Posts Tagged ‘invention’

The Patent Office Is Not Ready For The Java Update – Don’t Do It!

Friday, 11 November, 2011 09:58 Written by Mark Malek 5 Comments
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By: Mark R. Malek

Consider the title of this article a very mild way of stating my frustration with the Patent Office.  Yesterday, as I was trying to file a simple document using the Patent Office’s Electronic System, I kept getting an authentication error when I was trying to log on.  I could not figure it out.  I know that my digital certificate is up to date and I know that I had the right password.  What in the world could possibly be wrong?

Maybe it was because I was using Google Chrome.  My paralegal that does most of the filing uses Internet Explorer.  That had to be the problem, right?  Mind you that I am no 20 minutes into this frustrating process, all to file a document that took me 4 minutes to draft!  So, I open up IE and try to log on.  Guess what?  Authentication error again.  Now the mild cursing begins (if you know me, you know that this is when spectators start giggling).  I know what to do, I’ll delete the digital certificate from my computer and ask my paralegal to email me another one.  You guessed it – that didn’t work either.  How frustrating do you think it is that someone is able to log onto the PTO Electronic Filing System using my digital certificate just 10 feet from me???

No problem – I’ll just call the PTO.  After navigating through about four operators and explaining the problem, I finally get a very helpful technician on the phone.  I explain the problem to her and her first reaction was the following: “Did you update Java?”  Well, not intentionally.  I do remember that when I got into the office on Wednesday, my computer was restarted and I received the indication that Windows had performed some updates.  That’s when it must have happened.  To my surprise, the technician explained to me that the PTO system was not compatible with the Java update and that I would have to uninstall the update, and reinstall an old version of Java.  Really?  The United States Patent Office?  The forefront of technology was not ready for the?

Here’s my single biggest gripe.  I receive an update from the PTO every couple of days via email.  It is some sort of breaking news, or some story about happenings within the PTO.  Would it have killed you to let me know about this problem that way?  How hard would it have been to send a quick email blast to every patent practioner out there about this issue?  I was humored when the technician told me that about 80% of the calls she received lately were for this very issue.  By the way, I had about 1 hour of my day into this disaster by that point.

As promised by the technician, uninstalling the update and reinstalling the old version of Java did the trick.  I can’t say that the Oracle site is the easiest thing that I have ever navigated, but, with a little help, I was able to find the old Java update 27 and install it.  I haven’t even told you the good part yet.  Once I got everything working, and once I was able to log onto the PTO Electronic Filing System, I was presented with a notice in big bold letters – something along the lines of “the Java update 29 is not compatible with the PTO Electronic Filing System.”  What the heck kind of government operation was this?  When I saw that notice, a string of profanity flowed from my mouth that was unmatched, even by the standards of Ralphie’s Dad from A Christmas Story. I sometimes refer to these types of meltdowns as an “Egyptian Conniption.”  Present me with a government issue like this again, and you are sure to witness it.

To my friends at Patently-O that posted a story about this issue today, I am here to confirm that it is an issue.  A little note to Director Kappos – I have been very pleased with all that has been accomplished by you as the PTO Director, but I can’t believe this one got by the IT folks at the PTO.

 

 

Angry Birds Developer Latest Invitee to the Lodsys Patent Infringement Party

Wednesday, 27 July, 2011 09:34 Written by Mark Malek 0 Comments
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By: Mark R. Malek

This story hits a little close to home because of my love for the Angry Birds game.  I don’t think it is the game that gets me so much as it is the noises that the birds make as they are rocketed from a sling shot to perform all manner of acrobats while destroying a structure in hopes of making a green blob explode.  It doesn’t hurt that the games are generally free through the Android Marketplace or the App Store.

We are so confused by this Patent Troll

Going past the free levels, however, is where the problem allegedly lies.  Although many of the levels are free, there are some additional levels that are available for purchase by users.  According to this story on Benzinga, which sites another story on The Telegraph, the Lodsys patent allegedly includes claims that cover a method for allowing players to purchase new levels inside its mobile application.  (See also this story on CBR)

Of course, the common theme that I have been seeing in many of these stories is that there is a problem with allowing patents on software – let the comments begin.  I, of course, do not see any problem with patents on software.  Many software developers disagree, but I do not believe that they are applying U.S. patent law when making their arguments.  In short, a U.S. patent, and patents in general, are meant to provide protection on the functionality of an invention.  So what is wrong with protecting the functionality of a piece of software?  The software field is so crowded, that any allowable software patent application is generally focused on a very specific function, and the manner in which that function is carried out.  We got a bit (a very little bit) of direction from the United States Supreme Court in their Bilski decision a little over a year ago (see my story on Bilski here), and with that, we were presented with the “machine or transformation” test, but were also told that this test was not the only test out there.  I guess we will have to wait and see what other tests there are, but we know that “machine or transformation” does not stand alone.

