Over the past few decades, few companies have been so associated with American technological innovation as Apple Inc. of Cupertino, CA. In recent days, however, this personal electronics corporation has encountered some setbacks to their business. Along with further allegations of safety and workers’ pay violations at Apple’s Chinese supplier plants, the digital financial news website Fiscal Insider reported that Samsung has recently surpassed Apple in profits from mobile device sales in late July.
This week, as IPWatchdog returns to its Companies We Follow series, we check in with Apple Inc. to get an idea of what newly developed systems they hope will help them retain their lead in the electronics industry. Many of the recently published documents from the U.S. Patent & Trademark Office, including both patent applications and issued patents, relate to software system improvements that Apple has developed. One patent application for a voice assistant that can analyze contextual data is specifically for mobile device applications. Two other applications are for more general computer systems: one which protects a system of suggesting search result rankings for online shopping based on a person’s social network contacts; another would protect a cleaner user interface for browser windows with multiple open web pages.
Apple is also interested in improving the hardware systems involved in their devices. One patent issued by the USPTO protects a removable hard drive for small form factor desktop computers that helps reduce the overall weight of the entire computer. A final patent application we feature today describes a system of accurately calibrating a mobile device’s magnetometer in response to interference from other electromagnetic fields.
By now most are likely already familiar with the unfortunate reality that the United States Court of Appeals for the Federal Circuit issued a non-decision in CLS Bank v. Alice Corporation on Friday, May 10, 2013. There were 10 judges who heard the case en banc, with 7 of the 10 finding that the method claims and computer-readable medium claims were not patent eligible. While there may be reasonable room for a difference of opinion relative to those claims, it was the system claims that specifically and clearly recited tangible structure that has thrown the patent law of software into such disarray. 5 Judges would have found that the systems claims were patent ineligible (Judges Lourie, Dyk, Prost, Reyna and Wallach), and 5 Judges would have found the systems claims were patentable subject matter (Chief Judge Rader, Judges Newman, Moore, Linn and O’Malley). For more see Federal Circuit Nightmare in CLS Bank and 5 CAFC Judges Say Computer Patentable, Not Software and Did the CAFC Ignore the Supreme Court in CLS Bank?
Today, however, I want to write about one of the more bizarre passages I have ever seen in any decision, and then pose an almost unthinkable question: Is IBM’s Watson still patent eligible in the view of Judges Lourie, Dyk, Prost, Reyna and Wallach?
First, let’s start with the passage. Judge Lourie, who was joined by Judges Dyk, Prost, Reyna and Wallach, actually 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.”
UPDATED Friday, March 29, 2013 at 3:30pm ET (see comment #1)
International Business Machines Corporation (IBM) is an international business technology consultant and developer headquartered in Armonk, New York. As the top patenting company for the last 20 years, every week you can expect to see at patents on computer systems and other technologies where IBM is the assignee. This past week IBM received over 120 patents, which is a fairly typical week for the company. Below are a few of the patents and patent applications that caught our attention for one reason or another.
Task management has increasingly become a digital job as it becomes more productive to employ remotely isolated workers on the same job or project. Media and data such as job instructions, video or even computer code for computer-controlled machines can keep business activities going without requiring all workers to be physically present.
IBM looks to improve the access to knowledge for task management applications by creating a system for identifying a task creator and likely task participants. Once these participants are identified, the computer system works to selectively delegate tasks and information to the members that the system deems most likely to participate in a specific activity.
EDITORIAL NOTE: What follows are the prepared remarks of David Kappos, Under Secretary of of Commerce for Intellectual Property and Director of the United States Patent and Trademark Office, delivered at the Center for American Progress in Washington, DC, on November 20, 2012. This is reprinted here with permission.
Thank you, Winnie, for that kind introduction. Good morning, everyone. It’s great to be here at the Center for American Progress. I’m pleased to be able to talk about intellectual property and the role that intellectual property rights play in enabling innovative goods and services to come to market. And specifically, I’m going to focus my remarks on software patents and the so-called smartphone “patent wars,” which have become front page news in the last year or so.
It is increasingly clear that intellectual property, or IP, is a key driver of economic growth, exports, and job creation. IP rights are the global currency for creating value for products and services, for all innovators, in all markets. And the protection provided by patents is critical to the innovation ecosystem. In fact, last spring, the U.S. Commerce Department released a report that found IP-intensive industries support at least 40 million jobs and contributes more than $5 trillion to our economy, accounting for 35 percent of America’s gross domestic product. So it is in this context that we are seeing multi-billion dollar acquisitions of patent portfolios and a number of high profile patent lawsuits, involving some of the most innovative companies on the planet, who are producing some of the most popular technologies ever created.
It should be remembered that the USPTO and courts traditionally granted signal claims, and Nuijten was an innovative decision and arguably an outlier that deserved more challenge than it received. The pre-Nuitjen position and the desirability of allowing signal claims or claims to computer program products without specifying non-transitory media embodiment is recorded in a paper by Stephen G.Kunin et al., Patent Eligibility of Signal Claims, Journal of the Patent and Trademark Office Society, 87, No. 12, 907 – 1002 (December 2005). Many positive reasons for allowance of such claims are described in that paper, and they are traced back in history to O’Reilly v Morse.
The good news is that signal claims and broad claims to computer program products are obtainable in Europe. However, such claims are only grantable if the necessary language is present in the European application or the International application as filed, otherwise objection will arise under a.123(2) EPC. Further, the EPO rules on priority are strict, and if the necessary language is missing from the US provisional or utility application from which priority is claimed, then signal or unrestricted computer program product claims will not benefit from priority. It is at the time of US filing that the necessary language must be introduced, and in particular entry into the European regional phase is too late.
Seven rent-to-own companies and a software design firm have agreed to settle Federal Trade Commission charges that they spied on consumers using computers that consumers rented from them, capturing screenshots of confidential and personal information, logging their computer keystrokes, and in some cases taking webcam pictures of people in their homes, all without notice to, or consent from, the consumers.
The software design firm collected the data that enabled rent-to-own stores to track the location of rented computers without consumers’ knowledge according to the FTC complaint. The settlements bar the companies from any further illegal spying, from activating location-tracking software without the consent of computer renters and notice to computer users, and from deceptively collecting and disclosing information about consumers.
Means-plus-function claiming has been disfavored (by and large) since at least 1994 when the Federal Circuit handed down its decision in In re Donaldson, where the Federal Circuit sitting en banc explained:
If one employs means plus function language in a claim, one must set forth in the specification an adequate disclosure showing what is meant by that language. If an applicant fails to set forth an adequate disclosure, the applicant has in effect failed to particularly point out and distinctly claim the invention as required by the second paragraph of section 112.
In other words, if it is not in the specification then the fact that it may be a “means” to accomplish the function does not save you. Means that accomplish the recited function that are not within the specification of a patent application are not captured by the claims.
Means-plus-function claiming is not very popular in many technical disciplines because of how narrowly limited the claims are to what is specifically disclosed. Over the years, however, mean-plus-function claiming has continued with various levels of popularity for those who deal with computer-implemented methods (i.e., software). After all, software is just a series of steps directing a machine (typically a computer) to perform certain processes to accomplish a result. Thus, “means for” doing something remained a rather descriptive way, at least generally speaking.
Typically blog roll links are not helpful to a website's rank. To give some additional "link love" to those we think you might be interested in reading we have moved our blog roll and links to a dedicated page. Go to IPWatchdog Blog Roll & Links.