http://www.ipwatchdog.com Patents, Software Patents, Patent Applications & Patent Law Sun, 19 May 2013 12:30:46 +0000 en-US hourly 1 http://wordpress.org/?v=3.5.1 http://www.ipwatchdog.com/2013/05/14/the-alice-in-wonderland-en-banc-decision-by-the-federal-circuit-in-cls-bank-v-alice-corp/id=40344/ http://www.ipwatchdog.com/2013/05/14/the-alice-in-wonderland-en-banc-decision-by-the-federal-circuit-in-cls-bank-v-alice-corp/id=40344/#comments Tue, 14 May 2013 19:16:13 +0000 John Kong http://www.ipwatchdog.com/?p=40344 Related posts:

1. 5 CAFC Judges Say Computers Patentable, Not SoftwarePerpetuating the myth that the computer is where the magic lies does nothing other than ignore reality. Software is what makes everything happen. or crying out loud, software drives a multitude of machines! Maybe the auto mechanic for Judges Judges Lourie, Dyk, Prost, Reyna and Wallach should remove the software from their cars. Perhaps as they are stranded and forced to walk to work they might have time to contemplate the world they seem to want to force upon the rest of us; a world hat clings to mechanical machines completely non-reliant on software. That will be great for the...
2. Federal Circuit Nightmare in CLS Bank v. Alice Corp.The only thing we know is this — the Federal Circuit issued an extraordinarily brief per curiam decision, which stated: "Upon consideration en banc, a majority of the court affirms the district court’s holding that the asserted method and computer-readable media claims are not directed to eligible subject matter under 35 U.S.C. § 101. An equally divided court affirms the district court’s holding that the asserted system claims are not directed to eligible subject matter under that statute." Thus, the asserted claims are not patent eligible....
3. Is IBM’s Watson Still Patent Eligible?Watson? It is an artificially intelligent computer system that is capable of answering questions presented in natural language. It is, in essence, the modern day equivalent to the all knowing Star Trek computer. It is flat out ridiculous to be asking whether the Star Trek omnipotent computer could be patent eligible, that that is where we find ourselves because what makes the computer unique is the software that makes it possible for Watson to perform 80 trillion operations per second. But Federal Circuit Judges say that mere fact that software is fast doesn't make it patent eligible unless there is...

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1. IPWatchdog.com Chosen as one of the ABA Journal’s Top 100I am pleased to announce that the Editors of the ABA Journal yesterday announced they have selected IPWatchdog.com as one of the top 100 best law blogs by lawyers, for lawyers. Now readers are being asked to vote on their favorites in each of the 4th Annual Blawg 100’s 12 categories. IPWatchdog.com is in the "IP Law" category. To vote, please visit The 2010 ABA Journal Blawg 100....
2. A Special Thank You to Our Guest Contributors!Over the years IPWatchdog.com has continued to try and add additional perspectives from a wide variety of guest contributors, ranging from well respected practicing attorneys and agents to high profile academics to inventors and pro-patent lobbyists. It is hard to imagine providing such depth of analysis on such an array of topics without having truly wonderful guest authors. So we take this moment to say a very special thank you and to shine the spotlight on them. Each deserve to share in any recognition of IPWatchdog.com. Without further ado, here are the guest contributors in alphabetical order, along with their...
3. An IPWatchdog Year in Review: Looking Back at 2012Although we have not been officially notified by the ABA, the vote totals are now viewable on the ABA Journal Blawg 100 page and it seems that we have been voted the top IP law blog for 2012! We have now been honored as one of the top 100 legal blogs by the American Bar Association for four years in a row, and the top IP law blog in 2010 and again in 2012. In terms of website traffic, during 2012 we had our best year ever. For 2012 we averaged 82,632 unique visitors per month (compared with an average...

