Month: April 2014

Patent Dispute Between Apple and Samsung Coming to a Close

This dispute has been long and fierce. It began way back in 2007, when the iPhone was first released by Apple. Samsung followed shortly with its Galaxy line of mobile phones, which were designed to compete with Apple’s then-revolutionary product. Although the Galaxy phones use an entirely different operating system (Android), Apple has claimed that Samsung copied enough of the concepts and used too much of their prior art for the Galaxy phones to be considered original.

Interestingly enough, Samsung has claimed the same thing about Apple and has accused the company of stealing some of their prior art as well. They also have fired back, saying that Apple has only brought a suit against them because they are afraid of competition. It has become downright nasty between these two companies!

This dispute is a perfect illustration for why patents are so important and for why it is absolutely vital to be clear about the designs and functions of your products. Both of these companies have created innovative products that have unique and intricate design elements. Apple loyalists would say that the iPhone is different (and better) than the Galaxy phone, and Android loyalists would say the opposite. Each camp would certainly note the similarities between the two products, but can also distinguish the differences.

When it comes to patent law, however, the language must be so precise, and the drawings must be so accurate. Everything has to be nailed down beyond a shadow of a doubt so that companies have room to innovate based on past ideas – without outright copying them. It’s hard to do, and this case should give all innovators appreciation for how challenging this task can be. 

Creating a new product in a market that is already established is a tall order. Of course it makes sense to draw inspiration from products that are already out there. But your unique and special spin on it has to be enough to fully differentiate it from everything else that has come before it. 

As far as Apple vs. Samsung – the closing arguments are in, but the verdict is still out. Apple wants $2.2 million and Samsung wants $6 million. It will be interesting to see what the result of this case is. Innovators – pay attention. This could affect the industry in a big way, and it could change the way patents are created and assigned.



The Story of Uncrustables

Food items and especially recipes are notoriously difficult to patent. Generally speaking, recipes do not fulfill the “non-obvious” requirement. Rarely does a recipe come along that is so unusual and so unique that its combination of ingredients qualifies it as non-obvious. Even some of the most interesting recipes can still be broken down into obvious steps and combinations.

That is why the J.M. Smucker Company thought they had struck gold when they were awarded a patent for their “sealed crustless sandwich,” which are now sold under the brand name, “Uncrustables.”

The patent was first awarded in 1998, and it allowed them to claim their rights to almost all crimped and sealed pocket sandwiches. The most popular Uncrustable was the peanut butter and jelly variety, but they created other varieties as well. Because they created other varieties, their intellectual property claims stretched into other areas. For example, they filed a cease and desist order against a Michigan grocery store company, claiming that their pocket “pasties” were a violation of the Smuckers patent. The grocery chain fired back and presented evidence that the “pasty” had been a staple in Michigan cuisine since the early nineteenth century.

This dispute brought the original patent into question. Was their idea actually novel? Was it actually non-obvious? Upon a more scrutinizing review, the US Patent Office believed that the Uncrustable was based on prior art (like the pasties in Michigan) and therefore were not unique enough to be deserving of a patent. In response, the Smuckers Company attempted to both patent the process by which the sandwiches are made, and to narrow the language of the patent to only cover peanut butter and jelly sandwiches that are made by encasing the jelly filling entirely in peanut butter inside the two crust pieces. Both of these applications were rejected.

The patent was officially rescinded in 2008, although Smuckers still sells Uncrustables today. They are the same product as they always were, minus the patent.

This story is a cautionary tale for anyone interested in creating a food product that they intend to patent. The road is difficult, and the product could be called into review at any time. Many could argue that the Uncrustable has been just as successful without its patent, but the Smuckers Company is definitely disappointed that they no longer have exclusive rights to the idea. Be sure to seek advice and to have a complete understanding of the law when applying for any kind of recipe patent. It can be done, but there is a whole extra layer of challenge involved!

Google’s Prior Art Finder

As an inventor or entrepreneur, a huge step in the process is to make sure that your idea hasn’t already been created or patented by someone else. This ensures that you have an original idea (which will make you more money, of course) and that you are protected from lawsuits. If you ever have any question regarding the kind of legal mess a “prior art” claim can cause, just ask Samsung about their current string of vacuum cleaner lawsuits.

Because there are so many patents out there, it can be tedious and mind-numbingly time consuming to conduct a search for exactly what you are looking for. Fortunately, Google (who has had their own share of patent and prior art wars) has made it much easier for aspiring innovators to do their patent research and make sure their ideas are new and fresh. 

