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So why don't we ever hear news stories of these applications getting rejected? Might it be that most rejected patent applications eventually get accepted after a few rounds of back-and-forth between the inventor and the examiner to narrow the claims?

No it does not! Stop spreading this bullshit FUD that somehow prior art trumping a patent magically disappears when first-to-file hits. That's not the way it works at all.

First to file just gets rids of the ability to swear behind someone else's application if they filed up to a year before you filed yours. Under FtF, if there is prior art out there that is dead on before your application is filed, even a day before, your application is DOA. There is no more one year grace period.

Go read this if you don't believe me.

http://www.patentlyo.com/patent/2011/09/the-effects-of-the-america-invents-act-on-technological-disclosure.html

You have no fucking clue what you are talking about and you are the second person on here that I have seen spouting off that somehow prior art is no longer prior art. This place USED to be where intelligent people had intelligent debates. Now it's FOX News of the tech world.

Why bother when so many other places - if people actually looked - have done it for me.

http://www.patentlyo.com/patent/2011/03/america-invents-act-first-to-invent-and-a-filing-date-focus.html

Here's your rod. Put some bait on line. Throw the line in the water. There, I just taught you to fish.

Motorola was filing lawsuits against other Android manufacturers. By making this acquisition, Google will probably prevent that from happening. That's one win.

And while Apple and Microsoft have patent lawsuits against Motorola, Motorola has in turn filed strong counter-suits. http://www.patentlyo.com/patent/2011/08/googles-purchase-of-motorola-mobility.html

At the beginning of this year Google had less than a thousand patents (which is especially odd since they got their initial venture capital on the strength of founder Larry Page's patent on their search technology). Then they bought 1000 patents from IBM. Motorola Mobility has 5000 US patents and 1500 more pending, plus over 10000 more and more pending in other countries. Google's patent portfolio is not at Apple and Microsoft's level yet, but they just went from a welter weight in the patent wars to the middle weight division.

The defense of laches, sometimes called equitable estoppel, does provide the type of relief you're talking about. I have no doubt that it will be raised in the lawsuit. You can read about it here: http://www.patentlyo.com/patent/2008/10/laches-and-equi.html?cid=136550545

This was a reasonable decision. Microsoft was willfully infringing, and their only defense was that some old version of the product which might have contained the patented technology might have been on sale a year before the patent was filed. Microsoft lost on that issue at trial. Microsoft then cooked up a legal theory that they only had to show a preponderance of the evidence to prevail, rather than having to overcome the statutory provision that issued patents are assumed valid. That was a a weak argument; both the plain text of the statute and previous decisions are against it. The Supreme Court slapped it down 8-0. I'm surprised the Court even took the case.

This isn't a major decision in patent law, like Bilski or Zoltek. It doesn't change policy. Read "Microsoft v. i4i: Supreme Court Affirms Strong Presumption of Patent Validity " on PatentlyO.

Not likely to have especially broad implications. The factual question is whether the current standard of deference given to a patent should be maintained in the face of art submitted by a defendant, if that art was never considered by the patent office. Of course, 97% of patent cases never reach a jury, and relatively few of the remaining 3% turn on an invalidity analysis (as opposed to simple infringement/non-infringement).

There's a good analysis of the likely impact of any Microsoft-favoring ruling over at Patently-O.

To understand the changes in S.23 (and for intelligent discussion of the relative merits of both systems) see http://www.patentlyo.com/patent/2011/03/mccrackinpatentreform.html

The courts have been tightening the rules on venue for a while now. East Texas in particular is starting to lose cases. Example 1. Example 2. Example 3.

Not sure if having to file where you live or possibly where the corporate HQ is would help....

In cases with large corporations with offices all around the country there may be more important factors than the location of the corporate HQ. Consider a company based in Washington state with a research office and production facility in Florida. Sure, corporate HQ is in Washington, but all of the witnesses (e.g. the inventors) are in Florida. Important documents related to production costs and the like are in Florida. So in that case perhaps Florida makes more sense as the venue rather than forcing all of the witnesses to fly to Washington. Venue is complicated, and it can be hard to make the rules flexible enough without being so overinclusive that places like East Texas become available.

