Saturday, October 22, 2016

Claim on web video, sues 14 big media companies

On October 11, Bartonfalls filed patent lawsuits against Ziff Davis (the owners of PC Magazine), Viacom, Advance Publications (over the website for GQ; GQ and Ars are both owned by Conde Nast, which is in turn owned by Advance Publications), Scripps Networks (HGTV), Bloomberg,, NBC Universal, Turner Broadcasting, the New York Times Company, Forbes, ABC, Discovery, CBS, and Consumers Union (Consumer Reports).

Each claims that websites owned by these large publishers violate the '922 patent because when a viewer is done watching an online video, their video players cue up another video and automatically start playing it when the first video ends. Love this feature or hate it, it's an extremely common way of serving up online video.

"We are in the process of hiring counsel and will vigorously fight this claim," said one defendant "We plan to work with the other companies that were sued to challenge the patents."

Tuesday, September 27, 2016

Boilerplate – New Consideration in View of Patent Subject Matter

Can boilerplate language describing possible variations to an invention ever impact validity of a patent?

Many software patents include standard “boilerplate” text describing many ways to implement an invention, such as by discussing execution of the software on a smart phone, laptop, mainframe, PDA, audio player, or even a refrigerator! This boilerplate language is often added to patent applications to broaden the potential scope of the recited terms or provide additional support for recited claim terms.

In Nextpoint v. Hewlett-Packard, an Illinois district court used such “broadening” boilerplate language against the patent holder deciding this is an abstract idea and thus not eligible for patent protection under section 101.

Wednesday, August 31, 2016

Opinion: How to Avoid Legal Problems in Collaborative Research

The path from the discovery of the CRISPR/Cas mechanism as part of bacteria’s adaptive immune system to the use of this pathway in the food industry and later as a breakthrough gene-editing tool is a good illustration of the power of collaboration among scientists across disciplines. Yet CRISPR’s development also serves as a salient warning of how failing to assign clear and up-front ownership of intellectual property (IP) can result in prolonged and costly legal friction.

That Other CRISPR Patent Dispute

Normally, if an inventor believed he or she was left off a patent, he or she could raise the issue in the patent office or federal court and appeal to have it added, explained Dan Burk of the University of California, Irvine, School of Law. Yet, for reasons that are unclear, the university didn’t go this route. “It’s hard to tell what [Rockefeller] wanted to accomplish,” said Burk.

If the patent application move by Rockefeller isn’t unusual enough, there’s this: the Broad alleges that the university filed the application without ever telling the institute.

In a letter sent to the USPTO in August 2014, Ellen Law, a lawyer representing the Broad, wrote that the institute had nothing to do with Rockefeller’s application. “The present application was NOT FILED WITH ANY NOTICE to Feng Zhang, the Broad or MIT prior to its filing,” she wrote (emphasis Law’s), adding that the Broad’s position maintained that Marraffini was not an inventor of the described technology.

Wednesday, June 03, 2015

Are Business Method Patents still valid?

Business method claims have had less luck than software claims after the Supreme Court’s Alice decision. Most business method claims reviewed by the Federal Circuit are found invalid under Section 101 for merely reciting an abstract idea. As an example of business method claims found valid under Section 101 post-Alice, we have to turn to the Patent Trial and Appeal Board (“PTAB”), which recently found valid business method claims directed towards a method for processing paper checks in U.S. Bancrop v. Solutran, Inc. During the review, the PTAB examined each claim as a whole finding that the method for processing paper checks “is more akin to a physical process than an abstract idea.” The PTAB reasoned that limitations, such as “receiving said paper checks and scanning said checks with a digital scanner,” and “comparing by a computer said digital images,” cause the claim as a whole to recite patent-eligible subject matter rather than merely an attempt to claim “fundamental economic practices, mathematical algorithms, or basic tools of scientific and technological work.” Reasoning that the claims were not directed towards an abstract idea, the PTAB did not analyze the claims under the second prong of the Alice/Mayo test.

