Wednesday, December 28, 2011

Twelve Year Old Science & Eight Year Old Patents

There is a meme in the patent world that says, "patent trolls stifle innovation."  Just listen to the drum beat of the digital dialog on the subject and you'll hear the patent cognoscenti bemoaning the evils of the NPE.  The message is spreading across the patentsphere and is fast becoming urban legend.  Trolls hurt innovation so they hurt the economy.

James Bessen, Jennifer Ford, and Michael J. Meurer of Boston University School of Law published a paper titled, “The Private and Social Costs of Patent Trolls”  on the topic of patent trolls in November 2011.  The authors state, “NPE lawsuits are associated with half a trillion dollars of lost wealth to defendants from 1990 through 2010. During the last four years the lost wealth has averaged over $80 billion per year."

This piece of information has made its way around the Internet landing at many serious business publications like the Wall Street Journal and lots of influential tech blogs including many that have just recently learned how to spell patent.

"The Private and Social Costs of Patent Trolls" is a good paper with lots of compelling discussion on the negative impact of patent litigation brought by non-practicing entities.  The financial arguments are sound, the numbers are good and supportable.  Mr. Bessen presented his paper at the USPTO Patent Statistics conference in November, and he makes a very compelling case about the economic and social impact of NPE lawsuits and their impact on the organizations defending themselves against them.  (I refuse to use the victim term here.  You'll see why below.)

There is another important fact buried in the paper.  It states:

"The mean NPE law suit occurs eight years after the patent is granted."  

Consider what this means.  The average patent's pendency runs around 36 months. (It was slightly lower in the timeframe of the author's study but let's use 36 months for illustrative purposes.)  There are plenty of patents in NPE litigation that were based on provisional applications so add another 12 months.  Twelve years works either way - with or without a provisional when you consider how prior art is looked at.  We are up to around four years of application pendency before the patent is granted.  Now add eight years before one of the evil trolls takes action.  So we now have a patent based on 12 year old science and technology.  So, when an NPE litigates, the inventions are 12 years old.  More than half way through their patent term.

NPEs are litigating patents with 12 year old technology.

The patent has been in the public domain for eight years before the NPE files suit.  Eight years.  Eight years that it's been on every free patent searching tool, eight years it's been in the tools for the patent cognoscenti, eight years that the patent examiners have had it as a source of prior art and as a consideration on the novelty of new patents that follow it.

NPEs enforce patents that has been in the public domain for eight years.

 If the inventor decided to file a PCT, the patent application was published internationally, and if it was after 2001, domestically in the US.  It may also have been translated into other languages - usually one of the trilateral languages - French, German, Japanese - but there are some in Korean and other languages.  The patents litigated by NPEs have been out there in other languages.

Multiple versions of these patents for the invention have been disclosed for the granted patent used by the patent troll to litigate eight years after the patent grant date.

What do we learn from this?

Patent troll is really a pejorative term for guys who really know how to dig through the vast store of patent dreck to find valuable patents.  (Investors in non-correlated assets take note.)

Patent trolls watch the market and find patents that are enforceable and that were largely ignored by their product producing business counterpart, the practicing entity because they have been making products covered by the patents.  (Note to self, do freedom to operate search before finalizing the product.)

When the big voices of science and technology and their proxies start whining about how patent trolls are stifling innovation, what they are really saying is patent trolls do better research and have better tactics for finding valuable patents where the practicing entity has either decided not to get a license before building products or have decided to not to look at all.

How are patent trolls stifling innovation when they are dealing with 12 year old technology that has been public for around 8 years?

Please advise.

Monday, December 26, 2011

USPTO Algoritm Challenge

The USPTO Innovation Challenge is off and running.  The world's leading intellectual property office has issued a challenge for top coders to solve one of their big examiner challenges - matching the drawings that are part of a patent application with the text within the body of the patent's specification so that they can be displayed an analyzed side by side (or some other preferred embodiment thereof.)  This helps the examiner review the patent application in light of the drawings and vice versa.

Aside from the strange set of rules about who can play - among them that coders work in teams of two and may be assigned to work together rather than letting teams of folks who know each other (or know patents) work together, the contest has some very strange rules with respect to intellectual property.

This group of coders is being encouraged to build a new algorithm.  Did USPTO chose the term algorithm to try to get around patentability issues by letting them claim that this is an algorithm not subject to patentability?  Have they decided to enter into the software patent conundrum?  Did they do any of that pesky freedom to operate stuff when they created their contest?

"The Contest is designed to encourage the development of software (“Algorithm”) that solves the stated computational problem, and also to study the effectiveness of teams in solving algorithmic problems. In this contest all participants will compete in teams of two working together over the course of one month to develop their solutions and deliver an algorithm that can automatically identify and locate specific elements within patent documents drawings pages. Code submissions will automatically be scored based on their accuracy in solving the problem based on manually labeled test data. This experimental contest format is part of TopCoder’s ongoing partnership with the Harvard-NASA Tournament lab to better understand how tournaments contests can be used to solve complex computational problems."

