Tuesday, August 28, 2012

Where does the patented invention end and the augmentation begin?

The article by Michael Hiltzik titled Blame a dysfunctional patent system for Apple vs. Samsung verdict argues that the patent system has become a competitive weapon rather than a legal framework to encourage and reward innovation.

As a first point, Hiltzik confuses innovation and invention. The patent system is designed to encourage invention, which may, or may not, lead to innovation (changing the way we live).

The article has the text:

Until about 1980, software was thought to be unpatentable because it didn't seem to fit into patentable categories such as "machines" or "processes." But following a series of ambiguous federal court decisions, the ground shifted. By the 1990s software patents were common.

But the law is still as ambiguous as ever. With competition in multibillion-dollar markets resting on such shaky bedrock, the risk of earthquakes is high.

Legal fights on software circa 1980 involved copyright, not patent, such as Apple v. Franklin, 714 F.2d 1240 (CA3 1983). Later, one had Lotus Development Corporation v. Borland International, Inc., 516 U.S. 233 (1996). The key business method case was State Street Bank and Trust Company v. Signature Financial Group, Inc., 149 F.3d 1368 (Fed. Cir. 1998), and subsequently we have had Bilski.

Hiltzik assigned blame to the US Patent Office:

Patent examiners could have put the kibosh on the Samsung case by asking such questions as these before approving Apple's patent claims: Are the rows of icons on the iPhone really revolutionary? Is tapping a touch screen to execute a command really a patentable innovation? Is making a hand-held phone flat and rectangular with rounded corners a unique idea such that all other flat and rectangular phones with rounded corners should be pulled off the shelves?

As to the query: Where does the patented invention end and the augmentation begin?, if one's improvement falls within the scope of the earlier claim, there is infringement.

Hiltzik alluded to Bill Gates:

But it did elicit this classic comeback from Bill Gates, published in a trade magazine in 1989: "Steve, just because you broke into Xerox's house before I did and took the TV doesn't mean I can't go in later and take the stereo."

One notes that Hiltzik has a B.A. in English from Colgate, and seems to have had tangles with email hacking and sockpuppeting.

***Separately, do recall from the concurring opinion in Meyer v. Bodum:

While I agree with and join the thorough majority opinion, in looking at this case from a broader perspective, one cannot help but conclude that this case is an example of what is wrong with our patent system. The patents essentially claim the use of a prior art French press coffee maker to froth milk. Instead of making coffee by using the plunger to separate coffee from coffee grounds, the plunger is depressed to froth milk. The idea of frothing cold milk by the use of aeration rather than steam is not new as reflected in the prior art Ghidini patent. Under the Supreme Court's decision in KSR International Co. v. Teleflex, Inc., 550 U.S. 398, 420 (2007), and its predecessors, it would be reasonable to expect that the claims would have been rejected as obvious by the examiner, and, if not, that they would have been found obvious on summary judgment by the district court. But no such thing. The parties have spent hundreds of thousand of dollars and several years litigating this issue, and are invited by us to have another go of it in a second trial. Such wasteful litigation does not serve the interests of the inventorship community, nor does it fulfill the purposes of the patent system.


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