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Thursday, December 6, 2012

Academia is Out of Control on Intellectual Property - Acting Like Corporate Research Departments

First off, I'd like to say that I am all for fairness in patent law, and believe the process created can work. Still, I find it often works against the innovator, inventor, and even the student at the local university, which I'd like to get to in a moment as part of my topic and case study here today. You see, we have a problem when the inventor's dreams cannot be fulfilled because they end up in court, with huge legal bills, while someone else, some company, corporation, government, or university runs off with their proceeds and patent rights.

There was an interesting article in the Seattle Times recently titled; "Young Inventors Prompt Colleges to Revamp Rules" by Alan Scherzagier on January 24, 2011 (Associated Press Article) - Tagline; "Tony Brown didn't set out to overhaul his college's policies on intellectual property. He just wanted an easier way of tracking local apartment rentals on his iPhone."

Apparently, the school tried to make them give up 25% of the equity in their innovation and some two-thirds of their royalties to the school, because they thought about the idea while in class and created the Apple App, which now has a quarter million downloads. Ouch!

The article stated; "If the invention came from a school contest, extracurricular club or individual initiative, the university keeps its hands off. If the student invention came about under a professor's supervision, using school resources or grant money, then the university can assert an ownership right - just as it does for faculty researchers."

Now then, is it just me, or do you have a problem with this too? First, the student pays "excessive" costs to attend the school, and the professor cannot answer his questions, but the undeterred student comes up with an idea, which has nothing to do with the class, and takes advantage of the idea and goes into the "real world" and makes it economically viable, something the professor can't - after all, that's generally why they teach.

The Universities practically use these kids for free research labor, charge them for the privilege (Tom Sawyer comes to mind) and then when the student is in a regular classroom, unconnected to actual research he has an idea, so the University tries to steal his proceeds? This is crazy, as the student didn't sign over his mental brain power to the school, or is that what the University thinks? If so, they don't deserve the students paying those huge tuition bills do they?

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Tips on Patent Applications for Computer Readable Media

Many patent applications have been filed aimed at protecting inventions involving computers. Often the patent claims describe using disc drives or other media for storing data. A common name for data storage devices (such as hard disks, floppy disks, USB drive, DVD, CD, media cards, and so on) has been "computer readable media."

In the past, claims directed to bare instructions, like software code, had been considered not patentable. In response, patent attorneys came up with "Beauregard claims" that add "computer readable media" to the computer instructions to make the claim patentable. Today, such "Beauregard" claims are not common as markets are now directed more towards network-transfer distribution (i.e., Internet downloads). So patent applicants look towards drafting claims that cover operation wherein devices access information ('instructions") from physical media and online.

This term seems broad enough to cover every type of data storage device. However, one thing to keep in mind in writing patent claims is that one wants the claim scope to be broad enough to cover everything under the sun while being narrow enough to not be already present in the prior art.

For "computer readable media" another concern is not just prior art, but patentability under the law. The United States Patent and Trademark Office (USPTO) interprets the term, "computer readable media" more broadly than just data storage devices. The USPTO interprets "computer readable media" to include signals in addition to data storage devices. The USPTO's understanding of the "ordinary and customary meaning of 'computer readable media'" to include non-transitory tangible media and transitory propagating signals. The USPTO considers data storage devices to be "non-transitory tangible media" which is only one part of "computer readable media." Note that signals, such as radio signals, microwave signals, and such can carry data that is "computer readable."

Thus, if the patent specification does not exclude signals from the term, "computer readable media," then the USPTO claim is deemed not patentable as transitory embodiments are not patentable under 35 U.S.C. Section 101. See In re Nuijiten, 500 F.3d 1346, 1356-57 (Fed. Cir. 2007). Often, such a problem may be repaired by an amendment that does not add new matter. Similar problems happen for claims to "multi-cellular organisms" as that term includes human beings, which are not (yet) patentable.

This issue is not much of a problem in the European Patent Office when using a claim in a form such as "a computer program for instructing a computer to perform the method of [an allowable method claim]" and no specific type of media needs to be referenced.

US Patent Applications - New US Government Strategy

For an inventor outside of the United States of America, a US patent application can be cost-effectively filed either before the 12 month deadline of their domestic patent application, for example, a UK patent application, or within 30 months of the priority date of their PCT worldwide patent application.

However, the U.S Patent and Trademark Office ("USPTO") is currently estimated to have a backlog of around 700,000 patent applications which are waiting for examination. With this in mind, an applicant is presently having to wait nearly three years from filing to receive grant of their patent.

