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The Rise of The End User in Patent Litigation (and Attorney Fee Shifting)

Posted: Tuesday, Jun 24, 2014 @ 9:00 am | Written by Gaia Bernstein | 7 comments
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Posted in: Guest Contributors, IP News, IPWatchdog.com Articles, Patent Litigation, Patents

We usually think of two players in the patent system: the patentee and its competitor, assuming that competitors will represent the interests of end users. But, in my article – The Rise of the End User in Patent Litigation, which is forthcoming in the Boston College Law Review – I show that this is changing. Increasingly end users are becoming significant players in the patent system. What follows is an executive summary of this article.  

Attention has recently turned to patent assertion entities that are suing vast numbers of customers using patented technologies in their everyday businesses. But, end users were also principal players in some of the main recent patent before the Supreme Court. In Bowman v. Monsanto, Monsanto sued farmers for re-using its patented self-replicating seeds. In Association for Molecular Pathology v. Myriad Genetics, patients and physicians sued to invalidate breast cancer gene patents. And, patients and drug stores repeatedly challenge pay-for-delay agreements between patentees and competitors, claiming they undermine patients’ interests in access to generic drugs. Finally, end users are likely to become even more prevalent in patent litigation, as the 3D printer becomes more popular, making it more likely that an individual or a small business will make an infringing item that will expose them to patent liability.

I define end users broadly to include those using a patented technology for personal consumption and those using it in business, but it is important to emphasize that they are strictly users.  One would still be a user under my definition even if they incorporate the patented technology into a product or service they offer their customers they do not make or sell the technology itself.





USPTO to Host Software Partnership Meeting

Posted: Monday, Jun 23, 2014 @ 2:10 pm | Written by U.S.P.T.O. | 1 Comment »
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Posted in: Government, IP News, IPWatchdog.com Articles, Patents, Software, Technology & Innovation, USPTO

WASHINGTON – The U.S. Department of Commerce’s United States Patent and Trademark Office (USPTO) will host its next Software Partnership Meeting on Tuesday, July 22, 2014, at the USPTO headquarters in Alexandria, Virginia, from 1:00 pm – 4:30 pm. Members of the public are invited to attend.  Software Partnership meetings are an opportunity to bring stakeholders together to share ideas, experiences, and insights and to provide a forum for an informal discussion of many topics specific to the software community.

On June 4, 2013, the White House issued five executive actions designed to reduce abusive litigation and level the playing field for innovators. The second of the five executive actions focuses on clarity in patent claims and functional claiming in patents. The meeting on July 22 will feature a focused discussion on claim clarity and functional language. In particular, USPTO officials at the meeting will present details of four examiner training modules on functional language, discussed below, that were delivered this past year, and will provide an opportunity for an interactive discussion on the goals and effectiveness of the training.  A stakeholder presentation on claim clarity will follow. The public will have an opportunity to provide input on the training and ask questions regarding claim clarity. Public attendees are invited to provide individual input on these topics and additional ideas during the interactive discussion portion of the meeting.





The Case for Incremental Innovation: The Importance of Protecting Follow-on Pharmaceutical Discoveries

Posted: Monday, Jun 23, 2014 @ 9:00 am | Written by Dr. Kristina Lybecker | 1 Comment »
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Posted in: Biotechnology, Dr. Kristina Lybecker, Guest Contributors, International, IP News, IPWatchdog.com Articles, Patents, Pharmaceutical, Technology & Innovation

The pharmaceutical industry is widely criticized for wasteful spending on duplicative research to develop “me too” drugs, and focusing their efforts on “evergreening” patents. Those who argue that incremental innovation and follow on improvements to existing therapies aren’t worthy of patent protection need to look more deeply at the reality of what subsequent innovation provides. The case for protecting incremental innovation is laid out in a new publication by the Fraser Institute (released 19 June 2014), in which a thorough exploration of the therapeutic and economic value of follow-on pharmaceutical innovation is provided.

Pharmaceutical innovation is an inherently dynamic process; one innovation builds on another and improvements draw from a long history of earlier technological advances. Sir Isaac Newton once stated, “If I have seen far, it is by standing on the shoulders of giants.” In her classic paper on innovation, Scotchmer cites this quote and emphasizes that virtually all technical progress builds on a foundation provided by earlier innovators.[1]   Innovation is an undeniably cumulative event, and progress happens both in leaps and bounds (radical innovation) and in small steps (incremental innovation). In the context of the pharmaceutical industry, radical innovations encompass breakthrough discoveries of the ‘first-in-class’ medicine with a new mechanism of action. In contrast, incremental innovations may expand an existing therapeutic class through the development of a new drug based on differences in adverse effects, delivery systems, dosing schedules, or heat stability. In 2012, 45 new drugs gained regulatory approval from the US FDA, the highest number since 1997. Currently there are 907 biologics, medicines and vaccines in development, targeting more than 100 diseases.[2] Much of this innovation can be considered incremental, resulting in so-called ‘me-too’ or follow-on drugs. These are therapies that largely replicate the action of existing drugs. All indicators suggest that a significant share of medical progress is happening through incremental innovation.





