Patent Law

March 28, 2014, by Mandour & Associates, APC

Los Angeles – A recent patent filing by the country’s leading holder of patents may be about to take the connection people feel with computers to a whole new level.  According to an application published earlier this month by the United States Patent and Trademark Office (USPTO), IBM is seeking protection over technology that takes sensory input from humans and digitizes it in order to recognize and differentiate various human emotions.

The patent is entitled, “Multiple Sensory Channel Approach for Translating Human Emotions in a Computing Environment,” and was filed by three IBM inventors from Texas.  Per the particulars of the filing, the technology is encapsulated in a computer analysis program that is able to take several indicators of physiological data, including voice commands, heart rate and facial expressions, and analyze those inputs to determine whether a person is feeling happy, sad, tired, angry, confused, etc.

Specifically, the patent filing describes how these sensory inputs will be processed by means of “standards-defined sensory channels,” which will then  provide “emotion dimensional values”, which correspond to range of human emotions.   In order to get a correct read of a person’s emotional state, the system will have the ability to give certain physiological data higher priority.  That data can then be used to activate other computer functions to interact with the user in a specific way based on their detected mood.

In addition to physiological input, the technology will also factor in environmental data as well as user-generated input, all of which will be aggregated to determine the user’s emotional state.  Structurally, the patent mentions that the system will include a processor and operating system, an audio capture device and a physiological sensor, among other parts.  It further sets forth that the system is capable of operating on general purpose computers like desktops and laptops as well as other devices, which are likely to include smartphones and tablets.

Though it is uncertain at this point whether this patent application will actually be granted (IBM files hundreds of patent applications each week), its filing exposes the technology industry’s ever-increasing interest in making computers more human-like.  With added capabilities to make computer devices sensitive to what have up until now been exclusively human qualities, such as sensing and interpreting the emotions of others, the lines between what is human and what is computer may be blurring.

January 9, 2014, by Mandour & Associates, APC

Los Angeles – A recent patent application filed by Apple has people gearing up more than ever for the iPhone 6.   Entitled “Voice-Based Image Tagging and Searching,” the application seeks protection over technology that would let users tag and organize photos by speaking.  While iPhones have been able to sort photos by the time and location they were taken since the launch of iOS 7 in the fall of 2013, this patent takes it a step further.

The filing details how Apple users can tag photos using whatever “natural language” they want, including by naming the place, person or occasion featured.  The phone will then organize the photos based on the tags and store them in a database that is searchable by Siri.  Thus, users can easily save and recall photos in their growing photo libraries all by voice command.

The patent adds to a series of what are widely believed to be filings dedicated to technology for the next generation of iPhones.  In the past year, Apple has filed patents that reveal plans to implement a heart rate monitor into its devices and to expand the screen size.  The company has also fueled rumors of its plans to use flexible glass in its new displays and possibly add more biometric security features.

Given the ever-increasing competition between Apple and its chief rival, Samsung, Apple has also made recent attempts to file patents to differentiate the two brands’ devices.  Chief among this is one that looks to improve the hovering recognition technology already implemented in Samsung’s Galaxy S4.  While Samsung beat Apple to the punch in equipping its devices with the ability to allow users to hover their fingers over the screen to display additional information or to preview a link on a website,  Apple’s recent patent builds on this technology and streamlines the process of hover recognition.  In comparing Apple’s hover gesture patent with the hover technology already featured in some Samsung devices, commentators have noted that the Apple filing seems to shore up several problems that the Samsung products have had in differentiating the hover gesture from a traditional touch.

Though the next iPhone, already being called the iPhone 6, has no official release date, it is almost certain to make its debut in 2014.  With regard to what the official name of the new device will be, many have suggested that Apple might divert from its numerical naming system as it did with the recent iPad Air (chosen in lieu of iPad 5).  No matter what it ends up being called, with the flurry of patents packing it with new and exciting technology, the next iPhone is certain to impress.