The courts have been tightening the rules on venue for a while now. East Texas in particular is starting to lose cases. Example 1. Example 2. Example 3.

Not sure if having to file where you live or possibly where the corporate HQ is would help....

In cases with large corporations with offices all around the country there may be more important factors than the location of the corporate HQ. Consider a company based in Washington state with a research office and production facility in Florida. Sure, corporate HQ is in Washington, but all of the witnesses (e.g. the inventors) are in Florida. Important documents related to production costs and the like are in Florida. So in that case perhaps Florida makes more sense as the venue rather than forcing all of the witnesses to fly to Washington. Venue is complicated, and it can be hard to make the rules flexible enough without being so overinclusive that places like East Texas become available.

The courts have been tightening the rules on venue for a while now. East Texas in particular is starting to lose cases. Example 1. Example 2. Example 3.

Not sure if having to file where you live or possibly where the corporate HQ is would help....

In cases with large corporations with offices all around the country there may be more important factors than the location of the corporate HQ. Consider a company based in Washington state with a research office and production facility in Florida. Sure, corporate HQ is in Washington, but all of the witnesses (e.g. the inventors) are in Florida. Important documents related to production costs and the like are in Florida. So in that case perhaps Florida makes more sense as the venue rather than forcing all of the witnesses to fly to Washington. Venue is complicated, and it can be hard to make the rules flexible enough without being so overinclusive that places like East Texas become available.

Commenter says:

First off, they are administrative rules, and have no force of law and are not enforceable in any way.

Ok, but do you know that they don't have to have force of law in order to change how examiners evaluate patents? This is confirmed by Dennis Crouch of Patently-O:

The 18-page guidelines do not have the force of law, but will impact how examiners judge obviousness in practice.

http://www.patentlyo.com/patent/2010/09/uspto-guidelines-for-determining-obviousness.html

Hope that helps.

Here's why TFA summary seems to be correct:

From http://www.ipeg.eu/blog/?p=1742

According to the 2007 Guidelines, however, in addition to TSM there came into being with KSR six other tests for obviousness. These tests gave the examiners six new ways to reject claims and so help achieve the reduction in the patent allowance rate which was such an important goal for the PTO under its then-Director, Jon Dudas.
[...]
In the 2010 Guidelines, however, only two of the new tests for obviousness appear to survive.

And...

This is in line with the general trend of the PTO under Director Kappos to [...] and give applicants greater opportunities to obtain allowance of claims.

And Patently-O says that these guidelines do affect patent granting/rejection: http://www.patentlyo.com/patent/2010/09/uspto-guidelines-for-determining-obviousness.html

The 18-page guidelines do not have the force of law, but will impact how examiners judge obviousness in practice.

If anyone wants to explain that those sites called it wrong, I'm all ears.

For those of us that don't want to read through the Federal Register, here's a summary of the current obviousness tests. I don't believe the removal of these tests will make it easier for patents to pass the obviousness bar; rather, this seems more like an effort to consolidate burdensome caselaw. http://www.patentlyo.com/patent/2010/09/uspto-guidelines-for-determining-obviousness.html

Is it me, or does the USPTO simply suck at finding prior art? I'm not saying it's their fault, I'm simply saying it's difficult for them to sift through huge amounts of data for each patent looking for the prior art that may invalidate said patent.

There are several reasons for this. One reason is that most examiners are inexperienced. Right now something like 80% of examiners have been working for the PTO for less than 3 years. Only about 7% have been working there for more than 10.

Another reason is that, particularly with regard to software and software-related inventions, the PTO has a hard time recruiting qualified examiners. A big reason for this is that examiners have to live in the Alexandria, VA area, which is about as far as you can get from the west coast IT industry.

I've also heard that examiners don't have the resources they need to do a proper search of the non-patent literature, but I don't have any hard data on that.

And, of course, sometimes patent applicants represent their invention one way during prosecution but then try to use it differently during litigation. For example, I believe Yahoo was sued or at least threatened for something to do with its maps website by a company that had a patent on using a computer to map...migratory birds. The claims appeared to read on Yahoo Maps, but it was quite apparent from the application as a whole that the invention was unrelated to anything Yahoo was doing. There's really not much the PTO can do about that.

