Google's Open Patent Non-Assertion Pledge

In the last lecture, Duane Valz mentioned Google's fair practices in terms of intellectual property. I was curious about the specifics, so I found the Open Patent Non-Assertion Pledge online. I've summarized its provisions below.

Google promises not to attack anyone for using "Free or Open Source Software" or "Pledged Patents," which are Google patents that are usable by other entities. Entities are safe under Google's pledge as long as they agree to the conditions in writing and make subsequent transferees do the same. Additionally, Google reserves the right to "Defensive Termination" if an entity asserts or profits from asserting patents against Google or its affiliates. With "Defensive Termination," Google will act as if the pledge was never extended to the asserting party in the first place. However, if Google mistakenly initiates lawsuits against non-asserting entities, it promises to try to terminate legal proceedings within 60 days.

Full pledge: https://www.google.com/patents/opnpledge/pledge/

Google's Open Patent Non-Assertion Pledge seems like a very fair and reasonable way to handle intellectual property, and demonstrates Google's commitment to innovative creation above financial gain. Google could easily turn into the most powerful patent troll ever, hindering both technological and commercial progress for less powerful entities. Its policy, however, stresses a win-win concept that benefits everyone.

As I've written in past posts, innovation has outpaced patent reforms, necessitating some way of upholding intellectual property while preventing excessive aggression. Although it's easy to lose hope in this situation and assume the worst, Google's policy proves that the patent landscape is contingent on more than trolling, enforcement, and regulation. If the culture of intellectual property could be fostered in a way that promotes mutual respect and fairness, gray zones in the patent landscape will be less likely to be exploited.

https://www.youtube.com/watch?v=VcX-kUT3XF0

Response to Lecture about KSR v. Teleflex

KSR v. Teleflex was a huge event in patent law, not only because it showed a clear disconnect between the Supreme Court and lower courts, but because of the precedent that it overturned. The Graham v. Deere case of 1966 was an IP case in which the Teaching, Suggestion, Motivation (TSM) test was put into standard practice. Hindsight bias was supposed to be mitigated by screening patents for obviousness through a rigorous TSM test. In KSR v. Teleflex, the Supreme Court disagreed with the lower courts' opinion that the TSM test should be applied strictly.

The Supreme Court upheld common sense above the TSM test, which overturned a precedent of almost a half century. The problem was the overly rigid application of the TSM test; the Supreme Court asserted that people of ordinary skill are also people of ordinary creativity, and as such, allowed for more interpretation and implication in the test.

I think the implication of this decision will influence the way that patents are examined at the USPTO and the way that they are ruled on in court. Because we now apply the TSM test with more perspective and restraint, the opportunity arises for filers and holders of patents to create and exploit bad-quality patents. Such actions would lead to trolling, by allowing for a gray zone to exist, in which dangerous patents can emerge. However, the Supreme Court's ruling also allows for more flexibility and creative thinking in analyzing patents, which I believe is a great thing for modern times.

As we've seen, innovations in technology have outpaced reforms in IP regulations, which is the reason for gray zones in the patent war that are exploited by savvy lawyers. Additionally, it's what created the hostile environment in which technology firms seem to operate. In large part, IP regulations and the patent landscape dictate how industry players decide to engage each other; currently, it seems like companies are instinctively suspicious and defensive towards each other.

I think the Supreme Court's decision to value critical thinking and flexibility, by mandating a looser application of the TSM test, is a step in the right direction. When our laws and regulations don't complement technological innovations properly, it's necessary to allow for more case-by-case thinking.

https://www.youtube.com/watch?v=rJcoluK3_mc

Secondary Considerations of Obviousness

The initial checklist to detect obviousness is the scope and content of prior art, the differences between alleged innovation and prior art, and what constitutes ordinary skill in the art. However, the article linked below discusses secondary considerations.

http://www.the-business-of-patents.com/obviousness.html

1) Commercial success

2) Long-felt but unsolved needs

3) Failure of others

Commercial success points to the market demand for the alleged innovation, which validates both societal need and practicality. If many people are willing to pay for an invention, the invention clearly merits the appreciation and approval of the public.

Long-felt but unsolved needs refer to innovations that make life easier or better by addressing inconveniences and inefficiencies. An outstanding example is the folded cardboard holder for take-out coffees. Before it was invented, people had do deal with excessively hot cups with nothing to shield their hands from the heat. Cup holders were invented so that this unsolved problem could be addressed.

Failure of others refers to previous attempts at addressing some unsolved need. The guiding principle is that a new innovation, if it attempts to do what others failed to do before and benefits society, wouldn't be considered obvious. The problem might have been obvious but the solution was clearly innovative in some way, to distinguish itself from past failures.

https://www.youtube.com/watch?v=YQn32A_UgZY

Patenting Software

Today's blog is about the article below, from the Harvard Office of Technology Development. Specifically, I'll try to simplify the section on "Patenting of Computer Software."

http://www.techtransfer.harvard.edu/inventions/ip/patents/

The USPTO won't grant patents on items of "…pure scientific discovery, or a method of doing business, or a process which does not require hardware, or one that simply duplicated the "mental steps" of a human being." Essentially, the USPTO won't allow abstract ideas to be patented. Whether software can be patented or not depends on three categories.