Fumbling Away The Future

Posted: Sunday, Jun 22, 2014 @ 2:34 pm | Written by Joseph Allen | No Comments »
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Posted in: Guest Contributors, IP News, IPWatchdog.com Articles, Joe Allen, Licensing, Patent Business & Deals, Patents, Technology Transfer, Universities

When your enemy’s making mistakes, don’t interrupt him. Billy Beane (General Manager of the Oakland A’s) in Moneyball

~ Can’t anybody here play this game? Manager Casey Stengel in anguish over his 1962 New York Mets. The team went 40-120– the most losses by any team since 1899.

As an avid baseball fan nothing makes me crazier than seeing my team lose because of dumb unforced errors. And anyone who follows the Pittsburgh Pirates has seen more than their share of these (like on Friday the 13th under a full moon when our pitchers walked 6 batters in the 9th inning blowing a comfortable lead). Countries, like sports teams, make inexplicable unforced errors leading to loses that are a lot more significant than just losing a game. Two recent articles and one anecdote caution that if the US loses its technological lead it could be because of our own blunders rather than what our competitors are doing.

The first article illustrates the significance of one of our greatest resources: our unequalled system of publicly supported R&D. Patents as proxies: NIH hubs of innovation published in the June edition of Nature Biotechnology documents the tremendous potential federally-funded inventions have to help move the life science industry forward. Of course, potential is a double edged sword: every day teams with more potential lose to those who play the game smarter, avoiding unforced mistakes.

Patents as proxies looks at medical innovation which employs one million Americans, generates $84 billion in wages and salaries and $90 billion in exported goods and services. The U.S. biomedical industry dominates the world largely because of successful partnerships between our public and private sectors. Taxpayer supported inventions made in universities and federal laboratories are licensed under the Bayh-Dole Act to the private sector for commercial development. The article notes the resulting impact as universities created 1.7 new companies per day and 657 new products from their patent licensing in 2010 alone. It estimates “that approximately 30% of the total value of NASDAQ has roots in academic research.”





Moving from Idea to Patent – When Do You Have an Invention?

Posted: Saturday, Jun 21, 2014 @ 1:57 pm | Written by Gene Quinn | No Comments »
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Posted in: Gene Quinn, IP News, IPWatchdog.com Articles, Patent Basics, Patents

How to Patent an Invention Idea | Moving from Idea to Patent

By now everyone has undoubtedly seen the late night television commercials, and the online ads offering to help you patent your invention idea. Despite what these advertisements suggest, you cannot patent or protect an idea, but don’t despair.  The idea is the first critical step toward being able to obtain a patent, and in my experience many inventors think they only have an idea and are not yet at the invention stage when, in fact, they really do have an invention that could be protected.

In order to get from where you are to where you want to be you will need to move from idea to invention and ultimately to a patent application, but the idea gets the ball rolling.  But in order to get that ball rolling what you need is a strategy to help you move past the idea and learn to describe your idea with enough specifics so that it no longer is what the law would call a “mere idea.”  In a nutshell, if you can describe your idea with enough detail you don’t have an idea, what you have is an invention, or at least the makings of an invention. For example, an idea is this: I want to catch mice. An invention is a mousetrap.

It is critical for inventors to document and expand upon any idea.  If you continually add more details you will at some point cross over the idea/invention boundary and be squarely on the invention side of the line, which is the goal.  What you want to do is explain your idea, as well as any and all aspects and alternatives associated with your idea.  This will then get you toward approaching the point where it becomes specific enough for it to be considered an invention.  When you reach this point you have something that can be  protected and patented.





The Evolution of Air Conditioning Technology

Posted: Friday, Jun 20, 2014 @ 2:36 pm | Written by Steve Brachmann | 3 comments
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Posted in: Evolution of Technology, Guest Contributors, IP News, IPWatchdog.com Articles, Patents, Steve Brachmann, Technology & Innovation

As the sweltering heat of summer begins to set in across the country during the summer months, people all over the country are running to their thermostats or single-unit air conditioners to stay cool. Just by pressing a few buttons, a typical American homeowner has the capability to completely control the temperature and humidity in a space. This innovation has revolutionized the demographics of our entire country, allowing many people to live comfortably in southern climates which would otherwise be oppressively hot.

