Patent News | "Verdict in Apple-Samsung trial may echo through tech industry"

By: Nick Wingfield
Source: http://gadgets.ndtv.com
Category: Patent News


After nearly a month of testimony in the legal dogfight between Apple and Samsung over patents, the two parties are expected to make their closing arguments on Tuesday. It will then be up to jurors to hash out which Apple patents, if any, Samsung stepped on when it created devices that compete with the iPhone and iPad. Apple is seeking $2.5 billion in damages from Samsung, while Samsung has asked for $422 million in a countersuit against Apple.

But the effects of the case are likely to be felt far beyond these two companies. If Apple prevails, experts believe Samsung and other rivals in the market will have a much stronger incentive to distinguish their smartphone and tablet products with unique features and designs to avoid further legal tangles.

"I think what we'll see is a diversification of designs in the marketplace if Apple wins," said Christopher V. Carani, an intellectual property lawyer for McAndrews, Held & Malloy in Chicago.

And if the jury finds in favor of Samsung, its decision could have the opposite effect, creating a consensus around Apple-like designs for years to come. "Expect to see an awful lot of Apple knockoffs without fear of retribution," said Michael Gartenberg, an analyst at Gartner, the technology research firm.

Although Apple sued Samsung, the outcome of the case has broader implications for other companies that create devices based on Google's Android operating system, along with Google itself.

Apple wants an order permanently barring Samsung, the largest maker of Android smartphones, from selling products in the United States that violate its patents. A legal victory against Samsung could give Apple extra ammunition in lawsuits it has filed against other Android makers.

Apple is facing a major challenge from Android in the smartphone market, where Google's operating system powered 64.1 percent of the smartphones shipped worldwide during the second quarter this year, according to Gartner. The iPhone's share was 18.8 percent.

As part of the case, Apple has accused Samsung of copying patented features in the iPhone and iPad like the rectangular shape and rounded edges of the iPad's case and the bounce-back effect when an iPhone user tries to scroll beyond the end of a list or Web page.

Apple presented copious amounts of evidence during the trial, including internal Samsung documents and e-mails, to bolster its argument that Samsung had imitated its products. At the least, the evidence showed the galvanizing effect that the iPhone had on Samsung.

The iPhone set off a "crisis of design" at Samsung, J. K. Shin, Samsung's president of mobile communications, said in 2010, according to an internal memo. It also quoted him as saying that the difference in the experience of using the iPhone and Samsung phones was akin to "that of Heaven and Earth."

Apple presented a 132 page internal Samsung strategy document from 2010, in which the company conducted detailed side-by-side comparisons of the iPhone interface with that of a Samsung phone. In one e-mail, a Samsung manager passed on to colleagues criticisms from Google saying a Samsung phone was "too similar to Apple."

"My impressionistic sense is that Samsung has been on the defensive for most of the trial," said Mark A. Lemley, a law professor at Stanford.

Rather than mount a full-throated effort to undermine Apple's claims of imitation, Samsung's lawyers in the trial argued that many of Apple's patents were invalid because of earlier technologies that either looked or operated similarly to Apple's products.

As the trial was winding down last week, Samsung's legal team also argued that the method Apple used to come up with its figure of $2.5 billion in damages was flawed, inflating the number.

Simply being inspired by Apple's products is not illegal, said Jorge Contreras, an associate professor of law at American University. He says that Apple's claims of Samsung infringement on its design patents, a class of inventions related to the exterior look of the iPhone and iPad, are weaker than its arguments for its "utility patents" in the case, which protect various software functions.

Mr. Contreras predicts a "mixed result" in the case, with Apple winning on some of its claims, losing on others and getting nowhere near the amount it is demanding. "Even if Apple wins on a few of its claims, it's not a market-defeating victory here," he said.

For now, the only clear victors are the large squads of lawyers who have been busy on the case. More than a dozen members of each side's legal team have packed the courtroom of Judge Lucy Koh.

Judge Koh has kept the trial on a strict schedule, often venting her frustration at lawyers when she believed they were slowing the case down. On Thursday, she told Bill Lee, one of Apple's lawyers, that he must be "smoking crack" if he thought Apple could call all the witnesses it wanted to in the remaining hours of the trial. Mr. Lee replied that he was not, in fact, on crack.


Source: http://gadgets.ndtv.com/mobiles/news/verdict-in-apple-samsung-trial-may-echo-through-tech-industry-256806

Patent News | "Apple, Samsung Report No Progress in Trimming Patent Case"

By: Joel Rosenblatt 
Source: www.businessweek.com
Category: Patent News

Patent News

Apple Inc. (AAPL) and Samsung Electronics Co. (005930) reported they made no progress toward narrowing their dispute over smartphone and computer tablet patents, increasing the chances a jury will decide the matter starting Aug. 21.

The companies said yesterday they weren’t able to narrow the scope of claims at issue in the lawsuit in out-of-court talks.

The judge overseeing the case in federal court in San Jose, California, asked the parties to try to simplify the dispute, while also ordering the chief executives of the two companies to talk one more time before a jury begins deliberating.

“I think it’s too late to hold out much hope that the parties will settle before the jury comes back,” Mark Lemley, a Stanford University law professor, said yesterday by e-mail after the companies’ reported to the court. “When there is a settlement -- and there will be -- it will be a global deal involving more than just this case.”

Suits over technology patents between the companies are active on four continents. Lemley said the patent portfolios for both sides are too deep and broad not to settle and there’s a risk that both parties could face injunctions blocking the sale of their products. Apple is seeking to make permanent a preliminary ban it won in court in San Jose on U.S. sales of a Samsung tablet, and to extend the ban to Samsung smartphones.

U.S. District Judge Lucy Koh last week directed the companies to report no later than yesterday on whether “there has been some successful horse trading” to streamline and simplify claims in the case.

Koh said she remained “pathologically optimistic” a settlement could be reached. Barring such an agreement, she said, she hoped to simplify the matter for jurors, who are to begin deliberating Aug. 21.

Joint Statement
“The parties have met and conferred about case narrowing, but have not been able to narrow their cases further,” according to a joint filing signed by attorneys on both sides. The filing didn’t refer to talks between the CEOs, Tim Cook at Apple and his counterpart at Samsung, Kwon Oh Hyun.

