who have some extraordinary skill in an art to pursue their passions and move society forward. As such, the obviousness requirement mandates that an invention must demonstrate some ingenuity and skill beyond the scope of a person holding ordinary skill in the art (PHOSITA).
There are four factual questions that need to be asked to determine obviousness. First, one must understand the differences between the prior art and the current invention. Second, one must compare the difference in skill required for this invention and in the field from those of ordinary skill. This allows the court to determine that this invention is really one requiring extraordinary ingenuity and skill. Third, one must understand what a PHOSITA would call obvious, since they are the only ones qualified to judge what can be obvious in that given field. Finally, there must be some objective evidence of obviousness or non-obviousness.
This objective evidence can include "(1) the commercial success of the invention; (2) whether the invention satisfied a long felt need in the industry; (3) failure of others to find a solution to the problem at hand; and (4) unexpected results." These are extremely important measures of evaluating the obviousness of a given invention because if it is found to be a unique solution that others could not determine that brings about a great deal of commercial success, then clearly there is some unique value-add from this invention that prior art did not enable.
There are many many court cases which have debated the issue of obviousness and it is from these standards that we have developed these metrics for determining obviousness.
Source: http://www.ipwatchdog.com/2012/06/09/patentability-overview-obviousness-and-adequate-description/id=25191/
Patentability Requirement #3: Novelty
The third requirement is where many patent filers get caught in the process of trying to protect their intellectual property. This third requirement of patentability necessitates that patent filers be able to show that their inventions are novel, meaning not only that they are new, but that they fulfill a new purpose in a new way than the prior art. In order to violate this requirement, it must be demonstrated that the new invention is almost identical to the prior art in each of its elements.
A discussion of novelty necessitates a discussion of anticipation, wherein a claim is "anticipated" if every element in the claim can be linked specifically to an element in the prior art. This standard, however, is still not a very high one because if a patent filer can demonstrate that even one of the major components of their invention differs from the prior art, they can escape the anticipatory burden. If the patent examiner has to go beyond one case of prior art to show the non-novelty of an invention, then the rejection of that invention no longer goes under the rule of novelty, but rather our next requirement, obviousness.
The reason the novelty requirement is so important though is that it prevents inventors from copying other inventions that they have heard about or seen. The requirement puts strict limits on an inventor's ability to obtain a patent if (a) that invention was described in a patent anywhere in the world, (b)
that invention was described in any publication anywhere, or (c) if that invention was known to the general public. These requirements make it clear that novelty is something that is extremely important to the patent-filing process.
Source:
http://www.ipwatchdog.com/2012/06/02/patentability-overview-when-can-an-invention-be-patented/id=23863/
A discussion of novelty necessitates a discussion of anticipation, wherein a claim is "anticipated" if every element in the claim can be linked specifically to an element in the prior art. This standard, however, is still not a very high one because if a patent filer can demonstrate that even one of the major components of their invention differs from the prior art, they can escape the anticipatory burden. If the patent examiner has to go beyond one case of prior art to show the non-novelty of an invention, then the rejection of that invention no longer goes under the rule of novelty, but rather our next requirement, obviousness.
The reason the novelty requirement is so important though is that it prevents inventors from copying other inventions that they have heard about or seen. The requirement puts strict limits on an inventor's ability to obtain a patent if (a) that invention was described in a patent anywhere in the world, (b)
that invention was described in any publication anywhere, or (c) if that invention was known to the general public. These requirements make it clear that novelty is something that is extremely important to the patent-filing process.
Source:
http://www.ipwatchdog.com/2012/06/02/patentability-overview-when-can-an-invention-be-patented/id=23863/
Patentability Requirement #2: Utility
We have established that anything that is an invention can be patented. However, we must first note that in order to be considered an invention, a given thing must do something useful that provides benefits for a certain group of people. In this post, I will examine the requirements for considering an invention useful, and how this is determined.
The basis of the patent system is to protect invention and innovation for the purpose of moving society forward and benefitting the American people. Thus, patents aim only to protect inventions that can show how they are actually improving the lives of Americans.
It is therefore, extremely important for the patent-filer to specify clearly the utility of the given invention and highlight how it will help people in unique ways that do not exist without it. The two ways in which the patent office can reject an invention for not being useful is (1) if the filer does not specify clearly how the invention will be used to benefit people and (2) if the claimed use is determined to be non-credible or unrealistic.
This last determination seems like it has the potential to be arbitrary, so I will now explain how the Supreme Court determines if an invention's claim to utility is non-credible. The courts evaluate the logic behind a patent-filer's claim to credible utility and determine if the logic underlying the assertion is flawed, if the facts underlying the logic are flawed, or if a person of ordinary skill would consider the assertion of utility to be incredible. If any of these three points are determined to be true, the invention is deemed non-useful and is not granted a patent.
These two standards (utility and patentable subject material) set quite a low bar for patenting, since it makes it seem like any concrete invention that helps people can be patented. The next few requirements will determine why it is extremely difficult to have a patent granted in your favor.
Source: http://www.ipwatchdog.com/2012/06/02/patentability-overview-when-can-an-invention-be-patented/id=23863/
The basis of the patent system is to protect invention and innovation for the purpose of moving society forward and benefitting the American people. Thus, patents aim only to protect inventions that can show how they are actually improving the lives of Americans.
It is therefore, extremely important for the patent-filer to specify clearly the utility of the given invention and highlight how it will help people in unique ways that do not exist without it. The two ways in which the patent office can reject an invention for not being useful is (1) if the filer does not specify clearly how the invention will be used to benefit people and (2) if the claimed use is determined to be non-credible or unrealistic.
This last determination seems like it has the potential to be arbitrary, so I will now explain how the Supreme Court determines if an invention's claim to utility is non-credible. The courts evaluate the logic behind a patent-filer's claim to credible utility and determine if the logic underlying the assertion is flawed, if the facts underlying the logic are flawed, or if a person of ordinary skill would consider the assertion of utility to be incredible. If any of these three points are determined to be true, the invention is deemed non-useful and is not granted a patent.
These two standards (utility and patentable subject material) set quite a low bar for patenting, since it makes it seem like any concrete invention that helps people can be patented. The next few requirements will determine why it is extremely difficult to have a patent granted in your favor.
Source: http://www.ipwatchdog.com/2012/06/02/patentability-overview-when-can-an-invention-be-patented/id=23863/
Patentability Requirement #1: "Patent-Eligible Subject Matter"
In these next 5 posts, I will be discussing the 5 understood requirements when considering the patentability of an invention. Though there are many other things that need to be fulfilled, these 5 categories are the main ones determining whether or not a product can actually be patented, and are thus extremely important to understand carefully.
The first of these five requirements is the notion of subject matter that is patent eligible. This asks the USPTO and the inventor to consider the question of whether the invention put forth is something that can and, more importantly, should be patented. "Is this invention something that the patent laws are designed to protect?"
In considering this question, one must understand what sort of materials and inventions have been patented before. In the United States, almost any material invention can be patented and protected. This includes, but is not limited to technology, software, genetics, discoveries, algorithms, complex systems, biotechnology, and even some business methods that are tethered to some sort of apparatus. Though this seems extremely broad, the truth of the matter is that this is an intentional aspect of the US patent system. We want to make sure that almost any invention can potentially be patented because any innovation and inventions should be protected in this country.
Then what doesn't fall under this category. Well, the court highlights three specific categories that would be excluded from the realm of patentable inventions. The first is laws of nature, since obviously, they are pre-existing rules that define how the world works and cannot nor should not be owned by any one person. The second is natural phenomena since these are functions of the way the world works and not of creativity or application put forth by man. As such, they also should not be able to be owned by any one person. For example, to say that a person could patent a waterfall would be ridiculous since this occurs in nature and is clearly not an invention by a human being. Thirdly, the court identifies "abstract ideas" as a category which cannot be patented. Since abstract ideas are not necessarily tangible nor applicable as an invention, it can often be difficult to identify how exactly these would be used as an invention. Without doing this, it is not really possible to patent these ideas.
