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.
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.
Every few months, we profile the recent research and development operations in which the companies of the Samsung Group are engaged. Today, we’ve seen an incredible amount of both patent applications and issued patents assigned to this conglomerate which are filed at the U.S. Patent and Trademark Office. Samsung’s patenting activities have been in the news recently, as reports from Thomson Reuters Intellectual Property & Science indicate that no one has filed for more patents for home automation technologies over the past 14 years than Samsung. Today, we’ve performed a thorough search of patents covering a wide degree of innovation from this patenting giant, from medical technologies to virtual reality services for consumer devices.
In addition to an interesting bio-chip testing system that has applications in the medical world, for quicker diagnosis of disease, we encountered a variety of the more typical patent applications you might expect from Samsung. We found, and profile below, patent applications relating to better support mechanisms for touch screen notebooks as well as a method for creating multiple desktop environments on a mobile device are also expressed within recent patent application filings.
While I suspect that the 90 minute discussion will cover a great many things, the conversation starter for the panel is this: Can a company write a blog or does it need to be written by the owner, or some other high profile individual within the company, in order to achieve the maximum benefit?
One of the primary reasons for undertaking a blog is to engage in business development of one kind or another. Assuming that is the goal then it is absolutely essential, in my opinion, for their to be an actual person, or multiple identifiable people, doing the writing.
Searching online is increasingly one of the first things people do when they are looking for information. In order to develop business through a blogging strategy it is essential to tap into this phenomena, which is now the modern day equivalent of going to the Yellow Pages. But the Yellow Pages could only ever tell you so much about a company, what they offered, and virtually never provided any price information. It was also extremely difficult to convey expertise in a static advertisement, and impossible to do so only with a name and phone number listing. The Internet, of course, has changed everything.
By and large we are exporting our intellectual property so foreign companies and subsidiaries around the world can engage in manufacturing. Unfortunately, when manufacturing exits a country R&D funding dwindles in direct response, thereby creating an enormous problem. This has been and will continue to be an acute problem for the United States moving forward. With countless manufacturing jobs already gone what the American economy thrives on is intellectual property, particularly in the form of innovation.
This is an issue that has come to mind are the result of a recent article in POLITICO titled As factories die, income gap grows. This article starts by telling the tale of a married couple from Reading, Pennsylvannia, Dave and Barbara, who back in 2008 were making $22 and $19 an hour respectively working for Baldwin Hardware, a unit of Stanley Black & Decker Corp. Layoffs came, long term unemployment followed, and now the couple are among the tens of millions of Americans who are under employed. They had to run through all their retirement savings to stay afloat, and now they each make $10 an hour; Dave as a janitor and Barbara cleaning houses while she looks for something permanent.
The American story of lost manufacturing jobs dates back for decades. Bruce Springsteen’s song My Hometown, which is actually about my hometown of Freehold, New Jersey, immortalized the tale of a textile mill closing down, jobs leaving and never coming back, which leads to vacant stores throughout the town. The line ? Foreman says these jobs are going boys and they ain’t coming back” ?has proved to be eerily prophetic, repeated in once thriving manufacturing and industrial communities all across America.
Australia has two types of patents, a standard (utility) patent and an innovation patent. Innovation patents where introduced in 2001, replacing the Australian “Petty Patent”. The Petty Patent was intended for inventions of short commercial duration but which had a suitably high level of inventiveness, supposedly increasing the inventors return on investment and encouraging greater innovation.
A government review in 1995 suggested that the Petty Patent was not delivering on these goals and recommended a system which “protects incremental inventions that may not be inventive enough to warrant standard patent protection and are not covered by design legislation” [emphasis added].
As a result, the innovation patent system was introduced and intended to stimulate innovation in Australian small to medium business enterprises (SMEs) by: (1) providing Australian businesses with IP rights for their lower level inventions that meant that competitors could not copy them; and (2) to reduce the compliance burden on users of the patent system by providing easier, cheaper and quicker rights for inventions than the rights formerly provided by the petty patent system.
The patenting process can be very overwhelming and quite costly to an inventor who wishes to secure patent protection for their invention. But there are certain steps of the process that should not be neglected because of financial constraints, otherwise your efforts could actually be counterproductive and work against you in the end, not to mention your money will be wasted.
Regularly, we have inventors come to us for assistance with their inventions but start their conversation with “I have a very limited income.” With the economy being as tough as it is for as long as it has been since the economic downturn, increasing numbers of people are dusting off their old invention ideas and working on them in hopes that a new invention will help get them out of debt and to a better place financially. The problem is these inventors are also often the ones that have little disposable income with which to protect their inventions.
An all too typical conversation with inventors with limited funds starts like this: “I need it to cost under $600, because that is all I have to spend.” But the filing fees payable to the USPTO alone are $130 for a provisional patent application (half that much if you qualify as a micro entity) and a minimum of $800 for a non-provisional patent application (again, half that much for micro entities). If you are successful in convincing the patent examiner you deserver a patent the issue fee due to the United States Patent and Trademark Office will be $480, or $240 if you are a micro entity. Without even considering the cost of patent drawings, which should be considered absolutely essential, or any other fees that may come due during the process, it is impossible to obtain a patent for such a little investment even if you represent yourself.
In what can really only be characterized as a stunning development, earlier today Judge Randall Rader of the United States Court of Appeals for the Federal Circuit announced that he is retiring effective June 30, 2014. This announcement comes only weeks after he stepped down as Chief Judge.
On May 23, 2014, then Chief Judge Rader announced that he would step down as Chief Judge of the Federal Circuit on May 30, 2014. At that time Rader also said that he would continue in active service on the Court, although the official announcement said that he will also undertake additional teaching, lecturing and travel. Given Rader’s statement that he would remain on the Court just weeks ago the announcement today is shocking. It is too early to know exactly why Judge Rader has made this decision, as news is just breaking, but the speed with which Rader has gone from Chief Judge, to Circuit Judge to private citizen is staggering.