DaimlerChrysler's Crossfire, subject of U.S. Design Patent D500,000
Once upon a time one of the ways you could spot the scams from the legitimate operators in the patent industry was to look at who was directing clients to get design patents. Design patents have always been easy to obtain, indeed far easier to obtain than a utility patent. Of course, as with many things in life and with virtually everything in the realm of intellectual property law, the easier something is to obtain the less rights that are conveyed. You can obtain a copyright for under $50 if you do it yourself and you get tremendously long protection in terms of years – generations really – but the rights are exceptionally weak. This tried and true set of rules has been turned on its head to at least some extent with respect to design patents and not nearly enough inventors are seeking design protection.
A protectable design consists of the visual ornamental characteristics embodied in, or applied to, an article of manufacture. Distinguish if you will a an ordinary steak knife from a butcher’s knife. In any knife there will typically be a handle and cutting blade. A design patent would not protect the mechanical structure, but rather will protect the appearance. In this regard it is possible for many different knives to receive design protection even though the basic handle and blade configuration is well known. The question for patentability is whether the presentation or appearance of the functional item is unique.
Hello everyone. I am writing today to provide an update to our readers on several matters (i.e., Renee’s surgery and our server issues), and to make a plea for votes in the ABA Blawg 100 contest — IPWatchdog is in the IP Law category.
Renee at home recovering.
First, as many readers know, Renee had surgery last Thursday to correct a severely herniated disc in her neck. See Social Media Diva to Have an Anterior Cervical Discectomy. This came upon us rather quickly. Upon having an MRI and seeing her doctor surgery was immediately scheduled. The surgery went fine and Renee was discharged from the hospital on Friday, and has been home resting comfortably. She was told to plan on doing little more than sleeping for about 10 days, and she has been complying with doctor’s orders in that regard.
In talking with the surgeon after the surgery we learned more about why surgery was so quickly scheduled. Apparently some of the shooting tingling down into her legs in the days leading up to the surgery is indicative of near imminent and possibly irreversible failure. Glad I knew that after the surgery! In any event, there was no damage to her spinal cord and she is expected to make a full recovery and be better than new. It will just take some time. So she will be on hiatus through at least the end of 2012 and taking it slow as she eases back into the swing of things starting in January.
Patent practitioners are often asked questions about business topics outside of intellectual property. One question I hear frequently is how to get funding for a new product. A newer source of startup capital is “crowd funding” through websites such as Kickstarter.com, Peerbackers.com, and IndieGoGo.com. These are examples of crowd-sourced funding platforms where backers financially support creative projects, including new product ideas. An inventor will post his idea and a financial goal for a set period of time to one of these websites, and if enough supporters back the idea by pledging small amounts, typically $25-$50, then the goal is reached and the credit card of each backer is charged. The crowd-funding website takes a cut, such as 5-10%, and the inventor gets the rest. If the goal amount is not met in time, none of the backers are charged and the project fails.
As an incentive to back the project, backers receive rewards determined by the inventor and the pledged amount. For example, at a $25 level the backer might get one of the first production units, or a signed copy of the patent, or some such. This seemed like a great way to test market an idea before spending money on it… “raise the flag” and see who salutes. If there’s demand for the product, the campaign should succeed and you’ll be on your way. If you can’t raise the goal amount it might be an indicator that the product would be a flop anyway and you’ve learned this without having to finance product design, tooling, and an initial production run. Pledges are not investments or loans, so there are no further obligations (after the rewards are delivered, of course).
You can see my herniation right in the middle of this image of my MRI.
Last week I learned that, after unsuccessful treatments of physical therapy, chiropractic care, massage therapy and steroids, I am going to need to have neck surgery, which is scheduled for Thursday, December 15. The surgery, called Anterior Cervical Discectomy with Arthrodesis, is necessary to correct advanced Cervical Spondylosis, severe disc herniation, significant spinal compression, moderate bilateral C6 Foraminal Stenosis and severe Osteoarthritis. So for us non spinal surgeons and doctors what that means is I have advanced herniation of my disc at the C6 level which has caused significant compression of my spine and a moderate pinching of my nerve. So why am I sharing this personal challenge with the readers of IPWatchdog?
After meeting with my doctor, discussing the results of my tests, reading through all of the documentation and talking to my mother who had a similar surgery in 2000, I realized that there have been so many medical breakthroughs over the years. These medical breakthroughs make surgeries like this possible and in many cases with far better outcomes than in years passed. So I thought I would write about some of those revolutionary technologies and the Hall of Fame inventors who were responsible for them.
IPWatchdog.com has once again been selected by the Journal of the American Bar Association as one of the top 100 legal blogs. The voting has now begun to crown the top blog in 12 different categories. IPWatchdog.com is in the IP Law category.
The CAFC’s split panel decision this past week – In re Construction Equipment Company – extends the PTO’s authority to reexamine a patent even where its validity has already been adjudicated and confirmed by the courts. Yet the CAFC once again fails to explain how a PTO reexamination finding that a patent is invalid effects an earlier judicial determination that the same patent is valid and infringed.
In re Swanson
The authority of the PTO to reexamine a patent that has previously been found to be valid by the courts was established by the CAFC’s 2008 decision, In re Swanson. There, the patent owner sued for infringement. A jury found that the patent was not infringed, but additionally found that the patent was not invalid over the so-called Duetsch reference. The trial judge denied the various post-trial motions, confirming the jury’s verdict. And the CAFC affirmed the trial judge’s judgment regarding validity, explicitly finding that “Deutsch” did not anticipate the patent claims.