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1. IPWatchdog 2010: ABA Blawg Tops + Over 2 Million VisitsI am pleased to announce that IPWatchdog.com was selected by the readers of the ABA Journal as their favorite IP Law blog for 2010 ABA. I am also pleased to announce that for 2010 we had over 2,000,000 visits, delivered nearly 11.8 million pages, our homepage was viewed 3.06 million times and we averaged over 67,000 unique monthly visitors! Thanks to all our readers for coming back day after day, and thanks to all of our Guest Contributors!...
2. A Special Thank You to Our Guest Contributors!Over the years IPWatchdog.com has continued to try and add additional perspectives from a wide variety of guest contributors, ranging from well respected practicing attorneys and agents to high profile academics to inventors and pro-patent lobbyists. It is hard to imagine providing such depth of analysis on such an array of topics without having truly wonderful guest authors. So we take this moment to say a very special thank you and to shine the spotlight on them. Each deserve to share in any recognition of IPWatchdog.com. Without further ado, here are the guest contributors in alphabetical order, along with their...
3. Update, Thank You + Please Vote IPWatchdogHello everyone. I am writing today to provide an update to our readers on several matters (i.e., Renee's surgery and our server issues), and to make a plea for votes in the ABA Blawg 100 contest — IPWatchdog is in the IP Law category. So please vote for IPWatchdog and if you could help spread the word to family, friends and co-workers and get them to vote that would be greatly appreciated....

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1. AIPLA’s Q. Todd Dickinson to be Inducted in IP Hall of FameAIPLA is proud to announce that Executive Director Q. Todd Dickinson will be inducted into the IP Hall of Fame for 2012. The IP Hall of Fame was created in 2006 by Intellectual Asset Management magazine to identify and honor individuals who have helped to establish intellectual property as one of the key business assets of the 21st century....
2. Federal Circuit Bar Association Honors Chief Judge MichelOn Tuesday, October 19, 2010, I attended the retirement dinner and reception of the Honorable Chief Judge Paul R. Michel of the U.S. Court of Appeals for the Federal Circuit at the Mandarin Oriental hotel in Washington DC. As fate would have it, I got lost on my way to the party. Even though I thought I gave myself plenty of time to get there, I arrived right before dinner. After dinner the celebration began with a video featuring numerous speakers and a toast. What follows is a recap of the evening's events, as well as some quotes on the...
3. AIPLA Honors Judge Newman with Excellence AwardJudge Richard Linn: "It is a pleasure for me to have the opportunity to honor my colleague and my dear friend, Judge Pauline Newman. To say that Judge Newman is a woman of accomplishment is a serious understatement. There is no glass ceiling she hasn't broken. When I asked her what she thought about Justice Sotomayor's nomination to the Supreme Court, she said with a twinkle in her eye, "That's a nice start." She has accomplished more than most men could ever hope to accomplish, and she did so for the most part at a time when our country and...

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1. JUST IN: Federal Circuit Denies Vacatur in USPTO Rules CaseEarlier today the Chief Judge Paul Michel of the United States Court of Appeals for the Federal Circuit issued an Order declaring the pending appeal of Dr. Tafas and GlaxoSmithKline moot due to the fact that USPTO Director David Kappos has withdrawn the rules. The Federal Circuit per Judge Michel, however, denied the motion of [...]...
2. Peer To Patent Sequel: USPTO To Begin New Pilot ProgramThe initial Peer To Patent pilot program, which began in 2007, opened the patent examination process to public participation in the belief that such participation would accelerate the examination process and improve the quality of patents. Yesterday the United States Patent and Trademark Office announced a sequel to the initial pilot program and will begin a second Peer To Patent pilot program, again in coordination with New York Law School’s Center for Patent Innovations (CPI). This new Peer To Patent program will run for a one year term and will commence on October 25, 2010. This second Peer To Patent...
3. District Court Rules ACLU Gene Patent Challenge May ProceedIn perhaps the worst opinion I have ever read from any federal court, the United States District Court for the Southern District of New York ruled earlier today that the ACLU challenge against the Myriad Genetics patents and the United States Patent and Trademark Office for issuing patents can proceed. Procedurally the posture was a [...]...

