The Commission on the Theft of American Intellectual Property (IP Commission) released an 89-page report on May 22, 2013 assessing international intellectual property theft with a focus on China’s troubled IP regime and recommendations for changes in U.S. policy responses. The IP Commission is an independent, bi-partisan initiative led by the former Director of National Intelligence and Commander in Chief of the U.S. Pacific Command, Dennis Blair, and the former Ambassador to China and governor of Utah, John M. Huntsman, Jr. The IP Commission is affiliated with the National Bureau of Asian Research based in Seattle.

Recently, three Chinese researchers were charged with taking bribes from Chinese medical and research companies in relation to trade secret theft of NYU’s research on magnetic resonance imaging technology. The NYU study was federally funded. The panel in IP Commission acknowledged that this type of misconduct would still occur but would be reduced if their recommendations were adopted.

Recognizing the large scale IP theft that frequently originates in China, the IP Commission proposes designating the President’s national security adviser as the principal policy coordinator for all actions on the protection of American IP.

Anybody who has any involvement with Intellectual Property (“IP”)  knows full well that protecting IP means a multi-step process. Obviously, step one is the conception of the invention, idea, trademark, trade name, or other innovation where protection might be necessary. Step two is the decision about what to do with the “new” idea, etc. in terms of the need to try for exclusivity on it –or not.  Many “new” things do not need IP protection – and other “new” things may not qualify for it. If the “new” idea fits into the area where protection is desirable and it qualifies, then the next step is to seek legal protection. Of course, such protection will have a cost – whether or not the protection is sought by the inventor/conceptualizer himself/herself or itself (in the case of an organization) or assistance of counsel is required.

So, let’s assume the inventor/conceptualizer takes legal steps to protect the innovation – for the case of this discussion – a trademark.  Such protection involves both common law claims and filing of a registration application at the United States Patent and Trademark Office (USPTO). Legal protection has a cost – not only in money, but also in time and other resources such as market research and prior art and trademark searches.

But, it doesn’t end there.  If you must defend your property – that means litigation.  The costs of litigation may outweigh the value of your trademark.

Johnson & Johnson is a very respected brand in the consumer medical devices and pharmaceutical goods industries. Well known for its highly recognizable personal care products, including  Band-Aids, Neutrogena and Tylenol, Johnson & Johnson is also a major player in other healthcare fields. For example, a recent piece from the investment research online publication Seeking Alpha discussed the company’s attempts to build the world’s first artificial, fully-functioning pancreas.

As a result of all this research and development, Johnson & Johnson will often file patent applications with the U.S. Patent & Trademark Office. This week, IPWatchdog wants to take a look at the consumer and pharmaceutical health conglomerate to see what advances in personal medical care we can expect in the coming years. Perhaps the most exciting thing in our perusal of recent patents and patent applications is a patent just issued on certain topical anti-cancer compositions.

Many patent applications published also pertain to Johnson & Johnson’s extensive lineup of medical cosmetic products. One application would protect a dermabrasion kit with a detachable head for sensitive skin, and another was filed to protect a system of manufacturing bacteria-resistant contact lenses.

Johnson & Johnson is also focused on protecting medical devices designed by the company. Two other recent patent applications that we feature here are for punctal plugs (shown above right) and eye misting devices that can deliver medication directly to the body through the incredibly permeable membranes within the eye.

Today at IPWatchdog, we’re going back to take a closer look at U.S. Patent & Trademark Office patents and patent applications assigned to Qualcomm Incorporated. This San Diego, CA, technology developer is a major manufacturer of mobile device products, including software and chipsets. Their technologies are involved in a wide range of industries. They’ve even recently been growing in the field of healthcare technology with their recent acquisition of HealthyCircles, a coordinated care digital platform.

One area in particular that receives a lot of focus from Qualcomm’s research and development functions is efficiency improvements to wireless network connections. Patent applications filed by Qualcomm and published recently by the USPTO seek to protect new systems of digital file sharing and power management during sleep mode, both of which conserve device battery resources. A patent awarded to Qualcomm this month protects a system of maintaining a data session for applications even if a network connection is lost momentarily.

