Still, despite what else may be going on at Samsung we can always count on the fact that they will be filing and receiving patents. Our recent look at Samsung for our Companies We Follow series found plenty of innovations that many consumers around the world can look forward to in the coming months and years. Nanotechnologies utilized for the creation of light-emitting diodes and liquid crystal displays have been protected for the company recently, as a number of patents we explore below show. Other areas of strong research and development activity within the company includes robotics, alternative energies and virtual reality systems, each of which we discuss in further detail today.
For some time after the Supreme Court decision in Diehr, the Court of Appeals for the Federal Circuit applied what was known as the Freeman-Walter-Abele test to determine whether a computer program is patentable subject matter pursuant to 35 USC 101. The last of these cases, In re Abele, was decided by the Federal Circuit a little more than a year after the Supreme Court issued its decision in Diehr.
Given that the Supreme Court almost never overrules its own prior decisions, then Justice Rehnquist tried to explain in Diehr that both Gottschalk v. Benson and Parker v. Flook remained good law, despite the fact that the holding in Diehr clearly set patent eligibility for software on a new path different and distinct from the path chosen by the Court in Benson and Flook. Indeed, in a recent interview Judge Richard Linn told me: ” I have great difficulty rationalizing the Supreme Court’s opinions in Flook and Diehr, and in many regards I think those decisions are irreconcilably in conflict.” Judge Linn isn’t the only one to hold that opinion. If only his panel opinion in Alice were the law of the land — but that is another story for another day.
Posted: Thursday, Dec 4, 2014 @ 10:00 am | Written by Gene Quinn | No Comments »
Kristina Dinerman, Vice President and Associate General Counsel for Yahoo! Inc.
In part 1 of my interview with Kristina Dinerman we discussed Katherine Heigl, Michael Jordan and Elvis impersonators, as well as the impact social media has had on rights of publicity in the Internet age. In this final installment of our conversation Dinerman discusses how aggressive celebrities are becoming with respect to protecting their right of publicity in the age of social media, whether the Supreme Court may interject itself at some point and decide whether tweeting constitutes commercial speech, and the growing phenomenon of people becoming celebrities as the result of being famous for, well… being famous.
QUINN: So what do you think is going to wind up happening longer term with the Internet and right of publicity? If you were looking into your crystal ball say maybe over the short term, intermediate, and then long term? I suspect we’re going to see more of these cases but what kind of cases do you think we’re going to be seeing?
DINERMAN: Well, one of the things that is happening is that the line between commercial and noncommercial speech is continuing to blur. We are going to see more cases that involve advertising integrated into content. As advertising continues to develop I think that you’re going to see more crossover between celebrities who are trying to self promote and companies who are trying to increase awareness of their brand. And there will continue to be more intersection between the two. Take award shows for example such as the recent American Music Awards. The next day you see photos of celebrities in what they wore and you see brands trying to to connect to that, with ads like “get the look.” I think that you’re going to see this continued intersection between advertising and social media and it will be interesting to see how celebrities will and will not allow companies to use their pictures, their images and their names.
Patent filing activities are still strong at JPMorgan Chase as we return to the banking giant in our Companies We Follow series. A couple of innovations we noticed in the corporation’s recent patent applications ease the burden required to enter and transmit data for financial transactions, especially when registering financial accounts for recurring payments on a club membership. Payment rewards systems for mortgage holders and other credit account owners are discussed below as well. We also talk about a technology for allowing users to communicate with self-serving kiosks by using sign language.
Several patents that we found in our latest survey protect a couple of transactional card inventions for JPMorgan Chase, including one system intended to support the use of smart cards which can display a prepaid balance. Simpler methods of signing online users into networked financial services are the focus of a few other patents we discovered. Also recently patented was a method of preventing identity theft. But what really caught our attention were the patent claims JPMorgan Chase recently obtained. Many of the claims cover computer implemented processes, while many are clearly drawn to software innovations even if they don’t specifically define computer implemented processes in the preamble of the claims. It would seem that like Bank of America, JPMorgan Chase is not suffering through Alice rejections that so many others experience.
Posted: Wednesday, Dec 3, 2014 @ 4:31 pm | Written by Gene Quinn | 4 comments
Yesterday the United States District Court for the District of Nebraska entered an order in Activision TV, Inc. v. Bruning (Civil Action No. 8:13-cv-00215), ordering outgoing Nebraska Attorney General Jon Bruning to pay $325,000 for attorneys fees and costs to ActiveLight, Inc. (formerly Activision and referred to as “plaintiff”) and to pay another $400,000 in attorneys fees and costs to MPHJ Technology Investments, who had intervened in the matter. Making this sanction even more painful is the fact that the grand total of $725,000 amounts to almost 10% of the 2014 budget for the Attorney General’s Office.
