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.

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

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? 

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

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/

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

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/

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 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