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Edward Reines Disciplined by CAFC for Rader E-mail

Posted: Tuesday, Nov 25, 2014 @ 9:30 am | Written by Gene Quinn | 1 Comment »
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Posted in: Federal Circuit, Gene Quinn, Government, Patents

Chief Judge Rader (CAFC, ret.)

On May 23, 2014, then-Chief Judge Randall R. Rader announced that he would step down as Chief Judge of the United States Court of Appeals for the Federal Circuit effective May 30, 2014. At that time it was also announced that Judge Rader would stay on the Court. Shortly thereafter, in a stunning development, Judge Randall Rader announced that he is retiring effective June 30, 2014. This announcement came only weeks after he stepped down as Chief Judge.

Many news outlets immediately started speculating that Rader’s decision to step down as Chief Judge had to do with a letter endorsing attorney Edward Reines, a patent lawyer at Weil Gotshal & Manges LLP and president of the Federal Circuit Advisory Council. This speculation was no doubt fostered by the fact that the announcement of Rader stepping down as Chief Judge came on the same day that he sent a letter to all of the other Judges on the Federal Circuit apologizing for his lapse in judgment and for the recent need to recuse himself. Given the timing his announcement he would step down as Chief Judge and his apology letter it is easy to understand why many speculated that the two are connected.

Fast forward to November 5, 2014, the date on which the Federal Circuit issued a Per Curiam decision publicly reprimanding Reines for his conduct relating to the dissemination of an e-mail sent to him by then-Chief Judge Rader. Unfortunately, for Reines this public reprimand will not likely end the inquiry into his relationship with Judge Rader. Allegations of the exchange of items of value was brought to the attention of the Federal Circuit. Although the Federal Circuit did not rely on these charges to support discipline, the Federal Circuit forwarded the matter of the exchange of items of value to the California bar authorities.



iPod, iPhone and iPad – A Brief History of Apple iProducts

Posted: Tuesday, Nov 25, 2014 @ 8:00 am | Written by Steve Brachmann | No Comments »
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Posted in: Apple, Companies We Follow, Guest Contributors, IP News, IPWatchdog.com Articles, Patents, Smartphones, Steve Brachmann, Technology & Innovation

Early on in his career with Apple, Steve Jobs conceived the idea of a personal computing device that a person could keep with them and use to connect wirelessly to other computer services. Almost 25 years later, Apple and Jobs would upend the world of personal computing by launching the iPhone smartphone, and a few years later a tablet computer counterpart, the iPad. According to the most recent sales figures available from Apple corporate analysis website AAPLinvestors.net, the iPhone has achieved lifetime sales of 590.5 million units; Apple has also sold 237.2 million iPads in just over three years since the release of that product. The iPhone has retained mass appeal despite the presence of the iPad and Apple has even reverted to soft launches for new iPad products, evidence of the incredible hold that the iPhone still maintains over Apple’s core consumer base. In the near future, both the iPhone and iPad may exhibit bendable or rollable displays using plastic OLED screen technologies developed by LG Electronics, one of the suppliers of electronic components for the iPhone and iPad.

We’re inching closer to the holiday season and in today’s coverage of popular gadgets ahead of Black Friday, we’re taking an in-depth look at the development of Apple’s line of mobile computing devices from concept to reality. This story involves one of the most storied characters in the world of technology development and his long struggle to bring about his vision of a personal computing device.

It’s impossible for many people to go through their day without either interacting with their own mobile computing device or seeing someone else use theirs. Although the iPhone is certainly not the only smartphone on the market, its influence on the market cannot be denied. The electronics products developed by Apple and released during the 2000s restored the company to its earlier greatness in personal computing, perhaps even surpassing its heydey in the 1980s. Our readers may be interested to find out that Apple’s first mobile computing device came out many years before the iPod, the company’s first major commercial gadget success of the 2000s. It wouldn’t be until the end of the first decade of the 21st century, however, when Apple would finally launch the product that Jobs first imagined while taking a stroll through the research facilities of Xerox in the late 1970s.



Nonprecedential Federal Circuit Decision Generates a Dissent

Posted: Monday, Nov 24, 2014 @ 8:31 pm | Written by Gene Quinn | 1 Comment »
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Posted in: Federal Circuit, Gene Quinn, Government, Patents

The Federal Circuit recently issued a non-precedential opinion in Vehicle IP, LLC v. AT&T Mobility, LLC. Perhaps the most interesting aspect of this decision was that it was a non-precedential opinion with a dissent, which to some extent seems a bit contradictory.