Tuesday, June 02, 2015

Tracking #AliceStorm

It's been six weeks since my last AliceStorm update, and we've had plenty of action: twelve section101 decisions, and fourteen patents invalidated in just that period. That said, the success rate of motions on the pleadings is dropping, now down to a mere 69.6%. At PTAB, ten new institution decisions, all of which were granted on ineligibility grounds. And PTAB continues with its 100% kill rate, with seven (!) final decisions invalidating patents.

Monday, June 01, 2015

Naked Emperors, the US Supreme court

Gene Quinn of has written this essay on why the US Supreme court is incompetent to rule on technology issues

He points out that they are old, were all educated in "Ivy League" universities, "all went to the same places, they ate the same places, they drank the same drinks, were taught by the same people and now they lived the same lives for the vast majority of their professional careers"

He then shows how they made simple mistakes of fact such as declaring a new manmade molecule that does not appear in nature to be naturally occurring and  (in a reply to a comment on the blog) of confusing the two different elements manganese and magnesium.

"The idea that the Supreme Court is at all capable of understanding — let alone deciding — issues of a technical nature is ridiculous. Yet their individual and collective lack of knowledge hasn’t prevented them from reaching misguided decisions in a variety of cases."

Full article at

Sunday, May 31, 2015

An Abstract Idea by Any Other Name - Epicor Software Corp. v. Protegrity Corp., Google Inc. v. Unwired Planet, LLC

Addressing the issue of unpatentable subject matter in a post-Alice world, the U.S. Patent and Trademark Office Patent Trial and Appeal Board (PTAB) recently invalidated two patents under � 101 in separate covered business method (CBM) proceedings. Epicor Software Corp. v. Protegrity Corp., Case CBM2015-00006 (PTAB, Apr. 21, 2015) (Petravic, APJ); Google Inc. v. Unwired Planet, LLC, Case CBM2014-00004 (PTAB, Apr. 6, 2015) (Bisk, APJ).

Delayed since 2015-5-30 3:26am

Does the US Supreme Court’s latest move further obviate patent reform efforts?

One of the key components of patent reform has been increased disclosure requirements for patent complaints. Patent infringement defendants have long derided the sparsity of information provided by patent infringement plaintiffs in opening pleadings. Traditionally, after providing information proving that the plaintiff owns the patent in question (or holds adequate rights to assert the patent) and other jurisdictional requirements, plaintiffs need only assert that the actions of the defendant violated the exclusive rights of the plaintiff in the patent to adequately have pleaded a case of patent infringement.

But recent Supreme Court action may have addressed the issue. In an order issued in late April, the Supreme Court, without comment, adopted changes to the Federal Rules of Civil Procedure that would abolish Form 18 and its model patent infringement complaint from the Federal Rules.

The rule changes take effect on December 1, unless modified by Congress. But with Congressional patent reform contemplating heightening patent infringement pleading standards, it would appear that modifications would seem unlikely.

Delayed since 2015-5-28 1:33pm

Patent Litigation Report Raises Questions

A recent publication by PricewaterhouseCoopers announced that patent suit filings in 2014 had reduced by 13% from the prior year, and concluded that this "dramatic shift" was "[d]riven by Alice Corp. v. CLS Bank, which raised the bar for patentability and enforcement of software patents"

A more careful analysis of the government's data, however, shows that PricewaterhouseCoopers' theory is almost certainly wrong.

Delayed since 2015-5-27 11:34am

Is there a future for software patents in an age of software innovation?

Numerous patents have been lost with claims invalidated as being patent ineligible in the wake of Alice. This has negatively affected patent valuation, rendering many patents worth far less if not completely worthless. this has led some commentators to lament the toxicity of the patent asset and question whether the the United States Patent and Trademark Office (USPTO) has the bandwidth to cope with the increased time demands placed on patent examiners as they navigate the patent eligibility issue in as many as 50% of all pending patent applications.

In December 2014, the USPTO provided interim guidance on patent eligibility. The guidance provided the below flowchart to describe the two-step analysis required when patent examiners are confronted with software patent claims.

