Friday, July 01, 2016

GE goes after United Technologies via IPR route


At the end of a story at Bloomberg titled GE Wins Shot at Voiding Pratt Patent in Jet-Engine Clash one finds text about IPR challenges by GE against United Technologies:


GE submitted additional petitions challenging more Pratt patents in April, and even more on June 28. Those cases are pending an initial review by the agency.

The Patent Trial and Appeal Board, where the petitions were filed, has become known as a “death squad” for patents because of the high rate of rejection. It’s easier to invalidate a patent at the agency than in district court because different standards are used. The Supreme Court on June 20 upheld the review process used by the agency.



Obviously, these challenges are not about dubious software patents.

Also, IAM Media wrote in January 2016


But to what extent is the system truly working as it should to provide an efficient and cost effective way of challenging patent validity? It seems unlikely that any of the authors of the America Invents Act (AIA) foresaw those companies with the deepest pockets filing challenge after challenge against patent owners.



Although IAM noted there was some "justice" in NPEs getting attacked by multiple IPR filings, one recalls productive companies can be victims of IPRs filed by NPEs.

In August 2015, IPBiz wrote of the denial of the Kyle Bass petition against Acorda's MS symptom drug Ampyra in the post
The IPR petitions of Kyle Bass on Acorda/Ampyra denied by PTAB . That related to IPR2015-00720 and IPR2015-00817. But Kyle Bass won the next time around in IPR2015-01850. The first time around Bass failed to convince PTAB that a certain poster session was prior art.
The second time around Bass succeeded in convincing PTAB that Acorda's S-1 statement of 26 Sept. 2003 was prior art.

GE goes after United Technologies via IPR route


At the end of a story at Bloomberg titled GE Wins Shot at Voiding Pratt Patent in Jet-Engine Clash one finds text about IPR challenges by GE against United Technologies:


GE submitted additional petitions challenging more Pratt patents in April, and even more on June 28. Those cases are pending an initial review by the agency.

The Patent Trial and Appeal Board, where the petitions were filed, has become known as a “death squad” for patents because of the high rate of rejection. It’s easier to invalidate a patent at the agency than in district court because different standards are used. The Supreme Court on June 20 upheld the review process used by the agency.



Obviously, these challenges are not about dubious software patents.

Also, IAM Media wrote in January 2016


But to what extent is the system truly working as it should to provide an efficient and cost effective way of challenging patent validity? It seems unlikely that any of the authors of the America Invents Act (AIA) foresaw those companies with the deepest pockets filing challenge after challenge against patent owners.



Although IAM noted there was some "justice" in NPEs getting attacked by multiple IPR filings, one recalls productive companies can be victims of IPRs filed by NPEs.

In August 2015, IPBiz wrote of the denial of the Kyle Bass petition against Acorda's MS symptom drug Ampyra in the post
The IPR petitions of Kyle Bass on Acorda/Ampyra denied by PTAB . That related to IPR2015-00720 and IPR2015-00817. But Kyle Bass won the next time around in IPR2015-01850. The first time around Bass failed to convince PTAB that a certain poster session was prior art.
The second time around Bass succeeded in convincing PTAB that Acorda's S-1 statement of 26 Sept. 2003 was prior art.

Francis Malofiy, lawyer on side of Estate of Randy Wolfe in "Stairway to Heaven" case, suspended in Pennsylvania

See the post Lawyer Who Sued Led Zeppelin Suspended From Practicing Law

Of the case, on June 23, Larry Iser had written:


Today’s verdict in favor of Led Zeppelin is a vindication of copyright, which only protects an original expression of music. The evidence in the case was overwhelming that the accused chord progression in “Stairway to Heaven” – featuring a descending, chromatic bass line – is a common building block of classical and popular music dating back hundreds of years. As such, plaintiff Michael Skidmore was unable to prove a valid copyright as against “Stairway to Heaven.”

Wednesday, June 29, 2016

US published application 20160183695: Crib With Embedded Smart Sensors


The first claim:

A baby crib, comprising: a horizontal support platform; a base structure disposed below and physically supporting the horizontal support platform; a plurality of vertical surfaces connected to the horizontal support platform and arranged to form a contained area at least 50 cm above the horizontal support platform; a first sensor physically integrated with the horizontal support platform; and a second sensor physically integrated with at least one of the plurality of vertical surfaces.

CAFC handles USPTO roughly in LF Centennial Limited: the fallacy of the undistributed middle


From the CAFC decision, as to the PTO Director:


...the Director suggests a side panel can be a spine. That suggestion is fallacious: it employs a version of the fallacy of the undistributed middle, ...