But given that the case settled, there's little chance those judges had much to do with it. Also, the reputation is that the court is extremely plaintiff-favorable - so it would not simply be that the judges are well versed in patent law. The implication is prejudice.

The judge had plenty to do with it. A lot happens involving the judge before an actual trial occurs. In particular, the parties argue claims construction, and then the judge rules on the meaning of the claims. That ruling came down on June 1, 2010 in this case. You can get a copy of that ruling here if you are curious.

The claims construction ruling can be a major turning point in a patent case, as that is when the parties find out what they are actually dealing with. Cases can be won or lost on claims construction.

As for prejudice, the fact is that EDT isn't even in the top 5 districts when it comes to favoring plaintiffs.

No, the PTO is self-funding. In fact, part---but by no means all---of the problem has been Congress raiding the PTO's income stream. See: http://www.patentlyo.com/patent/2010/01/director-kappos-on-the-usptos-lack-of-funding.html.

Just pay the patent examiners a bonus based on how many patents they successfully manage to reject, including any appeals that might be raised against the rejection by the original submitter. It'll incentivize the patent examiners to get through the backlog, and, if the bonuses are funded by an extra "patent examination fee" that is only refundable in the event of a succesful application, it'll cut down on the frivolous patent submissions at no extra cost to the taxpaper as well.

Most patent applications are rejected at least once already, often they're rejected twice.

Anyway, what you suggest would be a terrible approach. The result would be that examiners would reject everything, gamble that the applicant doesn't want to waste time and money on an appeal (or would lose anyway), and collect their bonus. And it's a good bet that a lot of applicants would simply let the application go rather than appeal: the Board of Patent Appeals and Interferences already has its own 20 month-and-growing backlog, and the cost of an appeal is typically thousands of dollars.

And the PTO isn't stupid. There are performance metrics in place that try to ensure that examiners aren't rubber stamping applications with either 'reject' or 'allow.'

Finally, the PTO doesn't cost taxpayers a dime. It's already fully funded by applicant fees, and in fact Congress often skims off excess fees. In total Congress has taken over $900 million that way. A bill was recently passed to give something like $120 million of that back to the PTO for the purpose of improving its IT systems and hiring more examiners.

While it's true that the absolute number of allowances has increased, the number of rejections has also increased, according to Prof. Dennis Crouch of PatentlyO.com, who is a leading figure in empirical patent research. It's not as though examiners have simply started rubber stamping everything that comes through.

Um...did you listen to/read the oral arguments from last November? They fucking CRUCIFIED method patents. For some reason, the link I had saved from the Supreme Court website isn't working, but Patently-O did a fine job of picking out the relevant passages:

http://patentlyo.com/patent/2009/11/bilski-v-kappos-supreme-court-arguments.html

Here are some samples from the oral arguments:

JUSTICE BREYER: You know, I have a great, wonderful, really original method of teaching antitrust law, and it kept 80 percent of the students awake. ... And I could probably have reduced it to a set of steps and other teachers could have followed it. That you are going to say is patentable, too?

JUSTICE SCALIA: . . . Let's take training horses. Don't you think that -- that some people, horse whisperers or others, had some, you know, some insights into the best way to train horses? And that should have been patentable on your theory.

JUSTICE SOTOMAYOR: So how do we limit it to something that is reasonable? Meaning, if we don't limit it to inventions or to technology, as some amici have, or to some tie or tether, borrowing the Solicitor General's phraseology, to the sciences, to the useful arts, then why not patent the method of speed dating?

JUSTICE SOTOMAYOR: But a patent limits the free flow of information. It requires licensing fees and other steps, legal steps. So you can't argue that your definition is improving the free flow of information.

Like I said. Fucking. Crucified.

You might be interested in some speculation about the likely outcome of Bilski. It sounds like there's a good chance that Stevens is writing the opinion and that State Street will be overturned.

If you read the wiki article, you'll see it's based on plenty of research.