November 26, 2013, by Mandour & Associates, APC

Los Angeles – After years of red tape and uncertainty, officials from the United States Patent and Trademark Office (USPTO) in Alexandria, Virginia, finally announced that a West Coast-based office will soon open in California.  The new office will be based in San Jose, inside the recently constructed City Hall in the middle of the tech-driven city of almost one million people.  According the statement, the office is set to open in late 2014.

The announcement is a welcome break for West Coast politicians, corporations and other supporters who have been championing the need for an additional patent office in the heart of America’s Mecca of innovation and technology.  An estimated 1 in 8 patents originates from Northern California and until this announcement, backlog at the East Coast office had made it time consuming and inefficient for California patent filers to get through the system.

With the opening of the new office, inventors from all over the West Coast and Pacific Rim can save the time and trouble of traveling to the East Coast to argue their patent filings.  Future director of the Silicon Valley satellite office, Michelle Lee, pointed out how important this is, especially for small startup companies who may not have the money to fund the expense of going to Virginia to handle their patent matters.  CEO of the Silicon Valley Leadership Group, Carl Guardino, echoed this view, calling the opening of the branch “phenomenal news.”

The new office space will be provided rent-free for the first two years of operation and for a reduced rent for the three following years.  When that time runs out, the USPTO will pay regular market rent rates to the City of San Jose.  The space, which will be housed in San Jose’s ultramodern looking City Hall building, will expand over 40,000 square feet and will include several hearing and interview rooms.  The new office is expected to create new jobs as well, with 60 new patent examiners and 20 hearing judges to be brought on between now and the date the office opens.

The new branch comes in the wake of the Leahy-Smith America Invents Act.  Enacted in 2011, the law mandates that the USPTO establish at least three additional branches outside of the main Virginia hub.  The California office will mark the second satellite office to be implemented, behind the Detroit branch, which opened its doors in July 2012.   The USPTO has already begun plans for other new branches to open in Dallas and Denver.

Posted in: Patent Law
October 22, 2013, by Mandour & Associates, APC

Los Angeles – Apple scored a huge break this week as the United States Patent and Trademark Office (USPTO) changed its mind and confirmed the patentability of a sought-after patent now dubbed the “Steve Jobs Patent.”  The ruling came almost a year after the PTO initially rejected all twenty of the cited claims.   After months of reconsidering, however, it finally stated this week that, “No amendments have been made to the patent.  As a result of the re-examination, it has been determined that the patentability of claims 1-20 is confirmed.”

The patent at issue is for the multi-touch technology implemented in Apple’s touch screen devices, such as the iPad and iPhone.  It is formally named “Touch screen device, method, and graphical user interface for determining commands by applying heuristics.”  However, due to the fact that it lists Steve Jobs as its lead inventor, it has come to be known simply as the “Steve Jobs Patent.”  The claims, while relatively technical in language, all generally have to do with the scrolling features of Apple touch screen devices.

The recent ruling based on the USPTO’s reconsideration found that the prior inventions and technologies invented before this patent neither anticipated the Steve Jobs Patent’s claims nor rendered them obvious.  As such, all twenty claims were given the green light as patentable subject matter.  This gives Apple a major boost in its fending off of Samsung and Google, the three of which have been battling over patents for years.

With the patent now confirmed, the Cupertino based company has made it much more difficult for its competitors, who will have to work around the claims in order to avoid infringement.  The situation is complicated further by the fact that this is one of two patents that Apple previously accused Samsung of infringing, which led to a US import ban on some Samsung devices.  In light of the new finding by the PTO, Samsung will have to make sure to steer even more clear of all of the claims mentioned in the Apple patent.  Given the tense war that has sprung up between the tech giants, Apple supporters have begun to theorize that the aptly named “Steve Jobs Patent” is the company’s late founder’s final way of making sure that Apple wins out.

June 20, 2013, by Mandour & Associates, APC

Los Angeles –  The U.S. Supreme Court ruled unanimously in a landmark case Thursday that natural human genes cannot be patented.  The case, Association for Medical Pathology v. Myriad Genetics, was originally brought in federal court in the Southern District of New York in 2010, but made its way through appeals to the nation’s top court.

