Wednesday, August 27, 2008

How chemical giants and their patents helped Nazi Germany

A new book Hell's Cartel: IG Farben and the Making of Hitler's War Machine by Diarmuid Jeffreys (Metropolitan Books)has been published, incurring the first sentence of the review describing correctly the tone of the book: In February 1941, a top manager of German chemical group IG Farben thought he had found the perfect location for a new synthetic-rubber factory. The site was out of range of Allied bombers, easily reached by rail, and had plenty of water and coal. Most important, there was a ready supply of cheap labor. The site was near a town in occupied Poland called Oswiencim, better known to history as Auschwitz. The author writes at one point about how important IG Farben's role was: "Had IG Farben been even marginally less compliant, Hitler would have struggled to get his war machine moving." IG Farben was a consortium/cartel formed by big German companies Bayer, BASF, Hoechst and with many smaller companies in 1925, which were and still are big patentees in the chemical world. That these companies are such big patentees relates to an interesting lament in the review: "Probably never in history has a major corporation been twisted to such evil ends. Yet what is most disturbing is that, for most of its past, the conglomerate and its predecessor companies embodied many of the qualities we admire in business today. Its managers were inventive and diligent, and its scientists discovered vital medicines, with quite a few earning Nobel prizes." And even more were earning patents. Interestingly, a book based on a PhD thesis: "Divide and Prosper: The Heirs of I.G. Farben Under Allied Authority, 1945-1951", by Raymond G. Stokes (University of California Press, 1988) discusses, among other things, how the Allies temporarily "seized" the patents of the I.G. Farben component companies as part of their post-war control of Germany. If anyone buys/reads the book, I'd appreciate any comments on it, especially in comparison to a controversial book written a few years ago about another well managed, innovative company with many patents whose products were used by the Nazis to evil ends - IBM. That book was titled "IBM and the Holocaust" by Edwin Black. I quote from the Wikipedia entry on "History of IBM": Although IBM actively worked with the Hitler regime from its inception in 1933 to its demise in 1945, IBM has asserted that since their German subsidiary came under temporary receivership by the Nazi authorities from 1941 to 1945, the main company was not responsible for its role in the latter years of the holocaust. Shortly after the war, the company worked aggressively to recover the profits made from the many Hollerith departments in the concentration camps, the printing of millions of punch cards used to keep track of the prisoners, the custom-built punch card systems, and its servicing of the Extermination through labor program. The company also paid its employees special bonuses based on high sales volume to the Nazis and collaborator regimes. As in many corporate cases, when the US entered the war, the Third Reich left in place the original IBM managers who continued their contacts via Geneva, thus company activities continued without interruption. IBM can always be blamed for the "monstrously bad" logic, bad science and worse engineering of Benson, a decision lawyers should be disbarred for citing, the decision being such a travesty of justice, a decision that quotes three paragraphs from a U.S. presidential commission on software dominated and controlled by... IBM, the first and biggest troll ever. Making their stock usually a good buy.

Sunday, August 24, 2008

How nanotechnology started really in 17th century, if not earlier

The Corning Museum of Glass is having an exhibit through 4 January 2008 on the legitimate work of alchemists from 1650 to 1750 with regards to glass, a period in which some alchemists transformed themselves and their field into the science of chemistry. The 20 August 2008 issue of the Wall Street Journal, page D9, has a nice review of the art show. A few of the review's paragraphs briefly recount one early success in what is now the field of nanotechnology similar to that of the even earlier success of ancient Mayans making the nano-sized Mayan Blue pigment:
The other contribution from alchemists during this period was ruby-gold glass, which has a distinctive red hue. The problem had long been dissolving the gold down to precise nanoparticles. If the particles were too small, they wouldn't scatter the light among the proper spectrum and the glass would appear clear. Too big, and the glass had a turbid, brownish color. The key breakthrough came in 1659, when alchemist Johann Rudolf Glauber published a paper describing how to make purple of Cassius. Using an ancient formula called aqua regia, a mix of nitric and hydrochloric acid used to dissolve gold, Glauber added a small amount of tin, which reacted with the gold to produce perfectly sized particles. Glassmaker Johann Kunckel used the purple of Cassius formula to make the first ruby-gold vessels in the 1680s. Some glass pieces using this technology are on display in the exhibit. Very valid prior art.

Saturday, August 23, 2008

How patents fall under the IRS sphere of influence

26 U.S. Code 1235 is the part of the U.S. tax code that deals with the sale or exchange of patents, and the key word here is "patents": 26 USC 1235 - Sale or exchange of patents (a) General - A transfer (other than by gift, inheritance or devise) of property consisting of all substantial rights to a patent, or an undivided interest therein which includes a part of all such rights, by any holder ... ... shall be considered the sale or exchange of a capital asset held for more than 1 year, ... ... regardless of whether or not payments in the consideration of such transfer are - (1) payable periodically over a period generally coterminous with the transferee's use of the patent, or (2) contingent on the productivity, use, or disposition of the property transferred. It stipulates patents, but does not include patent applications, especially those that still have the patent pending status. There have been published accounts, and I am sure private transactions, of people selling the rights to their patent applications. Why? Despite nonsense to the contrary, patent applications can be highly useful capital assets, and not that much less a sure thing than an issued patent (i.e., while many patent applications do not become patents, many issued patents are susceptible to becoming non-patents through invalidation). Inventors, or acquirers, in the business world, can effectively use a portfolio of patent applications. They are as much a capital asset as a portfolio of patents. Indeed, the PTO Web guide to "provisional patent applications" (which are even weaker than "patent applications"), states one clear business use of a provisional patent application as a financial asset: "Enables immediate commercial promotion of the invention with greater security against having the invention stolen;" While provisional applications are a bit wishy-washy, a patent application is a serious investment, especially in terms of claims drafting costs. It is not a hobbyist-business attempt at asset creation, especially since an inventor can spend many tens of thousands of dollars to get through a few Office Actions and still not have a patent. Yet the inventor still may be able to find someone to buy the application as an asset. An inventor should be entitled to the same capital gains treatment for his or her patent application. The phrase "patent applications" isn't the same as the phrase "patents", and thus the IRS could or could not argue that 26 USC 1235 does not apply to the sale or exchange of patent applications. Frankly, I doubt they would care either way. But the law is the law, and the law currently says that the capital gains treatment only applies to "patents". Yet another example of Congress not fully thinking when drafting an IP law. I would say that Congress "obviously" did not think this through, but Congress has yet to tell me what they mean by "obvious" in the patent world (I don't care how many pretend academics you hire, 35 USC 103 is unconstitutionally vague). Does the IRS accept "patent applications" as "patents" in interpreting Section 1235, as a case where Congress intended to use a specific term, patent, in a slightly more general way to also include patent applications? A 2002 IRS Technical Advice Memorandum on Section 1235, where the IRS itself is a bit confused about this issue (see TAM-117258-02 (August 2002), www.irs.gov/pub/irs-wd/0249002.pdf), where it writes: Section 1.1235-2(a) states that the term "patent" means a patent granted under the provisions of Title 35 of the United States Code, or any foreign patent granting rights generally similar to those under a United States patent. .... So far the memo, and this paragraph, is still talking about "patents", with a very reasonable modifer that "foreign patents" are "patents" under 1235. But then the IRS writes: .... It is not necessary that the patent or patent application for the invention be in existence if the requirements of 1235 are otherwise met. Where did "patent application" come from? It is the only time the phrase is used in any definitional sense in the memo, and seems to imply that "patents" in 1235 includes "patent applications". Indeed, IRS Regulation 1.197-2(c)(7) [197 deals with amortizing goodwill and the like], at one point in time, if not still today, describes as assets excluded from Section 197 including both patents and patent applications, again implying some sort of asset equivalence for patents and patent applications. Other instances. The IRS Web page for deducting general R&D expenses (www.irs.gov/businesses/small/industries/article/0,,id=97640,00.html) states: R&D expenditures include the expenditures of obtaining a patent, such as attorney's fees expended in the making and perfecting a patent application. Again, kind of implies equal treatment of patents and applications in the IRS' eyes. Another IRS Web page also seems to suggest that patent applications fall under 1235. The Web page, "Ordinary or Capital Gain or Loss" covers capital gains in general (see www.irs.gov/publications/p544/ch02.html). As one example of when a capital asset transaction is not treated as a capital gain, the page states: Depreciable property transaction. Gain on the sale or exchange of property, including a leasehold or a patent application, that is depreciable property in the hands of the person who receives it ... is ordinary income if the transaction is either directly or indirectly between any of the following pair of entities: .... [basically, selling to an entity you mostly control]. The implication here is that if you sell the patent application to an entity that is pretty much distinct from you (like a licensing company, or a product developer, etc.), any proceeds or royalties you receive are treated as capital gains under Section 1235. Thus it seems, in light of a fair number of IRS writings, that "patent applications" are included under "patents" in Section 1235. If so, are these scattered IRS commentaries enough assurance for an inventor selling a patent application? This is why Congress needs to add language to Section 1235 along the lines of "By 'patent' in this Section, is also meant patent applications.