But when USPTO and/or the winner of the challenge try to actually implement the software on a computer with non-transitory storage where there is definitely going to be a transformation between the submitted drawings and the new presentation they will be in the infringement ball park  big time.

A cursory look at patents in this area resulted in a starter list of over 16,000 enforceable patents that deal with image extraction, content interpretation, compression/decompression, text matching, entity relationship matching, etc.  (By the way we are experts in digital imaging, database, text processing, OCR, entity extraction and the image based workflow software arena and have done plenty of work with patents in this domain - so we know where to look for this stuff.)  Did they consider the potential for infringement on the part of the unsuspecting coders?  Did they even both to look at US patents to see if the technology to do this exists?  (It does.)

This ought to be very interesting.  I'm sure some of the top patent assertion entities will be standing by to assist the inventors and patent holders whose patents are being infringed in getting a swift resolution to the matter.


As a refresher, let us consider the rules in the Manual of Patent Examination Procedures regarding patent infringement.  Clearly USPTO understands infringement of a patent.But for those of you who need a refresher, here you go.

5 U.S.C. 271 Infringement of patent.

(a) Except as otherwise provided in this title, whoever without authority makes, uses, offers to sell, or sells any patented invention, within the United States, or imports into the United States any patented invention during the term of the patent therefor, infringes the patent.
(b) Whoever actively induces infringement of a patent shall be liable as an infringer.
(c) Whoever offers to sell or sells within the United States or imports into the United States a component of a patented machine, manufacture, combination, or composition, or a material or apparatus for use in practicing a patented process, constituting a material part of the invention, knowing the same to be especially made or especially adapted for use in an infringement of such patent, and not a staple article or commodity of commerce suitable for substantial noninfringing use, shall be liable as a contributory infringer.
(d) No patent owner otherwise entitled to relief for infringement or contributory infringement of a patent shall be denied relief or deemed guilty of misuse or illegal extension of the patent right by reason of his having done one or more of the following: (1) derived revenue from acts which if performed by another without his consent would constitute contributory infringement of the patent; (2) licensed or authorized another to perform acts which if performed without his consent would constitute contributory infringement of the patent; (3) sought to enforce his patent rights against infringement or contributory infringement; (4) refused to license or use any rights to the patent; or (5) conditioned the license of any rights to the patent or the sale of the patented product on the acquisition of a license to rights in another patent or purchase of a separate product, unless, in view of the circumstances, the patent owner has market power in the relevant market for the patent or patented product on which the license or sale is conditioned.

Sunday, December 25, 2011

Merry Christmas Redux

In the spirit of the season we send holiday greetings to all of our friends and colleagues.  The prosecution of last year's claim continues.  Feel free to infringe.
Holiday Greetings from Frosty the Article Holding Figurine.

We claim a method of communicating holiday greetings comprising a representational snowman like figure offered in combination with a social expression communication associated with an occasion, holiday, or event; delivered via a communication network wherein the communication network comprises a computer connected to a telecommunications device that facilitates exchange of greetings via the Internet through posts on a weblog, a weblog being a web-based journal that contains periodic posts usually in reverse chronological order.

Frosty the Article Holding Figurine with his preferred embodiment article, the jacket, casually thrown over his shoulder and the inscrutable yet determined look on the upper orbital section of the facial structure is no ordinary a snowman shaped object, he is a figurine of action. He strikes a dashing pose with his top hat-like structure affixed to the upper portion of the preferred embodiment snowman-like shape. The representational human visage let's us know this article holding figurine is no victim of the politically correct as represented by the corn-cob pipe like smoking apparatus clinched in dual elliptical indents designed to represent a notional mouth. In the preferred embodiment he is on the way to a festive holiday gathering to join his other patented figurine, ornamental, and decorative cohorts including the snowman shaped Christmas tree, in celebration of the holiday season.

In the preferred embodiment, all of us at Coronado Group wish you a Merry Christmas, a Happy New Year, and a bright and shiny holiday season.

Saturday, December 24, 2011

Christmas Quotes No. 12 - The End!!

On Trade Secrets:

"It doesn’t count as a trade secret if it’s left out in the open. The law would say one cannot put the burden on someone who happens on the information inadvertently ... You can’t sue someone for overhearing what you say in a crowded elevator."

Susan J. Kohlmann, Partner at Jenner & Block LLP, NYTimes October 23, 2011.

Friday, December 23, 2011

On Innovation - Quote No. 11

"Innovation--the essence of innovation--is you don't know what you're going to build, what it's going to be called, how much it's going to cost."

Michael Bloomberg, August 2011, Fast Company Magazine

Thursday, December 22, 2011

On Innovation - Quote No. 10

"If I listened to my customers I would have invented a faster horse."

Henry Ford

Wednesday, December 21, 2011

Christmas Quotes No. 9

"Knowledge processes information to produce ideas, analysis, and skills that ideally should contribute to human progress and civilization."