Adam Yates, a spokesman for Suwon, South Korea-based Samsung, declined to comment on yesterday’s filing. Kristin Huguet, a spokeswoman for Cupertino, California-based Apple, also declined to comment.

Apple sued Samsung in April 2011, accusing it of copying patented designs for mobile devices, and Samsung countersued. The case is the first to go before a federal jury in a battle for dominance in a smartphone market valued by Bloomberg Industries at $219.1 billion.

The case is Apple Inc. v. Samsung Electronics Co. Ltd., 11- cv-01846, U.S. District Court, Northern District of California (San Jose).


Source: http://www.businessweek.com/news/2012-08-18/apple-samsung-report-no-progress-in-narrowing-patent-case

Patent News | "Google launches patent assessment tool"

By:ANH NGUYEN
Source: http://computerworld.co.nz 
Category: Patent News

Patent News

Google has launched a tool to enable businesses to check multiple sources to see if their 'innovative product' is actually new.

The search giant has made US patents available online since 2006, and is now doing the same for ideas filed in the European Union.

The 'Prior Art Finder' tool allows users to search the European Patent Office and the United States Patent and Trademark Office, as well as other sources, for information relevant to their patent applications.

"To explain why an invention is new, inventors will usually cite prior art, such as earlier patent applications or journal articles. Determining the novelty of a patent can be difficult, requiring a laborious search through many sources, and so we've built a Prior Art Finder to make this process easier.

"With a single click, it searches multiple sources for related content that existed at the time the patent was filed," Jon Orwant, engineering manager at Google, wrote in a blog.

Identifying key phrases from the text of the patent, the tool displays results from Google Patents, Google Scholar, Google Books and the rest of the web.

However, Orwant was keen to stress that the tool is still in its early development stages.

"We'll be refining and extending the Prior Art Finder as we develop a better understanding of how to analyse patent claims and how to integrate the results into the workflow of patent searchers," he said.


Source: http://computerworld.co.nz/news.nsf/news/google-launches-patent-assessment-tool

Patent News | "Microsoft's Gutierrez safeguards valuable trove of patents"

By:  Janet I.Tu
Category: http://seattletimes.nwsource.com
Source: Patent News


Forget that his face adorns lunchboxes. Darth Vader is supposed to be menacing.

But when Horacio Gutierrez, Microsoft's deputy counsel of intellectual property and licensing, dressed up as the ominous Star Wars Sith Lord one Halloween? Not so much.

"I've never seen a happier Darth Vader," said Gutierrez's boss, Microsoft general counsel Brad Smith.

In some ways that image captures perceptions of Microsoft in the patent battles now raging among tech companies — and Gutierrez's role in them.

Microsoft has signed a number of licensing agreements with — or filed lawsuits against — companies it says infringe on its patents, most notably manufacturers of Android devices.

To some, Microsoft is a menace that wields its power to extract sizable royalty payments on Android devices even as its own Windows mobile devices flounder. In that view, Microsoft uses patents as a cash cow rather than a way to protect inventions.

To others, Microsoft leads the way in how intellectual-property disputes should be settled, with a preference for licensing over litigation and an eye toward fair settlements — while protecting its vast investment in research and development over the years.

Gutierrez, too, embodies those dual perceptions.

In his role heading the company's patent, trademark and copyright work, the 47-year-old attorney is in a position to stare down some of the largest technology companies in the world. The work he and his team produce makes headlines, from broad agreements with Samsung to battles with Motorola in courtrooms worldwide. The consequences can be sweeping, from billion-dollar deals to import bans on products.

But within Microsoft, Gutierrez is known as much for his good humor as for his legal acumen.

The patent arena is "filled with conflict, disagreements and complicated technologies. A little humor goes a long way," said David Kaefer, general manager of intellectual-property licensing, who works for Gutierrez.

Increasingly visible

The kind of role Gutierrez plays is becoming increasingly visible as high-profile tech companies wage patent battles in courts worldwide over products used daily by millions of people.

At Microsoft, Gutierrez leads the team devising strategies on which patents to acquire, what to do with the ones it has, and how to protect its new technologies.

He also leads some of the negotiations for licensing deals himself — including a major 2011 deal with Samsung.

Gutierrez says he thrives on tense negotiations, seeing it as a challenge to break through with humor, empathy and attempts "to think of ways in which the interests of both companies can be aligned."

"He's just creative in finding ways to get the deals done," said Terry Myerson, head of Microsoft's Windows Phone division. "Licensing intellectual property — doing it in a reasonable but win-win manner — requires incredible creativity and understanding of tech and global intellectual property."

When the Kinect — Microsoft's motion- and voice-sensing technology — was being developed, Gutierrez immediately saw the opportunities for the company, recalled Rich Wallis, deputy general counsel of Microsoft's interactive entertainment division.

"I remember being in meetings with him where he was so excited about the technology," Wallis said. "It was visibly palpable. He's a high-energy person. His voice gets a little quicker. His eyes light up. The hands start moving."

Ambitious plans

Gutierrez showed such gusto and ambition from early on.

Born and raised in Maracaibo, Venezuela, the son of an attorney father and a homemaker mother, Gutierrez started law school at 16, graduated by 21, and became a partner at a law firm in Venezuela by 28.

He spent a year as a Fulbright Scholar at Harvard University, earning a master's of law degree, then came to the U.S., working at an investment bank before joining a law firm in Miami and earned his Doctor of Laws degree from the University of Miami at the same time.

"We quickly realized we had a major talent here," said Terrence Connor, former managing partner of Morgan, Lewis & Bockius, the law firm where Gutierrez worked in Miami.

Attracted attention

Gutierrez came to work in Microsoft's Fort Lauderdale office in 1998 after one of his law-journal articles — on the liabilities of manufacturers for the Y2K bug — caught someone's eye at Microsoft.

He first met Smith, his current boss, during one of Smith's periodic visits to the company's regional offices.

Over his two-day visit, Smith focused on anti-piracy issues, leaving little time to talk about commercial concerns — Gutierrez's area.

"I was so, so mad," Gutierrez recalls. "We had literally two hours to talk and I packed a day of content into those two hours. It was possibly a passive-aggressive thing: 'See what you've missed by not focusing on this.' "

Smith recalls that Gutierrez "just jumped off the page. He easily exceeded my expectations."

