Author: Eric Waltmire

Eric Waltmire is a registered patent attorney at the Erickson Law Group, PC. He can be contacted at blog@waltmire.com.
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Method of Rewarding Waiting Customers

ibmwaitingreward1.jpgA statement in a IBM patent application caught my eye and made me wonder whether the yet-to-be-released-results of the Federal Circuit’s en Banc rehearing of In re Bilski [Patently-O’s coverage] could effect the patentability of the claims in this application. In Bilski the court will consider, among other things, whether a method or process must result in a physical transformation of an article or be tied to a machine to be patent-eligible subject matter under section 101.

The IBM patent application involves a method of reducing waiting-customer dissatisfaction by monitoring a waiting queue, calculating rewards based on the wait, and communicating the reward to the customer. A customer may be waiting on the phone, or at recreational, restaurant or lodging facilities. The IBM application provides, “although the concepts of the present invention are exemplarily discussed above as having been implemented as an automated system on a computer . . . [the] concepts of the present invention could be implemented completely devoid of computerization or automation of any kind.”

However, it is important to focus on what the application claims. Here, claim 1 provides:

A system for reducing customer dissatisfaction for waiting, said system comprising:a queue monitoring subsystem that detects an entry of a customer into a waiting queue;a reward computing subsystem that calculates a reward for the customer for being in the waiting queue; and a communication subsystem to communicate the reward to the customer, wherein at least one of said queue monitoring subsystem, said reward computing subsystem, and said communication subsystem is automated.

The IBM claim requires at least one of the steps to be automated–as for example–embodied in a computer, whereas claim 1 of Bilski does not:

A method for managing the consumption risk costs of a commodity sold by a commodity provider at a fixed price comprising the steps of: (a) initiating a series of transactions between said commodity provider and consumers of said commodity wherein said consumers purchase said commodity at a fixed rate based upon historical averages, said fixed rate corresponding to a risk position of said consumer; (b) identifying market participants for said commodity having a counter-risk position to said consumers; and (c) initiating a series of transactions between said commodity provider and said market participants at a second fixed rate such that said series of market participant transactions balances the risk position of said series of consumer transactions.

Its not clear why Bilski did not add the requirement that a step be automated.

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Google Seeks Patent on Chinese Spell Check Program

GoogleCNSpellPatAppA patent application, published on January 31, shows Google is continuing to develop for the Chinese market. The application discloses a program for spell checking non-Roman character based languages, such as Chinese, Japanese, and Korean. Although the summary of the invention section provides that the program may cover any non-Roman based language, the dependent claims show the application is focused on the Chinese language.

The program identifies potentially incorrect inputs, identifies alternatives, determines the proximity between the potentially incorrect input and the alternative, and computes probabilities of possible correct “word” based on the proximity measurement and optionally on a context of the possible conversion. Then it determines the most likely conversion from all the possible conversions.

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“Fault-Tolerant Romanized Input Method for Non-Roman Characters,” Wu et. al. (U.S. Patent Application No. 20080028303).

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IBM Patent Application: Customized Client-Side Search Indexing of the Web

ibmclientsideindexpatapp.jpgA recently published application shows IBM seeking a patent on a client-side search indexing program that works in conjunction with a server based search index to provide a users with personalized search results. Search result personalization is a long sought after goal. Google personalized search attempts to provided user customized results by retaining user data on the server-side. However, others have sought client side solutions. Jaime Teevan, et al.’s article “Personalizing Search via Automated Analysis of Interests and Activities” demonstrates that personalized client-side algorithms can significantly improve on current Web search results. Demand for improved search methods will increase with the ever expanding amounts of data.

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How to Admit or Exclude Prelimary Breathalyzer Results

IBJFeb08CoverThe February issue of the Illinois Bar Journal carries my article on “How to Admit or Exclude PBT Results” [Subscription Req.] [1]. PBTs are preliminary breath tests that are typically administered by the police on the scene of a traffic stop. The police use the results of a PBT as a factor to help establish probable cause to arrest a driver for driving under the influence of alcohol. PBTs are different and less reliable than the breath tests typically given at the police station—a.k.a. chemical tests—and therefore PBT results are treated differently than chemical test results. The article explains (1) when PBT results are admissible in court, (2) when the State is required to lay a foundation for their admission, and (3) what constitutes an adequate foundation.

