The Lone Inventor

This article from Fortune discusses the trend of companies looking outward to entrepreneurs and inventors for their innovation needs:

Corporations have outsourced a fraction of their R&D for years, but today their dependence on entrepreneurs for innovation is unprecedented. During the past three years P&G has cut in-house R&D spending from 4.5% of sales to 3.5%, while increasing the share of ideas and products it gets outside the company to 35% from 20%; its goal for the process, called Connect and Develop, is 50%.

Apple Macintosh Inventor Dies

This article from PC Pro discusses the life of Jeff Raskin, who is credited with inventing the Mac for Apple:

Raskin became a strident critic of Apple and Mac OS X in particular. In an interview with MacUser last year, he said, 'Mac OS X, from a user's point of view, has become a morass of obscure detail. Increasingly, we are sent to Terminal to find some piece of data or do some task, and users have to become Unix hackers. The software is bloated, under-documented, and constraining to developers. The old GUI has not scaled well, and Apple tries to fix it by adding, and adding, and adding instead of
rethinking. It is gone from insanely great to insanely gross.'

Intermittent Windshield Wiper Inventor Dies

This article from the Washington Post discusses the life and court battles of Robert Kearns, inventor of the intermittent windshield wiper:

From a basement in Detroit, where he devised his invention, to Gaithersburg, where he moved in the 1970s, Kearns carried his lonely fight all the way to the Supreme Court, one man against the might of the industrial world and a patent system he believed had let him down.

Inhibiting Innovation?

This commentary from Tech News World questions whether software and genetic patents are actually inhibiting innovation:

The question arises, if a company can crack the genetic makeup of rice and patent it, control its use and for all intents and purposes, own it, what then will happen with all these patents on human genes? Will it mean that in being born, we are infringing on a number of patents -- using the genetic code without a license?

Offer for Sale Must Be For the Patented Invention

Spartan Corp. v. United States, No. 03-5169, Federal Circuit, February 28, 2005

In this case, the Federal Circuit reiterated the requirements of a "commercial offer for sale" (the first prong of the Pfaff test) under the on-sale bar:

While the Supreme Court has not explained what is necessary for a "commercial offer for sale," we have held that two elements are necessary. Namely, a court must find that (1) there was a "commercial offer"; and (2) that offer was for the patented invention. Scaltech, Inc. v. Retec/Tetra, L.L.C., 269 F.3d 1321, 1328 (Fed. Cir. 2001). (emphasis added).

Here, Spartan had submitted an Engineering Change Proposal prior to the critical date. Interestingly, both parties had agreed that was was submitted in the ECP was not the patented invention. There was no evidence that Spartan had offered for sale anything other than what was listed in the ECP. Because the subject matter of the offer for sale must anticipate the claimed invention, the Federal Circuit reversed and found that 102(b) had not been violated because it failed the first prong of the Pfaff test.

Tesla: Master of Lightning

This article from Popular Mechanics discusses:

A visionary genius with more than 700 worldwide patents to his name, Nikola Tesla (1856-1943) was one of the greatest inventors of the 20th century. He was also one of history's most controversial and misunderstood scientists. So much so, Tesla has taken on an almost mythical status as a cult hero, and is the focus of conspiracy theorists.

Apparently there was a special on PBS about his life tonight, but since I'm a little late on the uptake today, let's hope it gets aired again.

(Right now there is an annoying ad on the Popular Mechanics web site with a buzzing fly, so if you click the link above, you might want to have the sound off in case the ad is there to stay.)

And a "teaser" article about Tesla from Scientific American.com. You have to be a member to read the entire article, published in their March 2005 issue.

If you still can't get enough, here is the Encyclopedia.com entry on Tesla, which includes many more links.

Edited to Add: Here's a link to titles and numbers of all Tesla's patents from Jim Bieberich.

More on Software Patents

Here is a site with a lot of links, papers, and articles relating to software patents, including The Letters of Thomas Jefferson stating no patents on ideas. Most of the views and articles linked here are opposed to software patents, so I'm going to see what I can find in support of software patents. Strangely enough, it seems like most people hate them, or those who don't mind them aren't passionate enough about it to create entire web sites about the issue.

Edited to Add: I just found a very nice (and fairly long) discussion of the debate on software patents at Answers.com, which includes the varying positions out there on software patents.

Need to Find a Patent?