Move to Redmond

A year and a half later, Smith asked Gutierrez to move to Redmond, where he dealt with European Union and U.S. Department of Justice antitrust investigations of Microsoft.

After that, he spent four years in Brussels heading up Microsoft's legal department for Europe, the Middle East and Africa.

In 2006, Gutierrez took over as head of Microsoft's worldwide intellectual-property group.

At the time, the company had "the desire to go out and do some actual deals and [get] paid for our patents," Gutierrez said. "I saw it as my mission to conceive of a licensing program as a way of getting deals done."

These days, Gutierrez lives in Clyde Hill with his family — wife Morella Troconis, a mechanical engineer with an MBA who is currently a homemaker, and three children ages 8 to 18.

All three play soccer, which delights Gutierrez, a big fan.

Gutierrez has also turned more attention recently to diversity issues, serving as recently elected president of the Northwest region of the Hispanic National Bar Association and, as part of his position at Microsoft, creating a network for women working in intellectual property.

Lots of agreements

To date, Microsoft has reached more than a thousand agreements in which companies either pay Microsoft royalties or have cross-licensing agreements in which each company uses the other's patented technologies.

One company notably absent from that list: Motorola, now owned by Google.

Representatives of Motorola and Google declined to comment for this story.

But Google has contended elsewhere that Microsoft, having failed to succeed in the smartphone market, is turning to legal wrangling over patents to "extort profit from others' achievements and hinder the pace of innovation."

Microsoft has also taken flak in years past after pursuing companies using the open-source Linux operating system, which includes technologies Microsoft said infringes on its patents.

Critics slammed the software giant, seeing it as a moral issue of Microsoft trying to stifle open-source development.

Gutierrez, naturally, did not see it that way.

"I grappled with [that] perception," he said. "I didn't think there was an actual issue at all. The companies taking advantage of us were commercial companies making money."

That same outlook applies to the company's patent battles with manufacturers using Android.

"You can't infringe on another company's IP and give that away," Gutierrez said. "The solution is licensing."

Currently, more than 70 percent of all U.S. Android devices are licensed under Microsoft's program.

History buff

Gutierrez, a history buff, contends what's happening now with patent battles in the mobile business is what happens every time there's been a technological disruption: with the sewing machine, the telegraph and the telephone, for instance.

"What happened eventually was that litigation ran its course. Licensing programs took place or, eventually, technology evolved," he said.

Joff Wild, editor of Intellectual Asset Management Magazine, says that in terms of intellectual property, "I think Microsoft is probably playing the smartphone wars far more intelligently than any other company."


Source: http://seattletimes.nwsource.com/html/businesstechnology/2018947699_inpersongutierrez20.html

Patent News | "In Apple’s Patent Case, Tech Shifts May Follow"

By: NICK WINGFIELD
Source: www.nytimes.com
Category: Patent News

Patent News

¶ SAN JOSE, Calif. — This week, nine jurors are expected to hunker down in a federal courthouse here to decide a case that could change how the world’s smartphones and tablet computers look and work.
Enlarge This Image

¶ After nearly a month of testimony in the legal dogfight between Apple and Samsung over patents, the two parties are expected to make their closing arguments on Tuesday. It will then be up to jurors to hash out which Apple patents, if any, Samsung stepped on when it created devices that compete with the iPhone and iPad. Apple is seeking $2.5 billion in damages from Samsung, while Samsung has asked for $422 million in a countersuit against Apple.

¶ But the effects of the case are likely to be felt far beyond these two companies. If Apple prevails, experts believe Samsung and other rivals in the market will have a much stronger incentive to distinguish their smartphone and tablet products with unique features and designs to avoid further legal tangles.

¶ “I think what we’ll see is a diversification of designs in the marketplace if Apple wins,” said Christopher V. Carani, an intellectual property lawyer for McAndrews, Held & Malloy in Chicago.

¶ And if the jury finds in favor of Samsung, its decision could have the opposite effect, creating a consensus around Apple-like designs for years to come. “Expect to see an awful lot of Apple knockoffs without fear of retribution,” said Michael Gartenberg, an analyst at Gartner, the technology research firm.

¶ Although Apple sued Samsung, the outcome of the case has broader implications for other companies that create devices based on Google’s Android operating system, along with Google itself.

¶ Apple wants an order permanently barring Samsung, the largest maker of Android smartphones, from selling products in the United States that violate its patents. A legal victory against Samsung could give Apple extra ammunition in lawsuits it has filed against other Android makers.

¶ Apple is facing a major challenge from Android in the smartphone market, where Google’s operating system powered 64.1 percent of the smartphones shipped worldwide during the second quarter this year, according to Gartner. The iPhone’s share was 18.8 percent.

¶ As part of the case, Apple has accused Samsung of copying patented features in the iPhone and iPad — like the rectangular shape and rounded edges of the iPad’s case and the bounce-back effect when an iPhone user tries to scroll beyond the end of a list or Web page.

¶ Apple presented copious amounts of evidence during the trial, including internal Samsung documents and e-mails, to bolster its argument that Samsung had imitated its products. At the least, the evidence showed the galvanizing effect that the iPhone had on Samsung.

¶ The iPhone set off a “crisis of design” at Samsung, J. K. Shin, Samsung’s president of mobile communications, said in 2010, according to an internal memo. It also quoted him as saying that the difference in the experience of using the iPhone and Samsung phones was akin to “that of Heaven and Earth.”

¶ Apple presented a 132-page internal Samsung strategy document from 2010, in which the company conducted detailed side-by-side comparisons of the iPhone interface with that of a Samsung phone. In one e-mail, a Samsung manager passed on to colleagues criticisms from Google saying a Samsung phone was “too similar to Apple.”

¶ “My impressionistic sense is that Samsung has been on the defensive for most of the trial,” said Mark A. Lemley, a law professor at Stanford.

¶ Rather than mount a full-throated effort to undermine Apple’s claims of imitation, Samsung’s lawyers in the trial argued that many of Apple’s patents were invalid because of earlier technologies that either looked or operated similarly to Apple’s products.

¶ As the trial was winding down last week, Samsung’s legal team also argued that the method Apple used to come up with its figure of $2.5 billion in damages was flawed, inflating the number.

