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Does Innovation Lead to Prosperity for All?

Posted: Monday, Jul 28, 2014 @ 12:30 pm | Written by Joseph Allen | No Comments »
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Posted in: Guest Contributors, IP News, IPWatchdog.com Articles, Joe Allen, Patents, Technology & Innovation, US Economy

There’s a famous Chinese curse “May you live in interesting times” which certainly applies now. It seems that every cornerstone we’ve relied on has slipped, creating instability in all aspects of modern life. As humorist Ogden Nash remarked: “Progress might have been all right once, but it has gone on too long.”

We live in a world where seemingly everyone has a cell phone —and a rifle. Every day we learn of breathtaking scientific discoveries and atrocities straight from the Dark Ages. Thanks to technology images of beheadings travel instantly around the world.

Debates rage over hot button topics widening divisions in society. One is over the merits (or demerits) of the patent system. That’s really a subset of a larger question: does innovation lead to prosperity for most people or does it merely widen the gap between the haves and have not’s?

What, if anything, should be done to correct “income inequality” is a point of contention in our political system. President Obama says that growing income inequality and a lack of upward mobility is “the defining challenge of our time.” Sen. Elizabeth Warren (D-MA) ads: “Trickle down (economics) doesn’t work. Never did.”



Kappos Legacy and PTO-Academia Relations

Posted: Monday, Jul 28, 2014 @ 8:00 am | Written by Robert P. Merges | No Comments »
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Posted in: Government, Guest Contributors, IPWatchdog.com Articles, Patents, USPTO

David Kappos

We are far enough removed now from the Kappos Administration at the PTO (2009-2013) that we can assess it with some perspective. In this spirit, I was thinking recently about the history of PTO-academia relations. And I concluded that Dave Kappos made a major contribution in this area, which has so far been mostly overlooked.

Dave Kappos did more for PTO-academic relations than any other Commissioner or Director in the history of the Office.[1] This is a true statement, but hardly does credit to his real contributions in this area. That’s for the simple reason that very few former leaders of the Patent Office had much if anything to do with academics. The bar was so low in fact that had Dave been merely cordial and refrained from open derision of academics and their research, he might well have set a new standard with only that.

He did much more, of course. Director Kappos actively sought out academic researchers. He brought them into formal roles in the PTO. In the process he gave them not only offices and titles, but something much more elusive, much more valuable. He gave them (us, to be honest) respect. That’s a legacy that has been overlooked by other constituents in the patent world, but it will certainly not be overlooked by academics.



Leason Ellis Continues to Fight Deceptive Trademark Practices

Posted: Sunday, Jul 27, 2014 @ 9:00 am | Written by Gene Quinn & Steve Brachmann | No Comments »
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Posted in: Attorneys, Gene Quinn, Guest Contributors, IP News, IPWatchdog.com Articles, Law Firms, Steve Brachmann, Trademark

Peter Sloane

In a memorandum decision handed down July 2, 2014, by the U.S. District Court for the Southern District of New York, most of the plaintiff claims in case 7:13-cv-02880, Leason Ellis LLP v. Patent & Trademark Agency LLC have been allowed to proceed in the face of the defendant’s motion to dismiss.

The multi-count Federal Complaint filed in April 2013 alleged that the defendants marketed their promotional materials to cause consumers to wrongly believe that it is an official governmental entity. The complaint asserted claims of federal unfair competition under 15 USC 1125(a), federal false advertising under 15 USC 1125(a) and New  York statutory law, unfair competition under New York common law, deceptive acts and practices under New York statutory law, and tortious interference with prospective economic relations. The complaint also specifically alleges that the defendants are engaged in the unauthorized practice of law.

The complaint explained that Leason Ellis, which is a well regarded intellectual property firm particularly in the trademark law space, frequently “receives inquiries from clients who have received unsolicited offers for trademark-related services in the United States from various entities located in the U.S. and abroad.” The complaint goes on to further state: “Trademark scams are not new. The International Trademark Association (“INTA”)… has previously warned trademark owners about unsolicited offers for trademark-related services in the United States.



How Long Does a Patent Last?