They created a tool called “Prior Art Finder” that is a simple text box. You type in a phrase or a description of your idea, and the Google machine searches through Google Patents, Google Scholar, Google Books, and the entire web to see if anyone has pitched that idea before. The idea is not just to search previously awarded patents – while that is important, there is more to the prior art claim. Google’s Prior Art Finder will let you know if anyone ever in the history of ever (according to the Internet, that is) has thought of your idea. Technically speaking, if the idea has already been thought of, you shouldn’t be able to patent it.

It may seem like a little bit of a downer – after all, what are the chances that your brand new idea has NEVER been mentioned before – but you would be surprised. You are probably more creative than you are giving yourself credit for. Plus, if you find your idea mentioned, it could be just the motivation you need to push the idea a little further and turn it into something that truly is original.

The other point worth mentioning is that the US Patent Office does not really utilize this tool. They are concerned only with previous patents, so if you do chose to lift someone’s prior art and then patent it yourself, you may not get caught in the early stages. Just know that you will be leaving yourself vulnerable to a lawsuit later on if the originator of the idea wants to come after you.

The Prior Art tool is still in development (and has been for the past several years), but it can be an extremely useful resource as you start to take your ideas and run with them. Run your idea through it and see what you come up with. You may find that your idea truly is unique, and it’s time to go get it protected!

Vaccines and Patents

Probably the most famous non-patent in the history of innovation is the polio vaccine, discovered and developed by Jonas Salk. When asked who owned the patent to the life-saving formula, Salk famously replied, “There is no patent. Could you patent the sun?” 

Many people think it was absolutely crazy that Salk did not patent his invention. Polio affected so many people, particularly children, and his vaccine prevented devastating illness and paralysis in so many. It has been estimated that somewhere between 13,000 and 20,000 people were paralyzed annually as a result of polio prior to Salk’s vaccine being released on the market. If Salk had chosen to profit from the vaccine, he could have. In a big way.

His reasons for not patenting the vaccine were very specific to that time period and that situation. Lots of researchers and physicians donated money to the development of it, and Salk felt morally obligated to ensure that his product would be available to all people, regardless of the economic class. His choice was a noble one, but it would not make much sense today. 

The pharmaceutical industry is one of the most profitable industries in existence. Innovations and advances are constantly being made, and researchers are always hard at work trying to find new ways to treat, cure, or prevent disease. If there were no potential for financial gain by patenting formulas and legally protecting vaccines and medications, the incentive to keep pushing the industry would be reduced. Not all scientists are in it for the money – but without money, there is no capital for further research. Our economic climate today does not afford an entire community of physicians and researchers to donate to one particular cause. Our interests are divided, and competition is greater than what it used to be.

Salk was correct about not being able to patent the sun. He saw his discovery as simply “finding something that was there all along.” Patents are designed for things that are formulated and built – not things that occur in nature and are simply “discovered.” That said, almost all vaccines require genetic manipulation and the introduction of certain proteins and biological processes that make the effective. This brings them out of the realm of “naturally occurring” and make them absolutely patentable.

So, while what Salk did was a morally sound gesture, it does not mean that vaccines (or any medical discovery) should be excluded from patents. Patents keep competition alive, and they push the envelope of innovation. We need our scientists to be motivated to keep working to solve some of the biggest and scariest medical problems out there.

Patenting a Software Program

With all of the developments in the tech industry, and with the explosion of the mobile app market, many people are getting their innovative wheels turning and creating new software programs that have various functionalities. Software patents have always been a tricky subject, but they are coming under more scrutiny now that more and more people are trying to file for them. So, how do you protect your original software idea?

In the past, a product needed to pass the “machine or transformation” test, which basically states that the invention would have to either be tied to a specific machine, or it would need to transform something into something entirely different in order for it to be patentable. When you apply that test to software, not many programs would pass. The US Supreme Court case, Bilski vs. Kappos, created an important distinction in the law, saying that the “machine or transformation” test was no longer the final say in whether or not something could be patented. 

The point is that software patents must be particularly carefully written. They need to sufficiently describe a unique functionality that is not simply a by-product of something else. Many people try to patent automation software, for example. According to current patent laws, a program that’s only function is to simplify something else that has already been invented is not a patentable program. The idea needs to be truly new.

It may help to know, though, that the code does not need to be written in order to apply for a patent. Just like with physical inventions – a prototype need not be built. You only need to be able to clearly communicate the purpose of the idea and the exact functionality that it will carry out. Having some code written out is not a bad idea, but it is not necessary, so don’t let that hang you up.

If you are considering applying for a software patent, do some thorough research on patents that have been successful. Knowing how to word things properly will be extremely helpful. Avoid simple and common mistakes so that you can make sure your new idea is legally protected.


