The development of alternative fuels to generate electricity for societies around the globe has been a major focus among technology innovators in recent years. By now, everyone is familiar with the doomsday predictions involved with carbon-based fossil fuels, how they’re quickly running out and how they’re causing great harm to our environment.
Deriving energy from the sun has been aggressively, albeit periodically, pursued since at least the 1970s when the U.S. suffered through several gas shortages. But over time gas prices decreased, the technology could not compete with cheap alternatives, so interest waned, although it never thoroughly disappeared. Once again as the environment and climate change has become more of a mainstream issue there is renewed interested in harvesting energy from the sun through the use of photovoltaic (PV) systems. Here at IPWatchdog, we’ve taken a look at some interesting solar energy innovations in the past, but just how close are we to seeing widespread implementation of this technology?
Statistics coming out of the U.S. Energy Information Administration show that solar energy generation has increased dramatically in the course of a few years. Solar collection should continue to grow to about 14 gigawatts by the end of this year, according to this Wall Street Journal article.
Not surprisingly, the decision of the latest Federal Circuit case on software patent eligibility – Accenture Global Services, GMBH v. Guidewire Software, Inc. – could be predicted from the makeup of the CAFC panel. Judge Lourie, joined by Judge Reyna, issued the majority opinion that the system claims were invalid. The Court followed the analysis for determining patent eligibility from CLS Bank,, 717 F.3d 1269 (Fed. Cir. 2013) and affirmed the district court’s finding that the system claims of U.S. Patent No. 7,013,284 (“the ‘284 patent”) were ineligible. Judge Rader dissented.
Accenture appealed the district court’s holding that system claims 1-7 and method claims 8-22 were invalid as not directed to patentable subject matter. Interestingly, Accenture only appealed the ruling on the system claims, thus waiving its appeal on the method claims.
Recently U.S. Patent No. 8,515,829(the ’829 patent) came to my attention. It is a patent issued to Google, which is titled Tax-free gifting. See Google Patents Tax-Free Gifting. The invention is interesting in its own right, but as I reviewed the patent I noticed an interesting figure — Figure 14 really caught my attention. Before proceeding to discuss the importance of Figure 14, allow me to provide some background information about this particular patent.
Generally speaking, the invention relates to a system and related techniques for gifting, and paying for, digital content, including media, such as audio and video. The core of the invention, as suggested by the title, relates to giving someone something tax-free. While the title may suggest the invention is potentially nefarious, or at least aimed at exploiting some tax loophole, that is not the case. The government is not going to be cheated out of collecting taxes. Instead, the invention relates to a method that allows for the giver of the gift to pay for the tax imposed by the jurisdiction where the gift (i.e., gift card) is redeemed.
Indeed, Claim 1 in the ’829 patent specifically includes a limitation specific to the payment of the tax that would otherwise be imposed when the gift is redeemed. Claim 1 recites (emphasis added):
In the United States, attorneys, judges and others have struggled for decades to determine when, if ever, computer programs or software should be eligible for patent protection. In the 1960’s the U.S. Patent Office declared that software could not be patented. Since then, a series of court decisions have rejected that view and established that one may definitely patent software in the U.S., although the exact requirements remain unclear and critics increasingly demand that it should not be patentable.
As a starting point, 35 U.S.C. §101 provides that any new and useful process, machine, manufacture, or composition of matter, or new and useful improvement thereof, is eligible for patent protection, subject to other requirements of the Patent Act (that is, §101 is just the threshold test for patentability). Congress has never stated any limitations to the patentable categories of §101 and case law has only recognized three categories of exceptions – subject matter that may not be patented: laws of nature, physical phenomena and abstract ideas. Computer software is often found to be ineligible on the ground that it comprises abstract ideas, but courts have struggled to provide a precise formula or definition for abstract ideas.
On Tuesday, June 11, 2013, the Patent Trial and Appeals Board issued a ruling in SAP America, Inc. v. Versata Development Group, Inc., which is the result of a Covered Business Method challenge to U.S. Patent No. 6,553,350 filed by SAP on September 16, 2012. The PTAB, per Administrative Patent Judge Michael Tierney, determined that “Versata’s ’350 claims 17, and 26-29 are unpatentable under 35 U.S.C. § 101.” Looking more closely at the ruling, however, makes it clear just how significant this ruling will be. The breadth of the 101 determination is shocking and virtually guarantees that 101 will be used by patent examiners to effectively prevent software patents from issuing altogether.
In a nutshell, the PTAB ignored all the recited tangible computer elements embodied in the claims. Once the specifically articulated and necessary structure is ignored the PTAB then concluded that the claims protect only an abstract idea.
In order for there to be infringement each and every limitation would have to be found in the accused infringing method. So under what authority does the PTAB ignore specifically recited structure? The authority that the PTAB seems to be relying on to ignore claim terms is unclear and not explained in the opinion in any satisfactory way. It does, however, seem that the fact that the invention can be implemented in any type of computer system or processing environment lead the PTAB to treat the method as one that could be performed on a “general purpose computer,” rather than a specific purpose computer. Thus, the PTAB picks up on the arbitrary and erroneous distinctions between general purpose computer and specific purpose computer without as much as a thought and wholly without factual explanation.
In a one-page memorandum to the Patent Examining Corpsdated May 13, 2013, Deputy Commissioner for Patent Examination Policy Drew Hirshfeld had a simple message to respond to the Federal Circuit’s en banc non-decision in CLS Bank v. Alice Corp. The message was this: “there is no change in examination procedure for evaluating subject matter eligibility.” (emphasis in the original)
This is hardly a surprise given that there were 7 different opinions with only one opinion garnering more than 5 out of 10 Judges. The sole opinion that achieved a majority was a mere 58 words in length and did nothing more than explain that given the fracture of the Court all that could reasonably be said was that the decision of the district court had been affirmed by an equally divided Court, which unfortunately rendered the claims all patent ineligible.
In his opinion Chief Judge Rader explained in footnote 1: “though much is published today discussing the proper approach to the patent eligibility inquiry, nothing said today beyond our judgment has the weight of precedent.”
Judge Lourie, who was joined by Judges Dyk, Prost, Reyna and Wallach, in CLS Bank v. Alice Corp. wrote: “At its most basic, a computer is just a calculator capable of performing mental steps faster than a human could. Unless the claims require a computer to perform operations that are not merely accelerated calculations, a computer does not itself confer patent eligibility.”
One way that Judges probe generalized statements is to look for the boundaries to test the logic. If the statement cannot be stretched to apply to even similar scenarios then the logic of the statement is questioned and believed to be faulty and self-serving. So let’s see if the above statement can withstand even modest scrutiny.
The statement above, by any fair reading, says that if the core of the invention is something that a human could do but slower then the subject matter is patent ineligible. So what about robots? Robots are more efficient, stronger and faster than humans, but a human can do what a robot can do. So are robots patentable?
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