This is an wonderful link, which allows you to easily search for patents (and patent stuff) all over the world. Put it in your Favorites! Thanks to Bill Heinze at I/P Updates for the heads up.

The Amazon One-Click Patent

I don't need to write about this infamous patent, because enough has already been said about it. After all, whenever anyone brings up software patents, this is the first one mentioned to show the outrage (!) at allowing these types of patents.

However, in my random Internet searchings this evening, I discovered that Tim O'Reilly's web site offers a nice archive of history (and controversy), including interviews with Jeff Bezos, of this Amaz(ing) patent.

Cure for the Red Tide?

Backyard inventor Bob Rigby says he's found what scientists have been looking for for a half century: a chemical to control red tide, the algae that release toxins, killing fish and aggravating breathing problems in humans. Rigby won't divulge the formula for his secret potion, which he said kills the algae without harming fish or other marine life.

Article here.

eSpeed's Patent Fails Written Description

Cantor Fitzgerald LP's patent for electronic bond trading, the subject of an infringement lawsuit with ICAP Plc, isn't valid, a jury ruled.

The federal court jury in Wilmington, Delaware, made the decision after 15 hours of deliberations following a two-week trial, saying that Cantor ``failed to provide adequate written description'' of the technology.

Articles here and here.

What Did You Search Before?

Amazon subsidiary A9 had a patent application published yesterday by the USPTO:

On Tuesday, the United States Patent & Trademark Office published the Amazon.com subsidiary's patent application No. 2005003380. "Server architecture and methods for persistently storing and serving event data," filed in July 2003, describes A9's method of personalizing search results by including an individual's past searches and other behavior. The same application is on file in the European Union.

Full article here.

Patent and Trademark Institute of America

Looks similar to Invent-Tech. Another inventor is having problems:

Steinberger said companies like PTI tell people what they want to hear and leave the truth to the fine print.

Bozeman's fine print read "The portfolio does not provide patent protection or any legal or patent advice." And "no promise or guarantee that the inventor will receive any profits, success, results or financial gain."

The Monopoly Machine

An interesting read:

In our last column, Attorney Bruce Epperson described how Colonel Albert Pope, the "Rockefeller of Bicycles" manuvered in 1878 to acquire all the significant patents covering the basic features of the bicycle, including Pierre Lallement's 1866 "Improvement in Velocipedes," the first bicycle patent in the United States. This Week, in Part 2 of "The Monopoly Machine" we look at how the Colonel tried to use those patents to create a monopoly over the entire bicycle industry.

Diamond v. Chakrabarty and the Recent Human-Hybrid patent application

In light of the Patent Office's decision, it is interesting to review some of the Supreme Court's language in the Diamond v. Chakrabarty case, where the Court held that a living organisms was patentable under 35 U.S.C. § 101. While the Patent Office rejected the monkey-human hybrid combination as being "too human" (and in fact stated in 1987 that it would draw the line at humans), it set forth no legal basis for doing so. Remember, "anything under the sun made by man" can be patented.

In Chakrabarty, the Supreme Court stated that it was Congress's place to legislate on moral issues and the Court's place to establish whether or not an invention fulfilled the requirements of the Patent Act:

To buttress his argument, the petitioner, with the support of amicus, points to grave risks that may be generated by research endeavors such as respondent’s. The briefs present a gruesome parade of horribles.

****

These arguments are forcefully, even passionately, presented; they remind us that, at times, human ingenuity seems unable to control fully the forces it creates — that with Hamlet, it is sometimes better “to bear those ills we have than fly to others that we know not of.”

It is argued that this Court should weigh these potential hazards in considering whether respondent’s invention is patentable subject matter under § 101. We disagree.

****

What is more important is that we are without competence to entertain these arguments — either to brush them aside as fantasies generated by fear of the unknown, or to act on them. The choice we are urged to make is a matter of high policy for resolution within the legislative process after the kind of investigation, examination, and study that legislative bodies can provide and courts cannot. That process involves the balancing of competing values and interests, which in our democratic system is the business of elected representatives. Whatever their validity, the contentions now pressed on us should be addressed to the political branches of the Government, the Congress and the Executive, and not to the courts.

****

Congress is free to amend § 101 so as to exclude from patent protection organisms produced by genetic engineering. …. Or it may chose to craft a statute specifically designed for such living things. But, until Congress takes such action, this Court must construe the language of § 101 as it is. The language of that section fairly embraces respondent’s invention.