Thursday, August 21, 2008

A cyber-savvy Dostoevsky overtakes John Chow

There are John Chow, Joel Comms and others, but it seems that the story of Dmitry Davydov is totally unique. Having done just about anything but nothing to do with WWW, he launched his blogging experiment that finally paid off big time. Though his blog (davydov.blogspot.com) is in Russian, I read it with the aid of Google Translate, and reads like an optimistic, cyber-savvy Dostoevsky.

Tuesday, August 19, 2008

These Must Read Books Teach How to Profit From Human Irrationality

1. Sway: The Irresistible Pull of Irrational Behavior Why is it so difficult to sell a plummeting stock or end a doomed relationship? Why do we listen to advice just because it came from someone “important”? Why are we more likely to fall in love when there’s danger involved? In Sway, renowned organizational thinker Ori Brafman and his brother, psychologist Rom Brafman, answer all these questions and more. Sway introduces us to the Harvard Business School professor who got his students to pay $204 for a $20 bill, the head of airline safety whose disregard for his years of training led to the transformation of an entire industry, and the football coach who turned conventional strategy on its head to lead his team to victory. We also learn the curse of the NBA draft, discover why interviews are a terrible way to gauge future job performance, and go inside a session with the Supreme Court to see how the world’s most powerful justices avoid the dangers of group dynamics. 2. Predictably Irrational: The Hidden Forces That Shape Our Decisions What Ariely has done here is shift a lot of the thinking developed by such pioneers as Kahneman & Tversky who worked in behavioural economics, and moved it into the everyday sphere. And he's done a great, insightful job. Where the behavioural economists are focused on financial decisions (why we buy high and sell low - and confound the assumptions of the classic economists who assume 'the rational man,) Ariely eschews the technical language and walks us through everyday examples of our often fuzzy and quite irrational decision-making. 3. The Paradox of Choice: Why More Is Less I think "Paradox of Choice" does bring insight into shopping, but its range is actually much wider than that. Schwartz discusses people making difficult decisions about jobs, families, where to live, whether to have children, how to spend recreational time, choosing colleges, etc. He talks about why making these decisions today is much harder than it was 30 years ago, and he offers many practical suggestions for how to address decision-making so that it creates less stress and more happiness. He even discusses how so much additional choice affects children, and how parents can help make childhood (particularly young childhood) less stressful. 4. Nudge: Improving Decisions About Health, Wealth, and Happiness "Buy on apples, sell on cheese" is an old proverb among wine merchants. Taking a bite of an apple before tasting wine makes it easier to detect flaws in the wine, and the buyer who does so will not as easily make the mistake of paying more than the wine is worth. Cheese, on the other hand, pairs well with wine and enhances its flavor, so a seller who offers cheese may command a higher price for the wine (and may even deserve it, if the wine is intended to be drunk with cheese). The proverb captures important psychological nuances of choice. The same product - a bottle of wine or a risky medical procedure - may be perceived differently depending on its context, and it is often possible to arrange the context to influence a choice while still maintaining the decision maker's autonomy. 5. Quirkology: How We Discover the Big Truths in Small Things Richard Wiseman is an experimental psychologist and professor of "public understanding of psychology." In this book, he discusses dozens of experiments performed by himself and other psychologists around the world over the course of the last hundred years. All these experiments have in common is unusual research methodology or amusing results. Topics include studies of personal ads and pickup lines, determining which are most effective, how to detect liars, manifestations of prejudice and hypocrisy (are religious people or priests more honest or generous than others? it has been tested). Wiseman even ran tests to see which experiments in the book are the most interesting, to help the reader know what would be the best conversation starters at parties. 6. Blind Spots: Why Smart People Do Dumb Things Clinical psychologist Van Hecke has compiled a list of 10 mental glitches that have infiltrated contemporary society, afflicting even the smartest among us, limiting thought, success and relationships. Van Hecke devotes a chapter to each blind spot, including "Not stopping to think," "Not noticing," "Jumping to conclusions" and "Missing the big picture." Examining each in detail, Van Hecke details the root causes of these unconscious habits ("information overload," "our tendency to habituate") and tactics for overcoming them, using humorous anecdotes and other real-life examples to drive her points; the key is remaining open to new ideas and taking a step back from our busy lives in order to process information, situations and people. Filling in "the big picture" herself, Van Hecke demonstrates how embracing and understanding our weaknesses can not only improve personal and professional relationships, but also entire communities; this self-help is a welcome, highly readable first step. 7. Kluge: The Haphazard Construction of the Human Mind In "Kluge," psychologist Gary Marcus looks to the many and varied foibles, inconsistencies, and inaccuracies of the human mind and concludes that our brains are not, in fact, models of brilliance and efficiency, but are rather cobbled-together systems, designed for one purpose and pressed into action for another - the classic definition of a kluge. The most famous kluge is probably the case of the carbon scrubbers on the ill-fated Apollo 13 mission. Crunched for time, engineers managed to create a system out of duct tape and socks (seriously) that worked adequately enough to clean the air on the space module- even though none of the materials they used were designed for, or optimal for, the job at hand. The result was ugly and inefficient - but it kept the astronauts alive. Likewise, Marcus argues, evolution has endowed humans with a hodgepodge of genetic material - the DNA equivalent of duct tape - with which to build all the sophisticated systems that supposedly set us apart from other creatures, like language, memory, and reason. The result is, for example in the case of language, "a vocal apparatus more byzantine than a bagpipe made up entirely of pipe cleaners and cardboard dowels." 8. The Drunkard's Walk: How Randomness Rules Our Lives The author writes to the layman, making the language of statistics, probability, randomness a fascinating read. It's clear that he's well aware of the fallacies and delusions (and consequent harm) to which most of us are easy prey. But he leaves it to the reader to draw any philosophical-theological inferences about the need for greater humility. His immediate goal is to help the reader understand the distinction between 1. the "common-sense" logic employed by self-serving finite beings coping with problems in the material world and 2. a "scientific method" that takes nothing for granted in a universe of perpetual flux. More miraculous than either the accomplishments of the romantic hero or the intercessions of a supreme being (everyday stuff for most of us) is the rare discovery that two things (or "events" in the spatial-temporal order) suspected of being connected (a hypothesis) in fact cannot be shown "not" to have such a relationship (the proof). 9. Guesstimation: Solving the World's Problems on the Back of a Cocktail Napkin Somehow, guessing at numbers is unsettling, even though I've done it all my life. John Adam is a professor of applied mathematics, with a degree in physics. Larry Weinstein is a nuclear physicist. Their book is devoted to proving that intelligent guessing is useful and fun. The book lays out some general principles but its great strength lies in the interesting problems, a series of hints to help you solve each problem, and an interesting discussion of the pitfalls and triumphs involved. 10. Influence: The Psychology of Persuasion Cialdini believes that influence is a science. This idea attracted me. As a rhetorician, I have always thought of persuasion as more of an art. Cialdini, however, makes a first-rate case for the science point of view. But maybe most importantly, he makes his case in a well-written, intelligent, and entertaining manner. Not only is this an important book to read, it is a fun book to read too. He introduces you to six principles of ethical persuasion: reciprocity, scarcity, liking, authority, social proof, and commitment/consistency. A chapter is devoted to each and you quickly see why Cialdini looks at influence as a science. Each principle is backed by social scientific testing and restesting. Each chapter is also filled with interesting examples that help you see how each principle can be applied. By the end of the book, I had little doubt that these are six important dimensions of human interaction.

