We have finally arrived with the full complement of America Invents Acts changes that President Obama signed into law nearly 18 months ago. By its terms, the final provisions go into effect 16 March 2013.

You’ve heard this before, about the changes including First-to-Invent becoming First-to-File. It will be official starting 16 March 2013. Other changes include issues relating to different prior art, derivation proceedings, and assignment/ownership considerations.

Even though we’ve been referring to the changes as First-to-File, I must remind you that you still must be an inventor to file. That is what derivation refers to – a person filing was not an inventor, but derived the invention from another person. Unfortunately Congress has made it difficult to actually implement its derivation proceedings.

I’ve been asked by several inventors about how they should prepare for the final phase of implementation. The general concensus is to file as early as you can, and if possible, to file before 16 March 2013. Various fact-patterns have emerged where it suggests that, with perfect knowledge of facts that can sometimes be hard to obtain in advance, it may be advantageous to file after 16 March. What used to be called an interference (two inventors claiming essentially the same subject matter at the same time) were rare  and caused a mini USPTO trial where the USPTO determined who invented what subject matter first. The default was to award inventorship to the first of the parties to file, unless a later filing inventor had sufficient proof to show an invention before the other. Most times, the proof was lacking and the default condition wins, making the system largely a first to file system in practice. As you can see, dates of invention and inventor log books will become less important after 16 March 2013.

Contact me and we can discuss particulars of your case, or if you would like to know more about these changes.

Our friends at Klarquist Sparkman, LLP have produced a video that may help you understand the changes (I cannout vouch for the accuracy of its content.)

Here is an interesting matter (it is interesting for many reasons including that my lovely wife has been planting patented plants in our yard and I've begun to contemplate what it means to infringe these patents – theoretical to me, life implicating to the farmers of the world):

Supreme Court To Rule On Monsanto’s ‘Self-Replicating Patent’ Seeds | Disinformation

Monsanto demands that anyone who plants a seed containing the its patented herbicide-resisting genes pay steep “technology fees.” The problem is that Monsanto’s plants amount to self-replicating patent machines, as the Monsanto-created genes spread through the ecosystem…

The patent world continues to change, and so does YourPatentGuy. As you use the web and search for the best fit for you with respect to patent services, you can find many different options. Of course everyone is looking for the services that best match their needs, and those needs vary. I have had several conversations with my clients about what a 21st Century patent firm looks like. We are more than a decade into this makeover and I'm not sure that much has changed in the delivery of services.

To be certain, the law is changing. There is increasing pushback against the solo inventor and protection/enforcement of their inventions. We just passed the one-year anniversary of the current US experiment in revision to our patent laws. Not all changes are in place but I have not found that the changes help the solo/startup very much. The jury is still out.

One concern relates to the ever-increasing costs of patent protection. Changes are needed to meet varied needs of the inventor group, while being current and effective. The non-lawyer/agent is slower to adapt and respond to these changes. Having a lawyer involved when legal rights are implicated is still valuable, but increases costs.

That said, there has been some developing changes to the delivery of legal services. There is an increase in legal accessibility brought about by sites such as LegalZoom, where the user is provided with self-serve options. In my opinion, these types of services are not particularly suited to most patent matters. And further, when legal rights are involved, having a lawyer involved is better for protecting those rights.

2009 appears to have marked a rise in the delivery of legal services through Virtual Law Offices. The rise of these offices has included a rise in the idea of unbundled legal services. Think of this as “al la carte” in that a lawyer provides limited, focussed service through online portals. This is one way that costs are further controlled, which means that clients could be offered some of the savings by reduced rates or lower overall costs.

Not all clients want al la carte service, and not all matters are appropriate for this type of treatment. That means that some clients do, and some matters are appropriate. So that is what is behind the current exploration of YourPatentGuy

Investigating this topic has been fascinating. The legal world is no longer the staid “profession” of years ago, nor is it a true capitalistic business of the caveat emptor type. Various bar associations struggle with keeping up with technology, delivery of legal services, and client needs.