Ahmed Abdel Latif

Tuesday, December 20, 2011

Quote No. 8

“Those who take the informational turn see information as the basic ingredient in building a mind.”

Frederick Adams

Monday, December 19, 2011

On Information - Quote No. 7

“As commonly used, …information is a very elastic term.  It is the stuff of communication.”

From Information is a Very Elastic Term, by R.V. L. Hartley, Transmission of Information, Bell Systems Technical Journal, July 1928.

Sunday, December 18, 2011

Christmas Quotes No. 6

"...The past is never the future.  But it’s easy to get caught up in the continuum."

Marc Benioff, CEO of on innovation.  August 8, 2011 Forbes

Saturday, December 17, 2011

The Quotes Continue - No. 5

.... the scientists complained of “what seems to us a rather chaotic growth in technical vocabulary.”

In a Letter to Nature, Spring 1953 as quoted by James Gleick in The Information

Friday, December 16, 2011

Quotes for Christmas No. 4

"In 1910 a Danish botanist, Wilhelm Johannsen, self-consciously invented the word gene.  He was at pains to correct the common mythology and thought a word might help."

By James Gleick, The Information.

As of today a search on the word "gene" in Google Patents yields 40,700 results.  It looks like the word stuck.  I'm sure there will be more later on Tuesday.

Thursday, December 15, 2011

My Quotes for Christmas No.3

Thomas Edison Patent
398774 - 1883
"Meme - a unit of cultural inheritance ideas evolve like genes do and their success is based on their ability to spread not on the benefit they provide their host."

By Richard Dawkins, The Selfish-Gene 1976

I generally hate the light bulb metaphor for good ideas but I'll use it just this once because this image comes from the originator not from an art director.

Wednesday, December 14, 2011

Quotes of Christmas Round 2

"My view is that people are creative animals and will figure out cleaver ways to use tools that the inventor never imagined."

Steve Jobs as quoted in Steve Jobs by Walter Isaacson.

Who knows what will come about when you give an innovative object to an innovative human.

Tuesday, December 13, 2011

Twelve Quotes of Christmas

I am a patent nerd. There. I've said it. It's out. I'm also an information nerd. Where is it? How do you find it? What does it mean? How do you make it useful? So this holiday season I bring you the twelve quotes of Christmas. For the next 12 days I bring you my favorite quotes about patents, information, and how the two converge. So here we go.

"If the inventory of ready-made words in our language determines which concepts you are able to understand, how would you ever learn anything new?"

By Guy Deutscher, Honorary Research Fellow, School of Languages, Linguistics, and Cultures at the University of Manchester.

See my earlier post on this one here.

Monday, December 12, 2011

Licensing Molecules

Molecule - a group of atoms bonded together, representing the smallest fundamental unit of a chemical compound that can take part in a chemical reaction.

Licensing - a permit from an authority to own or use something, do a particular thing, or carry on a trade.

Cognitive Dissonance - a discomfort caused by holding conflicting ideas simultaneously - like licensing molecules.

This isn't a patentability debate it's just plain old cognitive dissonance on the headline.

(Reata Pharma has interesting patents with tons of non-patent prior art and lots of drawings of molecules. - It's probably easier to just license them than to try to read the patents.)

Sunday, December 11, 2011

Looking for Assignees - Again

USPTO has issued a Request for Information on enhanced reporting of assignee information on patent and patent application ownership. The need for improved patent assignee data is compelling. If you are manufacturing a product and you figure out that you need a license to a piece of technology, a daunting task by itself, you should be able to at least find the real entity and the real people associated with the entity to see if you can get the license you need. At present, this is a challenge.

Take it from me, trolling the Secretary of State sites, Pacer, and countless other data sources to see who owns Obfuscation Patent Holdings, LLC of Nevada and its various subsidiaries, shell companies, and owners of record is a tiring pursuit. It's entertaining at times when you hit the jackpot and can figure out who owns the mysterious patent that keeps showing up in the cease and desist letters. Usually it's fruitless because hiding ownership of a patent is one of the easiest things you can do at USPTO. It's time for more transparency in patent assignee data and USPTO has provided an opportunity to provide your input on the subject.

Send in your comments, encourage full disclosure.

Sunday, December 4, 2011

The patentability of medical tests that provide insight into how the human body reacts to disease and the drugs designed to treat them is a contentious issue. The test developers want patent protection on the inventions that they claim resulted in their specific discoveries. The medical and access to medicine constituencies believe that these tests are not patentable because they involve both abstract ideas and laws of nature.

Today's Wall Street Journal article provides an interesting overview of the issues, the players, and the upcoming Supreme Court cases.

Sunday, November 27, 2011

Patent Pending Pipeline Prognostication

Here is a statistical mash up of the patent pending pipeline based on information from WIPO and USPTO.  Getting a comprehensive set of data for one complete year is hard to do since the publication dates on the different statistics varies from source to source, What one takes away from this pipeline prognostication is that there is a prodigious backlog of patent applications that is growing every year.  On a domestic and global basis the number of patents granted each year is less than half the number of new patent applications arriving each year.  The precarious position of patent offices world wide portends continued unrest in the patent sphere and the potential decline in protection of precious inventions.

