Third post of this week

For my last post, I will be talking about obviousness. The article talks about Graham V. John Deere Co(1959) In this case, Supreme Court ruled that these 3 things must be defined.

1. The scope and content of the prior art;
2. The differences between the claimed invention and the prior art; and
3. The level of ordinary skill in the prior art.

These are known as the Graham factors. They've been utilized by Court as controlling inquiries ever since. Court also mentioned secondary consideration to argue non obviousness

They are 1. Commercial success 2. long but unsolved needs 3. failure of others.

We can see these consideration as the following. Even if the patent or claims might seem obvious to the examiner, it can be explained by the petitioner if the applicant can present evidence that the product or invention achieved commercial success as result of invention. It proves that it's not something obvious as it's been clearly bought and used by others. Also, if evidence can provide that there was a long felt and un-resolved needs, then it must have not been obvious.

Lastly, if evidence suggests that many others tried to solve the issue but could not, it could also satisfy this condition.

So after all, it may seem like obvious, but it can always be talked about in these 3 conditions.

However, it's important to note that it's very subjective. It can vary depending on who the examiner is or who the jury/judge is. Patent world is very complex, as you already know.

Source:

http://www.the-business-of-patents.com/obviousness.html

Second post of this week

For this week, I am going to be talking about software patents and its relationship to obviousness.
This week, since our topic heavily deals with obviousness and patents, I thought going in depth about software was a good post to make. As we all know, software cannot be patented because many claim that it contains mathematical ideas.
Furthermore, many claim that everyone can think of certain algorithm, therefore, it's often perceived as non patentable.
Do you agree or disagree?

Personally, I believe that software should be allowed to be patented. Not all should be, but at least most should be allowed to get a shot. Even if it's dealing with math, I believe not everyone can come up with specific algorithms. In this article, it talks about how software dealing with system or hardware could be patented, but not pure software. Microsoft along with Adobe and HP try to justify why software should be patented.

Furthermore, there are various cases in which patents that were granted previously are invalid as a result of obvious issues. For instance, Google was awarded patents in 2005 and 2008, but it was decided that it was invalid due to them being too obvious. 

The issue at hand is that many software patents are too obvious. In the article, Tim Lee, an examiner, argues that Google Earth's patent is too general and too broad. It definitely meets the requirement of obvious. So, what should we do about software? This has been debate for decades for both sides, one supporting and one opposing. What do you think? When I think of obvious and non obvious part of patents, I immediately think of software patents. It's because many consider them to be obvious, meaning that it's not creation, but rather mathematical idea. Any ideas on comments are appreciated!

https://www.techdirt.com/articles/20060616/1032210.shtml



Source: http://www.zdnet.com/microsoft-hp-adobe-try-to-justify-software-patents-7000027033/

First post of this week - Drug Patent

Maryland federal judge shut down Par Pharmaceutical Inc's bid to keep its formula for a drug that combats anorexia and extreme weight loss in patients with Aids. The court found that the company's invention was obvious in light of previous drug developments. This also proves that court can declare something to be invalid based on obviousness.

The court ruled that anyone with knowledge in this would be able to piece together information from the previous science on the subject to arrive at Par's patent conclusion. Par alleged that Taiwan based drug company sought to make its own version of Megace ES. TWi Pharmaceutical argued against it, and the judge agreed claiming that patent by Par was invalid.

Inventive step and non-obviousness reflect a same general requirement present in most patent laws. In order for the patent to be inventive it has to be non-obvious. Meaning, the invention has to be an adequate distance beyond or above the state of the art.

In this case, the court showed that they can rule out the patent even though it was already filed previously. I believe this is a legitimate decision because patents sometimes keep invention from being formed. I also agree that judge made the right call. If the judge believes that anyone with specific knowledge can make the drug, it indeed sounds correct. Just because you invented it first(which was derived from somewhere else), that doesn't mean someone can't think of same thing from different idea.

http://www.rkmc.com/resources/newsletters/generically-speaking-hatch-waxman-bulletin/generically-speaking-fall-2013/par-pharma-inc-v-twi-pharma-inc

Third post of the week- Microsoft and Google battle overseas

This one is also interesting. In addition to the battle going on here in the States, it's happening overseas. It looks like Microsoft doesn't want to lose either. And they are doing everything they can to win the edge against other companies, especially Google. We all know Google Maps. We use it all the time. Can you imagine it being going away for even a day? That's what Microsoft is basically claiming in German court. 

Microsoft states that both Google and Motorola had infringed on mapping patent. The patent in question covers "computer system for identifying local resources and method". It was filed in 1995, and it covers to meet an emerging need in the growing ecosystem. Furthermore, "According to the patent, it is not possible, using existing web search tools to answer questions such as 'where is the nearest hamburger restaurant?'" To solve this issue, the patent laid out a method of storing map data on a server. Then it attaches to another content, then makes it accessible by client devices.

However, the court in Germany invalidated the patent stating that the patent lacked invented step, according to the article. 

Inventive step means that patent should not be obvious. It should be sufficiently inventive, and that no one should think of an idea easily. To clarify, this may help people to understand the term. Taken from Wikipedia directly, "In other words, "[the] nonobviousness principle asks whether the invention is an adequate distance beyond or above the state of the art."

