Many regulatory clauses provided by the USPTO still does not straighten the chaos present in the patent world. In the Hoffman-Lund case, a fundamental problem in the current patent system is presented: the lack of prototype as requirement for patents. Interestingly, the issue lied in the patent rather than the system.
For Hoffman and Lund, a patent office examiner found several flaws in the idea being patented-a method of weakening tropical cyclones. Normally, the patent would be granted if the concept seems logical. However, the inventors made three flaws in unwarranted assumptions and calculation errors, specifications lacking experimental verification and lack of expert support. The rejection went on appeal but the original decision was upheld by the federal court.
Also, the original inventors seemed to have drawn up the patent document rather than professionals. Speculation may suggest the inventors wanted to avoid the cunning nature of the lawyer. Undoubtedly, the professional touch to the patent claim would not have helped since professionals did not support the concept. Perhaps, experimental data would have provided a better chance to get the patent accepted. Also, the diagram for the document does not seem very detailed.
Ultimately, there are limitations to the patents filed to the USPTO. However, this case does raise flags since people were willing such submissions. For the inventors, there is not a very transparent access to some of the regulations including 35 U.S.C. §112 unless there was an active search for it. Some would argue that those filing patents should be aware but the changing landscape of patents does make it difficult to keep up. The lessons are be sensible and ensure the patent claim meets the general requirements of novelty and practicality.
Recently, there has been a visit to the past looking at the patent dispute claimed by Alice corporation. Again, regulations and laws remain elusive in how patents should be handled. More specifically, the debate continues to focus on the validity of software patents.
In the past Bilski case, the U. S. Supreme Court found the hedge fund program not patent eligible. Now, the Supreme Court is faced with a similar case since it did not set the groundwork on restricting what constitutes something to be patented. The four patents under scrutiny appear to represent very general methods such as a "system for exchanging obligations." A system for exchanging obligations sounds very similar to the method people use to purchase and sell stock depending on the definition of "obligation." Already, the Alice group's claim did not look very promising.
In the federal circuit, the decision was not unanimous but agreed the patent claims to be invalid. This decision did bring concern since opponents wanted the claims to be upheld so any business method could be patented and profitable. This decision is crucial since it points out the issue of software patents (Do software products fit the patent definition?). Patents are supposed to be novel, practical and not obvious. For the Alice patents, the software appeared to novel and practical but the non-obvious aspect is debatable. A system to exchange obligations is not so unique except the process of risk assessment.
The problems posed in this court case has strong relevance to smartphone software. For operating system like Android and iOS, a lack of support for software patents could be harmful in the future. While the federal court did not lay out general guidelines, it provided little support for software patents. Potentially, NPE could find this court decision to be murky enough for attacking the patents of companies of providing smartphone software.
Previously, I discussed the relevance of eastern Texas for patent lawsuits of NPE. In recent event, it is interesting to see the update on the status of the Rockstar lawsuit in eastern Texas that companies like Google and ASUSTeK has to face. It seems the companies have made some progress in responding to the lawsuit by claiming to dismiss. Google and many of the other companies wish to continue the case in northern California (to establish first to file outside of Texas). Again, the location has become more relevant as the Rockstar case has progressed. The main issue is having the case either dismissed or transferred to a different area outside of Texas. Of course, Rockstar is attempting to keep it in Texas for a more favorable outcome.
Interestingly, Google is trying to fight the lawsuits through a different angle by stating Rockstar's claims involves more companies beyond the Android system. The argument is to insinuate hardware is being infringed upon and not the software. In this situation, Google would benefit more since the fault would lie more on the device manufacturer rather than the Android OS. The use of the customer-suit exception by Google may be invalid since the rule is only valid for resellers of the Android device. As a result, the lawsuit is still trying to be resolved since the debate is now whether Rockstar's claims should be dismissed based on the broad claims of the infringement. Dealing with larger corporations, it may be difficult to see what is the correct route since letting the big companies win could be problematic. The decision of this court case may determine the future of some of these rules such as the customer-suit and how the USPTO may possibly deal with these matters.
Incidentally, the smartphone patent issue have continued between Microsoft and Voxx Electronics. Not all patent conflicts have ended as peacefully as successfully as the Microsoft-Voxx scenario. More specifically, it is interesting to look at how successful Microsoft has been to ensure companies to be licensees.
