In a few weeks the United States Supreme Court will hold oral arguments in Alice v. CLS Bank. At stake in this case is the future of software patents. Half of the Federal Circuit de facto ruled that software is patent ineligible. Of course they could not come right out and say that because it would contradict both settled Supreme Court precedent and patent laws enacted by Congress and codified in Title 35 of the United States Code. Nevertheless, the undeniable position of half of the Federal Circuit was that software is not patent eligible because to these Judges none of the claiming techniques that are used to write software patent claims result in patent eligible subject matter being claimed.
In preparation for the oral arguments we are shifting through the briefs. I have already written about the IBM brief, see Supreme Court “Abstract Idea Doctrine” is Unworkable. We plan multiple articles leading up to the oral argument that discusses the various briefs filed, and complete coverage of the oral arguments. Today, however, I write about the brief of the United States Government filed by the Solicitor General, which is simply disingenuous.
Truthfully, to call the Solicitor’s brief disingenuous is being charitable. The logic, if you can call it that, necessary for the Solicitor’s arguments to be correct is extraordinarily tortured, not to mention circular and dependent upon itself for support. The premise of the argument made by the Government is simply false. The Solicitor tells the Supreme Court that the patent claims in question are to an abstract idea, which is flat wrong. But in a bizarre twist the Solicitor pivots to then say that what is covered is not an abstract idea but it is not necessary for there to be an abstract idea protected in order for the claim to be patent ineligible as an abstract idea. Sadly, I’m not making this up.
The Federal Circuit has affirmed once again—this time in a sharply divided en banc decision—that it will subject a district court’s claim construction to de novo review on appeal. The case is Lighting Ballast Control v. Philips, and the appeal was the latest challenge to the standard of review set by the Federal Circuit over 15 years ago in Cybor Corp. v. FAS Technologies, Inc.
On the surface, this question of patent procedural law seems innocuous enough, but a glance at the title pages of the numerous amicus briefs (filed by an impressive roster of academic commentators and industry heavyweights) shows otherwise. The question of the appropriate standard of review for claim construction rulings is of immense importance to the patent bar.
At stake in Lighting Ballast was the Federal Circuit’s ruling 15 years ago in Cybor,that claim construction is subject to de novo review at the appellate level, despite the fact that the interpretation of patent terms often has factual underpinnings, a domain where trial judges are usually given a wide berth and significant deference. As the Supreme Court recognized in its landmark decision in Markman v. Westview Instruments, decided in 1996 shortly before Cybor, claim construction is a “mongrel practice” of both law and fact that often involves “construing a term of art following receipt of evidence.”
Cybor has been criticized both by Federal Circuit judges and by outside commentators, with most critics deriding Cybor’s blindness to the factual issues that are often implicit in the interpretation of what a patent means. While the question can sometimes be answered by reference to the terms of the patent alone—a traditional legal inquiry—it oftentimes also requires extrinsic evidence and the opinions of dueling experts on the state of the art and the technology in question—factual issues traditionally left alone absent “clear error.”
Almost a quarter of all European patent filings originate from the US
US patent filings in Europe grew by 2.8% to highest figure ever
General Electric and Qualcomm biggest patent filers from the US
US companies strongest in medical technology and IT sector
EPO President Benoît Battistelli: “Europe is a premier hub of innovation.”
Brussels, 6 March 2014 – Patent filings at the European Patent Office (EPO) hit a new record in 2013, with applications coming from the US growing by 2.8% (2012: +5.1%). Last year US companies deposited 64 967, or 24.5%, of all European patent filings (2012: 63 198), which confirms the US as the No. 1 among all countries at the EPO, ahead of Japan (52 437; +1.2%) and Germany (32 022, -5.4%). It is the highest number of patents ever filed by US companies within one year at the EPO.
In the last decade, European patent filings originating in the US grew an average 2.2% per year. Since 2004 the number of US patent filings in Europe has risen by more than 20%.
