On October 10, 1999, IPWatchdog.com first went live on the Internet. It has been an honor and privilege to get to know so many wonderful people in our industry over the last 15 years, to talk to many industry leaders on the record, and to in some small way continue to push the debate forward. Thanks to our readers and contributors we have been recognized as as one of the top 100 legal blogs by the American Bar Association for 5 years in a row. For 3 of the last 4 years (2010, 2012, 2013) we were recognized as the top intellectual property law blog according to the ABA. In January 2014 we were also honored to be inducted into the ABA Blawg Hall of Fame. CLICK HERE to read more.
We often return to Microsoft during the course of our Companies We Follow series here at IPWatchdog to profile the most intriguing inventions developed by a giant of American technological development. The U.S. Patent and Trademark Office has published dozens of recently filed patent applications assigned to this company. We noticed a great deal of research and development in the field of cloud computing, as well as an intriguing assortment of filings related to video gaming. Two of these involve the use of a physical activity monitoring device worn by a player for personal training or gameplay.
Microsoft has one of the most powerful patent portfolios in the world and the past few weeks have not shown any signs of slow activity here. One patent protects a system enabling mobile device users to quickly share video and audio content across short-range networks, like Bluetooth. A couple of software solutions for business issues are included, such as one patent protecting a method of syncing data from a recovery machine more quickly in response to a network failure. The prevention of phishing scams and methods of tailoring web services to the preferences of a group are also explored below.
Posted: Friday, Oct 3, 2014 @ 11:04 am | Written by Gene Quinn | 1 Comment »
Today I am in Toledo, Ohio, at the University of Toledo College of Law. The College of Law and Professor Llew Gibbons, who is Chair of the Board of Directors for the Confucius Institute, and are the hosts for Doing Business in China. Thisall day program will discuss the advantages of doing business in China for small and mid-size corporations. It is hoped that the program will dispel myths and provide useful information with respect to helping businesses decide whether they should consider doing business in China.
One of the first topics discussed this morning relates to patent examination standards in China. Thomas Moga, a partner with Shook, Hardy & Bacon LLP, explained that businesses should be considering getting patents in China to keep others from using your IP, to develop a portfolio for cross-licensing and to stop counterfeiting. Moga explained that while he cannot say that enforcing rights in China isn’t without problems, but one thing is for certain — if you don’t obtain patent rights you have no chance of enforcing rights in China. “One of the reasons foreigners have in China is they don’t take advantage of the system, which is because we don’t understand the system,” Moga said.
Regardless of Apple’s current business difficulties, recently published patent applications filed with the U.S. Patent and Trademark Organization show that the company is still trying to establish itself as a bastion of computing innovation. Below, we’ve explored three patent applications specifically directed at mobile devices, including one technology designed to predict a preferred driving route without any manual input. Improvements to personal digital assistants and graphical user interfaces for software programs are also discussed.
Apple is one of the stronger American companies in terms of intellectual properties held, and recent weeks saw the addition of many more patents in the field of consumer computing technologies. We discuss a group of patents related to improved graphical user interfaces, including one technology to help digital objects respond to touch inputs in a way that suggests physical interaction in the real world. Intelligent systems for telecommunications are another area of development focused on by Apple, including methods of determining chat session capabilities in a contact’s device.
Justices of the United States Supreme Court. No friends to innovators who require strong patent rights.
As I was putting together the slides for this Powerpoint presentation I thought to myself, “how do I title this page.” I’ll tell you the thought that first jumped into my head, although I ruled it out: “Public Enemy Number One.” Or I suppose “Public Enemy Number One through Nine.” There is little doubt that the Justices of the Supreme Court are indeed public enemies, at least insofar as patent owners are concerned. Unless you are represented by Seth Waxman at the Supreme Court your patent claims are invalid! And even Seth doesn’t always win, although he sure wins a lot for Monsanto.