They're called a non-practising entity by Patently-o. That's a generally patent-holder friendly site, and "non-practising entity" is the strictest possible definition of "troll".

In this thread, I'm getting a whole load of baseless accusations, and a tonne of "Oh no they're not", but I'm just looking for the reason why *this* non-practising entity is a "good guy" when other non-practising entities are trolls?

Can anyone help draw that line?

East Texas courts have a reputation as a good place to pursue intellectual property suits against larger corporations

It is not actually that good.

See also this comment on a previous story.

You're talking about a Supreme Court which ruled that Corporations can spend as much as they want on election campaigns. What the hell makes you think they're going to overturn software and business patents?

The fact that everyone on the Supreme Court unanimously agreed that Bilski is full of crap, for starters. It was essentially a public beating of Bilski's claims.

Click here for analysis of the arguments.

Click here for the full transcript.

Here is a link to the court's decision. It is not a judgment against Solo, but a denial of their request to dismiss the case.

The judge argues the problem of incorrect markings here:

Congress has given to the inventor opportunity to secure the material rewards for his invention for a limited time [...] Patent markings are an essential component of this system. The "Patent No. XXX" imprint is, in effect, a "no trespassing" sign.

The plaintiff, i.e. the "troll", has not yet made his case. In order to prevail he has to prove that Solo used the incorrect markings "for the purpose of deceiving the public." That remains to be determined.

But therein, it is not clear to me what's really going on here with Solo (for example). It seems that laziness about cleaning up one's patent markings has a distinct reward, i.e. to scare off copy-cat competitors (which is exactly the kind of subsequent activity that the publicly filed/expired patent is intended to encourage). I'm not so sure that these are just mistakes, and in fact, I find it unlikely that there isn't some willfulness here. The corporate counsels that insist on taking advantage of adding the patent markings don't consider the correctness of removing them once they are no longer valid???

It may take a crack of the whip to clean up the rampant "laziness" that leaves these wrong and discouraging markings in use.

> I'm honestly curious about this part: "Also, even if they do make a product this time, does that really excuse killing the products of other companies via patents on things they haven't actually built or sold?" Like?

You should have followed a couple links from Grond's post:

http://techcrunch.com/2008/09/17/nathan-myhrvolds-patent-extortion-fund-is-reaping-hundreds-of-millions-of-dollars/

Anyhow, the correct term isn't "patent troll", it's NPE (Non-practicing Entity). And you will note that I didn't call them that. Nor did the article linked (it called them a "patent bully").

I don't care what we call them, frankly. I just don't like seeing people lock up ideas with patents and never let anyone use them. I don't like people patenting old ideas, doing fancy lawyering (but our idea is novel because it uses *four* knowledge bases... even though that's the only novel part and these things can easily be split or combined). I don't like reading Patently-O and seeing them give advice for how to prevent people from asking a court to make a patent bully go away by proving that they did not infringe, or how to get a patent even if the inventor doesn't want one.

Basically, I don't like most of what I see going on with the patent system. I don't like obvious or gibberish patents or the self-important people who think that they're geniuses for having them (even if other people thought of those ideas first and implemented them better). I don't like how software patents never give any source code, even though they're supposedly obligated to disclose the best known way to implement the invention.

There are so many problems with the system, I honestly wonder at times why we don't simply scrap it. Maybe there's a better way, but I haven't heard of one yet.

> I'm honestly curious about this part: "Also, even if they do make a product this time, does that really excuse killing the products of other companies via patents on things they haven't actually built or sold?" Like?

You should have followed a couple links from Grond's post:

http://techcrunch.com/2008/09/17/nathan-myhrvolds-patent-extortion-fund-is-reaping-hundreds-of-millions-of-dollars/

Anyhow, the correct term isn't "patent troll", it's NPE (Non-practicing Entity). And you will note that I didn't call them that. Nor did the article linked (it called them a "patent bully").