Sunday, August 17, 2008

How to write a patent abstract

An abstract, just like a patent title (see the previous post), has to stick to the gist of the invention. It must briefly discuss only what the invention is, not the advantages. The advantages are left for the Prior Art section (read here). Better yet, the abstract is actually the first independent claim (from US Patent No. 6,202,053, Method and apparatus for generating segmentation scorecards for evaluating credit risk of bank card applicants.)
1. A computer implemented method for evaluating credit risk of bank card applicants comprising the steps of: a) dividing a population of bank card applicants into a plurality of sub-populations using a processing unit, based on a first factor selected from a factor group consisting of length of credit history, number of reported trades, reported delinquency, bank card utilization, and revolving balance acceleration; b) dividing at least one of said sub-populations into additional sub-populations based on a second factor selected from the factor group, the second factor being different from the first factor selected from the factor group; c) developing a scorecard for each of said plurality of sub-populations and additional sub-populations; d) applying one of said scorecards to a bank card application; and e) scoring said application, based on said applied scorecard. rewritten into a spoken, non-legalese language, the abstract should be this: A computer implemented method for evaluating credit risk of bank card applicants comprising the steps of dividing a population of bank card applicants into a plurality of sub-populations using a processing unit, based on a first factor selected from a factor group consisting of length of credit history, number of reported trades, reported delinquency, bank card utilization, and revolving balance acceleration; dividing at least one of the sub-populations into additional sub-populations based on a second factor selected from the factor group, the second factor being different from the first factor selected from the factor group; developing a scorecard for each of the plurality of sub-populations and additional sub-populations; applying one of the scorecards to a bank card application; and scoring the application, based on the applied scorecard. simple, isn't it? note bolded the's replacing patent language said's Also check out the previous post on patent titles.

Friday, August 15, 2008

How to save time (and money) on patent searches by not reading titles

Most people performing patent searches on their own use the USPTO, Google Patent Search and many of the supposedly free online patent search databases. Having no experience with patent research, they avoid reading into the Specification and Claims sections, and easily judge what they see by a patent's title. According to patent case law, a title can serve as a technical description, or a disclosure, if it is written by an ego-driven inventor or anyone else second-guessing other inventors, assuming that the detailed description in the title would quickly dissuade a browsing patent searcher from trying to reinvent the same thing. That's why the titles like these are common: HAND-HELD DEVICE HAVING A MULTI-CHANNEL ENCODER FOR SIMULTANEOUS SECURE TRANSMISSION OF VIDEO, IMAGE AND TEXT MESSAGES There are no laws in US requiring a precise language in a title. That is why most well-written titles read like this: IMPROVED HIGHWAY BARRIER SYSTEM FOR CALCULATING INDEFINITE LOOPS Thus our hand-held device should have the title of IMPROVED TRANSMISSION DEVICE Next time when you search patent database, remember that the search found the patents through searching within the specification and claim sections, not the titles.

Thursday, August 14, 2008

How a willingness to fail pays off for this bored inventor

Inventist, http://www.inventist.com/, describes how Shane Chen became bored with his job. Now, 20 years since then, the founder of CID Inc. had focused on his Camas business, selling electronic instruments to plant scientists. He wanted a change. “One day I saw an exercise equipment ad,” the Camas resident said. “I thought, ‘I can do better than that.’ ” He got to work: the result is the Body Toner, on sale six years ago through infomercials and QVC, the television shopping network. Suddenly Chen, 52, was not just the president of CID Inc. He was heading a new venture, Inventist, and he was enjoying his work again. Following the success of the Body Toner, Chen started seeing new ideas everywhere he went. Soon he was selling the battery operated Leantisserie on the Web and on TV, too, and Chen was starting to view the world like a professional inventor. Next came a series of skates, scooters and skateboards that do more than you might expect. The Swerver Ultimate Carving Streetboard is a two-piece skateboard that allows riders to propel themselves without touching the ground. The three-wheeled Xing Scooter moves when you wiggle your hips. Global scooter manufacturer Razor bought rights to the Xing, and is now selling it as the Powerwing. Chen’s daughter, Ywanne, often helped her father with his tests and ideas, he said. Now 18 and studying physics at Oregon State University, Ywanne’s name is on one of Inventist’s patents. Recently, Chen sold half of CID Inc. to Leonard Felix, who now manages day-to-day operations of the plant science business so Chen can focus on Inventist. Both enterprises are in Chen’s building at Camas Meadows. Even when he’s focused on a single area, such as scooters, Chen is working on dozens of ideas at a time. Discarded half-built scooters are piled next to a box of wheels and a shelf full of handlebars at Inventist’s store room. A willingness to fail is one secret to an inventor’s success, Chen said. That attitude has paid off. Born six years ago at the hands of a bored tinkerer, Inventist has grown into a business that does $1 million per year in sales and has four employees. Chen wants to keep the business lean, manufacturing in China and selling online or through third parties. He expects to hire a few more employees to help him build his prototypes, and he hopes that sales grow as he comes up with more inventions. “Right now I’m working on a new type of wind surfing device and a new type of skates,” Chen said. “You’ll have to wait until they come out to learn more.”