¶ Simply being inspired by Apple’s products is not illegal, said Jorge Contreras, an associate professor of law at American University. He says that Apple’s claims of Samsung infringement on its design patents, a class of inventions related to the exterior look of the iPhone and iPad, are weaker than its arguments for its “utility patents” in the case, which protect various software functions.

¶ Mr. Contreras predicts a “mixed result” in the case, with Apple winning on some of its claims, losing on others and getting nowhere near the amount it is demanding. “Even if Apple wins on a few of its claims, it’s not a market-defeating victory here,” he said.

¶ For now, the only clear victors are the large squads of lawyers who have been busy on the case. More than a dozen members of each side’s legal team have packed the courtroom of Judge Lucy Koh.


Source: http://www.nytimes.com/2012/08/20/technology/samsung-and-apple-fail-to-agree-out-of-court.html

Patent News | "Apple, Samsung Ready Closing Arguments in Patent Case"

By: John P. Mello Jr
Source: www.pcworld.in
Category: Patent News


Apple and Samsung are heading to closing arguments in their patent infringement trial, and reputations and big bucks are at stake.

Samsung argues Apple should pay $421.8 million to Samsung for infringing on its patents. Apple is seeking $2.75 billion from Samsung in the case.

Testimony wrapped up Friday. On Monday, the sides will discuss jury instructions. Closing arguments are set for Tuesday, and then the jury will deliberate and decide who will win what some consider the tech trial of the century.

In court this week, according to reports from several media outlets including Reuters and Bloomberg, testimony was mostly dry, but there were some interesting tidbits that were revealed. For instance: Apple said all its patents in dispute in the trial had been licensed to Microsoft.

That licensing agreement, though, includes a "do not clone" clause, which keeps Microsoft from knocking off design elements of the iPhone and iPad.

According to Apple, it tried to cut a similar deal with Samsung, but the South Korean company countered in court that the scope of the licensing agreement that it was offered was narrower than the one offered Microsoft.

Also this week, Apple made a move to keep secret some financial and marketing documents that the presiding federal judge in the trial, Lucy Koh, wants to make public. The documents include Apple sales figures identified by country. Apple historically releases sales figures only by region.

Koh denied a request made by Apple to seal those documents. Apple has asked Koh to delay making the documents public until the company can appeal the ruling.

Samsung, meanwhile, has been attacking Apple's originality.

A parade of expert witnesses cited iPhone features such as "rubberbanding" -- the way the screen bounces on an iPhone or iPad when the end of a file is reached, and "snapback" -- the way the screen stops scrolling when a user arrives at the end of a collection of images.

The jury of seven men and two women in the case also heard testimony from a senior designer at Samsung about how hard they worked on making original icons for the company's phone and tablet products. Apple claims Samsung ripped off its iPhone icons.

The court has removed from the infringement suit three Samsung phone models: the Galaxy S i9000, Galaxy Ace and Galaxy S II i9100. Twenty other Samsung devices, though, remain in the case.

Although Judge Koh tried to get Apple and Samsung to settle their differences before and failed, she pleaded this week for them to give peace a chance.

"I see risk here for both sides if we go to a verdict," she told the legal teams, according to All Things D. She added, "It's time for peace."

Nevertheless, Samsung continued its case against Apple.

Among other things, it argues the Cupertino, California-based company violated Samsung's intellectual property for scrolling through photographs, sending them through email, indexing them, and playing MP3 music files.

Apple attempted to undercut the value of those patents to Samsung. The photo scrolling patent, for example, hadn't been used by the South Korean company in a smartphone in three years, it argued.

Apple also pressed its copycat case against Samsung while cross-examining one of its technical witnesses. It did that by introducing email messages attributed to Google that showed the search giant was concerned about Samsung's phone designs too closely copying Apple's.


Source: http://www.pcworld.in/news/apple-samsung-ready-closing-arguments-patent-case-82232012

Patent News | "US Court Allows Patents On Human Genes"

By: Amanda Wilson
Source: www.countercurrents.org
Category: Patent News

Patent News

Is a gene more like a tree trunk or more like a baseball bat? A federal court Thursday took a stand on the question, ruling that isolated DNA molecules are “not found in nature”, and are therefore more like inventions, such as baseball bats, than natural phenomenon, such as tree trunks.

Using language steeped in metaphor in a packed U.S. federal courtroom, attorneys in July debated the question in a closely-watched case on the right to patent genes that has been working its way through the courts.

At stake: the right of one company – Myriad Genetics – to patent a gene as a human invention under U.S. patent law, which allows patents on inventions but not on products of nature.

In a ruling that largely upheld the status quo in a biotech industry that has been patenting genes for decades, the U.S. Court of Appeals for the Federal Circuit ruled Thursday that “isolated” human genes are patentable. Methods of “comparing” or “analysing” DNA sequences are, however, not patent eligible, it ruled.

In a two-to-one decision, the court affirmed Myriad’s right to claim intellectual property rights on the BRCA-1 BRCA-2 genes, genes where mutations indicate a woman has an 82 percent increased risk of developing breast cancer.

The company’s patents on the genes are the basis of a breast cancer indicator test that has been a profitable asset in the company’s portfolio of intellectual property.

The American Civil Liberties Union (ACLU), representing a group of about 20 plaintiffs, including the breast cancer patient advocates and geneticists, several years ago launched a legal challenge to Myriad’s right to patent the genes.

The plaintiffs, including patient advocacy group Breast Cancer Action, have argued that Myriad’s IP rights to the genes allow it to block others from testing for – or even looking at – the BRCA-1 and BRCA-2 genes, a right they say Myriad has exercised in the past with legal threats.

Plaintiffs have also argued the patents raise prices for testing and essentially create a market monopoly which blocks the poorest from getting tested and stifles scientists who want to look at the genes. Yale geneticist Ellen Matloff, a plaintiff in the case, told IPS last year the situation was “horrifying.”

Matloff told IPS that 95 percent of patients she recommended for Myriad’s 700-dollar supplementary BART test, which looks for mutations on the BRCA-1 and BRCA-2 genes, opted not to get it because of its high cost.

Furthermore, those who question gene patents have pointed out that patenting individual genes might even be myopic, especially in a world of whole genome sequencing where the scientific community is increasingly interested in gene interactions, the influence of the environment on genetics (called epigenetics), and other big-picture indicators to understand patient health.