I don't care what we call them, frankly. I just don't like seeing people lock up ideas with patents and never let anyone use them. I don't like people patenting old ideas, doing fancy lawyering (but our idea is novel because it uses *four* knowledge bases... even though that's the only novel part and these things can easily be split or combined). I don't like reading Patently-O and seeing them give advice for how to prevent people from asking a court to make a patent bully go away by proving that they did not infringe, or how to get a patent even if the inventor doesn't want one.

Basically, I don't like most of what I see going on with the patent system. I don't like obvious or gibberish patents or the self-important people who think that they're geniuses for having them (even if other people thought of those ideas first and implemented them better). I don't like how software patents never give any source code, even though they're supposedly obligated to disclose the best known way to implement the invention.

There are so many problems with the system, I honestly wonder at times why we don't simply scrap it. Maybe there's a better way, but I haven't heard of one yet.

A little wounded pride here. How is that an error in the summary? The district court invalidated on three grounds. The Fed. Cir. upheld the obviousness finding. I'm pretty sure that's exactly what I said.

Cut from my summary is a link to Patently-O which has some pretty good analysis.

Thank you, we know what a design patent is. How does that make it different such that the objections people have put forward here are not valid?

E.g., does that mean other people are free to design a similar interface? Of course not. In which case, they share the same property of other kinds of patents that people disagree with.

Put it another way - why does putting the word "design" in front make it okay?

People here pretty clearly don't know much about design patents. Take a look at what a lawyer who specializes in this type of law thinks about this patent. http://www.patentlyo.com/patent/2009/09/googles-patent-on-its-googlecom-home-page.html

To summarize, he says:
1) No design patent like this has ever been enforced
2) It basically provides rights very similar to a copyright (not a utility patent).
3) Even Google's own search page of Sept 3, 2009 "clearly would not infringe because of the differences between layout in the patent and the layout on the site."
4) Their own web page from a year earlier is prior art to this page, which severely limits its scope of protection.

The bottom line is that the word "design" dominates the word "patent"- it's not much like a patent at all.

TFA says:

patent protection has promoted the free sharing of source code [...] which has fueled the explosive growth of open source software development.

Here's the quoted footnote from the Amicus brief:

See, e.g., In re Alappat, 33 F.3d 1526, 1571 (Fed. Cir. 1994) (Newman, J., concurring). Given the reality that software source code is human readable, and object code can be reverse engineered, it is difficult for software developers to resort to secrecy. Thus, without patent protection, the incentives to innovate in the field of software are significantly reduced. Patent protection has promoted the free sharing of source code on a patentee's terms -- which has fueled the explosive growth of open source software development.

The emphasis on "on a patentee's terms" is mine, and the phrase omitted from TFA is vital to the meaning of the sentence as a whole. I believe Adobe's release of the Portable Document Format specification is a case in point. Adobe made the specification available with the stipulation that it not be used to develop products that compete with Adobe's products. The open specification allowed the development of all kinds of open source tools (as well as closed-source tools) that make PDF much more useful to everyone, yet Adobe is protected from having its development investment and future business stolen.

It is very unlikely that Google's own home page infringes on their design patent.

http://www.patentlyo.com/patent/2009/09/googles-patent-on-its-googlecom-home-page.html

- No more than 7 years on a patent. No extensions. No exceptions.

Seven years from filing or from issue? It makes a difference. Currently the terms are up to 20 years from filing, but only if the patent holder pays all of the maintenance fees (currently $980 3 years after patent grant, $2,480 7.5 years after grant, and $4,110 11.5 years after grant). The only "extensions" currently available are those that the patent holder gets under certain circumstances when the government is somehow at fault for the delay (e.g., a special extension for pharmaceuticals that can't be marketed until they get through the long FDA approval process, or extensions for when the PTO examiners reject claims, but the rejections are reversed on appeal).

- No patenting of algorithms

Abstract algorithms already aren't patentable. Get away from the abstract and into the nitty-gritty of application and patent law becomes a lot more interesting. Keep an eye on Bilski v. Doll if you want to see where the line on patentability is going to fall.

- Patents to be awarded to individuals only, not companies

Patents are not awarded to companies in the United States. They are awarded to individual inventors. The inventors can assign their patent rights to companies, which arguably gives the company owners and managers an additional incentive to hire inventors.

