2008 National Medal of Technology and Innovation Awardees Announced

Friday, September 18th, 2009

Click here for the story …

“The 2008 National Medal of Technology and Innovation winners are:

•Dr. Forrest M. Bird for his pioneering work in the field of respiratory and cardiopulmonary care including the revolutionary BABYBird®. This device dramatically reduced the infant respiratory failure mortality rate from approximately 70 percent to 10 percent. His more recent medical invention of Intrapulmonary Percussive Ventilation (IPV) ® concepts have reduced pulmonary failure in the most critically injured military and civilian burn patients from about 75 percent to 5 percent. Dr. Bird’s innovations have saved millions of lives.

•Dr. Esther S. Takeuchi for the development of the silver vanadium oxide battery technology which powers the majority of today’s implantable cardiac defibrillators and innovations related to other enabling medical battery technologies that power implantable pacemakers, implantable neurostimulators and left ventricular assist devices. Dr. Takeuchi’s innovations have saved and dramatically improved the quality of hundreds of thousands of human lives.

•Dr. John E. Warnock and Dr. Charles M. Geschke for their pioneering contributions that spurred the desktop publishing revolution and for changing the way people create and engage with information and entertainment across multiple mediums including print, Web and video.

•International Business Machines Corporation for the IBM Blue Gene supercomputer, which re-established United States leadership in high performance computing. Blue Gene’s systems architecture, design and software have delivered fundamental new science, unsurpassed speed and unparalleled energy efficiency, which have had a profound impact on the worldwide high-performance computing industry.”

On a personal note, Dr. Bird’s invention, taken to a new level, saved my daughter’s life about five years ago, so I’m delighted he won this prestigious award. Congratulations are due all around, so congratulations to the 2008 National Medal of Technology and Innovation!

Tags: 2008 Medal of Technology and Innovation, Charles M. Geschke, Esther S. Takeuchi, Forrest M. Bird, IBM, John E. Warnock
Posted in Patent, US Patent & Trademark Office | No Comments »

UPDATE: Microsoft Appeals Word Patent-Injunction Case – WSJ.com

Sunday, August 30th, 2009

The link for the video, in case it doesn’t show up, is here.

UPDATE: Microsoft Appeals Word Patent-Injunction Case – WSJ.com.

As well they should.

Watch for the case to get argued before and decided by the US Court of Appeals for the Federal Circuit, which holds exclusive jurisdiction over patent cases.

The district judge’s ruling does seem to me to be a bit overbearing: Microsoft can’t sell Word because a part of it infringes a patent held by a Toronto-based company called i4i. 14i now has a permanent injunction against Microsoft granted earlier this month.

Your Honor, wouldn’t an enforced license and a hefty money judgment have done the job without threatening the software base of thousands if not millions of companies worldwide who rely on Microsoft Office products to get their own work done?

Don’t get me wrong here: I in no way approve of or endorse Microsoft’s aggressive patent infringing policies. However, Microsoft products are heavily used and therefore needed in the business world, and this ruling potentially disturbs many, many other businesses which are already struggling in the current economy. Requiring businesses to switch software midstream could spell collapse for many small and medium-sized businesses that simply cannot budget for the conversion from Microsoft Word to a new word processing system when the time comes to upgrade (for you know that Microsoft will sue in patent anyone who puts any code that in any way resembles its code for reading Word documents into word processing software…).

And the wheels on the bus go round and round…

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Microsoft Faces Permanent Injunction against Selling Word | BNET Technology Blog | BNET

Friday, August 14th, 2009

Microsoft Faces Permanent Injunction against Selling Word | BNET Technology Blog | BNET.

The universe just heaved.

Any version of Microsoft Word that reads XML files will have to be pulled from the shelves within 60 days, based on a permanent injunction out of the patent litigation “rocket docket” court, the US District Court for the Eastern District of Texas.

Patents give their owners the right to prevent others from making, using, selling, distributing or importing the covered invention in the United States. Here, a patent held by a company called i4i apparently covers the technology that Microsoft uses to even open .xml documents. Microsoft didn’t license the technology; they, according to the E.D. Tex., infringed the patent throughout their Office products.

Oops.

Tags: i4i, Microsoft, Patent infringement, Rocket docket, US District Court for the Eastern District of Texas, xml
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In re Bilski is Good Law Until the US Supreme Court Says Otherwise (Article – WSJ.com)

Thursday, July 9th, 2009

Article – WSJ.com. Subscription required after WSJ takes this article off the free space on its site.