According to Federal Circuit Rule 32.1(b), “[a]n opinion or order which is designated as nonprecedential is one determined by the panel issuing it as not adding significantly to the body of law.” Still, a non-precedential decision with a dissent strikes me as odd. Perhaps this was a decision largely left to the staff attorneys. I suppose on some level it really doesn’t matter because Federal Circuit Rule 32.1(c) does not prohibit citation to nonprecedential dispositions issued after January 1, 2007.

I would have to think that this decision, which required the Federal Circuit to construe claim terms, would have to be presidential in at least some ways, unless the outcome in this case will not have any implication for the claims themselves or the patent. I guess I just don’t understand the concept of a nonprecedential claim construction. I cannot fathom a nonprecedential order in a real property boundary dispute. The whole point of suing over real property is to get a decision that is binding. Patents are property and it strikes me that the definition of the metes and bounds of what is covered in the claim really has to be presidential. If it isn’t presidential what is the point? This type of disposition is what leads to patent claims being construed to mean one thing in one case and another thing in another case. It is frustrating.



The Sony Playstation, A Story of Video Game Dominance

Posted: Monday, Nov 24, 2014 @ 8:00 am | Written by Steve Brachmann | 1 Comment »
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Posted in: Companies We Follow, Evolution of Technology, Guest Contributors, IP News, IPWatchdog.com Articles, Patents, Sony, Steve Brachmann, Technology & Innovation, Video Games & Online Gaming

A very public corporate betrayal in the early 1990s led to an upheaval in the video gaming world that would result in the toppling of an industry giant one short decade later. In the first decade of the 21st century, Sony Corporation (NYSE: SNE) would ascend to dominance in video gaming, at least for a few years, on the strength of its PlayStation system. 2014 has been a kind year thus far to Sony; one year after the release of both consoles, Sony’s PlayStation 4 could be outselling Microsoft’s Xbox One by as much as 2-to-1. No stranger to breaking sales records in video gaming circles, Sony has captured the Australian market with the PS4, which has sold more in that country than any other video game console ever. Sony has been extending the PlayStation console format to more than just home video gaming systems and though the PlayStation TV hasn’t been enjoying incredible sales, the streaming television services offered by this small device may make it an important part of the eighth generation of video gaming consoles.

In our continuing coverage of major players in the 2014 Black Friday sales season, we’re taking time today to profile the brief yet intriguing history of the PlayStation. The multiple generations of this video game console which Sony has brought to consumer markets have been very successful for the company and came during a time when video gaming became much more mainstream, capturing a wider portion of the global consumer base than ever before.



Xbox 360, the Kinect and the Future of Microsoft Gaming

Posted: Sunday, Nov 23, 2014 @ 1:36 pm | Written by Gene Quinn & Steve Brachmann | 5 comments
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Posted in: Companies We Follow, Gene Quinn, Guest Contributors, IP News, IPWatchdog.com Articles, Microsoft, Patents, Steve Brachmann, Technology & Innovation, Video Games & Online Gaming

The Xbox video gaming console developed and sold by Microsoft (NASDAQ: MSFT) is perhaps one of the world’s most successful and least profitable products created in recent memory. Millions of Xbox consoles have been sold, from the original through Microsoft’s latest release, the Xbox One, although the past year has proven to be somewhat trying for this product. Some industry commentators see the inability of the Xbox to outsell Sony’s PlayStation 4 in March and April of this year, despite a reduced Xbox One price tag and bundling the console purchase with popular game titles, as a sign that Microsoft is quickly ceding ground to Sony in video gaming. The company only recently was able to address issues with Xbox Live, the Xbox’s incredibly popular online content service, that Xbox One users had been experiencing. A new update to the console coming in November will enable users to upload images for custom backgrounds as well as share gameplay clips with others through Twitter.

As we approach the 2014 holiday season and Black Friday, we thought that it would be a good time to take a look at some of the most popular consumer technologies around right now. In 2009, the video game industry generated $9.9 billion in revenue. About two-thirds of all American households play video games and gamers averaged about 8 hours of video gameplay each week, according to the Entertainment Software Rating Board (ESRB). Interestingly, debates over violence in video games will likely be influenced by recent findings that an increase in violent video games may actually be responsible for a decrease in real-life violence among youths; these findings have been published by researchers from Villanova University, Rutgers University and Stetson University.



