Technical note - commenting

It has recently come to my attention that this blog was set up to require some kind of registration before you could comment on a post.  

I have rectified that situation - comments are now open, without registration.  I will be moderating comments, however, so don't be a d**k.

Patent Figure of the Day

This is an actual figure from a published PCT application.  You can check it out here.

Just to be clear, this is not an application filed by some guy working in his garage.  No, this is an application filed by a serious, big-time company.  Their patent attorney works at a serious, big-time AmLaw 100 firm.  I guarantee that his billing rate is north of $650/hour.  And it's not like they didn't have a chance to clean it up first:  there's a US priority application that was filed a day earlier, and a provisional application that was filed one year prior. 

So the first question this raises is:  forget about hiring a professional to do their drawings, they didn't have time to find a ruler in the year from their provisional filing date to the filing of this case?  Forget a ruler, how about a piece of cardboard, for cripe's sake?

And the second questions is:  what does this figure possible add to the application?  Bear in mind that this case was filed in 2004.  Is there any way to credibly argue that your understanding of ANY invention that you might file on in 2003 or 2004 would be assisted by this figure?  

Amazing.

Supreme Court Upholds Denial of Patents Under 101

It's unpatentable, Alice.  UNPATENTABLE!!

Today the Supreme Court, in a mildly surprising break from their recent trend of reflexively reversing the Federal Circuit, issued an opinion upholding the appellate court's denial of Alice Corp.'s business method patent claims on the grounds that they are directed to a "patent-ineligible abstract idea" and thereby unpatentable under 35 USC 101.  Decision here.   Analysis to follow.

UPDATE
Ok, the decision is not that interesting, except that, in a concurrence Sotomayor, Breyer, and Ginsburg indicate that they would dump business method claims completely.  This is a step that the other six justices were apparently not ready to take at the moment.  Since Sotomayor is the only one of the "young" justices who feels that way, it seems clear that we're not going to get rid of business method claims anytime soon.  Now all we need are some clear rules for drafting them. 

USPTO Cancels "Redskins" Mark

According to multiple sources, the US Patent and Trademark Office has canceled the Washington Redskins trademark, on the grounds that the mark is disparaging (copy of TTAB order here).  Also canceled: the cheerleaders' mark "Redskinettes." 

The decision is 80 pages, and the dissent is 99 pages, so this is going to take a bit of digesting.  Which, as a fan of the team, I will do.  One interesting bit that pops out immediately:  the focus of the decision is on marks that include the word "redskins."  The logo pictured above, which does not contain the offending word, is not covered by the decision.  Which raises interesting implications for other teams, like the Cleveland Indians, whose name is presumably not disparaging, although this logo presumably would be.

Another reason to file a patent application in Australia

Relevance?  Really?  It's a kangaroo drinking a beer.  

Australia has a second class of patents, in addition to utility patents:  the "innovation" patent.  According to this helpful post (hat tip: IP Watchdog), the innovation patent is examined quickly (six months), and has a shorter term than a utility patent (only eight years).  

Novelty is required, but not inventive step.  Instead, the inventor needs to show "innovative step."  The test for "innovative step" is generally agreed to be easier to meet, such that an innovation patent can be granted on claims that would be found obvious under the stricter utility standard.  Apparently, this is the three-part test for assessing innovative step:

1. compare the invention as claimed in each claim with the prior art base and determine the difference or differences;
2. look at those differences through the eyes of a person skilled in the relevant art in the light of common general knowledge as it existed in Australia before the priority date of the relevant claim; and
3. ask whether the invention as claimed only varies from the prior art in ways that make no substantial contribution to the working of the invention.

Tesla redecorates its corporate HQ.

In a news release geekily entitled "All Our Patent Are Belong To You" Tesla CEO Elon Musk announced that Tesla has redecorated its lobby, taking down its "wall of patents."  

This has been widely publicized as a move by Tesla to renounce patent protection for its technology, in an effort to spur competition and grow the marketplace for electric cars.  As Musk notes in the news release, Tesla's main competition is not other electric car companies, but companies that produce gasoline-powered cars. 

Based on the current price of a Tesla Model S sedan, which exceeds $60K even after all the government incentives are factored in, the gasoline-powered cars that are competing with Tesla are things like the BMW 7-series, Mercedes E-Class, and Lexus LS sedans.  But I digress.

The thing that caught my eye was Musk's pledge:  

Tesla will not initiate patent lawsuits against anyone who, in good faith, wants to use our technology.

The obvious question is: what does it mean, "in good faith?"

It's the claims, stupid.

Interesting decision from the Federal Circuit relating to obviousness.  http://www.cafc.uscourts.gov/images/stories/opinions-orders/13-1245.Opinion.6-5-2014.1.PDF

It's an appeal from a district court decision in a paragraph IV case, relating to the drug "bimatoprost," which apparently will make your eyelashes grow.  Because it's all about the generic form of a particular drug the district court based its finding of non-obviousness on the failure of the prior art to suggest the drug in question, combined with the unexpected results produced by the drug. 

BUT

The claims recite a variable chemical structure that covers many more compounds than the particular drug in question.  Quoth the majority:

Given the breadth of the ’029 patent’s claimed invention, appellants did not have the exacting burden of showing a reasonable expectation of success in using the narrow class of PGF analogs with C1-amide groups to treat hair loss, let alone a reasonable expectation of success in using bimatoprost in particular. Appellants instead had the burden of showing that any compounds within the broad genus claimed by the ’029 patent, including those that did not have C1- amide groups, were obvious at the time of the invention.