Assignment 3 EC for this week - Silly Patent 3

For my last post on silly patent, I decided to do a post on more practical(?) patent.
This product is called office gym exercise kit.

As you may instantly know by the title, it's for exercising in your office. In your cube, you can transform your workspace into a gym. The kit provides a full range of arm leg and back exercises. It states that all you need is a chair to get exercise done.

To further describe, office gym kit is a portable exercise kit. It is capable of attaching about a chair post and chair back support to provide workout for the user. "User's body will be wrapped around the post and under the base of the chair then secured such that the flexible body remains in place around chair post."  Furthermore, "Both the flexible body and flexible band have retainers attached thereon. Several elastic straps are included in the kit. The elastic straps may be fastened to the flexible body and flexible band by latching onto the retainers. The user then exercises by extending the elastic straps with arms, legs or the like."

This sounds more practical than other silly patents that we have seen so far, both in class and on the web. Everyone seems to be working out now days to stay healthy. And the reason for making this product and making it patented seems to be somewhat of a good idea. For prior art, I have seen cases in which the companies sell products that can be easily done with household product. But, I have not seen anything that can be used in the office itself. As with usage, it seems that one could really use this if he or she was in the office alone. Or, if the worker is self-employed, this could actually be alternative to real gym. It would save time and money. However, when you are working with others, it will be difficult to actually use this because it will make you look like a fool. Also, I feel that this is a fast track to getting fired. Do note that this is specifically made for office/job environment. Would you use this while working?

http://patft.uspto.gov/netacgi/nph-Parser?Sect1=PTO1&Sect2=HITOFF&d=PALL&p=1&u=%2Fnetahtml%2FPTO%2Fsrchnum.htm&r=1&f=G&l=50&s1=7137935.PN.&OS=PN/7137935&RS=PN/7137935

Assignment 2 EC for this week - Silly Patent 2

http://www.freepatentsonline.com/4858627.html

For my second post, I found an interesting patent that seems to be silly. It is called a smoking hat. What it does is when a user smokes any tobacco products, the hat attached to the head of the smoker, takes the smoke inside and filters and removes the bad substance harmful to the environment. It also makes our environment clean and makes air smell nicer. This is a product that is suitable for smokers who are also interested in keeping the environment clean. I was able to get their exact abstract from the patent website.

 It is stated that, "A portable hat system enables the smoking of tobacco type products without affecting the environment includes a hat for covering the head of the smoker, an integral fan for intaking ambient air (contaminated and non contaminated) into the hat with this intake ambient air flowing in front of the smoker's face, a filtration, purification and deionization system for removal of combustion products, such as smoke odors and positive ions from the intake ambient air, and an exhaust system for expelling the filtered deodorized, deionized and optionally scented air from the hat."

<Source:http://totallyabsurd.com/smokershat.htm>

This is basically a hat attached to the person to prevent harmful substances from going out to the world. On the first look, it doesn't look too innovative because a smoker would not first think about environment in the first place(if the user was a smoker). Second, I feel that it would be cumbersome for smoker to use this because it would create more stress for the user. After all, many smokers smoke in order to get rid of stress. I was not find similar prior art for this patent. It may be because no one actually used this patent to get anything out of the world. To me this patent does not seem practical at all because no one would go that far to smoke. I feel that there is no practical use for this patent, so it should be invalidated, but as it's not obvious and there are no prior arts for this patent, it seemed to have been approved.

Assignment 1 EC(extra credit) for this week - Silly Patent

I did my first post on Anti-eating face mask.
The patent link is posted here at http://www.google.com/patents/US4344424.

Anti-eating face mask was created to prevent the growing problem of obesity. Lucy L. Barmby of Sacramento is credited as making this anti eating face mask. To describe what it does, this is the exact excerpt from USPTO stating what it does. "An anti-eating face mask which includes a cup-shaped member conforming to the shape of the mouth and chin area of the user, together with a hoop member and straps detachably engageable with a user's head for mounting the cup-shaped member in overlying relationship with the user's mouth and chin area under the nose thereby preventing the ingestion of food by the user."