1. The BPAI affirms rejections more often than not. See this study on the topic.

2. In the long run, continuing to reject a case, and getting counts for RCEs, will provide slightly more advantage to an examiner than an allowance. Allowances are also, generally speaking, harder to come by for junior examiners, since a primary examiner or supervisory examiner has to sign their cases, and a rejection is "trusted" more than an allowance since rejections can always be fixed in the next action.

3. KSR and Bilski have both had a tremendous impact in decreasing the rate of allowance, combined with recent quality policies in the USPTO which put allowances under more scrutiny and the training of many new examiners in a training academy where allowances are very uncommon.

On a side note, I would point out that the presumption of validity of issued patents is mandated by statute. In the courts, this has the effect of requiring a defendant to prove invalidity at the threshold of "clear and convincing evidence" (compare this to rejections in the USPTO on patent applications, which require only "prima facie evidence").

It's been going on for a while, it is just that the last few years, Slashdot made it front page news for geeks everywhere.

I'd intended to disagree with you, and I dug up some numbers:

The number of patents granted each year spiked dramatically in the US (be sure you're looking at the second row) in 1998, and again in 2006.

Congress' statistics office determined that "the number of U.S. patent lawsuits as a percentage of total patents have not changed significantly over the passed two decades".

This site claims that suits by number of claims rose way up in '04, but the source of the data is not clear.

Likely the '98 jump was the big technology boom following the popularization of the Web.

The anomaly in '06 may well be attributable to a rise of patent trolling, but this isn't clear. The number of patents issued peaked during the NASDAQ crash and held steady for a couple years. In '05, it dropped tremendously, then spiked high in '06, and dropped down somewhat in '07.

If the numbers from the patent blog are true, we're seeing a lot more claims per suit. Given the other numbers, this must represent a shift in IP litigation strategy, but I don't know what it means in any broader sense.

So... yeah. Business as usual. Mind you, that doesn't mean it's a good thing. Just because it's the status-type quo doesn't mean we should settle for it. IP law, in all its guises, needs reform badly. I'm not sure I've seen a good solution proposed anywhere, although there are a number of suggestions out there superior to the current mess. I'll keep my pie-hole shut about which I favor, since I don't want to derail my own point too far.

I don't have a clue about Red Hat's intentions, but I do know that they can't not protect its intellectual property without risk of losing rights to it.

NOOOO! That's about _trademarks_. Patents do NOT work that way.

You are correct that laches applies much more strongly to trademarks than to copyrights and patents. But you appear to have fallen into the opposite misconception that laches does not apply to copyrights and patents at all. See Troxler v. Pine .

Patent Litigation Venue: "A party shall not manufacture venue by assignment, incorporation, or otherwise to invoke the venue of a specific district court." Venue is only proper were (a) defendant is incorporated; (b) defendant has its principle place of business; (c) where the defendant is permanently located and has committed substantial acts of infringement; or (d) where the plaintiff resides if the plaintiff is a nonprofit or individual inventor. The court should transfer venue to avoid evidentiary burdens when transfer can be accomplished without causing undue hardship to the plaintiff."

(From Patently-O)

The Federal Circuit recently ruled en banc that if your patent doesn't involve specific physical things, it's not actually patentable. So at the moment any software not tied to a specific hardware device is invalid again.

What Congress does with this will be interesting to see. They were taking up patent reform several times in the last session. Probably half or more of IBM's patents are on software methods.

Apparently, a six year delay negates patent protection (the patentee has "unreasonably and inexcusably" delayed prosecution) under the same laches idea as made above.

Enforcement Laches does not require detrimental reliance. However, the patentee must be shown to have "unreasonably and inexcusably" delayed bringing suit and that the alleged infringer subsequently suffered material prejudice. A six year delay creates a presumption of laches.

Patent Law Blog (Patently-O): Laches and Equitable Estoppel.

This is a very informative post.

By the way, unix, which incorporated the archetypal permission system, was developed in 1969.
This is a clear case of prior art which even a "patent troll judge" cannot ignore. It's neither obscure nor contestable as its history is very well documented.
Any judge who doesn't throw it out of court after unix is brought forward as an example of prior art should be immediately scheduled for competency hearings.

