To help you mark the coming days, I am pleased to offer a special calendar which I hope you will enjoy. Each month highlights a particular invention, and it shows the dates on which interesting United States patents were issued. CLICK HERE to request a copy and subscribe for free to other information from Elman Technology Law.
We also offer the following messages for your consideration: First, with some distaste, I proclaim:
1. The Patent-Eligibility Singularity is Here
And separately I invite you to consider
2. Is your business Legally Prepared for CyberWar?
Let me explain why I choose to articulate these now. Back in June 2010, we at Elman Technology Law had the foresight to invite some of our friends to one of the first screenings of Ray Kurzweil’s documentary entitled The Singularity is Near. The film includes interviews with my heroes Alvin Toffler, author of Future Shock, and Richard A. Clarke, author of Cyber War. (Do you hear the reverberations in today’s news?)
In 1970, Toffler projected the psychological effects of the constant change that was affecting society. Kurzweil goes further to envision a time in the future in which the exponentially increasing data on his graphs of technological developments would eventually point straight up. At such a Singularity event, the rules that previously applied would no longer yield a determinate result. That’s what’s happening now to the legal principles that had been applicable in the United States to the question of “what kinds of invention are eligible for patenting?”
A Tsunami of Patent Change
Although the U.S. statute still says that a novel composition of matter is eligible subject matter for a patent claim, the Supreme Court in June 2013 was persuaded to ignore settled principles of chemical science in a case involving tests for breast cancer genes. And last week (December 17), the Court of Appeals for the Federal Circuit demonstrated in a related follow-on case how utterly derailed the previous verities have become, when they held that even synthetic compounds incorporating natural polynucleotide sequences weren’t patent-eligible.
And in June this year, the Supreme Court ruled in Alice Corp. v. CLS Bank that an invention is not eligible for patenting if it is “directed to an abstract idea” without “significantly more.” The Court failed to define these terms, but lower courts and the newly created Patent Trial and Appeal Board at the patent office (“USPTO”) have taken the ball and run: patents involving software are being struck down left and right.
Seeking to inject a bit of predictability into the patent-examination process, the USPTO issued on December 16th an updated version of Interim Guidance on Patent Subject Matter Eligibility. The Guidance purports to explain to patent examiners how to apply the Supreme Court’s rulings on patent eligibility. It does seem to be a cut above the previous USPTO guidance on the subject, but to my mind, seems nevertheless to point mostly towards indeterminate results, particularly with respect to inventions involving software and biotechnology.
With the rules morphing into previously unimaginable shapes (like Dali’s soft melting pocket watches), now would be a good time to reexamine your strategies relating to patents, both your own and those of your competitors. We’re available to help.
Protect Your Business
with an Elman Technology Law CyberLaw Audit
Cybersecurity has interested me for years. I spoke in 2011 at the ITX Data Security Summit on the theme: “Are You Legally Prepared for the Coming Cyberwar: Preparing Your Legal Playbook In Anticipation of Data Security Breaches.” In short, I’ve been spotting trends which have been increasing exponentially, leading to drastic changes in the business and legal landscapes. If you are leading or advising a business, ignore these issues at your peril.
Cybersecurity has been hot news throughout 2014, beginning with the fallout from the cyber-attack on Target customer data, and continuing with the Home Depot, J.P. Morgan Chase and Sony breaches. The cyberwar I spoke about in 2011 is here. Even if your technical systems are secure, is your legal strategy? We can review your policies and procedures to reduce your level of risk, leveraging our years of experience to provide you with legal security to go along with your technological security. We can help you educate employees, ensure that your social media and privacy policies are sound, and provide other legal guidance that can give you peace of mind. Call or email me for more information.
Tesla Motors Beats Its Swords into Plowshares
The unquestioned leader in electric cars announced a stunner: Tesla will not sue anyone who uses Tesla’s patented technology. Though couched in philanthropic and environmental language, there’s a canny business strategy at work. Electric cars are difficult to sell when automobile infrastructure is based on the fill-‘er-up principle. When other companies employ Tesla’s technology, they increase the number of electric cars, which in turn increases demand for electric car infrastructure: public & private charging stations, strengthened & smarter electric grids, etc. Better electric car infrastructure then further increases the demand for electric cars, and so on. Tesla is betting that branding and goodwill will drive more customers to its showrooms than shutting down copycats.
Are you doing everything you should to protect your brand? Ask us!
Network With Us
Visit our website for more information about our intellectual property and Internet law practice. Connect with me on LinkedIn, like us on Facebook, and follow us on Twitter: @TechLaw_Elman for my regular Twitter updates and @ElmanTechNews for breaking news in technology. Please take a moment to email me to confirm that you’ve received the calendar, and please feel free to let me know what’s new with you. Visit https://elman.com/happy-new-year-2015 to view an online version of this letter with links to content and cases, to request a digital copy of the calendar and to subscribe for free to other information from Elman Technology Law.
-Gerry J. Elman
December 24, 2014