Making the World a Better Place through Patent Licensing

For this week, I found an interesting article discussing the Licensing Executive Society (LES) conference being held in Moscow. It is interesting to realize there is a global group dedicated to dealing with intellectual property and patent issues.

Primarily, this conference brings to mind the issue of licensing. It seems that licensing is a huge general trend that people have been moving towards recently. Rather than suffering the costs of litigation, licensing appears to be a compromise to minimize the number of patent disputes. I am not certain though converging to licensing is always the best idea. However, it seems great to have open communications between patent attorneys, judges and the WIPO (world international property organization) director.

Even in other cases, there are efforts to ensure fair competition and help regulate the patent system. However, it will be interesting to learn if any progress can be made through improving the patent process with all of these high officials here. Again, the issue is that the parties involved in this conference has different perspectives and thoughts on patent disputes. For example, Chief Judge Randall Rader has been involved in cases distinguishing patent ownership from copyrights (Federal Circuits: Author post).

Even with the judicial court hammering down on false advertising and patent ownership, it does not prevent patent trolling or endless patent litigation today. However, it was pointed out that lawyer Hess was present at this LES conference who was responsible for helping Microsoft circumvent the Motorola appeal. Hess provided very clear arguments for non-experts to understand in the Microsoft case. Perhaps this style that Hess provides might be necessary to bring up in this conference as a standard for patent litigation.

http://www.fosspatents.com/2014/03/licensing-executives-society-wants-to.html
http://patentlyo.com/patent/2014/03/7182.html

Federal Circuit: An Author is not an Inventor

This week, I recently read a new article that discusses the nuances of patent ownership. It is interesting since there is a distinction between authorship and inventorship. Here, I will be looking at this issue through the case of the StoneEagle company.

The situation was that there were two men, Gillman and Allen, who worked on the collaboration and wrote up patent No. 7,2792,686. Gillman was not on the document officially but later claimed that he possessed the original documents. However, he did not win in court due to the dispute that the Federal Court found on the jurisdiction to rule on this case. The StoneEagle company was able to retain control of the patent that was filed under Allen's name.

The important issue here is determining the extent of the legal jurisdiction. The court decided that there was controversy between Gillman and StoneEagle company but the ownership dispute was related to a local law. As such, the dispute remained in the realm of local laws and processed by local courts. Since Gillman helped write the draft, he was considered a drafter and not necessarily an inventor. I do agree with the article that it would have been more helpful to prove Gillman was an inventor rather than writer for the patent.

Another interesting point was the case was conducted in Texas. Given the significance of location, the case may favor the individual pursuing the disputed patent. However, Gillman did not win the case and could not concretely prove he was part of the inventing process. Allen's name is only shown on the patent which the USPTO had allowed.

Gillman could have made alternative strategies if he was unable to acquire the patent. It would have been possible for Gillman to prove that the patent is invalid and should be revoked. In this case, StoneEagle would not be able to benefit from the patent. Looking at other patents, there is another healthcare payment system patent filed earlier by Lieberman which could have been used to show that StoneEagle did not make something novel.

Also, the Gillman legal group could consider disputing the patent on grounds of obviousness. This tactic could greatly weaken the validity of the patent. If a skilled expert in payment systems would be able to look at an earlier patent and show that it would have been obvious to implement StoneEagle's system, then the patent would have been invalidated and Gillman would have at least prevented others to benefit from it.

http://patentlyo.com/patent/2014/03/inventor-authorship-inventorship.html
http://patft.uspto.gov/netacgi/nph-Parser?Sect2=PTO1&Sect2=HITOFF&p=1&u=/netahtml/PTO/search-bool.html&r=1&f=G&l=50&d=PALL&RefSrch=yes&Query=PN/7792686
https://docs.google.com/viewer?url=patentimages.storage.googleapis.com/pdfs/US20070050205.pdf

Gone Fishing for 25 Years

There was an interesting case of a twenty-five year old patent application. The issue here is the patent office found the application still violated one of the three main features of a good patent: non-obviousness.

For the patent, the inventor, Mr. Rudy, submitted this application of a special fishing hook that was a) translucent and b) nature-inspired. The issue was that there was prior art that existed in two different patents that focused on each aspect of the claim that Mr. Rudy tried to file. More specifically, it seemed that the patent office found it violated on the fact that prior art was already released even though the prior art came from two different patent applications.

Also, the subjectivity comes to determining if an expert in fish hooks could look at these two older patents and come to the same conclusion. It is a debate if Mr. Rudy simply came up with a slightly better mousetrap (a device that builds on previous inventions in the same area). It is possible that Mr.Rudy may not have been aware of the two patents for the past twenty five years. However, he did not add on the existing technology; he simply combined two technologies that came from seemingly related areas.

There are also other possible considerations that Mr. Rudy can take regarding future appeals if he continues to do so. These secondary considerations are taken into account for patent applications. If Mr. Rudy was able to prove that his idea had commercial success, the patent office would be able to reconsider their original decision. Also, Mr. Rudy could have made a convincing case that demonstrates his idea was something the fish hook industry went away from during his initial patent filing. Another possibility is that his idea solved a major problem that the fishing industry needed. However, it seems possible that fish hook users could have easily added feathers and drawn eyes to make the hook more appealing.

