Pilot Program for Green Innovations

Posted Wednesday, December 09, 2009 by Jim Ruttler.

The Obama administration is committing $100 million for federal research and development in an effort to accelerate the patent review process for “green” technologies. Currently the average total pendency of applications is 40 months. The pilot program is aiming to reduce this pendency to 12 months. According to Commerce Secretary Gary Locke, the goal is to enable inventors to secure funding and launch businesses more quickly; to increase America’s competitiveness in green technology and to increase jobs. The first 3,000 petitions that are filed will be considered for an expedited application review. There are 25,000 pending applications that will be eligible for the pilot program. To qualify for the USPTO “Green Tech” program, patent applications must pertain to “environmental quality, energy conservation, development of renewable energy resources, and greenhouse gas emission reduction.”


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Defense of Software patents

Posted Friday, December 04, 2009 by Jim Ruttler.

Martin Goetz, the holder of the first software patent, has been an advocate of the patenting of inventions implemented in software since the 1960’s. In 1968, the year Goetz received the first software patent, there was controversy surrounding the patentability of software. Fourty years later the controversy continues with the Bilski case; a case regarding business methods and software patents.

In an article written by Goetz to defend software patents he points out six phases in the life cycle of software products: Definition, Design, Implementation, Delivery, Maintenance, and Enhancements. Goetz argues that this life cycle is analogous to manufacturing a machine. Coupled with the fact that software inventions are “state of the art and not at all obvious to one skilled in the art”, Goetz argues that “the Courts should view software as a component of a general purpose computer (a machine) and that software transforms a general purpose computer into a special purpose computer (or machine)”.


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Design Patents

Posted Monday, November 30, 2009 by Jim Ruttler.

Design patents protect new and non-obvious ornamental aspects of existing articles of manufacture. For example, design patents may protect a new shape of sunglasses, an artistic imprint on a lamp base, or even a new font face. Google has even recently obtained design patent protection for the layout of their homepage.

One issue with design patents was recently reviewed in a research paper titled, “Overcoming the ‘Impossible Issue’ of Non-obviousness in Design Patents” by University of Pittsburgh Law Professor Janice M. Mueller and Daniel H. Bream. In this paper, the authors address the difficulty of determining what constitutes a non-obvious design. Non-obviousness is a principle borrowed from utility patents, which essentially requires a significant advance over the existing art as viewed from the perspective of one skilled in art for which the invention relates. Within the field of design patents, the authors argue that non-obviousness is not a fitting requirement for ornamental designs for a number of reasons including the subjective nature of designs, the difficulty of determining what constitutes and ordinary designer, and the difficulty of distinguishing between obvious and non-obvious design improvements from the perspective of an ordinary designer. One solution offered would be to determine non-obviousness from the perspective of an ordinary observer.

From a practical standpoint, the Patent Office doesn’t generally issue rejections for design patents based on obviousness unless designs are substantially similar, perhaps proving the authors point. Design patents often sail through the patent office without receiving any rejections so long as there is some artistic difference between the applied for design and the existing art.


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PTO Withdraws Claim and Continuation Rules

Posted Monday, November 16, 2009 by Jim Ruttler.

The Patent Office, under its new director David Kappos, has withdrawn the previously proposed claim and continuation limit rules. In a previous posting, I discussed how the claim rules would limit the number of claims to 25 in a single application unless the applicant could show why more were needed and the continuation rules would limit the number of continuations to two. The previous director introduced the rules as a means to reduce application backlog and the overall application size to increase examination efficiency. However, Kappos indicated in his recent blog posting he believed that these rules had the effect of severely curbing patent rights.

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New Patent Office Director Blog

Posted Monday, November 16, 2009 by Jim Ruttler.

Director David Kappos of the United States Patent and Trademark Office has established a new blog intended to improve communication with the inventor community. In his first post, he discussed the importance of the independent inventor community, reforms to minimize patent backlog and improve efficiency, reforms in post-grant review proceedings, and his interest in switching to a first-to-file system. The blog can be accessed at: http://www.uspto.gov/blog/director/

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