Thursday, November 28, 2013

USPTO - Plans for Manual of Patent Examination Procedure (MPEP)

On November 26, USPTO Commissioner for Patents Peggy Focarino announced plans for the Manual of Patent Examination Procedure in Fiscal Year 2014 in a blog post: USPTO Revises MPEP Publication Process. For an online copy of the MPEP Manual of Patent Examination Procedure (MPEP).

The MPEP is not legal authority (e.g., a Federal Circuit decision trumps a conflicting MPEP interpretation), but can be helpful because it describes patent prosecution details that may not arise in court decisions, it is well indexed, and it is often persuasive to examiners. As long as it matches CAFC decisions which is many times, I think it is a great resource.

One of its problems is it is lags behind court decisions, and has a quirky style of printing to show where revisions occur. As to the new publication process -- making the MPEP text clean and showing the last revision date on each section is not earthshaking, but should improve its readability. A more interesting change is the effect we may see with Ideascale which will allow the public to submit ideas on how to improve the MPEP.

Because the USPTO plans to release three MPEP editions in FY 2014, it is best to keep up to date online. The first edition is expected to incorporate the provisions of the America Invents Act (AIA), which was enacted in September 2011. The second edition will give guidance on the new Patent Law Treaty, and the third edition will give guidance on the Geneva Act of the Hague Agreement Concerning the International Registration of Industrial Designs.

Copyright © 2013 Robert Moll. All rights reserved.

Thursday, November 21, 2013

Apple Awarded $290M for Samsung's Patent Infringement

Today, the federal jury in San Jose California awarded Apple $290 million in the retrial of part of the  damages with respect to patent infringement by Samsung products. Although less than the $410 million awarded last year, with the addition of $290 million, Apple's damages total $929 million.

See FOSS Patents Retrial jury awards Apple $290 million, total damages in case against Samsung: $929 million and CNET's Jury reaches verdict in Apple v. Samsung damages retrial.

Copyright © 2013 Robert Moll. All rights reserved.

Tuesday, November 19, 2013

Microsoft Making $2 Billion Annually From Android Patent Royalties

The Business Insider reports Microsoft Is Making An Astonishing $2 Billion Per Year From Android Patent Royalties. Even more amazing is the analyst's estimated 95% margins on this revenue stream. Is this right and is this fruit from Bill Gates' decision to hire x-IBM patent licensing guru Marshall Phelps? Thanks to Suzie Lipton-Moll for passing this article my way tonight.

Copyright © 2013 Robert Moll. All rights reserved.

USPTO - Silicon Valley Satellite Office will be in San Jose City Hall

Today, the USPTO announced the Silicon Valley satellite office will be permanently housed in the San Jose City Hall building at 200 East Santa Clara Street. The office is expected to open in late 2014.

The City of San Jose, California state assembly’s speaker’s office, plus a California congressional delegation decided to do that rare thing in politics today work together for the public's benefit. I was also surprised to read that the City of San Jose offered this space rent free for two years.

For details: USPTO Press Release: U.S. Patent and Trademark Office Selects San Jose City Hall as Permanent Space for Silicon Valley Satellite Office - Generosity from City of San Jose and California State Assembly Speaker’s Office Put Site Selection Back on Track Following Sequestration

Copyright © 2013 Robert Moll. All rights reserved.

Sunday, November 17, 2013

Professor Risch - Functionality and Graphical User Interface Design Patents

Apple's $1B damage award (now being retried) caught the attention of anyone awake in the patent community about the importance of design patents. Much less understood was how to analyze design patent protection of graphical user interfaces (GUIs). The problem is GUIs raise a difficult line drawing exercise between ornamental elements (appearance) that design patents are intended to protect and functional elements that are not.

Professor Risch's Functionality and Graphical User Interface Design Patents, to be published in the Stanford Technology Law Review, is a timely article discussing among other things the design patent relating to the Apple iPhone home page and the line drawing problem.