Looking at the list, there are countless agreements that Microsoft has reached from Acer, Viewsonic and many other companies. It is the strength of Microsoft's patent portfolio that has helped the group negotiate these deals with companies. It would be rare to see smaller companies implementing this same strategy unless they are a NPE seeking profit from lawsuits. These collaborations are strongly beneficial for Microsoft to continue gaining more influence in the smartphone market given low shares from the last 2013 quarter. In this sense, Microsoft may be getting short term gains or safety but still would need to do more for long term gains. It would be interesting to see how the company deals factor in to Microsoft's long term plan or if they are looking at a long term goal to gain dominance in the smartphone market.
Furthermore, Microsoft had many of these deals to license with companies after the Google-Motorola deal. In fact, one could consider these deals to be a response to the Google deal. Microsoft may have fears of Google gaining more traction in the smartphone market considering the fact that Google obtained many important patents. In this sense, Microsoft has implemented a seemingly mutual collaboration or truce to maintain some status quo in a chaotic market. With all these deals, it is unclear whether the companies in these deals are truly benefiting or will suffer. Maintaining some leverage, Microsoft may be capable of trying to make more gains at the expense of other companies or remain complacent. For any company in the industry, it is important to maintain some control to avoid being forced to develop new products (R&D is costly) or forced to settle through payment.
The Exela case is interesting as it provides an unconventional approach in dealing with patents. It brings to light some of the issues with the current patent system and a possible need to rectify the situation.
Exela is a pharmaceutical entity that has a patent on injecting acetaminophen. What happened was the USPTO allowed the Cadence group to file a patent application past the intended deadline on the premise of unintentional delay. Later, the Exela was sued for their acetaminophen product and ended up suing the USPTO for improperly reviving the opportunity to file a patent late. Currently, the case is played out with Exela using the APA (Administrative Procedure Act) as part of their argument. However, USPTO argues that the six year statute of limitations makes the claim invalid.
This case puts the USPTO group under a lot fire and forces people to really look at our current patent system. As an extension of government, the USPTO is intended to ensure that patents are allocated to individuals and groups in a proper manner. In light of Exela, it becomes difficult to determine if the USPTO is something that should have the final say on patents. Relying on older laws and government, the USPTO may be making important decisions but is it for the benefit of the people or to maintain order? If this case falls to favor Exela, it would be a pivotal point since it would show the limitations of the USPTO to reinforce its policies. However, it is important for the USPTO to make these decisions with careful deliberation. While I am confident USPTO took a hard look before allowing the case revival, it begs to question whether court cases are necessary to get a third party feedback on these cases. Broadly speaking, the case is a debate between government and company interests. It comes down to whether the government interest or company interest is best for consumers and society. There is no villain in this situation since everyone has a role in the patent scene. Governments need to update some of these regulations to keep up with technology and companies need to ensure fairness and promote innovation rather than hinder it. Even if a group was even set up to watch over the USPTO, it is still the same scenario leading to one group with the final authority.
I am not sure of definite solutions. However, it would be necessary to have the USPTO update certain regulations that would help make the patent process not as difficult. While the companies need patents to keep business afloat, it may be difficult to argue in favor the company and finding fault with the U.S. regulatory group. This point does not mean the USPTO can do whatever they see fit. The organization should bear more transparency and be open in their decisions involving the companies. While it may take a long time before business and government work these issues outs, the decision of this case can be a step in the right direction.
Based on this week's recent discussion of location, the Rockstar lawsuit against Google seems to be an interesting one. The situation underlies the importance of location in pursuing a patent lawsuit. In the case of Texas, Rockstar is leveraging the favorable leanings towards patents in the eastern District of Texas.
Generally, Rockstar and its subsidiary is employing a common tactic of attempting to milk the money from patent lawsuits. In theory, Rockstar would be able to get payment and possibly royalties if the court in the eastern District of Texas recognizes the claim. Also, it is important to keep in mind that Rockstar is a NPE (non-practicing entity) indicating their sole purpose is to buy up patents and sue these companies to make profit. This approach seems almost too perfect since they were solely formed to sue companies for infringing patents they own but do not create their own products. It would be difficult for other companies to counter-sue since the Rockstar group is essentially a bunch of patents. Some would argue that Samsung should have no problem since this claim is only being pursued on the eastern District of Texas. However, the success of this law suit may encourage other NPE (patent trolls) and companies to attack Samsung on other grounds. A barrage of patent lawsuits can be enough to disrupt the titan in the market as demonstrated with Nokia and Apple. It becomes difficult to determine the NPE's intention and whether it is in the best collective interests of both the consumers and the companies.