Delayed since 2015-5-27 9:48am

PatentVue by Envision IP

With the annual software developer conference Google I/O approaching next week, many in the wearable industry are wondering what place Glass will have on the agenda, and to what extent Google will continue to promote its augmented reality platform. Glass was not a main focus during the 2014 I/O conference, however, that may change this year as Google Glass officially became integrated as a division within Google this past January.

Canon, LG Electronics, Sony, Microsoft, IBM, Siemens, and Samsung are also significant patent owners in this space. Other large companies which have a smaller number of issued US patents (<20) related to AR and HMD technology are Intel, Nokia, Apple, Qualcomm, Sharp, Panasonic and GE, defense contractors Lockheed, Boeing, Rockwell Collins and Raytheon, automotive manufacturers Ford and Honda, and entertainment giant Disney.

Delayed since 2015-5-27 12:48am

Patent reform could do terrible damage to our many successful programmes, says Columbia's tech transfer chief

Patent reform could do terrible damage to our many successful programmes, says Columbia's tech transfer chief
Orin Herskowitz is head of technology transfer at Columbia University, one of the most respected and successful university licensing operations in the United States. His role not only means that he is plugged into the steady stream of new technology coming out of the New York institution, but also gives him a detailed insight into the burgeoning start-up community in the city and further beyond.

Delayed since 2015-5-26 1:11am

Saturday, May 23, 2015

Google Goes Patent Crazy, Seeks one for ‘Creepy’ Toys

Google has filed an interesting patent application for toys which watch moving objects and interact with other media devices in a room.

The toys also interact with other devices using Bluetooth or Wi-Fi, to play videos or songs for children whose command pattern is pre-recorded. The interactive toy can communicate with at least one remote entity, which could be a mobile phone.

The patent application notes that the toy device works like an “intelligent remote control” for home entertainment and activate automation systems.

Lycos patent sale may be happening two years too late

The news this week that Lycos is looking to dispose of some of its patents afforded tech bloggers the opportunity to remind their readers that yes, one of the iconic internet search brands of the before-Google era still exits. For those in the patent community the reaction may have been equally mystified – something along the lines of, they still have anything worth selling? And, have they seen the market out there, particularly for software patents?

Several of the patents have hundreds of forward citations which gives some indication that they are good quality. According to Maulin Shah of EnvisionIP who has published a quick analysis of the portfolio, one of the patents related to relevance ranking in internet search has a “staggering” 566 citations. So maybe there will be some buyers even in a post-Alice world. The patent deals market could certainly do with a shot in the arm.

Software is not Patent Eligible unless Claimed as a Process or Physical Object (US Federal Circuit)

In an interesting – though non-precedential – opinion, the US Federal Circuit has ruled that a “speech-recognition interface” software lacks subject matter eligibility “because [the claims] are not directed to one of the four statutory categories of inventions identified in 35 U.S.C. § 101.

Recent action in patent eligibility doctrine has primarily focused on the judicial prohibitions against patenting abstract ideas, laws of nature, and natural phenomena. However the statute does have some meat of its own. In particular, Section 101 particularly creates eligibility for four categories of inventions: processes, machines, manufactures, and compositions of matter. Inventions that cannot fit within the four statutory categories are not patent eligible.

Friday, May 22, 2015

Patent reform could be end of invention

Invention in America has turned ugly – it costs too much and risks are too high.

So what happened to bring this kind of damage to all of us? I think it’s because we are hunting a comic book character – a patent troll. Many describe this fictitious character as an unscrupulous inventor who sues a small business for infringement. The small business has to settle even though it doesn’t feel they infringe, because it is far too expensive and risky to fight it.

To slay the patent trolls, since 2005, virtually every significant change to [US] patent law has had the by-product of increasing the risks and costs for inventors. The America Invents Act did this in 2011, and now, four years later, we are told the patent troll problem has worsened and we need to pass the Innovation Act, which would further raise those risks and costs. The result is that the solution is creating a new problem.

The Case For Patent Reform In High Tech

Gary Shapiro, head of the CEA (Consumer Electronics Association) explains:
“This case is Exhibit A for patent reform. The patent troll in this case doesn’t produce any products and services, has zero employees and operates from an office across the street from the courthouse in the notoriously troll-friendly Eastern District of Texas,” 

But in their defense, there’s just no room for employees in their tiny office just down the street from the federal courthouse.

