Given that an asserted patent such as the‘216 patent can be subject to a wide variety of attacks during litigation, when such patents survive litigation and are found to be infringed, they may point to good examples of claim drafting -- especially when enormously large amounts of damages were at stake.
A federal lawsuit that involves one of the firm's clients, Money4Gold Holdings, Inc., has drawn media attention, due to its implications on internet commerce and online marketing . Among the issues raised by this lawsuit is whether companies that utilize affiliate marketing can be held responsible for alleged acts of infringement by individual affiliate marketers, also known as "publishers".
An article written by Vanessa Blum, a special reporter to the Daily Business Review, can be found here.
Those seeking to expand business-method patents cite economics as a “useful art” and explain that these patents encourage innovation and produce tangible results. Conversely, opponents indicate that the patents curtail the free-flow of information and claim abstract ideas, both contrary to the goals of patent protection. Certainly, the Court will seek to balance the interests of both inventors and the public, which benefits from the increased societal knowledge that patents provide. But, as of now, the Court of Appeals’ decision seemingly puts the property rights of many business-method patent-holders in jeopardy with both the legal and business worlds taking note and this being heralded by some as "The most important patent case in 50 years" (link).
Sebastian Ohanian Contributed to this Entry.
The Supreme Court of the United States has decided to review the federal appellate court decision of In re Bilski, a seminal decision concerning method patents, in which the Court of Appeals for the Federal Circuit proposed a "machine-or-transformation" test for determining whether a process or method was capable of being patented.
The Supreme Court's docket reveals that the "Questions Presented" for this appeal (as framed by the party seeking review, in this case the patent applicant), are the following:
Whether the Federal Circuit erred by holding that a "process" must be tied to a particular machine or apparatus, or transform a particular article into a different state or thing ("machine-or-transformation" test), to be eligible for patenting under 35 U.S.C. § 101, despite this Court's precedent declining to limit the broad statutory grant of patent eligibility for "any" new and useful process beyond excluding patents for "laws of nature, physical phenomena, and abstract ideas."
Whether the Federal Circuit's "machine-or-transformation" test for patent eligibility, which effectively forecloses meaningful patent protection to many business methods, contradicts the clear Congressional intent that patents protect "method[s] of doing or conducting business." 35 U.S.C. § 273.
John Fulton, Jr. contributed to this blog entry.
Anyone who has happened upon Amazon.com over the past several months has undoubtedly noticed Amazon’s painstaking efforts to market its new Kindle 2 device to readers-at-large. The Kindle – a hardware device about the size and weight of an average book – allows users to directly download e-books (up to 1500 at a time) and read the titles on its “electronic paper” display. Of all of the Kindle 2's new features, the most heavily promoted is its ability to “read” books aloud to the user by relying on text-to-speech software.
However, this new feature has come under attack by the Author’s Guild which contends that a purchaser of an "e-book" buys only the right to read the book -- not the right to have the book read out loud. In fact, the concern that this feature will cannibalize the market for audio-books was apparently big enough to incite the President of the Author's Guild to author a New York Times opinion column on the issue. As noted in his article, technology has advanced to a point where the “computerized voices” on text-to-speech software are “almost indistinguishable from human ones”; with some of these programs going so far as to include an occasional ‘um,’ ‘er’, sigh and -- even -- coughs, in order to accurately simulate a human reader. Thus, the threat posed to audiobooks by text-to-speech software is greater than would have been possible in the past.