In reading what the Supreme Court wrote twenty five years ago, it begs the question – what is different today? Shouldn't Congress be dealing with this, and not the USPTO? After all, if the monkey-human hybrid is useful, novel, and non-obvious, it meets the requirements for patentability as laid out by Congress. Is it really the USPTO's place to make moral judgments on what should be patentable subject matter?

Chimeras

I have to admit that I am fascinated by the idea of chimeras. The very ghoulishness of it makes me want to read all I can about it -- the moral issues, the ethical issues, and the science issues. The USPTO's recent rejection of a patent on an animal-human hybrid caused me to want to do a bit of reading on the subject. Here's a sampling of some of the great articles out there about this topic:

Gods and Monsters:

ON APRIL FOOLS' DAY 1998, within hours of reading U.S. patent application No. 08/993,564, the Honorable Bruce Lehman did something no other commissioner of patents had done in the 200-year history of America's oldest government agency. He stepped before a cluster of microphones and announced that the patent would never be approved. No half-human "monsters" would be patented, Lehman declared angrily, or any other "immoral inventions."

Of Mice, Men, and In-Between:

In Minnesota, pigs are being born with human blood in their veins.

In Nevada, there are sheep whose livers and hearts are largely human.

In California, mice peer from their cages with human brain cells firing inside their skulls.

These are not outcasts from "The Island of Dr. Moreau," the 1896 novel by H.G. Wells in which a rogue doctor develops creatures that are part animal and part human. They are real creations of real scientists, stretching the boundaries of stem cell research.

Animal-Human Hybrids Spark Controversy:

But creating human-animal chimeras—named after a monster in Greek mythology that had a lion's head, goat's body, and serpent's tail—has raised troubling questions: What new subhuman combination should be produced and for what purpose? At what point would it be considered human? And what rights, if any, should it have?

There are currently no U.S. federal laws that address these issues.

What Is Too Human?:

Nevertheless, mixing human and animal genes and cells does pose some moral conundrums. First, consider the possibility of crossbreeding humans with other primates. There is some evidence that such mixing might succeed. Researcher J. Michael Bedford reported in 1977 that human sperm could penetrate the protective outer membranes of gibbon eggs. So far, from what we know, no one has attempted to create a human/chimpanzee hybrid. But would that be wrong?

Oliver The Mutant Chimp:

A chimpanzee named Oliver has stumped and astonished scientists for nearly twenty years. He is physiologically unusual, with a lack of hair on his chest and head, and a jawline and ears that are shaped differently from normal chimps. But more notably, Oliver very much acts human. Way too human.

102(e) Flowchart

Thanks to Stephen Nipper over at The Invent Blog, for pointing out this great resource from the USPTO for determining 35 U.S.C. § 102(e) dates.

American Idol for Entrepreneurs

Home shopping channel QVC Inc. spent one day this week at the Hyatt Regency Orlando interviewing more than 500 inventors who were vying for the chance to debut their products on television. Full article here.

Learn to Deal With Software Patents

HP's VP of Linux speaks out on software patents:

"At the end of the day, software patents are a way of life. To ignore them is a little bit naive," Martin Fink, HP's vice president of Linux, said here at the LinuxWorld Conference and Expo. It's fine to object to software patents, but it's foolhardy not to try to acquire them, he said.

"Refusing to patent one's ideas is leaving oneself exposed for absolutely no good reason," Fink said. "For some, (getting patents) may seem like selling out. You can comfort yourself that it's what you do with the patent that matters, not the fact that you have one."

"Too Human" Hybrid

A New York scientist’s seven-year effort to win a patent on a laboratory-conceived creature that is part human and part animal ended in failure Friday, closing a historic and somewhat ghoulish chapter in American intellectual-property law.

Creepy...

Valium!

The inventor of Valium has been inducted into the National Inventors Hall of Fame.

Experimental Use

Lisle Corp. v. A.J. Manufacturing Co., No. 04-1275, -1346, Federal Circuit (February 11, 2005), affirmed.

The district court denied A.J.'s motion for judgment as a matter of law after a jury found the '776 patent was not shown to be invalid for public use.

The determination of whether a patent is invalid for public use is a question of law reviewed de novo, but questions of disputed facts that support that determination are reviewed for substantial evidence after a jury trial.