Why US Patents Are So Attractive

Recent information released by the US Patent and Trademark Office states that over half of the patents filed in the US are filed by non-US citizens. That’s a pretty staggering statistic! What is it about the United States that makes entrepreneurs and inventors in other countries want to file patents here? 

For one thing, the protection offered by a US patent, is much more comprehensive than any other country in the world. People who create great ideas and great products can feel quite confident that if they are awarded a patent in the US, no one else will legally be allowed to replicate their invention and use it elsewhere. Other countries have less strict rules that open themselves up to greater loopholes by which people skate around patent laws.

Another draw for the US is the fact that there are so many consumers. So much of consumer traffic is driven by the United States, it would be almost silly or negligent not to capitalize on that. For people who are creating products that will be sold to consumers, the US is the premier location to file a patent.

The downside is that the patent process in the US is comprehensive, and therefore difficult. The applications are arduous, and depending on the product and type of patent, the process can take multiple years. It is also expensive. Again, depending on the type of product and the level of protection, it is not unusual to spend thousands or even tens of thousands of US dollars by the time all is said and done. But, as the saying goes, you get what you pay for, and most business people and inventors are thankful to have their US patent once it is awarded.

It’s great that the US is such an outstanding place for international innovation. We are lucky that we get to share our country with so many people with such amazing ideas. Honestly, the creativity of international inventors only drives people in the US to come up with more ideas. International citizens applying for US patents is a driving force in our innovation, not a hinderance.

So remember, while the US patent process is long and intimidating, it is well worth it in the end. You may need to file your patent in multiple countries, depending on what you are doing, but the US should almost certainly be one of them.

Nintendo’s Wacky Patents

In order to stay ahead of their competitors, Nintendo has done a lot of work to make sure that their ideas are protected. They have come up with quite a few concepts, particularly for their Wii console, that were never released or even manufactured, but they ensured that no one else could make them either. 

For example:

Nintendo has made various peripheral objects over the years that are designed to accompany their special Wii remotes. They made a steering wheel to be used with driving games. They made a baseball bat to be used with sports games. They made a golf club to be used with golf games. They had to sit and think: “what else would people want?” They thought of arcades and how some arcade games include a motorcycle to sit on so that gamers can feel immersed in the game and get a sense of an authentic driving experience.

So… why not horses?

For its horseback riding games, Nintendo actually developed a horse peripheral that users could sit on at home and simulate a gaming experience. It consisted of an inflatable seat, with a stand that rose up in front of the user, where the remote would be attached. Thinking about it, it seems ridiculous! How could there possibly be enough of a market for such an odd product to be developed?

Another bizarre peripheral they were planning was a squishy “football” that would encase the Wii remote, and it would be used in football games for gamers to feel like they were really carrying a ball. In theory, it sounds kind of cool, but it’s a highly impractical object.

It turns out that Nintendo felt the same way, and these ideas never got beyond the drawing phase. The point here is that they came up with concepts, and they wanted to make sure that they were protected from other companies. They had them drawn up, and they filed for patents and got them. Now, no one else can take those ideas and patent them. 

In my last post, I mentioned how difficult it can be to protect an idea, but Nintendo is a prime example of how it can be done. All it takes is getting some good patent drawings done, and then fill out the paperwork and pay the filing fees. You may decide that you never want to develop a particular idea, but at least you will have the option to build something that no one else legally can. 


How Do I Protect My Idea?

Unfortunately, the United States does not have a system for patenting an idea. Copyrights protect expression of ideas, and patents protect ideas that are developed into inventions, but when something is still in the “idea” phase, it cannot be legally protected. This means that in order for you to have a legal claim on your great idea, you must take it to the next step! In other words, if you have a great idea, don’t sell it to someone in hopes that they will do the logistics for you and pass on some of the profits. They may – but because you cannot place legal claim on your idea, it is not something you can count on. 

The most important thing to do when you have a great idea is to see it through. Do not give up, even if you feel stuck bringing it to fruition. You are not generally required to have a prototype built in order to apply for a patent, you need only be able to draw and thoroughly describe your idea. If you are worried about your visual communication skills, hire a patent illustrator to help you so that you can make sure that your drawing clearly demonstrates your idea.

This is what separates groundbreaking inventors from dreamers. People have good ideas all the time, but they lack the confidence to follow through with them. They get started, but then they become overwhelmed by the process and give up. Whatever you do, don’t give up! Use every resource available at the United States Patent Office, and do some research on how to conquer some of the roadblocks you run into. Many people have gone down the patent path, and almost all of them encounter things they wish they’d known before they started. Learn from their experiences.

So, back to the beginning. How do you protect your idea? By following through with it, drawing it out, and applying for a patent based on either its design or its function. Only then will you have the legal protection you need.