How to claim more powerfully through smart synonyms

In this Patent Writing: Claim category I have analyzed absolute musts for patent claims. There is more to it - besides the absolute necessity for making claims acceptable, and more so, have substantial claiming power, an inventor has to be on constant lookout for strategic synonym use.

For -use

Thus, I have already mentioned that For can be easily Use:

...said lever for said activating of... >> said activating uses said lever

one and only one -----a single:

...said computing unit containing one and only one RAM shunt...

...said computing unit containing a single RAM shunt...

The enough trap

And here is the famous colloquialism that can even kill a patent: the enough trap. In patent language, where there is no OR but AND (read this post), enough means an "undetermined quanitty beyond which the results are unwanted, or negative. This is the solution

enough----- a sufficient number of

...said steps 3 to 7 performed enough to yield transparent mixture...

enough here, in patent language, means do them indiscriminately, maybe in any order, or any number of the steps enough to...

it should be:

...said steps 3 to 7 performed sufficient number of times to yield transparent mixture...

Good Structures Connect Operationally

This is good for any language describing a structure of anything:

attached to associated with<----------> operationally connected to

Done is effected

done by ----------effected by

...a widget for acting... (if the action is a widget featuring means for acting (or maybe a widget operative to)crucial to the invention)

instead of

x is effected by means of y

is better served by (also read this) since means can be literally too widgety of a term

x is effected by using y

Simple, isn't it?

Monday, August 11, 2008

Jellyfish is good and bad and uncertain

Sunday's New York Times had an article about growing jellyfish problems around the world as a sign of dying oceans. One interesting comment: "Jellyfish ... are relatively harmless, in fact are the cockroaches of the open waters, ...".

Sunday, August 10, 2008

US Court dethrones a Fed judge, cancels a Microsoft win

(Another Circuit Court Kicks Judge Real Off Case, Zusha Elinson, The Recorder (San Francisco) August 4, 2008) In a rare move, the U.S. Court of Appeals for the Federal Circuit booted a trial judge off a patent infringement case Friday. But it was not so unusual for the judge: U.S. District Judge Manuel Real (age 84). Just two weeks ago, a 9th U.S. Circuit Court of Appeals panel took a big class action against American Honda Motor Co. Inc. away from Real. The controversial Los Angeles judge has now been removed from at least eight cases by the 9th Circuit. Coming down hard on Real's judicial skills, the Federal Circuit panel threw out Microsoft's 2006 win over Research Corporation Technologies in a patent infringement case. In its published opinion, the panel reversed Real's decision to declare RCT's patents unenforceable, tossed his orders that found the patents invalid and non-infringing -- and ordered that another judge take the case. "After a thorough review of all the evidence, testimony, and facts of this case, this court concludes the strongly expressed convictions of the trial court in this case may not be easily and objectively reconsidered," wrote Judge Randall Radar for the three-judge panel in Research Corporation Technologies Inc. v. Microsoft Corp., 06-1275. Terrence McMahon, the McDermott, Will & Emery partner who represented RCT before Real, said he was glad to get a new judge on the case. "It was clear that he had a point a view and we disagreed with it - we tried the case and he cut us off at every pass," McMahon said. "I've never had something like this in my whole career, and I hope I never do again." RCT first filed suit against Microsoft in 2001 for infringing on six patents related to digital half-toning. At first with another judge, RCT won a summary judgment motion that some of Microsoft's products were infringing. But after the case was given to Real, things went Microsoft's way. Real reversed the prior judge's order and then canceled the scheduled jury trial in favor of a trial on inequitable conduct to determine whether RCT had withheld information from the patent office. After an hour-long inequitable conduct trial with no witnesses, Real ruled from the bench against RCT because the inventors didn't disclose information about new "K factor" tests to the patent office after they'd already filed for a patent. The Federal Circuit panel wrote that Real erred: The new tests weren't material because they were done after the patent was filed and had nothing to do with the patent anyway. The panel also faulted Real's analysis of the inventors' intent to deceive the patent office. "In sum, the trial court erred in ignoring the materiality prong and in misapplying the intent prong of the inequitable conduct test," Radar wrote. Finally, the panel also tossed Real's exceptional case finding, which awarded attorneys fees to Microsoft's lawyers. "A new day has dawned. Everything that Judge Real did has been erased," McMahon said. A lawyer for Microsoft from Portland, Ore., firm Klarquist Sparkman did not return a phone call seeking comment. But in a statement, Microsoft said, "We look forward to going to trial for the first time and telling our story in court." Real, 84, also did not return a phone call seeking comment. In the Honda class action, Bonlender v. American Honda Motor Co. Inc., 07-55258, a 9th Circuit panel threw out Real's order certifying a nationwide class against the car company, saying the judge abused his discretion by certifying the class on his own "without making any findings regarding Rule 23's requirements for class certification." In March, he was also removed in an unpublished order from another case, U.S. v. Hall, 06-50356, in which he was accused of "excessive and biased interventions" that denied two defendants a fair trial. Two years ago, Congress dropped an effort to impeach Real over allegations that he interfered in a bankruptcy case to help a woman whose parole he supervised. A judicial discipline complaint stemming from the bankruptcy case was twice tossed out, although a public reprimand was ultimately issued. This January, the judicial discipline review body for the federal courts, the Conduct Committee of the Judicial Conference of the United States, disclosed that Real had been accused of a pattern in 72 cases over the years of not providing reasons for decisions as required.

Using real stuff makes Pineapple Express a success

Movie industry, it turns out, has always used legal bud smoking products in feature films and prime time TV shows for years. I have just found out that they obtained the materials from International Oddities. Most recent appearances of their products have been in My Name Is Earl, L.A. Law, Pineapple Express and Knocked Up, among many others. The International Oddities breathes a certain sigh of contentment at the acceptance of their products by key players in the Hollywood scene, in light of their popularity having sunk somewhat a few years ago when the order came through for the skate flick The Lords of Dogtown, because half the company is ex-skaters just like those in the movie. Hollywood is always trying to gage and be ahead of the upcoming trends, and the positive, informative support of the International Oddities product line reveals distinct changes in the smoking industry. Movie crews report almost anecdotally that International Oddities legal bud products never fail to turn heads on the set, especially after the first puff. They also assure that when names like Jennifer Aniston and Russell Crowe end up on the benefiting end of the International Oddities line, the public will want to inhale deeply as their favorite stars exhale. Most recently, International Oddities smoking products have found their way into so many Hollywood movies that it's no wonder these products have been used throughout the movie Pineapple Express. One might conclude that the "fake weed", as star Seth Rogan called it, used onstage at the 2008 MTV music awards was the same as that used in several scenes in the movie, but this is only a half of the story. International Oddities products serve to answer the question, "What were you guys blazing up with throughout the movie, Pineapple Express?", the smoking material in the baggie shown onstage at the MTV awards was apparently obtained directly from MTV itself, was a prop and an imitation, and was decidedly non-smokeable. The material smoked onstage in the cigarette, however, was International Oddities product, being a portion from the actual material used in the movie. To shed more light on the interesting event, it was very informative and pleasing to International Oddities for Seth Rogan to reveal in an interview that their products were used extensively in the movie. The International Oddities smoking line is so unique and innovative, that sometimes the company executives themselves forget the initial shock the public express when they first learn of their legal bud smokes. Their customers' reactions, the company reports, are quite similar to the amazement expressed by the stars in the front rows of the MTV music awards -Robert Downey Jr., Will Smith, Rhiana, Chris Brown, and Anne Hathaway, among others. During the fake smoke stunt the remarkable aroma of International Oddities product blew into the audience. On the contrary, the International Oddities product line is not a prop at all, nor is it the fake weed sort, but the RYO (i.e., roll your own) legal bud hybrids, which are the brainchild of the International Oddities staff itself. At a recent trade exhibit, industry insiders shared their opinion that the widely-smoked line offered by International Oddities, which consists of dozens of buds such as Krypto and Panama Gold Bud and is known for the pleasurable effect, represents the future of smoking in America. These high-quality smokes can be found in fine smoke shops nationwide, and purchased directly from InternationalOddities.com. As the company principals put it: "We look forward to the day when people will accept our products as the 25-year overnight success that they are, rather than looking down their noses while passing judgment on that which they do not understand. Until that time, we are content at being the best-kept secret in the entire smoking industry and a favorite to the underground elite."