Qualcomm’s other patent applications showcase a focus on improving device systems internally through better components or communication protocols. One such patent application describes a method of improving ultrasound reception for the use of a digital stylus. The last patent application covered by IPWatchdog in this column describes a system of controlling interference on wireless networks.

Critics argue that pharmaceutical patents are a barrier to wide-reaching access to medicines, especially for vulnerable populations in the developing world.  They cast their argument in the phrase, “Patents Kill” and advocate against intellectual property (IP) protection for medical innovation and the trade agreements that incorporate them.  Their position, however, begs the question of what truly influences a population’s access to medicines.  This week, as the United States and a dozen other nations continue the Trans-Pacific Partnership (TPP) Agreement negotiations, the answer is more important than ever.  Despite the critics’ position, recent students cast doubt on their argument, providing evidence that access is critically linked to a country’s level of economic development which is enhanced by strong intellectual property rights protection.

Access is defined as “having medicines continuously available and affordable at public or private health facilities or medicine outlets that are within one hour’s walk from the homes of the population” (United Nations Development Group, 2003).  Fundamentally, access is largely continent upon the nation’s level of economic development and available infrastructure.  Given this, there are two important reasons to believe that the TPP will not inhibit access to medicine.  First, most would-be signatory nations are well developed.  Second, trade and IP protection enhance growth and growth furthers access.

Once again, a plethora of interesting events has occurred since the last time we stopped by. What was the biggest headline? That decision may be up for grabs, but certainly, the $500 million penalty paid by Ranbaxy Laboratories is high on the list. The generic drug maker ponied up to settle criminal and civil charges stemming from a long-running manufacturing failure and cover-up scheme.

The US Justice Department called this the largest “financial” penalty paid by a generic drugmaker for violating the Food, Drug & Cosmetic Act. Ranbaxy pleaded guilty to seven felony counts, including three for making false statements to the FDA; paid a $120 million criminal fine and forfeited $20 million. Another $350 million was paid for causing federal healthcare programs to overpay for various drugs.

For those who may not recall, Ranbaxy used raw chemicals from unapproved sources, fabricated in-house test data to meet FDA standards and concealed these activities from FDA inspectors by falsifying records. These infractions went on for several years, mostly at two plants in India, but also involved senior management there and in the US.

The Samsung Group of Seoul, South Korea, is a major international conglomerate involved in almost every industry. Here at IPWatchdog, we occasionally take a look at some of the recent technology patents and filed applications coming from this industry behemoth. For our complete series see Companies We Follow.

Over the past few years, electronic devices have become a staple for Samsung’s main subsidiary, Samsung Electronics. That subsidiary is a major standard bearer for the mobile device industry, and even recently announced plans to release consumer electronics on the 5G network as early as 2020, according to Forbes. This focus on technological research and development makes this international firm a common name at the U.S. Patent & Trademark Office.

Patent applications published by the USPTO recently and assigned to Samsung show the wide scope of the electronic developer’s operations. Different applications protect more space-efficient surgical robotic arms, a component device for video playback of broadcasts from different global regions and more precise systems of infrared 3D location sensing.

A few documents pertain directly to mobile consumer devices developed by the South Korean conglomerate. A fourth patent application covered here describes an enhanced system of analyzing touch gestures when reading e-books. A legal patent has also been awarded to Samsung for the protection of a hydrogen generating apparatus for powering fuel cells in electronic devices.

In the case of Bowman v. Monsanto Co., Farmer Bowman may have believed that the “third time” would be “charm.”  In two prior cases, Monsanto Co. v. Scruggs[1] and Monsanto Co. v. McFarling,[2] the Federal Circuit had ruled in favor of Monsanto, the owner of the patented Roundup Ready^® soybeans, and against Farmer Scruggs and Farmer McFarling.  Even so, Farmer Bowman, as probably did his legal counsel, may have believed that the Supreme Court’s 2008 decision in Quanta Computer, Inc. v. LG Electronics, Inc.[3] would undermine the Federal Circuit’s view that patent exhaustion didn’t apply to Monsanto’s patented Roundup Ready^® soybeans.  But in a unanimous decision, the Supreme Court affirmed the Federal Circuit’s 2011 ruling[4] that Farmer Bowman’s unlicensed planting of these patented Roundup Ready^® soybeans (sold for commodity use only) was an infringing use that was not subject to the doctrine of patent exhaustion.  Alas, Farmer Bowman found no solace in Quanta.