With this identified, we can now move to the next 4 requirements of patentability, namely (2) utility, (3) novelty, (4) non-obviousness, and (5) an adequate description.
Source:
http://www.ipwatchdog.com/2012/06/02/patentability-overview-when-can-an-invention-be-patented/id=23863/
http://www.ipwatchdog.com/2012/06/09/patentability-overview-obviousness-and-adequate-description/id=25191/
The first of these five requirements is the notion of subject matter that is patent eligible. This asks the USPTO and the inventor to consider the question of whether the invention put forth is something that can and, more importantly, should be patented. "Is this invention something that the patent laws are designed to protect?"
In considering this question, one must understand what sort of materials and inventions have been patented before. In the United States, almost any material invention can be patented and protected. This includes, but is not limited to technology, software, genetics, discoveries, algorithms, complex systems, biotechnology, and even some business methods that are tethered to some sort of apparatus. Though this seems extremely broad, the truth of the matter is that this is an intentional aspect of the US patent system. We want to make sure that almost any invention can potentially be patented because any innovation and inventions should be protected in this country.
Then what doesn't fall under this category. Well, the court highlights three specific categories that would be excluded from the realm of patentable inventions. The first is laws of nature, since obviously, they are pre-existing rules that define how the world works and cannot nor should not be owned by any one person. The second is natural phenomena since these are functions of the way the world works and not of creativity or application put forth by man. As such, they also should not be able to be owned by any one person. For example, to say that a person could patent a waterfall would be ridiculous since this occurs in nature and is clearly not an invention by a human being. Thirdly, the court identifies "abstract ideas" as a category which cannot be patented. Since abstract ideas are not necessarily tangible nor applicable as an invention, it can often be difficult to identify how exactly these would be used as an invention. Without doing this, it is not really possible to patent these ideas.
With this identified, we can now move to the next 4 requirements of patentability, namely (2) utility, (3) novelty, (4) non-obviousness, and (5) an adequate description.
Source:
http://www.ipwatchdog.com/2012/06/02/patentability-overview-when-can-an-invention-be-patented/id=23863/
http://www.ipwatchdog.com/2012/06/09/patentability-overview-obviousness-and-adequate-description/id=25191/
Sunday, May 18, 2014
Patents as harbingers of the future
As various technology companies create new inventions that change the way that society interacts on a day to day basis, it is important to examine that rapidity with which these changes have been made. The simplest example of this is the smartphone, an invention which was nonexistent just a few years ago, but is inextricably linked to the life of American consumer society today.
In predicting the changes that will arise in the future, it is extremely important to look to patents as a predictor of what is to come. The smartphone industry is the perfect example of this because there are constantly new innovations being developed and every year, a new model is released which makes the old one look like something out of the Stone Age. Looking to the patents filed by companies like Apple and Samsung can give us a good indication of how smartphones may be transforming further in the future.
One example of such a change is a recent patent filed by Apple to create a wrap-around edge on the new model of the iPhone. According to the patent filed by Apple (drawing shown below), the side of the phone would effectively be a touch screen akin to the one currently only on the front of the phone. This invention has the capability to change the way we interact with our phones by creating more easy access to important functionalities on the phone.
These sorts of technological changes are extremely important because they are constantly bringing increased ease and comfort to the American consumer. This reminds of us of the importance of the patent process and why we need intellectual property to incentivize innovation in the United States. By looking to patents, we can begin to understand how innovation happens and how innovations will continue to change the face of society in this great country.
Source: http://techcrunch.com/2014/05/13/apple-patents-wraparound-edge-mounted-iphone-displays-with-virtual-buttons/
In predicting the changes that will arise in the future, it is extremely important to look to patents as a predictor of what is to come. The smartphone industry is the perfect example of this because there are constantly new innovations being developed and every year, a new model is released which makes the old one look like something out of the Stone Age. Looking to the patents filed by companies like Apple and Samsung can give us a good indication of how smartphones may be transforming further in the future.
One example of such a change is a recent patent filed by Apple to create a wrap-around edge on the new model of the iPhone. According to the patent filed by Apple (drawing shown below), the side of the phone would effectively be a touch screen akin to the one currently only on the front of the phone. This invention has the capability to change the way we interact with our phones by creating more easy access to important functionalities on the phone.
Source: http://techcrunch.com/2014/05/13/apple-patents-wraparound-edge-mounted-iphone-displays-with-virtual-buttons/
Supreme Court is realizing the importance of patent reform
This year alone, the Supreme Court has already heard 6 patent-related cases, and will probably be hearing more in the upcoming months. With so many hot button rights issues, one must clearly ask the question of why the nation's highest court is devoting so much time to something as mundane as intellectual property rights. The reason is that this is one of the most important issues in advancing the United States' technology sector and that without intellectual property protection, we run the risk of slowing American innovation. According to Paul Janicke, a University of Houston law professor, "The Supreme Court is worried and has been for years that patent power is too strong -- too many patents are issuing, too many people are being abused by them."
As a result of this worry, the Supreme Court has taken clear steps in favor of competition and innovation, by limiting patent owners' ability to use their patents to block others from building on their inventions.
From cases regarding software patents to pharmaceutical patents to the validity of patent trolls, The Supreme Court has been listening to, and analyzing the state of the current patent system today. They clearly recognize the importance of reforming the patent system and want to use these cases as the medium from which to do so.
One such case involved Nautilus Inc., the maker of exercise machines. In this case, Nautilus was claiming that a patent held by a rival company should be invalidated on the basis that it is not specific enough and is far too vague. This position is supported by many companies including Google and Amazon, since they believe that patents should clearly define the scope of an invention, rather than allowing the patent holder to broadly wield them as weapons from which to monetize the litigation system. This is one example of the important decision that the Supreme Court must make this year with regards to the patent reform process.
Source: http://www.businessweek.com/news/2014-04-25/patent-disputes-give-u-dot-s-dot-top-court-chance-to-curb-lawsuit-abuse#p1
As a result of this worry, the Supreme Court has taken clear steps in favor of competition and innovation, by limiting patent owners' ability to use their patents to block others from building on their inventions.
From cases regarding software patents to pharmaceutical patents to the validity of patent trolls, The Supreme Court has been listening to, and analyzing the state of the current patent system today. They clearly recognize the importance of reforming the patent system and want to use these cases as the medium from which to do so.
One such case involved Nautilus Inc., the maker of exercise machines. In this case, Nautilus was claiming that a patent held by a rival company should be invalidated on the basis that it is not specific enough and is far too vague. This position is supported by many companies including Google and Amazon, since they believe that patents should clearly define the scope of an invention, rather than allowing the patent holder to broadly wield them as weapons from which to monetize the litigation system. This is one example of the important decision that the Supreme Court must make this year with regards to the patent reform process.
Source: http://www.businessweek.com/news/2014-04-25/patent-disputes-give-u-dot-s-dot-top-court-chance-to-curb-lawsuit-abuse#p1
Are patents hurting R&D more than helping?
The high-technology sphere has been plagued with a series of patent-related lawsuits in recent years, which has really called into question the way in which patents are issued and used as tools of litigation. The past decade has seen among the most intellectual property-related court cases of any era and this is due primarily to the fact that there has been so much rapid innovation in technology.