A Rush to Judgment on Patentable Subject Matter

Posted: Friday, Nov 21, 2014 @ 2:16 pm | Written by Ron Laurie | 38 comments
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Posted in: Federal Circuit, Government, Guest Contributors, IP News, IPWatchdog.com Articles, Patentability, Patents

Should a District Court decide the question of patent-eligible subject matter under Section 101 as a “threshold issue” at the outset of the case – i.e., without the benefit of expert testimony and/or claims construction?

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Former CAFC Chief Judge Rader at AIPLA on 10/25/14.

On November 14, the Federal Circuit issued its third opinion on the question of whether the claims in Ultramercial v. Hulu & Wild Tangent describe patent–eligible subject matter under 35 USC 101. In the first two decisions, the panel consisting of Chief Judge Rader and Judges Lourie and O’Malley, reversed the District Court’s granting of defendants’ Rule 12(b)(6) motion to dismiss based solely on the pleadings, i.e., prior to any discovery, expert testimony or formal claim construction.

In the latest decision (“Ultramercial-3”), the panel reached the opposite conclusion and affirmed the dismissal. This apparent turnaround was based on two intervening events: (1) the Supreme Court’s Alice decision in June; and (2) the fact that Chief Judge Rader was no longer on the court, and his place on the panel was taken by Judge Mayer. Much has, and will be, written about the first of these factors, so I would like to focus on the second, and in particular, the diametrically opposed views of Judges Rader and Mayer on a very important procedural issue; namely, whether the lack of patent-eligible subject matter should be a basis for dismissing a case at the outset based only on the “intrinsic” evidence, i.e., the patent itself and its prosecution history in the USPTO, without any discovery, expert testimony and/or claim construction. Notwithstanding the importance of the substantive Alice holding re how to distinguish a claim to an abstract idea from one that has a practical application, the procedural question is at the heart of the reversal of the CAFC’s holding in Ultramercial-3. The two judges’ opposing perspectives can most clearly be seen by comparing Judge Rader’s opinion of the court in Ultramercial-2 with Judge Mayer’s concurrence in Ultramercial-3.



General Electric Patents: Medical Innovations and Energy Systems

Posted: Wednesday, Nov 19, 2014 @ 11:32 am | Written by Steve Brachmann | 1 Comment »
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Posted in: Companies We Follow, Energy, General Electric, Guest Contributors, IP News, IPWatchdog.com Articles, Medical Devices & Methods, Patents, Steve Brachmann, Technology & Innovation

There are few companies currently operating which have more impact on global development in energy and industrial technologies than General Electric of Fairfield, CT. The recent third quarter financial report published by the corporation indicated a better-than-expected 11 percent growth in profits, mainly owing to large increases in orders for industrial equipment like jet engines and rail locomotives from all over the world. GE may be looking to raise capital as a recent filing with the U.S. Securities and Exchange Commission indicates that the company is looking to sell 75 million shares directly to the public for about $2 billion. General Electric is also making a foray into the growing world of 3D printing manufacture with its recent announcement that it would build a 125,000 square foot 3D printing facility for $32 million in Findlay, PA.

General Electric is a regular feature of the Companies We Follow series. What we saw today in the patent applications filed by this company with the U.S. Patent and Trademark Office showed us that research and development at the company is very focused on industrial and medical sectors. Many of the technologies we discuss in more detail below pertain to railway and other vehicular technologies. A few patent applications discuss improvements to electrical utility systems, including one technique for monitoring plant activity near electrical grid components to identify exactly when to clear vegetation away from power lines.

The strong patent portfolio enjoyed by General Electric enjoyed a number of important additions in recent weeks. Some of the most intriguing that we saw today involve medical innovations, including systems for the synchronization of imaging data collected during a procedure to better guide a medical professional during a procedures. We’re also sharing a patent protecting a useful technology for locating defects in an underground cable to ensure consistent delivery of electrical utilities. Gas turbines and another innovation regarding railway tech is also explored more deeply in today’s column.



Debt vs. Equity – The Financing of Patent Monetization

Posted: Tuesday, Nov 18, 2014 @ 12:42 pm | Written by Gene Quinn | 3 comments
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Posted in: Gene Quinn, IP News, IPWatchdog.com Articles, Patent Business & Deals, Patent Litigation, Patents

Harvey Sener (left) and Eran Zur (right)

On November 6, 2014, at the IP Dealmakers Forum there was a particularly interesting and entertaining discussion about financing patent owners. The discussion was, in my opinion, one of the most insightful and informative presentations over the two day event. That is typically what happens when you have intelligent, thoughtful individuals with strongly held but divergent viewpoints. Indeed, the discussion highlighted two distinct strategies for making money providing financing to patent owners who are seeking to monetize their patents. The panel discussion was largely dominated by Eran Zur, Head of IP Finance of Fortress Investment Group, and Ashley Keller, Managing Director of Gerchen Keller Capital. Zur and Fortress lend money to patent owners who pledge a portfolio, or subset of a portfolio, as collateral to secure the loan. On the other hand, Keller and GKC finance patent litigation, employing an equity model.