The ruling came in a contentious battle over two genes that were identified as markers for increased risk of breast cancer and patented by biological research company Myriad Genetics.  Myriad Genetics held a patent for both the natural form of the gene isolated from the rest of the genome, and also the synthetic version of the gene, known as cDNA.  The justices ruled that while Myriad Genetics could continue to patent synthetic versions of the genes they isolate, patents for naturally occurring genes in the body could not be enforced.

This decision by the Justices has broad implications, as more than 20 percent of the human genome has been patented in the last 30 years.  This decision has helped to update the parameters for determining what is eligible for patent protection in the advanced field of biotechnology where there is an increasingly fine line between what is natural or synthetic.

This fight over gene patents was particularly contentious because Myriad Genetics’ patent meant that no other companies could pursue research on these genes.  From its research into the genes, Myriad has developed two tests to identify potential abnormalities of these genes that could lead to cancer.  The company’s patent meant that no other companies could develop tests of their own.

Myriad Genetics’ two tests consist of one basic test, BRAC, that is widely available and BART, a more advanced test that can cost thousands of dollars.  Plaintiffs in the case alleged that this second, more advanced test was only available if the patient had a strong history of cancer, or had the ability to pay for the test out of pocket.

Actress Angelina Jolie recently spoke out about her decision to undergo a double mastectomy after the results of her BART test showed that she was genetically disposed to breast cancer.  Advocates argue that this test should be more widely available so that all women at risk could have the opportunity to take this test, regardless of their ability to pay.

The Supreme Court’s ruling means that the field is now open for other companies to develop their own, potentially cheaper, versions of the test.

The scientific community has long been divided over the role of patent protection for inventions versus discovery for the public good.  Myriad Genetics argued that it spent years and millions of dollars pursuing this research, and having patent protection would have helped to recoup its costs and would justify further expenditures.  Genetics corporation advocates fear that this decision could stymie future genetics research because of the enormous cost and lack of protection over the results.  Other genetic researchers, however, are excited for the opportunity to research these genes that had long been off-limits due to patent protection.

April 22, 2013, by Mandour & Associates, APC

Los Angeles – U.S. District Court Magistrate Judge Elizabeth LaPorte recently ruled that Avocet Sports Technology Inc. waited an unreasonable amount of time, 6 years, to initiate a patent infringement case against Polar Electro, Inc.  Thus, she dismissed the case due to the doctrine of laches.

Avocet Sports Technology Inc., a Palo Alto, California company, tried to convince the Judge that the 6-year delay was due to a lack of funds needed to pursue litigation, but the Judge dismissed the excuse as having “no authority” to uphold it.  She further stated that Avocet’s claim of lack of knowledge was unjustified because Avocet Sports should have taken action sooner if it knew of possible infringing activity by Polar Electro.

Avocet Sports filed the complaint a year ago against Polar Electro in a California federal courtroom alleging that Polar infringed on one of its patents.  The patent at issue, U.S. Patent Number 5,058,427, issued in 1991 for “Methods for selectively accumulating altitude changes”.  The patent involves a strap-on device which Avocet Sports developed as a GPS-type of monitor which tracks a hiker, cyclist, or runner’s variations in altitude while on a trek.

Avocet Sports has been an innovator of outdoor sports products including compact cycling computers, altimeters, heart rate monitors and other related equipment since 1977.  Avocet Sport’s complaint against Polar Electro claimed the two companies had discussed the possibility of a partnership or license to the technology, but that Polar Electro had branched out on its own, copied the design, and then sold its own similar device.

Polar Electro, which focuses on sports, physiology and electronics has been developing heart rate monitors since 1977.  It now sells its products in over 80 different countries, employing 1200 people.  Polar Electro has been aggressively marketing and selling the elevation-tracking device since 2004, spending significant sums of money, unaware they may have been infringing on Avocet Sport’s patent.  Because of this, the Judge felt Polar Electro would be unduly prejudiced by Avocet’s long delay in filing an action against it.

