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Posts Tagged ‘ software patents ’

Patentability of Business Methods and Software In Australia – Full Federal Court Decides Much Anticipated Research Affiliates Case

Posted: Tuesday, Nov 18, 2014 @ 11:11 am | Written by Ernest Graff | 6 comments
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Posted in: Australia, Guest Contributors, International, IP News, IPWatchdog.com Articles, Patents, Software, Technology & Innovation

The Australian Full Federal Court recently handed down its decision in Research Affiliates LLC v Commissioner of Patents [1]. The decision is an important addition to Australian case law concerning the patentability of business methods and software.

Judges Kenny, Bennett, and Nicholas ruled that the Appellant’s claimed computer implemented method for generating an index for use in securities trading was unpatentable as an abstract idea. The Court held that “[t]he claimed method in this case clearly involves what may well be an inventive idea, but it is an abstract idea. The specification makes it apparent that any inventive step arises in the creation of the index as information and as a scheme. There is no suggestion in the specification or the claims that any part of the inventive step lies in the computer implementation. Rather, it is apparent that the scheme is merely implemented in a computer and a standard computer at that. It is no part of the claimed method that there is an improvement in what might broadly be called ‘computer technology’.”[2]

In our opinion this case does not present a major change in the law in Australia regarding the patentability of business methods and software, but clarifies that mere reference to computer implementation in patent claims will not be enough to satisfy Australia’s requirements of patentable subject matter. Otherwise, the patentability of business methods and software, where a computer is “inextricably linked with the invention itself”, appear to remain patentable in Australia.[3]



Ultramercial Patent Claims Invalid as Abstract Ideas

Posted: Sunday, Nov 16, 2014 @ 11:46 am | Written by Gene Quinn | 45 comments
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Posted in: Anti-patent Nonsense, Federal Circuit, Gene Quinn, Government, IP News, IPWatchdog.com Articles, Patents, Software, Technology & Innovation

On Thursday, November 14, 2014, the United States Court of Appeals for the Federal Circuit issued its latest decision in Ultramercial v. Hulu, which deals with the patent eligibility of software related patent claims. The district court originally held that U.S. Patent 7,346,545 (the “’545 patent”), the basis for the complaint filed by Ultramercial, does not claim patent-eligible subject matter under 35 U.S.C. § 101. This decision was appealed to the Federal Circuit, which reversed, concluding that the district court erred in granting WildTangent’s motion to dismiss for failing to claim statutory subject matter. WildTangent filed a petition for certiorari with the Supreme Court, which was granted. The Supreme Court vacated the Federal Circuit decision, and remanded the case for further consideration in light of its decision in Mayo Collaborative Services v. Prometheus Laboratories, Inc.

On remand the Federal Circuit once again found that the claims asserted by Ultramercial defined patent eligible subject matter. WildTangent again filed a petition for certiorari with the Supreme Court. While WildTangent’s petition was pending, the Supreme Court issued its decision in Alice Corp. v. CLS Bank International. Ultimately, the Supreme Court once again granted WildTangent’s petition for a writ of certiorari, vacated the Federal Circuit decision, and remanded the case for further consideration, this time in light of Alice.

Ultramercial’s Federal Circuit luck has now run out. Gone from the original panel was Chief Judge Rader who retired and was replaced by Judge Mayer, which does not bode well for any patent owner. This time in an opinion written by Judge Lourie the Ultramercial claims were found to be patent ineligible because they constitute nothing more than an abstract idea. If Judge Lourie were trying to predict what the Supreme Court would do when faces with patent claims that are clearly NOT abstract, his decision makes sense. Still, it is extraordinarily troubling that patent claims are being invalidated left and right based upon the so-called “abstract idea doctrine,” where the critical term “abstract idea” has never been defined by the Supreme Court or the Federal Circuit.