Naturally, Apple will fight the verdict and they have the lawyers and money to do it.

New patent lawsuits are down for the first time in five years. Here’s why that’s a huge deal.

Here's another newspaper article explaining the Price Waterhouse report on patent lawsuits in the USA.

The Washington Post writes:
"This is a big deal for a whole range of industries, not just the tech sector. It's happening at a time when the spotlight on frivolous patent lawsuits has never been brighter. And that makes it a surprising find.

Here's the key chart from PricewaterhouseCoopers' latest report on patent litigation. The line in gray shows the number of new patent lawsuits that were filed each year.

How to kill the next generation of startups

It’s one of the slickest bait-and-switch maneuvers in recent congressional history. A bill advertised as a targeted approach to reining in patent trolls who extort small businesses has been twisted into a measure to immunize big tech companies against the patent rights of the startups and small businesses who create nearly all breakthrough innovation and job growth in the U.S.

The last time a legislative miscarriage of this scale occurred, it was the passage of the Sarbanes-Oxley Act of 2002, which was supposed to prevent financial misconduct by big businesses like Enron. Instead, the law burdened small public companies with multi-million-dollar accounting costs and killed the IPO market for nearly a decade, while still allowing the biggest banks in the world — all of them Sarbanes-Oxley compliant — to plunge the world into the economy-shattering financial meltdown of 2008.

Is America about to shoot itself in the foot again — only this time with patent rather than accounting reform bullets?

Thursday, May 21, 2015

New immunotherapy technology company launched

An immunotherapy technology for treating cancer and other diseases, jointly developed by Victoria University of Wellington’s Ferrier Research Institute and the Malaghan Institute of Medical Research, has been patented and will be the initial focus of a newly-formed company.

The research has been led by Dr Gavin Painter from Ferrier Research and Dr Ian Hermans from the Malaghan Institute, and works as a therapeutic vaccine, activating a patient’s own immune system to recognise and attack cancer cells.

$1B lawsuit filed against U.S. government for voice and face recognition patent infringement

Texas based 3rd Eye Surveillance and Baltimore based Discovery Patents have filed an infringement lawsuit against the U.S. federal government seeking damages of more than $1 billion for unlawful use of the company’s three video and image surveillance patents, two of which covered voice and facial recognition software by James Otis Faulkner.

Faulkner’s invention includes the method of transmitting real-time surveillance video and images to emergency workers via a communications link, as well as two subsequent patents that were issued to cover voice and facial recognition software.

The three patents allow the government to provide real-time surveillance video, audio recognition, facial recognition and infrared images to emergency responders and defense agencies.

US Congress seeks to quash patent trolls

Predatory ‘patent trolls’ could soon find it harder to operate in the United States. Legislation to curb frivolous patent lawsuits has regained momentum after lawmakers in the US Senate added a provision to stop university patent holders from being penalized along with the trolls.

The process is moving quickly. The Senate Judiciary Committee plans to vote on the bill by the end of the month, readying it for a final Senate vote this summer, and the House of Representatives’ Judiciary Committee is likely to vote this week on a similar measure. That gives observers optimism that Congress will finally enact patent-troll legislation after a failed effort last year.

Copyrighting Your Patent?

Although it sounds of a malformed naive question, at times patent applicants do want to copyright their patent.  The patent application may, for instance, include software code, prose, or particular schematics that would seemingly be amenable to copyright protection.

Published works are no longer required to include any copyright notice, and the PTO has never indicated (AFAIK) that submission without the copyright notice constitutes a waiver or abandonment of copyright protections. However, the failure to include a (c) notice could potentially be relevant to fair-use analysis.

