24 posts categorized "Patents"

Patent archives as trove for 3D printing designs

Really lovely, old-fashioned post on the NYT Bits Blog this morning.

It's about an enterprising, artistic and apparently romantic lawyer, Martin Galese, who is resuscitating the utility of old patents. The post is called "3-D Printing the 19th Century."

CaptureThe image here is from the article and it is lovely to contemplate by itself. But go read the article. We should all do more of this - by "this" I mean, resist the compulsion of digitization to erase memory.

The NYTimes It's Blog post says Galese finds engravings in old patent filings "more beguiling than modern software schematics he has worked with as a patent lawyer."

That reminds me of a call I put out to several patent lawyer friends, after reading this post by Joel Spolsky dissing software patents.

I've gotten two responses to my call and will try to post those soon.

Employees pulling to refresh patent policy?

One of the assertions (arguments?) in Jaron Lanier's new book is that the disruption of the buggy whip industry was not as catastrophic for the economy as it might have been, because a labor movement stepped in and demanded improvements in working conditions and wages as the auto industry took shape.

6a01156e3d83cb970c0168ea48e0fc970c-500wi(Examples like this throw into relief his critique of the digital economy: labor and experience have been devalued, Lanier says, and literally taken out of all accounting.)

Well, I don't want to overstate the value of the Twitter's Innovators Patent Agreement, but it looks like it could gain traction, drive toward becoming an industry standard, if individual engineers bargain for the benefit of its use as a term and condition of employment.

The idea is that, as part of the bargain for an employer taking ownership of a patent on an invention, the employer concedes that the inventing employee has the power to decide whether the patent may be used to sue other companies.

Inventor Loren Brichter, whose pull-to-refresh feature was awarded a patent and is covered by the Twitter agreement, is quoted in The Verge as saying, "I really hope this becomes the de facto standard for hiring — engineers could demand this in their contracts."

For an overview and critique of the Twitter Innovators Patent Agreement that ran on this blog last year, click here.

Making sense of the White House "patent troll" announcement

The best succinct take I've read on the White House "patent troll" initiatives last week is this client alert from the Wilson Sonsini law firm.

Going off topic for a second: one of the ironies of all the attention being paid now in tech media to "big data" is that it isn't accompanied by a concern about information assymetry. Now connecting that thought to the "patent troll" debate: one theme of the White House's initiatives is to promote, through executive action and by proposing legislation, more transparency about patent ownership and patent actions.

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The WSG&R client alert expresses the executive action to promote transparency this way:

"Today, PAEs [patent assertion entities] often operate through shell companies that prevent defendants from knowing who the real parties-in-interest are and the extent of the patent portfolios they control. These shell companies are also sometimes used to avoid personal jurisdiction and to defeat declaratory judgment jurisdiction. Though it frequently is possible to determine who is behind a PAE through research, these new [Patent and Trademark Office] rules should result in greater transparency and hinder abusive PAE tactics, including repeat actions by the same patent owners."

On the legislative proposal side of promoting transparency, the WSG&R alert says this:

"This proposed legislation would incentivize public filing of demand letters in a way that makes them accessible and searchable by the public. There is currently no easily accessible, searchable repository of demand letters, and PAE activities are often secret. The White House's recommendation should provide more transparency and greater information about PAE activities, allowing for coordinated defense and attacks on the validity of suspect patents earlier in the process."

No question that the White House put a target on "trolls" in its announcements this week and in this report. But it's also interesting that the White House concedes the following at the very top of its report: "Some firms that own patents but do not make products with them play an important role in U.S. innovation ecosystem, for example by connecting manufacturers with inventors, thereby allowing inventors to focus on what they do best."

Photo: Alex Abboud / Flickr.

Punitive tolls for patent trolls

A friend who shall remain anonymous sent me a link to the provision of the United States Code pictured below.

"Write about this, but for patent trolls," he suggested.

Greenmail statuteThe statute pictured (detail only; full text here) imposes a punitive tax on persons who extract greenmail from companies by threatening proxy fights.

The idea would be to impose a similar tax on patent trolls, those who don't practice the patents they own but just exact tolls, private taxes, you might say, on private industry. Put a toll on the toll-exacting troll, my friend is saying.

"It's an idea Fred Wilson could get behind."

Maybe so!

Patenting nature

I loved the Nina Totenberg picee on NPR this morning, about the case before the Supreme Court that presents the question, can a drug company patent a human gene it has isolated for a given purpose?

Genetic denimIt's a complicated story (kudos to Totenburg and NPR for making it understandable), but it replicates (pun intended) the archetypal American creative tension, between open scientific inquiry and private commercial drive. There probably is not a wrong answer to the question before the court, just a policy choice that will, for a moment, tip the balance one way or another, to be adjusted soon enough in another context.

Totenberg ends her piece with a helpful editorial aside, to the effect that, in Europe, the way this case would be resolved would be to say yes to the drug company looking to lock down a patent, but then weaken the scope of patent rights to make a variety of express exemptions for research and for diagnostic tools.

Not how we do things in America. Soccer games can end in a tie but baseball games are played until the Second Coming, if necessary.

Steve Jobs acclaims Google patent (sort of)

"The communication of the dead," wrote T.S. Eliot, "is tongued with fired beyond the language of the living."