In re Bilski is being applied as it waits for its hearing before the US Supreme Court in the fall as Bilski v. Doll. A Ninth Circuit district court judge ruled a business method patent invalid based on the Bilski standard of transformative use. The patent holder, DealerTrak Holdings, Inc., intends to appeal the holding.

This is a good chance for me to take a flying leap of logic and talk about how case law and the courts work in the USA.

We have two court systems: the federal system (which holds exclusive jurisdiction over matters involving federal statutes like patent and copyright) and the states’ systems (which holds jurisdiction over state-based matters like contracts and torts). These systems come in hierarchies. I’ll talk about the federal system only (state systems vary from state to state, but they follow this same basic model).

In the federal system, the lowest court is the district court. These are the trial courts; this is the only place where the parties actually have to show up. This is where juries are sworn, testimony is taken, and a record of the litigation is produced (through transcription and discovery). The record is very, very important. There is at least one district court in every state.

The district court judges, who are Article III judges with lifetime appointments just like their appellate brethren, can appoint, under Article I of the Constitution, so-called “magistrate” judges (I was lucky enough to take my law-school Trial Advocacy class with the New Hampshire magistrate, Hon. James Muirhead). Magistrates handle a lot of pre-trial work; they also sometimes handle the trial, if the parties agree. Magistrates report to the district judges. Magistrates’ appointments are for a term of years, not for life.

The district court judges and magistrates must follow the holdings of every appellate court that sits directly above them as they make their decisions. The Court of Appeals for the Federal Circuit (CAFC) sits above each and every district court in matters where the CAFC has exclusive jurisdiction — like patent matters. This means that the district court judges must know and apply CAFC law when deciding matters that fall under the exclusive jurisdiction of the CAFC, no matter which so-called “circuit” the district court sits in. If the matter does not fall within the exclusive jurisdiction of the CAFC, then the district court must apply the case law of its own individual circuit court of appeals, as well as its own case law. It must also, of course, follow US Supreme Court case law. The district court can overturn its own case law, but it must follow the case law from its own circuit court and the CAFC, and from the US Supreme Court.

The US has 13 circuits (numbered 1-12, and the federal circuit). Each circuit has one regional court of appeals; they hear the cases that come out of the district courts with a decision with which one of the parties is unhappy. They rule based solely on the record of the case (which is why the record is very, very important), the attorneys’ briefs, and sometimes oral arguments, and on existing law, including their own and US Supreme Court case law. It is free to overturn its own case law. It can follow the holdings of other circuits or it can branch out on its own and hold something entirely different.

When there is a split in the circuit courts of appeal on a question of law, the field is ripe for the US Supreme Court to step in to settle the matter (another ripening field for the US Supreme Court is when one of the lower courts rules in a way that they think needs to be examined). The US Supreme Court can pick and choose most of the cases it will hear (there are some that it must hear, specifically those with which original — trial — jurisdiction rests with them, such as disputes between the states), and it does not choose to hear most of the petitions for writs of certiorari (“cert”) that come before it. Denying cert says nothing about the case below; it simply says that the US Supreme Court chooses not to hear the matter.

The US Supreme Court sits above all other courts (both state and federal) in the country. The only case law it must apply (and it is free to overturn this) is its own.

Courts do not like to overturn their own case law. It tends to make something of a splash in the legal world when a court does that, and the higher the court is, the bigger the splash an overturned case makes.

Bilski has been decided by the CAFC. The holding — well, the parties disagree with it; hence the petition for cert to the US Supreme Court. The US Supreme Court granted cert on this one; they will hear and finally decide the questions presented by the case. Until the Nine Wise Ones (or at least a majority of them) say otherwise, the CAFC rule of “transformative use” stands, and by the CAFC ruling the district courts are bound.

Tags: appellate judge, Bilski v. Doll, DealerTrak Holdings, district judge, federal courts, federal judiciary, Hon. James Muirhead, In re Bilski, Inc., magistrate, US federal court system
Posted in Patent, US Supreme Court | No Comments »

In re Bilski again

Friday, July 3rd, 2009

The US Supreme Court has granted cert on In re Bilski (now styled Bilski v. Doll). The case is now pending before the Nine Wise Ones. Here are the court filings (from the point of view of the USPTO).