However, another cause of the huge amounts of patent-related court cases seen by courts has been the transformation of the legal sphere, encouraging companies away from innovation and towards litigation. One important part of this has been the increased prevalence of "patent trolls", non-practicing entities which buy up patents merely for the sake of suing other companies and making money. This practice, however, has flowed over into the tech sector, as now many tech giants such as Apple and Google are buying up patents and companies that hold patents, merely for the sake of attacking others and protecting themselves from these cases. "In recent years, the big tech giants have stockpiled patents from other companies. In 2011, Google and Apple spent more on buying up patents than they did on research and development, according to Nazer of the Electronic Frontier Foundation. "When you're looking at what are supposedly our most innovative tech companies and they're spending more buying patents than actually innovating, you've seen patents sort of usurp the R&D process rather than promote it," he says."
The Supreme Court has the potential to change this all in upcoming months, as they are evaluating a court case on the nature of patent trolls, Alice Corp v. CLS Bank. This case will have an impact on patent trolls can sue companies in the future and will influence the way that technology related patents are issued (two issues that have been discussed in my previous blog posts). If these issues are effectively tackled by the Supreme Court, there could be major positive strides taken towards reforming the intellectual property process. On the other hand, however, if the supreme court fails to make the right decision, the flaws in this process could become even more entrenched.
Source: http://www.npr.org/blogs/alltechconsidered/2014/05/01/308735270/how-the-supreme-court-could-reshape-the-tech-patent-landscape
However, another cause of the huge amounts of patent-related court cases seen by courts has been the transformation of the legal sphere, encouraging companies away from innovation and towards litigation. One important part of this has been the increased prevalence of "patent trolls", non-practicing entities which buy up patents merely for the sake of suing other companies and making money. This practice, however, has flowed over into the tech sector, as now many tech giants such as Apple and Google are buying up patents and companies that hold patents, merely for the sake of attacking others and protecting themselves from these cases. "In recent years, the big tech giants have stockpiled patents from other companies. In 2011, Google and Apple spent more on buying up patents than they did on research and development, according to Nazer of the Electronic Frontier Foundation. "When you're looking at what are supposedly our most innovative tech companies and they're spending more buying patents than actually innovating, you've seen patents sort of usurp the R&D process rather than promote it," he says."
The Supreme Court has the potential to change this all in upcoming months, as they are evaluating a court case on the nature of patent trolls, Alice Corp v. CLS Bank. This case will have an impact on patent trolls can sue companies in the future and will influence the way that technology related patents are issued (two issues that have been discussed in my previous blog posts). If these issues are effectively tackled by the Supreme Court, there could be major positive strides taken towards reforming the intellectual property process. On the other hand, however, if the supreme court fails to make the right decision, the flaws in this process could become even more entrenched.
Source: http://www.npr.org/blogs/alltechconsidered/2014/05/01/308735270/how-the-supreme-court-could-reshape-the-tech-patent-landscape
Filing a patent: not as easy as you think!
There are many difficulties associated with filing a patent that people do not know about. In this post, I will talk about a few of those difficulties and will address how one should go about the process of filing a patent so as to avoid many of these problems.
The first issue encountered in the process of filing patents is that it is extremely arcane and hard to understand, and as such, many people struggle to do it on their own. For this reason, this article, and many others like it, recommend that you do not attempt to go through this process on your own, and that you should definitely consult a patent attorney for help. Unfortunately, it is extremely easy for an inventor filing a patent for himself to make costly mistakes that cost him or her time and money. This is invaluable in the patent filing process because that time can make the difference between someone else filing a patent application for your invention and you getting that intellectual property protection.
The next issue is a monetary one. As unfortunate as it is to admit, the patent filing process requires a lot of time, money and freedom that one can invest to acquire a patent. Without these resources, there are high barriers to entry in the intellectual property process, which is one of the biggest downfalls of the current system. In fact, there have even been several court cases that have acknowledged the difficulties involved in the process. Chief Justice Earl Warren once famously wrote, "Such conduct inevitably requires the practitioner to consider and advise his clients as to the patentability of their inventions under the statutory criteria, 35 U. S. C. 101-103, 161, 171, as well as to consider the advisability of relying upon alternative forms of protection which may be available under state law. It also involves his participation in the drafting of the specification and claims of the patent application, 35 U. S. C. 112, which this Court long ago noted “constitute[s] one of the most difficult legal instruments to draw with accuracy,” Topliff v. Topliff, 145 U.S. 156, 171."
The importance of filing a patent application with a huge degree of care and meticulousness cannot be understated.
Source: http://www.ipwatchdog.com/2014/05/17/patent-drafting-not-as-easy-as-you-think/id=49638/
The first issue encountered in the process of filing patents is that it is extremely arcane and hard to understand, and as such, many people struggle to do it on their own. For this reason, this article, and many others like it, recommend that you do not attempt to go through this process on your own, and that you should definitely consult a patent attorney for help. Unfortunately, it is extremely easy for an inventor filing a patent for himself to make costly mistakes that cost him or her time and money. This is invaluable in the patent filing process because that time can make the difference between someone else filing a patent application for your invention and you getting that intellectual property protection.
The next issue is a monetary one. As unfortunate as it is to admit, the patent filing process requires a lot of time, money and freedom that one can invest to acquire a patent. Without these resources, there are high barriers to entry in the intellectual property process, which is one of the biggest downfalls of the current system. In fact, there have even been several court cases that have acknowledged the difficulties involved in the process. Chief Justice Earl Warren once famously wrote, "Such conduct inevitably requires the practitioner to consider and advise his clients as to the patentability of their inventions under the statutory criteria, 35 U. S. C. 101-103, 161, 171, as well as to consider the advisability of relying upon alternative forms of protection which may be available under state law. It also involves his participation in the drafting of the specification and claims of the patent application, 35 U. S. C. 112, which this Court long ago noted “constitute[s] one of the most difficult legal instruments to draw with accuracy,” Topliff v. Topliff, 145 U.S. 156, 171."
The importance of filing a patent application with a huge degree of care and meticulousness cannot be understated.
Source: http://www.ipwatchdog.com/2014/05/17/patent-drafting-not-as-easy-as-you-think/id=49638/
The end of Apple vs Google
This Friday, May 16th, Apple and Google reached an agreement to drop all lawsuits between the two tech giants, with regards to patent infringement on their respective mobile technologies. Google, the developer of the Android smartphone operating system, and Apple the creator of the iPhone and the iOS platform, are among the two largest companies involved in the Silicon Valley tech space, and specifically in the smartphone field. Since 2010, these moguls have been suing each other back and forth for violation of various patents, and this is ultimately counterproductive to both of them.
What prompted this shift in attitudes between the two companies? Their common enemy: patent trolls. These businesses that exist solely to buy up patents and use them to sue up others are extremely damaging to the field of innovation and cost these other important companies a lot of money. These non-practicing entities have been targeting Apple and Google, as there have been nearly 200 lawsuits filed against just these two companies by patent trolls in the past few years. It is clearly in Apple and Google's interest to stop hurting each other and work towards shutting down these harmful non-practicing entities.
It is important to note that Apple has no such agreement with their main rival, hardware manufacturer Samsung, who produces many of the devices that rival the iPhone in domestic and international markets. Apple believes Samsung has violated many of its patents in copying the technology involved in the iPhone, and so has sued the South Korean electronics giant many times around the world.
It will be interesting to see the impact of this alliance on the court's attitude towards patent trolls. We have already seen that courts issued a statement allowing lawyers' fees to be collected by patent holders who lose frivolous lawsuits, a move that hopefully should deter patent trolls from frivolously suing hardworking companies like Apple and Google.
