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/
Subscribe to:
Posts (Atom)