RPX Insurance Services Launches Indemnification Coverage for NPE Litigation

RPX Corporation RPXC a provider of patent risk management solutions, today announced that it is offering a solution for software companies to insure their contractual indemnity obligations, with policies where both a supplier and its downstream customers are covered if a non-practicing entity (NPE or "patent troll") sues for alleged patent infringement. "Based on our unique ability to quantify patent risk company by company, we have designed an effective risk transfer solution for companies to insure themselves and their customers against NPE litigation,"

A patent problem

Earlier this year, a group of 51 legal scholars and economists sent a letter to the US Congress urging it to take action on the increasing toll of frivolous patent lawsuits. Over the past five years, they said, researchers have published more than two dozen studies on the economic consequences of patent litigation. The view that has emerged is grim: the lawsuits are hindering research and development, and slowing the launch of firms.

Less than a month later, another 40 scholars rebuffed the claims, saying that the impact of the lawsuits has been exaggerated. Furthermore, they argued, patent litigation is on the wane, and legislation to rein it in could damage the US “engine of innovation” by weakening patent protections for inventors.

Google patents a way to win a text message argument

Google might have found a way to settle such arguments almost instantly.

In a patent awarded May 12, Google outlined a system for getting search results without having to leave a voice, instant message or text message conversation. The patent calls for a piece of software that could be incorporated into a messaging program that would allow users to query Google’s search engine in the same way as responding to the person they’re talking to.

Wednesday, May 20, 2015

Drop in Patent Lawsuits, Damages Blunts Call for US Congress to Act

The number of US suits dropped 13 percent to 5,700 in the fiscal year ended in September, according to PricewaterhouseCoopers LLP’s PwC. Median damage awards from judges and juries fell to $2 million, the second-lowest amount in 20 years, PwC said in the study released Wednesday.

The findings signal a reversal of the rising number of lawsuits in the past decade, which led companies such as Google Inc. and Cisco Systems Inc. to lobby Congress for curbs on patent-licensing firms. Often derided as “trolls,” the companies profit by obtaining patents cheaply and turning them into big payouts with lawsuits or royalty demands. Even after passing a 2011 law overhauling the patent system, lawmakers are weighing more lawsuit curbs, such as making the loser pay the winner’s court costs.

How to kill the next generation of US startups

The proposed Innovation Act (HR 9) is supposed to target only patent trolls. But as the National Venture Capital Association and 144 major universities warn, the bill's poorly drafted provisions actually will undermine the startups and small businesses responsible for nearly all breakthrough innovation and job growth in the United States.

At the very least, Congress should ask powerful supporters of the bill like Google and Amazon to explain their recent (and rather convenient) change of heart regarding patents.

When Google was a startup, after all, it filed its seminal PageRank patent before it even had a business plan, venture funding or a domain name -- and then paid Stanford University $336 million in shares for an exclusive license to it. But today Google claims that patents (especially software patents) "hinder innovation" -- a rather disingenuous argument from the first company in the world to build its initial success on a software patent.

And what about Amazon's famous one-click software patent, granted in 1999? Only 23 days after it obtained that patent, Amazon filed a patent suit against its then-larger competitor Barnes and Noble.

Patent trolls down but not out

The number of patent litigation cases filed in U.S. courts dropped in 2014, the first decrease in five years. That's according to a new report from PricewaterhouseCoopers.

The report comes out Wednesday. It credits the Supreme Court's decision in Alice Corp. v. CLS Bank for much of the drop in patent litigation. The case, which was decided in June 2014, raised the bar for software patents, the sort that many nonpracticing entities (aka NPEs, or patent trolls) prey upon.

"We'll probably see this trend continue, and more dramatically," Barry said. That's because the case was concluded halfway through 2014, meaning a full year's worth of effects in 2015 should really show a big decline.

Tuesday, May 19, 2015

Hungarian Innovation Protection Software Earns Success In California - Hungary Today

Hungarian innovation protection software that uncovers counterfeits was received in California with plaudits. At the congress of the International Trademark Association, Pintz and Co presented the product to 10,000 patent and trademark lawyers from 150 countries, the Hungarian Intellectual Property Protection Association told news agency MTI.

The software, which runs on several servers, simultaneously monitors the entire web’s one billion sites in real time, including Chinese sites and Facebook, uncovering fake products. The application is unique because it trawls through logos as well as text. The association said in a statement that the company will be making the software free of charge to Hungarian companies within a year.

