David Kappos in Detroit Free Press

May 12th, 2014

david-kappos1

The IPBiz.blogspot.com site noted that David Kappos has an article in today’s Detroit Free Press.  I thought Mr. Kappos’ article might interest readers; so, here is the link: [Link].

Tick tock

May 1st, 2014

President Barack Obama points out several patent models while meeting with the 2013 American Nobel Laureates and their spouses in the Oval Office, Nov. 19, 2013.

President Barack Obama points out several patent models while meeting with the 2013 American Nobel Laureates and their spouses in the Oval Office, Nov. 19, 2013.

Hard to believe that the Whitehouse.gov site celebrated this photo as the “Photo of the Day” back on November 19, 2013. That date was roughly a year after David Kappos announced he would be stepping down from being the Director of the USPTO and no nominee to replace him had been tendered by the Obama administration. Fast forward to today and still no nominee. Perhaps the USPTO should request that the Whitehouse return those patent models.

Are you up to date?

April 29th, 2014

Over the past few years, I have been writing the intellectual property chapter for the Colorado Bar Association’s book Annual Survey of Colorado Law.  While the book focuses on Colorado law, the intellectual property chapter tends to be dominated by federal developments.  This year’s publication is now available for download (for a nominal fee) in its entirety or by individual chapter from the CBA-CLE website: [Link].

For extra credit, how many birds can you find in the picture?

Tang vs. Bourbon

April 24th, 2014

There was a humorous moment recently during oral argument at the Federal Circuit when Judge Plager suggested that the advocate for the appellant might want to replace Tang with bourbon in the analogy being posited: [Listen].

Judge Plager speaking recently at Indiana University School of Law where he was dean from 1977-84

Judge Plager speaking recently at Indiana University School of Law, where he was Dean from 1977-84

To listen to some other humorous moments at the Federal Circuit, click on the “Humorous” category link.

Reply Brief in Limelight v. Akamai

April 23rd, 2014

Limelight has filed its Reply Brief in the Supreme Court case of Limelight v. Akamai.  This case deals with the issue of divided infringement.  The oral argument is slated for next Wednesday.

You can read Limelight’s Reply Brief [here].

MPEP Ninth Edition

April 17th, 2014

The US Patent and Trademark Office released the ninth edition of the MPEP in March.  A summary by the PTO of the changes is available here: [Summary].  The searchable version of the MPEP is available here: [Searchable MPEP].

Submarine Patents

April 12th, 2014

I was on vacation last week doing some scuba diving in the Caribbean.  But, I took some time off to try and better understand the phenomenon of “submarine patents.”  This little mini-submersible takes people down to a depth of 1,000 feet.

pict00061

Oral argument in Alice v. CLS Bank

April 12th, 2014

The Supreme Court heard oral argument in the case of Alice v. CLS Bank on March 31st.

You can download/listen to the entire oral argument here: [Listen].

The transcript of the oral argument is available here:  [Transcript].

The briefs are available here: [Briefs].

You can listen to the various portions of the oral argument here:

  • ORAL ARGUMENT OF CARTER G. PHILLIPS, ESQ. on behalf of the Petitioners:  [Listen]
  • ORAL ARGUMENT OF MARK A. PERRY, ESQ. on behalf of the    Respondents:  [Listen]
  • ORAL ARGUMENT OF DONALD B. VERRILLI, JR., ESQ. on behalf of the United States, as amicus curiae, supporting Respondents:  [Listen]
  • REBUTTAL ARGUMENT OF CARTER G. PHILLIPS, ESQ. on behalf of the Petitioners:  [Listen].

For reference, one of the claims at issue is claim 26 from US Patent 7,725,375:

26. A data processing system to enable the exchange of an obligation between parties, the system comprising:

a communications controller,

a first party device, coupled to said communications controller,

a data storage unit having stored therein

(a) information about a first account for a first party, independent from a second account maintained by a first exchange institution, and

(b) information about a third account for a second party, independent from a fourth account maintained by a second exchange institution; and

a computer, coupled to said data storage unit and said communications controller, that is configured to

(a) receive a transaction from said first party device via said communications controller;

(b) electronically adjust said first account and said third account in order to effect an exchange obligation arising from said transaction between said first party and said second party after ensuring that said first party and/or said second party have adequate value in said first account and/or said third account, respectively; and

(c) generate an instruction to said first exchange institution and/or said second exchange institution to adjust said second account and/or said fourth account in accordance with the adjustment of said first account and/or said third account, wherein said instruction being an irrevocable, time invariant obligation placed on said first exchange institution and/or said second exchange institution.

Briefing Continues in Limelight v. Akamai

March 31st, 2014

The briefing continues in the Supreme Court case of Limelight v. Akamai with respect to the issue of divided infringement.  Akamai filed its brief last week.  The ABA site has all the briefs, including amicus briefs.

Limelight’s opening brief is available [here].

Akamai’s brief is available [here].

Limelight’s reply brief is due in a few weeks.

Should you be able to tax an abstract idea?

March 30th, 2014

I have been trying to think about how the definition ultimately given to an “abstract idea” might affect other areas of the law.  For example, if software is deemed an abstract idea, it seems inevitable that someone will argue that you shouldn’t be able to tax software as an abstract idea.  Similarly, if software is deemed an abstract idea, it seems inevitable that someone will argue that “market power” under the antitrust laws can’t exist in something that is abstract.  Moreover, if software is deemed an abstract idea, it seems likely that someone will argue that the UCC does not apply to transactions of something that is abstract.

I kind of like the taxability issue as a tool for assessing patent eligibility.  Namely, if you can tax the full extent of the goods or services embodied in a patent claim, then it should not be deemed abstract.