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.

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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.

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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.

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Why Software Patents Make Sense

Software is patentable subject matter in the United States. There are some restrictions, such as that the software must be embodied in a machine, but software inventions are regularly given patent protection. However, there is strong opposition to protecting software inventions, and many countries, particularly European Union nations, do not allow the patenting of software inventions.

The opposition to software patents is based on a number of good arguments including that patents stifle innovation and competition, that many over broad and obvious patents were granted, and that the United States Patent and Trademark Office (USPTO) doesn't have the necessary expertise to evaluate software inventions. There is some truth to these arguments, but protecting software innovation is more important than ever because so much economic growth and innovation is centered in software products.

It is true that software patents stifle innovation and competition. That is the objective of any patent, to give the inventor the right to exclude others from practicing her invention. All modern societies give these innovation-discouraging non-competitive rights to inventors for one reason - it encourages more innovation than it discourages.

Invention is a difficult, time-consuming, and expensive process. It is simply hard to get something new to work in a useful way. In contrast, copying an invention is easy, quick, and cheap. Without patents, there would be little incentive to innovate because copying is so much easier. We see this today in countries with weak patent protection - copying is far more popular than innovating.

However, bad patents can stifle innovation. A bad patent is generally over broad, protecting far more than the inventor invented. An over broad patent can stop all innovation in a large technology segment by giving one inventor all rights to a very general solution, even though the inventor never developed or even considered all of the solutions that are covered in her patent claims.

Unfortunately, there are a disproportionate number of overboard patents for software inventions. One reason for this is that so much of our software technology is of recent invention. We are close to the Big Bang of software innovation, so many core software concepts are still covered by patents. For example, the explosive growth of the internet is still within the twenty year term of a patent, so many basic software innovations like one-click ordering are protected by patents. This is similar to the early days of the automotive industry when patents covered most basic automotive technologies like steering wheels and drive trains.

As a result, programmers can infringe patents using relatively basic design principles. In contrast, the core innovations of older technologies such as electronic logic or engine design are not longer protected by patents, so basic design principles can be employed without violating patents.

Bad patents are often granted for very obvious inventions. Patents should be awarded for doing something new and non-obvious, and not for being the first to file an application for a predictable, obvious solution. Unfortunately, the USPTO had to meet a very high standard to show obviousness when many applications for software inventions were examined. As a result, patents were issued for some relatively obvious inventions. Since then the standards for showing obviousness have been relaxed, making it much harder to patent an obvious solution. Older patents can also be reexamined using the new obviousness standard, reducing the chances that patent holders will try to assert questionable patents.

Some bad patents were also issued because the USPTO simply wasn't staffed with examiners with the right expertise to evaluate the explosion of software applications. However, the USPTO has done a good job of adding and training examiners with software expertise. As a result, the examination of software applications has steadily improved, with fewer bad software patents being issued.

While much of the criticism of software patents is valid, protection for software inventions is increasingly important for innovation and economic growth. The factors that created the large number of innovation stifling bad software patents are diminishing as more basic software technology enters the public domain, changes in patent law reduce obvious patents, and the USPTO becomes adept at examining software inventions. The problems and abuses are being corrected.

At the same time the importance of software inventions to innovation and competitiveness is growing. Programmers are solving real problems with inventive, non-obvious software solutions. They should be encouraged by being allowed to patent their inventions. It would be wrong to deny protection for software inventions because they are inventions. And it would be foolish, because the creation of software is a vital economic activity where innovation should be encouraged and protected. Software patents are more important than ever because software innovation is more important than ever.

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8 Types of Patents

Is my idea patentable?

A lot of new inventors are doubtful that their idea is eligible for a patent. They shouldn't. Even the most unlikely of ideas pass through the patent office every day.

For example, Patent Number 5443036: Method of Exercising a Cat

This inventor patented, "A method for inducing cats to exercise consists of directing a beam of invisible light produced by a hand-held laser apparatus onto the floor or wall or other opaque surface in the vicinity of the cat, then moving the laser so as to cause the bright pattern of light to move in an irregular way fascinating to cats, and to any other animal with a chase instinct."

Basically, he patented pointing a laser beam at a wall for the amusement of his cat. Valid, groundbreaking and life-changing...not so much. Patentable nonetheless.

So what makes the difference? What kinds of ideas can be patented? And what can't?

Today, you'll learn the difference.

Patents - "Anything under the sun made by the hand of man..."

The general rule of patents is that they must be created by man. That's a pretty broad statement, so let's take a look at a short list with explanations.

1. Mechanical devices and articles of manufacture - The dictionary defines a mechanical device as "a mechanism consisting of a device that works on mechanical principles". Pretty creative, huh? Anyways, if you can make a machine that is new and useful, you can patent it.

