Too often, a company with a new, promising product is caught by surprise when a competitor asserts an infringement claim against it on the technology underlying the product. Sometimes, the surprise isn’t that such a claim has been made, but rather that the company’s CGL insurance doesn’t have—or expressly excludes—patent coverage. Over at Policyholder Pulse, our colleague Sean Williams examines this all-too-common quandary and looks at some options for “Plugging the Patent Coverage Gap.”
As the blockchain avalanche continues, and ever-increasing numbers of blockchain-based patent applications seek issuance, savvy inventors and practitioners continue probing for patent-eligible space. Blockchain apps ultimately will face the same barriers as other software applications—key among them being new rules on subject matter eligibility. For those hoping to make it past such obstacles, performance-related refinements to blockchain technology may provide a safe harbor.
What is it worth to be able to block employees from using social media while on the job? And how should one determine that value, exactly? While it might be easy to determine the value of a stand-alone invention, it is much more difficult to determine the value an invention that is embedded within a complex product that itself has many parts and does many different things. Patent damages case law is in flux, and every court opinion regarding how to apportion and value inventions merits careful studying. A recent case demonstrates the perils of using faulty methodology to determine the value of patented software-based inventions.
Three years after Elon Musk announced in his famous “All Our Patent Are Belong To You” blog post that Tesla would be opening all of its patents to the public, he tweeted a recommendation of Max Tegmark’s recent book Life 3.0: Being Human in the Age of Artificial Intelligence—which just happens to allude to a not-too-distant future world in which, based on current patent law, all inventions might be free and open to the public. In this story, superhuman general artificial intelligence is secretly created by humans, and its creation began the end of human invention.
Today, May 22, 2017, in the TC Heartland v. Kraft Foods opinion written by Justice Clarence Thomas, the U.S. Supreme Court held that the proper venue for a patent infringement lawsuit is (1) the state of incorporation for the defendant, or (2) a district where the defendant has committed acts of infringement and has a regular and established place of business. The Court held that for purposes of the patent venue statute, 28 U.S.C. §1400(b), a domestic corporation “resides” only in its State of incorporation, rejecting the argument that §1400(b) incorporates the broader definition of corporate “residence” contained in the general venue statute, 28 U.S.C. §1391(c).
Almost everyone (even my parents) has seen the Crying Michael Jordan meme popping up around the internet and social media. Crying Jordan has appeared in the standard meme form of photoshopped images and gifs but has also inspired Halloween masks and even customized Air Jordan sneakers. TMZ reports that Jordan doesn’t have a problem with it, as long as no one uses it to “promote their commercial interests.” But what if he changed his mind or someone started using it for commercial gain? Could Jordan protect himself against “unauthorized memeing”?
The President’s January 23, 2017, executive memorandum implemented a federal hiring freeze. The U.S. Patent and Trademark Office (USPTO) is one of those agencies affected by the President’s memorandum. While such a hiring freeze may not have an immediate impact on patent application pendency and/or examination quality, due to the relatively high attrition rate of the patent examining corps, the examination timeline and quality may be affected in the future. In particular, technologies having greater upfront value, including internet-based technologies and platforms, and clients relying on patent portfolios for valuation will be most acutely impacted. As illustrated below, the pendency backlog may inevitably increase and the examination quality suffer.
The U.S. Patent Office has long granted patents on new card games, but the path for patenting card games was narrowed by a Federal Circuit ruling last Thursday. In In Re Smith, the Federal Circuit Court ruled that patent claims on a new card game were ineligible for patent protection, even if the card game is novel and non-obvious. The court did acknowledge, though, that some card games are potentially patentable if they satisfy certain criteria.
Patents related to games are facing new challenges for being too “abstract,” but a recent court ruling highlights the limits to this line of attack. Last year, the Supreme Court reinvigorated a body of law that defines the types of inventions eligible for patent protection. Generally, inventions deemed “abstract” are ineligible for patenting, unless there is some other inventive concept in how the invention is implemented. Defendants accused of infringing game-related patents have seized on this body of law to challenge issued patents as being mistakenly granted. But in these challenges, what counts as “abstract” has been subject to much debate. So new court rulings on patent eligibility of interactive-entertainment technologies are worth noting. A recent decision should comfort game-patent owners.