Wednesday, December 19, 2012

My Ten Favorite Stupid Patents

In my last post, I congratulated my EFF colleague Julie Samuels had been awarded the new title of "The Mark Cuban Chair to Eliminate Stupid Patents."  In honor of that award, here are my ten favorite stupid patents.  

10.  U.S. Patent No. 6,025,810, "Hyper-light-speed antenna."  The abstract reads (boldfacing and underlining added):
A method to transmit and receive electromagnetic waves which comprises generating opposing magnetic fields having a plane of maximum force running perpendicular to a longitudinal axis of the magnetic field; generating a heat source along an axis parallel to the longitudinal axis of the magnetic field; generating an accelerator parallel to and in close proximity to the heat source, thereby creating an input and output port; and generating a communications signal into the input and output port, thereby sending the signal at a speed faster than light.
9.  U.S. Patent No. 5,356,330, "Apparatus for simulating a 'high five.'"  Fig. 4 is here:
8.  U.S. Patent No. 5,564,239, "Horse shaped building with recreational area."  You can't tell from the title that this 1996 patent actually is about . . . a Trojan horse.  Which was what, over 3,000 years ago?
7.  U.S. Patent No. 4,195,707, "Communicating device."  Remember when you were a kid and you used to tie a string between two tin cans to make a "telephone" and talk?  Someone got a patent for this in 1980.
6.  U.S. Patent No. 6,360,693, Animal toy.  The "toy" in question is a stick to throw to a dog . . . patented in 2002.

5.  U.S. Patent No. 6,293,874, "User-operated amusement apparatus for kicking the user's buttocks."  No comment needed other than Fig. 2:

4.  U.S. Patent No. 5,443,036, "Method of exercising a cat."  This is the famous (or infamous) patent on exercising a cat using a hand laser.  It even has its own Wikipedia entry.

3.  U.S. Patent No. 6,004,596, "Sealed crustless sandwich."  Essentially, this 1999 patent covers a peanut butter and jelly sandwich with its crusts cut off.  Fortunately the Patent Office killed this one in 2007.

2.  U.S. Patent No. 6,368,227, "Method of swinging on a swing."  Seven-year-old Steven Olson proudly got this patent in 2002.  (It helps if your dad is a patent lawyer.)  In 2003, the Patent Office killed this one also.

1.  U.S. Patent No. 5,498,162, "Method for demonstrating a lifting technique."  Essentially, this is a 1996 patent on lifting up a box.  I could have sworn this had been done before.
Honorable mention: There are a number of published patent applications that never became patents, meaning that even the Patent Office couldn't see fit to allow a patent (unlike the real patents listed above).  My favorite is U.S. Application No. 2006/0259306, "Business method protecting jokes."  Some representative claims are as follows:
1. The process of protecting a novel joke which comprises filing a patent application defining the novel features of the joke.

10. A joke relating to the unexpected but partial skill of animals (preferably large mammals or birds) in sports involving spheroidal projectiles, characterised in that the punch-line employs alliteration.

22. A process claimed in any of claims 1-7 in which the patent application is filed, or claims priority from an application that is filed, on 1 April.

"The Mark Cuban Chair to Eliminate Stupid Patents"

Congratulations to EFF Staff Attorney Julie Samuels, who has been awarded the new title of "The Mark Cuban Chair to Eliminate Stupid Patents."  I am not making this up.

Monday, December 17, 2012

Apple v. Samsung: Permanent Injunction Denied

Apple v. Samsung is a well-publicized case involving smartphones.  Today U.S. District Judge Lucy Koh denied Apple's motion for a permanent injunction on the Apple patents that the jury found Samsung infringed.  The order is here; Patently-O's discussion is here.  The court also denied Samsung's request for a new trial based on jury misconduct; that order is here.

It is likely that Apple will ask for additional damages based on Samsung's infringement of the patents after the jury verdict a few months ago, although since Samsung apparently has discontinued most of not all of the infringing features, that won't amount to much.  Both sides can appeal these orders to the Federal Circuit Court of Appeals.

Wednesday, December 12, 2012

Friday, December 7, 2012

The Latest Holiday Gift!

A doorbell for dogs!

A Redditor's Mom Correctly Predicts the Internet

In the 1970's, a Redditor's Mom correctly predicted "the Internet."

My Latest EFF Amicus Brief: Trying to Solve the Abstract Patent Problem

Today EFF filed the latest amicus brief which I helped write.  The case is CLS Bank v. Alice Corp.  EFF's press release about the filing is here.

The case involves several business method patents that manage financial risk in commercial transactions.  The trial court held that the patents were invalid under 35 U.S.C. § 101, which limits the types of things that can be patented.  As EFF explains on its Abstract Patent Litigation page, things like laws of nature, natural phenomena, and abstract ideas can't be patented.  In recent years, both the Federal Circuit Court of Appeals and the U.S. Supreme Court have struggled on what § 101 means and how and when it limits what can be patented. 

In March 2012, the Supreme Court decided Mayo v. Prometheus, which held that medical diagnostic processes are not patentable.  The opinion gave some good guidelines about when processes aren't patentable: things that are "well-understood, routine, conventional activity" can't be patented.  However, all 12 active judges of the Federal Circuit don't agree on the proper test for when patents are abstract.  Some think that § 101 should strictly limit what is patentable, some think mostly anything should be patentable.  The outcome of any particular case depends on which 3 judges are selected to hear an appeal.
CLS Bank was first heard and decided before a 3-judge panel, in a July 2012 decision.   Two of the three judges upheld the patents against the § 101 challenge.  Their test was whether the patent claimed "nothing more than" an abstract idea, and that a patent was permitted unless it was "manifestly evident" that only an idea was claimed.  This is a very permissive test, to say the least.  The other judge dissented and said that the patents weren't permitted under the Supreme Court's test in Mayo.  The majority's rule was also plainly inconsistent with other recent cases holding similar patents to be invalid.

CLS Bank then asked all 12 judges of the court to hear the case (called an en banc hearing).  EFF filed an amicus brief supporting those efforts.  In October 2012, the full Federal Circuit agreed to hear the case.  Briefing is underway, and oral argument is scheduled in February 2013. 

EFF's amicus brief for the en banc hearing makes two principal points.  The first is that patent litigation has been greatly increasing during the last several years, particularly for software and business method patents, and for patents owned by non-practicing entities.  This litigation puts a great burden on innovative companies who actually sell a product.  Second, rather than try to decide the difficult question of whether something is "abstract," process patents should not be allowed to claim broad functionality, but rather should be limited to the particular ways a patent implements those processes, and equivalents.  On that point, we suggest that the court use an analysis by Professor Mark Lemley of Stanford.  If the patents are limited to what was actually invented, this both makes the abstractness test easier, and also makes them less of a threat to companies whose products work in a substantially different way.

UPDATE: Techdirt has this nice writeup on EFF's brief.  Patently-O has analyzed all of the opening round amicus briefs.