2. Processes - A process is simply a way of doing things. If you can make a better process for doing something, you have a good candidate for a patent.

3. Chemical compositions - Many new drugs fall under this category. Arranging chemicals to solve problems and then patenting them is a multi-billion dollar industry.

4. Computer programs - Amazon.com practically cornered the market when it patented the 1-Click ordering system. Since it owns the patent, no other website can use their proprietary system without paying a royalty and obtaining permission first.

5. Genetic organisms - This is a neat one and still up for debate in this new era of uncoding DNA.

6. Improvements - Do you have to have a brand new idea to get a patent? If not, do not despair. The vast majority of patents are for existing ideas that are improved.

7. Designs (Design Patent - surface ornamentation) - Keeping with the improvement theme, you don't actually have to make something better to get a patent. You just have to make it look different.

8. Asexually reproduced plants (Plant Patent) - For the botanist/inventor in you.

That's about it. That seems like it covers everything, but there are a few exceptions. For example you can't patent:

-- Laws of nature (E=MC2)

-- Physical phenomena (gravity)

-- Abstract ideas

-- Inventions which are not useful or not operable (such as perpetual motion machines)

And of course if someone else owns your idea already, you can't patent it (that's why it's always a good idea to do a patent search before undertaking the journey to get a patent).

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Patent Law Philosophy

Running a think tank is a very interesting profession and it's something I do in my retirement. One thing I have noticed about entrepreneurs with inventions, innovations, ideas, and new concepts is they often don't want to talk about them, as they are afraid someone else might steal their idea. I guess I can understand that, as I have a ton of new ideas, and original thoughts every month. Still, it should be known that just because you have an idea doesn't mean someone else hasn't already had that same idea, and that someone else doesn't already have a patent on it.

Let's talk a little bit about patent philosophy, and where I'm coming from on my comments here; you see, generally an inventor will ask me to sign a non-compete or nondisclosure agreement on their idea, however over the years I've stopped doing this for a couple of reasons. Generally, I sign their nondisclosure agreement, only to find out their idea is something I've already had, or considered decades ago, and have probably even written an article on it, or their idea and innovation has already been patented, often by more than one group, company, or individual inventor.

In other words, they had me sign a nondisclosure agreement before they even did a patent search, or even pulled up Google Patents online search feature to see if their idea had already been taken. The other day an inventor came to me and said they had this great idea, and he told me it was wonderful, and all that jazz, and it would revolutionize five different industries. So finally I gave in and I agreed to a nondisclosure agreement in an e-mail. Then when they told me of their idea, I just shook my head for them wasting my time.

You see, I went to Google Patent search, and I pulled up 15 patents which were very similar to their idea, and then e-mailed them all the links. And then they told me; "oh well, I should've known better," and I'd say to that, yes they should have, or they should've looked first, before wasting anyone else's time. One thing I find is that we have a problem with communication when everyone is running around trying to keep a secret, especially when - it's not even a secret at all. Further, most of these inventors are never going to do anything with their idea anyway, and even if they were, they don't even know how to get started.

Lastly, a good number of these inventors and innovators are completely broke, they sit around thinking all day, and they've never done anything or collected enough money to make good on any of their ideas or concepts. It's hard to say who is to blame. Is it the patent office for making things too difficult, although with Google patent search, that seems to be an old problem which is really no longer relevant. Maybe the problem is that too many patents are being awarded for ideas, rather than prototypes.

Indeed, I ask that you please consider all this and think on it, and realize this is just patent law philosophy 101. Yes, you should probably have an inventor's book, and write in it appropriately with dates, and no spaces between the pages. And if you find you have a great invention which no one has ever thought of before, you should probably file for a patent, and get the ball rolling, and have people sign nondisclosure agreements. But do your homework, don't waste other people's time, or expect them to do your homework for you. And if you are really serious, contact a decent patent attorney and do it right. I hope you will please consider all this.

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Golfer Reveals 2 Quick Patent Tips for Inventors

If you can't sell your idea, then there's no reason in getting it protected with a patent, right?

Therefore, before you spend a lot of time, money and effort going through the patent process...you should consider how marketable your product is. How willing people are to buy your idea from you.

The good news is there is a simple two-step formula for maximizing the marketability (and therefore profitability) of your idea.

This formula saves time...and...lessens your initial investment.

Here's a quick story that goes a long way to illustrate this simple formula for uncovering patentable and profitable niches in the market.

Patent Lessons from a Golfer

I just finished reading a short article on South Carolina golfer and inventor Michael Owens. Owens has a patent pending on a device that securely holds personal golf GPS devices and laser range-finders in place on golf carts.

The device that holds the GPS on golf carts only took him several months to create, test and refine. With an outstanding order of 1,200 units at $29.95 each, Owens will just about cover his initial $45,000 investment.