Bilski, as you recall, requires that business method patents have some sort of “transformative” characteristic — that is, the invention must somehow transform data or information input into something surprisingly different coming out.

The questions presented to the Court are:

1. “Whether the Federal Circuit erred by holding that a “process” must be tied to a particular machine or apparatus, or transform a particular article into a different state or thing (“machine-or-transformation” test), to be eligible for patenting under 35 U.S.C. § 101, despite this Court’s precedent declining to limit the broad statutory grant of patent eligibility for “any” new and useful process beyond excluding patents for “laws of nature, physical phenomena, and abstract ideas.”

2. “Whether the Federal Circuit’s “machine-or-transformation” test for patent eligibility, which effectively forecloses meaningful patent protection to many business methods, contradicts the clear Congressional intent that patents protect “method[s] of doing or conducting business.” 35 U.S.C. § 273.

I hope Bilski gets overturned; I don’t like its holding. I REALLY hope Bilski gets overturned.

Tags: "machine or transformation" test for patent eligibility, Bilski v. Doll, In re Bilski, Questions presented, US Patent & Trademark Office, US Supreme Court
Posted in Patent, US Supreme Court | 1 Comment »

U.S. patent office shortfall worsens: official | Politics | Reuters

Tuesday, June 23rd, 2009

U.S. patent office shortfall worsens: official | Politics | Reuters .

Awww…poor babies. They’re collecting “just” $5.9 million per day (yep, you read right) in fee-based revenue and they’re not happy.

Damn. Let’s do the math. $5.9 million/day times 365 days/year … that’s $2,153,500,000 per year. Not bad. Of course, they’re down from $6.9 million per day … same equation, substitute that number and you get $2,518,500,000. Well, heck, they’re still above $2 billion dollars in fee-based revenue. Of course, it’s $365,000,000 less now than they were collecting in fee-based revenue before the recession (if that’s what we’re in) hit….

Still, I have no sympathy. This agency has more than $2 billion dollars per year in fee-based revenue; I could balance that budget with little difficulty. So suck it up, USPTO, and live within your means, just like the rest of us have to do.

Tags: Budget shortfall, US Patent & Trademark Office
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SIPO reports dramatic increase in patent applications for 2008

Sunday, March 29th, 2009

I met Lynn Wang, a Chinese IP attorney who works in California, at a NYS Bar Association Intellectual Property Section meeting at Lake George’s Sagamore Resort a couple of years ago. Since that time, I’ve gotten weekly updates from her on the status of IP law in China.

Her latest tells me:

“According to the latest statistics on China’ State Intellectual Property Office (SIPO) website, China received 828,328 patent applications last year, including the applications for invention, utility model and design, an increase of 19.4 percent year-on-year.

“The SIPO received 289,838 applications for invention in 2008?up 18.2 percent over the last year. Among them, 194,579 applications for invention were filed by Chinese applicants; a yearly increase of 27.1%. 95,259 applications for invention were filed by foreign applicants; a yearly increase of 3.4%.

“In 2008, totally 411,982 applications were granted, an increase of 17.1 percent year-on-year.”

China is quickly catching up to the United States in terms of the number of patent applications filed. They’re not there yet, but for a country whose IP protection has been nonexistent for millenia, they’re doing really very well. Patent protection (and trademark and copyright protection, too) represents a real shift in the Chinese people’s paradigm. The expression of ideas in China have been free for the taking forever; now, thanks to Western influence and market demand, the expression of ideas isn’t free for the taking anymore.

I visited the SIPO (the Chinese State Intellectual Property Office) website (http://www.sipo.gov.cn/sipo_English/) and learned that 2009 is the first time for Chinese Premier Wen Jiabao to give equal stress in his Government Work Report to the Three Strategies for China:

• IP strategy
• rejuvenation of China through science and education, and 
• reinvigorating of China through human resources development . 

This equal stress on all three initiatives will further promote the development of China’s IP cause.

Thanks to Lynn for keeping me updated on the development of intellectual property in the country that covers 1/4 of the world’s land mass.