If the court in Germany ruled in favor of Microsoft, Google Maps should have shut down. Can you imagine it being gone suddenly due to patent infringement? That just shows why so many companies are trying to acquire patents to protect their products that they invested so much on. Microsoft is being aggressive with their tactics. They are suing other companies like LG, Samsung, and HTC to demand license costs. All these companies signed license contract with Microsoft, so they need to pay $15 per phone sold.

They are appealing to court in Germany. Will they win? Or will Google win? It would be interesting to see what happens next. I understand that they are filing litigation in order to get the most out of their patents. The battle will continue.

http://www.zdnet.com/microsoft-loses-mapping-patent-tussle-in-german-fight-with-google-and-motorola-7000026978/

Post two of this week- Should all software be patentable?

I brought this topic earlier in few of my articles(even on my first post about twitter).

Should software be patent-able? As we all know, a lot of companies in United States are based on software. I can think of Microsoft, Google, Amazon, Apple, Oracle, Cisco(although they do hardcore hardware too), Twitter, Facebook. You name it. I am sure that they have some software in place.

We all know that software takes a long time to write. It's also very valuable since we can see that many software(or hardware companies doing software) companies are doing so well in the United States. Some say that software shouldn't be patented because mathematics cannot be patented in the US. Since software is involving heavily with theory and algorithms, it's really up to debate whether it can be patentable or not. In this article, Microsoft, HP, and Adobe tries to prove that software should be patented. I thought this was interesting because I do agree to some extent. But on some areas, it went too far. Microsoft tries to explain their claim through example they describe the evolution of the mechanical typewriter.

This is a direct excerpt from the article regarding Microsoft's statement:

Functionality previously achieved through gears and levers—like proportional font spacing — was re-developed using software that provided instructions to computing hardware. Those digital improvements served the same function as, and were no less technologically innovative than, their mechanical forebears. Accordingly, the inventions were patentable.

Basically, this is saying "This is the key mistake of the software patent problem: taking earlier mechanical inventions and re-implementing them in software is patentable."

And they go on to state:
Software is heavily dependent upon the use of algorithms. And it is “clear that a process is not unpatentable simply because it contains a * * * mathematical algorithm.” . . . Where a software patent describes a practical application of an algorithm as part of a process that produces a technological effect or useful result on a computer — e.g., encryption, data compression, higher- speed processing — that should be patent eligible under this Court’s precedent.

This is pretty much stating although it's the law that mathematical algorithm cannot be patented, fields relating to use of encryption, data compression, higher speed processing should be eligible for patents.

And, Microsoft also goes onto state that they will provide service with professional witnesses to USPTO if they cannot understand the patents. The article goes onto state that all software programs are list of symbols that embody ideas. I also thought it was interesting that the author mentioned that software implements abstractions on a computer. But United States court decided otherwise, and therefore, making software companies spend money on patents. So, should all software be patentable? Are Microsoft, Adobe, and HP doing the right thing? These are all valid questions that may come up in the later years, definitely.

Source: http://www.zdnet.com/microsoft-hp-adobe-try-to-justify-software-patents-7000027033/

First post of this week- Interesting deal between Twitter and IBM

Who says internet startup-ish companies don't have to deal with infringement?
Well, Twitter, a well known company that feels like startup(!) had finished $36M patent deal
with IBM.

According to the article, I was able to find out that Twitter bought 1,000 patents from IBM.
This is the exact excerpt from article that states their claim.

"Companies in the Internet, technology and media industries own large numbers of patents, copyrights, trademarks and trade secrets, and frequently enter into litigation based on allegations of infringement, misappropriation or other violations of intellectual property or other rights." 

So let's go into why they bought the patents in the first place. Last year when IPO was in the talks, IBM reached out to Twitter informing them that they had infringed IBM's three patents and basically informed them that either settle with us or let's fight at court. In all, IBM can be viewed as a smart company or bully. They knew that Twitter was going in the IPO-phase, so they decided to reach out to Twitter. IBM is a big company with large patent profile, so they probably had nothing to lose.

Twitter, on the other hand, is not. If news gets out that they are in litigation regarding patents, their stock could have significantly went down during the IPO phase. Not only that, they would have to deal with IBM in court. And the worse part is that they might lose. All in one, Twitter settled and bought the patents. Who won here?

Well, in my opinion, both companies won. As Twitter claimed, they avoided court fees and litigation in court. Also, they acquired 1,000 patents from IBM. They have avoided litigation talk during IPO. Also, they are now one of the biggest software companies, so they should be collecting patent profiles. We could say that Twitter did pretty well here. But, they did pay hefty price of $36 million. Though, I believe that that price was worth it.

IBM won too. They sold the patents, but they talked to Twitter and got $36 million in return. They didn't have to go into litigation. They also didn't need to do much work. They just approached Twitter and told them their intentions. In a way, IBM played the role of "patent troll". But, it turned out to be good price for both companies.

I am curious to know how software companies will deal with patent issues in the end. I know that Google has massive patent profiles, but they are not just a software company. Twitter and Facebook are centered a lot on social connection, so it will be interesting to see what happens next regarding patents.

Source: http://www.theregister.co.uk/2014/03/08/twitter_ibm_patents_cost_36m_dollars/