The virtual law office has challenges in defining itself and meeting the sometimes apparently conflicting demands of these Bar Associations and various State ethics laws. Fortunately the patent practice is a Federal matter and is easier in some respects. But it is far from simple.

I believe it will be easier for YourPatentGuy as I hope to provide this as an adjunct to my regular practice, not a replacement.

Stay tuned for developments and if you are so inclined, give me your thoughts about your vision of a 21st Century PatentGuy!

President Obama signed the new Patent Reform legislation last Friday just as expected. The 10 day post-enactment window for the 15% surcharge to kick-in has started. New, bigger (improved???) patent fees are in effect on the 26th of September 2011.

Here is the official USPTO fee schedule.

It has finally happened – patent “reform” has been passed by both the US House of Representatives and the US Senate, and President Obama is expected to sign this legislation. My opinion is that this is typical of “major” legislation in this day and age, no coherent, long-term view to solving real problems. The US Patent system does have problems, and this legislation doesn’t address them, and may make matters worse, particularly for small inventors.

But we have to play the hand we’re dealt, so let’s dive in and see what’s up.

There are a large number of changes to the patent law, some of the major changes will not be effective until much later (e.g., 1 year out and 18 months out from enactment). I’ll discuss changes to the reexamination (most changes 1 year out) and first inventor to file (18 months out) in later posts.

What is on deck on the day of enactment?

Fees, and some other stuff.

Fees:

One of the big “fights” was about fee diversion and whether the USPTO could set its fees, and retain the fees that inventors pay. Some programs have been discontinued because of fee diversion issues, and some people claim that one of the reasons that patent reform is necessary is because the USPTO is understaffed/underfunded to do a good job. Having more people and a better trained workforce would appear to be desirable for any business and undoubtedly this could apply in some fashion to the USPTO.

The new legislation gives the USPTO Director fee setting authority, continues the practice of small entities receiving a 50% discount, and introduces the concept of a micro-entity. A micro-entity receives a 75% discount! To qualify as a micro-entity, you need to (1) meet the requirements of the regulations to be issued by the Director, (2) have not been named on more than 4 patent applications (other than foreign, provisional, or international applications), (3) not have a gross income more than 3x the median household income for the preceding year, and (4) has not assigned the application to an entity whose income exceeded that amount.

Can you believe “grown-ups” sat around and argued over this stuff? Typically the USPTO fees are not a significant impediment to filing, prosecuting, enforcing, and otherwise monetizing an invention. Over the long haul, these fee reductions could add up, but you cannot be a micro-entity for the long haul. And without implementing regulations (1) above, it could be some time until this discount is available.

Interestingly, the legislation includes implementation of a 15% surcharge on all statutory fees 10 days after enactment. Stay tuned for details. I don’t believe that there will a window for micro-entities to pay reduced fees without the surcharge, mostly because I do not believe that the regulations have been completed. This surcharge is terminated once the Director exercises his authority to set fees. Optimistically, this is at least 18 months out.

There is also implementation of the Prioritized Examination where you get to bump your application to the front of the queue (with conditions, including payment of $4,800). I suspect that there will be a 15% surcharge and maybe a reduction for small/micro entities. We’ll see soon enough.

Other stuff:

1. Best Mode is no longer a defense to infringement. As a patent drafter we’re still supposed to include the best mode contemplated by the inventor of carrying out the invention. This may advance the cause of global harmonization as most other jurisdictions do not require this, but at least in theory the failure of the legislation to remove the best mode requirement from 35 USC Section 112 means that the US inventor may be at a disadvantage. You need to disclose the best mode (albeit perhaps without consequence if you don’t, I’ll be asking you for it in any case), while other inventors from outside the US likely will not be disclosing their best modes.