After researching many patents out there, this is one of the top ten silly patents that I was able to find. It's interesting that someone invented this to prevent people from eating to prevent obesity. I find it amusing because one can just take the mask off in order to eat. It will be difficult, but I don't see why not. It's not obvious because I believe we wouldn't have thought of an idea to prevent food from going into our mouth. Based on my research, no prior art seemed to have existed regarding this invention. As such, patent is valid. Personally, I am not sure who would actually purchase this and use it on their daily lives. This should be suitable for weight-loss companies that are trying to develop a suitable program.

Assignment 3 for this week

After looking at cases, I can see how difficult it would be for courts to decide on matters relating to obviousness in technology. I saw from a source that over 80% of startups in Silicon Valley are software related companies. But again, how is it that software patents are so problematic? With all the software companies doing so well these days, what will happen to software patents?

While going through several articles on the web, I was able to look at this article. It states that Kelora patent was found obvious. And it also asked to the readers whether the software patents are dangerous or not? Some claim that software patents should be voided because many software patents are obvious over prior art. Courts also realized this and are trying to analyze software patents even more carefully. (Though I believe software should also be allowed to be patented since I know how hard it is to invent software)

Kelora had a patent on parametric search(faceted). This company is stated that it's a hybrid company between a patent troll and practicing entity offering search product. Kelora's suits included internet giants like Microsoft, Ebay, Target, Amazon, and NewEgg. Many others just went onto settle with Kelora rather than going to lawsuits. Many, however, believed that Kelora's patents should be invalid because it is prior art going early as 1960s. Many companies fought with Kelora that its patents were too obvious.

Finally, the courts decided with summary judgement that since client/server systems were well known as early as 1990s, it did not matter whether inventors did not know such system when they created it.

This is promising for companies because it shows that courts are taking one step further to analyze it through sophisticated interpretation. This patent was voided due to prior art under obviousness standard. Again, I feel that this issue of obviousness is problematic in patents. It creates confusion and problems for both the inventors and defendants of patents. It's stated that defendants of this case against Kelora used significant resources already, they were able to avoid going into full trial.

http://techcrunch.com/2012/05/26/kelora-obvious-software-patents/

Assignment 2 for this week

For my second post, I will further talk about obviousness of the patent cases.
The purpose of a virtual private network is to establish a secure, tunneled route between two points in an IP network(betanews).

The company called VirneX went one step further with VPN. This company called it Tunneled Agile Routing Protocol. The communication between VPN hosts are encrypted at on level, but routing information is hidden behind a second level. 
The purpose was to hide who was sharing is and what route its taking to get there in addition to hiding what's being shared or talked about.

Microsoft, on the other hand, implemented its own VPN technology. It built a VPN for phone network. To make internet work more like a phone, like people using a telephone console to be able to pick up the phone and dial. They argued that they shouldn't have to go to some dialog box and log in. Avoiding this option was exactly what VirnetX stated that Microsoft infringed.

Microsoft argued that the whole point of VPN was to establish secure and anonymous communication between two points. Therefore, the VirnetX's idea of inventing addition of anonymity was ridiculous because it's already there. Microsoft also argued that judge look up glossary to find the whole definition of VPN.

In the end, it became a confusion after confusion. It was all down to Judge's and Jurys' interpretation of VPN after looking up glossary and hearing from both sides. In the end, the Jury determined that Microsoft infringed on VirnetX's patents. The reason was because Microsoft wanted to patent this exact idea previously, but found out VirnetX already made it so they were denied. Also, Microsoft couldn't persuade the jury or the judge that VirnetX's VPN technology was so obvious that it was already covered by glossary definition. Also, trying to invent the same technology previously hurt Microsoft here big time.
The basis of the denial was prior art, which was existence of patent issued to VirnetX.

After looking at so many cases and articles relating to obviousness, it's clearly subjective. If Microsoft didn't file the patent before, they could have gotten away with it. I feel this is one of the major problem that exists in patent.

http://betanews.com/2010/03/17/microsoft-loses-another-jury-verdict-this-time-over-obviousness-of-vpn-patent/

Assignment 1 for this week

This week is another week for obviousness related cases.
It's hard to find cases solely based on obviousness because many cases seem to be dealing with several things. Also, they all have definitions mostly relating to obviousness rather than giving you an analysis.
Last week for extra credit, I went onto make posts relating to design cases relating to obviousness.

It's quite interesting and yet subjective. Everything about obviousness seems to be subjective because one cannot judge it crystal clear.