Let’s start our discussion of SCOTUS decisions with Mayo v. Prometheus. In Mayo the Supreme Court proudly proclaims that they’re not going to take the government’s invitation to apply 102, 103, and 112. Instead the Court decided to limit its handling of the issues to patent eligibility under 101. And as they go through their analysis they admit that the claim in question includes things that are not in nature, but yet they reach the conclusion that the claim is still a law of nature anyway because you’re just adding some extra stuff that already exists. It’s breathtaking. One, that’s not what the law is. Two, that’s not what the statute says. And three, every other Supreme Court throughout history specifically said never do that, and they did it anyway.
Gene Quinn at the AIPF Annual Meeting in Washington, DC, September 29, 2014.
Today I am going to talk about what I call the patent pendulum. When Todd Van Thomme and I originally started talking about what I would talk about today I said that there would undoubtedly be something that comes up at the last minute. I even joked that I might wind up talking about how the Supreme Court actually got the Alice decision right, surprising us all and saying once and for all that software is clearly patentable. We all know it didn’t turn out that way. So the title of my presentation today is this: Dark Days Ahead: The Patent Pendulum.
As you are probably all familiar, patent law never stays the same in the same spot. It is always swinging one or another, either swinging more towards stronger patent rights and the patent owner, or away from strong patent rights and away from the owner. It has been that way throughout history.
Normally what’s happened is that we’ve seen the pendulum swing over longer periods of time, like over decades, and then it’ll move away. For example the 1952 Patent Act was premised on the fact that Congress didn’t like the way the law was developing over the preceding years and wanted more things be patentable, hence the 1952 Patent Act did away with the flash of creative genius test. So things swung back toward a more patent friendly law, at least for a while. And then in the 1970s no courts ever saw a patent that actually had valid patent claims. This famously prompted Congress to create the Federal Circuit. Under the guidance of Chief Judge Markey and Judges like Giles Sutherland Rich and Pauline Newman, who is still on the court, the pendulum swings back toward the patent owner once again.
Posted: Wednesday, Oct 1, 2014 @ 8:00 am | Written by Gene Quinn | No Comments »
Several weeks ago I wrote about the fourth annual DRTV Summit sponsored by InventionHome. Initially the deadline for inventors to submit their inventions for consideration was September 30, 2014, but InventionHome has extended the deadline for inventors to submit until the end of this week. Submissions are now due by the close of business on Friday, October 3, 2014.
The DRTV Product Summit is a one-day event that will be held on Wednesday, October 22, 2014 at Robert Morris University in Pittsburgh, Pennsylvania. Inventors will be given the opportunity to pitch their products to representatives of the six (6) DRTV companies on one day in one location.
The event is not open to all inventors. Over the past few years the event has grown and there has been significant interest in the inventor community. In order to be considered inventors must submit their inventions to be reviewed by a panel of referees. Thanks to an extended deadline, submissions are now due no later than Friday, October 3, 2014. This submission and selection process insures that only the highest quality inventions are presented to the representatives of the DRTV companies that will be present. This maximizes the value for those DRTV companies, which means they keep coming back year after year. It also reserves pitch time for inventors with the most commercially ready products that have the greatest immediate chance for a deal.
No question exists that patent eligibility under Section 101 has been, and remains, the most active question in patent law. Watching the rapid flow of cases back and forth between the Federal Circuit and the Supreme Court exceeds the excitement generated by most TV shows in sheer entertainment value. The only question open for discussion is whether we are watching “Game of Thrones,” “Survivor”, or “Modern Family.” Actually, the best choice may be “Lost”.
To understand the Supreme Court’s decision in Alice Corp. v. CLS Bank Int’l, a page of history provides more illumination than a book of Lewis Carroll references. Here we need to pick up at the point when everyone thought the computer patentability wars were over.
By the late 1990’s, the last frontier was business methods. We had absorbed Diamond v. Diehr and moved on to Beauregard claims and propagated signals. Everyone was making, or wanted to be making, tons of money in the Dot.Con era, and little patience remained for outdated rules.
Posted: Monday, Sep 29, 2014 @ 9:00 am | Written by Gene Quinn | 28 comments
One of the frequent claims made by those in the anti-software patent community relates to Twitter and the clearly erroneous belief that patents are not important to the company. Indeed, recently when I wrote Fairy Tales and Other Irrational Beliefs About Patents the claim arose in the comments suggesting that Twitter is proof that patents are unnecessary to succeed. Quite to the contrary. If you actually concern yourself with facts, Twitter is a perfect case study to demonstrate just how important patents, particularly software patents, are to a start-up company that has aspirations of going public.