The case has been working its way through the courts. A New York district court judge sided with the ACLU in 2010, but the Federal Circuit Court of Appeals overturned the ruling in July 2011.

The ACLU appealed to the Supreme Court last year, but the Court declined to issue a ruling in the case. Instead, it sent the case back to the Federal Circuit to re-examine in light of its unanimous spring decision that Prometheus Laboratories Inc. did not have a right to patent a certain blood test because the patent was based on observations about natural phenomena.

But Thursday, the Federal Circuit again ruled that genes are patentable. The court wrote, “The isolated DNA molecules before us are not found in nature. They are obtained in the laboratory and are man-made, the product of human ingenuity.”

In its majority opinion the court also highlighted that gene patenting had been standard practice for the U.S. Patent and Trademark Office (PTO) for years.

“Why hasn’t this come up in 30 years,” Circuit Judge Kimberly Moore, who sided with the majority, asked during oral arguments in the courtroom July.

Moore hinted at the biotech sector’s financial stake in gene patents, often key components of diagnostic test IP at the centre of a much-hyped personalised medicine industry. “What about the biotech sector and all the money?” Moore asked.

In his dissenting opinion, Circuit Judge William Bryson wrote, “my colleagues assign significant weight to the fact that since 2001 the PTO has had guidelines in place that have allowed patents on entire human genes… I think the PTO’s practice and guidelines are not entitled to significant weight…”

Sandra Park, an attorney with the ACLU, told IPS her team was disappointed in the Federal Circuit court’s decision, which she said she believed did not take the Supreme Court’s ruling in Prometheus adequately into consideration.

“We think that the Supreme Court’s recent decision is very clear that the Court is very concerned about how patents interfere with scientific work,” Park told IPS. “The Supreme Court has said that the interests of industry in relying on patent protection is not a factor in determining that something is patentable.”

Park said the mere fact that Prometheus argued that it needed its patents to advance its interests, in the Supreme Court’s ruling, was insufficient reason to justify patents.

If the ACLU decides, with the other plaintiffs, to appeal the Federal Circuit court’s decision, it is possible the Supreme Court might decide to hear the case. Such a scenario is not unheard of. In fact, Park said, the Supreme Court decision to overturn Prometheus’s right to its diagnostic patent came after the Federal Circuit twice upheld it.

Park said the ACLU was still deciding its next step. “We are reviewing our options, but we haven’t made any decisions yet.”


Source: http://www.countercurrents.org/wilson180812.htm

Patent News | "Analysis: Lululemon patent claim highlights cutthroat yoga world"

By: Allison Martell 
Source: www.chicagotribune.com
Category: Patent News

Patent News

(Reuters) - Lululemon, the hip Canadian chain that made yoga apparel fashionable, has taken its fight for market share to the courts with a patent lawsuit, as new brands of active wear seek to undercut its premium prices.

The lawsuit filed by Lululemon Athletica Inc , which cultivates a mellow yoga vibe in its stores, comes as investors indicate growing unease over the company's future. Whether the lawsuit, filed in a U.S. court, will shore up the company's position remains to be seen.

Patent lawsuits are uncommon in apparel and can be difficult to win. The suit could deter imitators, and thus help the Vancouver-based company cement its growth. It also highlights how tough the competition is.

"This is a low barrier-to-entry industry. Lululemon, their success, has drawn new competitors throughout the mall," said independent retail analyst Brian Sozzi. "The valuation is so high. It's tough to warm up to a stock when you see so many new competitors."

In the suit filed in federal court in Delaware on August 13, Lululemon accused PVH Corp's Calvin Klein brand and manufacturer G-III Apparel Group Ltd of infringing three patents on the design of its yoga pants. Design patents protect the appearance of goods, in contrast to more common utility patents, which focus on how things work.

"What Lululemon is doing here is staking its turf," said Jeremy de Beer, an intellectual property expert and law professor at the University of Ottawa.

Founded in 1998, Lululemon took Canada and then the United States by storm with costly, colorful, fashionable workout gear targeted at professional young women. Its shares are up seven-fold since its 2007 initial public offering, and now trade at 46 times earnings.

De Beer compared Lululemon's suit to tech sector patent wars, such as the high-profile trial between Apple Inc and Samsung Electronics Co Ltd , now drawing to a close.

"The business strategy is to deter other people from even trying to copy designs, because it's going to cause them legal problems," he said.

Lululemon investors could be forgiven for hoping for good news. The shares have fallen nearly 17 percent in the last three months, although they are still up 26 percent year-to-date.

The chain is expanding rapidly, and earnings consistently beat expectations as it posts same-store sales gains upwards of 20 percent. But the stock swoons at any hint that sales growth might slow, and it has attracted significant interest from short sellers, who bet on making money from a falling share price.

The company says it competes with athletic apparel heavyweights such as Nike Inc and Under Armour Inc by offering better quality, and it maintains its enviable margins by taking charge of every stage of the process - from design, to production, to sale.

But Sozzi said some new products match Lululemon's quality, even though they are 30 to 40 percent cheaper.

Gap Inc opened 11 standalone Athleta stores last quarter, bringing its total to 22. The banner features workout gear and free in-store fitness classes, like the free yoga classes that helped build Lululemon's profile.

Closer to home, some tastemakers have been talking up privately held Coalision Inc's Lole, sold in sports stores and about half a dozen own-brand boutiques in Canada and France.

APPAREL PATENTS A TOUGH SELL

Lululemon's filing says some Calvin Klein "Performance" pants infringe patents on its "Astro Pant." Two of the styles singled out were recently listed online at $39.99 and $60.00 before discounts, compared with $98 for the Astro.

In court, Lululemon will have to show that its rival's products look like the patented pants. The other side can strike back with "prior art" - evidence that others made similar products before Lululemon.

"It's kind of difficult in clothing to design something which is completely new, because, you know, the history of clothing design goes for several thousand years," said Alexander Poltorak, chief executive of General Patent Corporation.

Design patents often protect patterns on fabric, wallpaper and the like, said Poltorak, whose company administers patent licensing and enforcement for clients.

Adrian Pruetz, a partner at U.S. law firm Glaser Weil Fink Jacobs Howard Avchen & Shapiro who has represented Nike in some patent suits on the design of its running shoes, said apparel is "difficult to protect."

