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Discussion of the Patentability of Recipes
One of the most common questions I receive, dating back to the very beginning of IPWatchdog.com, is whether recipes can be protected by any form of intellectual property. Typically the question presents specifically by a reader asking whether a recipe can be patented, or how once can patent a recipe.
I think this is a great post, because it explains the issues in great detail, but should still be understandable to laypeople. A good read! Also, the analysis is applicable to many different types of subject matter. For example, if your question is whether or not you can patent a board game, the same analysis would apply.
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We’ve seen reversed brand logos before but not to the extent of these brand reversals by Graham Smith. He takes the original logo, color and all, and swaps them out with a different brand name.
That sound you hear in the background is trademark attorneys’ heads exploding.
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BPAI decision overturning rejection based on "well-known" prior art
Here’s a good example of a decision on appeal of a rejection based on “well-known” prior art.
Recall that M.P.E.P. §2144.03 states:
“Official notice without documentary evidence to support an examiner’s conclusion is permissible only in some circumstances. While ‘official notice’ may be relied on, these circumstances should be rare when an application is under final rejection or action under 37 CFR 1.113. Official notice unsupported by documentary evidence should only be taken by the examiner where the facts asserted to be well-known, or to be common knowledge in the art are capable of instant and unquestionable demonstration as being well-known.”
Thus, “official notice” should only be used in certain, well-defined circumstances. Note the requirement that the “well known prior art” must be capable of instant and unquestionable demonstration as being well-known.
In other words, an Examiner should have to point to a reference that shows every feature in the claim, except where it’s incredibly well-known.
It’s often hard to figure out how to deal with these rejections. In theory, the Examiner should only be using them for things that are unquestionably true, such as a well-known value of a constant (“pi to two decimal places is equal to 3.14” is unquestionably true). However, Examiners will often use such a rejection instead of citing a reference. For software-related applications, this might be something like, “The reference teaches transmitting information via email. It is well-known that mobile devices can receive email. Therefore, your claim to transmitting information to a mobile device is obvious.” At this point, the applicant faces a dilemma.
This rejection is likely improper. I think it is fair to say that it is not unquestionably true that mobile devices can receive email. What kinds of mobile devices? What kinds of email? Can the email contain the same information as is claimed? Hence, the rejection may be overcome on appeal, as with the application linked to above.
However, how often would it make sense to make this argument? The fact is not unquestionably true, but it’s safe to say that pretty much everyone knows that it’s arguably true, and it will take the Examiner minutes to find a reference that shows the missing feature. This argument will not appreciably advance prosecution, yet the client will have to pay the cost of filing an appeal and drafting an appeal brief to make that small advance.
It is true that, with every reference that must be cited, there are more opportunities for the applicant to attack the combination of references. But how often would it really make sense to advance an argument like this on appeal, if it is not a last resort?
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On this day in 1873, Levi Strauss & Co. patented Fastening Pocket Openings which prevented the pockets from giving way at the corners — perfect for all those eager homesteaders.
Patent Drawing for J. W. Davis’ Fastening Pocket Openings, 05/20/1873
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10-Year Tussle Over 'Whoomp! (There It Is)' Rages On
A Texas federal judge declined Friday to decide a decadelong dispute by determining whether music producer Alvertis Isbell lost the copyrights to songs “Dazzey Duks” and “Whoomp! (There It Is)” during a bankruptcy sale to publisher DM Records Inc.
This is dragging out almost as long as the related dispute of Whoomp! (There It Is) vs. Whoot, There It Is.
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Top judge: ditching software patents a "bad solution"
This article presents an interesting window into why the software patent arms race is allowed to persist despite its adverse effect on the industry. It’s a brief but interesting look at the mindset of one of the judges.
I disagree with the out-of-hand assumption that there’s an adverse effect on the industry, but it is an interesting read.
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When an engineer does something, they’re not, like, “I’m going to create this thing and it’s going to save their stuff. It’s going to ruin everything, it will be perfect.” They’re like, “this is going to make kittens! It’s going to make kittens for everybody.”
I see that it makes kittens, but did you see that it also shoots bullets?
“Well, why would you want to shoot bullets with it? It makes kittens!”
Twitter’s Del Harvey, Director of Trust and Safety for Twitter, with the best quote ever on the difference in philosophy between engineers and the legal department. From a GeekWire interview.
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Today’s edition of Fun with Hyphenation!