To put this in context, from the opinion:


To support the Board’s contrary construction, the
Director of the Patent and Trademark Office, as intervenor,
asks us to hold LF Centennial to the construction
that it proposed—and the district court adopted—in the
prior litigation against Bell’O. But that construction is
not in tension with what LF Centennial proposes here: it
says nothing that contradicts the relevant ordinary nontechnical
meaning of “spine” or, specifically, its distinction
from side panels or legs. In the district court, LF Centennial
proposed only that “first short spine” means “[a]
component, as described in the claim, having a length
shorter than the [second long] spine,” J.A. 561, and that
“second long spine” means “a component, as described in
the claim, having a length longer than the first short
spine,” J.A. 563. The defendants, in turn, argued that the
first short spine and second long spine cannot be used
together and that the first short spine must be removable.
As the district court explained, the parties’ dispute centered
on “whether the two different spines described in
the claims can be used together.” J.A. 582. Nothing
supporting the Board here was said about the location of
the spines, in relation to the console as a whole or to the
side panels.

Nor did any post-claim-construction ruling in the
court case turn on any implicit view of “spine” different
from what LF Centennial urges here. In this circumstance,
there could be no basis for judicial estoppel, which
generally prevents a party from advancing a position that
is “clearly inconsistent” with an earlier position on which
it succeeded. See Zedner v. United States, 547 U.S. 489,
504 (2006); New Hampshire v. Maine, 532 U.S. 742, 750
(2001). Similarly, there could be no basis for issue preclusion,
which is limited to issues that were “actually litigated”
and whose resolution was “essential” to the outcome
in the first round of litigation. See B & B Hardware, Inc.
v. Hargis Indus., Inc., 135 S. Ct. 1293, 1303 (2015); Parklane
Hosiery Co. v. Shore, 439 U.S. 322, 326 n.5 (1979);
Restatement (Second) of Judgments § 27 (1982).

The Director also points to the specification’s description
of a short spine in one embodiment as reaching from
the ground to the top of the console. See ’311 patent, col.
2, lines 6–9 (short spine “extends between the floor or
lowest shelf support to the level of the upper most shelf
support”). Because a side panel does the same, the Director
suggests, a side panel can be a spine. That suggestion
is fallacious: it employs a version of the fallacy of the
undistributed middle, under which the two statements, “a
dog is a four-legged pet” and “a cat is a four-legged pet,”
are asserted to give rise to the inference that a dog is a
cat. A common characteristic of a spine and a side panel
does not allow a conclusion that one can be the other.
Under the appropriate construction (which applies to
all of the claims), the Board’s anticipation and obviousness
rejections must be reversed. The challenger Bell’O,
the examiner, and the Board pointed only to the curved
legs or side panels shown in Figure 8 of Saxton as constituting
the disclosure of a “short spine.” Those components
were merely identified as the “short spines,”
without elaboration as to Saxton’s teaching to a relevant
skilled artisan. Because we hold that such components
cannot be considered “spines” under the ’311 patent, there
has been no showing of a disclosure or teaching of a “first
short spine” in the prior art of record. We reverse the
anticipation and obviousness rejections based on Saxton
and Pfister.




link: http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/15-1931.Opinion.6-27-2016.1.PDF

Opinion by Taranto.

A version of the fallacy, from wikipedia:

All Z is B
All y is B
Therefore, all y is Z

link: https://en.wikipedia.org/wiki/Fallacy_of_the_undistributed_middle

In this case,

Short spine has property X
Side panel has property X.
Therefore, some side panels are spines.

Monday, June 27, 2016

Bascom beats AT&T on 101 issue at CAFC

Bascom won a vacating of an order from ND Texas.


However, we disagree with the district court’s analy-
sis of the ordered combination of limitations. In light of
Mayo and Alice, it is of course now standard for a §101
inquiry to consider whether various claim elements
simply recite “well-understood, routine, conventional
activit[ies].” Alice, 134 S. Ct. at 2359. The district court’s
analysis in this case, however, looks similar to an obvi-
ousness analysis under 35 U.S.C. § 103, except la
cking an explanation of a reason to combine the limitations as
claimed. The inventive concept inquiry requires more
than recognizing that each claim element, by itself, was
known in the art. As is the case here, an inventive con-
cept can be found in the non-
conventional and non-generic
arrangement of known, conventional pieces.
The inventive concept described and claimed in the ’606 patent
is the installation of a filtering tool at a specif-
ic location, remote from the end-users, with customizable
filtering features specific to each end user.

(...)

