#24 - USPTO maintenance fee increase and implications

A short blog post on PatentlyO brings to us news that the United States Patents and Trademarks Office (USPTO) has, of today (March 19, 2013) increased the patent maintenance fees. (See the full story here on PatentlyO).

Graph from PatentlyO

The way that patent fees work is that there is an initial filing fee, depending on what type of patent you are filing. The maintenance fee is a separate fee that you continue to pay even after the patent has been filed and approved. These fees are paid at three intervals, the 3.5 years, 7.5 years, and 11.5 years marks.

As the graph illustrates, the fees climb at every interval. The interesting part here is that in the past, the fees grew somewhat proportionately at every interval. With the new fees in place, however, there is real curve ball at the 11.5 year mark, at over a 50% increase from the previous interval.

I actually think the fee hike is somewhat of a disincentive both to file and to keep a patent. Given that as the patent ages, the fees to maintain it rise, a patent owner would be convinced not to keep a patent that is both expensive to maintain and possibly outdated. Perhaps this is a way to reduce the less worthy content in the patent systems.

#23 - Google called out for flawed 'search methodology' by Apple?

An update on a case between Apple and Samsung comes to light regarding the search operations to identifying the relevant documents. This particularly interesting given the fact that an external factor such as the validity of documents is inherently a problem within the patent litigation system as well. (See the full source on Foss Patents here).

The first piece of search results, as I understand a large company would do, is to run automated searches over all company documents. The tricky part in this is that in order to identify the relevant documents, you need to use the appropriate search terms.

In this case, Apple is even proposing that they work with Google in this process to procure more relevant documents at a faster speed. This entails that Google provide a list of the search terms they planned to use. And part of Apple's suspicion here is that Google might be intentionally using search terms that aren't optimal. Foss Patents gave an example of this as being what Apple might call 'slick to unlock,' whereas on Google's side, they would have used a different term internally. All the while, Google says it is an unnecessary burden to be required to have full disclosure of its search terms. Google is actually a third party in this case but it is possible that the search is used in favor of its position with Samsung given the entire case dispute.

This article just brought some thoughts full circle to realizing that the patent litigation cases we see in the news all the time are indeed substantiated by the right data, the right documents, and are supplemented by the research tools of each company. As a result, the different companies to get involved in litigation cases with boast varying levels of research and technology capabilities, which might also have an impact in the duration and outcome of the case. If, for instance, a suing company cannot procure the necessary documentation, then their litigation efforts will be futile.

#21-22 - Design patents and Joint patent ownership

#21 Video - Design patents

#22 Video - Joint patent ownership

#22 - Joint patent collaboration and infringement

A post on PatentlyO (full article can be seen here) brought some interesting facts to mind--as well as their repercussions. In the blog post, Dennis Crouch brings up some of the conditions for joint inventorship. This specifically states that joint inventorship is: "when an invention is made by two or more persons jointly," but it does not require that the two parties need to "physically work together or at the same time," "make the same type or amount of contribution" or contribute to "every claim of the patent."

I actually personally find this a bit difficult to understand, given that there is still the requirement that these be undertaken "jointly." Does it mean, then, that anyone who had even a minute role in contributing to the idea and claim, are "joint inventors?" That would certainly make sense, but I can imagine how this can be a gray area for both the inventors themselves, and then subsequently in court if it is brought into a case. In the case that the PatentlyO poster observed, the case was dismissed as joint infringement given that there was no evidence of collaboration.

This really brought to mind some of the issues that joint inventorship will bring up in the space of mobile. Given that Google, Microsoft, Samsung, Qualcomm, etc., often own patents together in different relationships, it really creates a series of problems particularly around litigation. For example, who is responsible for the fees? And who puts the patents on their balance sheets? Then who amortizes these patents and recognizes the amortization expense on the profit and loss statements?

An example of this is Apple and Google going in together to buy Kodak's patents. While it prevented Kodak from starting a bidding war between the two companies, it also created this grey area for patent ownership and possible tensions between the two owning companies in the future. Joint ownership certainly can be useful, but it presents the grey areas as well.

#21 - Design patent applications: divided to conquer

The number of design patent applications has increased in the past few years, and it doesn't necessarily have to do with the fact that the number of new ideas has grown. A good percentage of this growth can be attributed to the fact that the filing parties are filing a group of design patent applications that claim a small piece of the overall design. (See the full story here on PatentlyO)

This is actually quite easily done, because in each patent filing only a small portion of the submitted designs and drawings have to vary from patent to patent. For example, in these patent application drawings, the solid lines can represent what is claimed, and everything that isn't being filed for can be illustrated in dotted lines. This means that, for each application, the only thing that needs to be changed from patent to patent is that you make parts of the drawing dotted and other parts undotted for whichever claim you represent.

Thinking about this, it's actually very strategic, because by dividing a design patent like this, competitors will find it difficult to even copy a small portion of the design. Furthermore, if a company is looking to make additional changes later on in the future, they can make changes and the patent can still hold to protect their design.

Translating this into what it means for mobile wireless design patents, we already know that design is such a contended space. The big case that everyone knows about is Samsung vs. Apple in the case of rounded corners. If any device maker goes to lengths to create a separate filing for each piece of the design, then competitors will find it difficult to even use a similar idea without infringing on the claim. Though at the same time, I think this would be somewhat anti-competitive given that competitors rely on the same basis of design. But it will then be a race to who can come up with the novel designs the fastest, then to patent each piece of the design, and conquer competitors.

#19-20 Videos - Apple loses 'slide-to-unlock' in Germany & Android infringes text selection mechanism belonging to Apple

#19: Apple loses 'slide-to-unlock' feature in German courts

#20: Android devices found to infringe on text selection mechanism of Apple

#20 - Android's text selection infringe's Apple's patent

This is a case of demonstrating the benefits of first mover advantage. Surely Apple cannot have been the only one to think of a method for providing translucent images on a computer display, but ultimately Android phones have used a similar method for their text selection and therefore Apple is taking this chance to assert its patent claims in this ongoing investigation. (See the full story here on Foss Patents.)

An example of text selection on an iPhone.

An example of text selection on an Android device.

Surely this idea cannot belong solely to Apple? Regardless, the results of the investigation show that Samsung's Android devices have infringed upon the claims in the patents under fire. Particularly, this refers to  the text selection feature on the browser application, and also the translucent buttons of the Android photo gallery.

This brings to mind what it means to infringe upon a claim. Claims really are detailed, and yet they are broad enough to compass the potential workaround that competitors are using. Samsung's method of text selection is certainly not the same as that of Apple products, and yet it is similar enough that it appears to be the company's way of working around the great idea by using it but striving to be different enough that it doesn't infringe. Investigations unfortunately find it to actually infringe on the claims. So we'll see what the next clever workaround or new idea is. This is where patents come in to foster innovation, I think. Once a great idea has been played, it is up to the other competitors to come up with even better ideas.