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.
Yesterday the Partnership for American Innovation (PAI), which is comprised of Apple, DuPont, Ford, GE, IBM, Microsoft and Pfizer, submitted comments responsive to a request for public information published in the Federal Register back on July 29, 2014, titled Strategy for American Innovation. Some may recall that in February 2011, President Obama released a Strategy for American Innovation, which described the importance of innovation as a driver of U.S. economic growth and prosperity, and the critical role the government plays in supporting the innovation ecosystem. The Office of Science Technology Policy and the National Economic Council are now tasked with updating the document to create a revised Strategy for American Innovation.
One can hope that this group of venerable American innovators will be able to get through to decision makers who will be responsible for charting the new innovation and intellectual property strategy. Notably missing from the PAI, however, is Google, who will certainly have different views.
Google is known to be one of the primary advocates of watering down, if not outright destroying, the U.S. patent system. This is interesting because Google is a top 10 patenting company according to data from the United States Patent and Trademark Office for 2013. They have also spend tens of billions of dollars acquiring patent portfolios that now due to their lobbying efforts are practically worthless. Regardless of Google’s schizophrenic approach to patents, the arm of Google that seems to loathe patents and the U.S. patent system has particular influence in Washington, DC. Both current and former Google executives are known to have the ear of the White House, which is largely to blame for the substantial anti-patent sentiment flowing from the White House. Unfortunately, all of this suggests that whatever the new strategy for innovation will be it will be one that incorporates significant anti-patent positions support by Google.
We’re dedicated to providing in-depth analysis of innovations coming from the top developers of consumer electronics in IPWatchdog’s Companies We Follow series, and Apple is one corporation we return to again and again. Apple often makes waves in the media for its imaginative inventions expressed in patent applications filed with the U.S. Patent and Trademark Office. Today, we’ve dug a little deeper to find other patent applications and recently issued patents which may be of great interest to our readers.
As always, we start with a close look at one featured patent application, and we were intrigued by one technology designed to encourage group completion of fitness activities. This lifestyle companion system can also suggest fitness activities to users based on personal interviews conducted by the system. Other inventions directed at personalized services, including a method of creating avatars reflecting a user’s current emotional state, are also described in a series of patent applications discussed in today’s column.
The intriguing software and hardware innovations of this technology giant makes Apple a fun corporation to profile for our Companies We Follow series. We’ve picked out the most interesting patent applications and issued patents published by the USPTO and assigned to this California-based corporation. These inventions run the gamut from digital media systems to hardware improvements for handheld mobile devices.
We begin our look at Apple today by taking an in-depth look at our featured patent application, which describes smarter methods of building playlists for digital content, like songs. This system can dynamically update playlists based on a user’s changing taste or if another user with a compatible device walks into the room. We also picked up on a few other patent applications featuring revolutionary technologies, including one microphone headset component that enables voice processing by sending data signals through an owner’s bones and body tissues.
While design patents have been around as long as utility patents, they have long been neglected as a source of potential value. But that is changing.
In a shifting tide that began five years ago, courts have begun favoring the plaintiff in design patent lawsuits by simplifying the standard for proving infringement on the ornamental features of a product.
The impact of the court’s shift in the infringement analysis was evident in December 2013, when a jury in San Jose, California, awarded $290 million to Apple Inc. The jurors heavily tilted toward the iPhone maker in its claims for damages against Samsung Electronics Co. Ltd., which had earlier been found to infringe on iPhone design features, such as using fingers to pinch and zoom on the screen.
Apple’s victory was hard won. The latest award was connected to a lawsuit that began two years earlier and had resulted in damages of $1 billion. That was reduced to nearly $640 million, with the remaining amount being litigated a second time.
Spherix Incorporated (NASDAQ: SPEX), a Tysons Corner, Virginia intellectual property monetization company, recently announced that it has entered into a series of agreements with Rockstar Consortium (US) LP in which Spherix Incorporated acquired over 100 patents and patent applications. The newly acquired patents cover among other things, numerous aspects of access, switching, routing, optical and voice communication network devices.
In addition to the 100 patents/application acquired will complement the Rockstar patents previously acquired by Spherix and will further support Rockstar’s current licensing efforts. Rockstar will also share usage information with Spherix for the transferred patents, and will assist Spherix in working with the patents’ inventors, to assist Spherix’s commercialization efforts.
When the Administration invoked its authority to over-rule the International Trade Commission’s (ITC) order against the importation of certain Apple products, there were discussions about whether that was the right move. But while those discussions were going on, another very different scheme was brewing. Some saw an opportunity to twist the story in furtherance of their agenda of undermining patent protection. To that end, they claim that this decision concerning a particular tool for patent enforcement in the IT sector is the same as denying basic elements of patents in the pharmaceutical and biotech sectors. It is not and undermining innovation in health care is bad for patients.