While the claims of the ’606 patent
are directed to the abstract idea of filtering content,
BASCOM has adequate-
ly alleged that the claims pass step two of
Alice’s two-part framework.



Judge Newman wrote separately:


As this case
illustrates, these cumbersome
procedures for sepa-
rate determinations of patent eligibility
and patentability have added
to the cost and uncertainty of
patent-supported
commerce, with no balancing benefit.



link: http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/15-1763.Opinion.6-23-2016.1.PDF

Sunday, June 26, 2016

CBS Sunday Morning on June 26, 2016 does Teflon


CBS Sunday Morning on June 26, 2016 discussed the invention of Teflon in its almanac feature, noting this was the 106th anniversary of the birthday of Roy Plunkett:



Plunkett was a DuPont chemist working with gases in the late 1930s when an experiment unexpectedly produced a mysterious white powder. The slippery stuff turned out to have multiple military applications ... and even helped in making the first atomic bomb.

In 1945, DuPont trademarked its miraculous discovery, mercifully shortening its chemical name (Poly-tetra-flouro-ethylene) to the more user-friendly name: Teflon.

(...)

[Plunkett] died in 1994, just shy of his 84th birthday. But his name lives on in the form of DuPont's annual Plunkett Award.


(
Plunkett's US Patent 2,230,654 (filed July 1, 1939; granted Feb. 4, 1941) was assigned to Kinetic Chemicals, a joint venture between DuPont and General Motors. Plunkett worked for DuPont in Deepwater, NJ. DuPont and GM have a long history together
[e.g., http://abcnews.go.com/Business/story?id=8073370&page=1]

The moment of nature was from Tallulah Gorge State Park in Georgia.






*Separately, as to interviewing on Fridays:

http://www.hb.org/always-interview-on-fridays/

CBS Sunday Morning on June 26, 2016 does Teflon


CBS Sunday Morning on June 26, 2016 discussed the invention of Teflon in its almanac feature, noting this was the 106th anniversary of the birthday of Roy Plunkett:



Plunkett was a DuPont chemist working with gases in the late 1930s when an experiment unexpectedly produced a mysterious white powder. The slippery stuff turned out to have multiple military applications ... and even helped in making the first atomic bomb.

In 1945, DuPont trademarked its miraculous discovery, mercifully shortening its chemical name (Poly-tetra-flouro-ethylene) to the more user-friendly name: Teflon.

(...)

[Plunkett] died in 1994, just shy of his 84th birthday. But his name lives on in the form of DuPont's annual Plunkett Award.


(
Plunkett's US Patent 2,230,654 (filed July 1, 1939; granted Feb. 4, 1941) was assigned to Kinetic Chemicals, a joint venture between DuPont and General Motors.

The moment of nature was from Tallulah Gorge State Park in Georgia.






*Separately, as to interviewing on Fridays:

http://www.hb.org/always-interview-on-fridays/

Wednesday, June 22, 2016

CAFC in Immersion v. HTC case: same day continuation filing is all right





This case involves one necessary condition, under 35
U.S.C. § 120, for treating a patent application, filed as a
continuation of an earlier application, as having the
earlier application’s filing date, not its own filing date.
That timing benefit shrinks the universe of “prior” art for
determining validity. The condition at issue, as relevant
here, is that the continuation application be “filed before
the patenting” of the earlier application. The question is
whether, for that condition to be met, the continuing
application has to be filed at least one day before the
earlier application is patented, or whether an application
may be “filed before the patenting” of the earlier application
when both legal acts, filing and patenting, occur on
the same day.

We adopt the latter position. The statutory language
does not compel, though it certainly could support, adoption
of a day as the unit of time for deciding if filing is
“before” patenting. And history is decisive in permitting
the same-day-continuation result, under which, using
units of time of less than a day, a “filing” is deemed to
occur before “patenting.” The Supreme Court approved
same-day continuations in 1863, and the 1952 Patent Act,
which introduced section 120, was broadly a codification
of existing continuation practices. And same-day continuations
have been approved by a consistent, clearly
articulated agency practice going back at least half a
century, which has plausibly engendered large-scale
reliance and which reflects the agency’s procedural authority
to define when the legal acts of “filing” and “patenting”
will be deemed to occur, relative to each other,
during a day.


