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.
If you’re trying to draft a patent application for a computer-related invention, you’re basically left in a mess of opinions that the Federal Circuit refers to as CLS Bank Int’l v. Alice Corp. The decision, described by Judge Rader as a failure of his institution, left us wanting for just a tad –by a tad I actually mean a ton– more predictability. For now, we can only try to parse out why the opinions differed, take cues from our historical backdrop, and revise our prosecution strategy accordingly.
“A lot of times when we talk about patent eligibility we really need to know what the claims look like, so I thought we could spend four or five hours discussing this claim. Oh not enough time,” says Bruce Sunstein, founder of Sunstein, Kann, Murphy, and Timbers LLP at the 2013 AIPLA Annual Meeting. Fair point, Sunstein. So here’s the gist of CLS Bank. We have a computer readable medium claim in a format we’re accustomed to and that seems to be perfectly acceptable— program code for this program code for that. There are system claims that also would seem completely okay. Finally, there’s a method claim, which notably doesn’t include the word “computer.” Unfortunately for us, seeming completely okay was clearly not the test for patent eligibility. This was an en banc decision. The 10 available votes came out as follows:
Seven judges say method claims are not patent eligible.
Three judges say method claims are patent eligible.
Five judges say systems claims are not patent eligible.
Five judges say systems claims are patent eligible.
Judge Lourie writing with Dyk, Prost, Reyna, and Wallach says none of the claims are patent eligible. They reject the method claims for being too abstract. Then they say the storage and systems claims are just method claims in disguise, and so are also not patent eligible.
Ten years ago if you said that patent eligibility would become one of the most important, hotly debated issues in the patent field most in the industry probably would have thought you simply didn’t know what you were talking about. Five years ago some saw the issues percolating, but still many in the trenches with their day-to-day practice life would likely still have raise a cautious eyebrow and questioned why you thought even the Supreme Court might turn its back on a solid generation of well established patent law. The tone was perhaps cautious, but most couldn’t imagine that the Supreme Court and the Federal Circuit would cease their expansive view of patent eligibility.
Oh how times change!
Today, after several years of substantial turmoil, patent eligibility in a variety of economically significant technologies is extremely uncertain, including software, natural products, medical diagnostics and personalized medicine. It is with great irony that one of the few things we know with any degree of certainty is that business methods are patent eligible. We likewise know that at least some cDNA is patent eligible, except that man-made cDNA that happens to be identical to what occurs in nature. Of course, that raises more questions than it answers.
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):
Recently we published a five-part series that debunked many prevalent myths about patent trolls. See A Fractured Fairy Tale: Separating Fact and Fiction on Patent Trolls, written by Steve Moore of Kelley Drye. While a bit long, it should be considered mandatory reading if you want to understand the underlying facts instead of just buying into the hype and hyperbole associated with the so-called “patent troll problem.” Similarly, if you want to get a good, non-biased view of patent litigation in the United States you absolutely have to read the recent report of the Government Accountability Office, which is an independent, nonpartisan agency that works for Congress.
Moore, with co-authors Marvin Wachs and Timothy Moore, concludes that when you really look at the facts and underlying dynamics of patents and patent litigation, there really isn’t a problem at all. The GAO report released on August 22, 2013 confirms the extensive research by Moore. The GAO report explains that the number of patent litigations only slightly fluctuated between 200o and 2010, with a one-third increase in 2011, which the report attributed to changes to patent laws ushered in by the America Invents Act and not as the result of any problematic increase in litigations initiated by patent trolls. This increase in patent litigation was by design. While Congress may not have been aware that an increase in litigation would occur, the truth is that the design of the AIA was guaranteed to lead to one of two things. First, the joinder and consolidation provisions of the AIA would either substantially curb patent trolling because it is now much more difficult, if not impossible, to bring a single lawsuit with many dozens (or hundreds) of defendants. Second, increase in the number of patent infringement lawsuits because patent owners must sue infringing defendants one at a time, or at least in much smaller groups. It would seem that the AIA did not stop patent litigation, so the result is a greater number of lawsuits. See alsoThe America Invents Act at Work.
Still further, the GAO found that “companies that make products brought most of the lawsuits and that nonpracticing entities (NPE) brought about a fifth of all lawsuits.” So there isn’t a patent troll problem at all despite the protestations of the Silicon Valley elite who think every patent they get sued on is invalid and every patentee plaintiff is a patent troll.
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.
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