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1. Reporting Live from Day Two at AIPLA Annual MeetingToday is day two of the AIPLA conference at the Marriot Wardman Park hotel in Washington, DC. There are numerous people attending the conference this year, and topics of discussion and presentation are ranging from intellectual property procurement and enforcement in East Asia,to ethics, to multi-defendent patent litigation strategies, to best practices to mitigate trade secret litigation risks that arise from employee mobility and commercial dealings....
2. The Other BBB: Business Blogging BasicsBy now you may have noticed that most successful businesses have a blog. This is no coincidence. Blogging can help you gain customers, drive traffic to your website and raise your rank in the search engine result pages. Here is a list of business blogging do’s to help you get started with your own blog....
3. AIPLA Honors Chief Judge Paul Michel with Board of Directors’ Excellence AwardThe Executive Director of the AIPLA, Q. Todd Dickinson, then took the stage to introduce a video that was dedicated to this year's AIPLA Board of Directors' Excellence Award. This year the award was given to the Honorable Chief Justice Paul R. Michel, who retired earlier this year. Dickinson explained the award was being given to him "in recognition of his extraordinary leadership and service to the United States Government and in particular his leadership of the Court of Appeals for the Federal Circuit as Chief Judge while having a distinguished career marked by intellect, integrity, and an unwavering commitment...

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1. Looking Ahead to TiVo v. Dish at the Federal CircuitPutting aside my disdain for the Supreme Court stepping into patent matters of any kind, what does seem clear is that the Supreme Court wants to pretend that patents are the same as any other area of law and the same processes and procedures pertaining to other areas of law apply equally to the patent world. See eBay v. MercExchange and Zurko v. Dickinson for but two examples. The Supreme Court also loves case by case approaches without hard and fast rules that can actually be objectively and even-handedly applied. See KSR v. Teleflex and Bilski v. Kappos for but...
2. TiVo Stock Surges Over 50% on Patent Decision in EchoStar CaseTiVo, Inc. (NASDAQ: TIVO), owner of U.S. Patent 6,233,389, titled “Multimedia Time Warping System,” was a big winner today at the United States Court of Appeals for the Federal Circuit when the CAFC handed down its decision in Tivo, Inc. v. EchoStar Corp. A majority of the 3 judge panel hearing the case agreed with the district court and ratified the contempt order against EchoStar (NASDAQ: SATS) and Dish Network (NASDAQ: DISH). On news of the Federal Circuit ruling TiVo stock immediately surged ahead well over $5, up over 50%. Within less than 1 hour TiVo stock when from trading...
3. Federal Circuit Hears TiVo v. Dish Oral Arguments En BancOn Tuesday, November 9, 2010, the United States Court of Appeals for the Federal Circuit heard oral arguments in TiVo, Inc. v. EchoStar Corp. The case pits TiVo versus Dish, and any ruling from the Federal Circuit will necessarily define the extent to which a district court judge can rely on contempt proceedings to enforce an injunction rather than simply order a full blown new trial. In process the en banc oral argument in this case at the Federal Circuit did not substantially differ from the oral argument held at the Supreme Court the day earlier in the Costco copyright...

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1. News, Notes & AnnouncementsIn this edition of News, Notes & Announcements, happy birthday wishes to IPWatchdog.com for celebrating our 11th year online and a heartfelt thank you to all our readers. Additionally, the TiVo patent used to sue Echostar, the litigation at question in the en banc review at the Federal Circuit, survives reexamination at the USPTO. Professor Thomas Field (UNH) publishes the 21st edition of his IP casebook, which is now online in royalty free version; the USPTO is hosting the National Trademark Expo this Friday and Saturday on campus in Alexandria; the USPTO is hosting the 15th Annual Independent Inventors Conference...
2. AIPLA Honors Chief Judge Paul Michel with Board of Directors’ Excellence AwardThe Executive Director of the AIPLA, Q. Todd Dickinson, then took the stage to introduce a video that was dedicated to this year's AIPLA Board of Directors' Excellence Award. This year the award was given to the Honorable Chief Justice Paul R. Michel, who retired earlier this year. Dickinson explained the award was being given to him "in recognition of his extraordinary leadership and service to the United States Government and in particular his leadership of the Court of Appeals for the Federal Circuit as Chief Judge while having a distinguished career marked by intellect, integrity, and an unwavering commitment...
3. AIPLA Meeting: David Kappos Q & A with Q. Todd DickinsonOne question in particular that stood out to me was the question about hiring at the USPTO. Director Kappos was asked to give us an idea on what the plans are for hiring examiners to the USPTO. Kappos started with "We want YOU to come work for the USPTO." Laughter abounded. Dickinson quickly picked up on this saying: "Uncle Sam wants YOU!" More laughter all around. Kappos went on to explain that they are seeking experienced, well seasoned patent attorneys to come work for the USPTO. They want to hire another 1000 examiners. Dickinson then joked "Ah, so you weren't...