"It's very hard to come up with something that's new and that hasn't just been part of the clothing vernacular," she said.

WHAT NEXT FOR LULULEMON?

There is no doubt Lululemon helped popularize yoga gear, especially stretchy pants with wide, flattering waistbands.

Many attribute Lululemon's success to a sense of community in its stores. But the company, which wants to double the number of stores it has in North America to 350, is also in it to win.

Chief Executive Christine Day, who built her career at Starbucks Corp and took over as CEO in 2008, often says Lululemon is pushing to become the number one women's athletic apparel brand. A company manifesto calls for one, five and 10-year goals and exalts readers to "dance, sing, floss and travel." It has some words on adversity too.

"Life is full of setbacks," it says. "Success is determined by how you handle setbacks."


Source: http://www.chicagotribune.com/classified/automotive/sns-rt-us-lululemon-patentsbre87h037-20120818,0,1274765.story

Patent News | "Apple, Samsung Ready Closing Arguments in Patent Case"

By: John P. Mello Jr., PCWorld 
Source: www.pcworld.com
Category: Patent News

Patent News

Apple and Samsung are heading to closing arguments in their patent infringement trial, and reputations and big bucks are at stake.

Samsung argues Apple should pay $421.8 million to Samsung for infringing on its patents. Apple is seeking $2.75 billion from Samsung in the case.

Testimony wrapped up Friday. On Monday, the sides will discuss jury instructions. Closing arguments are set for Tuesday, and then the jury will deliberate and decide who will win what some consider the tech trial of the century.

In court this week, according to reports from several media outlets including Reuters and Bloomberg, testimony was mostly dry, but there were some interesting tidbits that were revealed. For instance: Apple said all its patents in dispute in the trial had been licensed to Microsoft.

That licensing agreement, though, includes a "do not clone" clause, which keeps Microsoft from knocking off design elements of the iPhone and iPad.

According to Apple, it tried to cut a similar deal with Samsung, but the South Korean company countered in court that the scope of the licensing agreement that it was offered was narrower than the one offered Microsoft.

Also this week, Apple made a move to keep secret some financial and marketing documents that the presiding federal judge in the trial, Lucy Koh, wants to make public. The documents include Apple sales figures identified by country. Apple historically releases sales figures only by region.

Koh denied a request made by Apple to seal those documents. Apple has asked Koh to delay making the documents public until the company can appeal the ruling.

Samsung, meanwhile, has been attacking Apple's originality.

A parade of expert witnesses cited iPhone features such as "rubberbanding" -- the way the screen bounces on an iPhone or iPad when the end of a file is reached, and "snapback" -- the way the screen stops scrolling when a user arrives at the end of a collection of images.

The jury of seven men and two women in the case also heard testimony from a senior designer at Samsung about how hard they worked on making original icons for the company's phone and tablet products. Apple claims Samsung ripped off its iPhone icons.

The court has removed from the infringement suit three Samsung phone models: the Galaxy S i9000, Galaxy Ace and Galaxy S II i9100. Twenty other Samsung devices, though, remain in the case.

Although Judge Koh tried to get Apple and Samsung to settle their differences before and failed, she pleaded this week for them to give peace a chance.

"I see risk here for both sides if we go to a verdict," she told the legal teams, according to All Things D. She added, "It’s time for peace."

Nevertheless, Samsung continued its case against Apple.

Among other things, it argues the Cupertino, California-based company violated Samsung's intellectual property for scrolling through photographs, sending them through email, indexing them, and playing MP3 music files.

Apple attempted to undercut the value of those patents to Samsung. The photo scrolling patent, for example, hadn't been used by the South Korean company in a smartphone in three years, it argued.

Apple also pressed its copycat case against Samsung while cross-examining one of its technical witnesses. It did that by introducing email messages attributed to Google that showed the search giant was concerned about Samsung's phone designs too closely copying Apple's.


Source: http://www.pcworld.com/article/261086/apple_samsung_ready_closing_arguments_in_patent_case.html

Patent News | "Ready to patent that 'new' invention? Google is here to dash your hopes"

By: Out-Law.com 
Source: www.theregister.co.uk
Category: Patent News


The technology giant has created a new 'Prior Art Finder' which enables users to search "multiple sources" in order to review whether ideas they hope to patent are in fact novel. The tool, which "instantly pulls together information relevant" to patent applications, will enable inventors to review documents submitted with both the United States Patent & Trademark Office and the European Patent Office, among other sources, Google said.

To qualify for patent protection inventions must primarily be new, take an inventive step that is not obvious and be useful to industry.

"To explain why an invention is new, inventors will usually cite prior art such as earlier patent applications or journal articles," Jon Orwant, engineering manager at Google, said in a company blog. "Determining the novelty of a patent can be difficult, requiring a laborious search through many sources, and so we’ve built a Prior Art Finder to make this process easier. With a single click, it searches multiple sources for related content that existed at the time the patent was filed."

"The Prior Art Finder identifies key phrases from the text of the patent, combines them into a search query, and displays relevant results from Google Patents, Google Scholar, Google Books, and the rest of the web," he added.

Orwant said he hoped the feature would supplement existing search methods patent applicants use and that the tool would be refined and extended once Google "develop a better understanding of how to analyse patent claims and how to integrate the results into the workflow of patent searchers."

Earlier this year Google announced that it had partnered with the EPO to introduce free new language translation technology on the EPO's website. At the time the EPO said that it had provided Google with "several hundred thousand high quality translations of patents" in English, German, French, Spanish, Italian, Portuguese and Swedish which Google had used to "train" its existing automated translation software.


Source: http://www.theregister.co.uk/2012/08/17/google_creates_prior_art_finder/

Patent News | "CNET News Apple Apple files for patent on illuminated, colorful touch pads"

By: Don Reisinger
Source: http://news.cnet.com
Category: Patent News

Patent News

Apple has filed for a patent on a touch pad that both lights up and responds to varying pressure.
Dubbed "Illuminated Touchpad," the patent, which was applied for in April but published today, describes a technology that will deliver "improved feedback mechanisms for touch pads." A key component in that mechanism is backlighting, which illuminates the touch pad when a user interacts with it. Apple's technology also appears to allow for illumination when the person is not interacting with the respective device.

