Social Media and Learning

As mentioned previously, it has been almost 4 months since I started this blog. It was a really fun experience for me, and also the first time I had to record a video of myself talking to a screen. While I knew it wasn't going to be easy in the beginning, recordings got easier as the weeks progressed. Having watched so many webcasts on YouTube previously, it was nice to experience firsthand how it felt.

Honestly, I spend hours watching YouTube on daily basis. With so much content online and many talking about technology, there is a lot to learn. Sometimes, I see comments on mistakes made in the recording, which are promptly corrected by the uploader. It is a win-win solution as we get more accurate information. However, I learnt that we need to show prudence in taking in what we read. Apart from satirical posts which are purposely inaccurate, many posts contain mistakes or presents a skewed view. It is up to us to judge what is correct for even those backed by experiments could be inaccurate.

Because I am interested in learning as much as possible, this easy availability of resources online is sometimes a detriment for me. I am still contented with in class learning, as it is goes more in depth than what we can learn online. There are too many topics to choose and I tend to avoid topics as they go more in depth, which also becomes more boring. Materials online are sometimes difficult to delve deep into because it takes experience working with problems to assimilate the knowledge. Thus, I firmly believe social media aids in keeping us well informed with the world's progress, and could get us excited enough to learn more. However, it is meant to complement institutional learning and not override it completely.

Finally, I would like to thank everyone for reading my blog, and posting all the comments. I do appreciate all of them, even though they are part of our homework requirement! =)

Semester Reflections

It's reaching the end of the semester, and also brings my overseas exchange experience close to an end (I'll be flying back to Singapore immediately after my exams). While patents are not often discussed in Singapore, if any at all, it was really interesting to learn about the US patent system. The pace of the class was slow, but we had to spend a lot of time out of class scouring through the content that is available online to find out more. It is actually pretty nice in this aspect, as we can better relate the seemingly simple concepts (which is really complicated sometimes) to past and current issues which shape the world. Patents did make or break companies, and helped push innovation to the next level, retiring those who fail to catch up. Some companies unfortunately fall prey to trolls but I guess that's part and parcel of life. Nevertheless, the future seems optimistic with actions being taking to mitigate these issues.

I also believe the experience from taking this class will change how I view technology firms in future. I understood how companies sue one another to protect themselves or to profiteer, but I did not previously know on what basis were they suing one another with. The way lawsuit proceedings are usually published on papers make it seem simply that it is either a bad or a good case but there are more than meets the eye which make some cases so long drawn.

Also, to add on, I find it really difficult to read about ongoing patent cases (especially in the beginning) because of the numerous technical terms involved. It required a lot of effort researching to decipher articles and then blog about them, which I did nonetheless as the articles were interesting. And, it was actually a self-satisfying when I got towards understanding the articles better, despite making mistakes every now and then. Thankfully, technology is so advanced now that everything can be done just in front of my laptop!

Silly Patents: Predicting your Death

I mentioned earlier that I would like to focus on silly food related patents. However, I found this patent so silly that I have to blog about it - the "Life Expectancy Timepiece". US Patent #5,031,161, in simple terms, is a watch which estimates when you will die.

Personally, I think the watch may end up further reducing your remaining lifetime. It is depressing. Instead of focusing on living your life to the fullest, you get reminded of every second of life you have remaining - if it is even accurate in the first place. Moreover, there have been cases where terminally ill patients recover, at least slightly, when they live life positively. Positive thinking leads to a stronger immune system whereas negative thinking does the opposite, even culminating into depression.

Back to the invention, the inventor supports his timepiece by stating that insurance companies routinely updates the actuarial table of average lifespan based on factors such as smoking, alcohol consumption and family (genetic) history. His invention thus includes the ability to program these factors and other habits and events in the user's life to predict his remaining time. Although I understand the need for insurance companies to know the average life expectancy in order to price their products appropriately, but would any single individual have a need for such knowledge? Sure, we go find fortune tellers to predict it, among other things, but I believe it is mostly to find peace and assurance.