IBM Patent Applications: Business, Medical Data Analysis

Posted: Sunday, Oct 5, 2014 @ 8:00 am | Written by Steve Brachmann | 9 comments
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Posted in: Cancer Research, Companies We Follow, Computers, Guest Contributors, IBM, IP News, IPWatchdog.com Articles, Medical Devices & Methods, Patents, Software, Steve Brachmann

There is no corporation with a wider breadth of development in intellectual properties than the International Business Machines Corporation of Armonk, NY. Long associated as a developer of business technologies, IBM has recently announced a free tool for businesses who want to upload data to Watson Analytics to receive predictive insights. The company is increasing its presence in Indian markets by partnering with dozens of startups, including one trying to develop data technologies to predict instances of crime before they occur. IBM is also involved in efforts to develop more effective health care technologies, as is evidenced by the recent decision by Texas-based biosciences company Caris Life Sciences to use IBM technology to accelerate molecular profiling services for cancer patients.

In this edition of the Companies We Follow series, we’ve surveyed the recently published patent applications which have been filed by IBM with the U.S. Patent and Trademark Office. All in all, we found a wide assortment of data analysis technologies for business, medical and consumer fields which may likely their way into the corporation’s intellectual property portfolio in the months to come.

We start off with a look at a few inventions for software development projects, specifically for the management of artifacts connected to software development files by applications within development platforms. We discuss a trio of patent applications related to helping businesses make sense of immense data sets, including visualization methods and techniques for answering natural language questions. IBM’s patent applications involve more medical technologies, including a system for determining fraud within health care claims. We also profile one patent application describing a unique method for swaying the voting tendencies of a group of participants within an electronically hosted conference.



SCOTUS: Public Enemy Number One for Patent Owners

Posted: Thursday, Oct 2, 2014 @ 8:00 am | Written by Gene Quinn | 37 comments
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Posted in: IPWatchdog.com Articles

Editorial Note: This article is part 2 of a 2 part series adapted from a presentation I gave earlier this week at the annual meeting for the Association of Intellectual Property Firms (AIPF). To start reading from the beginning please see Dark Days Ahead: The Patent Pendulum.

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Justices of the United States Supreme Court. No friends to innovators who require strong patent rights.

As I was putting together the slides for this Powerpoint presentation I thought to myself, “how do I title this page.” I’ll tell you the thought that first jumped into my head, although I ruled it out: “Public Enemy Number One.” Or I suppose “Public Enemy Number One through Nine.” There is little doubt that the Justices of the Supreme Court are indeed public enemies, at least insofar as patent owners are concerned. Unless you are represented by Seth Waxman at the Supreme Court your patent claims are invalid! And even Seth doesn’t always win, although he sure wins a lot for Monsanto.

Let’s start our discussion of SCOTUS decisions with Mayo v. Prometheus. In Mayo the Supreme Court proudly proclaims that they’re not going to take the government’s invitation to apply 102, 103, and 112. Instead the Court decided to limit its handling of the issues to patent eligibility under 101. And as they go through their analysis they admit that the claim in question includes things that are not in nature, but yet they reach the conclusion that the claim is still a law of nature anyway because you’re just adding some extra stuff that already exists. It’s breathtaking. One, that’s not what the law is. Two, that’s not what the statute says. And three, every other Supreme Court throughout history specifically said never do that, and they did it anyway.



The Patent Drafting Disclosure Revolution: Don’t Ask Alice

Posted: Tuesday, Sep 30, 2014 @ 8:00 am | Written by Joseph Root | 4 comments
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Posted in: Guest Contributors, IP News, IPWatchdog.com Articles, Joseph Root, Patent Drafting, Patents

EDITOR’S NOTE: This article is an excerpt from Rules of Patent Drafting: Guidance from Federal Circuit Cases, 2014 Edition, which is now available at Amazon.com. This is the seventh installment of this series. To read other installments please see Joseph Root on Patent Claim Drafting.

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No question exists that patent eligibility under Section 101 has been, and remains, the most active question in patent law. Watching the rapid flow of cases back and forth between the Federal Circuit and the Supreme Court exceeds the excitement generated by most TV shows in sheer entertainment value. The only question open for discussion is whether we are watching “Game of Thrones,” “Survivor”, or “Modern Family.” Actually, the best choice may be “Lost”.

To understand the Supreme Court’s decision in Alice Corp. v. CLS Bank Int’l, a page of history provides more illumination than a book of Lewis Carroll references. Here we need to pick up at the point when everyone thought the computer patentability wars were over.

By the late 1990’s, the last frontier was business methods. We had absorbed Diamond v. Diehr and moved on to Beauregard claims and propagated signals. Everyone was making, or wanted to be making, tons of money in the Dot.Con era, and little patience remained for outdated rules.



