The Weird World of Software Startups: Where Everything’s Made Up and the Patents Don’t Matter

By Evan Jensen Today’s high tech industry is characterized by the extremes of modern business. Massive tech giants like Google and Microsoft sit atop the industry, with a menagerie of startups popping up all over the place trying to break into the market. For large companies patents are akin to nuclear weapons. For a large company like Apple or Samsung the strategic usefulness of the patent tremendously outweighs the cost of the application, and the large company can file for thousands of patents. A large patent portfolio opens up a world of business and litigation options because of the large scale of the company’s operations and the long time scale that the large company operates within. But for fledgling startups, like insects living in their own microcosm while giants stride by, patents don’t necessarily serve the same purposes. In the world of tech startups patents behave very differently.

The Patent Wars

By Evan Jensen Patents protect the lifeblood of tech companies- the technology that powers their products. Large tech companies with complex products need many patents in order to protect their technology. But huge patent accumulation for defensive purposes leads to a nasty impasse where even if there were legitimate infringement, it would be irrational to sue because it is just too difficult and dangerous. Large companies can use patents as weapons to attack their competitors. And when those companies own a massive stockpile of patents that cover critical technology in consumer products, a patent fight can become a knock-down, drag-out fight where the winner takes home all the marbles. In some respects a large patent stockpile resembles a nuclear weapon stockpile.

Building on Abstract Ideas: Alice v CLS Bank

By Evan Jensen In its much-anticipated Alice v CLS Bank decision the Supreme Court held that Alice’s software patent was patent-ineligible subject matter under §101. But in its decision the Supreme Court seems to have blended a §101 analysis with a §103 analysis. The Court seems to infer that well-known ideas, such as methods that are fundamental to modern economy, are abstract and therefore patent-ineligible under §101. There is no debate that abstract ideas are not patentable subject matter. No one may claim exclusive rights to the idea of addition, or of binary-decimal conversion, or any other generic abstract mathematical or conceptual idea. To allow a patent on an abstract idea would preempt everyone else from using that idea, greatly discouraging innovation, which is contrary to the primary goals of the patent system. The issue is which software claims, or whether software claims in general, are made patent-ineligible by the Alice decision.

The Difficulties Dealing with Nanotechnology in the World of Patentable Technologies

By Afshein “Ash” Ghezelbash Among the emerging technologies that affect our daily functions, nanotechnology is at the forefront of making a huge impact in our society. Breakthroughs in nanotechnology create new materials that are more robust, lighter and thinner than existing ones, which may be of great interest in the fields of aircraft and space technology, construction, clothing, and biotechnologies. But what is nanotechnology? Nanotechnology is the creation of machines that operate at a miniscule scale, the ‘nanoscale,’ approximately between 1 and 100 nanometers, or 1 to 100 billionths of a meter. Nanotechnology is applied to a variety of different products. What the future holds is limitless. Initially nanotechnology was used for medical purposes to prevent the growth of bacteria, germs, and fungi especially on surgical tools. Additionally, nanotechnology could potentially hold the key to future heart attack and cancer treatment by repairing or reconstructing new tissues in the human body.

Revolutionizing Manufacturing; the Law and 3D Printing

By Afshein “Ash” Ghezelbash The revolution in manufacturing is here. Undoubtedly, 3D printing is fast, cheap, and will revolutionize the way we manufacture objects. In essence, 3D printing is a process in which raw material is layered into three-dimensional shapes. Common applications include toys, footwear, jewelry, kitchenware, architecture, engineering and construction, automotive, aerospace, dental and medical devices. Even human organs today are being constructed from scratch using 3D printers. But this is just the beginning of how 3D printing can change the way we conduct business. The technology is available, but companies and organizations around the world have yet to discover the full potential of 3D printing. With that said, the question for future users of 3D printing remains the same: who can regulate what should and should not be printed?

China and its Move to Become an IP Powerhouse

By Afshein “Ash” Ghezelbash Over the past few years, China’s patent and copyright frameworks are starting to change. Historically, China does not have a strong reputation among other innovative nations with regard to intellectual property (IP) rights. But recently, China’s approach towards IP rights is seeing a transformation. China is projected to rank among the top three countries in the world in terms of annual patents for inventions. Most notably, China has almost doubled the amount of patent applications overseas, many of which are to be examined by the United States Patent and Trademark Offices (USPTO). The Chinese government has made substantial changes in enforcing patent laws in the last decade. Because of these improvements, and because businesses are always seeking out to get the best protection for their intellectual property, U.S. companies are now seeking protection on their patents in China through China’s State Intellectual Property Office (SIPO).

The Wild West of gTLDs and Trademarks

By Evan Jensen Generic top-level domains (gTLDs) are a new and soon-to-be-huge feature of the internet. New websites using a wide variety of newly created domain names will soon be springing up like weeds. Owners of brands and trademarks need to be aware of the threats, and of their options and the tools that are available to protect their intellectual property on the web. This huge expansion of internet real estate also brings a new wave of speculators and cybersquatters. New gTLDs open up a world of possibilities for speculators and cybersquatters to claim popular words and marks for their own profit. Trademark holders need to be proactive in order to protect their marks from being exploited by vultures on the web by taking advantage of ICANN’s new trademark protections, including legal rights objections to gTLD’s and the newly-created Trademark Clearinghouse.

Patent and Trademark Office Publishes Final Rules for Derivation Proceedings

By Charles Pierce On September 10, The Patent and Trademark Office published finals rules designed to ensure that a person applying for a patent is the true inventor through a new trial proceeding, the derivation proceeding.  An applicant who is not first to file (the petitioner) will be able to petition for a derivation proceeding and attempt to show that  another applicant’s (the respondent) claimed invention was derived from the petitioner’s invention.  Derivation proceedings will take place before the Patent Trial and Appeal Board. The petition must show by substantial evidence that the petitioner’s application has at least one claim which is the same or substantially similar to the respondent’s claimed invention and demonstrate that the respondent’s claimed invention was derived from the petitioner’s invention.  The petitioner must also show, for each of his claims, why the respondent’s claimed invention is substantially similar, and identify how the claim should be construed.[1]  Such a petition must be filed within one year of

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Update on Implementation of American Invents Act Effective As of September 16, 2012

By Dennis Clarke and James McEwen On September 16, 2011, the “Leahy-Smith America Invents Act” (AIA) was signed into law. The AIA makes the most substantial changes in U.S. patent law in decades and sets various dates on which these changes are to take effect. The most profound of those changes is the switch to a first-inventor-to-file system, in place of the current first-to-invent practice in the U.S. This change takes effect only for applications originally filed on or after March 16, 2013. However, on September 16. 2012, other major changes will take effect, including the possibility of requesting inter partes review and other post-grant trial procedures before the newly renamed “Patent Trial and Appeal BoarcL” This paper will predominantly relate to the new requirements relating to declarations and assignments and other miscellaneous provisions that have an effective date of September 16, 2012. The new trial proceedings are discussed briefly hereinbelow.