This article arose out of my work as a staff attorney at the Eighteenth Judicial Circuit Court of Illinois. However, the views express in the article are mine and not necessarily those of the Eighteenth Circuit.

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[1] Eric R. Waltmire, How to Admit or Exclude PBT Results, 96 Ill.B.J. 92 (2008).

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3D Printing and the Future of Innovation

Guy Kawasaki pointed me to this video of Chris Anderson talking about the topic of his next book–"the emerging world of free." His discussion of 3D printing technology got me thinking about how it might create a new class of inventors and innovation.

3D Printing in the World of Free. At 14:57 in the video, Chris states that 3D printing technology is introducing aspects of free into the world of physical products. He says 3D printing makes complexity free. Traditionally every bit of complexity in an item added more cost. However, every additional level of detail and complexity–i.e. grove in the surface–in a 3D printed item is free. The additional complexity cost nothing; the 3D printer head just takes a different path to make the detail required.

Chris says this ability to make physical complexity for free will dawn an "erra of impossibly detailed and fantastically complex products, which never would have made sense in the traditional manufacturing Desktop Factoryenvironment, but are now happening because the cost is now zero." Chris also touched on 3D printing in his first book, The Long Tail (see page 225).

Idea Lab is on the verge of releasing its Desktop Factory 3D Printer for $5000. At that price its targeted businesses and schools. A 5000 price seems a little steep for the mass market. But of course prices will come down.

3D Printing and Inventors. The Wall Street Journal has an article [no subscription required] discussing how companies are forming that use 3D printers to allow users to print 3D figures from online games. You create the figure and the company will print it and mail it to you. The article has this video that explains the state of the art of 3D printing. The video explains that the technology is not perfect, and the products created by a 3D printer may not be as refined and durable as desired. However, in the future it will be possible to create something of a computer or buy a product online, download instructions, and "print" the product right in your home. The video shows how a working flashlight can be printed using current technology. Certain 3D printers have the ability to print electronic components as well.

The pace of innovation and iterative invention will quicken when inventions or components of inventions can be quickly and cheaply printed and tested. So, will inventors purchase affordable 3D printers to prototype their inventions? I think so. As the price of 3D printers drop, the ability to easily create will increase the number of inventors and correspondingly the amount of innovation. Just as the web 2.0 has drawn many more to be participatory content creators, will 3D printers draw the masses to invention and create a new mass/class of inventors?

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Suburban Networking: Silicon Prairie Social 2

img2Today, the Silicon Prairie Social organizers announced their second technology networking event in the western Chicago suburbs. It’s happing on Thursday, January 24, 2008 from 6:30 pm to 10:00 pm at Mullen’s Bar & Grill in Lisle.

The purpose of the event is build mutually-beneficial business relationships between attendees. It is targeted at upwardly mobile tech professionals, tech executives, tech entrepreneurs, technology service providers, Internet professionals, Web 2.0 and startup companies, and the mobile industry.

RSVP here. See you there.

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When are Internet Communications not Electronic Communications?

BRIEF_Oct_Nov2007I was the lead article editor for the November 2007 issue of The Brief [pdf, 5.6Mb], the DuPage County Bar Association’s legal journal. Do not be fooled by the gangster-like poses on the cover; the issue is packed with excellent content. As a lead issue editor I was responsable for obtaining and editing the content, specifically the lead articles for this issue. I want to thank all the contributors that made bringing this issue together a smooth operation.