Bruning had demanded that the attorneys for ActiveLight and MPHJ stop engaging in patent enforcement activities in the State of Nebraska, a gross overreach of his authority as a State Attorney General and done with little or no investigation that would suggest any violation of State law. The order signed by United States District Judge Joseph F. Bataillon approved a Joint Motion for Entry of Judgment Awarding Attorneys Fees filed by MPHJ, ActiveLight and the State of Nebraska.
The genesis of the dispute is grounded in what otherwise should have been a patent infringement matter where the State of Nebraska, like all States, has no authority to act. The grievance that lead to ActiveLight and MPHJ suing the Nebraska Attorney General relates to Bruning’s issuance of a cease and desist order against counsel for ActiveLight (then Activision) preventing the law firm of Farney Daniels from engaging in any patent enforcement activity within the State of Nebraska on behalf of clients of the firm. Because counsel for ActiveLight also represent MPHJ Technologies the cease and desist order that barred ActiveLight’s attorneys from engaging in any patent enforcement activity in Nebraska also significantly impacted MPHJ Technologies.
IPWatchdog’s Companies We Follow series has profiled BoA’s innovations on a few occasions in the past. In this edition, we found a number of patent applications filed with the U.S. Patent and Trademark Office to protect technologies for customer loyalty rewards programs, including one innovative system for encouraging account holders to achieve long-term goals. Another patent application would protect a technology designed to identify opportunities for business mergers or acquisitions. We also discuss one patent application filed to protect a platform for disseminating carbon credit data based on personal transactions.
Social networking platforms were at the core of a couple of patents recently issued to Bank of America, including one invention meant to help uncover potential social networking opportunities based on financial transactions. A couple of cybersecurity technologies, including one for isolating an infected client device to stop of the spread of a virus within a network, are also featured. We were also intrigued to share a patent protecting a method of presenting vehicle information of interest to someone who may want to buy a vehicle by capturing a video feed of that vehicle.
Posted: Wednesday, Dec 3, 2014 @ 6:00 am | Written by Gene Quinn | No Comments »
Sherry Knowles is a name that everyone in the patent community either knows, or should know. From 2006-2010, Knowles was the Senior Vice President and Chief Patent Counsel at GlaxoSmithKline, where she served as the worldwide head of patents for all litigation and transactional matters. Those familiar with recent patent history know that this time frame coincides with the failed attempt by the United States Patent and Trademark Office to limit the number of claims a patent could have and limit the number of continuation applications in any patent family. Knowles was on the front lines of that important fight when GlaxoSmithKline sued the USPTO and prevailed.
In 2008, Managing IP Magazine named Knowles one of the top 10 most influential people in Intellectual Property, and in 2010, the New Jersey Intellectual Property Lawyers Association awarded the Jefferson Medal for exceptional contribution to Intellectual Property. In November 2011, Intellectual Asset Management Magazine listed Knowles among the top fifty individuals, companies and institutions that have shaped the IP marketplace over the preceding eight years.
I recently had the opportunity to chat on the record with Knowles, who now fronts her own strategic consulting firm, and we had a wide ranging discussion about European patent reforms and the law of obviousness as interpreted by the Federal Circuit. The first half of our interview, which appears below, is devoted to discussion of European patent reform and what it means from a strategic standpoint for patent owners. In part 2 we get into a very spirited discussion of obviousness and the Federal Circuit.
The so-called Freeman-Walter-Abele test has been defunct for quite some time, dating back to the Federal Circuit doing away with the test in In re Alappat. Nevertheless, the Freeman-Walter-Abele test is quite an important step in the history of software patents in the United States. The reason to spend a significant amount of time discussing the rise and fall of the Freeman-Walter-Abele test is three-fold.
First, the test was widely criticized (rightfully so) as being so flexible that any District Court Judge or three-Judge panel of the Federal Circuit could apply it to justify any preconceived notions and ideological preferences. Indeed, the Freeman-Walter-Abele test proved to be anything but objective. The test was unworkable and did not introduce certainty; it introduced unpredictability, which must be avoided in at all costs in laws relating to property and in laws relating to business.
The second reason to focus on the Freeman-Walter-Abele test is because there is no way to ignore the fact that the more recent tests in the software space are best characterized as versions of the Freeman-Walter-Abele test in disguise. Under the Freeman-Walter-Abele test there needed to be some physical, tangible link to the process steps, which looks eerily like the machine component of the Bilski machine or transformation test. Furthermore, under the Freeman-Walter-Abele test it is not enough that the patent claim be drafted as a method, but rather the process must be linked to one or more elements of a statutory apparatus claim that itself would meet the requirements of section 101. The similarity with the machine-or-transformation test is again striking.