Enough with the Ps.  Here's the statistics.

In 2010, the number of unprocessed patent applications world-wide stood at 5.17 million.

As of 2009, the number of patent applications filed globally was about 1.8 million a year. (The last year the global number of patent application is available.)

In 2008, the US share of that number was 482,871, about 27%.

In 2010 the number of US patent applications hit 520,277.

In 2009 the USPTO granted 191,927 patents.

By 2010 the US number of patents granted hit 244,341 - less than half of the volume of new applications coming in the door.

In 2008 the global number of grants was 777,556.

The average patent pendency - the period of time between the time a patent application is filed to the time a patent office makes a final decision - is around 32 months.  This number is lower than the US average which stands at about 34 months.

The number of patents in force in the US as of 2009 was 1,930,631.  The global number is a confusing hodge podge of counts by national patent office that doesn't lend itself to compiling one consolidated number.

The bottom line is protracted patent pendency persists.

Tuesday, November 8, 2011

A Magical Journey

Researchers at the Science Museum in London are embarking on a magical journey to try to build Charles Babbage's Analytical Engine, the computational machine he invented in 1831.  The Analytical Engine is a mechanical device designed to handle mathematical computation.

According to today's New York Times Science Times the researchers are planning a 10 year, multi-million dollar (pounds really) adventure to take the blueprints of the various iterations of Mr. Babbage's invention and try to figure out how to actually build it.  The effort will include some crowd-sourced review of scanned copies of his drawings to seek suggestions from the public on the effort.

What is exciting about a project like this is the ability to see how the inventor's thinking about his invention evolved.  I have always been fascinated about the deep thinking of inventors and the convergence of how inventors invent and serendipitous discovery, serendipitous discovery being the ah ha moment or the discovery of something you didn't know you were looking for in the first place.  How did his ideas evolve, how did he change the way he described them - to himself.  How did Mr. Babbage translate his thinking onto paper?  Did his notes provide a road map to his discovery?  In today's digital age with a tendency to just keep modifying the same digital artifacts, do we lose that path to envision another's thought process?

One of the best narratives on Charles Babbage and his analytical inventions and his collaboration with Augusta Ada Kind, Countess of Lovelace can be found in James Gleick's, "The Information: A History, A Theory, A Flood."

For the patent cognoscenti out there, it's interesting to consider how this clearly physical mechanical device, designed to handle algorithmic math complete with its physical input media, might be considered in light of business methods patents, patentability of algorithms, and the "it's not patentable if you can do it with a piece of paper and a pencil" argument in today's electrical computational discipline arena.

Sunday, October 16, 2011

Edward Tufte Is Coming To Town

Edward Tufte returns to Washington on November 8th, 10th, and 11th to teach his fabulous one day Presenting Data and Information course.  It was one of the best educational investments I've made.  It's worth going just for the books.  After the course you'll never look at data the same way.  It's always an interesting crowd - litigators who need to build compelling evidence presentation, litigation support people who have to translate the litigator's vision into practice, analysts, media people, students, graphic artists, researchers.

It would still be worthwhile for the USPTO to dig down in their budget to find the funds to have Dr. Tufte stop by and see if he can do something about the Patent Office's goofy dashboard that I whined about last year in my Called Edward Tufte post.

A thank you shout-out to the readers who caught the Burger King. v. Wendy's error in last year's post.

Friday, October 7, 2011

Thank You Steve Jobs

Here is one of my favorite Steve Jobs quotes.   We are left to wonder what amazing things were yet to come.

“Your work is going to fill a large part of your life, and the only way to be truly satisfied is to do what you believe is great work. And the only way to do great work is to love what you do. If you haven’t found it yet, keep looking. Don’t settle. As with all matters of the heart, you’ll know when you find it. And, like any great relationship, it just gets better and better as the years roll on. So keep looking until you find it. Don’t settle.”

Steve Jobs, Stamford Commencement Address 2005

Monday, September 12, 2011

We'll Miss You Michael Hart

By Michael Bowman

Michael S. Hart passed away on September 6, 2011. Hart invented ebooks, and founded Project Gutenberg. According to his obituary on the Project Gutenberg page,

"He had been granted access to significant computing power at the University of Illinois at Urbana-Champaign. On July 4 1971, after being inspired by a free printed copy of the U.S. Declaration of Independence, he decided to type the text into a computer, and to transmit it to other users on the computer network. From this beginning, the digitization and distribution of literature was to be Hart's life's work, spanning over 40 years." (

Project Gutenberg houses more than 36,000 ebooks in the public domain.  I have enjoyed a number of them.

Hart’s invention, in recent years, has transformed the publishing world, providing the reading public access to many new authors, and spurring new inventions such as the Nook, Kindle, iPad, and fostering new file formats for the display of written content (e.g., PDF, epub, lit, Mobipocket, Plucker, TealDoc, etc.). Could he have foreseen these subsequent innovations when he decide to post an electronic version of the Declaration of Independence?

