Archive for February, 2011

Information Week: Software Patents Debated (Again and Again and Again….)

Sunday, February 20th, 2011

As reported in Information Week on February 18, 2011, the protective value of software patents was weighed against their potential for stifling innovation in code creation in a Wednesday debate that featured the Free Software Foundation versus a patent attorney and a venture capitalist. 

While the debate was reportedly won by patent proponents according to a vote taken of those in attendence, it may have been that the the audience was over-weighted with pro-patent forces, to be fair to the anti-patent side of this long-standing difference of opinion that has gone on unabated for the last thirty years.

Here is a link to the Information Week story:

BPAI Finds Method for Interpreting an MRI Image Statutory Even Though Not Tied to a Machine Implementation

Sunday, February 20th, 2011

In Ex Parte Jack, (Appeal 2009-015192), handed down February 9, 2011, the Board of Patent Appeals and Interferences (BPAI) found a method for classifying tissue in a magnetic resonance image statutory subject matter under Section 101.  The BPAI reversed the Examiner’s rejection of the claim under Section 101, as well as a rejection of the claims under Section 103.  Quoting from the opinion:

 “Similar to the Research Corporation claims, the instant claims are directed to a method for interpreting a magnetic resonance image by measuring, pixel-by-pixel, the image intensity and statistically analyzing a frequency-versus-intensity histogram. The Examiner has not alleged that the claims are directed to a law of nature or physical phenomenon, and we conclude that the claimed process is not so manifestly abstract as to override the broad statutory categories of eligible subject matter recited in § 101. SeeResearch Corporation, 627 F.3d at 868. The rejection of the claims as directed to nonstatutory subject matter is reversed.”

 The Specification of the Ex Parte Jack application discloses a method for “automatically measuring the volume of tissue in a region of interest by acquiring a magnetic resonance image, constructing a pixel intensity histogram of the image, and segmenting the histogram using a statistical regression analysis” (Spec. 5, qr 18). The “histogram is produced by counting the number of image pixels at each possible image intensity level and plotting the result as a frequency versus intensity graph” (id. at 5, qr 20).

Claims 1 and 4 are representative of the claims found statutory and read as follows:

1. A method of classifying tissue in a magnetic resonance image, the method comprising:

(a) acquiring a magnetic resonance image of a region of interest;

(b) constructing a pixel intensity histogram of the magnetic resonance image; and

(c) applying a statistical regression analysis to the histogram to determine a pixel intensity threshold value for segmenting the histogram into at least two regions, wherein at least one of the regions is representative of a tissue of interest.

4. The method as defined in claim 1, wherein the statistical regression analysis of step (c) comprises:

(i) identifying a consistently identifiable statistical characteristic of the histogram;

(ii) determining a statistical parameter of the consistently identifiable statistical characteristic; and

(iii) applying the statistical parameter as an independent variable in a regression analysis to determine a threshold value to classify pixels based on pixel signal intensity.

            What is interesting about this case and the RCT decision is that the method claims in question are not in any way tied to a computer implementation, although in both cases the claims involve imaging applications so are inherently limited to the interpretation or display of images that are certainly not “manifestly abstract.”  If this line of reasoning holds up, patentees and practicioners may finally be relieved from having to follow formalistic claiming conventions invoking computer implementation of methods in order to avoid abstract idea objections under Section 101.  These formalisms do little if anything to limit the substantive scope of claims but can complicate claim drafting so as to introduce unnecessary limitations that unfairly limit the patentee’s claim scope purely to meet formalistic and anachronistic Section 101 requirements.

Patent Buddy Releases New Patent Analytics iPhone App

Friday, February 18th, 2011

Patent Buddy has released a new iPhone app that provides an amazing set of patent analytics.   The app lets you check the current portfolio size and patent filing trends based on last three years of issued patents and publications.  One very handy feature is the ability to check on the current status of a patent to make sure it is not expired for failure to pay the maintenance fee, and the ability to check who the currrent owner(s) are.

The app is free.  Here is more information on the app:

For US patents the analytics include –
Current Status (issued, expired — for any reason)
Current Owner (from USPTO assignment database)
Inventor Analytics (Patent Counts)
Prior Art Analytics (Most Mentioned Prior Art)
Citation Analytics / Ratings (Rating based on Citation Rankings)
Patent Abstract / Claims (text of both)

For Patent Owners (with 10 or more patents or applications) –
Portfolio Counts and Composition (Number of issued patents in force; number issued  and number published in last three years.)
Technology Analytics / Ratings (Top patent classification for owner and patent counts)
Top Cited Patents
Top Inventors (for owner)

The official page for the app is found on Apples web site at:

President’s Proposed Budget Calls for USPTO Staffing and Fee Increases, Pendency Reduction

Monday, February 14th, 2011

From Janal Kalis, Schwegman, Lundberg & Woessner, P.A.:

President Obama released his proposed budget for 2012. The new Budget would allow the USPTO “full access to its fee collections” and for a “temporary” but major fee surcharge. The proposed budget would include a 1.4% increase in fees based on the Consumer Price Index (CPI) increase and a 15% surcharge on patent fees. The projected collections for FY2012 would jump to $2.71 billion ($2,700,000,000.00), a 16% increase of FY2011 and a 34% increase of FY2010 spending.

The 2010-2012 increase works out to a little over $100,000 extra per examiner. Examiners should not, however, expect raises.

The increased budget is intended to help cut “the average overall processing time of a patent application from 35 months to 20 months by 2015” by hiring 1,500 new patent examiners and to implement a “much-needed 21st century information technology (IT) system” for the USPTO.

AIPLA Features Webinar on Using the USPTO’s Bilski/Section 101 Guidelines to Gain Allowance of Software and Business Method Inventions

Sunday, February 13th, 2011

On February 10,  a panel of private practice and corporate counsel (Ken Nigon, Anthony Castiglione, Bob Bohanek and Ann McCrackin) outlined major features of the USPTO’s Interim Bilski Guidelines for assessing Section 101 eligibility of process claims.  Additionally, the panel addressed the potential impact of Federal Circuit’s December 2010 ruling in Research Corporation Technologies, Inc. v. Microsoft Corporation on the Bilski Guidelines.  The panel offered practical guidance for prosecutors in examples of abstract and non-abstract ideas, and suggestions on leveraging the Bilski Guidelines when working with examiners.  The corporate panelists (Anthony Castiglione and Bob Bohanek from USAA) shared their practical insights from their first-hand experience of working with the PTO on Section 101 issues.  The slides for the webinar will be available on the Computer and Electronic Committee web pages at sometime the week of February 14th.