Professor Risch says the article answers three questions:

"1. Aren’t GUIs something that should be protected by copyright only? Why should there be a patent? The answer is relatively simple: the law has, since 1870, contemplated dual protection. The article traces the history to explain why the law could have evolved differently, but simply did not.

2. Display screens change, both before and after sale. How can someone patent an ephemeral screen design? It also turns out that ephemeral designs have been protected for some time. Even so, the article proposes some limitations on the protection of GUIs that should address the special nature of GUI design patents.

3. There are many differences between Apple’s patent and Samsung’s product. How can Apple own the idea of square icons in a grid with a dock bar at the bottom? This last question is the most intractable: determining when a design is infringing, and the role that functionality should play in that consideration. The bulk of the article is dedicated to answering this question.

To answer the third question, the article draws on lessons from prior copyright disputes about GUIs. It first suggests that courts must act as gatekeepers, rather than allowing juries to determine which elements to disregard as functional. It then develops economic factors that can help the court determine whether a design element is functional, and whether to allow reuse by a competing program."

I  am still reading it, but want to pass it along as it should give insight to anyone considering design patent protection of GUIs.

Copyright © 2013 Robert Moll. All rights reserved.

Thursday, November 7, 2013

USPTO Website - Is It Down Right Now?

Today, I couldn't get the USPTO fee schedule from USPTO website, which still appears to be down. In the process of Googling on this problem, I ran across a third party organization Is It Down Right Now? that gives the status and ping times for the USPTO. Note this organization immediately told me what the USPTO much later conceded to be true.

Copyright © 2013 Robert Moll. All rights reserved.

Tuesday, November 5, 2013

Federal Circuit Chief Judge Rader Speech - Patent Law and Litigation Abuse

Federal Circuit Chief Judge Rader seems to relish poking the anti-patent crowd in the eye. On November 1, 2013, Judge Rader gave a speech Patent Law and Litigation Abuse in Plano, Texas.

Here's a passage from his speech:

"As an illustration of the crisis of confidence in the benefits of Patent Law, I wished to just discuss one unsubstantiated charge against the merits of this system of Constitutional dimension. Academics often charge the Patent system with creating a so-called "tragedy of the anti-commons." This academic canard suggests that a "thicket" of patents can actually inhibit innovation; that the administrative burdens of enforcing patents can multiply to frustrate the goal of the Act. Thus, the law of innovation supposedly works against itself. In an age of empirical research to verify every legal hypothesis, I would urge you and any policymaker to reject this academic supposition – whether it comes from a high court or any other source – until and unless it is verified by empirical data. By the way, the only studies on this topic that I have seen could not verify this guess but generally confirmed the opposite – that patents spur innovation.

May I offer a common sense rebuttal to this academic hypothesis? [Hold up my smart phone] This smart phone resides in the technological space most occupied by patents, perhaps in the history of patent law dating back to 1624. With design patents as part of the equation, this device probably includes easily more than a thousand active patents. If you count expired patents in this technology back to the advent of the computer age, this device would implicate tens of thousands of patents. If ever the administrative burdens of a concentration of patents would inhibit innovation, this technology would be the place to observe that encumbrance. Now you tell me: is this technology experiencing sluggish and encumbered innovation? I doubt that I could keep track of the pace of innovation in this technology if I devoted my full time to the project.
No doubt a study would show that the disclosure benefits of patents bring the entire world into the innovation circle that drives smart phone technology forward faster than any of us can fathom. I am afraid the “tragedy of the anti-commons” has its own tragedy: it simply is academic nonsense. The patent system does not inhibit

Copyright © 2013 Robert Moll. All rights reserved.

Sunday, November 3, 2013

USPTO Publishes Updated Trademark Manual of Examining Procedure

On October 30, 2013, the USPTO published the updated Trademark Manual of Examining Procedure (TMEP). I am a patent attorney, however, when I do have a trademark question this is a great place to start. Here's a web link to the TMEP by chapters and also as zip files in PDF and HTML.

Copyright © 2013 Robert Moll. All rights reserved.