Posted: Tuesday, Dec 2, 2014 @ 7:45 am | Written by Steve Brachmann | 1 Comment »
Dr. Hugh Herr
In our recent coverage of the Evolution of Prosthetic Devices, we were intrigued to find so many developments in the field that came from those who had suffered amputations over the centuries. Dr. Hugh Herr is no exception. On Tuesday, December 9, 2014, Dr. Herr will receive the 2014 Inventor of the Year award during a ceremony hosted by the Intellectual Property Owners Education Foundation (IPOEF). Like many before him, Herr follows in the tradition of incredible engineering feats in prosthetic devices designed by amputees. But Herr didn’t just stop with a prosthetic device, but instead is blazing a wholly original path that may improve the motor ability of the entire human race, not just those who have lost one or more of their limbs.
“Basic levels of physiological function should be a part of our human rights. Every person should have the right to live life without disability if they so choose.” These words came during a TED Talk given in March of this year by Dr. Hugh Herr, inventor of the BiOM® T2 System, the world’s first bionic foot and calf system and the 2014 Inventor of the Year being recognized by IPOEF. Dr. Herr’s story is one of incredible innovation in the face of a terrible struggle to regain the mobility he lost decades ago during a fateful rock climbing expedition.
Posted: Monday, Dec 1, 2014 @ 12:35 pm | Written by Gene Quinn | No Comments »
Kristina Dinerman, Vice President and Associate General Counsel for Yahoo! Inc.
Kristina Dinerman is Vice President and Associate General Counsel for Yahoo! Inc. Dinerman handles business and legal affairs for media, marketing and the Yahoo Studio, which means that dealing with the many thorny issues associated with rights of publicity are on her daily radar. Rights of publicity and entertainment licensing are not topics we frequently cover on IPWatchdog.com, but I noticed that Dinerman would be speaking about these topics at Understanding the Intellectual Property License program in San Francisco, California on December 8, 2014. I set the wheels in motion for an on the record conversation, which appears below.
In this interview we discuss how the Internet generally, and social media more specifically, has changed the landscape with respect to rights of publicity, raising a number of interesting questions about what is, and what is not, commercial speech.
Without further ado, here is part 1 of my 2 part interview with Kristina Dinerman.
Posted: Monday, Dec 1, 2014 @ 7:45 am | Written by Steve Brachmann | 1 Comment »
The past decade has been a very interesting time in the area of developing prosthetic devices which can help a person regain some of the motion and motor skills they lost because of an amputation. On December 9th, the Intellectual Property Owners Education Foundation will convene to recognize the achievements of Dr. Hugh Herr, who is the IPOEF’s selection for its 41st Inventor of the Year. The contributions of Dr. Herr to prosthetic device development has led to revolutionary developments in foot and calf bionics, allowing those who haven’t walked for years to take their first steps on their own. As the press release linked above states, Dr. Herr is of the belief that disability can be eliminated within this century through greater research and development in bionics.
With this honor being bestowed upon a developer of prosthetic devices, we thought it would provide a good opportunity to return to our Evolution of Technology series for an in depth look at the development of prosthetic devices. Our story of the history of prosthetic devices take us from decorative beginnings in ancient societies through the high-tech devices being constructed to enable the mind to more easily control bionic limbs which have an incredible range of function. A long and sometimes very difficult road has been traveled for millennia towards a current atmosphere where hope for the future of bionic development is very high.
Posted: Sunday, Nov 30, 2014 @ 10:30 am | Written by Gene Quinn | 8 comments
Despite what you may have heard to the contrary, software patents have a very long history in the United States. Computer implemented processes, or software, has been patented in the United States since 1968. The first software patent was granted by the United States Patent and Trademark Office (USPTO) on April 23, 1968 on an application filed on April 9, 1965, Martin A. Goetz, a pioneer in the development of the commercial software industry, was the inventor of the first software patent ever granted, U.S. Patent No. 3,380,029. Several years ago PBS Digital Studios profiled Goetz and his pursuit of the first software patent.
To listen to the critics of software patents you would never know that software has been patented in the United States for nearly 50 years. The critics erroneously claim that the Federal Circuit first allowed software patents by effectively overruling the Supreme Court, but the Federal Circuit didn’t come into being until 1982, which is some 14 years after the first software patent issued, and after Supreme Court consideration of both Gottschallk v. Benson and Diamond v. Diehr.
Today software patents are under attack in the Courts. “[T]he Supreme Court and now this Court of Appeals for the Federal Circuit seem to be not considering the fact that the United States is leading in many of these emerging technologies and specifically thinking about software,” said Bob Stoll, former Commissioner for Patents and current partner at Drinker Biddle, during our recent webinar conversation on patent eligibility. Indeed, software is very important to the U.S. economy. According to the Government Accountability Office software-related innovations are found in 50% of all patented innovations. Without the availability of patent protection individuals, entrepreneurs, small businesses and start-ups will opt to keep their innovations secret rather than lay them open for inspection (and stealing) by much larger, well-funded entities who have long since lost the ability to innovate.