I was pleased to read the article regarding this matter by my good friend Gene Quinn, founder of IPWatchDog.com, and one of the teachers of the patent bar review course presented by PLI.  Gene points out what I believe is the bigger issue – the patent troll.  Gene notes that a patent troll generally gets the process started by finding an attorney willing to take a patent infringement case on contingency, and filing a complaint riddled with broad allegations.  That is part of the reason why the story’s regarding this Angry Birds infringement matter are a bit vague.  We are not too sure what aspect of the Angry Birds game is allegedly infringing.

We will have to wait and see how this, and the other Lodsys suits, turns out.  It will be interesting to see if Apple keeps out of this somehow.

Infringement in 3D – A brief patent attorney’s analysis of the alleged Nintendo 3DS patent infringement

Thursday, 07 July, 2011 20:38 Written by Scott Nyman 1 Comment
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Scott Nyman

 

A couple months ago, Nintendo launched its newest 3D handheld gaming device, the 3DS. Being a gamer with little free time, I picked one up to satisfy my gaming itch in piecemeal sessions. I will say, the 3D works and the novelty has not worn off yet. Also, this little device is a blessing when you’re stuck in ATL because Delta forgot to assign your plane a crew.

But, not everybody is overjoyed with Nintendo’s handheld venture into the third dimension. Tomita Technologies is claiming that the 3DS violates one of its patents, which issued in August 2008. U.S. Pat. No. 7,417,664 issued to Seijiro Tomita, titled, “Stereoscopic image picking up and display system based on optical axes cross-point information,” certainly has a verbose title, but does it have the legs to support a patent infringement lawsuit against the Big N?

The Tomita ‘664 patent includes one independent claim:

1. A stereoscopic video image pick-up and display system comprising:

a stereoscopic video image pick-up device including two video image pick-up means for outputting video information from said pick-up means;

a stereoscopic video image display device for displaying different video images for the eyes of a viewer; and

a medium for transmitting video image information from said stereoscopic video image pick-up device to said stereoscopic video image display device,

in which said stereoscopic video image pick-up device includes cross-point measuring means for measuring CP information on the cross-point (CP) of optical axes of said pick-up means and outputs information including the CP information and video image information to said medium; and

in which said stereoscopic video image display device includes offset presetting means for offsetting and displaying said different video images based upon said video image information, said cross-point information and information on the size of the image which is displayed by said stereoscopic video image display device.

Now, without going into why I don’t care for means-plus-function language in the claims (I’ll write more about this in another article), we have to go into the specification to pick out what pick-up means may include. Yay! We also get to figure out what a cross-point measuring means might be. Double yay! It’s like a treasure hunt.

Please keep in mind, everything said below is based on a skim of the patent and a guess. A full analysis and report would take a great deal of time, which I’m not willing to devote without a big check from the Big N (hint, hint, Nintendo…) Also, I have not ordered, and do not plan to order the prosecution history to see how the claims have been narrowed between filing to allowance. With that said, please take opinion below for what it is, a guess.

Digging through the spec with a word search for “means,” by far the second most used word in the patent (next to “the”), I have some rough idea of what these various “means” include. For example, a “pick-up means” looks to be a stereoscopic camera used to record a left and right video image.

My guess is that with enough money, and a search more thorough than any Patent Examiner can give, Nintendo will likely be able to invalidate this patent. But how can Nintendo’s search be better than an one performed by an Examiner, a person whose career is to search and determine patentability? The answer is simpler than you may think. The Examiner has roughly 5-10 hours to dispose of a patent application, ending in a rejection or allowance. A litigating attorney has as much time as the client is willing to fund.

So let’s take another look at that claim, viewing them as broadly as they allow.

A pick-up means, viewed broadly, could be two artists sitting next to each other, drawing in a flipbook from what they see at their angle. Let’s give the right artist a red pen and the left artist a blue pen. They record a motion picture (video) to paper in the flipbook (medium). The paper is then removed from the individual flipbooks and ordered sequentially, red page 1, blue page 1, red page 2, blue page 2, and so on. Where the vision of the artists intersects may provide the CP information. The stereoscopic flipbook, with the pages rearranged, (display) may pass through red-blue glasses (offset presetting means), like you may get with comic books. A motion picture image may be received from the paper (medium) of the flipbook, after which it is offset into a right image and a left image by the glasses (offset presetting means), and received by the eyes of a viewer with the CP information preserved.

It’s a stretch, I know. But, how many display devices do you think have been invented between the flipbook and the Tomita ‘664 patent? Time to get searching, Nintendo. This one’s in the bag.