Air conditioners work on the essential premise of removing heat from forced air, often by blowing that air across cooling coils filled with refrigerants. Air conditioning has taken root in the psychology of middle class America, evidenced by the large number of homeowners who have at least one air conditioning unit in their homes. The incredible amounts of energy used to power these units have incited a large number of critics who speak out against the widespread use of air conditioning technologies. However, others are quick to point out that the number of British thermal units (BTUs) used by air conditioners pales in comparison to the amount of energy consumed by Americans for heating.

IPWatchdog is returning once again to our Evolution of Technology series to take an in-depth look at how AC technologies have developed over the years. Modern air conditioning goes back more than one century in America, although the evidence showing human attempts at cooling the air goes back millennia. Today, we’re sharing a quick timeline of heating, ventilation and air conditioning (HVAC) technologies, with a special focus on beating the heat. We also take a closer look at the current state of air conditioning technologies, including a trio of patents related to air conditioning within automobiles..





SCOTUS Rules Alice Software Claims Patent Ineligible

Posted: Thursday, Jun 19, 2014 @ 10:54 am | Written by Gene Quinn | 216 comments
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Posted in: Computers, Gene Quinn, Government, IP News, IPWatchdog.com Articles, Patentability, Patents, Software, Technology & Innovation, US Supreme Court

Justice Thomas

UPDATE 2: June 19, 2014 at 6:44 pm ET.

On Thursday, June 19, 2014, the United States Supreme Court issued its much anticipated decision in Alice v. CLS Bank. In a unanimous decision authored by Justice Thomas the Supreme Court held that because the claims are drawn to a patent-ineligible abstract idea, they are not eligible for a patent under Section 101.

In what can only be described as an intellectually bankrupt opinion, the Supreme Court never once used the word “software” in its decision. This is breathtaking given that the Supreme Court decision in Alice will render many hundreds of thousands of software patents completely useless. While the Supreme Court obviously didn’t want to make this decision about software, the holding does make it about software because each of the ways software has been claimed were ruled to result in patent ineligible claims. On first read I don’t see how any software patent claims written as method or systems claims can survive challenge. For example, these claims to IBM’s Watson computer, which is really akin to the first generation omnipotent Star Trek computer, seem to be quite clearly patent ineligible. See Is IBM’s Watson Still Patent Eligible. It is impossible to see how the Watson claims remain patent eligible in light of this ruling and how the Alice claims were written. The only potential solace for IBM and others would be if the Federal Circuit narrowly interprets this decision noticing that the Supreme Court seemed almost preoccupied by the fact that the patent claims covered a financial process. Still, the structure of the claims are nearly identical, with Alice’s claims actually having more recited structure, if anything.

More difficult to understand is how the Court could issue a decision that doesn’t even use the word software. Software is clearly patent eligible if you read the patent statute. Software is mentioned throughout the statute. It was specifically mentioned in the America Invents Act in 2011. Tax strategies are not patent eligible in and of themselves, but the AIA says that software is not patent ineligible just because it incorporates a tax strategy. This is the type of analysis the Supreme Court engaged in the Bilski decision finding that business methods are patentable.





Legally Suspect TTAB Decision Cancels Redskins Trademark

Posted: Thursday, Jun 19, 2014 @ 6:00 am | Written by Gene Quinn | 25 comments
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Posted in: Gene Quinn, Government, IP News, IPWatchdog.com Articles, Trademark, Trademark Trial and Appeal Board, USPTO

Yesterday the Trademark Trial and Appeal Board (TTAB) issued a decision in Blackhorse v. Pro Football, Inc., which canceled a variety of U.S. federal trademarks that were issued to the Washington Redskins football team between 1967 and 1990. The trademarks in question consisted in whole or in part of the term REDSKINS for professional football-related services. The TTAB ruled that these trademarks were inappropriately granted on the ground that the registrations were obtained contrary to Section 2(a), 15 U.S.C. § 1052(a), which prohibits registration of marks that may disparage persons or bring them into contempt or disrepute.

While this decision will be widely cheered by those who proclaim the virtues of political correctness, there is absolutely no doubt in my mind that from a legal standpoint this decision is clearly wrong.

From a purely legal standpoint there is absolutely no valid reason to have canceled the trademarks in question, but this is the second time the TTAB has canceled these same trademarks. Ultimately, the previous challenge was reversed as the result of laches because the challengers waited too long to bring the challenge. Laches was not an issue in this case, but previously federal courts also question the evidence, or lack thereof, relied upon the challenge the trademarks. See Redskins Can Keep Trademark.