While we've talked in the past about how absurd design patents can get, it's worth pointing out that, hey, shit's not getting any less absurd, people. Design patents, as opposed to utility patents, function more like trademarks. The idea is that the "invention" in the case of design patents are supposed to be unique outputs of what might otherwise not be unique inventions that are then said to act as some sort of single-source invented thing. Honestly, the whole concept smells of a workaround on the actual purpose of patent law and it tends to function that way as well. How else do you explain the design patent granted on a toothpick with some lines carved into it, for instance? Or Apple's design patent on the animation of turning a page within an ebook? Rewarding exclusivity to these types of "inventions" that barely work up the sweat of an "inventor" should seem absurd to you, as should the frequency with which the public is left wondering where exactly the "invention" is in any of this.
General Mills Inc. has received a patent for a bowl-shaped tortilla. It's just a single patent and probably not a big item for General Mills (NYSE: GIS), but the concept of a tortilla bowl seems so simple that it's interesting the Golden Valley-based food giant sought and received the patent.
No, not interesting, annoying. Annoying and frustratingly believable, as the USPTO appears to mostly be in the business of seeing just how far it can stretch the concept of invention by granting these sorts of design patents. And there doesn't appear to be much unique about this tortilla bowl. Here are some of the images from the patent:
Such a unique design. Or not.
Tortilla bowls have been around for roughly ever, as best as I can tell, appearing in stores and restaurants all over the place. I even vaguely remember a walking-talking basketball getting some attention a while back for tweeting out an image of him enjoying a tortilla bowl on Cinco de Mayo.
And, yet, the USPTO saw fit to grant General Mills this design patent for the glorious invention of a thing that's been around forever. That the company named its "invention" an "ornamental design for a shaped tortilla" only drives home the absurdity that has become the realm of design patents, where invention can mean anything and the USPTO applies zero critical thinking to the application process.
Asked to comment on this patent, a company spokesman offered up this content-less reply.
"We file patents all the time," General Mills spokesman Mike Siemienas said.
And why not, given that the approval process for those patents appears to be some kind of assembly line culminating with a mechanical tipping bird that has an "APPROVED!" stamp super-glued to its beak? Still, I somehow doubt that the founders had any intention of rewarding patents for such non-inventions as a tortilla bowl.
Earlier this week I got knocked out by some pretty serious food poisoning. The few times I would try to do some work or pop in on Twitter, all I was seeing was people mocking the London Review of Books' somewhat insane 35,000-word-long profile of Craig Wright, the guy who earlier this year claimed to be the real Satoshi Nakamoto. While he even convinced Gavin Andresen (the guy who really turned Nakamoto's original work into actual Bitcoin), many others quickly pointed out that Wright's "proof" appeared to be a giant scam. Why write a 35,000-word profile on a guy who isn't Satoshi Nakamoto? I don't know, but thankfully the food poisoning and the few snarky tweets I saw saved me from digging into the entire thing and wasting an afternoon. Fusion posted a much shorter summary of the piece, in case you're wondering.
Buried in all of this was a plot by Wright and a Canadian company named nTrust, to basically patent all the Bitcoin/blockchain stuff they could think of, and then after Wright was revealed to be Nakamoto, sell it off for ONE BILLLLLLLLLLION DOLLARS.
The plan was always clear to the men behind nCrypt. They would bring Wright to London and set up a research and development centre for him, with around thirty staff working under him. They would complete the work on his inventions and patent applications – he appeared to have hundreds of them – and the whole lot would be sold as the work of Satoshi Nakamoto, who would be unmasked as part of the project. Once packaged, Matthews and MacGregor planned to sell the intellectual property for upwards of a billion dollars. MacGregor later told me he was speaking to Google and Uber, as well as to a number of Swiss banks. ‘The plan was to package it all up and sell it,’ Matthews told me. ‘The plan was never to operate it.’
Elsewhere in the report, Wright talks about having "hundreds of patents and papers in progress -- research from the beginning." And later, a colleague of Wright's mentions a plan to push for "upwards of four hundred patents." It seems noteworthy, of course, that at least in the US you're supposed to file for a patent within a year of any public use or description of the invention. If he's trying to patent stuff "from the beginning," he might be a bit late.
Either way, while the big reveal hasn't worked the way they intended (because it appears to be bullshit), Wright is still moving forward on the patent front. He's been applying for a ton of patents related to blockchain technologies:
Since February, Wright has filed more than 50 patent applications in Britain through Antigua-registered EITC Holdings Ltd, which a source close to the company confirmed was connected to Wright, government records show.
Interviews with sources close to EITC Holdings Ltd, which has two of Wright's associates as directors, confirmed it was still working on filing patent applications and Britain's Intellectual Property Office has published another 11 patent applications filed by the company in the past week.
Because nothing says revolutionizing money and technology like creating a giant patent troll to block such innovations.
"It looks like he is trying to patent the fundamental building blocks of any blockchain, cryptocurrency, or distributed ledger system," said Antony Lewis, a consultant on bitcoin issues to whom Reuters showed the patent titles and some of the texts.
In seeing some of the talk about the LRB article, some people keep pointing to the fact that Wright is trying to patent all this stuff as some sort of evidence that he really knows a lot about Bitcoin and the blockchain. People seem to have this magical spell come over them in that they think patents actually connote some sort of special status on people -- perhaps because they don't spend much time wading through tons and tons of ridiculous patents and wacky inventors insisting the patents matter much more than they really do.