Posted: Saturday, Jul 26, 2014 @ 9:00 am | Written by Gene Quinn | 3 comments
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Posted in: Educational Information for Inventors, Gene Quinn, Inventors Information, IP News, IPWatchdog.com Articles, Patents

Before June of 1995, the patent laws in the United States provided that the term of a utility or plant patent ended seventeen years from the date of patent grant. To comply with Article 33 of the Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement resulting from the Uruguay Round Agreements of the General Agreement on Tariffs and Trade (GATT), the United States was required to establish a minimum term for patent protection ending no earlier than twenty years from the date the application was filed. Thus, the Uruguay Round Agreements Act amended 35 U.S.C. § 154, and these amendments took effect on June 8, 1995.

Generally speaking, utility and plant patent applications filed on or after June 8, 1995, have a term that begins on the date the patent issues and ends on the date that is twenty years from the date on which the application for the patent was filed in the United States. If the application that ultimately issues contains a specific reference to an earlier filed US or international application, the term ends twenty years from the filing date of the earliest such application. This patent term provision is referred to as the “twenty-year term.”



Alice v. CLS Reality: PTO Pulling Back Notices of Allowance

Posted: Friday, Jul 25, 2014 @ 4:44 pm | Written by Gene Quinn | 36 comments
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Posted in: Gene Quinn, IP News, IPWatchdog.com Articles, Patent Prosecution, Patentability, Patents, Software, Technology & Innovation, USPTO

UPDATED: Saturday, July 26, 2014 at 11:20am

Over the last several days I have heard of an alarming trend from the United States Patent and Trademark Office — Patent Examiners are canceling Notices of Allowance and yanking previously granted claims back into prosecution while citing the United States Supreme Court’s ruling in Alice v. CLS Bank. In some instances granted claims are being pulled back into prosecution only to be rejected as lacking patent eligible subject matter even after the issue fee has been paid. I have also been told that an Examiner in one case has issued a new Examiner’s Answer to include a new Alice 101 rejection.

This is an alarming trend that seems to be building steam as virtually everyone who operates in this space is now seeing the aforementioned and/or they are seeing supplemental office actions issued where the pending office action never rejected claims based on patent eligibility grounds.

Rejecting claims after the issue fee has been paid represents an extraordinary disconnect from the initial USPTO guidance that essentially said that Alice changed nothing from a substantive point of view. I was shocked that the USPTO issued such guidance because if you actually read the Supreme Court’s decision in Alice you could hardly walk away with the belief that nothing had changed.

In the immediate aftermath of the Supreme Court’s decision in Alice the USPTO told examiners that the reason Alice’s claims were determined to be patent ineligible was because “the generically-recited computers in the claims add nothing of substance to the underlying abstract idea.” The USPTO, by and through the Deputy Commissioner for Patent Examination Policy, Andrew Hirshfeld, then went on to point out to patent examiners that there is no new category of innovation that is patent ineligible, nor is there any new or special requirements for the eligibility of either software or business methods. Hirshfeld explained: “Notably, Alice Corp. neither creates a per se excluded category of subject matter, such as software or business methods, nor imposes any special requirements for eligibility of software or business methods.”



Ignorance Is Not Bliss: Alice Corp. v. CLS Bank International*

Posted: Friday, Jul 25, 2014 @ 1:48 pm | Written by Eric Guttag | 14 comments
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Posted in: Eric Guttag, Guest Contributors, IP News, IPWatchdog.com Articles, Patentability, Patents, Software, Technology & Innovation

Justice Thomas

I feel like a very broken record. In an IPWatchdog article I wrote back in 2012, I commented on the currently fractured patent-eligibility landscape in the split Federal Circuit panel decision in CLS Bank International v. Alice Corp. Pty. Ltd. where a claimed trading platform for exchanging business obligations survived a validity challenge under 35 U.S.C. § 101. See The Fractured Landscape of Patent Eligibility for Business Methods and Systems in CLS Bank International. That fracture got even worse in the subsequent en banc ruling which can only be described as lengthy, tumultuous, and confusing, with a brief per curiam opinion, as well as six full opinions.