In comparison to a UK patent application which can take up to four and a half years from filing to grant and to a European patent application which can take four or more years from filing to grant, this is still relatively quick.

However, unlike the UK and Europe patent procedures, there is no specific request available for expedited examination, unless an applicant is over a certain age or the invention relates to a 'green' technology. In the UK, a an applicant can request accelerated examination if a licence agreement is available, or if infringement is of a concern. In Europe, the PACE request can be used to accelerate the European application process without requiring any specific reason.

Therefore, in a bid to reduce the waiting time that applicants of US patent applications face, the White House has released its "Strategy for American Innovation".

The strategy consists of a Three-Track initiative. In Track 1, an applicant can choose to pay a premium for accelerated examination, enabling their patent to issue 12 months from its filing date.

In Track 2, their patent will be examined as per the current procedure.

Track 3, which is the slowest and least expensive, delays examination by up to 30 months more than the current procedure.

Overall, the Strategy aims to reduce the backlog of patent applications and the average delay of getting a patent to grant to 20 months by 2015.

The Strategy for American Innovation system will allow companies to prioritise their applications, with those considered most valuable to have the potential to grant most quickly. Patent portfolios can be built up at a faster rate and the Strategy for American Innovation gives more flexibility in controlling the costs involved with obtaining a granted US patent.

The money raised from those paying the premium associated with Track 1 will be used by the USPTO to improve and upgrade their in-house systems, and to make it possible to carry out this fast-track examination of patents. The USPTO is also planning to employ an extra one thousand patent examiners over the next two years, and the Strategy also includes a post-grant review procedure to improve the quality of the patents.

Trademark Protection

Although the importance of protecting your invention through the patent process has been stressed time after time here at Idea Marketplace the ultimate goal of many inventors is to eventually market their patented invention, and this requires a general understanding of trademark law. Indeed, the protection of an established trademark to help market your invention can be as important as the initial step of protecting your invention via a patent.

A trademark is any identifying features used to designate the source of a product or service. A trademark can be a name, a logo, a design, or anything else used by consumers to identify a particular product.

Trademarks have their origin in medieval England, where craftsmen would stamp their mark on their craft to identify their goods to consumers. Their stamp stood for the quality that consumers expected from goods bearing that particular mark. Their reputation depended on the integrity of the mark. The English Common Law protected the craftsmen from disreputable merchants who might have tried to confuse consumers by stamping the craftsman's mark on their own products.

Today, trademarks are also used to distinguish the source of goods. When consumers buy a package of film with a label that says "Kodak" they know that the film will be of the same quality as the film they purchased previously which had the "Kodak" label. Trademarks protect consumer expectations.

One develops trademark rights in a distinctive name by using that name in conjunction with a good or service. When you come up with a distinctive name for a product and then introduce it into commerce, you develop trademark rights in that name. However, the name will not receive protection if it is generic or descriptive. For example, while the names "Vaseline" and "Kleenex" were once protected trademarks, they have become such generic terms for "petroleum jelly" and "tissues" that they are no longer protectable trademarks. Furthermore, a name will not receive protection if it is merely descriptive, such as the name "red licorice".

As you can see, the broadest protection can be obtained by staying away from words which might be deemed descriptive or generic, and by instead trying to use words which are "arbitrary" or "coined". The more distinctive the name, the greater the protection that trademark is given. For example, if you operate a photocopy store called "Impact Copiers", this is likely to receive broad trademark protection because it is "arbitrary" (the word "impact" generally has nothing to do with the photocopying business). If you were to call your copy shop "Gnarf Copiers" this would also likely receive the broadest protection since it is a "coined" term (the word "Gnarf" was made up by you and is not a word in common usage).

By simply using a permissible type of name in business or trade, you will automatically develop state "common law" trademark rights. Even though common law trademark rights come into existence simply by using the mark in commerce, you might also wish to register your trademark in the United States Patent and Trademark Office (PTO). Registering a trademark gives it nationwide effect. While your "common law" trademark rights will prevent your competitors from using your trademark in geographical areas where you have been selling your products bearing the mark, a registered trademark will provide protection across the entire United States.

A trademark qualifies to be registered federally in the PTO as long as the mark is used across state lines. A great advantage of going this route rather then relying simply on state common law protection is that you can use the federal courts to enforce your trademark. If a mark is properly registered, it creates a presumption in court that the registered owner has the exclusive right to use that mark. This will make it much easier for the holder of a federally registered trademark to prevail in the event that he or she sues or is sued for trademark infringement. Also, you can record your registered trademark with the U.S. Customs Agency, and they will stop any unauthorized products bearing your trademark from entering the United States.