Patents are Important: Bursting the Twitter Patent Mythology

Posted: Monday, Sep 29, 2014 @ 9:00 am | Written by Gene Quinn | 28 comments
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Posted in: Anti-patent Nonsense, Companies We Follow, Gene Quinn, IP News, IPWatchdog.com Articles, Patent Business & Deals, Patents, Twitter

One of the frequent claims made by those in the anti-software patent community relates to Twitter and the clearly erroneous belief that patents are not important to the company. Indeed, recently when I wrote Fairy Tales and Other Irrational Beliefs About Patents the claim arose in the comments suggesting that Twitter is proof that patents are unnecessary to succeed. Quite to the contrary. If you actually concern yourself with facts, Twitter is a perfect case study to demonstrate just how important patents, particularly software patents, are to a start-up company that has aspirations of going public.

Doubt me? Perhaps you will believe Twitter themselves. In repeated filings with the Securities and Exchange Commission since October 2013, Twitter has explained over and over again just how important their patented technology is to the company. They have also repeatedly explained that unlike other companies and competitors, even with nearly 1,000 patents, their own patent portfolio is extremely small by comparison. This poses real concerns for Twitter, which is why they warn the SEC and investors of the ramifications of such a small patent portfolio with every new filing.

Let’s begin our tale about Twitter at the start. Twitter, founded on March 21, 2006, was initially believed to be of the opinion that patents didn’t matter. Behind the scenes and unknown to many, Twitter was actively filing patents very early on in the development of the company. This is hardly shocking news given that Twitter’s initial round of funding dated back to 2007 and the near universal reality that high-tech investors not only love patents, but they demand patents. Investors love patents because if the company does not succeed at least some valuable patent assets will remain, which can be sold to recoup losses.



Creating Software Obviously Isn’t Easy – Part 3 with Bob Zeidman

Posted: Wednesday, Aug 27, 2014 @ 8:00 am | Written by Gene Quinn | 11 comments
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Posted in: Bob Zeidman, Gene Quinn, Guest Contributors, Interviews & Conversations, IP News, IPWatchdog.com Articles, Patents, Software, Technology & Innovation

Software expert Bob Zeidman

Bob Zeidman is the president and founder of Zeidman Consulting, and he is also the president and founder of Software Analysis and Forensic Engineering Corporation. Zeidman is a software expert that I have known for several years and in the wake of the Supreme Court’s decision in Alice v. CLS Bank we talked on the record about the decision, software in general and writing patent applications. What follows is part 3 of our 3 part conversation.

In this final installment we spend time talking about the problems associated with creating software that actually works. For something that Judges and mathematicians seem to say is so trivial software sure doesn’t work nearly as well as it should. Copied code cobbled together leads to broken systems, and programmers simply throw code up without proper vetting and let consumers find the bugs. Sure doesn’t sound like it is all that trivial to me, but then again, I’m not an ivy league educated Supreme Court Justice who is so computer illiterate that I don’t use e-mail.

To begin reading from the beginning please see A Conversation about Software and Patents.



Software, Silicon Valley and Computer Programmers – Part 2 with Bob Zeidman

Posted: Sunday, Aug 24, 2014 @ 9:16 am | Written by Gene Quinn | 23 comments
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Posted in: Bob Zeidman, Gene Quinn, Guest Contributors, IP News, IPWatchdog.com Articles, Patentability, Patents, Software, Technology & Innovation

Software expert Bob Zeidman

Recently I had the opportunity to interview Bob Zeidman, the president and founder of Zeidman Consulting, who is also the president and founder of Software Analysis and Forensic Engineering Corporation, Zeidman is an software expert. In fact, in addition to consulting with lawyers and technology companies, he is an testifying and consulting expert witness. The premise of our conversation was the upheaval in the patent industry thanks to the Supreme Court’s decision in Alice v. CLS Bank. In part 1 of our conversation we discussed the decision and ways that attorneys can build a specification to satisfy the Alice standard. In part 2 of our 3 part discussion, which appears below, we wrap up our discussion of the Alice decision and dive into a discussion about the fact that many in the computer science world don’t believe what they do to be particularly innovative or even special.

