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.

On Tuesday, May 21, 2013, Jeffery Lewis, who is the President of the American Intellectual Property Law Association (AIPLA), sent a letter to Sylvia Matthews Burwell, who is the Director of the Office of Management and Budget (OMB). In this letter Lewis, speaking on behalf of the AIPLA and its 15,000 members, challenged the legal interpretation of the budget cuts the Obama Administration says are required of the USPTO thanks to sequestration.

In the letter Lewis points out that the USPTO is at a critical point in the implementation of the America Invents Act (AIA), and this significant reduction in USPTO funding is based on an erroneous legal interpretation. Lewis also points out that the cut in funding to the USPTO is contrary to the promises made at the time the AIA was passed.

Those of us who followed the AIA debate and passage knew that it would only be a matter of time before the government reneged on its assurances that the USPTO would be allowed to keep 100% of the fees it collected. Senator Tom Coburn (R-OK) championed an amendment that ultimately failed, which would put into the Statute the requirement that 100% of fees collected be allowed to be used by the USPTO. That was rejected by Republican House leaders, who in turn promised in a letter that they would still provide 100% funding. A promise in a letter is, of course, worthless in Washington, DC.

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.

In a one-page memorandum to the Patent Examining Corps dated May 13, 2013, Deputy Commissioner for Patent Examination Policy Drew Hirshfeld had a simple message to respond to the Federal Circuit’s en banc non-decision in CLS Bank v. Alice Corp. The message was this: “there is no change in examination procedure for evaluating subject matter eligibility.” (emphasis in the original)

This is hardly a surprise given that there were 7 different opinions with only one opinion garnering more than 5 out of 10 Judges. The sole opinion that achieved a majority was a mere 58 words in length and did nothing more than explain that given the fracture of the Court all that could reasonably be said was that the decision of the district court had been affirmed by an equally divided Court, which unfortunately rendered the claims all patent ineligible.

In his opinion Chief Judge Rader explained in footnote 1: “though much is published today discussing the proper approach to the patent eligibility inquiry, nothing said today beyond our judgment has the weight of precedent.”

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.

Last week the United States Patent and Trademark Office (USPTO) announced in the Federal Register that it would modify the After Final Consideration Pilot Program (AFCP) to create an After Final Consideration Pilot Program 2.0 (AFCP 2.0). The goal of AFCP 2.0 is much the same as it was when the USPTO initially introduced the precursor AFCP. According to the USPTO, the goal of AFCP 2.0 is to reduce pendency by reducing the number of RCEs and encouraging increased collaboration between the applicant and the examiner to effectively advance the prosecution of the application. Thus, this can and should be viewed as part of the USPTO effort to continue to try and address the RCE problem.

AFCP 2.0 began on May 19, 2013 and will run through September 30, 2013. The USPTO says that any request for participation in the program must be filed on or before September 30, 2013. Of course, as is always the case, the USPTO left open the possibility that the pilot would be extended beyond that date.

You may recall that the AFCP was initially created by the USPTO at the beginning of 2012. See New PTO Initiative Gives More Opportunity to Amend After Final. The purpose of the program was to attempt to move cases along without the need to file an Request for Continued Examination (RCE) when the case was very near to completion. Under AFCP the applicant could engage with the examiner beyond what is otherwise allowed under the rules if the examiner determined that the response filed could be fully considered within 3 hours for plant or utility application, or within 1 hour for design patent applications. See USPTO Memo to Examiners.

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.

On May 1, 2013, we published an article titled Patent Attorney Asks Examiner “Are You Drunk?” The article was about an unfortunate and horribly inappropriate filing made by an attorney.

After providing the filing I explained that there are better ways to approach the situation, but I also looked into some publicly available statistics to see whether there was any explainable frustration that may have been experienced by this attorney. That part of the article looking at the statistics painted an inaccurate and unfair picture. I write today to set the record straight.

The examiner who was sent this inappropriate filing is a junior examiner — Examiner Valvis — who has been with the Patent Office only 8 months. In the article I suggested that there was reason for frustration. What I inartfully was trying to say was that at first glance there seemed to be a reason to be frustrated because in the database consulted there was no evidence of any patents being issued in 66 applications worked on. I then said: “But with only 66 applications total that might not be surprising.” It isn’t surprising because new examiners begin work on new cases and most cases are not allowed on a first office action. So someone who has only 66 applications was clearly a junior person and the pool simply too small to draw any conclusions one way or another.

Judge Lourie, who was joined by Judges Dyk, Prost, Reyna and Wallach, in CLS Bank v. Alice Corp. wrote: “At its most basic, a computer is just a calculator capable of performing mental steps faster than a human could. Unless the claims require a computer to perform operations that are not merely accelerated calculations, a computer does not itself confer patent eligibility.”

One way that Judges probe generalized statements is to look for the boundaries to test the logic. If the statement cannot be stretched to apply to even similar scenarios then the logic of the statement is questioned and believed to be faulty and self-serving. So let’s see if the above statement can withstand even modest scrutiny.

The statement above, by any fair reading, says that if the core of the invention is something that a human could do but slower then the subject matter is patent ineligible. So what about robots? Robots are more efficient, stronger and faster than humans, but a human can do what a robot can do. So are robots patentable?

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.