The Alice effect, USPTO defended, Led Zeppelin copyright dispute, Microsoft-Samsung latest – the week in IP

The Supreme Court’s Alice v CLS Bank ruling has now led to 11 patents being invalidated in courts, according to Vox. Six of these have come this month, with September 3 proving a particularly popular day for nixing patents.

The 11 cases identified by Vox were:

- July 6: A Delaware court rejects a Comcast patent covering a computerized telecommunication system that checks with a user before establishing a connection or not

- July 8: A New York court invalidates a patent on using a computer to help users to plan meals around dietary goals

- July 17: The Federal Circuit rejects a patent covering the concept of keeping colours synchronised across devices

- August 26: The Federal Circuit rejects a patent covering a bingo game on a computer

- August 29: A California court strikes down a patent for linking a mortgage line of credit to a checking account

- September 3: A Texas court invalidates a patent for using a computer to convert reward points from one store to another

- September 3: A Delaware court rejects a patent on the concept of an intermediary revealing information about two parties to each other

- September 3: The same Delaware court invalidates a patent for using a computerised system to upsell customers to buy other products that might interest them

- September 3: The Federal Circuit invalidates a patent covering the concept of using surety bonds to guarantee a transaction

- September 4: A California court rejects a patent for using a computer network to ask people to do tasks and then wait for them to do them

- September 11: A Florida court invalidates a patent covering the concept of subtracting money from each of many payments to accumulate a larger sum of money

Many other patents are in the firing line.

“For example, recent court rulings could make it easier to challenge Amazon's infamous patent on 1-click shopping, which claims the concept of ordering things over the Internet with a single click,” said Vox. “The steps described in the patent – receiving an order from a regular customer, retrieving pre-stored shipping information for the customer, shipping the item to the customer – have been performed by delivery businesses for decades. If Amazon's patent were challenged, courts might be sceptical that performing these steps on a computer constituted a patentable invention.”

The president of the Patent Office Professional Association this week issued a rallying defence of the USPTO, which has been under fire in recent reports amid accusations of improper or unethical conduct by USPTO employees.

The Washington Post has accused the agency of “telework abuse”. But Robert Budens, president of POPA, said in an email sent to association members that the newspaper has “significantly overblown the magnitude of any such abuses at the USPTO”.

Budens said he has been contacted and interviewed by several members of the news media – including Managing IP – for POPA’s position, stating that these “difficulties can and do occur irrespective of whether the employee teleworks or not”.

“To claim that the USPTO has “thousands” of examiners not doing their work is simply ridiculous on its face. It represents poor journalistic rigor on the part of a well-respected newspaper like the Washington Post,” he said.

The 32-page report that was leaked to the Washington Post was a first draft report of an internal investigation at the USPTO in response to several complaints sent to the Commerce Inspector General (IG). Budens said the report did not accurately reflect the totality of the data from the investigation but, rather, provided anecdotal data to support a clearly apparent bias of the authors in favour of providing more unfettered power and authority to employee relations specialists and mid-level managers.

“Why are these allegations ridiculous on their face? It is fairly simple. Patent examiners at the USPTO have the most tightly written, objective Performance Appraisal Plan (PAP) in the whole Federal government. Examiners’ time is tracked to six-minute intervals (1/10 of an hour). The PAPs require accountability for examiners’ time by assigning a certain number of hours to do a case for each examiner based on the particular technology being examined and the experience and authority of that examiner. In those cases where an examiner, or any USPTO employee for that matter, is not meeting his/her performance standards, the USPTO has shown itself year after year to be quite capable at disciplining the employee up to and including removal from Federal service. The Agency’s disciplinary ‘prowess’ extends to both performance and conduct. There is no way for “thousands” of employees to not be working without getting on the Agency’s radar screen and targeted by its disciplinary ‘guns’ – supervisors and employee relations specialists.”

Budens added: “Over the last weeks, POPA has been in almost daily conversations with USPTO senior management regarding these issues. I know that they are as frustrated as we are with these unfounded allegations.”

Led Zeppelin has hired entertainment lawyer Helene Freeman to represent the rock group in its copyright dispute over its most famous song Stairway to Heaven, according to Business Week.

Freeman is a partner at Phillips Nizer. She won several victories for boy band NSYNC, including allowing the band to leave its record label and have a copyright dispute over photos on concert merchandise dismissed.

Led Zeppelin is being sued by the trust of the late guitarist Randy California of the band Spirit, which alleges the opening notes to Stairway to Heaven were copied from Spirit’s song Taurus.

The judge in the contract dispute between Microsoft and Samsung over Android patent royalties has set a date of February 13 2015 for the case to be ready for trial, reports FOSS Patents.

Microsoft sued Samsung in August for not complying with an IP cross-licensing agreement. Samsung has picked O’Melveny & Myers to represent it in the case, which FOSS Patents notes is a change from the firm using Quinn Emanuel in its litigation against Apple and the Rockstar Consortium. Microsoft is represented by Dechert and antitrust specialists from Orrick.

Also on the blog this week:

Can the Indian government jump-start its innovation-driven industries?

And in our news and analysis:

Libraries can digitise books, says CJEU

European Patent Reform Forum 2014: the highlights

New partner for Taylor Wessing in Paris

Walker Morris appoints head of IP

Gide hires former French judge

Australia’s Full Federal Court rules on Myriad patent

UK IP Minister: China has skin in IP game

Terry Gilliam, Roberto Cavalli tagged by street artist copyright suits

New EU commissioners for IP portfolios

New EU commissioners for IP portfolios

Savvides joins Bristows

Jones Day adds two Kirkland IP litigators in Chicago

FTC sues AbbVie over “baseless patent infringement lawsuits”

Carpmaels & Ransford takes UPC initiative

Third Circuit applies Octane standard to Lanham Act case

USPTO trademark commissioner Cohn to retire

Goodwin Procter hires five from Kenyon & Kenyon

Norton Rose Fulbright adds to technology and innovation team in Singapore

Jun He adds patent partner