Saturday, August 9, 2008

Law school is a poor launch pad for a patent prosecutor

Last week (Friday's) Wall Street Journal had a review of a new book by Steve Dublanica titled "Waiter Rant", observations of his life as a waiter. One comment in the book review struck me as to its patent world relevance: Considering some of the [difficult] customers he has to deal with, Mr. Dublanica's background was the perfect training for his job: four years in a seminary studying to be a priest followed by work at rehab centers and homes for the mentally retarded. Sounds like good training for dealing with PTO policy rules changes, and the resulting idiotic Office Actions.

Friday, August 8, 2008

Slashdot walks through science and technology like an elephant through a china shop

One of the most ignorant forums for the discussing science, engineering and IP law has to be the Slashdot blog. Open source lawyers, who still omit to teach their minions about any of the subtleties of IP law, starting with copyright law (GPL - paragraph 102b = 0) - forget about any of these con-artist copyright lawyers trying to explain patent law. Let's take the beginning of a blog in last week's Slashdot: "An anonymous [idiot] writes: the Patent and Trademark Office has now made it clear that its newly developed position on patentable subject matter will invalidate many and perhaps most software patents, including pioneering patent claims to such innovators as Google. In a series of cases, including In re Nuijten, In re Comiskey, and In re Bilski, the Patent and Trademark Office has argued in favor of imposing new restrictions on the scope of patentable subject matter [under 101]. blah blah blah ....." The post was made by someone who completely misunderstood Prof. Duffy's recent paper on Bilski, with some of Prof. Duffy's hyperbole being taken too seriously - whatever the CAFC decides in Bilski, it won't affect most of Google's patents from a 101 point of view. This paragraph has multiple problems. First, the PTO has no clear position on anything involving 101 - how can it, when no one in the PTO policy office understands anything about science or engineering? Clarity? Despite the boolshirt in Ex parte Bilski, the current PTO precedence opinion is Ex parte Lundgren, which eliminated the technology test for patent claims. If any examiners asserts Bilski against you, ask his SPE to fire him citing Lundgren. If his SPE told him to assert Bilski, ask the Group Director to fire the SPE, and upwards until the next president's new PTO Director asks all of these people to "retire". PTO management is willing to lie about the science and the law to cover up their complete incompetence to manage software patent examination. From what I hear though, the PTO is pretty much tabling most software patent office actions and board appeals until Bilski is decided. The PTO newly develops a position on software patents each and every time its latest management fix to software patent examination fails. Anyone know which is greater - the number of such PTO policy positions, or the number of Ecuadorian constitutions? Or is it Bolivian? Secondly, even in their twisted logic, the PTO really isn't arguing that most software patents should be invalidated, because in the end it is not their decision. Take Nuijten - despite the illogical sense of the PTO's arguments, the CAFC upheld that all forms of signals fixed on a medium are patentable (which most people forget is a reaffirmation of Beauregard claims). And it is unlikely that what the CAFC excluded - signals propagating in the air - would survive any serious science scrutiny. Not that it matters, because as the CAFC pointed out, all forms of signals you need to claim to economically protect a new signal invention are claimable with properly written claims. And that's going to be the CAFC's decision in Bilksi - all forms of software are patentable as long as you use proper claim language to get a bit of machine into the claims (however the CAFC defines 'machine' in Bilski), which most patent lawyers will know how to then draft proper claims for whatever Bilski invented). And part of the reason that CAFC will rule so is that the PTO's written and oral arguments rely on nonsense science and law (so bad the CAFC repeatedly interrupted the non-answers of the PTO lawyer). "End of software patents?" Nice Slashdot fantasy, but the reality outside their IP-utopia is that all of the science and engineering since 1994 fully supports the CAFC's reasoning in Alappat and Lowry. Where Lowry and Alappat are consistent with Benson/Diehr, even better, and where they are inconsistent - it is time the patent bar loudly pointed out to the Supreme Court what Donald Chisum wrote 20 years ago - some of the inconsistent logic in Benson is "monstrously bad" logic. Not surprising PTO management loves embracing such badness.

How to write strong patents using these often neglected caveats

Many patents suffer from too much ego and pompous, advertizing content that disclose zero according to the patenting requirements.

Discovering something: discovery is not manufacture. This is one of most typical patent rejections. Invention necessarily involves the suggestion of an act: new product, new result, new process new combination to produce new product or result.

Misleading description. If there are details which are not necessary and are put in to mislead then the patent is void.

The patenting requirement is to tell of the best method known to ensure good faith on the part of the applicant: if the inventor knowing two agents for effecting an end could by disclosure of one preclude the public from the benefit of the other, he might for his own profit force a more expensive one on the public keeping back the simple and cheap one which is contrary to good faith.

Claim not fairly based: a claim to be supported in the specification must also relate to the problem solved. Otherwise it is too wide. The inventor is entitled protection for an article that embodies his idea but not for an article which while capable of being used to carry out his idea into effect is described in terms which cover things quite unrelated to his idea and do not embody it at all.

Theories that are wrong do not invalidate patent unless it amounts to a statement that would in practice be misleading. This happened in the case of attempts to patent methods of nutrition according to blood types, and in the case of the red Kabalah string.

Grounds of revocation

Insufficiency : the specification is not OK

Non-disclosure of best method

Claim not fairly based - claim not based on specification

Ambiguity - the scope of the claim is not defined

Inutility - it does not solve the defined problem

False suggestion - any falsehood

Prior grant

Lack of novelty - previously revealed

Obviousness

Applicant not entitled to apply- poorly elucidated, formulated, "half-baked" disclosure

Patent obtained in contravention of the rights of the petitioner

Invention not a manufacture)see above)

Use of invention (would be) illegal

Prior secret use

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Thursday, August 7, 2008

Your mom has never taught you these nonos:

In claim language these should be followed:

Never say, “capable of”rather “for”

Never use “comprises” in body of claim. (For an explanation of preamble and body read this post)

Don’t use “includes” or “consists of” in the preamble.

Case law: §112, paragraph 6 limits “means for” to what’s to what’s in specification and equivalents thereof. “a mechanism for” may work better.

never say "capable of". say "for".

