Ridiculous Patents (Part 2)

US 7051379 B2: Protective Head Gear (2006)

To me, this patent just seems like it's talking about a helmet for only the back of the head. Why would anyone pick this over a regular helmet that covers your entire head? And what sport or activity that people usually need head protection for guarantees that you will only fall backwards? I just don't know why anybody would use something like this. And since helmets existed before this, I think it might be using similar ideas in terms of protecting the user's head. This patent just focuses on protecting the back of the head. So the novelty of this invention is questionable, in my opinion. 

US 6313371 B1: Flatulence deodorizer (2001)

It's basically a patent for a fart smell absorber. It's a simple invention consisting of activated charcoal cloth to be taped inside the user's underwear. The patent claims the inventions to be "a safe, effective, cost efficient, comfortable and least intrusive method of dealing with this embarrassing problem." My first question is - does it deal with the noise? I feel like the noise is honestly more embarrassing than the smell. This invention deals with the smell of farting, but I wonder if people would really be willing to spend money to take care of their fart smell problems. I guess, it could be useful for people who are concerned about this issue, but I just think that this is a silly patent. If it works, though, I think it is a novel, an unobvious invention for a patent. It's still silly though. 

US 5031161 A: Life Expectancy Timepiece (1991)

First of all, this this thing even work? What methods does it use to determine how much time a person has to live? Just the idea that it's trying to calculate a person's life expectancy seems pretty ridiculous to me. But it is unique in terms of an individual life expectancy calculator, novel, and unobvious. 

Ridiculous Patents (Part 1)

These are patents that I found very silly, ridiculous, or just plain stupid. I can't believe the USPTO actually granted these patents, but they're actual, legal patents. 
I'm generally going to focus on why I picked these patents (pretty much why they're stupid). And also share a little bit of my opinion on the validity of the patents as well. 

US 5107620 A: Electrified Table Cloth (1992)

The patent says it's "an electrified table cloth for preventing crawling insects from gaining access to the consumer's food or drink"
The first thing I'm wondering is what if the person using the cloth gets electrocuted? They say it's low voltage, so a consumer who may come into contact with the cloth will usually not feel the current. But if it's that weak, then what good is it to repel the insects? And if it is strong enough to harm the bugs, I honestly think the person eating on the table will touch the tablecloth way more than any bugs can get on it. But yes, this patent is unique and not obvious, so it is a valid patent. I just think it's pretty useless and impractical. 

US 6490999 B1: Collar apparatus enabling secure handling of a snake by tether (2002)

This is basically a patent for a snake leash. You can see the image that was provided on the patent here. Honestly... why would anyone even need something like this? Snakes don't need to be walked like dogs. There's absolutely no purpose for this invention. If you don't want your snake to run away, just keep it in a cage! If you want to play with it, you can play with it without a leash. If you want "secure handling" as the title suggests, that either means you don't know how to handle a snake securely yourself, which means you shouldn't be getting your hands on a snake in the first place. Dogs like taking walks, but I doubt snakes would. And even if they did, I bet the leash would deter their mobility, as snakes crawl, not walk. A question I have about novelty is whether or not this would infringe on prior patents for animal leashes. Because they do exist, and this patent could infringe on such previous patents that encompass leashes for all animals. But nobody would really find a need to put a leash on a snake, so I do think this patent is not obvious. 

NPEs + Patent Trolls (Part 3)

In this last post on NPEs or patent trolls, I wanted to shine a light on the positive efforts done and in process by the US government to regulate patent trolls. 

In June 2013, President Obama suggested that the USPTO make their rules on patent-infringement lawsuits more specific, requiring the suing companies to specifically state what their patent covers and how it is being infringed. 

In the same year, Senator Orrin Hatch sponsored a bill called the Patent Litigation Integrity Act, would help judges force the NPEs trying to enforce their patents actually pay for the lawsuits.

Last November, the U.S. Federal Trade Commission settled its first consumer-protection lawsuit against a company for using “deceptive sales claims and phony legal threats” to try to get unsuspecting companies to license patents. It was against MPHJ Technology Investments, which had warned more than 16,000 small to midsize companies for violating their patents involving the use of common document scanners hooked up to a computer network. 

So we know that the U.S. government and its officials are noticing the problem of patent trolls and NPEs abusing their patent rights, and we know that actions are being taken specifically by the legislative to prevent people form abusing their patent rights. 
We need to be careful though, of which patent holders are actually maliciously using patent litigations to pull money from other people and who are actually rightfully trying to protect their patents. I think it's great that President Obama has asked patent rights enforcement lawsuits to be more specific so that our judicial system can more effectively uphold the righteous standard of patents in the US. 

So although I've been discussing in my previous posts the various problems associated with NPEs, we know that our government is trying its best to protect product developers against patent trolls. 

NPEs + Patent Trolls (Part 2)

In this post, I'll be focusing on why patents trolls can be a problem and why they're actually called trolls in the first place.  

Patent Lawsuits Involving NPEs Over Time

(Graph from PatentFreedom, 2014)

From this graph, we can see that the number of patent lawsuits with NPEs have drastically increased in the last few years, revealing why this is such a highly debated topic of late. 