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1. TiVo Stock Surges Over 50% on Patent Decision in EchoStar CaseTiVo, Inc. (NASDAQ: TIVO), owner of U.S. Patent 6,233,389, titled “Multimedia Time Warping System,” was a big winner today at the United States Court of Appeals for the Federal Circuit when the CAFC handed down its decision in Tivo, Inc. v. EchoStar Corp. A majority of the 3 judge panel hearing the case agreed with the district court and ratified the contempt order against EchoStar (NASDAQ: SATS) and Dish Network (NASDAQ: DISH). On news of the Federal Circuit ruling TiVo stock immediately surged ahead well over $5, up over 50%. Within less than 1 hour TiVo stock when from trading...
2. TiVo vs. Dish at the Federal Circuit: Examining TiVo’s BriefSeveral weeks ago TiVo filed its brief in the matter of Tivo, Inc. v. EchoStar Corp., which will be heard en banc by the United States Court of Appeals for the Federal Circuit on Tuesday, November 9, 2010. The dispute between TiVo and EchoStar dates back to 2004 when TiVo sued EchoStar in the United [...]...
3. Federal Circuit Hears TiVo v. Dish Oral Arguments En BancOn Tuesday, November 9, 2010, the United States Court of Appeals for the Federal Circuit heard oral arguments in TiVo, Inc. v. EchoStar Corp. The case pits TiVo versus Dish, and any ruling from the Federal Circuit will necessarily define the extent to which a district court judge can rely on contempt proceedings to enforce an injunction rather than simply order a full blown new trial. In process the en banc oral argument in this case at the Federal Circuit did not substantially differ from the oral argument held at the Supreme Court the day earlier in the Costco copyright...

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1. Federal Circuit Grants Writ of Mandamus in False Marking CaseSeeking a writ of mandamus seems as if it is becoming a more popular avenue to pursue than it once might have been. A writ of mandamus essentially seeks an order from a higher court to direct a lower court to follow the law. They are extraordinary remedies because they come well before the case is over, which means that an ordinary appeal cannot be taken at that point; appeals are only typically allowed for final adjudications. Notwithstanding the extraordinary nature of a mandamus request, earlier today the Federal Circuit issued a writ of mandamus requiring a district court to...
2. Federal Circuit Orders Transfers Verizon out of Eastern TexasWith respect to Verizon et al, the petitioners moved to transfer the case to the Northern District of Texas, Dallas Division, which is approximately 150 miles away from the Eastern District of Texas, Marshall Division. The motion was initially denied by a Magistrate Judge. In his decision, the Magistrate agreed with the petitioners that the Northern District of Texas, Dallas Division would likely be more convenient for the parties and the witnesses, and he even noted that a number of party witnesses resided within 100 miles of Dallas and no witness resided within 100 miles of Marshall, Texas. Let's let...
3. Supreme Court Refuses Microsoft Appeal in Alcatel-Lucent CaseEarlier today the United States Supreme Court denied Microsoft Corporation's petition for writ of certiorari in Lucent Technologies, Inc. v. Gateway, Inc. et al, with Microsoft being among the "et al." While the Federal Circuit affirmed the validity and infringement aspects of the underlying decision of the United States Federal District Court for the District of Southern California, the Court vacated and remanded the damages portion to the district court for further proceedings because the damages calculation lacked sufficient evidentiary support. Despite the Federal Circuit vacating and remanding of the damages award of $357.69 million Microsoft appealed to the Supreme...

