In part 1 of this article I discussed software forensics, generally what it is and why it’s needed. One of the big reasons there is such a need for software forensics is to interject objectivity into what is otherwise a battle of experts who are supposed to be unbiased but who may be strongly influenced by, if not outright pressured to support, the positions of their clients. This is just as true of experts in other areas of litigation, but as more complex technologies are at issue in today’s IP cases, lay judges and juries are less capable of weeding through technical intricacies to weigh opposing views of experts. Compounding this reality is the ever increasing popularity of police dramas on television, which elevate the desire for juries to have some kind of objective information they can rely on; something of a smoking gun if you will. Software forensics can often provide that smoking gun and cut through the haze. But the question remains, how do we assure that software forensic tools are reliable and consistent and that the expert witnesses who use them are qualified and honest about their analyses?
Below are a few ideas about this, though each one carries with it potential problems. Perhaps not all of these ideas can definitely be implemented, but if we could insert some or all of them into the current legal system, we might have just results a higher percentage of the time. And applying these ideas to criminal cases might be a particularly good idea, where an expert’s opinion can be the difference between life and death for a person accused of a crime.
This edition of IPWatchdog’s Companies We Follow takes us back to the innovations most recently developed by this major purveyor of intellectual properties. In the patent applications filed by this company, we found an interesting trio of printing technologies, including one filing which would protect an improved system for printing and binding booklets. Medical innovations, including an endoscopic tool which can be selectively made transparent and visible depending on endoscopic operation needs, are discussed below. We also noted an innovation for reducing erroneous operations in an electronic device with multiple touchscreen panels.
There have been many recent additions to Canon’s already globally renowned patent portfolio that we profile today. We discuss a few patents issued to protect improvements to robotics technologies for manufacturing facilities. A couple of patents show Canon’s interest in improving nanofabrication techniques for creating semiconductors. We also explore inventions related to printing copy-forgery-inhibited patterns and high precision scanning technologies.
Image by Mark Avino, National Air and Space Museum, Smithsonian Institution.
The Smithsonian’s National Air and Space Museum will host an Innovation Festival Nov. 1 and 2, a collaboration between the Smithsonian and the U.S. Patent and Trademark Office. The festival will highlight accomplishments of American inventors and the spirit of innovation. It will feature displays, talks, performances and craft projects for children and adults.
This event is part of a five-year collaboration between the Smithsonian and USPTO to develop programs and exhibitions showcasing American innovation; USPTO will provide annual funding for public programs and exhibitions. Upcoming joint efforts will include a major new intellectual property exhibition at the National Museum of American History and an innovation family festival at the Smithsonian American Art Museum in spring 2015.
Last week the United States Court of Appeals for the Federal Circuit issued a decision in Halo Electronics, Inc. v. Pulse Electronics, Inc. While the decision is no doubt important to the parties involved, this decision may have more far reaching implications for patent reform in 2015 and beyond. The issue of particular interest in this case was willful infringement. In a concurring opinion, Judge O’Malley, who was joined by Judge Hughes, wrote that she felt constrained by the Federal Circuit’s precedent in In re Seagate and Bard Peripheral Vascular v. W.L. Gore, but that recent Supreme Court decisions call into question the continued viability of that precedent.
As such, Judges O’Malley and Hughes have urged the Federal Circuit to reconsider en banc the standard for awarding enhanced damages under 35 U.S.C. 284.
If enhanced damages for willful infringement is back on the table any prospects for broad-based patent reform is dead. The America Invents Act (AIA) was famously and permanently stalled until the issue of willful infringement and damages was removed from the legislation. With the damages logjam broken the forces pushing for patent reform were able to coax the legislation across the finish line.
EDITORIAL NOTE: Conversant IP has set up a website called Stand Up to the Demand, which helps those being sued for patent infringement to distinguish between a bogus claim of patent infringement and a legitimate licensing inquiry from a patent owner.
One thing you can say about patent trolls: They sure are cowboys! In fact, one of the biggest patent trolls of all time is a cowboy hat-wearing Texas lawyer by the name of Jay Mac Rust.
In 2012, Mr. Rust bought five patents from an inventor named Laurence Klein for exactly $1. He then set up 101 separate limited liability companies (LLCs), each with bizarre six letter names like IsaMai, BriPol, and HarNol. No one but Mr. Rust knows what those acronyms mean. But thousands of Mom and Pop small businesses — 16,465 to be exact — soon found out that they translate as “trouble.” Each of these businesses received a “demand letter” from one of Rust’s shell companies accusing them of patent infringement and demanding roughly $1,000 per employee if they wanted to avoid a minimum six-figure (and possibly seven-figure) lawsuit in U.S. federal court.
The Federal Trade Commission filed a federal court complaint against AT&T Mobility, LLC, charging that the company has misled millions of its smartphone customers by charging them for “unlimited” data plans while reducing their data speeds, in some cases by nearly 90 percent.