Source: http://bits.blogs.nytimes.com/2014/05/16/apple-and-google-end-patent-fights/
What prompted this shift in attitudes between the two companies? Their common enemy: patent trolls. These businesses that exist solely to buy up patents and use them to sue up others are extremely damaging to the field of innovation and cost these other important companies a lot of money. These non-practicing entities have been targeting Apple and Google, as there have been nearly 200 lawsuits filed against just these two companies by patent trolls in the past few years. It is clearly in Apple and Google's interest to stop hurting each other and work towards shutting down these harmful non-practicing entities.
It is important to note that Apple has no such agreement with their main rival, hardware manufacturer Samsung, who produces many of the devices that rival the iPhone in domestic and international markets. Apple believes Samsung has violated many of its patents in copying the technology involved in the iPhone, and so has sued the South Korean electronics giant many times around the world.
It will be interesting to see the impact of this alliance on the court's attitude towards patent trolls. We have already seen that courts issued a statement allowing lawyers' fees to be collected by patent holders who lose frivolous lawsuits, a move that hopefully should deter patent trolls from frivolously suing hardworking companies like Apple and Google.
Source: http://bits.blogs.nytimes.com/2014/05/16/apple-and-google-end-patent-fights/
Anticipation versus Obviousness
In the case of ClearValue v. Pearl River Polymers, there was a dispute over a "process for clarifying water using a flocculated suspension of aluminum along with high molecular weight quarternized polymers." The inventor and CEO of ClearValue, Richard Haase sued Pearl River Polymers, who used to be their former customer but later began making their own version of the process.
Pearl River claimed that this invention could easily have been "anticipated" based on descriptions given in a previously existing patent, and therefore should be deemed obvious. However, "under 35 U.S.C. § 102 a claim will be anticipated and therefore invalid if a single prior art reference describes 'each and every claim limitation and enable[s] one of skill in the art to practice an embodiment of the claimed invention without undue experimentation.'" This requirement necessitates that the defendant be able to demonstrate a clear connection between every aspect of the new patent and the descriptions of the old patent. Since the defendant was unable to do so, the appeals court ultimately did not rule in their favor.
The issue of anticipation brings up several interesting questions regarding the patenting process. If prior art sets up descriptions that have the ability to predict a new technology, is that technology really obvious? Well, if a PHOSITA (person having skill in the art) would have been able to deduce this connection between the prior art and the new technology, then perhaps; however, we cannot just make assumptions without truly examining the new technology.
Source: http://patentlyo.com/patent/2012/02/genus-species-anticipation.html
Pearl River claimed that this invention could easily have been "anticipated" based on descriptions given in a previously existing patent, and therefore should be deemed obvious. However, "under 35 U.S.C. § 102 a claim will be anticipated and therefore invalid if a single prior art reference describes 'each and every claim limitation and enable[s] one of skill in the art to practice an embodiment of the claimed invention without undue experimentation.'" This requirement necessitates that the defendant be able to demonstrate a clear connection between every aspect of the new patent and the descriptions of the old patent. Since the defendant was unable to do so, the appeals court ultimately did not rule in their favor.
The issue of anticipation brings up several interesting questions regarding the patenting process. If prior art sets up descriptions that have the ability to predict a new technology, is that technology really obvious? Well, if a PHOSITA (person having skill in the art) would have been able to deduce this connection between the prior art and the new technology, then perhaps; however, we cannot just make assumptions without truly examining the new technology.
Source: http://patentlyo.com/patent/2012/02/genus-species-anticipation.html
Thursday, May 8, 2014
Software Obviousness: Judges just don't understand computers
One thing that is often overlooked in a discussion of patent obviousness is the fact that there is a great deal of expertise that can be required to determine whether an invention was non-obvious or unique. When it comes to the software industry, these inventions are often in the form of lines of code, and these products are often less tangible inventions than those in the natural sciences.
The implication of this is that judges don't have a comprehensive understanding of software and the methodology involved in developing software and as such, they apply the same rules to computer software as they would to the natural sciences in determining obviousness. The result: way too many software patents are being granted for inventions that most people would deem pretty "obvious to try", the standard that was set up in KSR v Teleflex.
Source: http://www.law360.com/articles/525451/a-solution-to-the-software-obviousness-problem
The implication of this is that judges don't have a comprehensive understanding of software and the methodology involved in developing software and as such, they apply the same rules to computer software as they would to the natural sciences in determining obviousness. The result: way too many software patents are being granted for inventions that most people would deem pretty "obvious to try", the standard that was set up in KSR v Teleflex.
The problem with software inventions is that it is too easy for a patent attorney to claim that the notion of an invention being "obvious to try" may just be conflated with hindsight bias, since the field of computer science is transforming so rapidly. "Engineers overwhelmingly feel that the 'inventions' in most software patents are no more than 'the predictable use of prior art elements,' reflecting 'ordinary skill and common sense'" (Purvy). In other words, those who are familiar with the field of software engineering understand that a lot of the inventions are not actually original but rather just predictable use of prior art, meaning that they would be "obvious to try."
Thus, I (and the author I cite, Robert Purvy) propose that the "obvious to try" standard set up in KSR should be applied to software patents as well in order to solve this problem.
Source: http://www.law360.com/articles/525451/a-solution-to-the-software-obviousness-problem
Tuesday, May 6, 2014
Double-Patenting: Deeming older patents invalid or obvious when newer ones are filed
In a recent ruling between two large biotechnology companies, Gilead Sciences and Natco Pharma, the Federal Circuit held that it is indeed possible for a later-granted patent to invalidate an earlier-granted one for "obviousness-type double patenting" (Brinckerhoff). With regards to the case in question, the patent holder, Gilead Sciences, held two very similar patents; however, one of them was issued later and expired earlier.
This is problematic because the patent system has determined that when a patent expires, that intellectual property is no longer proprietary and can now be used by the public to create further modifications. However, in this case, Natco Pharma was still unable to use the invention outlined in Gilead's expired patent because the earlier issued patent prevented them from doing so.
"Judge Chen begins his analysis of the case at hand with this telling statement:
[I]t is a bedrock principle of our patent system that when a patent expires, the public is free to use not only the same invention claimed in the expired patent but also obvious or patentably indistinct modifications of that invention.
[...]
And that principle is violated when a patent expires and the public is nevertheless barred from practicing obvious modifications of the invention claimed in that patent because the inventor holds another later-expiring patent with claims for obvious modifications of the invention. Such is the case here.
"
It is important to note that the second patent obtained by Gilead was for what was determined to be a "obvious variation," which is why it doubly prevented Natco Pharma from using the invention.
However, this ruling has the potential to be extremely problematic. If a company slightly modifies their product and wants to get a second patent on the modification, they run the risk of invalidating their original patent, which is a terrifying prospect for any company. For this reason, Chief Judge Rader pointed out in his dissent that it is definitely important that we disallow double patenting when it comes to same-invention patenting. However, why should we disallow the patenting of an improvement that is made on the product? Furthermore, how do we determine that this obvious modification is actually obvious and that its obviousness is a reason to discount the original patent altogether?
However, this ruling has the potential to be extremely problematic. If a company slightly modifies their product and wants to get a second patent on the modification, they run the risk of invalidating their original patent, which is a terrifying prospect for any company. For this reason, Chief Judge Rader pointed out in his dissent that it is definitely important that we disallow double patenting when it comes to same-invention patenting. However, why should we disallow the patenting of an improvement that is made on the product? Furthermore, how do we determine that this obvious modification is actually obvious and that its obviousness is a reason to discount the original patent altogether?