For a new business, it is important to perform a trademark search of your intended business and product names. First, it will help determine if your name is protectable. Second, it will help determine if your intended business or product name might infringe someone else's trademark. You should not, however, that even if the mark is not identical to another registered mark, there might still be infringement if your mark creates a "likelihood of confusion" with the other mark. If you conduct your trademark search at an early point, you might avoid further investment in a problematic trade name, and avoid a potentially costly legal problem.

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Software Patents in Europe and China

Software inventions are patentable in the United States, and in many other key jurisdictions. However, not all other countries allow broad protection for software innovation. Two of the more important patent offices, the European Patent Office (EPO) and the Chinese State Intellectual Property Office (SIPO) restrict how software inventions may be protected. However, many types of software can still be protected in China and Europe.

Europe The EPO precludes patenting "(a) discoveries, scientific theories and mathematical methods; (b) aesthetic cre¬ations; (c) schemes, rules and methods for performing mental acts, playing games or doing business; and (d) programs for com¬puters, and presentations of information." However, there is an exception. Article 52(2) excludes "the patentability of the subject-matter or activities referred to therein only to the extent to which a European patent application or European patent relates to such subject-matter or activities as such." This clause creates an exception for certain kinds of software innovations to be patentable subject matter at the EPO.

The EPO's patentable subject matter includes the technical or hardware related elements of an invention, as opposed to features that are merely algorithms. This is not an obvious distinction. In the United States, algorithmic elements can be protected, if claimed correctly. In Europe, algorithms, such as an accounting program, that are executed on a general purpose computer are not patentable. However, software that does something to hardware is likely to be patentable. For example, software that controls communications between machines is more likely to be patentable subject matter. Similarly, software that accelerates graphic display functions is probably patentable.

EPO patent applications are also structured differently from United States patent applications. The application should follow a problem/solution format. A technical problem is described and a solution, the invention, is then presented. This is in sharp contrast to US applications where the problem description is often minimized so that it is not used against the applicant as prior art.

The claimed embodiments of the EPO application are directed to the problem. EPO software claims are organized as two part claims, with a preamble that lists elements that are known in the art followed by a second part with the novel inventive elements.

China In China, software, algorithms or computer games are not per se patentable subject matter. Software inventions must solve a technical problem and have physical features. So like in Europe, your clever accounting or stock analysis algorithms are not patentable subject matter. However, software with physical features such as accelerating data interchange or storing data more efficiently solve a technical problem, and so are likely to be patentable subject matter.

Even though Europe and China do not support the protection of software inventions to the same extent as the United States, you can protect many types of software innovations in those jurisdictions.

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Patent Translation Services: The Need For Professional Patent Translators

It's arguable that patent translation is even more complicated and precise than other more general legal translation services due to the complexity of the patent process. Let's look at some of those complications right now.

The first issue that contributes to the complexity of patent translation is the fact that patent laws tend to be considerably different from one country to the next. You cannot assume that the patent protections that defend your product in your country are going to hold any weight in another country. This is important to understand from both perspectives. On the one hand you want to make sure that your products are thoroughly protected when they move into the international market, and on the other hand you want to make sure that you are infringing on any similar company's protections when you begin to sell your product in their country.

This precision is necessary when you're looking to avoid lawsuits but it's especially important if you find yourself being sued by an overseas country. While the threat of hypothetical legal action should be concerning enough to make sure you find a great patent translator, the reality of being served with a lawsuit forces the issue. Patent laws are so precise and so particularly from country to country that even a single mistranslated word or ignorance of a unique patent institution can lead to disastrous legal and financial consequences.

Like in general law translation a good patent translator not only needs fluency in both relevant languages but they need fluency in both country's individual legal systems. It's not uncommon that one country will have entirely different procedures, systems, and legal structures surrounding their patent system compared to another. A good patent translation provider will be able to not only communicate clearly and precisely between the two languages, but they will in essence have to translate the entire legal structure of one country to the next.

Not only are the structures and languages different from one patent system to another but the phrasing of legal statements can be very different between countries. Two countries can have very similar legal structures and processes surrounding their patent systems and they can even speak the same language, but the phrasing of words and concepts can be very different and the same phrasing in one country's system can mean something completely different in the others. This issue is generally worse, the more different the two languages and cultures in question are. Thus, for Chinese patent translation from English, for example, the difficulties are particularly acute.

Patent translation is a complicated process, which is why it's so important that you hire the best translator possible. While you're likely to find a great general text translator from individuals who do the work on the side, you really need the assurance and liability of a patent translation firm or highly experienced and regarded translator.