Supreme Court Rules on Alice Corp. — abstract ideas implemented on computer are not patentable

“The claims at issue amount to ‘nothing significantly more’ than an instruction to apply the abstract idea of intermediated settlement using some unspecified, generic computer, [ ] Under our precedents, that is not ‘enough’ to transform an abstract idea into a patent-eligible invention.”

The representative method claim in this case recites the following steps: (1) “creating” shadow records for each counterparty to a transaction; (2) “obtaining” start–of-day balances based on the parties’ real-world accounts at exchange institutions; (3) “adjusting” the shadow records as transactions are entered, allowing only those transactions for which the parties have sufficient resources; and (4) issuing irrevocable end-of-day instructions to the exchange institutions to carry out the permitted transactions. [ ] Petitioner principally contends that the claims are patent eligible because these steps “require a substantial and meaningful role for the computer.” [ ] As stipulated the claimed method requires the use of a computer to create electronic records, track multiple transactions, and issue simultaneous instructions; in other words, “[t]he computer is itself the intermediary.” [ ]

In light of the foregoing, [ ] the relevant question is whether the claims here do more than simply instruct the practitioner to implement the abstract idea of intermediated settlement on a generic computer. They do not.

Justice Thomas delivered the opinion for the unanimous court. Justice Sotomayor filed a concurring opinion in which J. Ginsburg and J. Breyer, joined. Opinion:  2014-06-19 Alice Corp. v. CLS

10 Things Great Leaders Say

I believe there are a few important life-phrases to master: “I’m sorry;” “I didn’t know that;” and “tell me more.” has a list of 9 things great leaders say that I find shareworthy: nine phrases that should roll off your lips every single day.
I wrote ten because I really like the addition of “I didn’t know that” to “tell me more.” Your team wants to know that you recognize there are limits to your knowledge, are interested in their insights, and you value the source enough to listen.

Hulu, Netflix, Spotify, and Amazon Alleged to Infringe Web Content Patent

Plaintiff CRFD Research sues Hulu, Netflix, Spotify, Amazon, etc. in the Dist. of Delaware on Friday, alleging infringement of U.S. Patent No. 7,191,233 (“System for Automated, Mid-Session, User-Directed, Device-to-Device Session Transfer System”) filed Sept. 7, 2001, and issued in 2007. According to the complaints, “[t]he inventions of the ’233 Patent are applicable to, among other things, a transfer of an on-going software session from one device to another device.” Regarding Hulu, Plaintiff purports that the following actions are indicative of infringement: “a user can ‘[m]igrate [his or her] viewing experience seamlessly across devices: start watching on [his or her] phone, [and] continue watching on [his or her] TV.’”

With regard to Amazon, the complaint asserts additional patent no. 7,574,486 (“Web Page Content Translator”) filed Nov. 8, 2000, and issued in 2009. CRFD accuses the following Amazon products of infringement: Defendants’ streaming media services include, without  limitation, Amazon Instant Video, Amazon Prime, Amazon Cloud Player, Amazon Games, and Amazon GameCircle, which conduct a session with a user’s Amazon-enabled device, including Amazon Kindle Fire tablets, computers, televisions, smartphones, game consoles, and Blu-ray players, among other devices, and transfer content to a user’s additional Amazon-enabled devices partly through software components, including but not limited to Amazon’s Whispersync service.
Defendants purport that when a user’s Amazon-enabled devices are networked, the media content on one Amazon-enabled device can be accessed by all Amazon-enabled devices. For example, with Amazon Instant Video, “Whispersync for Videos keeps track of [the user’s] last location in a video so [the user] can resume watching across [the user’s] Kindle Fire, PC, Mac, or one of over 300 compatible TVs, Blu-ray players, or devices.” Complaint ¶ 14.
CRFD is represented by Farnan LLP and Mishcon De Reya New York LLP.

Grewal Denies Apple's Motions to Seal—Grewal-Style

Is there a fan club for Magistrate Judge Grewal yet? Recently seated on the bench in 2010 and with a pedigree of decided interest, the judge keeps it interesting:

This afternoon the court sat down to consider the various motions on the docket that are pending and in some cases submitted in this patent case. Coffee in hand, and eager to turn to the substantive and intellectually stimulating disputes regarding infringement, willfulness, and the like, the court was stopped dead in its tracks by the usual culprit in such crimes: various motions to file materials under seal.