Sources:
http://www.funnypatentsandinventions.com/great-invention-idea-watch-that-predicts-your-death
https://docs.google.com/viewer?url=patentimages.storage.googleapis.com/pdfs/US5031161.pdf

Silly Patents: Control-Freak Fork

One other patent which caught my attention was US Patent #5,421,089 - "Fork with Timer". Basically, the fork has some circuitry on itself which cues the user when to take another bite. It even has a replaceable power source.

Personally, I find it being a useless invention, and hopefully you  guys agree with me. I do not see any way a fork would be able to dictate when we should it, as we can easily choose to ignore it. In the patent, it states that "getting a person to slow down is difficult, as it takes conscious thought to eat slowly when hungry". However, supposing someone did purchase this fork, there is no punishment mechanism to stop the person from eating too fast as well.

It is also pretty funny that in the patent's summary, it mentions the invention "has all the advantages of the prior art, and none of the disadvantages", when comparing with prior fork related inventions. Certainly, I can think of some disadvantages already - the need to replace the power source and the annoyance when the fork sounds its alarm, to name a few - and that is considering if somebody actually purchased it in the first place. It probably would not come at an attractive pricing given its numerous parts over a simple fork made of just one material. Do let me know what you think about this invention! I would certainly be interested to hear your thoughts.

EDIT: I did another search on the fork, and found out that there is actually another fork (HAPIfork) which vibrates and flashes, and even comes with a corresponding app to track your eating habits! There is also a fondue fork with timer (US Patent #8,503,268). I am at a lost for words right now, so I'll just let you decide whether it is actually a good idea.

Sources:
http://www.funnypatentsandinventions.com/a-fork-that-tells-you-when-to-eat-great-idea
https://docs.google.com/viewer?url=patentimages.storage.googleapis.com/pdfs/US5421089.pdf
http://www.shape.com/blogs/shape-your-life/put-fork-eating-too-quickly
https://docs.google.com/viewer?url=patentimages.storage.googleapis.com/pdfs/US8503268.pdf

Silly Patents: Edible Garments?

This week, we saw some examples of absurd patents in class. After doing a search online, I chanced upon even more silly patents. Since I enjoy food, I decided to blog about some patents related to eating.

First off is US Patent #6,872,119 - "Garments having Edible Components and Methods for Making Same". The invention claims candies with a hole in the center which can be strung by portions of the clothes, such as by the laces of a bikini or hoodie, bag strap, and even the ankle strap of a stiletto! Although I have seen things like chocolate clothes on the runway and even Lady Gaga's meat dress, I would have thought of these being limited to artistic pleasure instead of being patented. It is highly unlikely anyone would infringe on the patent.

In addition, the candy would become sticky when exposed to moisture, and be pretty gross to even consider eating. What's worse are those that have direct contact with the skin, such as the bikini and shoes!

It is also interesting that there are many prior art cited and after doing a quick search, I found that most are largely unrelated to the invention. Some of them are even cited by the examiner himself. It is likely they were mentioned to supposedly add more "credibility" to the invention and justify its approval.

Sources:

http://www.funnypatentsandinventions.com/edible-garments-great-idea

http://pdfpiw.uspto.gov/.piw?PageNum=0&docid=06872119&IDKey=F6501A0DFC1A%0D%0A&HomeUrl=http%3A%2F%2Fpatft.uspto.gov%2Fnetacgi%2Fnph-Parser%3FSect1%3DPTO1%2526Sect2%3DHITOFF%2526d%3DPALL%2526p%3D1%2526u%3D2FPTO%25252Fsrchnum.htm%2526r%3D1%2526f%3DG%2526l%3D50%2526s1%3D6872119.PN.%2526OS%3DPN%2F6872119%2526RS%3DPN%2F6872119

Definitions Part II

Remember I had a post explaining some of the legal terminologies used in legal cases? I read through an article on Patently-O and it left me more puzzled than ever. Thus, I will be explaining some of the legal terms used. Hopefully, upon reading my post then the article, you can make more sense out of it too! Do correct me if I am wrong in explaining some of the points.