Tags: China Three Initiatives, Chinese IP Office, Chinese patents
Posted in Patent, Universal IP | No Comments »

Plaintiffs file for writ of certiorari: In re Ciprofloxacin Hydrochloride Antitrust Litigation

Friday, March 27th, 2009

On March 23, the plaintiffs filed a petition for certiorari in the Cipro litigation seeking review of the Federal Circuit’s decision in In re Ciprofloxacin Hydrochloride Antitrust Litigation, 544 F.3d 1323 (Fed. Cir. 2008). The antitrust case involves so-called “reverse payment” settlements of patent infringement cases between innovator and generic pharmaceutical manufacturers under the Hatch-Waxman Act. The Federal Circuit affirmed the district court’s summary judgment holding that no antitrust violation occurred, stating that “any anti-competitive effects caused by the Agreements were within the exclusionary zone of the patent.” It answers the question whether case “under the Hatch-Waxman Act … a settlement agreement between a patent holder and a generic manufacturer violates the antitrust laws.” The US District Court for the Eastern District of New York granted the defendants’ motion for summary judgment, holding that any anti-competitive effects caused by the settlement agreements between the defendants were within the exclusionary zone of the patent, and thus could not be redressed by federal antitrust law.

Patentee Bayer and the generic manufacturers (“B&G”) of CIPRO®, a popular antibiotic, entered into a total of four settlement agreements to end patent infringement litigation in the US District Court for the Southern District of New York. These agreements, which were entered into before the Hatch-Waxman Act was modified to require settlement agreements to be filed with the FTC and Department of Justice for review, had Bayer, the patentee, paying the generic suppliers to not manufacture or distribute their generic drug until a certain date.

B&G got themselves sued over these agreements in the Eastern District of New York by several trade unions and HMOs, claiming that these agreements restricted free trade, inhibited competition, and thereby violated the Hatch-Waxman Act. The District Court issued a summary judgment that the agreements are fine under the Act (they do not violate antitrust because they fall within the exclusionary provisions of the patent), plaintiffs appealed to the Federal Circuit, and the Federal Circuit affirmed the District Court’s decision.

The US Supreme Court now has the case; their options are (1) deny cert, which would let the Federal Circuit’s ruling stand, or (2) grant cert, which would have the Nine Wise Ones review the case and act on the Federal Circuit’s ruling.

Meanwhile, the question stands unanswered: Do reverse payments of this type violate the antitrust laws of the United States? In other words, who trumps … the exclusionary patent laws (mandated by the US Constitution) under which the agreements were made, or the antitrust laws promoting free trade and fair market pricing of goods and services? I doubt the High Court will phrase its Questions Presented in that manner (if they grant cert), but answering this question is the gist of why the Court should grant cert on this case.

The Federal Circuit’s opinion is online here as a .pdf; the Supreme Court is not yet showing the case in its docket.

Tags: Antitrust, Patent infringement, Settlement agreement
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The Top 10 Worst Inventions in History

Tuesday, March 24th, 2009

FOXNews.com – A Century of Disasters: The Top 10 Worst Inventions in History.

They say necessity is the mother of invention. I’m not quite sure what “necessity” leads to the evidently patentable invention of a cat wig, the blue version modeled in this article by a Russian Blue who looks remarkably like my kittycat, but hey … gotta keep those kitties well coiffed.

Tags: Bad Patents
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The USPTO's Website

Tuesday, March 17th, 2009

Found at www.uspto.gov , the United States Patent and Trademark Office’s website provides its users with a huge amount of information about the Office and about patents and trademarks.

The site includes search engines for:

• Issued patents (text entries from 1976, scanned entries before that)
• Published patent applications (from 2001)
• Trademarks – registered and applied-for

There are filing mechanisms for both patent and trademark applications; the mechanisms even work reasonably well.

I send clients to this site regularly; it is readable by those who do not possess the knowledge of an IP practitioner and those clients who actually go to the site come back with awe in their voices, telling me that they didn’t know there was that much information out there.

The home page is always a running flow of USPTO news. Two items in today’s flow are worth mentioning here.

• The National Inventors’ Hall of Fame has found a home at the USPTO’s museum. This exhibit is well worth visiting. Find the full story here.
• April 6, 2009 is Design Day at the USPTO. Starting at 9 a.m., design patent examiners, design managers, independent inventors and patent attorneys and agents will have the opportunity to exchange ideas, information, and knowledge about design patent practice. Hon. Randall R. Rader, Chief Judge of the US Court of Appeals for the Federal Circuit (which has exclusive jurisdiction over patent appeals) is the scheduled keynote speaker. Find registration information here, and find the agenda here. This event is FREE, but you have to pre-register.

Tags: US Patent & Trademark Office, Website
Posted in Patent, Trade Dress, Trademark/Service Mark | No Comments »