You can find my lead article’s editor introduction on page 1. Also on page 32, you’ll find my article titled, “When are Internet Communications not ’Electronic Communications’ under the Illinois Eavesdropping Statute?”1 The article challenges the proposition presented in a May 2004 Illinois Bar Journal article,2 which indicated a law enforcement official’s act of saving a copy of an internet chat conversation might constitute eavesdropping if done without a warrant. The analysis turns on the definition of “electronic communications” under the eavesdropping statute. An internet chat conversation is generally understood to be an electronic communication, however it is not an electronic communication in this senario according to the definition in the eavesdropping statute.

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1.Eric R. Waltmire, When are Internet Communications not “Electronic Communications” under the Illinois Eavesdropping Statute? 20 The Brief, Nov. 2007, at 32.

2 Helen Gunnarsson, No Police “Eavesdropping” on Sexual Predators – Even in Cyberspace? 92 ILL.B.J. 238 (2004).

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Suburban Networking: Silicon Prairie Social

img1Tonight, the first Silicon Prairie Social was held at Mullen’s Bar and Grill in Lisle, Illinois. Similar to the Tech Cocktail events in Chicago, the Silicon Prairie Social was designed to connect “tech professionals, entrepreneurs, service providers, Internet professionals, Web 2.0 and startup companies, the mobile industry, and mobile marketing professionals.” The goals of the event were to:

  • Connect local people with others in their industry and build community
  • Raise the profile of the Silicon Prairie through the publicity generated around the events.
  • Foster investment and economic development in the region by showcasing local businesses, entrepreneurs, and startups.

Here’s a partial list of those I saw, met, or talked with:

This only scratches the surface of the 350 people in attendance of this sold-out event. Events like this help promote collaboration and innovation in the suburban technology community. I look forward to future silicon socials on the prairie.

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Reason in the Prior Art: Applicability Beyond Chemical

Takeda_Alphapharm_P1

Takeda Chemical Indus. v. Alphapharm Pty., Ltd., No. 06-1329, slip op. (Fed. Cir. 2007).

Alphapharm sought FDA approval to a market generic version of Takeda’s drug ACTOS (U.S. Patent 4,687,777), which is used to treat diabetes. Takeda sued Alphapharm and the district court rejected Alphapharm’s obviousness attack on the patent. The Federal Circuit affirmed. It found that KSR v. Teleflex did not eliminate the prima facie obviousness requirement that a challenger, in cases involving new chemical compounds, "identify some reason that would have led a chemist to modify a known compound in a particular manner."

Takeda and KSR

Citing its Pre-KSR precedents the appellate court stated when an obviousness challenge is based on a structural similarity between the prior art and the claimed compound, the challenger must show the “prior art would have suggested making the specific molecular modifications necessary to achieve the claimed invention.” The court noted the Supreme Court’s indication in KSR that while the TSM test cannot be rigidly applied, the test is not necessarily inconsistent with the Graham analysis.

Is the Federal Circuit’s requirement that a challenger identify a reason to modify a known compound consistent with KSR’s direction that the TSM elements not be applied in a rigid and mandatory way? The Court in KSR acknowledged that "it can be important to identify a reason that would have prompted a person of ordinary skill in the relevant field to combine the elements in the way the claimed new invention does." However the Court immediately thereafter cautioned that insights drawn by considering what reason(s) prompted the combination "need not become [a] rigid and mandatory formula."

Considering a reason that would prompt a person of ordinary skill in the art to combine the elements, is necessarily an art specific inquiry. The KSR Court recognized this by stating, "In many fields it may be that there is little discussion of obvious techniques or combinations, and it often may be the case that market demand, rather than scientific literature, will drive design trends." Will the Federal Circuit extend the Takeda requirement to other arts outside the chemical field?

Takeda’s Applicability to Software Patents

Many, including the Patent and Trademark Office Commissioner, note the particular difficulty that examiners have in finding prior art in the software field. This difficulty is part of the motivation underlying the Peer-to-Patent Pilot, which allows the public to contribute prior art relevant to software patent applicants. If Takeda is extended to software patents, it might be difficult for challengers to identify particular pieces of prior art which evidence a suggestion to combine elements. Challengers would likely argue more flexibility is necessary in showing the prima facie case of obviousness given the nature of the software art.