Ran across this article on ESPN.com, which contained this:
Philadelphia Eagles tackle Jason Peters and Baltimore Ravens linebacker Terrell Suggs, two All-Pro players who have suffered offseason Achilles injuries that have put part or all of their 2012 seasons in jeopardy, may lose millions of dollars in salary because both fall under the nonfootball-injury provision of the collective bargaining agreement.
The applicable wording in the CBA, Article 20, Section 3 provision states: “A player who is placed on a Nonfootball injury or Illness list (“N-F/I”) is not entitled to any compensation under his contract while on such list …”
“Nonfootball” seems correct to be closed, because there’d be no confusion that necessitates a hyphen. ”Nonfootball-injury provision” looked weird at first, but if “nonfootball” is correct, and it modifies “injury”, then this is probably correct too.
“Nonfootball injury or Illness list (‘N-F/I’)” made my head want to explode.
If it’s “nonfootball-injury provision,” shouldn’t it be “nonfootball-injury list?” And, though it gets a bit excessive, “Nonfootball-injury-or-Illness list” (or even better, “Nonfootball-injury list or Illness list”)?
And where does N-F/I come from??? Wouldn’t that be “non-football/injury list”?
I take it that the opening paragraph was written by a journalist, and the provision of the CBA was written by a lawyer. Y kant lawyers hyphenate?
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Another attempt to evade copyright infringement allegations with technology
Here’s the latest example of someone trying to avoid being accused of copyright infringement through technological strategies.
ReDigi is a site that enables reselling of music purchased from iTunes:
ReDigi explained to Sullivan in court papers that its undisclosed number of account holders have a right to upload their purchased iTunes files into ReDigi’s cloud. And when a file is sold to another ReDigi account holder, no copy is made. What’s more, because of ReDigi’s technology, the original uploaded file that is sold cannot be accessed by the seller any more through ReDigi or via the seller’s iTunes account.
“ReDigi’s structure ensures that no copies of an Eligible File are made when one ReDigi user sells an Eligible File stored in the user’s Cloud Locker to another ReDigi user through the ReDigi Marketplace,” its attorney, Ray Beckerman, wrote in a court filing. (.pdf) ”When such a file is purchased by another user, the file pointer associating the Eligible File with the seller’s Cloud Locker is modified to associate the file with the purchaser’s Cloud Locker. In such a transaction only the pointer is changed; the Eligible File remains in the same location in the ReDigi Cloud and is not copied.”
This almost seems reasonable. I mean, ignore the unauthorized copy that is made when the seller uploads the file to ReDigi, and the unauthorized copy that is made when the file is copied or streamed to the buyer, and it really does look like there’s no copy being made. I also like the “Code is Law” angle — it seems that if the service doesn’t allow copies to be made, then copies wouldn’t be made, and it would be hard to prove infringement (if you ignore the other copies mentioned above).
I wonder how this will play out? It seems unreasonable to think that the first-sale doctrine only applies to physical copies (as opposed to digital copies), especially considering that soon there will only be digital copies sold of most types of media.
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Did Patent Reform change the rules regarding the first date of public use?
Kevin Noonan discusses an important issue regarding the America Invents Act:
One issue with [the previous] statutory language is whether “public use” or “on sale” encompasses uses that are in fact secret but are involved in producing a commercial product. Such a “secret” use has precluded patent eligibility since Metallizing Engineering Co. v. Kenyon Bearing and Auto Parts Co., 153 F.2d 516 (2d Cir. 1946) (Hand, J.), where the Court’s opinion set forth the rationale for precluding patenting under these circumstances:
[I]t is a condition upon an inventor’s right to a patent that he shall not exploit his discovery competitively after it is ready for patenting; he must content himself with either secrecy, or legal monopoly.
This reasoning has proven persuasive to the Federal Circuit, which has held that secret commercial exploitation of an invention begins the one-year deadline for filing an application under current § 102(b). Invitrogen Corp. v. Biocrest Mfg., L.P., 424 F.3d 1374, 1382 (Fed. Cir. 2005).
There are ways of parsing the statute that can construe the language of new § 102(a)(1) to eliminate this effect of secret commercial practice of products or processes…
This is an important distinction to get right, both for patent applicants and for the attorneys who are advising them as to when bar dates are occurring. We can always advise to follow the more restrictive rule (secret use == public use), but if that date has already passed, it would be good to know whether patent protection may still be available.
Likes
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Actuaries and patents
Actuaries may not think of themselves as inventors or as persons who might...
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It’s not often that an ill-tempered, excessive...
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How the Professor who Fooled Wikipedia Got Caught by Reddit
A woman opens an old steamer...
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Boxing Our Treasures
This video takes viewers inside the preservation lab...
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Clever twist on Freemium.