2. Virtual marking will arrive. Rather than having to mark a patented product with the patent number, a patentee will have the option to use an Internet address that associates the patented article with the number of the patent. The access has to be without charge.

3. Patent Term Extension – this doesn’t apply to you unless you are the well-connected law firm of WilmerHale and are trying to avoid a hefty malpractice claim. They will tell you that this arcane carve-out could help anyone and that this is only backup because a court has ruled that the WilmerHale firm did not file a day or two too late. If it were the key to WilmerHale avoiding a malpractice claim, it is reportedly worth several hundreds of millions of dollars. Big bonuses for the partner responsible for this.

4. Tax strategies – No longer will you be able to get protection for your invention related to any strategy for reducing, avoiding, or deferring tax liability, whether known or unknown at the time of invention or the filing of a patent application. Unfortunately Congress has already implemented its strategy of reducing tax liability – strangling the economy – but that is another story and they don’t appear to trying to patent their brand of governance.

5. Human organisms – this ruined my plan to self-patent YourPatentGuy. (Not that I wanted a patent number tattooed on my backside.) Actually, the annual budget process for the USPTO included a prohibition against obtaining any patent on a claim directed to or encompassing a human organism. This change in current law makes it so this prohibition is permanent and not part of the annual dance. People are concerned that this language is broader and may work against patenting DNA.

6. Reexamination – While most changes are 1 year off, there is a tweak that happens immediately. The current standard that the USPTO applies when determining whether to grant a reexamination request is to determine whether there exists a “substantial new question of patentability” – and the USPTO has been famous for answering in the affirmative almost every time someone asked. Upon enactment, there will immediately be a change to this standard so that requestors will have to show “a reasonable likelihood that the requester would prevail with respect to at least 1 of the claims challenged in the request.”

Further with respect to ex parte reexaminations, on the date of enactment, you can no longer ask a district court to review an ex parte reexamination decision that you are unhappy about.

I am frequently asked a version of the following question: “If there’s a new item that’s totally different from what’s available, which option is better when considering to license this new idea: A. File a Provisional, B. Wing it with an NDA or C. Other ?”

Most people seem to believe that filing a provisional is the answer – I believe that the answer is actually “C – other.” If you must, a quick, “top-level” real provisional prepared and filed by a registered patent attorney or agent, could be a reasonable choice particularly if you have not used and maintained an Inventor’s Notebook to show your earlier date of invention.

I have had several inventors with great ideas not get very far in licensing because they do not have a patent-in-hand. The best path to success is to have an issued patent. Working backwards, there needs to have been a regular non-provisional filed at some point. (Given that the average pendency for US applications is several years, this is not a fast process. Given that the allowance rate has been less than 50%, issuance is not guaranteed.)

The US currently operates with a first inventor to invent system (so acquire, use, and maintain your Inventor Notebook) and rely on the notebook. Contact retailers, manufacturers, and distributors and see if there is any market for your idea, using an NDA if you can. The US patent system provides for a 1-year grace period after certain events to get a valid application on file. An NDA can lengthen the time before that 1-year clock begins. Some type of patent application must be filed before the expiration of that clock to protect the invention.

Going this route can jeopardize international protection as it increases the risk that the invention will become “publicly known” before an application is filed. Most non-US jurisdictions have no grace period. Given that the costs of international protection are significant, that the US market is often the largest, and that international protection is often narrower, I do not generally recommend the international route for my first-time inventors. It is often better to use the funds for developing their product, acquiring additional US protection (more applications, copyright/trademark if appropriate), developing a second idea, or taking a much-needed vacation than to invest in international protection.

Patents cost money – that expense is justified the more likely it is that there is a market need and your idea can meet this need at the right price point. It is at this juncture that you have a chance of recouping your investment in your patent application. When an issued patent covers a product in the marketplace that is making money, that patent then helps you make more money (sometimes much more) than you could without the patent.