Doubt me? Perhaps you will believe Twitter themselves. In repeated filings with the Securities and Exchange Commission since October 2013, Twitter has explained over and over again just how important their patented technology is to the company. They have also repeatedly explained that unlike other companies and competitors, even with nearly 1,000 patents, their own patent portfolio is extremely small by comparison. This poses real concerns for Twitter, which is why they warn the SEC and investors of the ramifications of such a small patent portfolio with every new filing.
Let’s begin our tale about Twitter at the start. Twitter, founded on March 21, 2006, was initially believed to be of the opinion that patents didn’t matter. Behind the scenes and unknown to many, Twitter was actively filing patents very early on in the development of the company. This is hardly shocking news given that Twitter’s initial round of funding dated back to 2007 and the near universal reality that high-tech investors not only love patents, but they demand patents. Investors love patents because if the company does not succeed at least some valuable patent assets will remain, which can be sold to recoup losses.
Posted: Monday, Sep 29, 2014 @ 8:00 am | Written by Gene Quinn | 1 Comment »
On Friday, October 3, 2014, I will be in Toledo, Ohio at the University of Toledo College of Law. I taught years ago as a Visiting Professor at the College of Law, have many friends still at the University, and my son is currently studying to become an electrical engineer at the University of Toledo College of Engineering, so I expect over the next several years I will find a variety of excuses to visit Toledo.
My excuse this time is to attend a program titled Doing Business in China: A Legal and Commercial Review on Friday, October 3 from 8:30 a.m. to 5:15 p.m. at the University of Toledo College of Law in the McQuade Law Auditorium at 1825 W. Rocket Drive, Toledo, Ohio. Registration will begin at 8:00 a.m. The cost to attend is $35.00, which includes a lunch. Vegetarian meals are available upon request.
The University of Toledo College of Law, Regional Growth Partnership, and the Confucius Institute at The University of Toledo are the lead sponsors for Doing Business in China, which is the first part of two programs. During 2014 the Confucius Institute will spearheaded this program to educate local business people and attorneys on the realities of doing business in China by bringing together a distinguished panel of academics, attorneys in private, public, and corporate in-house practice as well as senior business people to discussed the realties, the myths, and the risks of doing business in China. Next year, in 2015, the focus will shift and will be on the concerns of Chinese attorneys, business people, and their advisors relating to doing business or investing in the United States.
Posted: Sunday, Sep 28, 2014 @ 8:00 am | Written by Joseph Allen | 5 comments
Editorial Note: This month’s column from Joe Allen comes from his plenary address to the Eastern regional meeting of the Association of University Technology Managers, which took place in Baltimore, Maryland, on September 18, 2014. CLICK HERE to view his PowerPoint presentation, which includes facts and figures that support the positions taken in this article.
They say when speaking that you should repeat your message at least three times. Here’s the first: Bayh-Dole has succeeded beyond anyone’s wildest imagination. It was not created to benefit universities but the American taxpayer. You are the stewards of a public trust and have an obligation to defend and protect the law in the same way as the Founders of AUTM protected it for you.
Research universities are now recognized drivers of our economy and your discoveries improve lives around the world, but that wasn’t always the case. The reason is the Bayh-Dole Act which gives certainty and predictability to the ownership and management of publicly funded inventions so they can move from the lab into the marketplace.
Last week I was speaking in Brazil which adopted a technology transfer law to spur university-industry partnerships. Unlike Bayh-Dole theirs is full of uncertainty which is undermining its impact. I explained that having clearly stated rules is an essential ingredient for success because companies are undertaking a tremendous risk when turning university technologies into useful products. The time and expense of development is borne by the business—not the government or the university. Companies cannot justify this effort when the bureaucracy inserts itself between a university and its industry partner. That was the situation in the US before enactment of Bayh-Dole and it caused the benefits from billions of dollars of taxpayer supported research to go right down the drain.