Not to detract from Hart’s invention, there was someone else who did envision this technology prior to Hart.  Arthur C. Clarke, a polymath, author, and visionary. Perhaps like I did, you read Clarke’s “2001: A Space Odyssey”, and saw Stanley Kubrick’s movie. Maybe you remember this passage:

"When he tired of official reports and memoranda and minutes, he would plug his foolscap-sized Newspad into the ship's information circuit and scan the latest reports from Earth. One by one he would conjure up the world's major electronic papers ... Switching to the display unit's short-term memory, he would hold the front page while he quickly searched the headlines and noted the items that interested him. ... the postage-stamp-sized rectangle would expand until it neatly filled the screen and he could read it with comfort. When he had finished, he would flash back to the complete page and select a new subject for detailed examination. Floyd sometimes wondered if the Newspad, and the fantastic technology behind it, was the last word in man's quest for perfect communications. Here he was, far out in space, speeding away from Earth at thousands of miles an hour, yet in a few milliseconds he could see the headlines of any newspaper he pleased. (That very word "newspaper," of course, was an anachronistic hangover into the age of electronics.) The text was updated automatically on every hour; even if one read only the English versions, one could spend an entire lifetime doing nothing but absorbing the ever-changing flow of information from the news satellites. It was hard to imagine how the system could be improved or made more convenient. But sooner or later, Floyd guessed, it would pass away, to be replaced by something as unimaginable as the Newspad itself would have been to Caxton or Gutenberg."

And in another episode of life imitating art imitating life imitating art...Samsung cited the 2001: A Space Odyssey Newspad as prior art in its ongoing patent war with Apple.  Attached hereto as Exhibit D is a true and correct copy of a still image taken from Stanley Kubrick's 1968 film "2001: A Space Odyssey." In a clip from that film lasting about one minute, two astronauts are eating and at the same time using personal tablet computers. The clip can be downloaded online at As with the design claimed by the D’889 Patent, the tablet disclosed in the clip has an overall rectangular shape with a dominant display screen, narrow borders, a predominately flat front surface, a flat back surface (which is evident because the tablets are lying flat on the table's surface), and a thin form factor.

Thank you, Michael Hart, and Arthur C. Clarke.

Tuesday, September 6, 2011

Zero Net Non-Farm Jobs

By Michael Bowman

The Federal Bureau of Labor Statistics (BLS) released its August 2011 jobs report on 9/2/11. BLS reported that there were no (zero, zip, nada) net nonfarm jobs added to the US economy for the month. Pay attention next month when that number is revised (unexpectedly) downward, and the "experts" are once again surprised that the actual employment situation for September is "unexpectedly" worse than their projections.

One of the talking points used to support passage of patent reform in the America Invents Act (which is anticipated to occur this week) is that it will spur job creation.  This seems like a good time to take a look at patents related to hiring.

In the US Patent Classification System, Class 705 is commonly referred to as “Business Methods”. Within this class, subclass 321 addresses employment or hiring. This subclass is new, having been created as part of USPTO reclassification efforts over the past few years. In the class 705 classification schedule, this subclass is indented under subclasses 1.1 (AUTOMATED ELECTRICAL FINANCIAL OR BUSINESS PRACTICE OR MANAGEMENT ARRANGEMENT ) and 320 (Human resources). Subject matter to be classified in 705/321 must also meet the requirements of their respective definitions. Employment or hiring (subclass 705/321) is defined as:

Subject matter drawn to a computerized arrangement for engaging the services of a person or persons for wages or other payment either directly or through a third party.

A search note refers also to subclass 705/8. This subclass was eliminated in Classification Order 1904, released on 2/1/11, and the 705/321 schedule has not yet been updated to reflect this change. Searches should probably also be conducted in the following class 705 subclasses:

7.12     Resource planning, allocation or scheduling for a business operation
7.13     Scheduling, planning, or task assignment for a person or group
7.14     Skill based matching of a person or a group to a task
7.15     Status monitoring or status determination for a person or group
7.16     Schedule adjustment for a person or group
7.17     Staff planning in a project environment
7.18     Calendar-based scheduling for a person or group
7.19     Meeting or appointment
7.21     Task assignment
7.23     Resource planning in a project environment
7.25     Needs based resource requirements planning and analysis

Returning to 705/321, employment or hiring, there are 51 issued patents contained therein as of 9-6-11. We'll take a look at a few of these.

