Posts Tagged: "Authors"

This lawsuit could set a precedent in Israeli copyright laws concerning television formats and could reveal behind-the-scenes industry secrets. The Israeli Copyright Law 2007 does not provide copyright protection for an idea, but only its expression. As for TV formats, Israeli Courts have yet to regulate this issue and have not set a binding precedent in this matter.

Contrary to popular belief, things are getting much better in business methods. Applications filed in 1999 had prosecution times of over 10 years (lower green arrow). These and subsequent applications jammed up the system leading to excessive delays to first office actions. Applications filed in 2004, for example, had delays to first office action of 6 years (middle red arrow). Sometime around 2010, however, things started to improve. A lot more patents started issuing and the delays to first office action dropped to around 2 years (upper red arrow). That’s not to say that it’s easy to get a patent in business methods, but at least examiners and applicants are making much better progress in reaching agreement on allowable claims in a reasonable amount of time.

Prior user rights also implicate free rider problems with respect to a subsequent patent that an inventor obtains covering the subject matter of the secret prior user. At the point of publication the prior user no longer maintains a trade secret. At the point of issuance, the patentee and the prior user relatively co-exist with each other in the market. The patentee excludes others from the market except for the prior user. The prior user then enjoys the benefits and advantages associated with the patentee excluding others from operating in the market, while being free from liability to the patentee. In this regard, the prior user enjoys the period of time operating the technology in secret in addition to 20 years of excluding others provided by the competitor.

What’s troubling is that Hewlett Packard itself, the original startup headquartered in a garage, was one of the earliest and most-respected leaders of the 20th Century high-tech revolution that had its epicenter in Silicon Valley. It was William Hewlett who gave a 13-year-old Steve Jobs spare parts for a device Jobs was building — and a summer job as well. And it was Mr. Hewlett and his executive heirs who insisted that HP conscientiously patent its breakthrough innovations and fight against those that infringed those patents. HP today earns hundreds of millions of dollars annually by licensing its patent rights to others — according to IAM magazine, “at any one time, HP has about 150 licensing transactions in process.” And as the court dockets show, it certainly isn’t shy about filing suit against infringers who refuse to take a license.

So who is the villain in all of these wars responsible for again giving patents a bad rap? Well, the villain in not the ITC, USPTO or any U.S. government agency. Nor it is any country’s protectionist trade regime, or an “irreparably broken” U.S. or global patent system. No, the real villains here may very well be a handful of companies that willingly contributed patented technologies to various SSOs, championing their adoption and encouraging their use in a host of consumer electronics, and now claim (years later) that the very producers they encouraged to implement these standards should be barred from making, using or importing their products into the U.S. market.

The avalanche of patent assertion entities (PAE) cases, in the ITC and District Court, exists because the PTO issues hundreds, if not thousands of patents that can be asserted against every minute feature and functionality of tech products and services. The overwhelming majority issued to so-called inventors who played no part in developing these features and functionalities, including to patent mills that specialize in stalking the development of technology standards and obtaining claims they hope will read on those standards. And tech patent applications often pend (through continuations) for 10 years or more, enabling patentees to intentionally draft claims to read on existing products and services. In fact, these euphemistically entitled “early priority date” patents are the grist of tech patent litigation today, including PAE cases in the ITC.

However, if prior users are keeping their technology secret while being protected, that leap-frogging from one breakthrough to the next be impeded. Disclosure is the backbone of the progression of the sciences for this reason. “[T]he ultimate goal of the patent system is to bring new designs and technologies into the public domain through disclosure.” Bonito Boats v. Thunder Craft Boats, 489 U.S. 141, 151 (1989). Sharing ideas allows others to improve upon the state of the art and as a result, better products such as medicine and consumer electronics are brought to market thereby driving our economy and benefiting the welfare of the U.S. as a whole. Prior user rights, on the other hand, will inhibit this progression.

hange does not come easily. At a minimum, the PTO must stop encouraging and rewarding examiners for actions that defeat the objectives of the office. As long as examiners are credited and rewarded for acting upon every application that they can force an applicant to file, examiners can be expected to seek the credit and reward, and the backlog will be with us. As long as examiner performance is based upon the conventional (N + D)/2, the incentives will foster counter-productive behavior in the examining corps and the Office will not make meaningful strides toward accomplishing its mission. Examiners will do what they are rewarded for doing – generating as many N’s and D’s as possible without regard to whether anything is really being accomplished.

