Each year the Practising Law Institute hosts its annual Patent Litigation Seminar. I will be speaking at the New York Patent Litigation 2014 program, which will take place from November 10-11, 2014. There will be an earlier presentation of the program in Chicago, IL, from October 6-7, 2014. I have this on the brain at the moment because my written materials for my presentation were due last week.
In New York I will be presenting on the topic of ethics, which will result in 1 credit of ethics, always useful for those who are required by their State bars to obtain continuing legal education credits annually.
In addition to discussion of the relatively newly adopted USPTO Rules of Professional Conduct, my presentation will also discuss a variety of other matters. Those who have seen my ethics presentations before know that one of the things I particularly like to do is dive into the OED Reading Room and find interim decisions and final orders. These decisions and final orders give us the best insight into what type of activity the Office of Enrollment and Discipline focuses on. Such an approach winds up being informative, allows us to discuss the substantive ethics rules and alleged violations, and frequently to feel better about ourselves knowing that our practices are set up so that the catastrophe that lead to OED inquiry could never happen to us.
Of course, every once in a while review of OED disciplinary activity may make even the most conscientious among us take a hard swallow. This is not to suggest that many practitioners will believe they are potentially in trouble, but legal ethics is not about morality or morals in any larger sense. Legal ethics is about rules, and the wisest approach to the matter is to know where the line is and stand well clear. Sometimes, however, some might be far closer to the line than they might have anticipated.
IPWatchdog’s Companies We Follow series checks in with General Electric every few months to see what recent patent activities have been supported by this company’s research and development. Our recent perusal of the dozens of patent applications and issued patents filed at the halls of the U.S. Patent and Trademark Office and assigned to GE showed us an incredible swath of innovation in fields from medical care to electrical energy generation. Below, we’re sharing some of the inventions which we felt were most interesting with our readers.
Our exploration of General Electric’s recently published patent applications confirms the idea that this corporation is increasing its development in the field of locomotives. We feature a couple of patent applications in this field, including one that would protect a system for detecting the order of rail cars for cooperative braking and tractive operations. We also sharing some patent applications related to consumer appliances, such as one directed at a new design for a dishwasher filter media that can collect a wider range of particulate without clogging.
It has been over a month since the Supreme Court published its opinion in Alice v. CLS Bank. While the question on which certiorari was granted broadly considered the patent eligibility of computer implemented inventions, the Court ultimately issued an opinion that was tightly focused on the invention underlying Alice Corp’s patent. While many hoped that the Court would address this broader issue, the narrow opinion leaves many key questions unanswered. More importantly, the Court’s explanation of why the Alice patent was an ineligible abstract idea demonstrates the limitations inherent in applying that doctrine to computer implemented inventions. Those limitations will come to define the struggles confronting innovators, courts and the patent office as they attempt to operate in accordance with this opinion.
A review of the opinion and oral argument reveals that no participant was able to articulate a meaningful, repeatable, and predictable approach for determining which computer implemented inventions are too abstract and which are eligible for patent protection. The Court intentionally declined to broadly address this key issue: “[i]n any event we need not labor to delimit the precise contours of the “abstract ideas” exception in this case.” And that is because it cannot be done. As the Court itself acknowledged in Mayo v. Prometheus, “all inventions at some level embody” an abstract idea. And unlike laws of nature and natural phenomena, abstract ideas are not readily susceptible to line-drawing – where does the abstract idea stop and the eligible “application” of that abstraction begin?
Learned Hand lamented the intractable nature of this problem in the context of the idea expression dichotomy in copyright law. Struggling to separate the underlying unprotected idea from the copyright protected expression, he noted “…there is a point in this series of abstractions where they are no longer protected, since otherwise the playwright could prevent the use of his ‘ideas’, to which, apart from their expression, his property is never extended. Nobody has ever been able to fix that boundary, and nobody ever can.” See Nichols v. Universal Pictures Corporation.
Nikon is not a corporation we profile often in the Companies We Follow series. However, with our recent focus on Canon and other optical and imaging technology manufacturers, we felt that now was a good time to add Nikon to our rotation, a global leader in digital cameras and similar consumer devices. Our recent search of patent applications and issued patents filed at the U.S. Patent and Trademark Office showed us a very intriguing scope of innovative development in the world of digital image and video capture.
The patent applications published in recent weeks by the USPTO and assigned to Nikon include a couple of filings pertaining to camera accessories which we explored for today’s column. One of these accessories provides a continuous light for the better detection of light exposure conditions for a digital camera. Other patent applications are directed at improved configurations for interchangeable camera lenses and lens barrels. Another intriguing patent application discusses a method of displaying two-dimensional and three-dimensional images on the same screen without degrading the quality of either version.
In her prepared remarks, Lee substantively will begin by saying she is pleased that Congress approved “a FY 2015 appropriation bill that provides USPTO with the authority to spend anticipated fee collections as estimated by the Congressional Budget Office.” Sadly, this is something to be thankful for as odd as it seems. While significant user fees are generated by the USPTO, without the approval of Congress the USPTO cannot keep and spend the funds collected. Lee explained that by being granted permission to keep and use collected user fees the Office will “continue reducing the patent application backlog, shortening patent pendency, improving patent quality, enhancing patent administrative appeal and post-grant processes, fine tuning trademark operations, expanding our international efforts and investing in our information technology (IT) infrastructure.”
Canon’s immense amount of activity in the world of U.S. patents makes them a great business to feature in our Companies We Follow series here on IPWatchdog. As always, we scan the recent publications of the U.S. Patent and Trademark Office, including both patent applications and issued patents, to share our favorite collection of inventions from each corporation we profile. In our new format, we’re able to delve deeply into Canon’s most recent innovations, which represent a great deal of research and development in medical imaging, business administration, photography and videography.
In Joe Allen’s recent column Does Innovation Lead to Prosperity for All? he ended with a quote by Alexander Fraser Tyler from The Decline and Fall of the Athenian Republic, which suggested that a democracy cannot continue to exist once the majority realizes they can vote for candidates that promise a never ending stream of benefits. Eventually, the result of politicians handing out money and benefits for votes leads to a collapse as the result of unsustainable fiscal policy. Allen quizzically ends by stating that this couldn’t ever happen in the United States, could it? Sadly, we know it is happening in America.
Saying the United States has a spending problem is an extraordinary understatement, but spending continues. The public demands spending and so many people now erroneously believe that the way to improve the economy is for the government to spend ever more sums while at the same time regulating business like never before. Taking the foot off the throat of the private sector and reducing government spending has been a time tested and effective way to stimulate activity, create jobs and improve the overall economic condition of the U.S. economy. So there is an extreme disconnect between historical reality, what the people want and the policies America is pursuing.
We start today’s column with an exploration of our featured patent application, which would protect a method of better compensating remote workers who contribute to tasks assigned through project crowdsourcing programs. The system it describes would analyze the work returned by those contributing to the crowdsourced project, judging the quality of the work returned against certain thresholds to create a fairer system of compensation. Other patent applications would protect means for storing handwritten marks made by digital pens as well as a system for encouraging more efficient printing techniques among users of a printing network.