Less than a year and already his idea is paying off. In terms of bringing an idea to market, that's almost lightening speed!

The Easier Path to Patents

The inventor trick Owens used to quickly create a profitable invention is simply finding a better way to use an already wildly successful product.

Here's how he did it...

First, Owens found a product that people are already using.

If you are a golfer, you already know GPS units and laser range-finders are all the rage on the links. By linking his product to something that people use and are familiar with, Owens greatly increased his chances of patenting a marketable product.

Second, find a way to make that product easier to use.

In this case, Owen saw his friends fumbling with the GPS units in their pockets, in cart cup-holders, seats or open spaces in the dashboard area. By creating a sturdy magnet-based GPS holder - that also didn't need to be removed constantly - Owens took a great product and made it better.

And if his patent application goes through, he will have the right to prevent anyone else from making, using, or selling his idea. A legal monopoly that he can charge a royalty percentage or outright sell to a bigger company.

Keep these two points in mind next time you are working on your next big idea.

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Hiring a Provisional Patent

A provisional lawyer is sort of like acquiring a placeholder. The provisional lawyer is definitely an initial lawyer, that's much like a normal lawyer and it is susceptible to most violation laws and regulations,but it won't are a typical patent with the patent privileges before the applicant takes additional steps. The U.S. Patent Office has high rules regarding provisional patents and will not give a provisional patent unless of course it meets U.S. Patent Office needs.

A provisional lawyer isn't the same factor as pending, even though it is comparable and once more falls under most of the same lawyer violation laws and regulations. lawyers recommend declaring a provisional lawyer first oftentimes when preferred includes a high probability of becoming another person's excellent idea. It's all dependent on timing with lots of lawyers.

A lawyer can completely explain all of the particulars from a provisional patent along with a regular patent. A lawyer may also see whether a patent applicant is much better offered declaring a provisional lawter first. It's not forever in someone's welfare to file for any provisional patent using the U.S. Patent Office. In instances where it's unclear what's going to best serve the inventor, a patent lawyer is extremely suggested.

A provisional lawyer is just great for twelve months following the filing date, and perhaps can really become harmful towards the inventor. You will find laws and regulations regarding patent violation that are quite complicated and need a patent lawyer to interpret them, that need a patent application to provide a concept that's completely novel and original.

Not every nations stick to the same violation laws and regulations along with a provisional lawyer could possibly permit the leakage of knowledge far too early for novel ideas which are destined for extreme recognition. Again, comprehending the how to go about patent violation law requires a well-established patent lawyer and should not be second suspected by a person inventor who may accidentally be jeopardizing their bread and butter with different misinterpretation of patent violation law.

A patent lawyer can explain the variance in the significance of filing dates for any provisional lawyer which could play a vital role within the effective transition from the provisional lawyer to some non-provisional lawyer. An easy lapse in timing can definitely produce a loss for that patent filer. The U.S. Patent Office governs itself with a very strict group of rules which will probably frustrate could be very first time patent holder.

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Key Software Patent Details

Software inventions are no harder to patent then other types of innovations. However, many software patents are often only allowed after significantly narrowing the scope of the claims, resulting in patents that offer much less protection and that may be easily engineered around. This is not because software inventions are less patentable. Instead narrow software patent claims often result from a lack of structural detail in the software patent application.

Just as patent applications for mechanical inventions that arrange well-known elements such as supports or tubes in a unique structure are regularly allowed, software inventions that organize basic software elements in unique structures are also patentable. However, the key inventive structural details of innovation must be carefully described and claimed in order to secure broad patent coverage. These key inventive structural details include algorithm descriptions, data structure descriptions, and interface descriptions.

Algorithms and rule descriptions are often critical in distinguishing the structure of a software invention. The description of an algorithm or rule should include multiple levels of detail with multiple embodiments of implementation. For example, an algorithm that determines when to perform a key function should include a high level written description of the conditions for performance, two or more written refinements that further modify the conditions of performance, and several embodiments of equations or logical statements that should how the algorithm can be explicitly implemented.

Data structure descriptions must include much more information than simply that key data is stored. The details of the data structure should include structural details such as specific data fields and a description of the data stored in those fields, relationship details between data values that are stored in the data structure, and functional details of how the data is employed. For example, a description may include the details of each data field, algorithms for deriving one data value from other values, and the algorithms that employ the data values.

Interface descriptions may be the most important inventive elements to protect. Unlike algorithms and data structures, interfaces with software and/or hardware elements are much more easily observed for evidence of infringement. One should carefully describe and claim the unique data elements and functions employed by an interface. For example, a software interface to a database engine should describe the key variables that are passed through the interface, the functional results of the variables, and the order and conditions of key handshaking exchanges.