More of these gems to follow.

An ingenious Wii game is a restaurateur simulator

In this jaded world of inventions, who would have known that there is still room for interesting Sims, especially in such a non-obvious genre as cuisine? Zoo Games has launched the SuperVillain Studios-developed Order Up!, a Wii-platform based game. Order Up! is a sumptuous blend of professional restaurant cooking and gourmet empire building, combined with memorable characters and intelligently humorous situations. The game puts you under the tutelage of an up-and-coming chef on the fictional island of Port Abello. Players will make the food, and, true to Order Up!'s sim element, they will build a restaurant from the ground up, obnoxious customers, food critics, health inspectors included. It is just like a real job, except no one gets paid and no one eats any food. Using the Wiimote in hand, a player graduates from burger to chateaubriand, and masters every aspect of running a restaurant kitchen. This is the real lfight simulator for anyone who has ever dreamed of being a world-class chef or restaurant mogul. The central gameplay of Order Up! is actual cooking. Players must whip up dishes in the heat of a restaurant kitchen, juggling their cooktop stations of grill, griddle, range, cutting board and the pass, while also having to manage assistant chefs. The gameplay in Order Up! is successful in being it all: fast, intuitive, fresh, creative and wholly original. Beyond cooking, the gameplay includes climbing the ranks from fast-food to world-class restaurants as chef and owner while continuously expanding your cookbook (database) of recipes and also continuously upgrading your equipment. The realism always stays fresh with the pressure provided by demanding patrons and discriminating food critics. Designed specifically for the Nintendo Wii, Order Up! takes advantage of the Wiimote’s motion sensing technology to simulate real cooking, with real kitchen tools like knives, wooden spoons, tongs, ladles, and more. Check out this Order Up! Trailer The premise wins the prize for inventiveness and combination of ideas - Cooking Mama plus the Sims plus Diner Dash. SuperVillain has shown that they have a solid development team, and the team has came up with a sophisticated, interesting experience for the Wii, which is more than a lot of teams can say.

Markush group gives punch to your claims

Patent claims, as we have learned in this category, is not an easy part of a patent, but they can make your life as an inventor a lot easier if the claims exploit all the possible claim tools known in the profession. Thus if you have invented a gadget that can be a gizmo, or a widget, or a thingie, or a dab, then you need to say it int eh claims. The catch it, you cannot use OR. In claims, AND is and and or. Claims, in this case, use the Markush group formula. According to this formula (X selected from the group of Y consisting of A, B and C) your invention's claim reciting the gadget's alternatives would look like this: ..., wherein said gadget is selected from the group gadgets consisting of a gizmo, a widget, a thingie and a dab. The only instance in the claim where OR can be admitted is when claiming an option on a device control, such as a washing machine dial: ...settings include operating a regular wash, a power wash, a spin, and a wash or spin only... aren't claims fun?

50% Off Small Rubber Stamps is a good deal for a patent agent

My patent writing business has grown to the point that I would need to make sort hard-printed patents, articles and client documents into several categories. Inside each client's file I also need to stamp documents according to their status and relative use, just to save myself time from having to reread irrelevant background information. This process is always simple for whatever that is stored on the office PC network. So I realized that I need to look for a simple solution. It was to order a series of rubber stamps, small stamps, like the ones that would say Provisional, Full Application, PCT, WIPO, etc. So I found that Vista Print's Rubber Stamps has an online way of ordering any type, personalized rubber stamps, and unlike my local print shop's rubber stamp selection, they have small, 1.42" x 0.47" stamps. I realized I would even order rubber stamps for home use, to stamp bills and mail to be sent back. Vista Print also offers a lot of other products besides rubber stamps: sticky notes, business cards, free brochures, car door magnets, checks, letterheads, window decals, lawn signs, free oversized postcards, and T-shirts. There are more uses for rubber stamps than business. Vista Print has a line of rubber stamps that are highly customizable and affordable. There are vary from small to large and can be ordered in bulk. Customizable stamps can use any own-computer, online-ready design or use a template that Vista Print has ready online. Rubber stamps are great since they save time when mailing massive amounts of items and you need to stamp stamp your return address or if you have to make the same statement on some papers you just stamp it instead. Check them out, type in the Stamps50 coupon code when ordering, and you get a 50% discount off your own, personalized small rubber stamps.

Careless language sinks patent

Here is a patent with very questionable claim language: Systems and methods for trading emission reductions (U.S. Patent 7,343,341) Claim 1. A computer-implemented method of promoting the reduction of emissions, comprising: registering participants voluntarily with an established entity; ... This claim (and the other independent claim) is badly constructed, making the patent unenforceable: First, voluntary is an unnecessary limitation. If such registration already exists that requires payment, it is completely obvious to have the registration be voluntary. If such prior art does not exist, there is no reason to limit the scope. Also, it is impossible to register with an unestablished, i.e., non-existent entity. Nowhere does the specification explain what is meant by an established entity. This clause more safely should read ... registering participants with an entity .... Second, after this use here, the phrase established entity isn't used elsewhere in the claims - it is synergistic with nothing. The reason for it to be in the claims: the rest of claim 1 has phrases like establishing an emission reduction schedule, etc. - all tasks presumably done by the entity. But there is no claim language that links the entity to the "do-ings", for example, ... said entity establishing an emission reduction schedule ..., which creates the synergy. This claim is fatally defective. The other independent claim 17 has the same defect. The patent is nearly unenforceable. The claim language might be corrected with a Reissue. In the eventuality of the Reissue, the assignee's lawyers should process the Reissue pro-bono :-), given the apparently slop-floppy claim language

Hollywood is too engineered to be patentable

Friday's Wall Street Journal has an interesting op-ed piece by JoAnn Anderson titled "No Affairs Worth Remember: who is to blame for the death of the romantic comedy?".she argues it is a combination of the sexual revolution and fading away of class tensions). One comment in the article is worth of quoting in the national media: According to Richard Schickel, a film critic for Time.com, "movies are more structured now than they're written; movies proceed more on beats now - an action sequence, a sex sequence - what gets lost in that are people trying to exchange witty dialogue." Schickel is correct - movies are more and more engineered structures made of action components with a known useful entertainment functions. And as the Patent Office has declared in an ill-defined way, functional structures are patentable. Patents in Hollywood just helps quicken the evolution of the entertainment industry into a formally engineered products industry, the convergence of Northern and Southern California. Which is why Ex Parte Lundgren must prevail - it is more consonant with the expansion of science and engineering into the entertainment industry than the science and engineering nonsense of Bilski.

Free Flow of Information Act encourages trade trade secret leaks

The Senate is considering what the House has passed the Free Flow of Information Act, which gives strength to federal law in the form of the right for reporters in most cases to protect the identity of their sources, even from prosecutors or judges. The business community is not happy with the Senate version of this bill, because unlike the House, the Senate version does not have a provision which requires reporters to disclose the identity of sources who leak trade secrets. Some state laws, such as in California, already protect reporters from having to disclose sources of trade secrets. The Senate bill would extend this protection across the country. And thus the concern of the business community. A nice article on this side effect appears in the 30 June 2008 Forbes, page 32, in an article by communications consultant Carter Wood titled "Too Much Freedom of the Press".