Apparently, a six year delay negates patent protection (the patentee has "unreasonably and inexcusably" delayed prosecution) under the same laches idea as made above.

Enforcement Laches does not require detrimental reliance. However, the patentee must be shown to have "unreasonably and inexcusably" delayed bringing suit and that the alleged infringer subsequently suffered material prejudice. A six year delay creates a presumption of laches.

Patent Law Blog (Patently-O): Laches and Equitable Estoppel.

This is a very informative post.

By the way, unix, which incorporated the archetypal permission system, was developed in 1969.
This is a clear case of prior art which even a "patent troll judge" cannot ignore. It's neither obscure nor contestable as its history is very well documented.
Any judge who doesn't throw it out of court after unix is brought forward as an example of prior art should be immediately scheduled for competency hearings.

Apparently, a six year delay negates patent protection (the patentee has "unreasonably and inexcusably" delayed prosecution) under the same laches idea as made above.

Enforcement Laches does not require detrimental reliance. However, the patentee must be shown to have "unreasonably and inexcusably" delayed bringing suit and that the alleged infringer subsequently suffered material prejudice. A six year delay creates a presumption of laches.

Patent Law Blog (Patently-O): Laches and Equitable Estoppel.

Apparently, a six year delay negates patent protection (the patentee has "unreasonably and inexcusably" delayed prosecution) under the same laches idea as made above.

Enforcement Laches does not require detrimental reliance. However, the patentee must be shown to have "unreasonably and inexcusably" delayed bringing suit and that the alleged infringer subsequently suffered material prejudice. A six year delay creates a presumption of laches.

Patent Law Blog (Patently-O): Laches and Equitable Estoppel.

1. A method of determining whether an immunization schedule affects the incidence or severity of a chronic immune-mediated disorder in a treatment group of mammals, relative to a control group of mammals, which comprises:
immunizing mammals in the treatment group of mammals with one or more doses of one or more immunogens, according to said immunization schedule, and
comparing the incidence, prevalence, frequency or severity of said chronic immune-mediated disorder or the level of a marker of such a disorder, in the treatment group, with that in the control group.

As discussed here, it's difficult to see why immunization of animals is not transformative.

I thought methods had to be tied to a particular machine as part of that test? All I see are general references to unspecified "tools" that have "compartments" and whatnot.

Though upon rereading the link that got removed from the article, I guess you're saying that passes through the other fork because it turns ingredients into a sandwich (which, presumably, counts as a transformation)?

I'm just trying to clarify, because I have no intention of making the same mistakes twice.

- I Don't Believe in Imaginary Property

The broken link was meant to go here. I have no idea why Slashdot changed it from the original you can find in my submission. Perhaps they intended to link to a past Slashdot story? Oh well.

- I Don't Believe in Imaginary Property

Bilski was about business method patents not tied to any machine. The Federal Circuit tried to make this clear in the In re Bilski opinion itself (page 21):

We further reject calls for categorical exclusions beyond those for fundamental principles already identified by the Supreme Court. We rejected just such an exclusion in State Street, noting that the so-called "business method exception" was unlawful and that business method claims (and indeed all process claims) are "subject to the same legal requirements for patentability as applied to any other process or method." 149 F.3d at 1375-76.[Fn23 Therefore, although invited to do so by several amici, we decline to adopt a broad exclusion over software or any other such category of subject matter beyond the exclusion of claims drawn to fundamental principles set forth by the Supreme Court.]

It is true that the validity of many broadly drafted claims may be at issue, but many software claims just do not make sense unless the claims are understood to be tied to computational devices. For example, Beauregard claims, which are claims on a computer readable media adapted to implement a method or system, are considered patentable by the PTO. These kind of claims are very popular because they allow patent holders to go after the software distributors rather than end-users.

It will be harder to enforce software patents, now that the defense lawyers can wield Sec. 101 with more power. But it is a mistake to declare victory against software patents based on a case where all the PTO wanted was for the patent applicant to add "computer implemented" to the claim language.