The panel kicked off in a spirited way when the moderator, Harvey Sener, who is a Partner with Sichenzia Ross Friedman Ference, asked the panelists whether they would lend to or finance non-practicing entities or others who might be from a class of actors that has been vilified in the public — or in other words “patent trolls.” Zur explained that he and Fortress do not label potential borrowers, instead choosing to keep their eye on the assets and employing good, old fashion best lending practices. . “We focus myopically on the value of the patent — we are agnostic,” Zur explained. “If we think the assets are good enough to provide a loan based on the asset as collateral we will loan the money.”

As a debt provider they focus on the value of the patents and not what the borrower may want to do with the money obtained. On the other end of the spectrum Keller explained that he does care about whether they are financing a patent troll or non-practicing entity because who you are financing needs to be taken into account because financing is all about risk — when you finance a patent troll the litigation risk is much higher for a variety of reasons.



Patentability of Business Methods and Software In Australia – Full Federal Court Decides Much Anticipated Research Affiliates Case

Posted: Tuesday, Nov 18, 2014 @ 11:11 am | Written by Ernest Graff | 6 comments
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Posted in: Australia, Guest Contributors, International, IP News, IPWatchdog.com Articles, Patents, Software, Technology & Innovation

The Australian Full Federal Court recently handed down its decision in Research Affiliates LLC v Commissioner of Patents [1]. The decision is an important addition to Australian case law concerning the patentability of business methods and software.

Judges Kenny, Bennett, and Nicholas ruled that the Appellant’s claimed computer implemented method for generating an index for use in securities trading was unpatentable as an abstract idea. The Court held that “[t]he claimed method in this case clearly involves what may well be an inventive idea, but it is an abstract idea. The specification makes it apparent that any inventive step arises in the creation of the index as information and as a scheme. There is no suggestion in the specification or the claims that any part of the inventive step lies in the computer implementation. Rather, it is apparent that the scheme is merely implemented in a computer and a standard computer at that. It is no part of the claimed method that there is an improvement in what might broadly be called ‘computer technology’.”[2]

In our opinion this case does not present a major change in the law in Australia regarding the patentability of business methods and software, but clarifies that mere reference to computer implementation in patent claims will not be enough to satisfy Australia’s requirements of patentable subject matter. Otherwise, the patentability of business methods and software, where a computer is “inextricably linked with the invention itself”, appear to remain patentable in Australia.[3]



A Robot Future – Developing Technologies, Hopes and Fears

Posted: Monday, Nov 17, 2014 @ 8:00 am | Written by Steve Brachmann | 2 comments
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Posted in: Guest Contributors, IP News, IPWatchdog.com Articles, Patents, Robotics, Steve Brachmann, Technology & Innovation

As humans, all of our greatest dreams and biggest fears about technology seem to be provoked by the stirring topic of robotic technologies. Robots have the potential to eliminate a great amount of monotonous work, provide assistance to human workers and serve in highly specialized environments, like hospitals or factories. At the same time, people can be concerned with how this technology will change daily life and worry about increasing isolation among humans or the loss of a job as a result.

Even major names in technology development have showed signs of being spooked by robotics. In a talk given at a technology symposium held at the Massachusetts Institute of Technology, SpaceX CEO Elon Musk called robots the “biggest existential threat” to the human race, even arguing for national and international regulatory oversight on artificial (AI) development. Musk is even an investor in robotics, having put money into the AI development firm Vicarious, making his unease over the negative potential of robotics all the more telling.

This holiday season, robots will likely have a much higher profile than they typically enjoy. Retail stores will prove to be a major testing ground for the consumer use of robotic technologies, as Lowe’s recently unveiled a lineup of robotic sales assistants, known as OSHbots, for certain stores. The robot can communicate in multiple languages and can direct customers to the exact location of an item they’re seeking in the store. Collision avoidance and autonomous navigation technologies are incorporated into these sales assistants, helping them travel across large stores safely.