AND


This is not a case, as we have explained, where the
language of the statute actually contradicts the
longstanding judicial and agency interpretation. Nor is it
a case in which the longstanding agency position is plainly
outside the agency’s granted authority. Here, the
position is an essentially procedural one establishing
when the agency will consider an input into its process
(the legal act of “filing”) and an output of its process (the
legal act of “patenting”) to occur relative to each other—
neither one being a precisely identifiable self-defining
physical act, but a legally defined event. Similar “deeming”
determinations in the federal courts, e.g., Fed. R.
App. P. 4(a)(2), 4(a)(7)(A)(ii), 25(a)(2)(A) & (B), have long
been treated as non-substantive, procedural matters
under the Rules Enabling Act, 28 U.S.C. § 2072. See
Hanna v. Plumer, 380 U.S. 460, 463–65 (1965) (methods
of serving process to initiate litigation). The PTO has
been granted authority to establish procedures that
organize its processing of requests to issue (or cancel)
patents, from entry to exit. See 35 U.S.C. § 2; Cooper
Techs. Co. v. Dudas, 536 F.3d 1330, 1336–38 (Fed. Cir.
2008); Lacavera v. Dudas, 441 F.3d 1380, 1383 (Fed. Cir.
2006); In re Sullivan, 362 F.3d 1324, 1328 (Fed. Cir.
2004); see also Tafas v. Doll, 559 F.3d 1345, 1352–53 (Fed.
Cir. 2009), vacated, 328 F. App’x 658 (Fed. Cir. 2009); id.
at 1365 (Bryson, J., concurring).

Judge Newman dissents in Ethicon v. Covidien,DENIAL ON PETITION FOR REHEARING EN BANC

The term "rulemaking" appears four times in the dissent of Judge Newman.

Monday, June 20, 2016

US Supreme Court on Cuozzo


The Supreme Court had no trouble with the USPTO utilizing the BRI standard.

The concurring opinion by Justice Thomas discussed issues with Chevron, and stated:


The Court avoids those constitutional concerns today because the provision of the America Invents Act at issue contains an express and clear conferral of authority to the Patent Office to promulgate rules governing its own proceedings. See 35 U. S. C. §316(a)(4); ante, at 13. And by asking whether the Patent Office’s preferred rule is reasonable, ante, at 17–20, the Court effectively asks whether the rulemaking was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,” in conformity with the Administrative Procedure Act, 5
U. S. C. §706(2)(A). I therefore join the Court’s opinion in full.



Of the amendment issue, the majority noted:



In inter partes review,however, the broadest reasonable construction standard may help protect certain public interests, but there is no absolute right to amend any challenged patent claims.This, Cuozzo says, is unfair to the patent holder.
The process however, is not as unfair as Cuozzo suggests. The patent holder may, at least once in the process,make a motion to do just what he would do in the examination process, namely, amend or narrow the claim.§316(d) (2012 ed.). This opportunity to amend, together with the fact that the original application process may have presented several additional opportunities to amend the patent, means that use of the broadest reasonable construction standard is, as a general matter, not unfair to the patent holder in any obvious way.

Cuozzo adds that, as of June 30, 2015, only 5 out of 86 motions to amend have been granted. Brief for Petitioner 30; see Tr. of Oral Arg. 30 (noting that a sixth motion had been granted by the time of oral argument in this case).But these numbers may reflect the fact that no amendment could save the inventions at issue, i.e., that the patent should have never issued at all.

To the extent Cuozzo’s statistical argument takes aim at the manner in which the Patent Office has exercised its authority, that question is not before us. Indeed, in this particular case, the agency determined that Cuozzo’s proposed amendment “enlarge[d],” rather than narrowed,the challenged claims. App. to Pet. for Cert. 165a–166a; see §316(d)(3). Cuozzo does not contend that the decision not to allow its amendment is “arbitrary” or “capricious,” or “otherwise [un]lawful.” 5 U. S. C. §706(2)(a).



Of the different standards issue


Second, Cuozzo says that the use of the broadest reasonable construction standard in inter partes review,together with use of an ordinary meaning standard in district court, may produce inconsistent results and cause added confusion. A district court may find a patent claim to be valid, and the agency may later cancel that claim in its own review. We recognize that that is so. This possibility, however, has long been present in our patent system, which provides different tracks—one in the Patent Office and one in the courts—for the review and adjudication of patent claims. As we have explained above, inter partes review imposes a different burden of proof on the challenger. These different evidentiary burdens mean that the possibility of inconsistent results is inherent to Congress’ regulatory design. Cf. One Lot Emerald Cut Stones v. United States, 409 U. S. 232, 235–238 (1972) (per curiam).



Of note, inconsistency is not unreasonable:


And we cannot find unreasonable the Patent Office’s decision to prefer a degree of inconsistency in the standards used between the courts and the agency,rather than among agency proceedings. See 77 Fed. Reg.48697–48698.