The provisional application is not a “lite” application – by law it needs to have most attributes of a non-provisional application – and expires in one-year. Many inventors wait an entire year to convert their application which adds the extra time to get into the examination queue which delays issuance. Weaknesses in the provisional can undermine any patent strategy you have in place that depends upon the provisional application. There is a right time and there are right reasons for filing a provisional application.

In short, try to obtain as much information as soon as you can as to whether there would be market acceptance of a product embodying your idea. For those ideas that look like they have a reasonable chance of making you money, get a patent application on file as soon as possible. There can be ways to expedite the application when needed and ways to implement a strategy that increases your chances of deriving value from your potentially marketable idea – consult a registered patent attorney or agent for help. There are some caveats and assumptions in this and this will not be appropriate in all cases.

I am prompted to write this after reading a Motion for a Preliminary injunction filed in APPLE INC. v. SAMSUNG ELECTRONICS CO., LTD., et al. What struck me is that the motion includes no less than 3 US design patents (US D618,677, US D593,087, and US D504,889) and 1 utility patent. I remember discussing Apple’s vision to obtain US design patent protection on desktop icons when I was a young patent attorney at Townsend and Townsend. While inspirational, I wondered at the validity and ultimate merit of a design patent on an icon. A quick patent search shows that Apple eventually succeeded in the US with about 24 design patents (here’s one to see if you’re curious: D382,553). And it appears that that some icon patents have been awarded in Europe – See: EU Grants Apple 24 iOS Icon Design Patents.

A Lexis/Nexis search I ran did not show any litigation activity on the US icon design patents which were granted starting around 1997 (filed in 1992). Which brings me back to the reason for this post – how much is a patent (design) worth? Unless you are associated with one of the idea promotion entities that prey on inventors, most people believe that a design patent does not have much value in the US. We often say it is better than no patent, but only marginally better. (There are times that design patents are quite appropriate and valuable – consult with your patent professional.)

Why? Because the US patent laws bifurcate applicable inventions into utility or design patents. In general terms, a “utility patent” protects the way an article is used and
works (35 U.S.C. 101), while a “design patent” protects the way an article looks (35 U.S.C. 171). Both design and utility patents may be obtained on an article if invention resides both in its utility and ornamental appearance. While utility and design patents afford legally separate protection, the utility and ornamentality of an article are not easily separable. Articles of manufacture may possess both functional and ornamental characteristics. Other countries protect inventions in industrial design which is what many inventors and businesses would like to protect in the US.

As in all issues of patent enforcement, one cannot infringe an invalid patent. A design patent can be invalid or limited if what it purports to claim is, in fact, functional or non-ornamental. A design patent typically has a claim, and that claim includes one or more views of the article of manufacture. If you examine the design patents in the motion for preliminary injunction, you’ll see extensive use of a standard in drawings for a design patent – use of broken lines (i.e., dashes). The convention is a broken line disclosure is to be for illustrative purposes only and forms no part of the claimed design. Structure that is not part of the claimed design, but is considered necessary to show the environment in which the design is used, may be represented in the drawing by broken lines. This includes any portion of an article in which the design is embodied or applied to that is not considered part of the claimed design. When the claim is directed to just surface ornamentation for an article, the article in which it is embodied must be shown in broken lines.

Looking at FIG. 1 and FIG. 5 of US D618,677:

You see that this design patent claims, once you remove the broken lines, an electronic device with a rounded-corner rectilinear flat face having a pair of intermedial bisecting lines and a slot at one end. And the face must be black. Another interesting thing about this claimed invention, the patent identifies no less than 14 inventors. In patent-speak, an inventor is an individual who has conceived of the invention. The inventor must form a definite and complete and operable invention to establish conception. One likes to err on the side of over-inclusion, but…

If this patent survives a validity challenge (and it is determined that the correct set of inventors were identified without including non-inventors), one can begin to address infringement. What is the test of infringement for a design patent? In an en banc rehearing of Egyptian Goddess v. SWISA, Inc. (EGYPTIAN GODDESS v. SWISA, 543 F.3d 665 (Fed. Cir. 2008)), an “ordinary observer” test was established.