"One aspect relates to devices capable of illuminating the touch sensitive surface of the touch pad," Apple writes. "Not just in backlighting so that the user knows where the touch pad is located in low light conditions, but also to give other feedback related to how the touch pad is being used."

The patent was first spotted by Apple Insider.
The big draw in Apple's patent application, however, might be the technology's other function: response to pressure and motion characteristics. According to Apple, depending on how hard a person presses on the touch pad or the way in which they move their finger across it, the technology would modify its appearance.
"Another aspect relates to methods for providing feedback at the touch pad," Apple writes. "For example, changing intensity or color based on motion characteristics- and/or pressure, providing an illumination point that follows a finger as it is moved about the touch sensitive surface, showing different states with varying levels of brightness or color, etc."

Apple didn't say the products that might use the technology. However, the company's art accompanying the patent application includes drawings of a person holding their finger on what could be a MacBook trackpad. Apple's images also show its now-legendary iPod scrollwheel.

However, before we start counting the days until Apple's new touch pad technology launches, it should be noted that the company files for boatloads of patents for technologies that never launch.


Source: http://news.cnet.com/8301-13579_3-57494636-37/apple-files-for-patent-on-illuminated-colorful-touch-pads/

Patent News | "Myriad wins gene patent ruling from US appeals court"

By: Jonathan Stempel
Source: www.reuters.com
Category: Patent News


A 2-1 panel of the U.S. Federal Circuit Court of Appeals in Washington, D.C., on Thursday upheld the biotechnology company's right to patent "isolated" genes known as BRCA1 and BRCA2, which account for most inherited forms of breast and ovarian cancers.

But the court denied the company's effort to patent methods of "comparing" or "analyzing" DNA sequences.

Women who test positive using Myriad's gene test, called BRACAnalysis, have an 82 percent higher risk of breast cancer and a 44 percent higher risk of ovarian cancer in their lifetimes.

The lawsuit against Myriad and the University of Utah Research Foundation, which hold the patents on the genes, charged that the patents are illegal and restrict both scientific research and patients' access to medical care.

The American Civil Liberties Union, which brought the case, argued that patents on human genes violate the First Amendment and patent law because genes are "products of nature."

But Circuit Judge Alan Lourie, writing for the court majority, said, "Everything and everyone comes from nature, following its laws, but the compositions here are not natural products. They are the products of man, albeit following, as all materials do, laws of nature."

Thursday's decision in the ethically charged litigation came five months after the U.S. Supreme Court, in a case involving a blood test developed by Prometheus Laboratories Inc, unanimously ruled that companies could not patent observations about natural phenomena.

A week later, the Supreme Court set aside the Federal Circuit's July 2011 decision favoring Myriad and directed that court to review the case again in light of the Prometheus ruling.

Myriad's patenting effort has drawn opposition from groups such as the American Medical Association, the March of Dimes, the American Society for Human Genetics and the Association for Molecular Pathology.

In a brief arguing against patenting genes, Dr. James Watson, co-discoverer of the double helix structure of DNA, said he feared the court failed to appreciate the fundamentally unique nature of the human gene, which stores information necessary to create and propagate life.

"It is a chemical entity, but DNA's importance flows from its ability to encode and transmit the instructions for creating humans. Life's instructions ought not be controlled by legal monopolies created at the whim of Congress or the courts."

Nevertheless, the appeals court accepted the argument of Myriad supporters that denying patent protection could stifle innovation by the Salt Lake City-based company and others.

"Patents encourage innovation and even encourage inventing around; we must be careful not to rope off far-reaching areas of patent eligibility," Lourie wrote.

CRITICS DISAPPOINTED

In upholding Myriad's main patent claims, the Federal Circuit again reversed much of a 2010 ruling by U.S. District Judge Robert Sweet in Manhattan.

"We have viewed this as the most important (part of the) decision for Myriad and therefore view the appeals court reversal as a clear positive," Cowen and Co analyst Doug Schenkel wrote. He rates Myriad "outperform."

Roughly 20 nonprofit groups, medical organizations, doctors and individuals challenged Myriad's patent claims, and it is unclear whether an appeal is planned.

Thursday's "extremely disappointing" decision "prevents doctors and scientists from exchanging their ideas and research freely," ACLU lawyer Chris Hansen said in a statement. "Human DNA is a natural entity like air or water. It does not belong to any one company."

Myriad's argument is that when it isolates the genes by removing them from the body, this process changes their chemical structure, and the company's test looks for this distinct chemical form.

Gregory Castanias, a partner at Jones Day representing Myriad, said in a phone interview: "We're very pleased that the panel has continued to recognize that isolated DNA molecules are products of human ingenuity, and are thus eligible for patent protection."

Supporters of Myriad have also said denying patent protection could slow advances in personalized medicine, which uses genetic tests to identify specific therapies for individual patients.

Biotech patent attorney Tim Worral of Dorsey and Whitney said in a statement the implications of the decision extended to most corners of the biotech industry.

"Although the decision will probably be appealed to the U.S. Supreme Court, the biotech industry is breathing at least a temporary sigh of relief," Worral said.

For today, he said the decision is "a win" because much of the value associated with DNA-based inventions are based on the notion that DNA claims are patentable.

Circuit Judge William Bryson dissented from Thursday's decision, saying it "will likely have broad consequences," and perhaps pre-empt methods for whole-genome sequencing.

Sandra Park, an attorney for the ACLU, said the Myriad patents have allowed the company to "maintain a monopoly on BRCA testing in the United States," noting that women have only one option for discovering their genetic risk for breast and ovarian cancer.

And the test does not look for all of the potential causes of hereditary breast cancer, she said.

Park said in recent months, the National Comprehensive Cancer Network issued revised treatment guidelines about BRCA genetic testing, suggesting that all women should also be tested for large rearrangements on the genes. Myriad's $3,000 test does not look for those changes, so doctors have to order a second, $700 test, which insurance companies may or may not pay for.

Park said the ACLU needs to consult with its clients before deciding whether to appeal to the U.S. Supreme Court. It has 90 days in which to do so.

In afternoon trading, Myriad shares were down 13 cents at $24.86 on the Nasdaq. They traded in a range of $23.07 to $25.24 within a half-hour of the Federal Circuit's issuance of its decision.