The facts are as follows: The patent relates to an inner tie rod tool. On or about December 12, 1989, Lisle delivered a prototype tool to four different automobile repair shops in Omaha, Nebraska. Lisle did not receive any payment for the tools, nor did he require any of the mechanics to enter into a formal confidentiality agreement. The application leading to the '776 patent was filed on June 26, 1992, over thirty months later. A.J. alleged that this constituted public use under § 102(b). The jury found that the use was experimental.

The Federal Circuit agreed that A.J.'s motion for JMOL should be denied. First, substantial evidence supported the jury's finding in favor of Lisle on the question of experimental use. The coinventor of the patent had testified that : (1) he needed to know how well the wrench disc would fit on the inner tie rod socket and whether the prototype tool would fit in the confined location of the tie rod in different automobile models; (2) company protocol was to contact the mechanics every two to four weeks for feedback; (3) the design was modified in response to comments from the mechanics; (3) Lisle had a prior working relationship with the mechanics, who knew the tool was being given to them for experimental purposes. The jury also saw "General Meeting Reports" which gave updates on the status of the tie rod tool project.

More on Invent-Tech

Yet another article about Invent-Tech. In part:

Complaints about Invent-Tech, which was founded in 1996, are on the FTC's Web listing of "frequently requested records." A Tuskegee resident wrote in an FTC filing that the company "lied about my disclosure document filed to u.s. patent office and all they wanted was money so i got real curious about there services."

The resident stated in the filing that he paid Invent-Tech $900 through a money order but that the company had asked for $30,000.

The patent office also lists five complaints from Invent-Tech customers.

So You Wanna Patent Something?

In the same vein as the How Patents Work post below, here is the So You Wanna folks' interpretation of getting a patent:

So You Wanna Patent Something?

A Coke and a Smile With Your Cell Phone

According to this article,

U.S. consumers may soon be able to use their cellular phones to buy Cokes at vending machines now that the Coca-Cola Co. has won a patent for vending machine payments via cell phones and PDAs, according to ePaynews.com, an online electronic commerce news service.

The Tragedy of Publication

Sometimes the patent laws really can screw up your day. Again we see the importance of contemporaneous recognition and appreciation. From this article:

Unfortunately, the best of these cancer-fighting compounds cannot be patented and developed by a pharmaceutical company, because it was published before the discovery of its incredible potential.

In 1997, John Huffman, a Clemson faculty member for 45 years who has led this research at the school for 20 years, created a compound and named it with his initials, JWH-133. He then published it in a 1998 edition of Bioorganic and Medicinal Chemistry, not realizing the possibility of a revolutionary drug coming from the compound.

Contemporaneous Recognition and Appreciation

ISCO International, Inc. v. Conductus, Inc., No. 04-1007, 1008, Federal Circuit, February 3, 2005, non-precedential, affirmed

A jury found that the asserted claims of ISCO's '215 patent, which was directed to a receiver front end for a cellular base station, to be invalid and not infringed. Following the trial, ISCO filed a motion for judgment as a matter of law, which was denied. This appeal followed.

To begin, the Federal Circuit reminded all of us just how difficult it is to get a jury verdict overturned. On appeal from a judgment denying a motion for judgment as a matter of law, the Court need only find that the jury's findings are supported by substantial evidence – in other words, the Federal Circuit has to find that no reasonable juror could have reached such a result in order to reverse. Uphill climb? You bet.

ISCO argued that (1) the jury was not entitled to consider the ARPA report as prior art; and (2) the jury could not have reasonably reached its conclusion of obviousness based on the evidence presented at trial.

This ARPA report was released in February 1995. ISCO vigorously argued that it was not prior art because ISCO's conception date was December 1994, and submitted drafts of a proposal created in December 1994 in support. However, the Court agreed that the draft did not show conception of the invention – there was no "definite and permanent idea" of a "complete" invention. Conspicuously absent was the appreciation of an automatic bypass circuit:

“It is well-settled that conception . . . cannot be established nunc pro tunc. There must be contemporaneous recognition and appreciation of the invention represented by the [claims].” Breen v. Henshaw, 472 F.2d 1398, 1401 (CCPA 1973). Because ISCO’s predecessor failed to appreciate certain inventive features at the time of the alleged conception, ISCO cannot rely on a later recognition of those features to retroactively cure an incomplete conception.