To more clearly define patent trolls, I'll provide the definition given by TJ Chiang, a professor at George Mason Law School. 
He says a troll patent is one that:
1. Is owned by someone that does not practice the invention.
2. Is infringed by, and asserted against, non-copiers exclusively or almost exclusively. By copying I mean any kind of derivation, not just slavish replication.
3. Has no licensees practicing the particular patented invention except for defendants in (number 2) who took licenses as settlement.
4. Is asserted against a large industry that is, based on (number 2), composed of non-copiers.

So he's basically saying that a patent troll is a NPE that exists for the sole purpose of receiving licencing settlements or patent enforcement lawsuit settlements.

This sort of bahavior can lead to inflated prices because of the way the production of these patented technologies is withheld and made more expensive for those who actually want to produce them. 

Besides this, patent trolls often use their patents to threaten those who produce their patented technology, even though they themselves are not competitors in the market. Also, one key method used to settle patent disputes is counter-assertion, but NPEs generally don't produce products themselves, so the companies/people being sued for producing the NPE's patented products practically have no way to fight back against this kind of patent trolling.

NPEs + Patent Trolls (Part 1)

Some people or companies that hold a patent for a certain invention or technology do not actually produce these products. This becomes an issue when they try to gain money through enforcement of their patent rights against the people who actually try to produce these technologies.

Such people are categorized as non-practicing entities (NPEs), or sometimes patent trolls. And I can't introduce a topic without providing a more formal definition first, so that's what I'll be starting off with. 

From my research, I've found a variety of definitions for NPEs. One source defines NPEs as "an entity that earns or plans to earn the majority of its revenue from the licensing or enforcement of its patents." Another source defines an NPE as "a patent owner who does not manufacture or use the patented invention, but rather than abandoning the right to exclude, an NPE seeks to enforce its right through the negotiation of licenses and litigation." So in summary, NPEs are those who hold a patent and do not produce the patented technology. 

However, we can't say that all people who are of this category are necessarily "trolls" or intentionally bad. This could just be a result of the NPEs inability to produce or manufacture the patented technology, such as a lack of the funds or the resources to do so. 
Sometimes the inventors of a patented technology can choose to sell their patents or give licenses to manufacturers to allow their technology to be produced without infringing on their patent rights, which I believe is the right thing to do in such a situation. 

However, NPEs become a problem when they intentionally file and collect patents just for the goal of using these patents to gain payment for merely owning these patents, and this is where the term patent troll comes in. I'll talk more about patent trolls and the negative consequences of their patent litigations in the next post. 

Review of Video on Obviousness

For this blog post, I'll be discussing this video:

What I liked the most about this video is the fact that it shows a visual model of how to understand obviousness in patents, so this really helped me gain insight into what obviousness is and the simple basics of what I need to know in order to avoid getting my future patents labeled as obvious. 

This first diagram shows the intersection between a new set of ideas and a set of known things, and how to define what is in common. The obviousness problem lies in how much of your patent or invention intersects with prior art. If what you claim to be a new set of ideas intersects too much with a set of already known things, then what you claim to be a new set of things can be obvious, since some of it was already known. 

The second diagram shows how a prior art search for obviousness is performed on an invention. 

So the basic idea of how a prior art search is performed:

• Given a set of inventions X, Y, A, and B
• Let's say a portion of your invention has already been invented in invention B, then the breadth of your invention has been reduced. 
• After the prior art search is complete, your entire invention is found in the set of prior art inventions
• If your entire invention is found within the prior art and lies within two or more inventions, then the prior art search is found as obviousness.

Video summary:

Obviousness

I'll start off with the formal definition of obviousness as stated by U.S. law:

The Patent Act of 1952 states that a patent claim is obvious if "the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art."

This statement was really unclear to me, and I had a lot of questions. How do you decide who has ordinary skill in the art, and how do you determine whether or not they would have thought the invention was obvious at the time of the invention?

To answer these questions, we must look at supreme court rulings on obviousness. This is generally how the U.S patent office determines whether or not a patent is obvious. In the 1966 ruling on Graham v. John Deere, the supreme court provided more explicit guidelines for determining obviousness. 

The USPTO cites this court case in order to delineate the factual inquiries that are to be used to question obviousness. They are also known as Graham factors. 

They are as follows:

1. Determining the scope and content of the prior art
2. Ascertaining the differences between the claimed invention and the prior art
3. Resolving the level of ordinary skill in the pertinent art.

There are also secondary considerations that can be used:

• commercial success
• long-felt but unsolved needs
• failure of others
• unexpected results

The USPTO stresses the idea that the inquiries used to question obviousness must be factual. 

Another Supreme Court ruling, KSR vs. Teleflex in 2006, further specified how to determine a patent's obviousness. 

The court stated that "In determining whether the subject matter of a patent claim is obvious, neither the particular motivation nor the avowed purpose of the patentee controls. What matters is the objective reach of the claim. If the claim extends to what is obvious, it is invalid under §103. One of the ways in which a patent's subject matter can be proved obvious is by noting that there existed at the time of invention a known problem for which there was an obvious solution encompassed by the patent's claims."

So the USPTO states that when considering obviousness of a combination of known elements, the operative question is thus “whether the improvement is more than the predictable use of prior art elements according to their established functions.”

In conclusion the focus has shifted to the functionality of the inventions, rather than technical details or physical factors.