With the Supreme Court’s most recent foray into the patent-eligibility world in Alice Corp. v. CLS Bank International, we now have a complete and utter disaster as to what data processing claims can (or more unfortunately cannot) survive scrutiny by Our Judicial Mount Olympus under 35 U.S.C. § 101. I once had respect for Justice Thomas’ view on patent law jurisprudence, having considered his substandard opinion in Myriad on the patent-eligibility of certain “isolated” DNA claims to be an “isolated” aberration. But having now read his mind-boggling Opinion for the Court in Alice Corp., I’ve now thrown my previously “cheery” view of Thomas’ understanding of patent law jurisprudence completely into the toilet. I have even less kind words to say about the three Justices that signed onto Justice Sotomayor’s disingenuous concurring opinion that accepts retired Justice Steven’s equally disingenuous suggestion in Bilski that 35 U.S.C. § 273 (in which Congress acknowledged implicitly, if not explicitly the patent-eligibility of “business methods” under 35 U.S.C. § 101) is a mere “red herring.” See Section 273 is NOT a Red Herring: Steven’s Disingenuous Concurrence in Bilski.

The Supreme Court’s decision in Alice Corp. operates from the view that “ignorance is bliss” when it come to the patent statutes, as well science and technology. I don’t share that view and never will. So in the format that I began with in shredding Justice Alito’s “comedic” opinion in Limelight Networks, here are my “ignorance is not bliss” candidates for Alice Corp., in all their ugliness.



A Patent History of Filmmaking

Posted: Thursday, Jul 24, 2014 @ 8:00 am | Written by Gene Quinn & Steve Brachmann | No Comments »
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Posted in: Evolution of Technology, Gene Quinn, Guest Contributors, IP News, IPWatchdog.com Articles, Patents, Steve Brachmann, Technology & Innovation

NOTE: A version of this article was originally published by the ABA in May/June 2014 issue of LANDSLIDE, a publication of the ABA Section of Intellectual Property Law. 

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The history of film is a long one that, by some accounts, extends as far back as the early 1700s and the discovery by German physicist Johann Heinrich Schulze that silver salts react to light exposure by becoming darker in color.[i] By the late 1800s, celluloid film had appeared and the ability to record motion pictures through a camera had become a reality. Indeed, it was none other than George Eastman, who in 1889 perfected the first commercial transparent roll film, one year after the name “Kodak” first began to be used to market his cameras.[ii] It was the Eastman flexible film advancement that made it possible for the development of Thomas Edison’s motion picture camera in 1891. Edison called his first generation picture camera a “Kinetoscope,” after the Greek words “kineto,” which means “movement,” and “scopos,” which means “to watch.”[iii] Edison filed a patent application on the Kinetoscope on August 24, 1891, and the patent ultimately issued on August 31, 1897.[iv]

Over the years, the industry has seen some incredible innovations that include improvements to color exposures, sound recording and the current-day transition to digital recording. The glittering lights of Hollywood and other filmmaking scenes throughout the world have risen on the backs of these developments. Many of these film innovations have been subject to patent protection, with countless patent applications being filed with the U.S. Patent and Trademark Office, which has granted many protections to film innovators over the years. A quick survey of patents granted since the earliest days of film shows that over the course of less than a century film and motion pictures have gone through some immense changes. A review of patented film technologies took us on a journey from feeding celluloid film through a recording device to writing video data digitally to an optical disk for easier computer editing. What follows are some of the patented inventions that most captured my attention and imagination.



Inside Intel’s Intellectually Dubious Patent Study

Posted: Wednesday, Jul 23, 2014 @ 8:00 am | Written by Joseph Schuman | 2 comments
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Posted in: Companies We Follow, Guest Contributors, Intel, IP News, IPWatchdog.com Articles, Licensing, Patent Business & Deals, Patents, Qualcomm

Joseph Schuman

At the heart of policy disputes over standard essential patents is a simple truth: Companies whose products depend on standardized technologies want to increase their profit margins by cutting input costs – the royalties they pay to use standardized technologies invented and patented by other companies.

In other words, policy conflicts over standard essential patents (SEPs) tend to pit implementing companies against inventing-and-licensing companies, one business model against another.

So when in the course of patent policymaking it becomes necessary to examine the worthiness of alleged scholarship about SEPs, a decent respect for the consumers and markets ultimately affected requires policy makers to examine the scholarship’s origin and separate fact from advocacy.

Such is the case for a new “working paper” that entered the standards debate last month with a controversial thesis that generated headlines and a lot discussion in patent circles. Its title: “The Smartphone Royalty Stack: Surveying Royalty Demands for the Components Within Modern Smartphones.” Its authors: Ann Armstrong, associate general counsel at Intel, as well as Joseph J. Mueller and Timothy D. Syrett, two lawyers at Wilmer Cutler Pickering Hale & Dorr who work for Intel.