Now that the case has been dismissed, it may never be determined if Polar Electro had in fact infringed the patent.

March 5, 2013, by Mandour & Associates, APC

Los Angeles – A Texas federal judge upheld a $368 million patent infringement judgment against Apple Inc. last week, but the judge refused to issue an injunction against Apple over the FaceTime app that would have prevented Apple from offering its video chat product on the market.

In November, a Texas jury found that Apple had infringed four patents owned by VirnetX Holding Corp. with its FaceTime application that is available for use on various Apple products, including the iPad and iPhone.

After the $368 million judgment against Apple in November, the technology giant filed several post-trial motions attempting to eliminate or reduce the verdict against it, which U.S. District Judge Leonard Davis denied.  The judge also ordered Apple to pay pre- and post-judgment interest to VirnetX, though he denied VirnetX’s request for attorney’s fees.

Judge Davis, however, rejected VirnetX’s bid for a permanent injunction that would prevent Apple from providing the popular videotelephony software application on its various devices.  As the app is already on millions of phones and tablets, Judge Davis said an injunction would be too drastic, resulting in unnecessary inconvenience and expense.

“The most recent estimates project the cost [for Apple] to comply at $50.8 million,” the judge said.  “Additionally, though VirnetX only seeks to enjoin the use of the infringing feature and not the entire devices, an injunction would not only harm Apple, but also its customers and other third parties.”

However, Judge Davis did order the two companies into mediation to determine a fair royalty rate that Apple will pay in order to use the technology in its products.

VirnetX originally filed the lawsuit against Apple in August 2010, alleging that Apple was infringing four patents.  The FaceTime app allows users to make video calls to others who also have Apple products with FaceTime.

VirnetX said in a statement that it was pleased with the judge’s decision to uphold the ruling against Apple and said that it would drop the related lawsuit it filed with the U.S. International Trade Commission and pursue relief through the federal courts.

February 15, 2013, by Mandour & Associates, APC

Los Angeles – MyMedicalRecords Inc. filed a lawsuit in California federal court against the health information company WebMD Health Corp., claiming that WebMD has created an online portal for patient records that infringes one of its patents.

The online health records provider claimed that WebMD launched its new patient’s records portal after talks regarding MyMedicalRecords assisting WebMD revamp its old portal fell through.  It also claimed that the new portal infringes its patent that covers technology that allows patients to securely access personal health files stored remotely.

MyMedicalRecords filed the lawsuit on Monday in the Central District of California in Los Angeles and Judge Christina A. Snyder will hear the case.

MyMedicalRecords is a subsidiary of Los Angeles-based MMRGlocal Inc.  Its website allows users to store all of their medical information securely online and allows them to access and add to the records from anywhere.  The company also offers other methods for securely storing medical records and has seven patents to protect the technology.

WebMD provides health information to the general public, health care providers and health plans through both public and private portals.  The New York-based company approached MyMedicalRecords in May 2007 requesting assistance in developing a secure patient information portal, according to the complaint.

At the time, WebMD’s patient portal only allowed users to enter personal information, which could be compared against a database to give the user an assessment of his or her health.  WebMD admitted to MyMedicalRecords that its portal was limited and sought its advice on improving the portal, as WebMD wanted to have a system similar to MyMedicalRecords’ system.

The companies signed nondisclosure and confidentiality agreements and began talks.  According to MyMedicalRecords, WebMD halted the talks a few months later and then began altering its portal to include features of MyMedicalRecords portal.

According to the complaint, WebMD’s current portal allows users to integrate different forms of health information from various sources and store those records securely, which MyMedicalRecords claims directly infringes its patent.

MyMedicalRecords is seeking a judgment declaring that WebMD has willfully infringed its patent and an injunction forcing WebMD to cease infringing the patent in addition to damages, treble damages, interest, costs and attorney’s fees.