Source:http://www.mondaq.com/unitedstates/x/310614/Patent/Federal+Circuit+Expands+Doctrine+of+Obviousness+Type+Double+Patenting
Samsung and Apple strike again
In yet another patent violation case between Apple and Samsung, a court ruled that Samsung was indeed guilty of violating Apple's "quick links" patent as well as its autocorrect patent, though it found Samsung not guilty of violating several other patents, including "universal search", "background sync", and only partially guilty of violating "slide to unlock". On the other hand, Apple was found guilty of violating "one of Samsung's video transmission patents with the FaceTime video-calling feature" (BusinessInsider).
I think it is important that we closely examine what this series of Apple and Samsung cases means for the patent system and how it needs to change. First of all, there have been countless cases between these two companies, which have indicated that they have both been guilty of violating each other's intellectual property rights. I believe this means that the court ought to examine whether each company is actually "stealing" ideas or merely building off of existing products to move the smartphone industry towards the future at an ever faster rate. After all, it is undeniable that smartphone invention has transformed the way we use mobile devices and that the innovation from these two companies is spurred by their competitive spirit.
Secondly, both companies are continuing to be wildly successful and their products are extremely popular on the market, regardless of the outcomes of these cases. This brings up an important question about the conflict between competition and IP protection in the smartphone industry. If both companies are benefitting the market by creating new, innovative designs, and both companies continue to profit from that, then it would make sense that the courts ought to reexamine their reason for granting patents based on these inventions, since ultimately patent violation and not patent protection is what is bringing about innovation.
It is clear that these companies are merely using the mask of intellectual property as an opportunity to undermine their competition and gain a competitive edge. That, in my opinion, is sufficient reason to change the way that patents are granted, taking into account the impact they will have on competition and on the market as a whole.
Source: http://www.businessinsider.com/apple-beats-samsung-in-latest-patent-trial-2014-5
I think it is important that we closely examine what this series of Apple and Samsung cases means for the patent system and how it needs to change. First of all, there have been countless cases between these two companies, which have indicated that they have both been guilty of violating each other's intellectual property rights. I believe this means that the court ought to examine whether each company is actually "stealing" ideas or merely building off of existing products to move the smartphone industry towards the future at an ever faster rate. After all, it is undeniable that smartphone invention has transformed the way we use mobile devices and that the innovation from these two companies is spurred by their competitive spirit.
Secondly, both companies are continuing to be wildly successful and their products are extremely popular on the market, regardless of the outcomes of these cases. This brings up an important question about the conflict between competition and IP protection in the smartphone industry. If both companies are benefitting the market by creating new, innovative designs, and both companies continue to profit from that, then it would make sense that the courts ought to reexamine their reason for granting patents based on these inventions, since ultimately patent violation and not patent protection is what is bringing about innovation.
It is clear that these companies are merely using the mask of intellectual property as an opportunity to undermine their competition and gain a competitive edge. That, in my opinion, is sufficient reason to change the way that patents are granted, taking into account the impact they will have on competition and on the market as a whole.
Source: http://www.businessinsider.com/apple-beats-samsung-in-latest-patent-trial-2014-5
Sunday, May 4, 2014
Charge the trolls!
In a decision on April 29th 2014, the Supreme Court gave judges the power to make patent trolls pay a fee in egregious cases of litigating. This is hugely important because there is finally a deterrent for those non-practicing entities, or patent trolls, who just buy up patents and don't use them for anything except to sue other companies and make money. This is a blatant abuse of the legal system for profit, so the impact of this ruling will be overwhelmingly beneficial.
This ruling is definitely a departure from the older American system, and actually closer to the English system, wherein unsuccessful litigants must pay the legal feels of both sides. Similarly, this ruling held that "the law offers an award of attorneys' fees," in the situation where the litigant is not successful in proving his case. This is supposed to attach a cost to recklessly litigating against people without legitimate claim of patent violation.
However, there is one caveat attached to the ruling, which may undermine the effectiveness of this case. The decision did allow for a penalty for unsuccessful litigants, but only in "extraordinary cases." This was coupled with the fact that the Federal Circuit court ruled that these fees could only be awarded if it was proven that the claim was "objectively baseless" and "in bad faith." It is therefore undeniable that an extremely high bar has been set before these patent trolls can actually be penalized for their reckless behaviors which are exploiting the legal system.
Source: http://www.forbes.com/sites/danielfisher/2014/04/29/patent-trolls-face-higher-risks-as-supreme-court-loosens-fee-shifting-rule/
This ruling is definitely a departure from the older American system, and actually closer to the English system, wherein unsuccessful litigants must pay the legal feels of both sides. Similarly, this ruling held that "the law offers an award of attorneys' fees," in the situation where the litigant is not successful in proving his case. This is supposed to attach a cost to recklessly litigating against people without legitimate claim of patent violation.
However, there is one caveat attached to the ruling, which may undermine the effectiveness of this case. The decision did allow for a penalty for unsuccessful litigants, but only in "extraordinary cases." This was coupled with the fact that the Federal Circuit court ruled that these fees could only be awarded if it was proven that the claim was "objectively baseless" and "in bad faith." It is therefore undeniable that an extremely high bar has been set before these patent trolls can actually be penalized for their reckless behaviors which are exploiting the legal system.
Source: http://www.forbes.com/sites/danielfisher/2014/04/29/patent-trolls-face-higher-risks-as-supreme-court-loosens-fee-shifting-rule/
Monday, April 7, 2014
Obviousness for Design Patents
One standard of obviousness is whether a person having ordinary skill in the art would have been able to easily conceive of this idea, given the prior inventions in the field. With regards to design, however, there is a great deal of creativity and inspiration involved in the process. So even if a design is extremely simple in hindsight, how can a court deem that this unique artistic design is obvious?
It was this exact confusion that the Federal Circuit court clarified in their decision last October in the case of High Point Designs v. Buyers Direct. Both these companies manufacture fuzzy slipper socks, and a conflict occurred on similarities between their products. The district court determined that obviousness ought to be decided through the eyes of an ordinary observer, and claimed that the differences in design were extremely minute to an ordinary observer. However, the Federal Circuit court clarified that it should not be through the eyes of an ordinary observer, but rather of an ordinary designer. Since a designer is one qualified in determining the "visual impression" created by a product design, he or she should be the ones consulted in figuring out whether this design is obvious and whether a similarly designed product is violating the patent.
Design patents bring up an extremely interesting issue regarding patent legislation. Can creative works, whether in design or fashion, be patented? If they can be, how can it be determined that a design is unique or obvious?
Sources:
- http://www.lexology.com/library/detail.aspx?g=72280f98-dbdd-46ad-ad29-8190de373a8e
- http://patentlyo.com/patent/2013/09/high-point-v-buyers-direct-tell-me-more-tell-me-more-about-design-patents-and-103.html
It was this exact confusion that the Federal Circuit court clarified in their decision last October in the case of High Point Designs v. Buyers Direct. Both these companies manufacture fuzzy slipper socks, and a conflict occurred on similarities between their products. The district court determined that obviousness ought to be decided through the eyes of an ordinary observer, and claimed that the differences in design were extremely minute to an ordinary observer. However, the Federal Circuit court clarified that it should not be through the eyes of an ordinary observer, but rather of an ordinary designer. Since a designer is one qualified in determining the "visual impression" created by a product design, he or she should be the ones consulted in figuring out whether this design is obvious and whether a similarly designed product is violating the patent.
Design patents bring up an extremely interesting issue regarding patent legislation. Can creative works, whether in design or fashion, be patented? If they can be, how can it be determined that a design is unique or obvious?
Sources:
- http://www.lexology.com/library/detail.aspx?g=72280f98-dbdd-46ad-ad29-8190de373a8e
- http://patentlyo.com/patent/2013/09/high-point-v-buyers-direct-tell-me-more-tell-me-more-about-design-patents-and-103.html
Alice v CLS Bank: Potential to change patents forever?