To understand the ruling in Bowman, you must first understand Monsanto’s patented Roundup Ready^® soybean technology, its Technology Agreement with purchaser’s of those soybeans delineating the licensed use thereof, as well as the fairly complex fact situation of Farmer Bowman’s use (or more appropriately wily misuse) of the “commodity” soybeans he purchased from a local grain elevator and subsequently planted for the express purpose of harvesting the resulting seed.[5]  Monsanto’s patented technology involved genetically modified soybeans that exhibited resistance to N-phosphonomethylglycine-based herbicides (commonly known as “glyphosate” or “glyphos”), such as Monsanto’s Roundup^® herbicide product.  These genetically modified soybeans were known as Roundup Ready^® soybeans because of their resistance to such herbicides.

Vernon Bowman is a 75-year-old, recently bankrupt small farmer in Indiana. Monsanto is a multinational corporation that is revered in the industry for its innovations in the field of genetically modified seed technologies, but equally reviled in the American heartland for its staunch protection and ruthless enforcement of its patent rights against small farmers. In a unanimous decision, the Supreme Court sided with Monsanto in finding that Bowman had infringed Monsanto’s patents on genetically altered soybean seeds. This would translate into tens of thousands of dollars in liability for the small farmer. Those reacting purely emotionally to the story will be inclined to sympathize with the small farmer. And recalling Steinbeck’s Grapes of Wrath, they would lament, “The small farmer was weary and frightened because he had gone against a system he did not understand and it had beaten him.” However, the Court’s decision is merely a classical application of basic patent principles.

For years, Vernon Bowman purchased Roundup Ready® soybean seeds from a Monsanto affiliate each year for his main crop of the season. The purchase required Bowman’s assent to a licensing agreement, which prohibited Bowman from saving any of the seeds for replanting. For his late-season second crop, however, Bowman would attempt to skirt Monsanto’s licensing agreement and instead purchase commodity soybean seeds from a grain elevator. The commodity soybean seeds are normally tagged for human or animal consumption only. Anticipating that a batch of commodity soybean seeds would surely contain some Roundup Ready® seeds, Bowman planted the seeds, applied Roundup herbicide to his fields, selectively recovered soybeans exhibiting the Roundup Ready® trait, and saved those seeds for further plantings. Bowman harvested eight late-season crops in this way.

Dr. Phil McGraw’s company, Peteski Productions (Peteski), recently filed a lawsuit against Gawker Media (Gawker) for copyright infringement. It appears that Deadspin.com (Deadspin), which is owned by Gawker Media, posted portions of the doctor’s exclusive interview with the man behind the Manti Te’o girlfriend hoax online before the show actually aired in various parts of the country.

Deadspin originally broke the story, including the hoaxster’s catfishing scheme; however Dr. Phil was given an exclusive interview with hoaxster, Ronaiah Tuiasosopo. Dr. Phil’s interview with Tuiasosopo was a two-part episode, with a cliff-hanging first episode. But Deadspin took away Dr. Phil’s thunder (and seemingly lowered his ratings) by showing the “answer” to the cliffhanger online prior to Dr. Phil airing in most markets.

Chief Judge Rader’s band De Novo should play a dirge tonight.

On May 10, the Federal Circuit issued its en banc opinion in CLS Bank.  Within 48 hours, I had twice read the 135 page decision.  It may be a bullet to the head of the software industry.  Don’t take my word for it:  four different judges say so:

And let’s be clear: if all of these claims, including the system claims, are not patent-eligible, this case is the death of hundreds of thousands of patents, including all business method, financial system, and software patents as well as many computer implemented and telecommunications patents. If all of the claims of these four patents are ineligible, so too are the 320,799 patents which were granted from 1998-2011 in the technology area “Electrical Computers, Digital Processing Systems, Information Security, Error/Fault Handling.” Every patent in this technology category covers inventions directed to computer software or to hardware that implements software. In 2011 alone, 42,235 patents were granted in this area. This would render ineligible nearly 20% of all the patents that actually issued in 2011. If the reasoning of Judge Lourie’s opinion were adopted, it would decimate the electronics and software industries. There are, of course, software, financial system, business method and telecom patents in other technology classes which would also be at risk. So this is quite frankly a low estimate. There has never been a case which could do more damage to the patent system than this one.[1]

That parade of horribles is not entirely fair to Judge Lourie’s concurrence.  Judge Lourie based his opinion on the fact that the disputed patent is directed not just to electronics, but to an insignificant use of modern electronics to implement an arguably basic financial transaction.  I doubt that Judge Lourie would expand the holding in CLS Bank far beyond that specific fact pattern.  Nevertheless, as quoted above, the dissenting judges do not share even this much optimism.