1) "A computer or other programmable apparatus whose actions are directed by a computer program or other form of software may be considered a 'machine.'"

2) "A computer-readable memory that can be used to direct a computer to function in a particular manner when used by the computer is presumed to be an 'article of manufacture.'"

3) "A series of specific operational steps to be performed on, or with the aid, of a computer is deemed a "process.'"

These guidelines for patenting software opens up debate debate among software engineers, lawyers, USPTO examiners, and scholars. Matters of software patents are currently reviewed on a case by case basis rather than a set of concrete rules. For that reason, I think software patents should be a high priority in the effort to reform and optimize IP regulations. Any gray zone in the legal system in a lucrative area like IP will be exploited by trolls. In the case of software patents, the lack of rules and precedents opens up opportunities for bad/dangerous patents to be created and exploited.

Going forward, it'll be interesting to see whether the USPTO can keep up with the growth in IT industries. As technology gets more complicated and interconnected, it'll be necessary to adapt regulations so that new problems can be addressed.


https://www.youtube.com/watch?v=R-EpaHbRKL0

Detecting obviousness in the midst of complex technical rhetoric

The article linked below, titled "A Patent on Seven Simple Lines of Code," discusses the problem of obvious and abstract ideas being patented through the use of lengthy text and complicated jargon.

Alice Corporation Pty. Ltd. v. CLS Bank International (also linked below) deals with patents on third party escrow, which is just a fancy way of saying "two parties exchanging money through a third party." It's an abstract concept of trade that's been used throughout history, between parties seeking to exchange currency through a mutually trusted party. What's concerning is that a claim involved in the case describes a computer, linked to a data storage unit and a communications controller, to:

"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."

In short, the claim addresses a computerized system of third party escrow. Despite the lengthy rhetoric and an impressive array of technical jargon, the patents involved point to an abstract idea, which is nothing more than 7 lines of BASIC code. If one account has enough money to transfer to another, then  the transfer happens, and "inadequate value" is returned otherwise. Simple.

10 LET account1 = 200.00
20 LET account3 = 300.00
30 INPUT “Value to exchange for transaction”; exchange
40 IF account1 < exchange THEN PRINT “Inadequate value”: STOP
50 account1 = account1 – exchange
60 account3 = account3 + exchange
70 PRINT “Instruction to 1st institution: adjust 2nd account by ”; -exchange

An abstract trade concept, used throughout history, was patented because obviousness wasn't properly detected. Amidst the complicated technical jargon and lengthy text, 7 lines of code were able to slip through. In the future, I think we'll be seeing more abstract ideas being patented, under the guise of being sophisticated technical concepts. For this reason, we should be vigilant of skillful lawyers who write dangerous patents and keep our patent workers and regulations updated on this kind of problem.

http://www.scotusblog.com/case-files/cases/alice-corporation-pty-ltd-v-cls-bank-international/

http://www.publicknowledge.org/news-blog/blogs/a-patent-on-seven-simple-lines-of-code

https://www.youtube.com/watch?v=5APIZLCrKy8

Google, Samsung strike patent cross-licensing deal - CNET

Google and Samsung filed a 10-year agreement for cross-licensing patents, in an attempt to benefit both parties through cooperation. This is in stark contrast to the prevailing mentality of the mobile patent war, in which corporations seek to slow each other down through litigation. Google and Samsung's cooperation marks a new and positive step for intellectual property, in which patents are enforced and respected without slowing down technological progress.

An underlying question, though, is whether Google and Samsung have an ulterior motive. Because they're both major corporations in the mobile device space, their collaboration/alliance could be bad news for competitors like Apple.

http://news.cnet.com/8301-1035_3-57617807-94/google-samsung-strike-patent-cross-licensing-deal/

https://www.youtube.com/watch?v=v7l3Obj3Wvk

Qualcomm buys major mobile patent portfolio from HP, including Palm patents - gigaom.com

This week's post is about an article on gigaom.com, that addresses Qualcomm's purchase of HP's patent portfolio, which includes both issued and pending patents. The benefit for HP was that their $1.2 billion purchase of Palm was somewhat justified by Qualcomm's purchase of relevant patents. For Qualcomm, the newly acquired patent portfolio is an opportunity to assert themselves in the world of mobile devices, which calls into question whether Qualcomm will use HP's patents to attack other companies.

The way I see it, Qualcomm made the right move, whether they plan to use HP's patents offensively or not. By possessing the patent portfolio, Qualcomm has a better defensive position. Also, considering that every patent is an intellectual monopoly, Qualcomm is in a better position.

http://gigaom.com/2014/01/23/qualcomm-buys-major-mobile-patent-portfolio-including-palm-patents/

https://www.youtube.com/watch?v=pr5hJFA81bs