Infringement of a design patent requires proof that an “ordinary observer, familiar with the prior art designs, would be deceived into believing that the accused product is the same as the patented design.” This hypothetical ordinary observer is assumed to have knowledge of the relevant prior art. Thus, “if the claimed design is close to the prior art designs, small differences between the accused design and the claimed design assume more importance to the eye of the hypothetical ordinary observer.” “The ordinary observer test applies to the patented design in its entirety, as it is claimed. There is claim construction as the parties seek to identify functional elements in the claim (which are removed from consideration of potential infringement.)

So, how does this play out? Looking at Apple’s Motion:

This is how Apple’s counsel characterizes the issue of infringement:

“Samsung copied every major element of Apple’s patented design:

• a flat, clear, black-colored, rectangular front surface with four evenly rounded corners;
• an inset rectangular display screen centered on the front surface that leaves very narrow borders on either side of the display screen and substantial borders above and below the display screen; and
• a rounded, horizontal speaker slot centered on the front surface above the display screen,
• where the rectangular front surface is otherwise substantially free of ornamentation outside of an optional button area centrally located below the display.”

Did you see all of that? There are some interesting issues here for sure. I have read that one of Apple’s arguments in the past has been that design patents are typically related to functional objects which can confound the examination of the issues. That is certainly true, just as it has been that Apple tries to extend the reach of the patent tools afforded under U.S. patent laws.

Part of what I see may be a problem with the argument is the possible reliance on the broken lines – they are expressly disclaimed. The arguments try to assert that a design patent claim protects the claimed product in its environmental context – but does that mean that use of the claimed elements in another context would not be infringement? I had not understood that design claims were so limited. That use of the claimed element in another environment would also, presumably, be infringing. This is one of the problems of the patent disclaiming the housing – the invention is really only understandable in a context but they may have removed the context from proper consideration.

Which brings us back to the value of a design patent. In most products made today, functional considerations are intimately tied into product industrial design. Apple has been famous (rightfully so I may add) for adding positive aesthetics to the electronics we have come to love and enjoy. However, properly identifying the ornamental features from the functional features is nearly impossible. There are undoubtably many functional utility elements that go into a product (e.g., touchscreen) to enable the face of a piece of useable electronics to actually function without hardware buttons.

The description of infringement appears to be me to include several “functional” elements and would therefore be unprotectable by a design patent. That a display screen is centered in its housing/display area would appear to be the most efficient packing method for a display. For any off-centered display, there is “extra housing” – particularly for a device substantially free of optional buttons. Either the display could be made larger or the housing made smaller. Additionally, displays have been centered in bezels well-before these applications were filed. That the display is black – can one obtain a non-black touchscreen? Would a non-black touchscreen cost more? And if one needed more room beyond the dimensions of the display, expanding longitudinally is better than laterally in order to grip/hold a phone.

One of the things that the rules for design patent seek to prohibit is exclusion of functional elements by a competitor under guise of a design patent. The proper route for this protection is a utility patent, the technology that enables the new design. As soon as the technology pieces were in place to permit a cellphone to be realized without buttons on the front, it becomes almost a requirement that the display be centered in the housing to maximize screen size/housing. Almost all corners in the housings of all products are rounded (less material, less cost = function). And making a consumer electronic product black? Product features that reduce cost can be functional for that simple reason alone – design protection is generally easier to support for features that increase product cost.

While I do not personally give the argument for granting preliminary injunction based upon the ‘677 patent much hope, the patent has value simply because there is the statutory presumption of validity. Any infringement of a valid patent is actionable. One of the forms of relief is an injunction – and that is most certainly valuable. This is part of a strategy in litigation among giants in the electronics field. It will take more before we can say that these patents, as opposed to other patents that Apple could have asserted, have any value separate and apart from its value as an instrument of litigation. Until then, seek design patent protection where appropriate and understand the limitations.