Declaratory Judgment
It is simply a judgment that resolves legal uncertainty. Also known as a declaration or declaratory relief, a declaratory judgment is usually sought in situations involving contracts, deeds, leases, and wills, as well as determining rights of individuals or parties under specific laws. It is a legally binding and future similar issues will following the existing judgment. However, it does not require any actions to be taken, i.e. damages and injunction. Thus, the declaratory judgment updates and improves on existing law to address different scenarios, and sometimes also cover possible loopholes.

Jurisdiction
Although this term is pretty well understood and common used even in normal English ("Sorry, this is not within my jurisdiction"), its use in the article did confuse me ("found jurisdiction", "triggering declaratory judgment jurisdiction", "creating jurisdiction"). You can basically replace the word with 'power', and things begin to make sense, or does it always? You could also try replacing it with "power of the court" or "(an) area of control" and it should become clear.

Induced and Contributory Infringement
Induced infringement and contributory infringement are actually two different types of infringement although they both fall under the category of indirect infringement. If someone is involved in some conduct leading to direct infringement (the usual infringement), he could be indirectly infringing a patent. If someone "actively and knowingly" cause someone else to infringe on a patent, he is said to have induced infringement. If no active steps such as by requesting or even forcing was taken and the direct infringer made the decision himself leading to the infringement, there is no induced infringement.

Contributory infringement, on the other hand, happens when something less than the whole invention is sold. If that something has no other substantial purpose apart from for the invention, then the seller is a contributory infringer. For example, if someone makes and sells an aircraft engine which when combined with other parts infringe a plane invention, he is a contributory infringer since there is no other substantial purpose for the engine (its use in reality or comedy shows as part of an obstacle course obviously does not count).

Sources:
http://patentlyo.com/patent/2014/04/microsoft-declaratory-jurisdiction.html
http://legal-dictionary.thefreedictionary.com/declaratory+judgment
http://www.law.cornell.edu/wex/jurisdiction
http://www.quizlaw.com/patents/what_is_the_difference_between_1.php

Opinions on the News

Recently, we have seen a lot of satirical posts online. Some, despite being so ridiculous, are believed to be true by some readers. Nevertheless, they are satirical and most take them as jokes. However, what about articles on legitimate papers which paint the wrong picture? (Truth be told, it actually happens pretty frequently) Recently, two opinion articles, "Slowing the Patent Trolls" and "Abusive and Frivolous Patent Suits", were published on The New York Times Opinion Pages and their inaccuracies were disputed by Michael Borella and Dennis Crouch respectively. I'll briefly summarise about the points that were inaccurate in the former here.

With the current ongoing debate over software patents' patentability, instead of being granted easily, "computer-implemented inventions are held to a higher standard than most other types of inventions due to these additional requirements". While we might tend to agree that software patents should not be granted, the complexity of some software patents, or how the claims actually are, may make them patentable. This complexity is one of the reasons the topic is still debated, and simple examples may not help to paint the full picture.

Another interesting point Borella noted is that the US's patent system "purposely encourages the existence of non-practicing entities by making patent property rights freely assignable and eschewing a "working" requirement". This does highlight the point that patent trolls buy patents from numerous individuals and then use some of them to sue those who "infringe", regardless whether the patent is good or bad. Although addressing this issue could mitigate the problem, it also makes it difficult for proper and legitimate businesses from acquiring patents from others especially as a form of defense, when they do not actually use the patents except in litigation.

Certainly, the topic of patents is broad and complicated, as well as constantly evolving. Although the posts were inaccurate and posted at the wrong places, it does show the rising awareness about patents which could still buy the news some grace.

Sources:
http://www.nytimes.com/2014/03/29/opinion/slowing-the-patent-trolls.html
http://www.patentdocs.org/2014/03/new-york-times-op-ed-argues-law-takes-misguided-approach-to-software-patents.html
http://www.nytimes.com/2014/04/07/opinion/abusive-and-frivolous-patent-suits.html?ref=opinion
http://patentlyo.com/patent/2014/04/fee-shifting.html

Why Provisional Applications?

