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.

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