Posts Tagged ‘utility patent’

Angry Birds Developer Latest Invitee to the Lodsys Patent Infringement Party

Wednesday, 27 July, 2011 09:34 Written by Mark Malek 0 Comments

By: Mark R. Malek

This story hits a little close to home because of my love for the Angry Birds game.  I don’t think it is the game that gets me so much as it is the noises that the birds make as they are rocketed from a sling shot to perform all manner of acrobats while destroying a structure in hopes of making a green blob explode.  It doesn’t hurt that the games are generally free through the Android Marketplace or the App Store.

We are so confused by this Patent Troll

Going past the free levels, however, is where the problem allegedly lies.  Although many of the levels are free, there are some additional levels that are available for purchase by users.  According to this story on Benzinga, which sites another story on The Telegraph, the Lodsys patent allegedly includes claims that cover a method for allowing players to purchase new levels inside its mobile application.  (See also this story on CBR)

Of course, the common theme that I have been seeing in many of these stories is that there is a problem with allowing patents on software – let the comments begin.  I, of course, do not see any problem with patents on software.  Many software developers disagree, but I do not believe that they are applying U.S. patent law when making their arguments.  In short, a U.S. patent, and patents in general, are meant to provide protection on the functionality of an invention.  So what is wrong with protecting the functionality of a piece of software?  The software field is so crowded, that any allowable software patent application is generally focused on a very specific function, and the manner in which that function is carried out.  We got a bit (a very little bit) of direction from the United States Supreme Court in their Bilski decision a little over a year ago (see my story on Bilski here), and with that, we were presented with the “machine or transformation” test, but were also told that this test was not the only test out there.  I guess we will have to wait and see what other tests there are, but we know that “machine or transformation” does not stand alone.

I was pleased to read the article regarding this matter by my good friend Gene Quinn, founder of IPWatchDog.com, and one of the teachers of the patent bar review course presented by PLI.  Gene points out what I believe is the bigger issue – the patent troll.  Gene notes that a patent troll generally gets the process started by finding an attorney willing to take a patent infringement case on contingency, and filing a complaint riddled with broad allegations.  That is part of the reason why the story’s regarding this Angry Birds infringement matter are a bit vague.  We are not too sure what aspect of the Angry Birds game is allegedly infringing.

We will have to wait and see how this, and the other Lodsys suits, turns out.  It will be interesting to see if Apple keeps out of this somehow.

USPTO Announces Full First Action Interview Pilot Program

Wednesday, 18 May, 2011 21:15 Written by Mark Malek 1 Comment

By: Mark R. Malek

In a press release issued on May 16, 2011, the USPTO announced the Full First Action Interview Pilot Program.  The program is described as an expansion of the Enhanced First Action Interview Pilot Program.

“Participants in the previous First Action Interview pilots experienced many benefits including: (1) the ability to advance prosecution of an application; (2) enhanced interaction between the applicant and the examiner; (3) the opportunity to resolve patentability issues one-on-one with the examiner at the beginning of the prosecution process and; (4) the opportunity to facilitate early allowance.  Approximately 34 percent of the applications in the First Action Interview Pilot Programs were allowed on the first action on the merits, as compared to approximately 11 percent on average across all technologies for new non-continuing applications.”

In short, an Examiner will conduct a prior art search and provide the Applicant with an initial report.  After receiving the initial report, the Applicant has 30 days to schedule an interview with the Examiner and submits proposed amendments or arguments.  During the interview, the prior art is discussed, as well as the proposed amendments and/or arguments.

This is a great program that has potential for decreasing pendency times of patent applications.  I am hopeful that Applicants will be able to place their applications in condition for allowance based on the interview.  The one thing I fear, however, is how the process will be handled internally.  If the Examiner conducts a thorough  search from the outset, then the process should be streamlined.  If, however, the Examiner is not provided with sufficient time or resources to conduct a thorough  search, a possibility exists that after the interview, the Examiner will then need to conduct another search, find new prior art, and issue a first Office Action.  I am just wondering how often it will be that an “agreement” can be reached during the initial interview.  I have not had many interviews that end with, “ok, this application is allowable.”  Most interviews end with “these amendments (this argument) overcomes the current rejections.  I will conduct another search.”

Again, I am hopeful that this process works, and as I hear more about it, I will post additional articles.  Any of my patent attorney / patent agent colleagues that engage in this process, or that get more information about it, are encouraged to comment here.