An order from the ITC is one of the tools in a patent owner’s toolbox. The ITC is a U.S. Government agency. It conducts investigations and if it concludes a product is infringing, it can issue an order that prevents that product from being imported. However, the President can veto that order, and in August he did just that, through his designee U.S. Trade Representative Michael Froman.
Patents are issued to protect the investment in new inventions. Innovators can spend years and billions of dollars in research before they come up with a breakthrough that can help solve some of the world’s most challenging problems. Patent protection gives those innovators a chance to recoup that investment before copycat versions flood the market.
This week on IPWatchdog’s Companies We Follow series, we’re taking a close look at both of these manufacturers, starting with Apple. We’ve compiled a great assortment of patent applications and issued patents from the U.S. Patent and Trademark Office to give our readers an idea of Apple’s recent developments in the mobile device world.
Today’s featured patent application describes a system of collecting movement data from mobile devices so as to better compile real-time traffic data for mobile users. This data collection would not interfere with normal use and provides a vast improvement on current methods of providing traffic data. We’ve also noticed a few other patent applications detailing mapping application improvements as well as a method for setting quiet hours on a device to prevent notification sounds at inopportune moments.
Tech sector giants have been crying and moaning about how the patent system has run amok and needs to be scaled back, and continually beg for patent reform that would gut the patent system and weaken patent rights. Immediately after successfully lobbying for the America Invents Act (AIA), they are back at it again supporting new legislation aimed at making it more difficult to enforce patent rights pending in Congress. If they prevail with the passage of the Innovation Act, they will be back at it again no doubt. The longer term goal is to strip the International Trade Commission of its patent jurisdiction, which would make it impossible to stop the importation of infringing goods prior to entering the country. See Will the ITC Lose Its Patent Jurisdiction and Are Some Patent Holders More Equal Than Others?
The grumbling of the tech giants is increasingly being picked up by patent abolitionists who say “see, even Microsoft thinks there should be no patents,” which only adds to the hysteria. Of course, Microsoft is one of the top patenting companies year after year and they aggressively pursue software patens themselves. So while some of Microsoft’s public statements suggest that they do not like software patents, they aggressively seek them and then aggressively pursue licensing strategies. So it seems that Microsoft may talk a good game about software patents being undesirable and a real scourge, but when push comes to shove they will get as many patents as they can. Quite curious if you ask me!
So why do the tech giants want to make it hard for small businesses and individuals to get patents? Do you remember when “Wang” was synonymous with “computer,” or at least “word processor”? Perhaps not, but once upon a time it was indeed. The story of Wang is the story of technology companies generally speaking. What has always been true is that technology companies that reach the top are only passing through on their way down; to be replaced by smaller, leaner companies that pursue appropriate strategies and have solid and expandable innovations in demand.
Even mighty Microsoft couldn’t maintain their monopoly, and only the foolish would anticipate Google, Facebook and other tech giants to be on top indefinitely. That isn’t how the tech sector works, or is intended to work. But if a vibrant, robust and strong patent system is not there for start-ups today they will never become the giant, innovation shifting, growth companies of the future. That would be terrible for the economy, lead to stagnant innovation and guarantee that slothful, giant companies that have lost the ability to innovate would remain dominant rather than going the way of the dinosaur.
Apple Inc. of Cupertino, CA, is synonymous with consumer devices, and it currently holds a great market position within the electronic device industry thanks to two incredibly popular product lines, the iPhone and the iPad. Recently, Apple announced the the development of the iPad Air, an electronic tablet that some feel is a harbinger of the development of an iPad Pro version for business applications. Apple is also a well-known influencer in the music industry, thanks to its development of audio recording software. Many industry speculators expect Apple to come out with a 65-inch ultra high-definition television setthat incorporates wireless connectivity with other device.
This week in IPWatchdog’s Companies We Follow series, we’re going back to California to highlight some of the more interesting patent applications and issued patents assigned to Apple from the U.S. Patent and Trademark Office. As always, Apple has plenty in play here, and it’s easy to see the corporation’s focus on its line of handheld devices, including tablets and smartphones.
Our featured patent application today will be music to the ears of many iPhone owners by keeping that device silent at important times. This application would protect a system of designating parameters that would prevent a message notification to be forwarded to a device owner, such as sleep hours or if the phone is in a designated meeting room. Other patent applications discuss a construction method for iPads that better prevents light leakage, a task progress indicator that can convey rich details about a task as well as a method of embedding memorabilia from an author’s book signing into an electronic book file.