As I was digging up obviousness related cases, I was able to find that Microsoft had a case with Acceleration Software International Corporation. They filed patent against Microsoft saying they infringed on US patent 5933639 issued in 1999. The suit asked for $2.50 per copy of Windows XP sold. This amount would be something lie $600 million to $900 million.

Microsoft, on the other hand, argued that they did not infringe on the patent. They stated that there are several ways to improve boot speed of PCs and that Windows XP was one of the example that was done. They ultimately argued that they did not infringe on the technology in the patent.

The jury ultimately concluded that patent was invalid because it was too obvious and technology already exited. Acceleration Corp was created by Acacia after Acacia bought the patent and filed suit against Microsoft. So in all, they could be considered a patent troll.

Since obviousness is so subjective, it's very difficult to judge. Also seen in this case, Microsoft won the case because many other companies are utilizing ways to speed up the boot speed. It could be seen that this is one of the major problems in the US patent system today. It's also interesting that they tried to add Vista to the suit, but jury denied the request.

http://www.pcworld.com/article/139711/article.html

Extra credit assignment-3

For this post, I am going to talk about design patent rejections. Patentlyo has a good post about this articulating the problems of the current state. Apparently, the blogger combined 1049 file histories of design patents for the 12 month period. And of those, 5 were rejected on novelty grounds and 8 on obviousness. The majority of the patents(82%) were never rejected. According to the most recent USPTO report, design patents have a allowance of 90%. Clearly, something is wrong because the numbers seem to indicate that the US design patent is operating not as a patent system, but rather as a registration system. It's also interesting to see that the article talks about how it's easier to prosecute a design patent to issuance than to register a product design as a trade dress.

So why is that over 90% of design patents are allowed? Is it because of the unclear concepts of obviousness of design patents??

There are two steps in obviousness of a design patent.

First is to find a single reference showing design characteristics as the claimed design. After primary references are found, other references may be used to create a design that has same visual appearance as the claimed design.

I just wanted to clarify as the design patent issue seems to be most troubling.

Extra credit assignment-2

In my first assignment, I went on to describe the difference between designer's views and observer's views.

So in the past, people were confused that International Seaway Trading Corp v. Walgreens Corp completely changed the paradigm of design patents. Seaway sued Walgreens, claiming that the sale of certain clog like shoes infringd Seway's three design patents. Walgreens moved for summary judgement, and District Court granted Walgreen's motion. They found that patent were invalid based on the patents assigned to Crocs, inc., maker of colorful and foam clogs. Without addressing obviousness the District Court held that ordinary observer test was the sole test of design patent invalidity.

Seway appealed again and Federal Circuit confirmed that ordinary observer test is the sole test for assessing both infringement and anticipation. "The U.S. Court of Appeals for the Federal Circuit affirmed the District Court’s holding that the ordinary observer test is the sole test of invalidity of a design patent.(Lawupdates.com)"

Did the courts fail or succeed? I know that I just went briefly into the topic and did not go in depth about whole case summary. In this case, the Federal Circuit Court eliminated the point of novelty test for analysis of anticipation and obviousness claims. They also affirmed that ordinary observer test as the sole test for design patent validity.

Extra credit assignment -1

The federal court clarifies tests for obviousness of design patents.

Who gets to decide whether design patent is obvious or not?

The panel of Judges O'Malley, Schall, and Wallach confirmed that the obviousness of a design patent is to be determined through the eyes of an ordinary designer. It is not done through ordinary observer.

You may ask what's the difference. The ordinary tests requires court to engage in more analysis that rely on expert testimony, usually. However, they do not have to have one. When obviousness analysis is done at higher level, the gap between prior art and design is easier to overcome because skill and knowledge attributed to the designer.

It makes it very easy to invalidate design patents on obviousness grounds. It means that courts are less likely to rule design patents invalid on summary judgement as competing facts will create fact issues for a jury to determine. 

For instance, this article talks about how International Seaway Trading Corp v. Walgreens Corp. stated that obviousness determination was to be made by the ordinary observer, but this decision clears up the confusion that was created.

So in all, it would mean that it's likely that the fate will be decided by the jurors not by judges on summary judgement. It's taking account into the fact of designer's minds at the time of designing rather than putting it out there with one's personal views. Personally, I think this makes sense because design patents are always hard to determine whether there were infringement or not.