As we have learnt in class, filing a provisional patent application is very fast, even taking less than 5 minutes if you already know what to do. Apart from the convenience provided, is there any other reason we should be filing for a provisional patent application? I did a search online and found a post by Gene Quinn detailing the benefits as well as some tips on when is the best time to file.

Firstly, a provisional application is a good way to begin the application process. It is cheaper to prepare, plus there is the micro entity discount for individuals, universities and small companies. It is also to be noted that "it is best to think of the provisional patent application as a lower cost way of starting your journey toward receiving a patent, but it is incorrect to think of the provisional patent application as a cheap way to start the patent process", which means we have to apply with the aim of getting the patent eventually.

Quinn also stated the 75-25 rule which applies to most provisional applications, although he also mentioned the Pareto principle (also known as the 80-20 rule). Nevertheless, what we need to know is that the bulk of the application takes a very fast time to complete, while the remaining 20% eventually takes up 80% of the time. Since it is easy to draft out most of the application, why not apply for a provisional application as we work on the full patent. This provisional application can turn out to be very useful as a form of protection while the final invention is being created. Of course, we need to make sure that the provisional application has all the disclosure included, which does not take very long. Mostly, only what is disclosed early on will enjoy the benefit of the early filing although in most cases, the initial disclosures are the most crucial parts of the invention.

Anyway, apart from the very limited information about the provisional applications publicly available on the Patent Application Information Retrieval system, there is little risk of revealing the invention to the world (although it may appear unfair that we do not get to know about that which could be used as a prior art against us).

Quinn also mentioned that the initial invention will be different from the final invention most of the time. Thus, filing should be done after the invention is just about complete (75-80%). Additional provisional applications can be added and combined together as the invention gets firmed up, until the whole patent is ready to be filed as a non-provisional patent.

In final words, there is really no disbenefit of filing a provisional patent application apart from setting a deadline for your final patent, which should be filed as quickly as possible anyway taking into consideration the fast pace of technological advancement now.

Sources:
http://www.ipwatchdog.com/2013/09/14/the-benefits-of-a-provisional-patent-application/id=45156/
http://patentlyo.com/patent/2014/04/priority-provisional-applications.html

Avoiding the Issue

In addition to my previous posts relating to past obviousness case, I read up about another obviousness case that was decided in 1976 - Dann vs Johnston. This case is interesting because the Supreme Court used the obviousness factor to invalidate the patent, rather than tackle the issue that it was pertaining to software (a business method coded into a program).

In summary, the patent claims to be a "machine system for automatic record-keeping of bank checks and deposits". Since it reached the Supreme Court, it means there were different decisions in the lower courts, similar to the previous cases I blogged, and in this case primarily stemming from it being a software. Finally, the Supreme Court ruled the patent invalid as the processes were known and obvious. Should the processes have been non-obvious, the case might be more complicated and possible to go either way.

Certainly, software in the 70s was still a new area of development and patent rules regarding them were uncertain. I mean, four decades on and it is still widely debated. Fortunately, the Supreme Court did not have to deal with the issue of software patentability then, else it would have created a binding precedent. While it seems wrong, choosing to avoid the issue may have been the Supreme Court's best decision then. That era, even before the rising prominence of software, could have created many issues today whichever way the decision went.

Personally, thinking back, I feel that software patents should not be awarded if they had to deal with the issue then. It may seem alright now because there are already so many free software codes available, but back then, any software process could have allowed companies to monopolise an industry, preventing others from adapting the new software technologies, which were already limited by the number of software languages around.

Sources:
http://supreme.justia.com/cases/federal/us/425/219/

Fighting the Government

Previously, I talked about the Graham factors from the Graham vs John Deere Co. case. On the same day as the Graham judgement, another trial involving the Government was decided - United States vs Adams. They were consolidated cases argued together and thus decided together.

Adams invented a wet battery using magnesium and cuprous chloride electrodes, and activated by water. He did not specifically claim that the use of water was what made his invention unique, but simply mentioned that the "battery is ready for use by merely filling with water". Anyway, Adams demonstrated the battery to the United States Army Signal Corps, and their scientists still did not believe the claims. A Government expert from the National Bureau of Standards also expressed doubt a year later. However, at the peak of World War 2, the Army Signal Corps concluded that the battery could work, and the Government then hired various manufacturers to produce the battery, without notifying or seeking permission from Adams.