On his FOSS Patents blog, Florian Mueller reports that Google has attempted to turn words attributed to Steve Jobs by his biographer, Walter Isaacson, against Apple, in the course of an adjudication.

Iphone to earThe title of Mueller's post gives the context: "Google quotes Steve Jobs biography in attempt to salvage patent and win iPhone import ban."

Doctrines and phrases-of-art are so attenuated in patent law, they make securities concepts like "general solicitation" and "pre-existing business relationship" seem simple by comparison.

Read Mueller's post for more of the richly strange nuance of patent doctrine in the case, but if I'm following, Google's aim in quoting Isaacson in quoting Jobs is to take advantage of the precedent that acclaim by those knowledgeable in the field is indicia of a patent's non-obviousness ("obvious" being one of the worst things you can say about a patent or alleged patent, as bad as having your thinking described as "random" by Bill Gates at Microsoft in the 1990s).

The patent in dispute - the one Google wants to be valid and the one that Apple is disparaging - is this one, the abstract for which reads as follows:

"A portable communication device (100) that has a processing section (208) to control operation of the portable communication device (100) in response to an input signal (TS_INPUT) and a user interface having a touch sensitive input device (128) for generating the input signal (TS_INPUT), also has a sensor (134). The sensor (134) disables the touch sensitive input device (128) from generating the input signal (TS_INPUT) when the portable communication device (100) is positioned in close proximity to a user and, thereby, preventing inadvertent actuations while the user holds the portable communication device (100) against his or her head to facilitate communication."

In other words, the invention has to do with disabling certain functions of the phone when you raise it to your ear.

Here's part of the quote from a Gooble brief, itself quoting Isaacson's biography of Jobs, that Mueller found:

"Here, the technology of the '862 patent was recognized as a 'breakthrough' by none other than Apple's former CEO (Mr. Steve Jobs). On cross examination, Apple's expert, Mr. Lanning, could not deny that Mr. Jobs himself characterized the incorporation of a proximity sensor into the iPhone as a 'breakthrough' to his biographer, Walter Isaacson:'[a]nother breakthrough was the sensor that figured out when you put the phone to your ear, so that your lobes didn't accidentally activate some function.'"

Photo: UltraSlo1 / Flickr.

One more reason Twitter may be reluctant to truly disarm . . .

The news that Facebook has acquired and licensed the patents Microsoft recently acquired from AOL comes at the same time Facebook added this sentence to its prospective IPO prospectus:

"In addition, in the future we may acquire additional patents or patent portfolios, which could require significant cash expenditures."

That's from a risk factor on page 20 of Amendment No. 4 to Facebook's Registration Statement on Form S-1, filed yesterday with the SEC.

6963814022_aa5242a603The amended prospective prospectus also illustrates the "MAD" or "mutually assured destruction" doctrine of "defense" that was successfully surfaced in the comment threads to earlier posts here and on GeekWire about Twitter's new "defensive only" stance toward patents.

Updating prior disclosure about the patent infringement suit brought by Yahoo, Facebook now says it will fight back, not simply by vigorously contesting Yahoo's claims, but by asserting counterclaims - that is, by bringing other patents into the mix, patents owned or controlled by Facebook, and asserting that Yahoo has infringed those different patents of Facebook. In other words, Facebook will escalate the hostilities. Here's a detail from the redline I ran against Amendment No. 3:

Counterclaims FB

Also of interest in Facebook's amended disclosure: concise, but seemingly precise, summaries of both the Instagram deal and the deal with Microsoft regarding the AOL patents. These two paragraphs are back-to-back on page 65 of Amendment No. 4:

"In April 2012, we entered into an agreement to acquire Instagram, Inc., which has built a mobile phone-based photo-sharing service, for approximately 23 million shares of our common stock and $300 million in cash. Following the closing of this acquisition, we plan to maintain Instagram's products as independent mobile applications to enhance our photos product offerings and to enable users to increase their levels of mobile engagement and photo sharing. This acquisition is subject to customary closing conditions, including the expiration or early termination of all applicable waiting periods under the Hart-Scott-Rodino Antitrust Improvement Act of 1976, as amended (HSR), and is currently expected to close in the second quarter of 2012. We have agreed to pay Instagram a $200 million termination fee if governmental authorities permanently enjoin or otherwise prevent the completion of the merger or if either party terminates the agreement after December 10, 2012.

"Also, in April 2012, we entered into an agreement with Microsoft Corporation pursuant to which we will be assigned Microsoft's rights to acquire approximately 650 patents and patent applications that are subject to the agreement between AOL Inc. and Microsoft entered into on April 5, 2012, in exchange for a total cash payment of approximately $550 million. As part of this transaction, we will obtain a license to the other AOL patents and patent applications being purchased by Microsoft and will grant Microsoft a license to the AOL patents and patent applications that we acquire. In addition, we will be assigned Microsoft's rights to acquire the outstanding shares of a wholly-owned, non-operating subsidiary of AOL that holds a portion of the aforementioned patents and patent applications. The transaction is subject to the closing of Microsoft's transaction with AOL as well as customary closing conditions, including the expiration or early termination of all applicable waiting periods under HSR."

Pictured: Facebook's Seattle office (behind the light pole) this morning.

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