This inconsistency had been an argument for those supporting the Cuozzo position; Reuters noted:


Cuozzo was supported by several industry groups and companies, which urged the justices to take the case.

One friend-of-the-court brief filed in the case on behalf of 3M Co, Caterpillar Inc, Eli Lilly and Co and Qualcomm Inc said the patent office reviews and litigation in district court needed to be streamlined for the "proper functioning of the patent system as a whole."



link: http://www.reuters.com/article/us-usa-court-ip-idUSKCN0Z61MH

The Wall Street Journal noted:


The Supreme Court acknowledged the Patent Office rules differ from those in court, but said the agency had taken a reasonable approach.

Justice Stephen Breyer, writing the court’s opinion, said the Patent Office approach “helps to protect the public” by preventing individuals and companies from claiming overly broad patents.

According to recent government data, trials completed so far in front of a Patent Office board have resulted in the cancellation of some or all of a patent more than 80% of the time.


[One notes that proposed patent reform legislation, such as the Goodlatte bill, specified the review standards would be the same.]

Sunday, June 19, 2016

CBS Sunday Morning on June 19, 2016: Fathers Day

Lee Cowan, not Charles Osgood, hosted Sunday Morning for June 19, 2016.

There were several "intellectual property" themes, including the Almanac feature, which noted:


June 19th, 1931, 85 years ago today ... the day the door opened to a whole new world of technology.

For that was the day the Stanley Works company installed the world's first automatic doors at Wilcox's Pier Restaurant in West Haven, Connecticut.

Placed between the kitchen and the dining room, the doors sprang open the moment a photoelectric eye detected a person's approach.

"Through the invention," wrote the Hartford Courant, "there is no longer need for waitresses to kick open doors or use their hands for anything other than carrying in the trays."



StanleyAccess gives some details on the related patent:


On Nov. 23, 1931, Raymond submitted an application for his “apparatus for operating doors” with the U.S. Patent Office. Three years later, a patent for the world’s first pneumatic operator with photo-electric, or light beam, controls was published (No. 1978093A).

Novelty, as well as the practical value of The Stanley Works “Magic Door,” appealed to progressive business people of this era, particularly owners of retail stores. The first installation was at Wilcox Pier Restaurant in West Haven, Conn. The Massachusetts Institute of Technology also had the door operator installed on the institute’s iconic entrance hall in Cambridge, Mass. This door operator is still in place and running today, more than 80 years later.



link: http://www.stanleyaccess.com/our-story

Anthony Mason did a "fathers day" story on photographer William Eggleston and his daughter, textile designer Andra Eggleston.
Some of the father's designs have been incorporated into fabrics produced by the daughter. Mason commented that he could not see the repeat unit in the fabric.

Seth Doane talked with Richard Gere, beginning with "Time out of mind," and getting into refugees at Sant Egidio and Lampadusa.
Gere's 94 year old father was mentioned. The Pope Francis/Lesbos refugee matter was discussed, with one of the "adopted" refugees interviewed.

Mo Rocca linked socks and Fathers Day, and talked with Vivek "V.K." Nagrani. Of creativity and socks:


Rocca asked, "The man who's wearing carefully-chosen socks is sending a message that says what?"

"That he pays attention to detail," Vagrani replied. "You naturally will start to think of that person a little bit different. You start to almost see an insight into his personality."

"Maybe that person's a bit creative, an out-of-the-box thinker?"

"Yes. And this is what gives the man an opportunity to quietly express himself."




There was mention of socks taking off with the invention of the knitting machine. This could be
an allusion to William Lee who invented the first stocking frame knitting machine in 1589.

Anna Werner interviewed actor Tim Daly, brother of Tyne Daly.

Luke Burbank did a piece on BeardedVillains, a group that got started on InstaGram.
A 1976 Supreme Court case, believed to be Kelley v. Johnson, 425 U.S. 238, , was alluded to. IndianaLegalArchive notes:


Few federal cases have applied Kelley’s rational basis test in deciding due process questions related to facial hair. In 1978, however, the Seventh Circuit Court of Appeals, in Pence v. Rosenquist, 573 F.2d 395, held that a public high school’s “policy of not permitting a person with a mustache, no matter how neatly trimmed, to drive a school bus lacks any rational relationship with a proper school purpose.” In so deciding, the court overruled one of its earlier decisions, Miller v. School District No. 167, 495 F.2d 658 (7th Cir. 1974),



The "moment of nature" evoked a Fathers Day theme: Monument Valley, located near the Utah-Arizona border, and was a familiar setting for John Ford, one of the Founding Fathers of the Hollywood Western. One of the access points is Kayenta, AZ.