The Supreme Court is expected to issue a ruling soon regarding a case put forth by Alice Corp against CLS Bank for violation of 4 software patents. These patents were with regards to a software implemented solution to a financial problem -- the issue was that this solution was already being used by hand, and Alice's patent merely detailed the implementation of this solution on a computer. The Supreme Court may therefore be making a broad ruling on what types of software solutions can be considered "patent-eligible," which would have a huge impact on patent laws in the future, considering the popularity of software innovations.
This case has been hotly debated in the lower courts, with decisions going back and forth from appeal to appeal. Ultimately, the Court of Appeals for the Federal Circuit issued an extremely split decision, in which no majority was reached regarding a standard to determine software patent eligibility. The majority of the judges did agree that Alice Corp's patents were invalid, but every judge had a different reason for their decision. Since many of these justifications were incompatible, Chief Judge Rader lamented this case as "the greatest failure in my judicial career."
In the Supreme Court's hearing on Monday, March 31st, it was clear from the start that Alice Corp was not at an advantage. The obviousness of Alice Corp's patent was heavily questioned, and the issue became whether merely implementing an already known method on a computer can be considered patent-eligible.
The issue of patent-eligibility for software-implemented solutions is an extremely interesting one. On one hand, it is merely translating an already known idea into software, but on the other hand, that does give the tool more utility and more potential applications.
Source:
- Great article -- I highly recommend everyone read this: http://www.wired.co.uk/news/archive/2014-04/04/alice-v-cls-bank-patent-case
- http://www.scotusblog.com/case-files/cases/alice-corporation-pty-ltd-v-cls-bank-international/
This case has been hotly debated in the lower courts, with decisions going back and forth from appeal to appeal. Ultimately, the Court of Appeals for the Federal Circuit issued an extremely split decision, in which no majority was reached regarding a standard to determine software patent eligibility. The majority of the judges did agree that Alice Corp's patents were invalid, but every judge had a different reason for their decision. Since many of these justifications were incompatible, Chief Judge Rader lamented this case as "the greatest failure in my judicial career."
In the Supreme Court's hearing on Monday, March 31st, it was clear from the start that Alice Corp was not at an advantage. The obviousness of Alice Corp's patent was heavily questioned, and the issue became whether merely implementing an already known method on a computer can be considered patent-eligible.
The issue of patent-eligibility for software-implemented solutions is an extremely interesting one. On one hand, it is merely translating an already known idea into software, but on the other hand, that does give the tool more utility and more potential applications.
Source:
- Great article -- I highly recommend everyone read this: http://www.wired.co.uk/news/archive/2014-04/04/alice-v-cls-bank-patent-case
- http://www.scotusblog.com/case-files/cases/alice-corporation-pty-ltd-v-cls-bank-international/
Can pharmaceuticals be obvious?
In the pharmaceutical industry, major companies usually spend thousands of dollars developing a drug, only to be copied by generic brands and undersold. Usually patents protect these market giants (at least for some time), but sometimes, generic companies use the claim of "obviousness" to invalidate a patent. It is up the judges at this point to determine if they think the drug is actually obvious to someone skilled in the field.
This is naturally a very controversial issue. Patents are supposed to protectors of innovation and competition, but in this case, those two goals have come into conflict. Ruling in favor of the generics may discourage companies from investing millions into research and development, which is antithetical to the purpose of intellectual property rights. However, ruling in favor of the pharmaceutical corporation protects these oligopolistic giants that control the market and charge outrageous prices for medicine, by conspiring with insurance companies to exploit the common man.
Source: http://online.wsj.com/news/articles/SB10001424052702304157204579474060730302816
This is exemplified by a recent ruling in a federal court, where a judge ruled in favor of pharmaceutical company Eli Lilly, determining that the defense gave insufficient proof that Lilly's drug was "obvious to a person skilled in oncology or nutrition." This specific patent "covers the method of administering Alimta[, the drug in question,] with folic acid and vitamin B12, which have been shown to reduce the incidence of side effects of Alimta, such as low counts of white blood cells." The argument made by Eli Lilly that ultimately persuaded the judge was the discovery that this drug should be combined with vitamins in this specific way was pivotal to the continuation of this drug on the market, since previously, it was plagued with side effects.
As a result of this court ruling, Eli Lilly now has a valid patent over this mechanism of administering Alimta until 2022, instead of 2017 if they had lost. Ultimately, generics will still end up copying the drug, though this extra 5 years will give Lilly a great deal of additional profits.
This is naturally a very controversial issue. Patents are supposed to protectors of innovation and competition, but in this case, those two goals have come into conflict. Ruling in favor of the generics may discourage companies from investing millions into research and development, which is antithetical to the purpose of intellectual property rights. However, ruling in favor of the pharmaceutical corporation protects these oligopolistic giants that control the market and charge outrageous prices for medicine, by conspiring with insurance companies to exploit the common man.
Source: http://online.wsj.com/news/articles/SB10001424052702304157204579474060730302816
Monday, March 24, 2014
How should obviousness be decided?
Late in 2013, there was a court case filed between Soverain v. Newegg to determine whether Newegg had actually violated the intellectual property rights of Soverain. Newegg attempted to argue that Soverain's patent was obvious and therefore not worthy of IP protection. Initially, the jury, in the East District of Texas (where else?) found Newegg guilty of infringement and fined them, but when the company appealed the decision, the Federal Circuit reversed the decision on the basis of obviousness.
All this controversy regarding this court case really brings to light the ridiculous nature of how obviousness is decided. It is clear that there needs to be a better standard for obviousness given that two different court cases came to different conclusions on the issue.
Following Newegg's victory in the Federal Circuit court, Soverain attempted to appeal this case yet again to the Supreme Court. They appealed on the basis that the Federal Circuit court overturning a decision made by a jury subverts the democratic process. According to Soverain, obviousness is not and cannot be determined purely as a question of the law, and therefore must be interpreted by a jury of members of society.
The Seventh Amendment protects the right to a trial by jury, but is this really how we should be deciding issues of obviousness? This brings to light questions of whether or not a jury of common people is qualified to determine whether an invention is obvious or not. If this is a question of law, rather than of crime, then the same protections of a jury trial no longer apply. All of these things must be considered when determining how to figure out what is obvious or not.
Ultimately, there will always be a great deal of difficulty in determining whether an invention is obvious or not. This is necessarily a subjective process, so establishing a standard is something that is extremely hard to do. However, I still hold that a better standard needs to exist in order to more clearly define what an obvious invention is.
Source: http://patentlyo.com/patent/2013/12/supreme-court-the-right-to-a-jury-trial-on-obviousness.html
All this controversy regarding this court case really brings to light the ridiculous nature of how obviousness is decided. It is clear that there needs to be a better standard for obviousness given that two different court cases came to different conclusions on the issue.
Following Newegg's victory in the Federal Circuit court, Soverain attempted to appeal this case yet again to the Supreme Court. They appealed on the basis that the Federal Circuit court overturning a decision made by a jury subverts the democratic process. According to Soverain, obviousness is not and cannot be determined purely as a question of the law, and therefore must be interpreted by a jury of members of society.
The Seventh Amendment protects the right to a trial by jury, but is this really how we should be deciding issues of obviousness? This brings to light questions of whether or not a jury of common people is qualified to determine whether an invention is obvious or not. If this is a question of law, rather than of crime, then the same protections of a jury trial no longer apply. All of these things must be considered when determining how to figure out what is obvious or not.
Ultimately, there will always be a great deal of difficulty in determining whether an invention is obvious or not. This is necessarily a subjective process, so establishing a standard is something that is extremely hard to do. However, I still hold that a better standard needs to exist in order to more clearly define what an obvious invention is.