In the complaint, there are lawsuit claims on violating patents related to "electronic device carrying electronic component, navigational tool for GUI and integrated message center" to name a few. The issue with these examples is that the patents seem generic in description. Even after looking up the navigational tool patent, I find the patent to not be all inclusive of all present smartphone designs especially in the case of using a "navigational circle" in browsing. At best, the designs presented in this patent is maybe an archaic version of the patent at hand. In the case of the integrated message center, I could see some similarity in the feature that are provided but I am not sure of how else to create a message center without using any variation of quit, sent and received. These patent infringements appear to show Rockstar just blindly taking all the fish out of the barrel, hoping to find the prize (a legally-recognized patent infringement). It does seem obvious since Rockstar happened to snatch the purchase of these patents out of Google's reach in a previous auction. Evidently, the situation goes back to the vicious cycle of gathering patents and suing competitors to keep an edge in the market. Is it necessary to force the companies to change and innovate leading them to cut costs and continue to innovate.
It largely comes down to the location and if Google can get the case moved to northern California. As the population in northern California differs from that in eastern Texas, the jury in both areas would have different leanings for either Samsung or Rockstar. This case will drag on since Rockstar has made an amendment to the claim and Google has recently joined with Samsung. It will be interesting to see how these events turn out.
For many companies, the benefits of patents are just too good to pass up. As a result, many technological companies involved in smartphone technology have focused on maintaining and acquiring patents.
Historically, the smartphone patent war has been going on for years with different companies involved such as Apple and Samsung. With so many companies suing each other over infringements, it begs the question to at what point does the infringement cases appear to be too much? In some cases, the premise of some of these lawsuits can overstep the boundaries of what seems to be appropriate. Appropriate is defined to be developing and fighting over these patents to promote innovation but not cause hindrance. While proponents may argue these fights are better for the consumer and innovation, many of these litigation cases can hinder the technology and product development. Forcing groups without patents to seek an alternative design can be discouraging and put strain on the company. Companies may not be inclined to innovate and provide more negative problems with the group. Certain people may believe that the smartphone market should regulate itself. In reality, the market is wasteful through this self-regulation since companies forced to build new products due to patent infringement have to spend more resources to try to innovate (no guarantee the attempt would be successful).
It is also important to consider the needs of the consumer or people purchasing smartphone technology. For the smartphone wars, the companies may be trying to get the technology that consumers desire most. These features can be graphical widgets or even gestures. The smartphone wars can be viewed as a theater front that targets the consumer brain. The consumer desires high quality products at low costs and so the tech companies would want these patents to maintain revenue and be able to make products at reasonable costs. It may be necessary to look at policies related to patents and see what would be necessary to maintain the interest of both the companies and the consumers.
From the company's view, the patents are necessary and worth the legal fights. Recently, Google sold Motorola to Lenovo. However, the Motorola manufacturer was sold and not the patents. This offer emphasizes the importance of patents to companies to give them the competitive edge and prevent people from stepping on the finding. On average, patents can take three years or more to be filed and approved. With this slow process, current patents become more attractive than ever for the technology companies. The fate of some of the large technology companies rely on dominance in the smartphone space.
Recently, there have been discussions of the patent war that demonstrates the strategic importance companies place on patents. Furthermore, there has been many legal battles to maintain control over patents.
Based on recent discussion, the tech giants such as Google or Apple can use these patents to ensure royalties and benefits. These litigation cases help provide a competitive edge for the company. The competitive edge comes from the fact that the other companies who do not have a patent are forced to work around it. Bottom-line, the companies need more time and funding to develop different products. This trend can be strongly seen in the recent case of Google recently being fined $125 million for push notification technology.
For smaller innovators, there is an interesting alternative to dealing with patents. The larger technology companies such as Apple have all the resources to pursue and successfully obtain patents. Smaller inventors and companies do not have the same resources and can look to these middle group organizations such as IV
(Intellectual Ventures). One way to look at these groups is to imagine "a Costco warehouse that provides patents for people to use" (NPR). This method can provide a possible solution to dealing with these larger companies and infringement issues without the need of the smaller guy going toe-to-toe with Google or Apple. Mind you, these groups were around three years ago but they are still operational today. In this manner, they may be able to foster innovation in a more positive manner rather than being legally driven to that point. Innovation can then occur by the pure desire of the company or individual without being so focused on beating the competition.