As a result, Adams sued the Government for infringement and breach of impled contract. The Government, in turn, challenged the validity of the patent, arguing that the concept of chemical batteries using metal electrodes was not new and, thus, the claims lacking novelty and being obvious. The Supreme Court felt that the prior art taught away from the invention - all but one mentioned the use of water, and that which did discouraged its use, so the Supreme Court ruled in favor of Adams.

Anyway, an amusing story about the case, which I will simply copy from Wikipedia (referenced from the book Patent Law: In a Nutshell) so that it remains comical:

"Adams's attorney arose before the Supreme Court, took a drink from his glass of water, and then dropped a tiny Adams battery into the glass. The inventive battery immediately lit a tiny light that continued to burn throughout the argument. Some accounts suggest that the attorney knew he had won the case when the Justices kept their eyes on the tiny burning light throughout the remainder of the argument."

It is certainly very interesting and I hope you laugh at it as I did. It does show attorneys have interesting ways to capture the attention and awe of judges, like we do in presentations to the class!

Sources:
http://supreme.justia.com/cases/federal/us/383/39/
http://www.google.com/patents/US2322210?dq=2322210
http://en.wikipedia.org/wiki/United_States_v._Adams

The "Invention": Heat-Drying Ink

The Sinclair & Carroll vs Interchemical Corp case took place in 1945, involving the claims of a heat-dried printer ink which is non-volatile at room temperature. The ink was "invented" by Albert Gessler and assigned to Interchemical Corp, and later used to sue Sinclair & Carroll Co., and the patent was first held invalid by the District Court, then reversed by the Circuit Court before finally reversed yet again by the Supreme Court, which is pretty similar to the KSR case.

In summary, the "invention" had a significant impact on the mass printing industry, especially for non-absorbent paper printing such as that used in magazines. It was interesting how Gessler found the composition, as he was first asked to make an odorless ink (in 1930) by testing chemicals from a catalog which had descriptions of the chemicals. The company which asked for his help later found the ink unsatisfactory for other reasons and Gessler stopped testing. However, in 1932, the company then requested for the heat-drying ink mentioned above, Gessler told them one of the inks he made in 1930 met the requirements. From here, we can see that the ink is obvious, as it was primarily based off a catalog. Even though the ink may have been discovered after much failures, it is to be noted that the primary chemical solvent in the ink (butyl carbitol) with the desired properties was first released to the market in 1929, which meant that past failures would not really count to give Gessler the patent, the chemical's inventor deserves it more. Thus, obviousness was the reason the Supreme Court supported the District Court's decision.

Anyway, as I was reading through parts of the case, I found this interesting statement:

"There has been a tendency among the lower federal courts in infringement suits to dispose of them where possible on the ground of noninfringement, without going into the question of validity of the patent. Irvin v. Buick Motor Co., 88 F.2d 947, 951; Aero Spark Plug Co. v. B.G. Corp., 130 F.2d 290; Franklin v. Masonite Corp., 132 F.2d 800. It has come to be recognized, however, that, of the two questions, validity has the greater public importance, Cover v. Schwartz, 133 F.2d 541, and the District Court in this case followed what will usually be the better practice by inquiring fully into the validity of this patent."

It shows that there are probably many cases which may have been judged unfairly in the past, although I am not too sure if any did reach the Supreme Court to overturn the judgement. Nevertheless, that was decades before the Graham factors came along to set a clearer definition on obviousness.

Sources:
http://supreme.justia.com/cases/federal/us/325/327/

Obviousness Prosecution Strategies

In addition to my previous post, Tom Irving's notes also mentioned how it is "still best to destroy, rather than rebut, a prima facie case of obviousness". This statement means in a patent appeal, it is better for the court to attempt to prove the patent claims, which appear to be obvious, are indeed obvious rather than not. On the other hand, in argument, it is better to attack the "premise of rejection rather than amending claim important in view of prosecution history estoppel and litigation implications". That sounds complicated, but it means it is better not to make a compromise of amending the claim to accommodate the rejection rationale unless necessary.

