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Ciciora's Corner - Patent wars

Sat, 09/29/2012 - 5:59pm
Walt S. Ciciora, expert on cable and consumer electronics issues

The biggest recent splash is the Apple patent suit against some of Samsung’s Android devices.

Walt S. CicioraTurn on the news, read the newspaper, pick up your smartphone, and what do you see? Presidential politics and patent suits are there nonstop. I refuse to comment on the former, so that leaves the latter.

While I have been serving as an expert witness in patent suits since 1994 and have picked up a lot of “layman’s knowledge,” I am not an attorney. I can’t give legal opinions. And patent law is constantly changing – sometimes by acts of Congress, sometimes due to new interpretations by courts of existing laws. So you need to engage a good patent attorney for an up-to-date opinion on serious matters.

The U.S. Constitution establishes patents in Article I, the enumerated powers of Congress, Section 8: “The Congress shall have power … to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.”

Given that this is an election year, it would be a good idea to read the U.S. Constitution.

Article I, Section 8 gives Congress the power to establish patent and copyright laws. Because it’s a constitutional issue, patent cases are tried in federal court and can be appealed all the way to the Supreme Court.

A patent is the right to exclude someone from making, selling or using a patented invention. Yes, even using! So if you own a device that has been found to infringe a patent, you infringe the patent just by using the device. This extends to importing, offering for sale, and even suggesting others do these things under certain circumstances.

A patent is a deal between an inventor and society that grants a monopoly for a limited period of time for practicing the invention of the patent in exchange for a clear and complete description of how the invention works, so that anyone can legally practice the invention after the patent expires. The length of time is set by Congress and can be changed. It is currently 20 years from the date the patent is filed.

The “right to exclude” is enforced by bringing a lawsuit. If a patent owner is unwilling to bring a lawsuit, the patent is useless. The government does not enforce the patent, a court of law considers the accusation of infringement, and a jury makes a determination of whether infringement takes place and determines how to cure the inequity.

As a practical matter, bringing an infringement suit is very expensive. There is no point in doing this unless it can be proven that the patent holder suffered significant “damages” by the infringer.

To be patentable, an invention must be useful, novel and non-obvious. Useful means it must work. Novel means it hasn’t been invented before. And non-obvious means that a practitioner of ordinary skill must find it to not be an obvious combination of existing elements.

Two broad categories of patents are “utility patents” and “design patents.” A utility patent covers either an apparatus or a method of doing something (or both). A design patent covers the physical appearance of a device. Engineers are generally more concerned about utility patents, and product designers and artists focus on design patents.

Perhaps the biggest recent splash is the Apple patent suit against some of Samsung’s Android devices running Google software. The suit was tried in the U.S. District Court for the Northern District of California. It was a jury trial. The jury took surprisingly little time to issue its guilty verdict. The jury determined that the accused Samsung devices infringed three utility patents: 7,469,381, 7,844,915 and 7,864,163. The jury also found that Samsung’s accused devices infringed some design patents. All accused devices infringed D604,305, while some accused devices infringed D618,677 and D593,087. But no accused Samsung products infringed D504,889.

Because a patent must be a teaching document, well-written patents (not all of them are) can be used as an educational tool. A good patent describes the current state of the art (yes, the proper term is “art”), lists what is deficient about the current situation and briefly explains how the invention solves problems in the state of the art. Then the patent must describe, in clear detail, how to practice the invention.

In years past, a copy of a patent had to be ordered from the U.S. Patent and Trademark Office or a service providing copies of patents for a fee. The USPTO maintained sets of copies in a number of libraries. If you needed the patent copy quickly, you paid extra. Then fax machines facilitated faster access. Today, copies can be downloaded from the USPTO or in PDF form from Google Patents at no charge.

I would encourage downloading a couple of these patents, both the utility and design patents, to get a feel for how they are constructed.

I would recommend the Nolo Press book “Patent it Yourself” by David Pressman. But I don’t recommend patenting your invention yourself! The book is a great introduction to the process, but you need a professional to protect your rights.

Email: wciciora@ieee.org

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