The most recently issued (today) patent in 705/321 is number 8,015,047, “Method, system, and computer program product for employment market statistics generation and analysis”, invented by Foulger, et al. and assigned to Archeron Limited LLC. The original classification (i.e., the highest, most indented classification accepting the subject matter) for this patent is 705/7.14, Skill based matching of a person or a group to a task. Claim 1 states:

A method of generating employment market statistics via a network, comprising:

accessing, by a data processing device, an employment resource via the network, the employment resource comprising data;

matching, by the data processing device, the data to one of a plurality of employment market categories, wherein the matching includes matching resources to the plurality of employment market categories according to a multi-tiered matching strategy;

and updating, by the data processing device, at least one statistical indicator associated with a matched employment market category, wherein the updating comprises calculating a ratio of resumes associated with the matched employment market category to job listings associated with the matched employment market category.

Given the huge number of unemployed, or underemployed, workers in the country, screening of job applicants is a potentially critical bottleneck for human resources departments and hiring managers. Enter patent number 7,778,938, “System and method for screening of job applicants”, issued 8/17/10 to Stimac and assigned to Corporation. Claim 1 states:

A method for screening a plurality of job applicants comprising:

receiving input to a predetermined plurality of job related profile questions through at least one input device, which are locked to prevent alteration by the job applicant, wherein the plurality of job related profile questions include at least one job-related question regarding a preferred work style for a job applicant, that provides an indication of motivation for the job applicant to perform a particular job, and are targeted to a predetermined job opening from the plurality of job applicants;

providing a numeral score associated with each predetermined response with at least one processor;

and tabulating the total score for all predetermined responses so that each job applicant can be objectively compared to other job applicants based on the received input with the at least one processor for viewing on at least one electronic display.

Here is one that might be familiar to millions of online jobseekers. Patent number 6,370,510, “Employment recruiting system and method using a computer network for posting job openings and which provides for automatic periodic searching of the posted job openings”, was issued April 9, 2002 to McGovern, et al., and assigned to CareerBuilder, Inc. Claim 1 states:

An employment recruiting method, comprising the steps of:

receiving first computer readable data, representing information pertaining to a job, provided by a job seeker user via a computer network;

automatically periodically comparing said first computer readable data to second computer readable data including job opening data representing information pertaining to at least one job opening;

and sending said job seeker user a message informing said job seeker user when said comparing step determines that said first computer readable data matches at least a portion of said second computer readable data, said message including a link to a site at which additional data pertaining to said job opening is accessible by said job seeker user via said link.

The earliest patent found in 705/321 is number 5,117,353, “System for use in a temporary help business”, issued 5/26/92 to Stipanovich, et al. and assigned to Staff-Plus, Inc. The preamble of claim 1 (the entire claim is too long to include here) states:

A system for use in temporary help businesses for screening temporary help employees, testing said temporary help employees for one or more employee skills, recording a time that said temporary help employees are available to perform temporary jobs, receiving and recording job orders from one or more clients requesting temporary help personnel with one or more specified required skills to perform temporary jobs, assigning said temporary help employees to said temporary jobs, recording client comments about said temporary help employees, determining an amount of money due to said temporary help employees for specified periods of time, determining an amount of money due from said clients for temporary help services performed by said temporary help employees for specified periods of time, and reporting trends and patterns of said job orders and temporary help employees applications based on specified input criteria . . .

None of these patents create private sector jobs -- they provide tools for more effective and efficient hiring. Contrary to much of what is reported in the news, and put forth by government, government doesn't create private sector jobs either. Specifically, jobs are created primarily by small employers (less than 500 employees). And as we know, small business owners today are very averse to hiring given the economic and regulatory uncertainty they are facing.

Friday, August 26, 2011

Steve Jobs, Inventor

Today's New York Times tribute to Steve Jobs as revealed in his patents is a fantastic view into the expansive work of a great inventor. A patent stories the way all patent stories should be written.

Thank you Chairman Steve!!!

Tuesday, August 23, 2011

Patent Urban Legends & Bad Patent Math

New and improved patent urban legends that are popping up all over the place. Patents are hot and every business journalist is checking in with their vision of what's happening in the patentsphere. Newly enhanced patent urban legends are breaking out all over the place. And the numbers are taking on a life of their own without much in the way of fact checking.

The most popular is the Intellectual Ventures (IV) patent count. On May 27, 2009 the Seattle Times reported that IV held 27,000 patents. Two years later on May 31, 2011 an IV press release announcing an intellectual property agreement with Micron says that the IV patent portfolio is more than 30,000 IP assets. (IP assets as in patents or as in licensing agreements or something else - who knows?) By June 28th the count was up to 35,000 patents. There is no way to figure out if these numbers are true or what they are made up of. So, the legend lives. There is no way of knowing if these patents are worth anything, if they can be commercialized, or if they are even valid. All we know is that there are a lot of them.

The latest trending patent urban legend has to do with how many patents cover inventions in the wireless space. During Google's pre-Motorola acquisition, Google's Senior Vice President and Chief Legal Officer David Drummond noted in a post on Google's Official Blog that "a smart phone might involve more than 250,000 (largely questionable) patent claims." Patent claims - not patents.

Patent 101 - each claim in a patent is an invention. A claim starts with a capital letter and ends with a period.