Wednesday, August 6, 2008

How to make patent claims speak a powerful technical language

When a current policy of claiming machines are "in" and software is "out", then computing devices are defined as machines. Therefore, it is a Machine that receives, adds, calculates, and compares. See a previous post discussing the policy of software-machine equivalence.

An algorithm is a computer executable code for adding, analyzing, comparing, processing, etc.

A proficient, professional patent writer can define a single invention in multiple ways, such as a method (method for...), apparatus (apparatus that …), a system (system comprising of...), and a computer program (that …).

US PTO allows three independent claims with 17 dependent claims for a basic filing fee, extra claims incure a per item charge. See more on claims language in the category of Patent Writing: Claims.

Tuesday, August 5, 2008

The essence of a claim is a strategy of article management

Claim is a checklist of the different components or steps in an invention. Each claim is a concise statement of what the applicant believes to be a patentable invention. The basic structure of a claim must follow the preamble-body design:

A widget for casting figurines, the widget comprising:

everything up to the widget is nonbinding, non-legal preamble. The preamble is convenient location for introducing elements, often non-inventive, in a free way, without risking their introduction in the body of the claim, and possibly over-limiting the scope of the claim.

The above language is for independent claims, the claims that are widest in scope and serve to start a chain of dependent claims that narrow, gradually, the scope of the invention down to the intended concept of the invention.

A dependent claim starts with this preamble:

The widget as in claim 1, wherein...further including...

or

The widget as in claim 1, further comprising:

In method claims, the widgets are steps in the process, therefore, they are continuous verbs: The broadcasting as in claim 1, further comprising digitizing, serializing, and forming packets from data generated by said computer. Here said is a strategic use of claims article that avoids the problem of vague precedence sometimes created by the use of the, and surprises of using the indefinite article a to introduce an undeclared, new element.

Monday, August 4, 2008

Software is found to be a machine, again

A recent IEEE article: The claimed invention .... is not a disembodied mathematical concept which may be characterized as an "abstract idea", but rather a specific machine to produce a useful, concrete and tangible result. To some, this is a bit awkward, in that most software, when loaded into a microprocessor, doesn't reconfigure the physical architecture of the microprocessor to make it more "specific". I have mentioned software-machine philosophy in a previous post, and, here it is, picked with a fine tooth comb. The flow of electrons through the microprocessor is made more specific and useful, but the microprocessor architecture itself is no more specific with software loaded. Reflecting decades of engineering, the cover paper in the August 2008 issue of IEEE Computer magazine makes this literally true, in a sense - when you load the software, part of the physical architecture is altered, creating a more specific machine. The paper is titled "Warp processing: dynamic translation of binaries to FPGA circuits" (by the way, anyone who argues 35 USC 101 and software without mentioning FPGAs is a brain-dead idiot). The abstract is: Warp processing dynamically and transparently transforms an executing microprocessor's binary kernels into customized field-programmable gate array circuits, commonly resulting in 2X to 100X speedup over executing on microprocessors. A new architecture and set of dynamic CAD tools demonstrate warp processing's potential. Warp processing is: "In warp processing, a compute platform transparently performs FPGA circuit compilation as a program's binary executes on a microprocessor - that is, dynamically." A computer program - an algorithm - an information processing method has its structure converted to a specific hardware digital circuit as the gate arrays connections are reset - there really is a specific hardware circuit - that is the computer program. If you attached quantum dot lasers to the switching gates of the FPGA as the computer program was loaded, you could physically see the specific machine being created. One sentence from the article: "In contrast, field programmable gate array software bits represent a circuit to be mapped onto an FPGA's configurable logic fabric." which no one in the engineering world will disagree with, a sentence completely compatible with common sense. However, many strive to fabricate explanations in this context of why software is/is-not non-functional descriptive bits (not patentable), a circuit (patentable), mathematical logic (not patentable), and/or a machine/fabric (patentable). They have to lie to make these equivalences into non-equivalences to find something unpatentable. For engineering, no such explanations are needed. But to the strange views of software patent critics (see below) and PTO management, such explanations can only be done by lying about science and engineering. Issued FPGA patents are as much literal examples just like this System level applications of adaptive computing technology: U.S. Patent 7,404,170, Real-time implementation of field programmable gate arrays in hyperspectral imaging U.S. Patent 7,366,326 - Is firmware - hardware, software, or software hardware? The engineering world doesn't care. Only people who don't understand the science and engineering care. One of the biggest obscenities of 35 USC 101 caselaw and written briefs is the near complete absence of citations to any of the science and engineering literature that can resolve this issue once and for all . This legal arrogance to ignore science and engineering in decisions involving science/engineering law is why still now incompetent PTO management is forcing use to argue these issues.

How VeriSign's unpatentable patent squeaked through unsearched

Look at the following totally unpatentable software method as of August 1998, and borrowing from ()biochemical concepts, call it a genus-type patent claim (though utterly not genius): 1. A method in a data processing system with distributed databases, each responsible for maintaining application-specific records for an associated application, comprising: receiving user input containing a query string, a plurality of applications and at least one search criterion corresponding to the plurality of applications; transmitting a request for a search of the query string to each of the distributed databases associated with the plurality of applications; receiving search results from each of the distributed databases associated with the plurality of applications indicating, for each of the specified applications, whether an application-specific record exists for the application in the specified distributed database; and displaying the search results. In short, a method of doing distributed database searches, a technique well established in the 1980s. Now consider the following species restriction: distributed databases = DNS servers application = domain [registration] application-specific records =registration records of domain names query string =domain name and substitute the restricted species terms into the above genus claim, resulting in: 1. A method in a data processing system with DNS servers, each responsible for maintaining registration records of domain names for an associated domain, comprising: receiving user input containing a domain name, a plurality of domains and at least one search criterion corresponding to the plurality of domains; transmitting a request for a search of the domain name to each of the DNS servers associated with the plurality of domains; receiving search results from each of the DNS servers associated with the plurality of domains indicating, for each of the specified domains, whether a domain name record exists for the domain name in the specified domain; and displaying the search results. This type of software technique, as "genus restriction" is completely obvious to one skilled in the art, especially in light of mountains of non-patent prior art for distributed database queries from the late 1980s and early 1990s, especially distributed database queries of Internet information. Nevertheless, here is the patent: Patent 6,560,634 6 May 2003 Method of determining unavailability of an internet domain name VeriSign, Inc., Filed: August 13, 1998 Abstract Methods, systems, and articles of manufacture consistent with the present invention provide an improved query server that overcomes the shortcomings of existing domain name searching techniques by performing a multitude of searches simultaneously, transparent to the user. Specifically, the improved query server searches for existing domain name records in various domains and then displays the results in a formatted manner, thus eliminating the need for a user to perform individual searches. I think nobody bothered to search for prior art. For example, how were the following papers missed, all published ten years on more before the patent was filed: The Clearinghouse: a decentralized agent for locating named objects in a distributed environment ACM Trans. Office Information Systems, July 1983, 230 Designing a global name service 1986 ACM Symposium on Principles of Distributed Computing, 1 A name service for evolving, heterogeneous systems ACM Symposium on Operating Systems Principles 1987, 52 A model of name resolution in distributed systems 6th Int. Conference on Distributed Computing Systems 1986, 523 This is all a contempt of science and engineering. Applicant and PTO searching is still a joke. And I have still not heard one word that convinces me that outsourcing PTO searching will improve anything. Especially in light of patents like this.