Ah, here it is. DDB Tech v. MLB Advanced Media (Fed. Cir. 2008). And commentary by Dennis Crouch. I was wrong. It originated out of the 5th Circuit (Western District of Texas), but it was actually a Federal Circuit decision. So be aware of what you're signing. And if you're concerned, consult a lawyer.

Once again, this post is not legal advice.

There is some more legally (as opposed to policy) oriented coverage of the decision at Patently-O.

The majority decision introduces a new, complex, and vague test for patentability of business methods and software that raises more new questions than it answers. The end result will likely be the discovery of several 'magic words' that patent applicants can insert into their applications to ensure patentability without materially affecting what the claims cover. Unfortunately, those magic words will likely only be discovered after millions of dollars are wasted on expensive legal battles.

The new test states that a business method or software-implemented invention must be either "tied to a particular machine" or "transform a particular article." The court does not define what a 'particular machine' is. It is possible that a general purpose computer is sufficient, but it may not be. If it is not, it is unclear how specific the patent must be about what kind of computer it is tied to.

The court also failed to define what was a suitable level of transformation or what kinds of articles would suffice. Maybe the transformation must be significant, or maybe any change in state at all is enough. Maybe it will depend upon the nature of the invention. Maybe some articles are physical enough while others are not. All of these questions will require millions of dollars and years of litigation to answer. In the meanwhile, the value of thousands of patents will be called into question.

The court did point out that the article need not be physical, as in the example of a CT scanner which manipulates data representing a patient's body but not the body itself. So perhaps as long as there is some ultimate tie-in to a physical object, the invention is patentable. It is unclear why the manipulation of data representing a patient's body is adequately tied to a physical article but the manipulation of data representing commodities (which are ultimately very real barges full of coal, for example) is not. Figuring out exactly where that line is will be very difficult.

In my opinion (and in the opinion of Judge Rader, who wrote one of the three dissenting opinions) , the law already provided plenty of reasons to deny the application in the case as well as other overly broad or overly vague business method and software patents. Inventing complicated new tests will do more to provide employment for patent attorneys than it will to streamline business and encourage innovation.

Of course, I would also call into question the requirement for a physical tie-in of any kind. So long as the business method or software patent is limited to a specific, useful application (and is new, nonobvious, etc), I see no reason why we shouldn't encourage the development of such inventions. For example, better that a hedge fund patent a new kind of derivative and the world see what they are doing than they keep it an in-house trade secret. Assuming the Supreme Court or Congress does not overrule it, this decision will do much to drive such complex financial methods into the shadows.

One other very real concern. This decision could very well spell the end of Google's Page Rank and AdWords patents. If that happens, expect Microsoft and Yahoo to announce new, improved versions of their search engines and ad-delivery systems...and expect Google's stock to tank. Almost all of Google's value is tied up in its intellectual property. This decision weakens some of the fundamental parts of its business. Without software patents, it will be much harder for Google (or the next clever startup) to challenge more established companies.

Here's what I've found so far:

• Software Patent Supporter Tries to Pretend Google Harmed without Software Patents
• United States: Federal Circuit To Re-Assess Standards For Patent-Eligible Subject Matter - 2008-04-07

And, the original article: The Death of Google's Patents?

During prosecution, the PTO gets paid for just about anything the applicant files. That being said, after a patent is granted there are renewal fees.

You would think that examiners would simply allow allow allow, but that hasn't been the case in a while. The patent grant rate has actually dropped in the past few years.

http://www.patentlyo.com/patent/PatentlyO2006059.jpg

This is inpart due to greater focus on quality, and that allowance of an application is now reviewed multiple times even for primary examiners. In the same time period the backlog has grown as the result of a hiring freeze a couple years ago and fairly high attrition, and perhaps as part of a lower allowance rate.

Same here. I have a Buffalo router and the only time I've ever reset the thing was after flashing it with the Tomato firmware. Great unit, except they no longer seem to be distributing the units due to CSIRO's patent litigation ( http://www.patentlyo.com/patent/2007/06/nonpracticing-e.html ). Its a shame really.