Tuesday, July 26, 2011

I-FORD: IP Found on the Road Dead

“What we’re doing is obvious.  What's patentable about it?”  This question marks the end of the IP road for many entrepreneurs. As a result, many entrepreneurs walk away from protecting otherwise patent eligible web apps, B2B programs, financial service packages, etc. 

The related IP rights eventually lapse, leaving the ideas in the public domain.  Competitors are then free to pick up the abandoned IP, breathe new life into it, and use it for their own benefit. 

Under current law (see the Bilski U.S. Supreme Court case), though, all of the above types of business-related systems (and others) might have received patent protection.  Whether or not the ideas seemed obvious to their originators misses the mark.  Indeed, almost all ideas appear obvious (in a non-legal sense) -- with 20-20 hindsight.  It is worth recalling that, without the benefit of that hindsight, the legal tests for patentability include:

 Is an idea patent eligible?
 Is it useful?
Is it new?
Is it non-obvious?
Can its conceiver(s) adequately describe how to make, use, and operate a system based on it?

Usually, the idea is patent eligible, useful, and can be adequately described.  Newness often relates to whether the patent application includes meaningful “claims.”  Therefore, the test usually boils down to whether an idea is non-obviousness. 

In a patentability sense, “obviousness” is a legal term of art having little to do with how that term is used in every day conversations.  Indeed, the concept of obviousness happens to be so complex that most Patent Attorneys spend the bulk of their time arguing about it.  Unfortunately, many entrepreneurs jump to a conclusion about the obviousness of their ideas.  They then leave their ideas for their competitors to find on the roadside not dead but quite well and ready to go to work.  

The Villhard Patent Group encourages entrepreneurs who have business services related systems under development to consult with a Patent Attorney before concluding that their ideas are “obvious” or otherwise unpatentable.  Please contact us at www.villhardpatents.com or (512) 897-0399.

Monday, July 18, 2011

Intellectual Property Games

In the 70s and 80s Pong, Centipede, and Pac-Man held those of us admittedly old enough to remember them awestruck.  I remember sneaking into a lake-front bar and force feeding these primitive games money.  As a kid I could not imagine the advanced graphics, 3D game spaces, world-wide interactivity and other technology (i.e., intellectual property) now programmed into even simple games. 

Imagine having been in a position back then to protect ownership of the game engines, related APIs, components, and other engine features that enable today’s performance levels.  Unsurprisingly, the Patent Office database currently lists 721 published patent applications using the phrase “game engine.”  They also list 101 applications using “game engine” in the claims.  Clearly, someone is patenting game engines (e.g., the engine developers). 

But game developers can also get into the game.  More particularly, as game developers conceive of new game functionality (e.g., the advance from Pong’s 2-D game space to today’s 3-D game spaces) the programs underlying that new functionality might be patentable.  Moreover if, as a result of the new functionality, the engine or engine API must be modified those modifications might also be patentable for the game developer.  Of course, these sorts of modifications would need to meet patentability requirements (i.e. be new, non-obvious, etc).

In addition, the game developer would have to be able to describe how to program and operate the modified engine.  Even if the developer needs help programming that modification, though, the game developer might at least be a co-inventor of the idea.  In either case, the game developer (and/or his company) would be well advised to consult a patent attorney before disclosing it to others.  That way they can obtain an informed opinion of the technology’s potential patentability and ownership before making the first move with outside parties.

The author wishes to thank Todd Simmons for his valuable contributions to this article.  For more information about Todd see: http://todd-simmons.com/.

For more information about the patentability and ownership of gaming related intellectual property please see www.villhardpatents.com or contact us at (512) 897-0399.

Monday, July 11, 2011

Free Software

Many in the computer industry believe that software should be free.  This belief often surfaces when talk turns toward protecting newly developed Web apps with patents.  Indeed, a strong under-current exists resisting such software patents.  Yet, U.S. law is clear.  If a web (or other computer) application otherwise meets patentability requirements (e.g., it is new, useful, non-obvious, etc.) the computer application merits patent protection even if it implements a business method.  See In Re Bilski.

Yet the resistance to patenting software persists.  In many ways that attitude is understandable.  Speaking as a former programmer, I never wanted to re-create the wheel.  Let’s face it.  Coding and debugging can be tedious and frustrating.  Why go through all of that effort when someone else developed a suitable application?  For another thing, don’t we want to direct new efforts toward creating new and better services?

Therefore, those who advocate for free software, unfettered by patents, suggest that software developers should be free to give away their creations.  IP (intellectual property) advocates, in contrast, favor letting developers benefit from shedding their blood, sweat, and tears creating new services. 

Fortunately, U.S. patent law allows software companies freedom to choose between these approaches.  Companies that want to give away their technology can.  The existence of myriads of General Public Licenses (GPLs) stands as tribute to their choices.  In contrast, the, thousands of software patent applications stand as tribute to the flip side of that freedom. 

Of course, the rub comes when a free software advocate wants to re-use patented software.  They have to pay royalties or risk an infringement lawsuit.  They do, though, have another option: developing a competitive, non-infringing service.  The latter option represents what the patent system seeks to foster: choice for end-users between competing technologies.  That result benefits us all.

For more information regarding patent applications and Web apps please see www.villhardpatents.com or contact us at (512) 897-0399.

Thursday, July 7, 2011

Basic Patenting Process Timeline

Entrepreneurs have repeatedly asked this blogger for a basic timeline of the patenting process.  Because such a short article cannot begin to explore all of the forks in the road (or all of the details) of the patenting process I've been reluctant to try and summarize the timeline.  That being said, and because I could no longer leave your sincere requests un-answered, here is an ABBREVIATED TIMELINE  (with times measured before and after the filing date):

T-12 months: Legal cutoff for including subject matter that was involved in a “public disclosure” in the application.  See The First Three Things Entrepreneurs Need to Know About Patents.
T-3 or 4 months: Deadline to avoid paying most patent attorneys “rush” fees.
T-1 month: Draft application likely to be provided to you assuming you engaged a patent attorney in a timely manner.
T-2 weeks: Your final comments on the draft are usually due.
T0: Filing date.  Begin marking pertinent products with “patent pending.”  WARNING: OFFERS FOR SALE OF AND/OR ATTEMPTS TO COMMERCIALIZE products/services incorporating a potentially patentable idea can INVALIDATE THE APPLICATION under the America Invents Act.
T+12 months: Foreign application filing deadline.
T+18 months: The Patent Office publishes the application, it becomes public knowledge, and loses any trade secret status that you might have otherwise preserved.
T+2 to 3 years: First substantive review by the Patent Office is likely.  “Prosecution” (i.e. argument with the Patent Office) is likely to continue over issues and for a time that are unique to each application. 
Either abandonment or allowance follows prosecution.  It is impossible to predict which will occur or when.
Issuance: The right to exclude others from infringing the claims of your issued patent begins.
3 to 3.5 years from issuance:  The first maintenance fee is due for issued patents.  Maintenance fees are also due at 7 and 11 years from issuance.
T+20 years: The patent expires.  The technology described by the claims enters the public domain.

So much remains to be discussed about the patenting process that I invite you to visit www.villhardpatents.com and/or contact us at 512-897-0399 if you have specifice issues not addressed by the abbreviated timeline presented above.