Here, it seems that common knowledge would have led to Rudy's invention even without experts in the area. Also, the sheer number of appeals may have not pleased the patent office and affected the relationship with the examiners.It does seem odd that the examiners continue to reject the appeals and amendments even on the basis of "persistence." What's even more interesting is that the USPTO made the final decision here without any involvement of the judicial system. It does seem interesting that Mr. Rudy never sought legal aid to get his patent approved if he really wanted to. It may be that the law prohibits such a case being pursued since I do not have an appropriate legal background.

http://patentlyo.com/patent/2014/03/fishing-application-rejected.html

https://www.google.com/patents/USD276360?dq=D276360&hl=en&sa=X&ei=uv0hU869OcXR2AXgvIHQBA&ved=0CDYQ6AEwAA

https://www.google.com/patents/US2511117?dq=2,511,117&hl=en&sa=X&ei=Wv0hU9CMOYjQ2AXt1YC4DA&ved=0CDYQ6AEwAA

Google Street View

I recently read an article this week that discusses another dispute between Google and the Vederi company. The issue was whether the technology truly infringed upon the patents kept by Verdi.

Also, the obviousness was not evident based on the results or images. It does not seem Google was using it to maintain commercial dominance in terms of profits. As Judge Kozinski initially stated, the term "substantially elevations" seemed to limit the type of image possible for this Street View technology. This difference in interpreting the term indicates that the difficulty in making these decisions. What is obvious for one person may not be obvious for another; the detail may be open to interpretation. This conflict in perspective may require another third party to look at the issue or the best alternative since the two judicial decisions do not agree with each other.

Perhaps, it is also important to look at the influence of power in determining obviousness. In the case of the judicial system, there is already a power difference between the ninth court of appeals compared to another federal circuit. Especially in this case, the judicial system may be subjective in determining if the image technology of the companies are different. In fact, this issue brings to light the issue that it may be obvious that the images taken by Google and the images described in Verdi's patent are quite different but it is up to the judge to determine the outcome. Here, the case indicates a classic example of absolute power since one federal circuit judge is trying use their authority to show Judge Kozinski's decision was unjustified.

http://patentlyo.com/patent/2014/03/kozinski-reversed-circuit.html

http://patft.uspto.gov/netacgi/nph-Parser?Sect1=PTO2&Sect2=HITOFF&p=1&u=%2Fnetahtml%2FPTO%2Fsearch-adv.htm&r=1&f=G&l=50&d=PALL&S1=07239760&OS=PN/07239760&RS=PN/07239760

Samsung vs. Apple Appeals-Round 3

In recent news, Apple and Samsung have continued their long struggle in pursuing patent infringements at least in California. It is interesting that Samsung quickly went for appeals based on dissatisfaction with some of the decisions made in this case.

One interesting outcome was that Apple was denied an injunction but did not have any of their claims invalidated by the court. This decision is problematic since there is a huge discrepancy between the decision of the USPTO and the court. Ultimately, it comes down to which decision will be considered more dominant and not necessarily on validity-arguments can be made for both sides. With something as broad as a pinch-to-zoom feature, does Apple's patent help only itself or is it beneficial to other people including consumers. Perhaps, is it important to reevaluate specific patents especially if the market changes to the point where it has become a common feature. It is possible that clinging on to the patent may not help the market evolve at a faster rate given companies would be focused on trying to resolve these litigation disputes.

Another important issue presented is the idea of causal nexus. Causal nexus generally means a link between the cause and effect. In patent infringement, it would be possible that the claims of patent violation would cause harm to the respective company. In this case, it would be very difficult to have strong evidence that harm has come to either Samsung or Apple from patent infringement (especially since the companies are so large). In fact, Samsung has so far not been required to pay damages for any of the claims in this case since it is going on to the third trial.

In light of the causal nexus argument, the issue could tie back to entitlement. The inventors granted patents are not necessarily guaranteed to injunction. And so, it has become a difficult issue to determine if some of the people are entitled to these claims whether through a legal or technical basis. It would be interesting to follow how the USPTO will continue to deal with this issue of entitlement and determination of what would be a "valid" patent claim.

http://www.fosspatents.com/2014/03/that-was-quick-samsung-appeals-final.html

USPTO Guidelines on Products of Nature and Natural Phenomena

It is interesting to look at a recent discussion on the validity of patents related to natural law and phenomena. Generally, a patent is defined to be an exclusive agreement between the government and the inventor or person responsible for the idea. The two major issues is the type of people involved in the infringement decision as well as the process in evaluating a claim.

Often, the judicial members and the patent office examiner are both heavily involved in the infringement case. The issue is that there is a distinction in the type of knowledge that the jury has compared to that of the examiner. Even with the new training, the examiners still do not have the necessary legal knowledge to effectively communicate with the jury. Ineffective communication will not convince the juror that the examiners' decision was correct especially that the pinch-to-zoom claim would not be helpful for the competition and innovation. It could be helpful to have universal guidelines that would also be considered for both the examiners and judicial officials to minimize the number of patent infringements claims that the jury makes. It will be interesting to see how much commitment the USPTO has in closing the gap between the legal mind and technical mind.

Also, I think there are some problems in some of the process steps involved in evaluating the claim. The process is similar to a flow chart for a code program. The claim is valid if it falls under statutory category such as process, machines or composition. The most interesting part of the evaluation that examiners follow is determining claims fall under judicial exception that includes abstract concepts and natural laws. It is an issue since there is subjectivity in determining if the claim is "significantly" different from what constitutes a judicial exception. In essence, ideas such as natural phenomena should not be patented since it could be an integral part of how hundreds of other patents function (such as electricity). However, it is possible to see patents on how one models a phenomena in the sense that there could be different theories associated with it.

http://patentlyo.com/patent/2014/03/eligibility-guidelines-phenomena.html