The Dolcera Blog

Can we patent the business methods? The federal court is divided on this.

Though the machine or transformation test from “In re Bilski” brought some clarity, this very issue has just not stopped short of capturing the limelight. We in 2009 did some observation from the US PAIR information to understand the potential impact resulting out of the In re bilski decision.

We conducted an analysis of hundreds of USPTO examination reports for method patents in three areas:

a. Software,

b. Medical device and diagnostic, and

c. Pharmaceutical.

As of 2009, we could establish that

• Rejection rates for software method patents are significantly higher since the Bilski decision in October 2008
• Medical diagnostic method patents are also affected
• Pharmaceutical method patents have been impacted, but to a much lesser degree

Click here to read the blog post.

In fact, we co-presented the same with Medtronic in the PIUG Annual Conference 2009. Think this would be an interesting read at this point of time when once again the federal court is divided on the business method patentability.

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Just happened to read the news on ‘CA Technologies Sues Appdynamics for Patent Pilfering‘ and really intrigued with the word “Pilfering” associated with patents. The dictionary definition for the word “Pilfer” is “Make off with belongings of others” and further had a friendly chat with Sumair to understand how “Patent pilfering” differed from the conventional “patent infringements”.

We both understood this term “Patent Pilfering” in the context of the above case like this. Mr Bansal was the actual assignee for the patent which CA Technologies is suing Appdynamics. However, he was then an employee of Wily Technology which was eventually acquired by CA Technologies in 2006. Now, if you combine this with the actual definition of the word “Pilfer”, you can understand that “Patent Pilfering” is a special case of Patent Infringement as in this case CA Technologies claims that Mr Bansal has actually made up with a patent that is now belonging to CA Technologies.

Now, came the question whether our dashboard can help our clients detect plausible patent pilferinginstances. Bingo, Sumair pulled this screenshot from the “Paints and Silica Dashboard”. (Please see attached file). From the image, you can say that Mr Bruggere Pierre Alain can be a suspect forpilfering his patent on Colloidal Silica in his employment stints in HP and Ilford Imaging Switzerland Gmbh.

Is this a classic example of “Serendipitous” use of our dashboard?

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The Tech world is buzzing in 2011. Apple, Android, and Patents seems to the most recurring themes conversations converge too. Apple is a great success story, and literally becoming the apple of everyone’s eye by becoming one of the most valuable companies in the world, consistently innovating and generating higher and higher revenues. They recently posted one of their best quarters ever.

Many see Apple’s rise as a challenger to the Open Innovation theories, and positing that in technology a closed system offers you much more strength and sustainable innovation coming up with products which have completely re-shaped markets.

Of course Apple had a visionary in the form of Steve Jobs, but technologies don’t just develop “magically” and systems don’t just fall into “amazing” perfect tandem on their own. So, we at Dolcera decided to look into what exactly are the sources of Apple’s innovation.

Apple being a very secretive company, it was hard to find a lot of inside information. But one of the best sources of “innovation” data is the legal document which one gets for innovating - a patents. We decided to look at the patents of Apple and get an idea of the true sources of Apple’s innovation.

In our opinion, the key sources of Apple’s innovation are :
1. Expenditure on research,
2. Acquisitions, and
3. Patent Deals
Apple definitely has a strong in-house research. But every time Steve Jobs wished to make one of his “visions” a reality, it often required Apple to go out and spot “sources” which can be acquired, or taken the technology from. Some prime examples are acquisition of Fingerworks which developed the Multi-Touch for iPhone, and technology licensing from LiquidMetal which gave Apple products their great aesthetics among many others.

We have tried to provide a basic story flow in the visual below.

We are also conducting web seminars to detail on the findings of our research, and how you too can do the same. For details contact us at - info@dolcera.com

 Author: Pramath Malik

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Media tablets, private cloud computing, and 3D flat-panel TVs and displays are some of the technologies that have moved into the Peak of Inflated Expectations, according to the 2010 Emerging Technologies Hype Cycle by Gartner, Inc.

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Full text patent searching helps in identifying the relevant patent records that would have otherwise eluded a non full text patent search. Let’s say that in a specific non full text patent search we obtain a certain number of relevant patent records. And if the same search were to be conducted considering the full text, it is likely to yield more relevant patent records than what was obtained without the full text. The comprehensiveness of the patent search is enhanced when the scope includes the full text of the patents searched.

On the contrary, if we were to consider the above search scenario from a data relevancy ratio perspective, then it is only obvious to expect a lower relevancy rate in latter’s scope than in the former. Due to the low data relevancy prevailing in a full text patent search, it can be assumed that the associated time taken to analyze increases significantly. Subsequently, the cost associated with a full text search is significantly more than a search without it. We believe that the choice between the two is completely determined from the business implication of the search and with the legal considerations with which the search is conducted. In other words, if there is strong business value in finding relevant un-licensed IP belonging to well known patent holders, then an exhaustive analysis involving the full text in the scope of search is warranted. However, if the goal is to conduct simple state of art search or validity search, where the principle of first-past-the-pole principle applies, then the marginal value of incremental hits with full text search is justified only if the search result set searched without the full text does not provide sufficient evidence. Hence, the future of full text patent searching relies totally on the primary driving force i.e cost benefit analysis of the patent search. The cost benefit analysis has to be done in context of improved search tools and increasing sophistication of text mining tools available today.

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Professors Mark Lemley, Chris Cotropia, and Bhaven Sampat recently released a draft of their new article titled “Do Applicant Patent Citations Matter? Implications for the Presumption of Validity.” [Download Here.]

For the article, the trio analyzed the file histories of 1,500+ utility patents issued in 2007 and compared references used in office action rejections with the list of references cited on the patent cover-pages.  The objective was to figure-out the role of applicant-cited prior-art in the examination process.

Findings: Patent examiners rarely rely on applicant-submitted prior-art when making rejections.  Only 13% of the prior art used in office action rejections was applicant-submitted (despite the fact that 74% of cited references are applicant-submitted). Generally, the study found that examiners “effectively ignored” applicant-submitted prior art regardless of how few or how many references were cited; regardless of the timing of the IDS filing; and regardless of whether the submission included an EPO search reports identifying the references as “X-references.”

Implications: The authors suggest several implications of their findings: (1) That it likely does not make sense to find inequitable conduct when an applicant withholds prior art (since the art would not have been used in a rejection anyway); (2) That the presumption of validity associated with patents may be too strong; and (3) That studies based on patent citations likely lack merit.
There are several rational reasons for examiners to cite their own prior art. Because of the backlog, PCTs, and provisional applications, US examination often begins several years after the application was originally filed.  During that interim, many references become available that were not known at filing.  Thus, it is not surprising that applicants rarely cite 102(e) prior art, but examiners cite loads of it.  There is some reason to think that this “newer” prior art is probably better because of technological developments.  It may also be true that the applicant and examiner references are cited for different purposes — namely, applicants cite references that are generally relevant to the invention while examiners are looking for references that teach each particular element in the filed claims.  A third issue is that applicants tend to modify their claims during prosecution. That modification may make their originally cited art less relevant.

Conclusion: Most of the applicant cited references are ignored by the examiners. So, dont really trust on the citations.

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