Stating that parties all too often misunderstand what level of harm is “sufficient to keep the public from knowing what is happening in courts such as this one that it pays for,” the Court explains that “[w]hile the court cannot offer an all-encompassing definition of harm for this purpose, it can say what is not harm. Disclosing an expert’s testimony about his patent validity opinions is not harm. Disclosing an inventor’s testimony about what exactly it is he claimed in his patents is not harm. Disclosing what products a party had sold to the public is not harm. It is certainly not harm that other litigants in other cases involving the asserted patent might come to know certain positions a party is taking in this case.”
The Court makes an apparent  misstep in its concluding paragraphs, confusing the plaintiff with defendant, but the motions to seal were Apple’s (Dkt. Nos. 342, 344, 347, and 349).
Grewal Denies Apple Motion to Seal
Apple is represented by DLA Piper and Greenberg Traurig. Case No. 5:11-CV-01079-PSG (N.D. Cal.).

Cornering the QR Market

Marshall Feature Recognition claims infringement by QR code in the E.D. of Texas against Toni&Guy USA, Anheuser-Busch, CVS Caremark, Target, Wm. Wrigley, Jr. Corp., and HJ Heinz Company. The patent at issue is U.S. Patent No. 6,886,750 (“Method and apparatus for accessing electronic data via a familiar printed medium”) filed Jan. 2001, and issued May 2005. Marshall Feature Recognition alleges that the infringing act is: “requir[ing] and/or direct[ing] users to access and/or use Quick Response Codes (“QR Codes”) printed on Defendant’s commercial advertisements, in a manner claimed in the ’750 patent. Defendant infringes the ‘750 patent by providing printed commercial documents that have at least one machine recognizable feature i.e. a QR Code.” Complaint ¶ 11.
I was just going to list a few claims, but it really is a patent to behold and appreciate in full (especially the claims re the information superhighway, claim 41–56). See below for all claims. But first, a few paragraphs from the complaint re the accused method of infringement. Marshall Feature Recognition is represented by Austin Hansley. Continue reading “Cornering the QR Market”

I Don't Have the Right Network


Image used with permission under a Creative Commons license - Fabiola Medeiros
Image used with permission – Fabiola Medeiros

The Ultimate Cheat Sheet For Dealing With Excuses, by James Altucher on TechCrunch preaches to the back-row bunch. What do you want to do that you’re not doing because you tell yourself:

  • I don’t have money.
  • I don’t have equipment.
  • I don’t have time.
  • I’m not good enough.
  • I don’t have a degree.
  • I’m not in the right location.
  • I don’t have the right network.
  • It’s too crazy.
  • I don’t have talent.

This is one of those great motivational articles we need to keep in our back pocket. If it was the 1980s, your grandmother would have cut it out of her newspaper, along with a perfectly on-point Dear Abby, and given it to you the next time she saw you. I’m going to fold this up and put it in my digital back pocket for those days when I need a kick in the pants.

MouthMan v. Dragon Jammin' Jaws

From the “of interest” files: Mouth Man, LLC sues American Marketing Enters., Inc. re U.S. Patent No. 8,181,274, “novelty shirt” filed in 2008 and issued in 2012. The figures alone were worth a Google Patent look-up. The MouthMan figures show a hoodie with long sleeves and an animal (or skeleton) on the front of the shirt, such as a frog or snake. While worn, the sleeves can be crossed over the front design to reveal complementary designs with upper and lower mouth portions, so that the wearer can simulate the opening of the mouth. Mouth Man alleges that defendant sells infringing clothing articles including, Dragon (Shark, Crocodile, T-Rex, and Bear) Jammin’ Jaws (seen here at Kohl’s online). No. 3:14-CV-210 (N.D.N.Y.). 

Emblaze v. Apple — the court is getting old.

Magistrate Judge Grewal of the Northern District of California has the kind of writing style that keeps reading opinions interesting. In Emblaze Ltd. v. Apple Inc., No. 5-11-cv-01079 (N.D. Cal.), Apple petitioned the court for a stay pending the Supreme Court’s resolution of Akamai Techs., Inc. v. Limelight Networks, Inc., 692 F.3d 1301 (Fed. Cir. 2012).
Grewal writes:

It has been observed that the U.S. Supreme Court’s relationship to patent law sometimes seems like that of a non-custodial parent who spends an occasional weekend with the kids1. . . . And so when the Supreme Court decides to consider an issue that is presently and fiercely contested before a trial court, it might seem obvious that the trial court should call a time-out by issuing a stay. . . . [T]he court concludes that a stay under the present circumstance would NOT be appropriate. . . . [O]f the 22 claims of the patent-in-suit asserted against [defendant], 10 are apparatus claims, which Akamai does not address. . . .

[I]f the Supreme Court is the non-custodial parent of patent law, the Federal Circuit must be viewed, and respected, as the custodial parent who endures the daily grind of keeping the law on the straight and narrow. While this court must of course follow any change imposed by the Supreme Court, a majority of this nation’s highest patent court have spoken on the issue of proof requirements for indirect infringement claims. It would be disrespectful of that custodial parent’s efforts to presume that a reversal is coming.