Congress must thwart patent trolls, promote innovation

We at make custom products like photo books and photo blankets for anyone to make using simple and powerful software tools our team designs in-house.

We're always rolling out new features and new products but are worried about the threat posed by "patent trolls," shell companies that exist solely to extort other companies for alleged patent infringement.

Apple Samsung partial Win

The U.S. Court of Appeals upheld a lower court’s ruling that Samsung copied specific Apple design patents related to the iPhone. However, the court also threw out part of the ruling and asked a lower court to reduce the amount Samsung is to pay Apple.

This ruling partly closes the book on a 2011 legal battle that caused the two companies to wage a global patent war. The two companies have since dropped other battles except this one and another case involving what Apple contends are specific patented software features found in Galaxy phones.

Sunday, May 17, 2015

Both sides of the patent reform debate have been giving Hilary Clinton cash

Timothy B. Lee writes
"On Friday night, Hillary Clinton revealed the names of the various companies and trade groups that have collectively given her millions of dollars in speaking fees since the beginning of 2014. Looking through the list, one thing that stood out to me was how many of the payments came from companies with a strong interest in the patent reform debate.


"Overall, Clinton was paid speaking fees by about 50 companies and groups, receiving around $225,000 for a typical speech. Of those 50 organizations, at least five have a record of lobbying against reforms to the patent system, while three are in the pro-reform camp."

Unfortunatly I'm not convinced that the money is directly related to her stance or lack of it on patent reform.

The pro-reform names Lee mentioned: Cisco, eBay and Salesforce are all big businesses that would benefit from having a president beholden to them while of the five anti-reform names Xerox and Corning are not active anti-reform lobbiests, one of them is a pro patent lobbiest while two of them are technology companies. Other than the pro-patent lobiest, are the other businesses supporting her for patent reasons or other reasons?

Saturday, May 16, 2015

Patent-Eligibility of Computer Software Inventions in a Post-Alice Era

Thomas Nguyen of Lewis Roca Rothgerber writes
Decided on June 19, 2014, the Supreme Court decision on Alice Corp. v. CLS Bank International[1] has introduced a lot of uncertainty regarding patent-eligibility of certain types of technologies. In particular, Alice indicated that abstract ideas (e.g., business methods), even when carried out by a generic computer, do not automatically become patent eligible. Alice did provide, however, that if the subject matter “improves the functioning of the computer itself” or “any other technology”, such subject matter may be patent-eligible. In this way, one can see this as leaving open the possibility of finding computer software patent-eligible.

Since then, a number of cases have tackled the issue on how to apply the new Alice guidelines set by the Supreme Court with respect to computer software. In the following decision (summary judgment at a district level court), the remarks provided by Judge Pfaelzer may be helpful in evaluating the patent-eligibility of computer software under 35 U.S.C. § 101 in the post-Alice era.

US Federal Circuit rules company’s TV software patent indefinite

The U.S. Court of Appeals for the Federal Circuit cracked down on a vague software patent in a ruling last week. The Federal Circuit, which hears all U.S. patent appeals, affirmed a decision by the U.S. District Court for the District of Delaware in two cases brought by EON Corp. IP Holdings LLC.

“Resolution of this case is straightforward,” Chief Judge Sharon Prost wrote in the May 6 opinion. “The district court made explicit factual findings, based on expert testimony, that each of the eight claim terms at issue recited complicated, customized computer software.

“We see no clear error in any of the district court’s factual findings, nor any error in the district court’s ultimate conclusion of indefiniteness.”

Prost noted that EON does not contend on appeal that the terms at issue recite functions that are coextensive with a microprocessor.

EON also does not differentiate between any of the claim terms in its argument, the chief judge said.

“In fact, EON cites to testimony from its expert that a person skilled in the art would need to consult algorithms outside the specification to implement the claimed functions,” she wrote in the 14-page ruling. “Similarly, based on expert testimony, the district court found that ‘special code would have to be written in order to accomplish the claimed functionality.’