Applying for a patent in the United States can be a daunting undertaking. Indeed, the cost of preparing and filing a patent application can be quite high. Sure, there are the bargain basement discount sellers on the Internet, but does anyone really think that in an industry that has only time to sell by the hour or by the project that the same quality will be obtained if you pay $1,500 for a nonprovisional patent application instead of $15,000? Unfortunately, there are some novice inventors who can delude themselves, but sophisticated inventors, companies, universities and even newbies who have their wits about them know well that the more time you spend on a patent application the better, and more time equals more expense.
But why does it cost so much money to prepare and file a patent application? A rather simple question really, but one that simply does not have a simple answer I’m afraid.
It is that time of the year when we frantically look for appropriate and interesting holiday gifts to give to friends, family and clients. Christmas comes each year predictably on December 25th, but Hanukkah moves around and this year will start at sundown on December 20th, so time is running short, particularly if you are like me and you are going to be purchasing many (if not most or even all) of your gifts online. Amazon.com has a great deal on shipping too — it’s called Amazon Prime and the annual fee is $79. Amazon Prime gives you free two-day shipping or $3.99 per item on one-day shipping for all eligible purchases. Not every purchase is “eligible,” but those things sold directly from Amazon seem always to be “eligible.” So you won’t spend an arm and a leg in shipping fees even if you wait to the last minute!
With the economy still unsettled, extravagant gifts aren’t likely in many budgets. That means creativity will reign supreme. With a little extra thought you can give a really cool gift to that special someone, whether they are a patent attorney, inventor, law student or computer geek. With that in mind, below are some suggestions in order to help you find some fun, thoughtful and appropriately cool gifts for the geek in your life. The best part is the price means that one or more of these items should fit almost any budget.
There’s only one thing more disheartening to an online retailer than knowing that a lot of customers are going to abandon their shopping carts before completing a purchase. And that’s the discovery that a whopping three out of four of them will actually turn around and leave the website rather than endure the hassle of registering a new account.
A new technology called “social login,” however, can alleviate both problems. Offered by multiple vendors (including Facebook) or custom built in-house, social login allows website visitors to log in using their Facebook, Twitter, or other social media identity and avoid registration and password hassles entirely.
This is no small matter. A friend of mine was in a Cost Plus World Market retail location recently and spotted a coffee table he liked. A salesman noted that if he signed up for their online World Explorer rewards program, he could get the table for 25 percent off. So he tried signing up via his iPhone while in the store, but found it too frustrating to awkwardly thumb-type all his personal data — let alone create a unique 10 digit reward program ID — on the iPhone’s tiny virtual keyboard. So he left the store without completing the purchase.
Yesterday in Mayo Collaborative Services v. Prometheus Laboratories the Supreme Court addressed the question of patent eligible subject matter under 35 U.S.C. §101 for the first time since the Bilski decision last year.
Briefly, one of the claims in issue recites a method of optimizing treatment for an immune-mediated gastrointestinal disorder where a specific drug is administered to a patient, the level of a specific metabolite is determined in the patient’s blood, and a particular high metabolite level of a particular value indicates a need to reduce the dosage and a particular low metabolite level at a particular value indicates a need to increase the dosage. Another claim recites the same method, except excluding the administering step. Administering the drug was known in the art. Detection of the metabolites was known in the art. However, the correlation between specific metabolite levels and effectiveness or toxicity of the drug was not known.
Earlier today, at 10:05 am precisely, the United States Supreme Court heard oral arguments in the case styled Mayo Collaborative Services v. Prometheus Laboratories. A press release issued by the AIPLA sums the cautious optimism of many: the Supreme Court “appeared to move closer to the Federal Circuit’s understanding of patent eligible subject matter.” Of course, no one will really know for some time, and there is certainly enough reason to worry after the oral argument. Predictably Justice Breyer seems ready to rule virtually all process claims unpatentable, and surprisingly Chief Justice Roberts seemed more in agreement with Breyer than anyone else.
In all likelihood it will be at least a couple months before we know the outcome of this case, which holds in the balance the future of medical treatment claims. In fact, the average length of time for the Supreme Court to decide patent cases since Markman in 1996 is about 3 months. The most recent Supreme Court cases have lingered on average over 5 months. How the Supreme Court operates is one of the better mysteries in our form of government, and there will be absolutely no signaling of when to expect a decision. The Supreme Court will just one day announce a decision. Notwithstanding, I’m going to hazard a guess that we will have a decision between the end of March 2012 and the end of May 2012. I don’t see this as an end of the term opinion.
On November 23, 2011, the Office of Enrollment and Discipline announced that the Patent Bar Examination, typically referred to simply as “the registration examination” by the Patent Office, will be updated on or about January 31, 2012.
The United States Patent and Trademark Office will update the content of the patent registration examination to cover two new rules issued September 26, 2011 that relate to the Leahy-Smith America Invents Act. These new rules permit prioritized examination of patent applications (Track I) and revise the standard for granting inter partes reexamination requests. Additionally, the patent registration examination will also include questions concerning the November 22, 2011 rules governing practice in ex parte appeals before the Board of Patent Appeals and Interferences.