On the judges' side, to substantiate the rejection, we can check if the draft application spelled out everything relevant to the claims. If they did not reveal everything, they may be hiding the fact that the problem was known and that there was an obvious solution. Also, the application has to include the "starting point" prior art which kickstarted the invention's development, and we can access if it would lead to identifying the problem.

However, for the patentee, Irving states that there has to be some rational reasoning to support the conclusion, and thus it can be challenged if there is not. It would be crucial to show the claims were not obvious to try then, which we have discussed in class and in my other posts. Knowing how the two sides fight in a case will enable us to first draft an irrefutable patent claim.

Sources:
https://law.duke.edu/sites/default/files/centers/judicialstudies/patentlawintensive/wednesday_Irving-May_15_Dev_in_Non-Obviousness.pdf

Improving Odds of Approval

In a powerpoint notes by Tom Irving of Finnegan, he summarised the developments in non-obviousness in great detail, listing many post-KSR cases. It is certainly a good albeit long reading. Of particular interest to me was how Irving suggested we could improve our odds of getting our patent claims approved against obviousness arguments by the USPTO.

We could use the "lead compound" case law results, that there are many choices to try prior to the invention, that results are unpredictable when we combine elements together and that knowing the properties does not equate to knowing the process. In other words, we have to show that it was not obvious (to try). Although the case was related to a pharmaceutical patent, the challenge can be used on any other cases.

Firstly, we have to show that there many unpredictable yet possible solutions. We would then require extensive testing to affirm if any are actually viable solutions. If a prior art pointing the general direction is used by the examiner to challenge the claim, it could be argued that it did not show solutions, which were unpredictable. The best would be that the prior art teaches away from the solution for example, by stating it is impossible based on in accurate predictions.

The second argument of unpredictable results when combining elements means that an ordinary skilled worker would not have thought of trying it, since he would not have thought that something unpredictable would happen.

The last point can be explained using a simple analogy. We know about carbon dioxide and oxygen and their properties, but we may not know how to get oxygen from carbon dioxide (of course we now know chlorophyll is a natural solution but this is just an analogy).

In all, I would say that this is a different phrasing on proving non-obviousness, putting the concepts in an easily understood manner.

Sources:
https://law.duke.edu/sites/default/files/centers/judicialstudies/patentlawintensive/wednesday_Irving-May_15_Dev_in_Non-Obviousness.pdf

The Kubin Case

After the KSR vs Teleflex case in April 2007, another case (ex Parte Kubin) involving the appeal of a patent claim rejection had its judgement reaffirmed in May 2007 based on the new "Obvious to Try" standard.

The patent involves a cDNA molecule (NAIL) that serves as an NK cell surface marker. In summary, the main claim is the isolation of the said molecule. Kubin appealed on the rejection based on a similar case in 1995 (Deuel) that its cDNA claims cannot be "made obvious by mere knowledge of a desired protein sequence and methods for generating the DNA that encodes that protein". However, unfortunately for Kubin and as a result of the KSR judgement, the claim was obvious to try.

Even though obvious to try may not necessarily mean the resulting outcome was obvious or the process straightforward, it was in this case. Straightforward does not mean it is easy, it could be tedious but so long as it is routine, those skilled in the art would be able to do it, which was a point noted. Also, because the claims were not sufficiently detailed, claiming only 80% identity of the described sequence, its rejection was further supported. Certainly, the "obvious to try" rule makes claims harder to be approved, and bad patents without much innovation could have more difficulty being used to sue for damages. However, due to hindsight bias, it can be very difficult to determine if something was indeed obvious to try.

Sources:
http://patentlyo.com/patent/2007/07/ex-parte-kubin.html
http://patentlyo.com/media/docs/2007/07/fd070819.pdf
http://www.patents4life.com/Ex%20Parte%20Kubin.pdf
http://www.hoffmanbaron.com/releases/HB%20Article%20Reprint_fnl.pdf