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, Allrecipes.com, 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."
Saturday, October 22, 2016
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.
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.
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 IPWatchdog.com 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."
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 IPWatchdog.com
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
Delayed since
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
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
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
A more careful analysis of the government's data, however, shows that PricewaterhouseCoopers' theory is almost certainly wrong.
Delayed since
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
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
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
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
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
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.
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.
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.
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.
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:
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.
“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?
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?
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