The Art of Negotiation – Mediation of IP Disputes

Jeff Kichaven (pictured left) is one of California’s leading mediators. I met Kichaven several months ago while I was in Newport Beach, California, to speak at the Orange County Bar Association. At the conclusion of our breakfast meeting I asked if he would be interested in an on the record conversation for publication. He agreed. What follows are except from our conversation, which took place on Monday, December 22, 2014. To read the full transcript of the interview please see Working toward settlement wherever possible.

Here is our dialogue on the reality that in most circumstances neither party really wants a court to make a decision and would be better off reaching a negotiated resolution.

QUINN: … And my experience usually when the judge or the jury makes the decision neither party is happy.

KICHAVEN: That’s true. So many times it has cost so much, taken so long and been so grueling along the way, that even the winner questions whether it was worth it.

QUINN: Yes.

KICHAVEN: It’s especially true in intellectual property cases because when people get too involved in litigation focusing on the past and perhaps lose their focus on the marketplace, new competitors can come in and beat them in the marketplace. So it’s important, particularly for technology companies in fast moving industries, to keep their eyes focused on the future and competing in the marketplace rather than focused on the past and competing in the courtroom, other than in a small number of cases where that focus really is absolutely necessary.

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Medical Innovations Also a Focus for Samsung

Medical innovations were strongly reflected in Samsung’s patent applications published in the past few months by the USPTO. Rumors that Samsung would jettison its medical device division during its December 2014 restructuring proved to be unfounded, although the company may realign healthcare technology R&D which are currently separated between the consumer electronics division and Samsung Medison, a medical device developer. In late November, Samsung announced a partnership with U.S.-based Thermo Fisher Scientific, a medical equipment company, to find new markets for Samsung’s medical diagnostic devices. Known for fitness tracking devices, the corporation has also unveiled an open access development platform for health programs that could aid in chronic disease management and other areas of medical care.

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Intel Patents Mobile Augmented-Reality Programs and Ultrathin Smartphones

Intel has a large patent portfolio which has only been getting stronger in recent years. In 2013, the company was the recipient of 1,730 patents from the USPTO, a 34.4 % increase in U.S. patents issued to them over 2012. Worldwide, the corporation ranked 16th among all entities filing for U.S. patent grants. In recent months, the company has made acquisitions to expand its holdings in telecommunications infrastructure, evidenced by their September purchase of more than 1,400 patents and patent applications in that sector developed by Powerwave Technologies, which had filed for Chapter 11 bankruptcy.

In a recent review of Intel patents, we saw a wave of augmented and virtual-reality technologies.  Augmented-reality programs implemented on mobile platforms are the focus of U.S. Patent No. 8913085, which is titled Object Mapping Techniques for Mobile Augmented Reality Applications. The patent claims a method of identifying an object in one or more images, accessing a stored profile database to select a profile for the object once identified; the profile contains information on whether an object should be altered or interacted with and processing an alteration for a display. The technology is intended to improve the use of mobile augmented-reality (MAR) programs which implement a plurality of devices for multiplayer game play, for instance.

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A Survey of Some Interesting New Patents from Microsoft

According to statistics released earlier this year by the Intellectual Property Owners Association, Microsoft is near the top of the list when it comes to companies applying for and receiving U.S. patents. In 2013, the company was issued 2,814 patents, the 6th-most globally for that year and an increase for Microsoft by 4.1 percent over the previous year’s totals.

While Microsoft is primarily known for computer software, personal computers and other consumer electronics, they pursue a wide assortment of intriguing innovations, as evidenced by a recent review of issued U.S. patents to Microsoft.

As a major developer of computing products, it makes sense that Microsoft would have invested a lot of time and money into creating enhanced user interfaces for its computing products.  The natural user interface (NUI) developed by Microsoft for its Xbox Kinect system is further enhanced by U.S. Patent No. 8897491, which is titled System for Finger Recognition and Tracking (image shown left). This patent claims a method for generating a model of a user’s hands including one or more fingers which involves analyzing position and depth data of an image to recognize a user’s hand and techniques for discerning features of a hand. This system is capable of identifying commands made by fingers, which have typically been too small and subtle for conventional NUI systems to identify.

Speech recognition is an important field of development in user interfacing for computer resources and Microsoft has extended its holdings in this field through the issue of U.S. Patent No. 8892439, entitled Combination and Federation of Local and Remote Speech Recognition. This patent claims an article with a computer-readable storage device containing instructions that enable a computer to receive audio data indicating a task and performing speech recognition on the audio data utilizing local and remote recognizers. This system is intended to support the proliferation of applications utilizing automatic speech recognition (ASR) which can require access to large stores of data, slowing down mobile processes.

Intriguing mobile interfaces are also the focus of U.S. Patent No. 8902255, issued under the title Mobile Platform for Augmented Reality. This patent protects a system comprising a mobile image processing manager that obtains three-dimensional image data associated with an observation environment within a line of sight of an imaging device and a navigational plan engine for determining a navigational plan for a mobile platform. This system would enable the superimposing of digital features onto an image captured by a mobile device or may otherwise project virtual images onto a surrounding environment.

A couple of patents which caught our eye during our recent survey of Microsoft would aid a variety of meetings which use Microsoft computing products as meeting platforms. Techniques for identifying the participants of a meeting who are located inside of a physical meeting room are outlined by U.S. Patent No. 8892123, which is titled Identifying Meeting Attendees Using Information from Devices. The computer-implemented method involves automatically recognizing the physical presence of a mobile device in proximity to a physical meeting place and including a profile associated with that mobile device as an attendant at the meeting. This innovation is designed to remove the manual nature of confirming a roster of meeting attendees at a physical meeting place. Meetings taking place through online platforms are the target of the technology protected by U.S. Patent No. 8890926, titled Automatic Identification and Representation of Most Relevant People in Meetings (image shown below). The method involves presenting participants of a meeting in order of their relevancy which involves categorizing the participants based on a set of factors and presenting participants in a user interface gallery which emphasizes relevancy categories by utilizing a spatial grouping scheme. This system is configured to present meeting participants to other meeting participants in a way that provides a better meeting context than systems that focus on presenting the loudest talker.

We’ll close our discussion of patents recently issued to Microsoft with a look at a technology that will help those with strict dietary restrictions find the perfect meal while eating out at a restaurant. U.S. Patent No. 8903708, which is titled Analyzing Restaurant Menus in View of Consumer Preferences, claims a method of analyzing food items available at a restaurant that involves storing a list of food criteria on a mobile device, receiving menu data about available food items at the device and displaying menu data on the mobile device which has been filtered based on a user’s dietary needs. This invention should be of interest to those with medical conditions, like high blood pressure or diabetes, as well as other preferences, such as price or calories.

A Conversation on Patent Eligibility

Earlier this fall, I had the opportunity to do a webinar conversation with Bob Stoll, former Commissioner for Patents at the USPTO and current partner at Drinker Biddle in Washington, D.C.  Our wide-ranging discussion lasted for just over one hour. You can access the entire recording, free, at Patent Eligibility in a Time of Patent Turmoil.

What follows is a bit of our conversation to whet your appetite.

STOLL: As someone very interested in the patent arena and getting the standards correct, I’ve been really worrying about things. I think we are in a very confusing state at the moment. I think that the courts are actually undermining patent eligibility in many different areas. And the irony seems to be, Gene, that the Supreme Court and now this Court of Appeals for the Federal Circuit seem to be not considering the fact that the United States is leading in many of these emerging technologies and specifically thinking about software and diagnostic methods and personalized medicine and gene sequences….

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