February 13, 2013, by Mandour & Associates, APC

Los Angeles – Tela Innovations Inc. filed a lawsuit against Nokia Corp, LG Electronics Inc., and several other companies with both the U.S. International Trade Commission and the Delaware federal court accusing the companies of infringing seven patents owned by Tela that cover technology related to integrated circuit manufacturing processes.

In addition to Nokia and LG, Tela filed separate lawsuits against Motorola Mobility LLC, HTC Corp., and Pantech Co. Ltd. in Delaware federal court and a joint complaint against all five companies with the ITC accusing the companies of copying Tela’s technology for optimizing the layout of integrated circuits in its smartphones without a license from Tela.

“Tela has, and continues to, create technology to address critical technical and economic challenges facing the semiconductor industry.  Our products enable designers to achieve the best performance, area and power characteristics possible as semiconductor processes continue to scale,” Scott Becker, CEO of the California-based Tela, said in a statement.  “Given the significance of our company’s investment in this technology and associated products, it was necessary to take legal action at this time.”

Tela, which is headquartered in Santa Clara County, said its patents protect improvement for the manufacture of integrated circuit chips, which are utilized in nearly all electronic devices including smartphones, tablets and laptops.  The manufacturing techniques allow manufacturers to perfect printing of a circuit layout on tiny chips.

In the complaints, Tela claims that each of the five companies have imported and sold smartphones or tablets that contain integrated circuits that infringe some combination of seven patents held by the company.

“Tela has been irreparably harmed by the defendants’ infringement of its valuable patent rights,” the complaint said. “Moreover, defendants’ unauthorized and infringing uses of Tela’s patented technology have threatened the value of this intellectual property.”

In the lawsuits filed in federal court, Tela is seeking damages and an injunction to prevent the companies from importing goods in the future that infringe its patents.  The ITC complaint is seeking a declaratory judgment that the companies have imported infringing goods and therefore have breached Section 337 of the Tariff Act of 1930.  If the ITC rules in favor of Tela, it could result in an exclusion order banning the companies from importing their devices into the United States.

November 26, 2012, by Mandour & Associates, APC

Los Angeles – US Patent and Trademark Director Dave Kappos defended the patent system against critics, such as Google, who have been claiming the system is broken.

Google and other technology giants have long criticized the patent system, particularly when it comes to the handling of software patents.  Many issues in the debate were summed up in an opinion piece written by Kent Walker, senior vice president and general counsel for Google, which was posted yesterday on Wired.

Walker claimed that patent trolls are taking advantage of holes in the patent system, costing technology giants billions of dollars each year.  He called the government to action, claiming they need to get rid of bad software patents that have been issued, prevent bad software patents from being issued in the future, and provide “clearer rules for damages and awarding costs.”  Walker claimed that bad software patents include overly broad patents and business method patents.

The patent trolls are not only bad for businesses, Walker claims they are bad for consumers as well.  He claimed that fighting abusive litigation takes time and resources away from research and development in large companies and completely devastates small companies and start-ups, resulting in quashed competition and suppressed creativity.

These views are shared among many critics of the software patent system, but Kappos claimed in a speech this morning at the Center for American Progress that the software patent system is functioning the way it should be.

The patent office conducted a study of many different software patent lawsuits and found that the courts had found 80 percent of the patents in question valid, according to Kappos, thus getting rid of bad software patents would make little difference in the amount of software patent litigation.  He stated that the software patent wars are not a sign that the patent system is broken, but rather a sign that the patent system is working.

Kappos also claimed that the America Invents Act will take care of many of the issues critics are complaining about, but they have not yet given the AIA time to take effect. Among other things, Kappos said the AIA will help weed out business method patents and bad software patents.

His last major claim against his critics was that technology continues to develop very quickly, so he claims that critics who say development is being harmed by the litigation have no standing.

Regardless of whether the software patent system will end up being reformed or not, it appears that software patents will continue to be a hot topic.

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