 

View the full patent at issue at the link below:

http://www.google.com/patents/about?id=ngetAAAAEBAJ

 

USPTO and Partner Offices Agree to Test New Framework for Patent Prosecution Highway

Wednesday, 06 July, 2011 07:10 Written by Mark Malek 0 Comments
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By: Mark R. Malek

In a press release issued last week, the USPTO announced its participation in a pilot program to test an enhanced framework for the Patent Prosecution Highway.  Under the provisions of the Patent Prosecution Highway, an Applicant that receives a notice from an Office of First Filing that at least one of the claims they filed is allowable can request that an application pending before an Office of Second Filing be “fast tracked.”  This is odd in that it is a form of government efficiency (picking up the sarcasm yet?).

If that impresses you, the new framework for the Patent Prosecution Highway will blow your mind.  Under the current plan, eligibility to participate is limited to reuse of search and examination results from partner offices of the first filed application in the patent family.  The new framework allows for applicants to request participation on the basis of results available on any patent family member from any office participating in the pilot program.

Ready for the translation?  Essentially, Applicants that file foreign applications are likely to have applications pending in many jurisdictions.  Sometimes, these applications may all be pending at the same time without any response from the Office of First Filing.  For example, an Applicant may have filed an application in the United States as the Office of First Filing.  Let’s say that the no action has been taken on the application, but that the Applicant has also filed similar applications in Australia, Canada and Denmark, in that order (all offices that participate in the Patent Prosecution Highway).  Let’s then assume that a response is received from Denmark indicating that at least one of the claims is patentable.  Since the Denmark application represents the Office of Fourth Filing, under the current plan, the Patent Prosecution Highway provisions would not apply.  This new pilot program removes that restriction, and allows an Applicant to request that their application be “fast tracked” based on the results from the Denmark Patent Office.

I am happy to see that the Patent Offices around the world are coordinating with one another in an effort to speed things along.  I guess that everyone realizes that protecting innovation, in a somewhat expedient manner, does help the economy.

 

Another Feather in Its Cap: Apple Awarded Patent for Multitouch Interface

Monday, 04 July, 2011 06:52 Written by Aaron Thalwitzer 1 Comment
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Aaron Thalwitzer

Apple has finally been awarded a patent for one of the neato-techs that makes your iPhone and iPad tick. Ostensibly a patent for a “portable multifunction device, method, and graphical user interface for translating displayed content”, it’s basically the  IP behind two-finger zoom feature versus one finger scroll feature is the most obvious application of this idea. The question is whether the patent awarded by the US Patent and Trademark Office is enough to protect the full breadth of Apple’s invention, and whether Apple’s competitors will decide to dispute it in court.

Apple filed the patent in 2007. It describes:

A computer-implemented method, for use in conjunction with a portable multifunction device with a touch screen display, [which] comprises displaying a portion of page content, including a frame displaying a portion of frame content and also including other content of the page, on the touch screen display. An N-finger translation gesture is detected on or near the touch screen display. In response, the page content, including the displayed portion of the frame content and the other content of the page, is translated to display a new portion of page content on the touch screen display. An M-finger translation gesture is detected on or near the touch screen display, where M is a different number than N. In response, the frame content is translated to display a new portion of frame content on the touch screen display, without translating the other content of the page.

Many commenters have declared the patent to be too broad; that it essentially gives Apple a patent for the multitouch user interface common to most modern smartphones, including the Android. I don’t see it as a game-changing development. Probably, the other smartphone makers, or just as more likely, Apple itself, will negotiate a license for the invention. Failing that, litigation is likely, but this is not Nokia v. Apple, so I don’t see ramped-up and drawn-out lawsuits over this one. Probably, whatever licensing agreements are struck will involve cross-licenses covering various other patents. Both sides win because uncertainty decreases; both sides will know where they stand with regard to the IP, and neither has to explain to Wall Street why they forked over millions for technology that each shareholder just knows ‘would have held up in court’. People have the idea that there is no way their case could be lost, that the system works (in spite of everything they know), and that if the judge or jury just hears their side of the story, it will all work out. Maybe. But that could costs hundreds of thousands — with no guarantees. The best bet in an uncertain world: move on, take what you can get, and don’t let it get personal. Easier said than done. But, I digress.

Commenters have come out on both sides, some arguing that Apple may now enforce all capacitative multitouch interfaces. But the consensus seems to be that it covers only smartphone applications of such interfaces. I’m going with the consensus view. Anyway, Apple is already up to its ears in IP litigation with Samsung, HTC, and Motorola, though many interests would love to see an all-out cage fight between Apple and Google (the blog posts write themselves!).

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