YPG

This has been a question on the minds of inventors ever since the first patents were granted. For a consortium of six well-known tech companies (Apple, EMC, Ericsson, Microsoft, Sony, and RIM), “approximately 6,000 residual patent assets” of Nortel Networks Inc. are worth about three-fourths of a million dollars ($750,000) per asset, on average. Given a general yardstick that is often used, that about 3-5 patents of every 100 have any real economic value, that means that each of the 1200 “valuable” assets actually has a price tag of $3,750,000!  (When citing that 3-5 number, we do mention that when a patent is valuable, it more than compensates for the 95% of the time that the patent has less economic value than desired.)

I haven’t found a copy of the specific list of residual patents (much was filed under seal due to asserted sensitive commercial information concerning Nortel licenses) but a quick search of US patents and published applications reveals 4,173 issued US patents, and 1225 published applications (patentability still TBD and I did not check for duplications). WIPO reveals 1205 PCT applications and ESPACENET shows over 12,306 results listing “Nortel” as applicant in 80+ countries. That is a lot to sift through.

For the majority of patents, the cost to prepare and file an application, prosecute it through the various patent offices, and to maintain the patent, is a small fraction of these numbers. It is when the patents are relevant to access to valuable markets, through licensing and litigation, that numbers like this begin to appear. Patent litigation can easily be tens of millions of dollars. If we set a cost of $25 million per lawsuit, the price of these assets comes out to 180 complete lawsuits, 30 per member of the consortium. That is for litigation going through the entire process. (Note, the majority of disputes stop short of trial.) This is, unfortunately, a defensive way to look at the world . $4.5 billion could have resulted in some beneficial innovation and useful products through additional R&D by these companies (with the added benefit of more work for patent prosecutors).

We’ll look at the specifics of what these patent assets actually address later, but a quick look at about 1,000 Nortel US patents issued in the last 5 years show a significant number issued in US class 370 (Multiplex Communications) and 709 (Electrical Computers and Digital Processing Systems (the relevant subclasses concern multicomputer data transfer). These do not appear at first blush to be closely related to the types of technologies that we associate with the “Consortium” members. As I often remind readers, the value of a patent is in the claims, particularly the independent claims. There are 3,505 independent claims in these patents that would need to be reviewed and analyzed before we would have any idea whether any of these patents have real value in the patent sense.

Maybe there are enough jewels in that portfolio justifying such a cost. Given that I write applications that mature into what my clients and I hope are valuable patents, it is good to see what a portfolio can look like in the abstract sense. But these are numbers and considerations for commercial activities and entities other than the small business and solo inventor. There have been some patents that I’ve written and prosecuted that, along with vision by management and some skillful litigation, have resulted in patents at least as valuable as these. It is a process and I suspect that for several reasons no one at Nortel had any inkling of this day when Nortel had its first patent application drafted and filed.

YPG

Now both the Senate (S.23) and House (H.R. 1249) have passed legislation addressing changes to the US Patent System. Because the legislation is different, further action by Congress is required before President Obama has anything to sign (and he’s indicated he’s inclined to accept reform along the lines of the pending legislation). I will defer a detailed summary of what the law “is” until there is something definite to summarize.

It is looking more likely than in recent past years that there will be some changes to the patent system – and the main points in the both bills include changes to the US “first to invent” system to replace it with a “first inventor to file” system. Most patent offices in the world use the latter system and this is what you sometimes hear when “harmonization” is mentioned – changing to the more common patent standard. (Also in line with harmonization, both bills include language that prohibits using failure to disclose “Best Mode” as a basis to cancel/invalidate a patent or have it be unenforceable. Apparently one must still disclose the Best Mode but it is not clear what the consequences would be for withholding the secret ingredient…)

The other major discussion is about USPTO fee diversion – the USPTO brings in much more revenue that budgeted, and this surplus has been put into the General Fund. The Reform legislation attempts to increase funding for the USPTO by allowing it to use more of the revenue it generates. The purpose of changes related to funding is to increase the budget to help reduce the patent application backlog by examining patent application more expeditiously.