Regarding the jury's obviousness finding, ISCO argued that the ARPA reference did not suggest a motivation to modify its teachings to achieve the claimed invention. The Federal Circuit ixnayed that argument:

"However, the suggestion or motivation to modify a reference may be derived from the knowledge of those skilled in the art or from the nature of the problem to be solved. Considerable evidence was presented at trial of the knowledge of a skilled artisan in the relevant art and the nature of the problem, from which the jury could have reasonably discerned a motivation to modify the ARPA report to obtain the invention of claim 10."

Next, ISCO argued that another prior art reference was non-analogous prior art because it was directed to military, not cellular applications. However, ISCO was caught with their foot in their mouth when the Federal Circuit noted that the aforementioned December 1994 draft proposal referred to both civilian and military communications systems.

In short, the Federal Circuit affirmed.

The Ball Point Pen

Here's an article about the inventor of the ball point pen, which was patented in 1888. In part, the article says:

He only made a few of his pens, but a display ad was designed, probably for use in newspapers. It shows diagrams of "Loud's Rolling-Pointed Fountain Marker", mentioning him as the inventor and sole proprietor. But he didn't sell many, and the patent was allowed to lapse. Here's the patent information:

"Weymouth, Mass. (No. 392,046). This patent described a pen having a spheroidal marking point capable of revolving in all directions which was held down by three smaller anti-friction balls, themselves held down by a flaired spring-loaded rod. A threaded cap at the end of the pen could be removed to recharge the pen with ink. The patent described the invention as being especially useful for the marking of rough surfaces such as wooden or paper boxes, coarse wrapping paper and other surfaces where the ordinary nib of a fountain pen could not be used because it would split, spatter or catch."

What Are Secondary Considerations?

In the Merck case this last week, we saw the Federal Circuit pretty much ignore evidence of commercial success in invalidating the Fosamax Patent. However, when all else fails, secondary considerations (or objective evidence) can often be used to overcome an obviousness rejection or challenge under § 103. Some examples of secondary considerations are:

(1) The invention's commercial success
(2) Long felt but unresolved needs
(3) The failure of others
(4) Skepticism by experts
(5) Praise by others
(6) Teaching away by others
(7) Recognition of a problem
(8) Copying of the invention by competitors


To the courts, all of the above can help establish that an invention is not obvious. Why? Logically it makes sense. If you look at all of the above factors, establishing any one of those things can help infer that the invention is not obvious. After all, for example, if an invention will bring commercial success, or if there is a need for it, or if there is praise by others, then it stands to reason that others may have tried to develop the invention, but failed. The same goes for copying by competitors – why wouldn’t they just design around it if it were that obvious? Hence, the inference of nonobviousness. However, as we saw in the Merck case, proving one of these factors is sometimes not dispositive, especially when proving commercial success of the invention.

Note that secondary considerations cannot be used to overcome a § 102 rejection or challenge.

Outboard Motors

Not many people associate Detroit with the outboard motor, but that is indeed where it was invented in 1905. Here is an article detailing the history of the outboard motor. And the first one will be on display at Cobo Hall next weekend:

Parts of that first outboard motor are in Detroit. The fuel tank, tiller, chain drive and prop are missing, but the Curtiss motor that powered it is in the Dossin Museum on Belle Isle.

And at the Grosse Ile Historical Society's Depot Museum, there is a photo showing how the original chain-driven outboard looked as it leaned against the Waterman dock 100 years ago.

That motor will be the centerpiece of an exhibit of antique outboard motors -- including a complete, gear-driven Waterman as well as motors by Sears, Chris-Craft and a Detroit firm called Caille -- at the Detroit Boat Show Feb. 12-20 at Cobo Hall, said John Polacsek, the Dossin Museum's curator.

The Pop Top Can

Here's a link to an interesting article about the inventor of the pop top can, which we are all very familiar with. In part, the article states:

Their first customer, Pittsburgh Brewing Co., maker of Iron City Beer, ordered 100,000 can ends in 1962. Iron City's sales soared 400 percent in the next six months, recalled Terry Fraze, former chairman of his father's company. Beer and beverage makers started beating a path to Dayton.

Bartenders hated the sharp edges of the earliest version, according to Terry Fraze, and inverted the cans to open them with traditional "church key" openers. In 1965, his father came up with a ring-pull version that caused less bloodshed. Next came one with a dimpled ring to prevent its use to jam parking meters and, in the '70s, a now-mandatory nonremovable ring, which reduced litter.