After the Federal Circuit issued its en banc decision on May 10, 2013 in CLS Bank v. Alice Corp, the patent owner Alice Corp must be feeling like Alice in Alice in Wonderland, bewildered and frightened by the fantastical situation in which they find themselves:

(1) “bewildered” because an equally divided Federal Circuit affirmed the district court’s holding that Alice’s claimed system to tangible machine components including a first party device, a data storage unit, a second party device, a computer, and a communications controller, programmed with specialized functions consistent with detailed algorithms disclosed in the patent, constitutes a patent ineligible “abstract idea;”

(2) “frightened” because, as Judge Moore puts it, “this case is the death of hundreds of thousands of patents, including all business method, financial system, and software patents as well as many computer implemented and telecommunications patents” (Moore Op. at 2); and

One month after our last check into Oracle Corporation, IPWatchdog is back to see how the database management system developer has been faring at the U.S. Patent & Trademark Office. Along with database management, the technology developer is also involved with the innovation of enterprise resource planning, supply chain management and customer relationship software.

Many of the recent patent applications filed by Oracle and published by the USPTO showcase the company’s focus on providing software business solutions. These patent applications seek protections for improvements to enterprise software, including voice control and more efficient upgrades for enterprise planning and management software. Another application lays out a system of smart allocation for resources within a supply chain.

Oracle is also involved with efficiency upgrades to enterprise software, especially those that would benefit small businesses. Another patent application filed by Oracle would improve the reaction time for queries registered within a Model-View-Controller online database application. An official patent awarded to Oracle this month provides a better deployment model for small firms who manufacture and sell software applications.

One of the central policy issues injected into the current case of AMP v. Myriad Genetics is whether the BRCA patents are good for innovation and ultimately for patients.  Specifically, ACLU and PubPat allege that the patents have hindered research, blocked innovation, and harmed patient access to BRCA testing.  No matter how many times these allegations are repeated, all available evidence shows concerns over research and innovation to be unfounded.  More importantly, two natural experiments give us an opportunity to evaluate actual patient access to testing, the ultimate measure of whether the patents are doing their job of incentivizing delivery of new technology to the public.  Both of these experiments show that exclusive licensing of strong “gene patents” not only does not harm patient access to quality testing, but is instead vital to it.

In the impassioned words of Linda Bruzzone, a Lynch syndrome mutation carrier and head of Lynch Syndrome International:  “Many of us with Lynch Syndrome wish there had been a patent in place for us. It would have protected us and perhaps protected the lives of our loved ones.”  L. Bruzzone, Oral Comments at USPTO Public Roundtable on Genetic Diagnostic Testing (January 10, 2013).

International Business Machines Corporation of Armonk, NY, is a technology development and consultant agency that provides information technology for business solutions. IBM is a huge player in the world of technology research and development, and the company currently has the distinction of being awarded the most U.S. patents every year for the past 20 years, according to business publication Bloomberg. These factors make IBM a major focus for IPWatchdog, as we continue our regular series of following U.S. Patent & Trademark Office publications regarding American technology firms. See Companies We Follow. 

Within the past month, many IBM patent applications published by the USPTO show a desire to improve multimedia experiences on many computer devices. Patent applications filed by IBM include systems for improving secure access of licensed content and another providing a more viewer-responsive experience for watching live events.

IBM is still heavily involved with the development of business applications for computer systems. To that end, the company has filed patent applications for a system of capturing the workflow process of an employee accessing project software. Another application creates a visualization of temporal event data to aid in medical diagnostic processes. One official patent awarded to IBM protects a system of providing feedback to publishers from their subscribers.

Complete file histories courtesy of The Patent Box.