Source: http://patentlyo.com/patent/2013/12/supreme-court-the-right-to-a-jury-trial-on-obviousness.html
Sunday, March 23, 2014
What constitutes non-obviousness?
In the United States, to be granted a patent, one must prove that their invention is not obvious. How is obviousness defined though? It is defined in Title 35 of the US Code, which reads:
Of course, this still leaves a great deal of gray area. With regards to combining previously known elements, there is still quite a bit of uncertainty on when a patent is considered non-obvious. Often, it changes on a case-by-case basis, which is somewhat of a testament to how broken this system is. There needs to be a better way to evaluate patents which is more objective in determining if an invention is new, unique, and/or useful.
Source:
http://www.law.cornell.edu/uscode/text/35/103
http://www.law.cornell.edu/uscode/text/35/101
- Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.
Of course, this still leaves a great deal of gray area. With regards to combining previously known elements, there is still quite a bit of uncertainty on when a patent is considered non-obvious. Often, it changes on a case-by-case basis, which is somewhat of a testament to how broken this system is. There needs to be a better way to evaluate patents which is more objective in determining if an invention is new, unique, and/or useful.
Source:
http://www.law.cornell.edu/uscode/text/35/103
http://www.law.cornell.edu/uscode/text/35/101
Monday, March 3, 2014
Rockstar vs. Google = Texas vs. California
Google has filed a motion to have the Android OEM cases put forth by Rockstar moved to California courts from Texas. Their motives in doing so are quite obvious to anyone who knows about the differences in political opinions between Texas and California. It is unfortunate, however, that these differences in political opinion manifest in overwhelmingly influencing court decisions one way or another. Texas is seen as a haven for the patent holder, whereas California is a market that encourages innovation and is ultimately harsher against patent claimants.
New evidence has come out revealing that Google had knowledge that they might have been violating these patents. This reduces the strength of Google's claim that they assumed the invalidity of these patents. However, if Google can still prove that these Rockstar patents are invalid, then they will not have to pay an increased penalty.
Source: http://www.fosspatents.com/2014/02/nortel-told-google-in-2010-it-infringed.html
New evidence has come out revealing that Google had knowledge that they might have been violating these patents. This reduces the strength of Google's claim that they assumed the invalidity of these patents. However, if Google can still prove that these Rockstar patents are invalid, then they will not have to pay an increased penalty.
Source: http://www.fosspatents.com/2014/02/nortel-told-google-in-2010-it-infringed.html
The EU: A Patent Troll's Paradise
Patent-trolling is becoming a serious issue that prohibits innovators from being able to exercise their freedom and hurts the free market by preventing competition. The practice of entities, known as Patent Assertion Entities, gobbling up patents just to make money through litigation is a perfect illustration of how broken our current system is.
The legal system should not be exploited as a money-making tool for companies, but sadly, that is what is happening. Even Apple and Samsung, the biggest abusers of patents for profit, have spoken out against patent trolls hurting free market innovation.
For these patent trolls, the European Union has become a safe haven, constantly making decisions in favor of patent holders and ruling against free-market capitalism in order to protect "intellectual property." This is a serious problem because as we have seen before, regional differences in IP enforcement can create problems and inequalities in the law. The Eastern district of Texas is a perfect example of what can go wrong when certain regions are easier on patent litigation.
This is an issue that the EU should act to take care of soon.
The legal system should not be exploited as a money-making tool for companies, but sadly, that is what is happening. Even Apple and Samsung, the biggest abusers of patents for profit, have spoken out against patent trolls hurting free market innovation.
For these patent trolls, the European Union has become a safe haven, constantly making decisions in favor of patent holders and ruling against free-market capitalism in order to protect "intellectual property." This is a serious problem because as we have seen before, regional differences in IP enforcement can create problems and inequalities in the law. The Eastern district of Texas is a perfect example of what can go wrong when certain regions are easier on patent litigation.
This is an issue that the EU should act to take care of soon.
Week 4 - Samsung vs. Apple -- Korean style!
The Korean Fair Trade Commission recently ruled in favor of Samsung in yet another round of Samsung-Apple legal clashes over intellectual property rights. Apple took Samsung to court on the basis of violating the Korean Monopoly Regulation and Fair Trade Law. Samsung holds what is known as a Standards-Essential Patent (SEP), which is a patent for a technology that is essential to a widely adopted standard. As such, in order to comply with the standard, one would need to purchase a license from Samsung.
Apple made the complaint that Samsung was using this SEP to exercise monopoly power in the South Korean markets, but the KFTC ultimately found Samsung not guilty of this action. This Korean ruling is probably not in favor of consumers because Samsung truly does dominate using this patent. In fact, this ruling is against the tide of rulings by the US DoJ, the Free Trade Commission, and the EU on the subject of standards essential patents. It will be interesting to see what the repercussions of this ruling are for South Korea's free market, since Samsung will be given even more market control and ability to dominate.
Source: http://www.fosspatents.com/2014/02/korea-fair-trade-commission-clears.html
Apple made the complaint that Samsung was using this SEP to exercise monopoly power in the South Korean markets, but the KFTC ultimately found Samsung not guilty of this action. This Korean ruling is probably not in favor of consumers because Samsung truly does dominate using this patent. In fact, this ruling is against the tide of rulings by the US DoJ, the Free Trade Commission, and the EU on the subject of standards essential patents. It will be interesting to see what the repercussions of this ruling are for South Korea's free market, since Samsung will be given even more market control and ability to dominate.
Source: http://www.fosspatents.com/2014/02/korea-fair-trade-commission-clears.html
Week 4 - Germany does it right: Google vs. Microsoft
Just this month in Germany, the Bundespatentgericht, which means Federal Patent Court, ruled on a case between Microsoft and Google. In the case, Microsoft had made a claim of patent infringement against Google's Motorola Mobility and Google Maps, against EP0845124, which was for a "computer system for identifying local resources and method therefore".
The German court found that this patent was invalid, likely on the basis that it is too general and would not be in the interest of preserving competition. There should definitely be multiple companies allowed to create a computer system to identify local resources -- this is an extremely broad function, and not a specific technology, which is what patents should exist to protect.
Like the American justice system, the system in Germany has its flaws. One such flaw is that when decisions like this are made, companies have the ability to appeal these decisions. This is problematic because as it turns out, in these sorts of cases where a patent is ruled invalid, the decision is overturned more than 40% of the time.
However, it is important to admire the system for being able to rule in a consumer-friendly manner. This is an important lesson, from which Americans can learn.
Source: http://www.fosspatents.com/2014/02/federal-patent-court-of-germany.html
Friday, February 14, 2014
Implications of the Google-Lenovo deal for Motorola Mobility
Google's sale of Motorola Mobility to Lenovo will have many widespread consequences for the tech industry.
First of all, Google gained a lot from the deal. This includes not only the Motorola mobility patent portfolio, but also the profits from the successful Motorola phones that Google manufactured and sold in 2013.
Second of all, Lenovo's purchase will have implications for the smartphone market as a whole. As an already established player in China, Lenovo has the market know-how to succeed in the smartphone market, which makes it a credible threat to attack Apple and Samsung's stronghold on smartphone market share. In fact, according to CNN Money, Lenovo will soon be able to sell more than 100 million smartphones annually.
Third, since Google considers this a successful acquisition, this will embolden Google's future mergers and acquisitions, resulting in a bolder market strategy for the tech giant. We have already seen this come to fruition, with Google purchasing Nest for $3 billion.
Source: http://money.cnn.com/2014/01/29/technology/mobile/motorola-lenovo/
First of all, Google gained a lot from the deal. This includes not only the Motorola mobility patent portfolio, but also the profits from the successful Motorola phones that Google manufactured and sold in 2013.