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1. Through the Fuzzy Bilski Looking Glass: The Meaning of Patent-Eligible under 35 U.S.C. § 101So now what does SCOTUS’ ruling in Bilski “really” mean to us “mere mortals”? First, we’ve got two “wild cards” to deal with as noted above: (1) Stevens has retired; and (2) what does Scalia’s refusal to join Parts II B-2 and C-2 of Kennedy’s opinion for the Court signify. Some aspects of “wild card” #2 are dealt with above, but as also noted, there are still some aspects which are unclear or at least ambiguous as to how this refusal by Scalia should be viewed. This lack of clarity/ambiguity will require some sorting out by the Federal Circuit, which...
2. Dissecting Bilski: The Meaning of the Supreme Patent DecisionWho knows what goes through the minds of anyone, let alone a cloistered Justice of the United States Supreme Court. What we do know, however, is that 5 Justices, namely Justices Kennedy, Roberts, Thomas, Alito and Scalia all agreed that business methods are patentable subject matter. All 9 Justices agreed that the Federal Circuit misread previous Supreme Court decisions when they mandated that the machine or transformation test be the only test for determining whether a process is patentable subject matter. All 9 Justices agreed that the Bilski application was properly rejected, with the majority agreeing that it was properly...
3. Jumping Down the Rabbit Hole: Federal Circuit Ducks the Patent-Eligibility Issue in King PharmaceuticalsWith an opportunity to render some order out of the Bilski chaos, the Federal Circuit instead completely ducked the patent-eligibility issue clearly presented in King Pharmaceuticals. The Federal Circuit then created (and I do mean “created”) the new “an anticipated method claim doesn’t become patentable if it simply includes an informing step about an inherent property of that method” doctrine. With this new “doctrine,” we have now “jumped down the rabbit hole” into a surreal “Bilski in Patentland” world....

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1. Monday June 21, Another No Bilski Day for the SupremesWhat makes this "no Bilski day" at the Supreme Court particularly interesting and noteworthy is the fact that the Supreme Court did issue a terrorism and First Amendment decision in Holder v. Humanitarian Law Project today, a decision that many if not most would have thought to be harder and more important than the Bilski case. Given that the Supreme Court has issued a decision in what society as a whole will undoubtedly view as a far more important decision than Bilski, and since Bilski has been on the Supreme Court docket since oral arguments back on November 9, 2009,...
2. And the Wait Continues… Bilski… Wait Continues… Bilski…From the standpoint of appropriate judicial process within our system of government the Bilski case is an easy one. If the Court were predisposed to do what they are supposed to do, a stretch I know, they would exercise judicial restraint and actually only decide the case before them. At this point unless the case is held over because no decision can be reached it seems a virtual certainty that the Supreme Court will say more than they should, which will lead them to create problems that they never envisioned. Saying too much and not appreciating the unforeseen (at least...
3. Bilski Watch: Another No-Bilski Day at the Supreme CourtIn what is turning into a broken record, the Supreme Court once again did not issue a decision in Bilski v. Kappos. Perhaps we should be thankful that the Supreme Court is taking so long and treating it as the overwhelmingly important case we know it to be. On the other hand, perhaps we should be afraid that the Supreme Court is giving it so much scrutiny. Let's face it, the Supreme Court has not done much over the last decade to evidence anything other than glib familiarity and vague understanding of patent law. I sure hope they break with...

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1. Decision to Deceive Mismarking Products with Bogus Patent Numbers Can Cost YouFalse marking is a statute in the Patent Act that imposes civil liability for intentionally marking a product as patented when it isn’t. We’ve all come across a product marked with the phrase, “This product is covered by U.S. Patent No. (fill in the blank).” Such marking puts the world on notice that the patent [...]...
2. A Fanciful False Marking Fiction By a Cottage IndustrialistThe day starts out quiet enough. I wake up and scoop my contacts out of the Clear Care® contact lens solution they’re swimming in. Blinking rapidly to settle my contacts, I focus on some tiny numbers printed on the contact solution box. Patent numbers. I’ve been using the solution for years and wonder how old the patents must be. I do a quick Google search and discover that the patents have expired. Strange that expired patents would be printed on the box... My 3 year old interrupts my thoughts as she walks up to me still rubbing her eyes, complaining...
3. Federal Circuit Grants Writ of Mandamus in False Marking CaseSeeking a writ of mandamus seems as if it is becoming a more popular avenue to pursue than it once might have been. A writ of mandamus essentially seeks an order from a higher court to direct a lower court to follow the law. They are extraordinary remedies because they come well before the case is over, which means that an ordinary appeal cannot be taken at that point; appeals are only typically allowed for final adjudications. Notwithstanding the extraordinary nature of a mandamus request, earlier today the Federal Circuit issued a writ of mandamus requiring a district court to...