If the average US patent has 20 claims then Mr. Drummond was throwing around a number of about 12,500 patents (12,500 x 20 = 250,000 right?). Not a small number. But here comes the multiplier effect.

Today, Una Galani and Reynolds Holding's names appear on the byline under an article of titled, "A Murky Patent War" that, "Google cannot identify all the patents that may cover... the Android operating system. The company's chief legal officer says as many as 250,000 patents might apply to a smartphone." Not patent claims as Mr. Drummond said in his post but patents.

So we went from about 12,500 patents, depending on your favorite average number of claims divisor, to 250,000 patents in about 20 days. If we really want to blow it out we can take the Reuters number of 250,000 patents and extend it to the number of inventions (claims) in each patent so the new number of patent claims would be 5 Million patent claims. The legend grows.

But during the 20 days between Mr. Drummond's original posting and the Reuters article, Google bought Motorola mobility which owns 17,500 patents according to the press and another 7,500 patent applications. How will the press factor that in? What will be the new patent math?

The Reuters Breaking Views article adds that "A reasonable approach would be stricter approval of standards." I don't even know what that means? What standards? The standards of patentability which are spelled out in Title 35, Section 101? Standards vs. examination procedures? And who should approve the standards, the patent examiners? The courts? Who's responsible for this stricter approval of standards being recommended?

According to Reuters, Ms. Galani is a Middle East correspondent based in the United Arab Emirates. Maybe she should get a pass on this one since it appears she wrote the first piece on rethinking Libya and oil prices. But Mr. Holding is a lawyer who has what appears to be extensive experience in business and law reporting. Did they check anything before they published this stuff?

This new patent math and uninformed commentarydoesn't help the conversation on what's going on with patents. It fills up a lot of space in the business section but that's about it. The average reader leaves this article thinking how could there be 250,000 patents on a smart phone and that the way to fix the problem is to have stricter approval of standards.

The path to constructive improvements in the patent dialog is information transparency and statements of facts. Intellectual Ventures should cough up the list of all their "IP assets", Mr Drummond should be more specific about his 250,000 patent claims and why he things they are largely questionable, and reporters from Reuters and the folks at the New York Times who distributed the story should get the facts, even if it's hard.

Wednesday, August 17, 2011

Patent Week and It's Only Wednesday

It's Patent Week at major media outlets.

Here are the highlights so far:

Today - August 17th - Wall Street Journal: Kodak Launches Sale of Patents

Then there's Verizon hoping that the acquisition of Motorola Mobility will calm the patent war with a form of patent detente.

Tuesday - August 16th - New York Times: A Bull Market in Tech Patents
Reuter's Breaking Views has an article called, "Reading Palm" about HP's purchase of Palm and its cache of patents.

Then there's Google's $12.5B Gamble - one of hundreds of articles about Google's acquisition of Motorola Mobility

And, "Google's Deal Shakes Up Asia's Mobile Landscape," what happens when you go from being partners to competitors overnight.

On Monday there was the announcement of the Google deal (complete with a video) This was closely followed by an article in the WSJ on how the Google Deal Complicates Microsoft's Strategy.

And it's only Wednesday.

By the end of the week we'll find out that Nathan Mynhold actually owns a million patents instead of the current urban legend of 35,000.

Stay tuned.

Monday, August 15, 2011

Goog, Moto and the Patent Bonanza!!

Google buying Motorola Mobility changes the whole wireless patent war landscape. I wonder how the Rockstar Bidco guys feel about this one. $4B for the Nortel patents, $12.5B for the Moto mobility portfolio and all the stuff that goes along with it. Looks like they got more patents for their billions and a considerably lower per patent price.

So consider the following. Microsoft is hooked up with Nokia. Google has Moto. RIM has a bunch of stuff and the Multimedia Trust patents that go back to the Netravali days. And Apple has well Apple.

Do you think Carl Icahn was in on the deal? Was he having the red herring conversation to distract everyone while Google closed their deal?

Now things are really getting interesting. A patent attorney's bonanza. Here comes the big cross licensing deal and we all lived happily ever after with our cool mobile devices.

Stay tuned.

Tuesday, August 9, 2011

Indicia of Extortion

Here is one of my new favorite additions to my glossary of real life patent practice exegesis from the non-practicing entity part of the patent landscape:

Indicia of Extortion - filing nearly identical patent infringement complaints against a plethora of diverse defendants where the plaintiff (the guy filing the lawsuit) followed each filing with a demand for a quick settlement at a price far lower than the cost to defend the litigation.

Please cue the Sopranos music again.

A shout out to Judge Lourie for such an eloquently phrased definition of this practice which is found in the CAFC decision in Eon-Net LP v. Flagstar Bancorp.

An update from a reader's comment on December 5, 2012:

The most important indicia seems to be missing from your derfinition:
"where there is clearly no infringement." 

Monday, August 8, 2011

Calling Michael Porter

The snarky exchanges between Google and Microsoft continue. The latest is "When patents attack Android" a shallow attempt at riding the anti-patent troll sentiment generated by the NPR This American Life broadcast, "When Patents Attack." The exchanges are taking place on Twitter and the Google blogs - a testament to the reach of new technology in the public relations wars.