“AT&T promised its customers ‘unlimited’ data, and in many instances, it has failed to deliver on that promise,” said FTC Chairwoman Edith Ramirez. “The issue here is simple: ‘unlimited’ means unlimited.”
Raze Technologies, formerly WestEnd Broadband, Inc., was founded in late 1999 with the purpose of developing a last mile access system that would allow service providers to offer both broadband data and high quality, fully featured voice services to residential and small business customers. The result was the development of a turnkey, end-to-end, carrier-class, and scalable platform. It was capable of terminating voice and data traffic and their associated protocols at a center office, and provided all the necessary transport and remote management capabilities to the customer’s premises.
In August 2002, Raze suspended its development operations and focused its remaining resources on the prosecution of its patent portfolio. Over time, as most if not all of the other innovative start-ups in the space have gone the way of the dinosaur, Raze has managed to accumulate a foundationally important patent portfolio relating to standard-related innovations surrounding mobile network infrastructure technologies that relate to 4G/LTE, which is the next generation wireless standard. Indeed, one of Raze’s seminal innovations related to the use of 2 tiered wireless networks with a broadband connection to a WiFi connection in order to increase building penetration and the utility of service. These concepts are among those patented by Raze and are today known as mobile hotspots and tethering.
The Raze 4G/LTE patent portfolio, which includes patents having priority filing dates all the way back to April 2001, is currently for sale and could well fetch a handsome sum even given downward pressure in the market created by some unfortunate recent Supreme Court decisions (more on this later). The sale is being brokered by ICAP Patent Brokerage via a private sale.
The word “forensic” comes from the Latin word “forensis” meaning “of or before the forum.” In ancient Rome, an accused criminal and the accusing victim would present their cases before a group in a public forum. In this very general sense it wasn’t unlike the modern U.S. legal system where plaintiffs and defendants present their cases in a public forum. Of course the rules and procedures of the presentation differ from those days. Also, parties are typically represented by lawyers trained in the intricacies of all of these rules and procedures.
After deliberation, one party would be declared a winner. The party with the best presentation skills, regardless of innocence or guilt, would often prevail. The modern system relies on attorneys representing the parties to make the arguments rather than the parties themselves, under the assumption that lawyers, trained in law and skilled at presenting complex information, will each present their client’s case in the best possible manner and that ultimately a just outcome will occur. I don’t want to say that the truth will prevail, not only because that’s a cliché, but because there’s often some amount of truth in the arguments of both parties. Rather, more often than not, justice will be served.
I believe that this model works very well. Not perfectly, but very well. With regard to highly technical cases, however, the percentages for justice being served go down because the issues become difficult for a judge or jury to grasp. Technical experts can throw around technical jargon, sometimes without realizing it and other times to purposely cause confusion. This is the reason that I believed, when I started out examining code for intellectual property litigation, that two things were required to improve the analysis of software for the legal system.
Nero and the burning of Rome by M. de Lipman, circa 1897.
Adam Carolla, one of the most popular podcasters in the U.S., is sued by a patent troll. The story goes viral. Across the country, state Attorneys General are using consumer protection laws to guard their small businesses from the predacious patent trolls. And here’s something previously unthinkable: the President of the United States, in the 2014 State of the Union address (“It’s the country’s most valuable political real estate,” noted one D.C. veteran), urged Congress to “pass a patent reform bill that allows our businesses to stay focused on innovation, not costly and needless litigation.”
The greatest long-term threat to the U.S. patent system does not come from its professional opponents – those large businesses and their political allies who stand to profit from enfeebled patent rights. A deeper harm is caused by unscrupulous patent trolls who use extortionist “demand letters” to victimize small businesses. This practice, we believe, is wrecking public confidence in the U.S. patent system – and by extension, profoundly weakening the heretofore bedrock belief in the great economic benefits conferred by patent-protected inventions.
Yet even as damage caused by demand letters spreads, most legitimate patent licensors whose businesses depend upon continued legislative and public trust stand idly by, doing little or nothing to address it. Well-insulated within the patent industry’s cozy professional bubble, we are, in effect, fiddling like a modern-day Nero while innovation’s Rome burns.
If you read the previous article in this series, Why Inventors Should Not Rely On Their Own Search, you know that before you file a provisional patent application, you should do a comprehensive search of the U.S. Patent Office and other U.S. and/or international databases. A patent agent/attorney will do this for their clients, or you can have a trusted confidant, (who won’t take your idea for their own), work with you to complete it.
Prepare yourself, you are very likely to find a similar product, and that is a good thing.
It’s a good thing because it means that someone else has also recognized that there is a problem which requires a solution. Ideally your solution, or some aspect of it, is either better than theirs, or distinctly different, which makes it possible to submit a provisional patent application for it.
At this point, you may think you know what the patentable element is, and are ready to file a provisional, but you’re not there yet, and here’s why.