Second of all, Lenovo's purchase will have implications for the smartphone market as a whole. As an already established player in China, Lenovo has the market know-how to succeed in the smartphone market, which makes it a credible threat to attack Apple and Samsung's stronghold on smartphone market share. In fact, according to CNN Money, Lenovo will soon be able to sell more than 100 million smartphones annually.
Third, since Google considers this a successful acquisition, this will embolden Google's future mergers and acquisitions, resulting in a bolder market strategy for the tech giant. We have already seen this come to fruition, with Google purchasing Nest for $3 billion.
Source: http://money.cnn.com/2014/01/29/technology/mobile/motorola-lenovo/
Why did Google sell Motorola Mobility?
Did Google fail?
This was the question on everyone's mind when Google announced its sale of Motorola Mobility to Lenovo in January 2014. Google entered and exited the hardware market in just a year and a half, with seemingly nothing to show for it.
However, as with everything related to the tech giant, there is more than meets the eye.
First, when selling Motorola Mobility, Google cleverly managed to maintain one of the most valuable pieces of the acquisition: Mobility's suite of mobile patents. An increased safety net from legal prosecution is a huge benefit for Google, especially considering how much the Android platform has been involved in intellectual property cases.
Second, through its acquisition of Motorola Mobility, Google gained a great deal of leverage over one of its biggest partners, Samsung, which it will maintain after the acquisition. According to Forbes Magazine, in 2011, Samsung began to exploit its relationship with Google for its own benefit. It introduced "TouchWiz", a custom Samsung skin that hid all of Google's role in the operating system. Then, it began modifying the software and switching in its own applications, resulting in poorer performance and even less recognizability for Android. The last straw was when Samsung began to develop "Tizen", its own OS to compete against Android. When Google then purchased Motorola Mobility, the tables turned and the power was back in Google's favor. Fear of domination by Google-produced mobile devices scared Samsung into signing a 10 year patent deal with Google, which will strengthen the Android platform rather than weaken it. Two days later, Google sold Mobility to Lenovo.
Source: http://www.forbes.com/sites/gordonkelly/2014/02/10/how-google-used-motorola-to-smack-down-samsung-twice/
This was the question on everyone's mind when Google announced its sale of Motorola Mobility to Lenovo in January 2014. Google entered and exited the hardware market in just a year and a half, with seemingly nothing to show for it.
However, as with everything related to the tech giant, there is more than meets the eye.
First, when selling Motorola Mobility, Google cleverly managed to maintain one of the most valuable pieces of the acquisition: Mobility's suite of mobile patents. An increased safety net from legal prosecution is a huge benefit for Google, especially considering how much the Android platform has been involved in intellectual property cases.
Second, through its acquisition of Motorola Mobility, Google gained a great deal of leverage over one of its biggest partners, Samsung, which it will maintain after the acquisition. According to Forbes Magazine, in 2011, Samsung began to exploit its relationship with Google for its own benefit. It introduced "TouchWiz", a custom Samsung skin that hid all of Google's role in the operating system. Then, it began modifying the software and switching in its own applications, resulting in poorer performance and even less recognizability for Android. The last straw was when Samsung began to develop "Tizen", its own OS to compete against Android. When Google then purchased Motorola Mobility, the tables turned and the power was back in Google's favor. Fear of domination by Google-produced mobile devices scared Samsung into signing a 10 year patent deal with Google, which will strengthen the Android platform rather than weaken it. Two days later, Google sold Mobility to Lenovo.
Source: http://www.forbes.com/sites/gordonkelly/2014/02/10/how-google-used-motorola-to-smack-down-samsung-twice/
Why did Google buy Motorola Mobility?
In 2011, Google announced that they were going to purchase Motorola Mobility, the cellphone division formerly owned by Motorola. This sparked conversation and controversy for multiple reasons. First of all, Apple's initial domination of the smartphone market brought them a great deal of profit. Was another tech giant about to do the same thing? Secondly, Google was already producing Android, the world's most popular smartphone operating system. Would this impact their relationships with Samsung, HTC and the numerous other manufacturers?
However, one main question remain unanswered: Google is a company built on the back of software and computing. Why would a company like this want to enter the hardware market, by buying Motorola Mobility?
Source: http://www.chicagomag.com/Chicago-Magazine/The-312/August-2011/Why-Did-Google-Buy-Motorola-Mobility/
However, one main question remain unanswered: Google is a company built on the back of software and computing. Why would a company like this want to enter the hardware market, by buying Motorola Mobility?
Well, according to Wailin Wong of the Chicago Tribune, "the acquisition was important for its intellectual property strategy, as the company has been engaged in legal battles with Microsoft and Apple over patents." The answer seems clear now. Google purchased Motorola Mobility to gain access to their numerous mobile patents.
Source: http://www.chicagomag.com/Chicago-Magazine/The-312/August-2011/Why-Did-Google-Buy-Motorola-Mobility/
Sunday, February 9, 2014
Friday, February 7, 2014
Smartphone Patent War: Is this what patents are meant for?
In a market-based democracy, the government implements checks on the power of wealthy corporations to protect the common man. These checks include anti-trust laws, monopoly dissolution, and most importantly, intellectual property protection. However, in this day and age, IP protection is being wielded as a weapon by large multinational corporations to manipulate the market and grab a larger share. This is exactly the opposite reason for why patents are granted, and this system needs to change.
Some of the litigation put forth by Apple clearly exists only to kill competition and further sway the market in their favor. For example, according to the Wall Street Journal, "The technology giant has secured two key U.S. patents on slide-to-unlock—a technology that lets users wake a dormant phone with a finger-swipe across the screen. And it is wielding those patents like swords against rivals around the world. In recent months, Apple has sued HTC Corp. in Delaware and Germany over one of those patents and others. It has used the patents to fight back against suits Motorola Mobility Holdings Inc. filed against it in Miami and Germany. And it has invoked them in lawsuits against Samsung Electronics Co. in Australia, the Netherlands, and San Jose, Calif." This is definitely not what intellectual property protection was meant to protect, and as such, I think strict measures need to be put into place to ensure that IP protects the common man, rather than hurting him.
Smartphone patent wars: What's going on?
Over the course of the past few years, several multinational corporations have sued each other for intellectual property violations, through the process of patent litigation. Naturally, these corporations were suing because they wanted a larger market share and were willing to employ legal techniques to get it. The bulk of the litigation was regarding phone design and OS specifications. Since both Android phones and iPhone tend to look quite similar and have pretty similar operating systems, the areas of overlap are huge.
It all started in 2009, when Apple and Nokia became embroiled in a fierce legal debate. They both sued each other for multiple IP violations, and the war had begun. Over the course of the next 4 years, many smartphone manufacturers, including Microsoft, Samsung, HTC, Apple, and Nokia, were involved in the litigation, with the two major players being Samsung and Apple. The Samsung Galaxy was achieving record success and starting to majorly cut into the iPhone's market share, so the tension culminated in several court cases around the world, including one here in the US, regarding intellectual property violation. Apple and Samsung each won a few key cases around the world, so the battle continues.
It all started in 2009, when Apple and Nokia became embroiled in a fierce legal debate. They both sued each other for multiple IP violations, and the war had begun. Over the course of the next 4 years, many smartphone manufacturers, including Microsoft, Samsung, HTC, Apple, and Nokia, were involved in the litigation, with the two major players being Samsung and Apple. The Samsung Galaxy was achieving record success and starting to majorly cut into the iPhone's market share, so the tension culminated in several court cases around the world, including one here in the US, regarding intellectual property violation. Apple and Samsung each won a few key cases around the world, so the battle continues.
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