QUINN: And then there’s always the fear that if you put in code then you’re gonna be limiting yourself. I don’t think that’s really a justifiable fear as long as it’s put in properly as illustrative instead of limiting. You know, I mean the folks in the chemical world, they do this all the time. They have example after example after example after example, which is a great way to disclose what it is that you have, what it is that you’ve tried, what it is that you know that works.

ZEIDMAN: Exactly. It seems like if there is some ambiguity in the claims then you would go back to the specification to see if the code there could clarify the claims.



A Conversation About Software and Patents: On the Record with Bob Zeidman

Posted: Friday, Aug 22, 2014 @ 10:22 am | Written by Gene Quinn | 15 comments
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Posted in: Bob Zeidman, Gene Quinn, Guest Contributors, Interviews & Conversations, IP News, IPWatchdog.com Articles, Patents, Software, Technology & Innovation

Bob Zeidman

Bob Zeidman is know to our readers as an occasional guest contributor. He is also the president and founder of Zeidman Consulting, a contract research and development firm in Silicon Valley that provides engineering consulting to law firm. He is also the president and founder of Software Analysis and Forensic Engineering Corporation, the leading provider of software intellectual property analysis tools. In short, Zeidman is a software expert in every sense of the word “expert”, he holds numerous patents and he is prolific author. He has written four engineering texts—The Software IP Detective’s HandbookVerilog Designer’s LibraryIntroduction to VerilogDesigning with FPGAs and CPLDs, and Just Enough Electronics to Impress Your Friends and Colleagues—in addition to numerous articles and papers. He has also written three award-winning screenplays and three award-winning novels including his latest, Good Intentions, a political satire about a future dystopia.

On August 12, 2014, I had the opportunity to speak with Zeidman on the record. As the dust begins to settle from the Supreme Court’s Alice v. CLS Bank decision I thought it might be interesting to talk about the issues with a computer expert who regularly works with patent attorneys and technology clients, and who has been advising both attorneys and clients how to handle the Alice decision from a technical standpoint. In our three part interview we discuss the decision and various ways attorneys might be able to move forward to provide disclosure sufficient to satisfy even the Alice standard.



Abstraction in the Commonplace: Alice v. CLS Bank and its Use of Ubiquity to Determine Patent Eligibility

Posted: Thursday, Jul 31, 2014 @ 11:55 am | Written by Marc Ehrlich, Marian Underweiser, Mark Ringes & Manny Schecter | 25 comments
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Posted in: Companies We Follow, Government, Guest Contributors, IBM, IP News, IPWatchdog.com Articles, Manny Schecter, Patentability, Patents, Software, Technology & Innovation, US Supreme Court

It has been over a month since the Supreme Court published its opinion in Alice v. CLS Bank. While the question on which certiorari was granted broadly considered the patent eligibility of computer implemented inventions, the Court ultimately issued an opinion that was tightly focused on the invention underlying Alice Corp’s patent. While many hoped that the Court would address this broader issue, the narrow opinion leaves many key questions unanswered. More importantly, the Court’s explanation of why the Alice patent was an ineligible abstract idea demonstrates the limitations inherent in applying that doctrine to computer implemented inventions. Those limitations will come to define the struggles confronting innovators, courts and the patent office as they attempt to operate in accordance with this opinion.

A review of the opinion and oral argument reveals that no participant was able to articulate a meaningful, repeatable, and predictable approach for determining which computer implemented inventions are too abstract and which are eligible for patent protection. The Court intentionally declined to broadly address this key issue: “[i]n any event we need not labor to delimit the precise contours of the “abstract ideas” exception in this case.”  And that is because it cannot be done. As the Court itself acknowledged in Mayo v. Prometheus, “all inventions at some level embody” an abstract idea.   And unlike laws of nature and natural phenomena, abstract ideas are not readily susceptible to line-drawing – where does the abstract idea stop and the eligible “application” of that abstraction begin?

Learned Hand lamented the intractable nature of this problem in the context of the idea expression dichotomy in copyright law. Struggling to separate the underlying unprotected idea from the copyright protected expression, he noted “…there is a point in this series of abstractions where they are no longer protected, since otherwise the playwright could prevent the use of his ‘ideas’, to which, apart from their expression, his property is never extended. Nobody has ever been able to fix that boundary, and nobody ever can.” See Nichols v. Universal Pictures Corporation.