Google is pouting that the Rockstar Bidco bullies are trying to prevent them from selling Android devices. It's not fair. It's hindering innovation. That the Rockstar guys are banding together to add $15.00 per device to the cost of each and every Android device. (The $15 number is another one of those patent urban legend numbers that lives on its own without a lot of detail behind it.) I pay a premium every time I buy an Apple device and I'm happy to do it because I perceive that I am getting value for my purchase. Do these guys really think that a $15 surcharge is going to be a critical factor in a user's decision to buy an Android device?

And what about that dubious statement that "A smartphone might involve as many as 250,000 (largely questionable) patent claims, and our competitors want to impose a "tax" for these dubious patents that make Android devices more expensive for consumers." So where did this come number come from? I'm sure this commentary endear's Google with the folks at USPTO but more importantly, if google was so worried about the "largely questionable patent claims" why didn't you challenge the claims when the applications were published instead of waiting for your competitors to whack you in the head with the granted patents? (I like the fact that the link to the word might included in the post sends you to a Financial Times article that you can't read unless you are a registered user - way to go on the transparency front.)

Perhaps it might be a good time for these smart guys at Google to take a look at some of Michael Porter's work on competitive advantage and competitive strategy. There is the part about first mover advantages in which the first guy in a market has a competitive advantage and the other guys play catch up. . Kind of like Apple running Nokia and RIM out of the smartphone market and leaving Microsoft empty handed in the tablet market. Apple had first mover advantages in the smartphone/touchscreen world - oh and great design and an awesome marketing plan.

Lots of patent guys get this first mover thing - consider Apple and the iPod and Apple and the iTunes store. Apple, a patent savvy organization, licensed the infamous One-Click patent from Amazon. While I could fill pages with a discussion on whether business methods patents like the Amazon One-Click patent are valid or useful, that's not the point. Patent savvy guys figure out what they need to license, get the best price they can, build it into their cost structure and head out to the market to sell their stuff. Ask Barnes & Noble what happened to their 1999 holiday sales when they didn't have a license for the One Click patent.

Then consider barriers to entry - yep, patents are one of those things that restrict entry into an industry - in this case the mobile device space. Note to Google - see the Polaroid v. Kodak case where Polaroid kept Kodak out of the instant camera business. It wasn't pretty. When you enter the game late, the playing field isn't level. The guys who got there first have competitive advantage.

Google pointed out in its blog post that DOJ is demanding the winning group (Microsoft, Oracle, Apple, RIM, Sony, EMC) give a license to the open source software community. What's curious here is that Google seems to imply that this is a done deal - that the Rockstar team is going to be forced to license the technology. It doesn't look like DOJ has finalized such a demand yet. This doesn't change the equation though - developers of Android products are still going to have to pay royalties, the real question is where will the numbers come out in light of the earlier $15.00/device royalty. Things are not going to change any time soon.

I find it interesting that a company founded on a patent is whining that patents are impeding their ability to innovate. Maybe Google should take part of the money it didn't spend on acquiring the Nortel patents and invite Dr. Porter in for a discussion on the state of the technology markets and how to achieve competitive advantage.

Saturday, August 6, 2011

Patents Are Stifling Innovation - Really?

The conversation starts the usual way. Business owner comes in to talk about a patent predicament. Usually with a cease and desist letter in hand, the business owner has discovered that there is a patent out there that covers some feature of their product or service and the business owner is mad. This patent is "stifling innovation." Or to quote Kent Walker General Counsel of Google on Google's own patent predicament, "patents are Gumming up innovation."

The mandatory non-disclosure and confidentiality agreements are signed before the real conversation begins. The business owner never looked into patents when they started their new internet or software juggernaut. Patents are boring and hard to read. The process of building the company was hard enough, there was no time to dig into patents, there were products to release, investors to find, customers to sell to, accountants to meet, Tweets to write, conferences to go to. Now the business owner is mad that some "troll" is coming along and trying to extort money from their hard work. Oh, and here's a copy of my EULA that has language protecting the company's intellectual property. Make this go away. Then comes the phrase I always wait for, "THIS ISN'T FAIR."

Let the hunt begin - that quest for prior art that will kill off the patent that has become the fly in the ointment of business growth, the patent that is stifling innovation.

If you want to hear how this conversation usually goes down across the intellectual property landscape, the check out the latest podcast at This Is My Next. At around the 50 minute mark the conversation turns to patents, Google's pouting about how it's not fair that the guys who own patents are coming after Android and the rest of the technology patent wars. Joshua Topolsky and Nilay Patel go at it. Imagine Joshua Topolsky as the disgruntled business owner and Nilay Patel as the patent attorney (he really is a patent attorney) reasoning with his client. It's an anecdote to all the patents are terrible patents are stifling innovation vitriol out there. The patent spat is enlightening and rest of the podcast is worth a listen too.