IEOR 190G social media benefit

The class assignment format is very interesting because we need to submit our assignment through blog post and YouTube video. The benefit of using online social media tools for a course is knowing how your classmate is doing. Also, I need to be self-conscious about the submitted content. Because not only the reader and the classmate but the entire Internet will be able to have access to it. The motivation to maintain certain quality really help me think more about the produced content before publishing.

The difference between using social media than the traditional learning tool is that we get the aggregated feedback from the entire class. The minute I got a positive feedback or even a constructive analysis on the post/video, I started an intellectual conversation/debate over the course topic. This attribute created the value this course intended to have. Patent is still a very current topic, that's why I think it is good to discuss over it. Because you can never be right or wrong about this topic if Federal Circuit and Supreme Court are having conflicting ruling results over and over again.

IEOR 190G class reflection

IEOR 190G has been one of the most interesting classes I've taken ever. As the course title suggested, we went over the basics of patenting business as well as examples that are happening concurrently. The course started with introduction to famous litigation between Apple and Samsung. Then, our assignments involved investigating various litigation case through credible patenting websites.

The weekly assignment is in general constructed of 2 blog posts with 2 video uploads accordingly. On top of that, we are also doing 4 comments total on the posts by other classmates. I have learned so much from doing the assignments as well as reading/watching posts from classmates. Sometimes I'll find insightful perspective that I would have never thought of.

Patent has been around for decades, and it serves as an innovation incentive for us at this technological age. What I've learned in this class will benefit me from knowing how to take full advantage of patent in the right way. Though I'd think there is a very high chance that I will never publish a patent ever in the future. It is still very beneficial to know the basics of patent.

Banana holder, obvious=silly?

The other silly patent I'd like to talk about is the Banana Protective Device patent. While this patent is useful in terms of storing banana, and the ease of use in some ways. It is rather an obvious apparatus to anyone who has ever eaten a banana before. This makes a strong case of ensuring that the importance of the non-obviousness requirement.

I've seen this kind of banana holder being sold in a lot of shops. Clearly, it has drew some market interest. Though I am not sure if this could possibly be an argument to defend against non-obviousness validation in terms of proven market/commercial success. Personally I wouldn't agree this apparatus is patentable because it is immediately obvious to me.

Anti-Eating Face Mask

This past week we talked about silly patents. To me it's like putting humor in serious patent documents. We envision any patent should be somewhat useful if not revolutionary. However, there still exists patents that are considered too obvious or useless at the time of writing.

Let's look at this Anti-Eating Face Mask patent, which it obviously tries to prevent a user from eating anything effectively.

The above diagram shows a mask that is hooked to a person's entire head, with a small lock hanging on the side of the face. There are several patents that were referred as prior art in this patent document:

• Safety or restraining device
• Mouth-guard for children and infants
• Anti-mouth-breathing device
• Face guard for infants
• Arm purse and hand purse
• Apparatus for controlling eating and smoking habits

Briefly browsing over the above prior art, I feel they all qualified to fall into the silly patents. The usefulness is left to be proven.

Rectangular design patent

Another well-known example for non-obviousness is the design shape of rectangles with rounded corners. This would be an even simpler example than the slide-to-unlock case. In this article from Foss patents, Apple claimed four major elements were copied by Samsung. The first element is described as "a flat, clear, black-colored, rectangular front surface with four evenly rounded corners". Sure, I'd agree this is a major component in Apple's design of a smartphone. But it shouldn't be treated as if Apple created the idea of having rectangular surface with rounded corners, resulting in Samsung stealing the idea.

Though rectangular rounded corners weren't the only element Apple claimed Samsung infringed on, the rest of the pieces were still very closely related to the detail of the rectangle shaped design. I would say arguing the obviousness of rectangular rounded corners would still make its case in the court if Apple wants to sue every smartphone manufacturer in the world who've made any rectangular rounded corner phone.

Maybe it's time for all the smartphone engineers to design a phone with sharp corners.

2014-04-27 updated with video

Slide-to-unlock, not obvious?

Back in 2011 August, a preliminary injunction was granted by a Dutch court against some products by Samsung. An interesting piece of information regarding obviousness of Apple's patent appeared in the case.

Apple claimed a patent with its well known "slide to unlock" screen, which specifies an unlock icon will slide with the gesture . Apple was suing HTC and Motorola over this patent in different courts. Then the Dutch judge decided that the slide-to-unlock patent is obvious, as a result rending the patent invalid.

Samsung provided further information proving the obviousness of the patent. Just not long before Apple filed slide-to-unlock patent, a small Swedish mobile manufacturer Neonode released a smartphone running Windows CE, with slide-to-unlock functionality. The only difference is this Windows CE phone doesn't have the unlock icon but everything else the same.

I personally don't think this patent is proving any novelty simply because it is too obvious to try. Neonode already thought of such way to unlock a device. Thus making a strong case for invalidating the patent. This would be a very good simple example to understand non-obviousness requirement, and why is it an important requirement for a patent.