Such is the case with the newest lobby in Washington, the self-described “ITC Working Group.” You won’t learn anything about this organization by searching Google — odd, considering that Google is a member — but according to industry sources, its aim is twofold: First, it wants to block the International Trade Commission (ITC) from hearing patent infringement cases brought by “non-practicing entities” — i.e., patent holders like universities, independent inventors, and others who license their patents for manufacturers to commercialize. And second, it wants to weaken the ITC’s power to block the importation of infringing products into the U.S.

In the recently issued case of ClearValue, Inc. v. Pearl River Polymers, Inc., Judge Moore, writing for the Federal Circuit panel, distinguished the holding in the 2006 case of Atofina v. Great Lakes Chemical Corp. In ClearValue, Judge Moore ruled that a process having a claimed raw alkalinity of “less than or equal to 50 ppm” was anticipated under 35 U.S.C. § 102 by a prior art process disclosing an alkalinity of “150 ppm or less.” I believe Judge Moore was correct in ruling that the claimed alkalinity of “less than or equal to 50 ppm” was anticipated by the art disclosed alkalinity of “150 ppm or less.” But her basis for distinguishing Atofina in ClearValue is very problematic in a number of respects, and could create further unnecessary confusion as to when a narrower claimed range in a process is anticipated by a broader range disclosed by the prior art. As illustrated by the ClearValue and Atofina cases, one area where the Federal Circuit sometimes struggles in articulating clear doctrine is when is a narrower claimed range in a process is anticipated under 35 U.S.C. § 102 by a broader range disclosed by the prior art.

In short, today’s smartphone patent wars are simply “back to the future” when it comes to how disruptive new industries are developed. Every major technological and industrial breakthrough in U.S. history — from the Industrial Revolution to the birth of the automobile and aircraft industries on up to today’s Internet and mobile communications revolutions — has been accompanied by exactly the same surge in patenting, patent trading, and patent litigation that we see today in the smartphone business. This is how the rights to breakthrough new technologies have always been distributed to those best positioned to commercialize them — to the benefit of the whole nation in terms of new jobs, new medical advances, and new products and services.

Let’s first consider one of the “bread and butter” components of patent prosecution, the utility application filing fee. Actually, this basic fee comprises three components: the filing fee, the search fee, and the examination fee. In the proposed fee changes, this utility application filing fee will increase from $1250.00 to $1840.00 (or from $625.00 to $920.00 for those qualifying as “small entities,” which get a 50% reduction in this fee). The biggest portion of this increase is reflected in the examination component, which has increased from $250.00 to $780.00 (or from $125.00 to $390.00 for those qualifying as “small entities”). Excess claim fees (total claims in excess of 20 and independent claims in excess of 3) have also gone up significantly, from $60.00 to $100.00, and from $250.00 to $460.00, respectively. (I’ll let you do the math for those qualifying as “small entities.”)

We must find reasonable ways to stop infringement of intellectual property on the Internet. Such a solution must be fair to the victim of the infringement. It must uphold the principles of the Constitution of the United States. And it must not break the Internet. SOPA and PIPA may not be perfect implementations of such protection, but they meet all of these requirements. There may be better strategies that can be reached through measured and thoughtful debate, but not through excessive hyperbole and misrepresentation.

The types of returns promised to investors and the types of benefits offered to participants are also quite different from garden-variety non-practicing entities, as are some of the tactics used in organizing the entities and in asserting the patents. Finally, the scale itself is simply mind-boggling. Mass aggregators operate on a scale and at a level of sophistication and complexity that would have been unimaginable a decade ago. They have taken the prototype strategies pioneered by a prior generation of non-practicing entities and changed them into some of the cleverest strategies yet seen in the intellectual property rights field.

I have found it helpful to think about patent classifications as being large buckets with subclassifications being little buckets within the larger classification buckets. There are currently more than 450 classifications and over 150,000 subclasses. According to the USPTO, “A class generally delineates one technology from another. A Subclass delineates processes, structural features, and functional features of subject matter encompassed with the scope of the class.” It is also important to realize that although every patent has only one primary classification (class and subclass) it may include others as applicable to the patent.