In further support of the court’s decision to deny the stay, Judge Grewal writes that, second, the case is getting old and older by the day and at some point a case must be tried, and
Emblaze at 3
Link to opinion: Emblaze Ltd. v. Apple Inc., No. 5-11-cv-01079 (N.D. Cal. Feb. 24, 2014).
1 Quoting Rebecca S. Eisenberg, Commentary, The Supreme Court and the Federal Circuit: Visitation and Custody of Patent Law, 106 MICH. L. REV. FIRST IMPRESSIONS 28 (2007), (last visited Mar. 2 2014).

"Hey — let's use a computer to do this!"

In a February 26, 2014 order, District Judge Schiltz of Minnesota1 penned a brief primer on the America Invents Act (AIA) Covered Business Method review process, litigation stays, and unpatentable subject matter.
In April 2010, Transunion sued Search America for infringing its patents which “are directed to a computer-implemented method used to assess a patient’s eligibility to receive financial assistance for healthcare services.” In July 2013, Search America submitted a Petition for Covered Business Method Patent Review to the USPTO. The Leahy-Smith America Invents Act created the Covered Business Method (CBM) review process by which a party sued for infringing a CBM patent may petition the USPTO to review the validity of the patent. Often, the alleged infringer will seek a stay of the underlying litigation if the USPTO grants its petition for review.
In determining whether to grant or deny a stay of the litigation, the court is directed to consider factors set out in § 18(b)(1) of the AIA:

(A) whether a stay, or the denial thereof, will simplify the issues in question and streamline the trial;

(B) whether discovery is complete and whether a trial date has been set;

(C) whether a stay, or the denial thereof, would unduly prejudice the nonmoving party or present a clear tactical advantage for the moving party; and

(D) whether a stay, or the denial thereof, will reduce the burden of litigation on the parties and on the court.

The court found that a stay was warranted—finding that all four factors favored a stay. The court first reasoned that a stay would simplify and streamline the issues for trial, because it was likely that at least some of the claims of the patents-in-suit would be found invalid.
Regarding simplification of issues in question, the court expressed “grave doubts about the validity of Transunion’s patents” which use a computer to assist hospitals to investigate whether a person seeking medical services is eligible for public or private assistance through many available programs.

Transunion at 3

If the USPTO finds all of the claims invalid, no trial will be necessary. If some of the claims survive review, then Transunion would be estopped (prevented) from raising in the underlying litigation invalidity arguments it raised or could have reasonably raised in the review process which would reduce issues in the district court case. Continue reading “"Hey — let's use a computer to do this!"”

Khet (Innovention Toys) v. Laser Battle (MGA) — apparently exceptional game; exceptional case

Patent litigators are very interested in 35 U.S.C. § 285 Exceptional Cases. A judicial finding of an exceptional case allows a party to recover attorneys’ fees. This week, a magistrate judge recommended that Innovention Toys be awarded $1,804,037 in attorneys’ fees and $219,552 in costs against MGA for willful infringement of the game Khet 2.0. In 2012, a Louisiana federal jury awarded $1.6 million in damages.
According to the Federal Circuit, “[a]n award of attorneys fees is permissible ‘when there has been some material inappropriate conduct related to the matter in litigation, such as willful infringement, fraud or inequitable conduct in procuring the patent, misconduct during litigation, vexatious or unjustified litigation, conduct that violates Fed. R. Civ. P. 11, or like infractions.’ ” iLOR, LLC v. Google Inc., 631 F.3d 1372, 1376–77 (Fed. Cir. 2011).
The court found that Innovention Toys proved with clear and convincing evidence that MGA’s infringement was willful and deferred to its magistrate to determine the amount of attorneys’ fees and costs due Innovention Toys.
Khet 2.0, a light-reflecting board game, was invented by a former Tulane professor, Dr. Michael Larson, and Luke Hooper and Del Segura, two of Larson’s former students, in 2003–2004. After delays due to Katrina, Innovention started selling the game in October 2005, garnering wide industry acclaim.
On December 1, 2005, an MGA (maker of popular Bratz dolls) employee purchased two Innovention Toys games and sent them to MGA’s headquarters. Employee emails were exchanged regarding the game’s box that was marked “patent pending” and asking which part of the game was patented. During trial, no reply email surfaced—however, an MGA employee said that obviously MGA decided to go ahead and proceed with its similar game, Laser Battle. In the fall of 2006, MGA began distributing Laser Battle through Walmart and Toys R Us. Innovention Toys instituted this lawsuit in October 2007. The patent at issue is: Light-reflecting board game, U.S. Patent No. 7,264,242.
Case: Innovention Toys, LLC v. MGA Entertainment, Inc., No. 2-07-cv-06510 (LAED).