Headquartered in Benton Charter Township, MI, the Whirlpool Corporation is a major American manufacturer whose appliance products can be seen in homes across the nation. It is the largest appliance manufacturer in the world, although some recent reports indicate that intense competition from firms abroad check this corporation’s progress in that regard. Whirlpool has been considering whether or not to file trade complaints against foreign firms selling unfairly priced goods in America, according to this article from The Wall Street Journal.
Green and sustainable technologies for home appliances continue to be a major focus for the Whirlpool Corporation’s research and development activities. In today’s Companies We Follow column, we’re strolling through the databases of the U.S. Patent and Trademark Office to give you the scoop on the latest improvements to the world’s consumer appliances, including those that relate to energy conservation and increased efficiency.
Today, we start off by looking at a patent application that would protect a system that could improve energy efficiency overall for appliances within a home. This type of smart metering system would take into account environmental factors, like temperature, that could affect the functioning ability of an appliance. Also, we saw some inventions related to better gas pressure calibration for cooking ranges, as well as one patent application describing a dishwasher capable of producing ozone gas for increased sanitation.
The USPTO announces two public hearings in March 2014 to receive feedback about proposed rules concerning the ownership of patents and applications (aka “attributable ownership proposed rules”). The public is invited to attend the hearings in person or via Webcast. Additionally, the public is invited to give testimony in person at the hearings and/or to submit written comments about the proposed rules. The deadline for requesting to give testimony has been extended to Wednesday, March 12, 2014, and the deadline for submitting written comments has been extended until Thursday, April 24, 2014.
The attributable ownership proposed rules require that the attributable owner, including the ultimate parent entity, be identified during the pendency of a patent application and at specified times during the life of a patent. More details about the attributable ownership proposed rules are available here: http://www.gpo.gov/fdsys/pkg/FR-2014-01-24/pdf/2014-01195.pdf
Patent Attorneys/IP Lawyers, Chemistry or Chemical Engineering backgrounds, 5+ years
Seeking high caliber Patent Attorneys to join SABIC’s global legal function in Saudi Arabia.
Saudi Basic Industries Corporation (“SABIC”) is one of the world’s leading and most profitable manufacturers of chemicals, plastics, fertilizers and metals. With annual revenues of $50 billion and around 40,000 employees in 40 countries, SABIC was estimated by Forbes in 2011 to be the second largest global diversified chemicals company in the world. With significant investments in technology and innovation planned for 2013 and beyond, the Company is poised to continue its rapid global expansion. To help support this growth, it is now recruiting a number of high caliber Patent Attorneys to join its global legal function which already boasts 100 legal professionals worldwide.
The United States Patent and Trademark Office (USPTO) is seeking to hire patent examiners for the Denver Satellite Office. There are openings currently for patent examiners with a computer engineering background, patent examiners with an electrical engineering background and patent examiners with a mechanical engineering background. For more information see USAjobs.gov.
On Friday March 7, 2014 and Saturday March 8, 2014, the USPTO will host a career fair at the Hyatt Regency Denver Convention Center downtown at 650 15th Street. The Office will hold ongoing information sessions and then meet with individuals who meet the basic Patent Examiner position requirements. Those who qualify will be encouraged to apply via USAJobs. Candidates cannot be officially considered for open positions without submitting a complete application.
Those wishing to attend the March 7 or March 8 career fair should register in advance because space is limited, particularly for the direct informational meetings with USPTO personnel. Walk-ins will be allowed to participate if space is available. To register CLICK HERE.
How to Write a Patent Application is a must own for patent attorneys, patent agents and law students alike. A crucial hands-on resource that walks you through every aspect of preparing and filing a patent application, from working with an inventor to patent searches, preparing the patent application, drafting claims and more.
Without hesitation I recommend One Simple Idea and think it should be required reading for any motivated inventor. There is so much to like about the book and so much that I think author Stephen Key nails dead on accurate. The book is educational, information and inspirational. For the $14 cover price it is essential reading.
Typically blog roll links are not helpful to a website's rank. To give some additional "link love" to those we think you might be interested in reading we have moved our blog roll and links to a dedicated page. Go to IPWatchdog Blog Roll & Links.