The case is Association for Molecular Pathology et al v. U.S. Patent and Trademark Office et al, U.S. Federal Circuit Court of Appeals, No. 2010-1046.


Source: http://www.reuters.com/article/2012/08/16/us-myriad-patent-idUSBRE87F12K20120816

Patent News | "Patent Trial Turns to Damages"

By: JESSICA E. VASCELLARO
Source: http://online.wsj.com
Category: Patent News


SAN JOSE, Calif.—A closely watched patent battle between Apple Inc. AAPL +0.87% and Samsung Electronics Co. 005930.SE 0.00% turned to the money at stake, as the trial here entered its final days.

A lawyer for Samsung began the morning providing testimony and evidence designed to reduce the potential bill the company would face if the jury rules Samsung devices violated Apple patents.

Apple contends it is owed more than $2.5 billion in damages based on a host of Samsung devices infringing several of its patents. The amount could be adjusted if the jury finds that only some devices infringed some patents.

A damages expert for Samsung, Michael Wagner, argued that Apple's estimates—made by accountant Terry Musika, who testified earlier on Apple's behalf—were based on faulty Samsung profit estimates that ignored important costs. Those costs include the cost of marketing the phones, promoting them to carriers and research and development.

Mr. Wagner estimated that Samsung made $519 million in profits from the disputed phones since Apple filed its suit against Samsung in 2011. He also sought to prove that Apple "overstated" the profits it would have earned if the Samsung phones weren't available.

He cited research that suggested that customers wouldn't flock to Apple if the Samsung phones didn't exist. "The specific design at issue in this case isn't driving customers from Samsung to Apple," Mr. Wagner said.

Mr. Wagner also cited Apple's own supply constraints as a reason that the company couldn't have sold more iPhones or iPads even if the competing Samsung devices weren't on the market. He also disputed the prices Mr. Musika used to calculate damages, among other things.

On cross-examination, an Apple lawyer grilled Mr. Wagner on the difficulty of getting data from Samsung, which Mr. Wagner acknowledged, and the particulars of his math.

The accounting back and forth came as testimony in the patent trial is winding down, with closing arguments likely Tuesday.

In her continuing effort to expedite, Judge Lucy Koh began the day by asking both sides to try to narrow their case, yet again. "Now is the time," she said, encouraging "some horse trading."

Source: http://online.wsj.com/article/SB10000872396390443324404577593431552364676.html

Patent News | "Apple and Samsung urged to make peace by patent trial judge"

By: Charles Arthur
Source: www.guardian.co.uk
Category: Patent News

Patent News

A US judge presiding over a high-stakes patent trial between Apple and Samsung suggested that "it's time for peace" before the jury begins deliberating next week on their verdict.

The case also heard from a Samsung designer who was challenged on whether the company was briefed by Google in February 2010 that its early tablet designs looked "too much like" then-newly announced Apple iPad. The designer, Jin Soo Kim, said he was unaware of the briefing.

US District Judge Lucy Koh is in charge of the case, where the two companies are suing each other over a variety of design and wireless patents.

With time running out for both sides to present and cross-examine witnesses, Koh suggested that the chief executives of Apple and Samsung should speak to each other at least once on the phone before the jury decision. A pre-trial meeting between the two was fruitless, however, and the bitter testimony given at the trial offers little indication that the two sides will come together.

Apple accuses Samsung of copying the design and some features of its iPad and iPhone, and is asking for a sales ban in addition to billions of dollars in damages. South Korea's Samsung, which is trying to expand in the US, says Apple infringed several patents, including some for its key wireless technologies.

The US trial is now in its third week. Before the jury was brought into the courtroom on Wednesday, Koh told attorneys for the companies that they had succeeded in raising awareness about the importance of their intellectual property rights.

Top executives from both companies had participated in mediation with a US magistrate judge several times. They remained far apart shortly before trial on how they viewed the value of each other's patents.

Koh asked them to explore a settlement once again, noting that "I see risks here for both sides." Lawyers for both companies told her they would pass along the message.

Samsung continued presenting witnesses on Wednesday, including an industrial designer from South Korea who described developing the Galaxy line of tablets.

Speaking through a Korean interpreter, Kim said he began working on a tablet in October 2009, months before Apple launched the iPad in January 2010. Kim recounted the rationale behind different design choices for the Galaxy Tab 10.1. The screen, for instance, was set at 10.1 inches both to maximise its size and contain manufacturing costs.

"I really enjoy what I do as a designer," Kim said. "I am proud of what I do."

Asked by Samsung attorney John Quinn whether he copied the designs of any other company, Kim said: "I have not."

Apple attorney Harold McElhinny showed Kim internal Samsung emails, referring to a meeting between the company and Google executives.

At the meeting, Google told Samsung executives they should redesign its early tablet because it too closely resembled Apple's iPad, according to the February 2010 emails. Google created the Android operating system, which runs on the Samsung phones and tablets at issue in the lawsuit.

Kim said he did not attend the Google meeting and was not briefed about it by his colleagues.

Another Samsung witness on Wednesday testified that a number of patents that Apple is asserting in the case are invalid because of "prior art" – pre-existing examples of methods to carry out the same function. In particular, said Stephen Gray, a patent analyst, two products called DiamondTouch and LaunchTile predated Apple's demonstration of "pinch and zoom" and "tap to zoom" on the touch-sensitive iPhone screen, invalidating those ones asserted by Apple against Samsung.

In cross-examination, Apple's lawyer asked Gray whether Apple's patent would stand if the jury felt the magnification used in LaunchTile differed from that in the iPhone. Apple has previously suggested that LaunchTile uses a different zooming method which replaces one view with another, rather than the iPhone's smooth magnification system. Gray said it would be for the jury to decide.

Samsung faces one key challenge unrelated to the strength of its case. The two sides are strictly rationed in time that can be used examining and cross-examining witnesses. Each has been allocated 29 hours, but by the end of Wednesday Apple – which made its case first, and so would be expected to use more time – had used 18 hours and one minute, leaving it about 7 hours, while Samsung had used 22 hours 25 minutes, giving it 2 hours and 25 minutes remaining. That means Samsung, which only began presenting its case this week, will probably have to rest its case on Thursday.


Source: http://www.guardian.co.uk/technology/2012/aug/16/apple-samsung-patent-trial?newsfeed=true