There are other proposals that would have varying impact on the planning and implementation of effective portfolio development and revenue-generation, but we’ll need details. Some proposals are largely symbolic, like the identification of a new class of applicant – the micro-entity. While the official fees for this class of applicant may be further reduced, it is the case that the official fees are rarely the major cost of drafting, prosecuting, and enforcing a patent.

What does all of this mean, practically? For many inventors and small businesses, I predict that a change to a first-inventor-to-file system will not have a large impact. Why? Because the current system in which a patent is awarded to the first inventor to invent required good record keeping legally sufficient evidence to convince a fact-finder that they were, in fact, the first to invent. Ideally this would mean diligent recordation of development, conception, and reduction to practice activities in a special inventor’s notebook and having the entries periodically witnessed by a non-inventor who reads and understands the entries.

(The following is an oversimplification – even so note what I say about archaic and complicated.) The way it plays out in real life is that two inventors each file an application claiming similar subject matter. When the USPTO discovers this, they look at the filing dates of the applications and impose various requirements and burdens on the parties. The inventor associated with the earlier filed application is the Senior Party and the other inventor of the other application is the Junior Party. The USPTO initiates a proceeding called an “interference” in which the priority is determined and the “winner” is awarded the patent. The Junior Party has the burden to prove that they invented before the Senior Party. This is one time when you’d like to have that inventor’s notebook and be able to show that it is credible evidence that you invented first. Most times the Junior Party fails its burden and the Senior Party is awarded the patent. Thus most of the times when there is interfering subject matter, the first inventor to file wins.

It should be mentioned that even in the world of routinely archaic and complicated language and proceedings, the interference is one of the most archaic and complicated (and therefore expensive) proceeding. The Reform language removes “all” of this and replaces the interference with a derivation proceeding (to make sure that an earlier filed application identifies an applicant who was, in fact, and inventor.) What is a derivation proceeding? We don’t know yet, but I suspect it will be a proceeding in which the later-filing inventor will need to show that they are an inventor and maybe that the “Senior” person had access and somehow “derived” the invention from the “Junior” inventor. It sure sounds like a good, well-maintained, inventor’s notebook would come in handy once again.

The “interim” conclusion is that increased funding (if it ends up actually increasing the effective USPTO budget) could help inventors and assignees obtain patents sooner, and for some that is a very good thing. In other respects we don’t see much that significantly benefits the solo inventor or the small business owner.

YPG

For many, such patents (i.e., software patents) are beyond terrible. However, few if any, define what they mean by a software patent. The USPTO does not issue patents in a separate category it identifies as software patents. The categores are utility, design, plant, and reissue patents.

A utility patent: Issued for the invention of a new and useful process, machine, manufacture, or composition of matter, or a new and useful improvement thereof, it generally permits its owner to exclude others from making, using, or selling the invention for a period of up to twenty years from the date of patent application filing ++, subject to the payment of maintenance fees. Approximately 90% of the patent documents issued by the PTO in recent years have been utility patents, also referred to as “patents for invention.”

Presumably people are referring to certain utility patents that include claims directed to subject matter which could be implemented by non-transitory program instructions executed by a processor of a computing system.

Whenever I review a patent that someone asserts is an “obvious” software patent, typically there is little to no review of the claim language. A title, or title plus the abstract, is often the totality of the review to establish what this horrible little patent protects. Typically these are broad characterizations of the invention and do not give more than a foreshadowing of the invention to come.

In such cases, to know what a patent really protects, I make a recommendation understood by tradition-steeped IT Professionals the world-around: RTFP – “Read the Full Patent”

YourPatentGuy