Sunday, August 3, 2008

Zenni Optical offers a novel eyeglass shopping online

Again, I find myself too busy to shop around the local mall just to take care of my own accessories. Though I have written patent applications for accessory lanyards, USB chains and smart eyeglasses, I still have to go and actually shop for them. I was under an impression that I would get a demo or complimentary prototype of gadgets I am writing patents for, but, no luck in that department. I have not seen or written any patents regarding online shopping for personal, individual fit devices or accessories. From what I could find online is that it is possible to order eyeglasses from Zenni Optical, which needs an up-to-date eye prescription. I have seen a huge choice of high tech materials, shapes, functions, sun shades and price ranges, I like this frame: unique pattern of the eyeglasses makes it suitable for wearing with casual dresses Their prices are affordable, the choices are well sorted out on a straightforward menu. (The many options include a generous selection of frames, single vision lens, sunsensorphotochromic)lens, tinted sunglasses lens, bifocal lens and progressive lens. The secret to Zenni’s low prices is that they sell only their own manufactured frames direct to the customer, with no middlemen and virtually no advertising budget. This is a very convenient one stop shopping site for anyone like me, who is too busy to drive around and actually shop. Fox News TV has featured them, I was told. The popular U.S. talk radio host of the nationally syndicated consumer advocate program, The Clark Howard Show, has recommended them here.

European attorney also complains about USPTO patent examiner's English

Regarding the previous post on the USPTO's problems with English, an attorney from Europe had this to contribute:
This is fantastic! At last we have an admission from a practitioner that "the essential and functional nature of a patent is LINGUISTIC". This side of the Atlantic we've long suspected this to be case - perpetuated by the unfriendly terminology used not only by the USPTO but also the lawyers using the system. Many of my clients, several of whom have what they believe to be a reasonable command of English (having been brought up in England), constantly struggle against US examiners who get bogged down in semantics while the technical differences between an invention and the prior art seem to get lost in the process. Why your correspondent thinks that the job could be done without a technical degree is beyond me. I'm not saying our system is perfect - however, I've got a great deal of respect for EPO examiners who not only need to be technical experts (many are PhDs in their chosen technical subjects) but also have to have command (I use the term deliberately) of English, French and German. I have direct experience of working with a Greek examiner in the medium of English, discussing by telephone the content of prior art documents published in French and German. The discussion worked because we were both concerned with the technical content of the case, not with a theoretical and semantic debate on the words used. As a matter of interest, I had one heck of a job getting the same case through the USPTO precisely because we couldn't agree on the exact words to be used - the examiner kept insisting on changes that altered the technical disclosure to such an extent that the claim functionally was a mess. I think one of the fundamental disciplines that we as European Patent Attorneys learn at an early stage is to write patent applications in a way that aids translation - we know that any granted European Patent will need to be translated into a variety of languages so using plain English with standard meanings is essential. I can't tell you how many times I have had to help a struggling translator trying to translate a US originating patent application into French or German - whoever said we were two nations divided by a common language must have had this situation in mind at the time. I have no solution to offer, except to say that the job of an EPO examiner, while not normally for life, is considered a secure and useful graduate career, with a good standard of living in Munich and healthy tax breaks. I know nothing of the package offered to US examiners, but based on the perennial shortage at the USPTO would it be fair to suggest that the job is less attractive over with you guys?

Saturday, August 2, 2008

Emotions, selling stocks, testing drinks not patentable

UNITED STATES CREDIT SYSTEM v. AMERICAN CREDIT (53 F. 818 [January 1893]) Business method for using an insurance plan form is not novel. Methods of transacting common business do not seem to be patentable as an art. HOCKE v. NEW YORK CENT. & H. R. R. CO. (122 F. 467 [April 1903]) Obvious business shipping method is not patentable. HOTEL SECURITY CHECKING v. LORRAINE CO. (160 F. 467 [March 1908]) Business method without implementation means is not a patentable art. MOTION PICTURE PATENTS v. UNIVERSAL FILM (243 U.S. 871 [April 1917]) Patent on motion picture projector cannot be used to restrict which motion pictures are shown on projector. DUNN WIRE-CUT LUG BRICK v. TORONTO FIRE CLAY (259 F 258 [January 1919]) The inventor or a new and useful product or article of manufacture may have a patent covering it and giving a monopoly upon it, regardless of great variations in the method of making. BOGGS v. ROBERTSON (13 USPQ 214 [June 1931]) An idea reduced to writing (printed matter), is not patentable. GREENEWALT v. STANLEY COMPANY OF AMERICA (54 F.2d 195 [January 1932]) Aesthetic or emotional special effects are not patentable. NESTLE-LE MUR v. EUGENE LTD. (55 F.2d 854 [February 1932]) "Machine" is device or combination of devices by means of which energy can be utilized for useful operation to be performed. Patents for machine, article of manufacture, or composition of matter differ fundamentally in nature from "process" patents. Process may be protected and patented only as a process. IN re WAIT (73 F.2d 982 [December 1934]) Non-novel sale of stocks and commodities business method not patentable. AFFILIATED ENTERPRISES v. GRUBER ET AL. (86 F.2d 958 [December 1936]) Lottery business method is a system not copyrightable. IN re PATTON (127 F.2d 324 [April 1942]) A system of transacting business, or an abstract idea or theory, apart from means of effectuating it, is not patentable. IN re RICE (132 F.2d 140 [December 1942]) Printed/graphical instructions for playing a piano not patentable. EX PARTE S (1943 J.P.O.S. 905 [August 1943]) Music on phonographic record is analogous to printed matter and not patentable. IN re BENNER and Mcmullen (174 F.2d 938 [April 1949]) Patentable slight alteration must be more than mechanical/professional skill. DAVISON CHEMICAL v. JOLIET CHEMICALS (179 F.2d 793 [March 1950]) Only useful application of law of nature or scientific fact is a patentable method. JOSEPH E. SEAGRAM v. COMMISSIONER OF PATENTS (180 F.2d 26 [January 1950]) Method of testing consumer beverage preferences not patentable.

Friday, August 1, 2008

USPTO forces patent examiners to issue dumb rejections

Patent lawyer John Starsiak, in an online article with Genetic Engineering News (http://www.genengnews.com/blog/item.aspx?id=419) makes an interesting observation: Virtually all of the problems of the U.S. Patent system, including the high cost of obtaining a patent can be attributed to examiners issuing improper "bogus" rejections. While I know this is true from my experience as a patent examiner, ... Nice confirmation from a former examiner. ... I performed a survey {using the PTO's Patent Application Information Retrieval (PAIR) system} of the 50 most recently issued patents classified in Class 435, Chemistry: Molecular Biology and Microbiology. In 76% of these patents, the examiner indicated in the first Office action that there was no allowable subject matter, i.e. none of the claims are patentable. Are the abilities of patent attorneys so low that over 75% of patent applications as filed do not contain at least one allowable claim? Or are the examiners writing "bogus" rejections? The answer is the latter. Currently a "culture of rejection" controls the operation of the PTO. Good questions. Congress should have a hearing on excessive rejections.