Judge Michel Sounds Off About Alice v. CLS Bank

Recently, I had the opportunity to sit down with Paul Michel, who we in the patent community know as the former Chief Judge of the United States Court of Appeals for the Federal Circuit. When Judge Michel stepped down as Chief Judge and retired several years ago, he told me that he decided to retire so he could say what needed to be said on behalf of the patent system, something he felt he couldn’t do while a member of the federal judiciary. Judge Michel has been true to his promise. He keeps an active schedule.

Judge Michel has been generous with his time over the past several years, and I have interviewed him on a number of topics. Most recently we discussed the Supreme Court’s patent decisions during the October 2013 term, spending most of our discussion on Alice v. CLS Bank.

Below are the highlights of my interview with Judge Michel. If you would like to read the entire interview, which lasted for approximately one hour and spans over 9,000 words, please see: Judge Michel says Alice Decision ‘will create total chaos’.

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Patenting Self-Destructing E-mail Messages

att-logoAT&T is seeking another patent on self-destructing e-mail messages. AT&T originally filed a patent application in January 2002 on this technology, which ripened into U.S. Patent No. 7,356,564. The latest patent application to publish in this family tree published on June 20, 2013 as U.S. Patent Application No. 20130159436. We profiled this back in August on IPWatchdog.com. See AT&T Seeks Patents on E-mail Self Destruct and 3D Media ContentShortly thereafter, the United States Patent and Trademark Office issued a Non-Final Rejection of the application.

This application relates to e-mail, which virtually everyone reading will know is a messaging system used across the world to communicate information to other people. Indeed, so ubiquitous has e-mail become that it is hard to remember when electronic communications via e-mail did not exist. E-mail is so incredibly useful because it’s efficient and practically instantaneous. However, a sender has almost no way to protect confidential information once it has been sent across the Internet, and we have probably all sent one or more messages without thinking things through before clicking “send.” Many have also no doubt sent an e-mail by accident to someone who was not the intended recipient, which can range from a nuisance to embarrassing to completely catastrophic depending on the content.

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Apple Patents Digital Handshake Between Devices

On April 23, 2013, Apple obtained U.S. Patent No. 8429407, titled Digital Handshake between Devices.

Creating a secure connection between two devices that are in close physical proximity allows users to share a great deal of digital content. Instead of showing a webpage or document to another person by turning the screen towards them, a user could choose to send the info directly to another device, preventing people from having to crowd around a small device screen to see. The same is true of videos and pictures. Also, some applications allow users to interact with other nearby devices for money transfers or to play a game.

Apple was granted the right to protect the system of creating a secured connection between devices laid out in this patent. It would allow an iPhone to create a bar code or alphanumerical code that can be scanned by the camera of another device. Once the “digital handshake” has taken place, other phones can also scan the key that was generated by the device to connect with the other devices as well.

As Claim 1 describes, Apple has gained legal protections over:

“A method for establishing a communications path between a first device and a second device, comprising: capturing an image of the second device using the first device; extracting, from the image, a first key associated with the second device; selecting from a plurality of processes a process to be used for generating a digital handshake key; generating the digital handshake key using the selected process with the first key; and establishing a communications path with the second device using the digital handshake key.” (more…)

USPTO Update: After Final, Software and Sequestration

uspto_seal_200Recently there has been some interesting news coming from the USPTO…and about the USPTO budget, courtesy of AIPLA taking up the fight against sequestration with the Office of Management and Budget (OMB). What follows is a synopsis of events over the past week.

Addressing the RCE Problem

Last week, the United States Patent and Trademark Office (USPTO) announced in the Federal Register that it would modify the After Final Consideration Pilot Program (AFCP) to create an After Final Consideration Pilot Program 2.0 (AFCP 2.0). The goal of AFCP 2.0 is much the same as it was when the USPTO initially introduced the precursor AFCP. According to the USPTO, the goal of AFCP 2.0 is to reduce pendency by reducing the number of RCEs and encouraging increased collaboration between the applicant and the examiner to effectively advance the prosecution of the application. Thus, this can and should be viewed as part of the USPTO effort to continue to try and address the RCE problem. (more…)

Federal Circuit Makes Mess of Software Patents

Gene QuinnIn what can only fairly be characterized as a patent tragedy, the United States Court of Appeals for the Federal Circuit now has no official position on the patentability of system claims that objectively recite volumes of tangible structures that clearly satisfy the machine-or-transformation test. Less than 5 years after giving the industry the rigid machine-or-transformation test, which was ultimately struck down by the Supreme Court, five of the ten judges that heard CLS Bank v. Alice Corporation en banc would find that claims that seem to clearly satisfy the machine-or-transformation test are not patent eligible.

The per curiam decision of the Federal Circuit was very brief. It simply stated:

Upon consideration en banc, a majority of the court affirms the district court’s holding that the asserted method and computer-readable media claims are not directed to eligible subject matter under 35 U.S.C. § 101. An equally divided court affirms the district court’s holding that the asserted system claims are not directed to eligible subject matter under that statute.

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