 

 

Google’s Groupon Clone Already Involved in a Patent Infringement Case

Saturday, 30 April, 2011 14:47 Written by Mark Malek 0 Comments

By: Mark R. Malek

As you may recall, I reported a few months ago that Groupon turned down a $6 billion offer for purchase made by Google.  To this day, I just can’t figure out why?  I have not researched the actual offer, but it must have not been in real dollars.  Maybe it was for $6 Billon worth of bacon gristle, or something along those lines.

As most anyone could have predicted, after being snubbed by Groupon, Google turned its programmers lose to come up with a similar type of site.  Seeing as how most all computers have Google as a homepage, I am sure that they would be able to capture a huge market share.  It apparently did not take long for Google to complete an initial version of the coupon site.  A beta test of the new site was announced for Portland, Oregon.

No sooner than the beta test was announced, however, was Google sued for patent infringement.  Any guesses on the Plaintiff?  That’s right – the same company that has sued everyone over the past month – Walker Digital (source).  A copy of the complaint is available at GameTimeIP.com.

It is interesting to note Walker Digital seeks damages in this suit.  I understand the request for entry of an injunction and for an award of attorneys’ fees, but I am not too sure that I understand what damages there are yet.  Google has not even launched their site, so there are no possible damages.  From the strategy perspective, however, Walker Digital has to ask for damages.  If they do not, then there is no possible way for them to recover damages if it turns out that damages are discovered during the litigation process.

Commerce Secretary Locke Nominated as Ambassador to China

Saturday, 12 March, 2011 22:57 Written by Mark Malek 6 Comments

By: Mark R. Malek

While reading Gene Quinn’s recent article about his exclusive interview with Commerce Secretary Gary Locke, I learned the sad news that the Secretary was nominated to be the next ambassador of China.  Don’t get me wrong – congratulations to Secretary Locke.  He well deserves such an honor.  I can only hope that this is the just another one of the steps that he will take during his long and prosperous career serving our country.  My issue is that I hate to lose him as the Commerce Secretary.

Commerce Secretary Locke

I recommend taking a good read through Gene’s interview with the Secretary.  You will see that he has done a lot of good for the country in his short tenure as the Commerce Secretary.  Many of you already know this, but for the uninitiated, the United States Patent & Trademark Office is a part of the Department of Commerce.  As such, the Commerce Secretary has some direct influence on PTO policy.  Director Kappos, chosen by the Commerce Secretary, has taken more initiative than I have seen in quite some time to reduce the backlog at the PTO and to make things run more efficiently.  With such progressive movements coming out of Commerce, I just personally hate to see Secretary Locke go.  Not much that I can do to stop it, so I will just wish the Secretary all the best.

Zies Widerman & Malek Attorney Cited By U.S. Senate During Patent Reform Debate

Thursday, 03 March, 2011 01:14 Written by Mark Malek 1 Comment

By: Mark R. Malek

During one of my routine calls to the managing attorney of Zies Widerman & Malek DC Area Office (Gene Quinn) I found out something that gave me great pride.  It was funny, because I kind of had to pry it out of Gene.  He is not the type that will lead off a conversation with “guess what awesome thing happened to me today…”  We were having our typical discussion – going over some strategies for various clients.  At the end of our conversation about business, we turned to checking in on each other – how’s the family, what’s going on with you, etc.

Gene Quinn

At the end of that, he gave me the ol’ “by the way, did you read my article in IPWatchdog.com over the weekend?”  Of course I did.  Gene is one of the best sources of intellectual property news out there.  His article that published on Sunday was about the new patent reform bill that is currently before the senate.  As our readers know from the various articles posted by Scott Nyman, (see articles here, here, and here), patent reform is (again) on the move.  There is a real shot of it passing this time…unlike the several patent reform bills that we have seen in the past.

Senator Jon Kyl

Anyway, on Tuesday, March 1, 2011, during debate over the patent reform bill, from the floor of the U.S. Senate, Senator Jon Kyl (R-AZ) repeatedly referenced Gene’s article. Senator Kyl was largely reading from the article at points and explained that he wanted to submit the article into the record because it raised many good points about the patent reform bill.  To see Senator Kyl’s remarks about first to file are available here (starting at 1:38:31).

Big ups to Gene for being recognized by the U.S. Senate for putting such great content up on IPWatchdog.com.  I was lucky enough to have Gene as my intellectual property professor in law school, have been fortunate enough to have kept in touch with him over the years, and am thankful that he agreed to run our operation in the DC Area.  Keep reading for more news on patent reform.  Also, we would really like to have your thoughts on patent reform.

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