By describing the details of algorithms, data structures, and interfaces, a software patent application will typically include enough information to broadly claim the invention while distinguishing it from dissimilar innovations. As a result, your software innovation and competitive advantage can be protected from copying.

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How CyberSource May Affect the Patentability of Software

Software inventions have been able to receive broad protection in the United States. However, in CyberSource v. Retail Decisions, the Court of Appeals for the Federal Circuit upheld a lower court ruling that a Beauregard claim was not patentable subject matter. Is the CyberSource ruling the beginning of a change in patent law, or an outlier that will eventually be corrected?

In the United States, "any new and useful process, machine, manufacture, or composition of matter..." is patentable. Software executing on a general purpose computer has been considered to create a machine that is patentable. See In re Alappat, 33 F.3d 1526, 1545 (Fed. Cir. 1994). The Federal Circuit established a machine or transformation test to determine if an invention was patentable, and the Supreme Court slightly broadened the scope of software patentability by holding that the machine or transformation test was a useful clue in determining patentability, and not the only test.

The CyberSource decision suggests that reciting the use of a computer to execute an algorithm may not be enough to create a machine. In particular, the court cited a recent Federal Circuit decision that a machine "must play a significant part in permitting the claimed method to be performed." SiRF Tech., Inc. v. Int'l Trade Comm'n, 601 F.3d 1319, 1333 (Fed. Cir. 2010). The ruling also suggests that manipulating data may not be enough to be considered a transformation.

The overall effect of the ruling would seem to move US law regarding software patents much closer to European law, where a software invention must solve a technical (physical) problem to be patentable, and where algorithms that can run on a general purpose computer are not patentable. One wonders if this change is because of the sharp increase in software patent infringement suits. The US patent system has come under much public criticism because of this increase in litigation. A change in the requirements for patenting software could invalidate the patents in many of these suits, while still leaving a way to protect software inventions. However it is difficult to determine if this ruling is merely an outlier or a new direction in US patent law.

Major judicial changes in patent law are often made en banc, where a majority of the federal circuit judges hear the case instead of the usual three judge panel. An en banc hearing would clarify whether the CyberSource ruling was really the new standard for software inventions.

Of course, until there is an en banc decision, inventors will still be filing patent applications to protect their software inventions. The ruling suggests a number of ways that claims for software inventions can be strengthened. Until the law regarding protecting software is clarified, these techniques should be employed to assure that inventions can still be protected if the law changes.

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Using Inducement of Infringement to Protect Patent Rights

A patent only protects an invention within the jurisdiction that issued it. So a US patent can only be enforced within the United States. This simple fact has led many companies to try to circumvent patent protection by designing and producing a product that would infringe on a US patent in another jurisdiction, and then using a third-party to distribute the product in the United States.

By designing and manufacturing offshore in a jurisdiction where the invention is not patented, a company is not directly infringing the US patent. Only the third-party distributing the product is liable for direct infringement. However, the third-party is often a shell with no assets, a relatively unsophisticated middleman, or an important customer that the holder of the infringed patent is unlikely to sue.

Inducement of infringement provides a way to hold a company accountable for activities that are calculated to infringe a valid patent. In simple terms, the patent holder charges the company with getting someone else to infringe. This is often critical in joining the real perpetrator of the infringement to a lawsuit. The theory provides a cause of action against a company that has not directly infringed a patent, but enabled the third-party to infringe.

However, the legal standard for inducement of infringement is that the perpetrator had knowledge of the infringement. Unfortunately, there is rarely a smoking gun showing knowledge of infringement. It is very difficult to prove that someone knew of a patent. And the most notorious manufacturers of knock-off products are very careful to make sure there is no record of knowledge of a patent, or at least no evidence that is discoverable by a US court.

As a result, the Supreme Court has established a "Willful Blindness" test to determine if an alleged inducer had knowledge of patent infringement. The test is based on a the willful blindness test that of criminal law and attempts to determine if the alleged inducer should have had knowledge of the infringed patent.

Under the Willful Blindness test, the alleged inducer is demonstrated to have had knowledge of the infringement if he believed that a fact exists, like the existence of a patent, and then takes deliberate actions to avoid learning that fact. So knowledge of the infringement, and inducement, can be shown by demonstrating that the inducer took steps to avoid learning of the existence of a patent.

In the case that led to the establishment of the willful blindness test, the alleged inducer copied a competitor's product, but did not tell an attorney performing a freedom of operation search that the product was copied. Freedom of operation searches are frequently performed to assure that a product is not infringing patents. The Court found that the failure to tell the attorney that the product was copied, along with other actions, were actions taken to avoid learning of the infringed patent and so found inducement.

Inducement is important cause of action for going after the principle perpetrators of infringing products, particularly blatant knockoffs. Companies wishing to avoid inducement actions should structure freedom of operation searches to show that likely infringement was considered.

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