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1. The Risk of Sleeping on Your Patent RightsWhile this patent statute of limitations is an extraordinarily long statute of limitations by legal standards there is another very important piece to the puzzle that needs to be appreciated by those who would choose not to pursue infringers; namely the doctrine of laches, which can prevent recovery against a defendant even if infringement is conclusively proven. So those who are patent owners don't usually have to worry too much about the statute of limitations, but they should be mindful of the 6 year limitation period. Now one also needs to be mindful of estoppel, but don't forget laches either....
2. Federal Circuit Again Rules Equivalent Foreseeable in DuramedIn Duramed, the invention claimed in U.S. Pat. No. 5,908,638 (the “’638 patent”) involved a conjugated estrogen pharmaceutical compositions for use in hormone replacement therapies. The critical aspect of the claimed invention was the moisture barrier coating (MBC) which surrounded the composition. Claim 7 (which depended from independent Claim 1) specified that this MBC “comprises ethylcellulose.” During patent prosecution, the examiner rejected both Claims 1 and 7 for obviousness under 35 U.S.C. § 103. As a result of an interview with the examiner, Claim 1 was amended to include the recitation in Claim 7, and in due course, the ‘638...
3. Did the CAFC Miss the Real “Written Description” Issue in Crown Packaging?In my view, both the majority opinion, as well as Judge Dyk’s dissent, miss the real “written description” problem in Crown Packaging which has nothing to do with whether the common patent specification illustrates both solutions to the prior art problem. Instead, it relates to the follow description (see column 1, line 62 to column 2, line 5 of the ‘826 patent) at the end of the sentence stating how the claimed invention solved the problem of using less metal in the can end: “characterized [or “characterised” depending on which version of the ‘826 patent you use] in that, the...

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1. Kappos Talks Patent Reform and Gene Patents at BIO ConventionWhat follows are pieces of Director Kappos' remarks at the session prior to taking questions and answers. While it is probably unfair to call these remarks prepared remarks, it was clear that he referred to his notes as he provided detailed information and statistics. He also seemed to be reading what he said when he spoke about the ACLU case against Myriad Genetics, but who can blame him given the USPTO was a nominal party to the case and it will be appealed to the Federal Circuit. It is also worth mentioning that during the Q&A there were a few...
2. BIO Gearing Up for Big Spring 2010, Headlined by KapposThe Biotechnology Industry Organization (BIO) has just announced that David Kappos, Director of the U.S. Patent and Trademark Office and Under Secretary of Commerce for Intellectual Property, will be a featured speaker at the Intellectual Property Super Session taking place during the 2010 BIO International Convention. The May 3 event, entitled “Leveraging IP to Spur Global Biotechnology Innovation, Investment and Jobs,” will examine the role that intellectual property systems play in attracting biotech investment and how some countries are successfully leveraging their patent policies to foster economic growth....
3. Conflicting Positions on Gene Patents in Obama AdministrationOn Monday evening, November 1, 2010, David Kappos, Undersecretary of Commerce for Intellectual Property and Director of the United States Patent and Trademark Office, told the Dow Jones news service: "The USPTO at the present time is maintaining the status quo. We're continuing with current procedures as they are." This could set up a contentious and public policy battle between the United States Department of Commerce and the United States Department of Justice. This battle of agency titans --- DOJ v. DOC --- comes as a result of the Department of Justice filing an amicus brief in The Association of...

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