Posts Tagged ‘ip overview’

Patent Grabs Continue – Why?

Thursday, 12 April, 2012 06:00 Written by Dan Pierron 0 Comments
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The latest major acquisition of patents by a big computer software corporation has been agreed to between AOL and Microsoft.  The sticker price this time: $1.06 billion.  The purchase includes more than 800 patents, putting the per-patent price north of $1 million.  On the heels of purchases by Google, buying Motorola Mobility and its attending intellectual property, and the Nortel portfolio sale, major corporations continue building their IP war chests.  More than this, they are doing so largely by raiding the portfolios of other large companies that are either distressed or worse.  If it has its way, Kodak will be the next big seller.  The question becomes: to what end?

In the battle between tech giants, the power afforded by a patent potentially allows the owner to prevent the manufacture, import, or sale of products that infringe the invention described in the patent.  Scale this power by the thousands of patents owned by companies like Google and Apple, and the opportunity to hobble a competitor is manifest.  Hence, tech companies are tripping over themselves to amass greater and greater numbers of patents in the areas of electronics, software, and, as in the case between AOL and Microsoft, advertising.  Given the numbers of patents owned by the major players, and the complexity of a given product, it’s a safe working assumption to say that every major product released by the likes of Apple, Goole, Microsoft and others of that ilk infringe on at least one patent owned by a competitor.

So what is keeping patent owners at bay, permitting infringing products to enter the market?  Essentially, mutually-assured destruction.  Given an increasing number of patents owned by a given competitor, the probability of that competitor owning a product that one or more of your products infringes approaches 1.  If one tries to assert patent rights, that will in turn spur a counter-assertion.  This gives rise to a stand-off; although there is potentially much to be gained by excluding a competitor’s product from the marketplace, the consequences of that action could substantially outweigh the benefits.

 

Continuing the Cold War allusion, patent acquisitions like those mentioned above are tantamount to an arms race between nations.  Nobody wants to be left behind, so everyone commits more and more resources to protection.  Consortiums are even arising, akin to treaty organizations, to the chagrin of those that are excluded.  In sum, barring major changes in the philosophy in the business practices driving the tech industry, the one with the biggest patent portfolio looks to be king of the hill.

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.

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.

 

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