Posts Tagged: "§ 103"

The Hunt for the Inventive Concept is the Flash of Creative Genius Test by Another Name

Today the flash of creative genius test has reared its ugly head once more, this time as a consideration under a patent eligibility inquiry and 35 U.S.C. 101 instead of under an obviousness inquiry and 35 U.S.C. 103. Today, thanks to the Supreme Court’s unintelligible Alice/Mayo framework, one must ask whether significantly more has been added to a patent claim such that the claim does not merely claim an abstract idea, law of nature or natural phenomenon. This final step in the Alice/Mayotest is referred to by the Courts as the hunt for the inventive concept. It is difficult not to notice the similarity between this hunt for the inventive concept that takes place when reviewing a claim under 101 and the supposedly defunct flash of creative genius test Congress attempted to write out of patent law in 1952.

Categorical Rules and Why the Investpic Holding Should Worry Everyone

This assertion is a mischaracterization of Alice Corp., which never held that the intermediated settlement claims at issue in Alice Corp. were abstract because of the risk hedging claims in Bilski were abstract.  Instead, the Supreme Court stated “that there is no meaningful distinc­tion between the concept of risk hedging in Bilski and the concept of intermediated settlement at issue here” because “[b]oth are squarely within the realm of ‘abstract ideas’ as we have used that term.”  That is: the claims in Bilski and Alice Corp. were comparable only because the underlying business methods were undoubtedly long-prevalent in the business community.  To hold otherwise is to ignore the vast bulk of both the Bilski and Alice Corp. decisions.

Which Invalidity Avenue to Take: Inter Partes Review Verses Post-Grant Review

The United States Patent and Trademark Office (USPTO) provides invalidity tools via inter partes review (IPR) and post-grant review (PGR), but which route is better? …  PGRs are estimated to cost more because of their broader discovery rules.  If cost is a major factor, IPRs are a less-expensive option due to restricted allowance of discovery, the most expensive aspect of patent litigation… If the invalidating arguments or art are not strong, an IPR may be a better option due to its lower threshold for institution.  The same prior art arguments that failed in a petition for a PGR may have succeeded in an IPR petition due to the lower standard.

Federal Circuit Upholds Thales Motion Tracking Patent Asserted against U.S. Government for Second Time

The recent Federal Circuit decision in Elbit Systems of America, LLC v. Thales Visionix, Inc. affirmed a final written decision issued by the Patent Trial and Appeal Board (PTAB), which upheld some claims in an inter partes review (IPR) proceeding challenging the validity of Thales’ U.S. Patent No. 6474159, titled Motion-Tracking and issued in November 2002. The patent claims a system for tracking the motion of an object relative to a moving reference frame using a first inertial sensor mounted on the tracked object, a second inertial sensor mounted on the moving reference frame and an element that receives signals from both inertial sensors to determine an orientation of the object relative to the moving reference frame. The resulting invention enables the use of inertial head-tracking systems for platforms including flight simulators and other vehicular applications.

SSH Communications Enters Cross-License Agreement with Sony After Losing Patents at PTAB

On Monday, February 5th, Finnish enterprise cybersecurity solutions firm SSH Communications Security announced that it had entered into a patent cross-license and settlement agreement with Japanese electronics conglomerate Sony Corporation (NYSE:SNE). The agreement reportedly resolves all patent disputes between the two companies after Sony successfully challenged the validity of two U.S. patents owned by SSH Communications at the Patent Trial and Appeal Board (PTAB).