Posts Tagged ‘inventor’

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.

 

Director Kappos Issues Statement as House Considers Patent Reform

Wednesday, 22 June, 2011 11:57 Written by Mark Malek 3 Comments
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By: Mark R. Malek

In a press release dated today, USPTO Director David Kappos congratulated members of congress for ushering the America Invents Act onto the floor for consideration by the full House.  My colleague, Scott Nyman, has written several articles about the America Invents Act (see articles here, here, here, here, here, here, here, and finally, here.  As you can tell, the American Invents Act is something that is slightly important to us, and we have been following it closely.  Much of what will come with patent reform will have a direct impact on inventors and various strategies for obtaining patent protection for your inventions (not your ideas).

In his press release today, Director Kappos warned Congress that the USPTO would need access to all of its fees “in order to carry out the mandates of the legislation effectively and perform its core mission to support America’s inventors.”  Kappos is right on.  I have been catching a lot of heat for being so supportive of Kappos.  I have been hearing a lot of folks gripe that he is pro-big business and anti-small inventor.  I think that is not the case at all.  The idea of allowing the USPTO to keep the funds that it generates is geared towards transforming the Patent Office into a more effective and efficient agency.  It will allow the pendency times of patent applications to be decreased by allowing the USPTO to increase the number of examiners, provide enhanced training and improve the infrastructure at the Patent Office.

Of course, these measures help the entire patent system, but they are especially helpful to the small inventor that is likely relying on his/her patent application to be allowed so that they can show investors that they have carved out a specific part of the market.  Believe me – big business is not waiting on the sidelines to launch their technologies.  Truly, the last thing that the USPTO needs is some excuse to increase “government oversight.”  I have said it before and I’ll say it again – why mess with an organization that has consistently operated in the black?  Why skim money from such an agency just to support other agencies that operate in the red?  It just doesn’t make sense to me.  I can only hope that Congress takes the warnings of Director Kappos seriously.

 

OBAMA ADMINISTRATION OUTLINES ADMINISTRATION SUPPORT OF THE AMERICA INVENTS ACT

Thursday, 02 June, 2011 19:59 Written by Scott Nyman 1 Comment
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Scott Nyman

 

As you may recall, I wrote a series of articles (here, here, and more) about the America Invents Act, formerly known as the Patent Reform Act of 2011. In the articles, I outlined the proposed changes to the US Patent System from where it stands today. I also included some views and commentary regarding what I believe is representative the patent community. That view? First to file hurts inventors and is a step backwards for the American inventive spirit.

This week, U.S. Commerce Secretary Gary Locke has issued a press release outlining the Obama Administrations take on the act. Locke states,

The America Invents Act, sponsored by Chairman Smith, enhances the U.S. patent system by increasing certainty of patent rights through implementation of a first-inventor-to-file standard for patent approval while also reducing the need for cost-prohibitive litigation, which all too often ties up new ideas in court, stifling innovation and holding back job creation. It will also allow the United States Patent and Trademark Office (USPTO), which is entirely fee funded, to set and retain the fees it collects from its users. This fee-setting authority will ensure high-quality, timely patent review and address the backlog of patent applications that is currently preventing new innovations from reaching the marketplace. Ultimately, the proposed legislation will provide the most meaningful reforms to the U.S. patent system in 60 years.

The press release continues, stating, “In meetings with CEOs and U.S. business leaders from companies of all sizes, the shortcomings of the U.S. patent system and the need for reform has almost always been a topic of conversation.” This comes as no surprise, seeing how first-to-file patent systems tend to favor business and corporations that can afford to file a large number of patents just to lock in a priority date.

Although Locke argues, “The cost of proving that one was the first to invent under the current first-to-invent system has been prohibitive for many small inventors, generally favoring larger entities better equipped to handle legal challenges. With the appropriate resources to process patents more quickly, inventors will be able to use their intellectual property rights as vehicles to leverage new sources of funding for their innovations.”

Under the current system, in a debate over the first-to-invent, the Courts will initially look at the filing date. An inventor claiming to priority over a previously filed patent must be prove their priority with cold, hard evidence. Also, the inventor has to continually develop the invention. If he or she comes up with the conception for a new invention, and fails to diligently pursue developing the invention, the right to claim priority will be lost.

Under the new system, how are inventors supposed to use the funding received earned through their intellectual property if they can’t file their application as fast as a multibillion dollar company with an entire patent department?

The USPTO has some great ideas to improve its operations, such as the first full action interview program, a government-wide training database, and committing to remain open through threatened government shutdowns.

If you want my opinion on how to improve the US patent system (and I’m sure you do!), allow the USPTO to keep all the revenue it generates, revive the plan for satellite offices, and burn through that patent backlog. Granted, it’s easy for me to sit here in Florida and say this. However, this is the plan the USPTO had in place, which it recently scrapped.

You can read the entire press release here:

http://www.uspto.gov/news/pr/2011/irl_2011may31.jsp

 

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