2014/04/27 updated with video

EPO, UK approach to non-obviousness

According to The Business of Patents, several different approaches are mentioned with regard to non-obviousness. In European countries, they call it "inventive step". Though the interpretation of such equivalent requirement varies from country to country. I would like to briefly summarize them:

European Patent Office

• Identify the relevant prior art
• Identify the technical problem the claimed invention solved in relevant field
• For a skilled person in the field, examine whether the technical problem is obvious to be solved

UK approach

• Identify inventive concept in the claimed invention
• Identify common general knowledge in the art by a normally skilled but unimaginative person
• Identify the difference between prior art and the claimed invention
• Examine whether the above difference would've been obvious to the skilled but unimaginative person

The author argued that he prefers the EPO approach, since it starts with defining set of prior art and further narrows down the scope of the problem. I personally feel like USPTO could have adopted EPO's approach with the objective evidence of obviousness or non-obviousness exception. Engineering-minded (EPO approach) approach is considered more specific. Though it is true that whether inventive step or non-obviousness, they all inevitably involve some degrees of subjectivity.

Non-obviousness requirement of a claimed invention

I've discussed about eligibility weeks ago, but that is only one out of the five patent requirements. This week we are assigned to look into the non-obviousness requirement.

IPWatchdog author Gene Quinn posted an article to talk about patentability overview, which describes the subject matter in layman's term. I am no good at interpreting very official description from USPTO. Thus, I'd like to walk through the non-obviousness requirement by looking at different sources and interpret it myself. If you feel like you have second thoughts on this post, please feel free to give me feedback by commenting below. Thanks!

To reiterate, there are five requirements to determine whether a claimed invention is valid (aka patentable).

• patent eligible
• useful
• novel
• non-obvious
• adequately described

If we already know a claimed invention is patent eligible, useful, and novel, why do we still need to determine its non-obviousness? Well, what if any skilled expert in the relevant prior art can easily identify such invention with obvious added factor?

"A patent may not be obtained if it contains only obvious differences from prior art"¹. I'll take a really silly example to demonstrate this fact. Say a LED display attached to a microfiber cleaning cloth, this silly "invention" wouldn't be considered patentable because it is so obvious regardless of the fact that it is also not inventive.

The obviousness is ruled based on four inquiries

• The scope and content of the prior art
• The difference between the claimed invention and the prior art
• The level of ordinary skill in the prior art
• Objective evidence of obviousness or non-obviousness

The fourth factor is "secondary considerations" that is usually used to argue non-obviousness for defendant or applicant. I'd like to further address the fourth factor as it seems to be vague.

An applicant can supply evidence for secondary considerations if the invention is:

• commercial success
• long-felt but unsolved needs
• failure of others

This will be considered the exception to the non-obviousness requirement if any of the above three factors is identified. Since "obvious" evidence is more convincing to simply debate on the literal explanation of obviousness.

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1. source http://www.ipwatchdog.com/2012/06/09/patentability-overview-obviousness-and-adequate-description/id=25191/ ↩

Permanent injunction?

According to this article on by FOSS patents, I turned my attention back on these big corporations, Apple and Samsung. Knowing that they've been fighting over each other on the court for patent issues, now this article starts to give me a clearer picture on the intention behind the war.

The latest update for the legal case between Apple and Samsung is that Apple got denied for a permanent injunction request against Samsung.

The judge Koh said the following that I personally think reasonable: "Apple, in other words, cannot obtain a permanent injunction merely because Samsung's lawful competition impacts Apple in a way that monetary damages cannot remedy. To award an injunction to Apple in these circumstances would ignore the Federal Circuit’s warning that a patentee may not ''leverage its patent for competitive gain beyond that which the inventive contribution and value of the patent warrant.''"

The article also noted that "Apple's previous appeal related only to the denial of a permanent injunction, not to infringement, validity or damages issues", which not only it shows the only intend is to drive Samsung out of the market by all means.

This is pure greed, period. However I understand the reasonable reaction for Apple is to lower competition in the market by any possible legal action. If a permanent injunction is the only way Apple shows their competitiveness, it certainly does not work well in the long run. Samsung has been spending good fortune on marketing, revealing new products, making measurable incremental innovation. I wonder if Apple is making another investment on legal fees just to make this permanent injunction work.

Patent eligibility further read

Last week I talked about the pending legal case between CLS Bank and v. Alice Corp., now I would like to continue further with the topic of patent eligibility.

In the article posted on PatentlyO, the author mentioned about the difficulty of the patentability.

Whether a subject matter is patentable is determined by possibly a judge or by a jury and a patent examiner. I can certainly imagine a patent examiner should know what s/he is talking about in terms of the expertise in the relevant technical field. However, a patent examiner may have little knowledge of legal matter, which judges often communicate in such terms. Whereas a judge usually doesn't have much understanding of the technical side of the subject matter. This leads to the question of how to determine patentability? Who should be the one that finalizes the decision? Or even better, how do the expert and the judge should work together to draw a fine line of patentability?

Luckily, USPTO (United States Patent and Trademark Office) put some effort into simplifying/clarifying the patentability process by providing useful information:

• Flowchart
• Guideline reference

Note that the second question in the flow chart asks whether the claim involves judicial exception. This is the issue of CLS Bank v. Alice Corp. and many other litigation cases. Judicial exception is a claim involves an abstract idea, such that it needs careful judgement on the novelty of the idea.

Though each question can only be answered yes or no, the final decision is made on the totality of the weight for each question. Therefore, it really is not a yes/no question, more of a evaluation process that involves different degrees of judgment. I would like to discuss a little bit of the details about each factor USPTO weights based on the provided guideline.