Either way, if Wright gets his patents, whether or not he's truly Nakamoto, he could create an awful lot of problems for the advancement of Bitcoin and the blockchain. Because that's what patents are really for: blocking innovation, rather than encouraging it.
Last week, the Supreme Court made life a little easier for patent trolls, and this week it made life a little harder. At issue was just how the Patent Office could review patents after they were granted. The last round of patent reform, the America Invents Act in 2010, included something called Inter Partes Review (IPR) that allows anyone to basically challenge a bad patent, presenting specific evidence that it shouldn't have been granted due to prior art. A special board at the Patent Office, the Patent Trial and Appeal Board (PTAB), can then decide to review the patent if it decides that there's a "reasonable likelihood" that it will invalidate some of the patent claims due to the submitted evidence.
In the case that went to the Supreme Court, Cuozzo Speed Technologies was upset that the PTAB knocked out some patent claims on a patent it held after Garmin filed an IPR effort with the Patent Office, claiming that one of the claims in a Cuozzo patent was invalid thanks to prior art. The PTAB knocked out three claims from the patent, saying that two other claims were equally impacted from the prior art. Cuozzo appealed to the Federal Circuit (CAFC) on two points: first it was upset that the PTAB reviewed three claims when Garmin really focused on just one. And, second, it was upset that the PTAB used "the broadest reasonable construction" of the claims rather than the "ordinary meaning as understood by a person of skill in the art." CAFC sided with the PTAB, saying that the law says that you can't appeal what PTAB chooses to review, and that the standard it used was perfectly reasonable.
In a rare instance of the Supreme Court not slapping down the CAFC's ruling, it agreed with the appeals court.
Like the Court of Appeals, we believe that Cuozzo’s contention that the Patent Office unlawfully initiated its agency review is not appealable. For one thing, that is what §314(d) says. It states that the “determination by the [Patent Office] whether to institute an inter partes review under this section shall be final and nonappealable.” (Emphasis added.)
For another, the legal dispute at issue is an ordinary dispute about the application of certain relevant patent statutes concerning the Patent Office’s decision to institute inter partes review. Cuozzo points to a related statutory section, §312, which says that petitions must be pleaded “with particularity.” Those words, in its view, mean that the petition should have specifically said that claims 10 and 14 are also obvious in light of this same prior art. Garmin’s petition, the Government replies, need not have mentioned claims 10 and 14 separately, for claims 10, 14, and 17 are all logically linked; the claims “rise and fall together,” and a petition need not simply repeat the same argument expressly when it is so obviously implied.... In our view, the “No Appeal” provision’s language must, at the least, forbid an appeal that attacks a “determination . . . whether to institute” review by raising this kind of legal question and little more.
On the question of what standard to use in reviewing the claims, again the Supreme Court sides with CAFC and the Patent Office and against Cuozzo -- once again pointing to the plain language of the law:
The statute, however, contains a provision that grants the Patent Office authority to issue “regulations . . . establishing and governing inter partes review under this chapter.”... The Court of Appeals held that this statute gives the Patent Office the legal authority to issue its broadest reasonable construction regulation. We agree.
The court notes that the "ordinary meaning" to those "skilled in the art" standard is what's used in court, but this is about the Patent Office re-examining the patent itself, at which point it gets to set the rules for what is patent eligible. And, further, it finds that the standard the PTAB uses is perfectly reasonable under its authority -- in part because of the public's "paramount interest in seeing that patent monopolies are kept within their legitimate scope." That's quoting a 1945 case, but it's always nice to see the Supreme Court properly noting that a patent is a form of a monopoly.
To some extent, this ruling doesn't change anything, as it is just accepting the standard that the Patent Office has been using for a few years now. So whatever whining and complaints you'll see from patent trolls and their supporters is overblown. But this is a good ruling just in creating more certainty and clarity in the fact that the Patent Office can and should continue to use this process as it has been to reject overly broad patents.
from the live-by-rounded-corners,-die-by-rounded-corners dept
This one was so easy to predict. For the past couple of decades, completely clueless US politicians and bureaucrats (and tech company execs) have been screaming about how China "doesn't respect" our intellectual property. They demanded that China "get more serious" about patents and respecting IP. And for nearly a decade we've been warning those people to be careful what you wish for. Because, now China has massively ramped up its patent system, often by using odd incentives, but rather than helping American companies that demanded it, pretty much every patent lawsuit in China has been about a Chinese company punishing or blocking foreign competition. This is because the Chinese aren't stupid. It's a country that has thrived on protectionism, despite global efforts to "open up trade," and here it realized that the West was handing them the perfect trade barrier: one that let them say they were doing what the West wanted, while giving it the perfect excuse to block out foreign competition.
So, while clueless US and European IP bureaucrats celebrated China issuing so many patents, they totally missed that they'd actually given away everything.
Apple Inc. violated the design patents of a Chinese device maker and may have to halt sales of its latest iPhones in Beijing, the city’s intellectual property authority ruled, handing the U.S. company its latest setback in a pivotal market.
The iPhone 6 and iPhone 6 Plus infringe on Shenzhen Baili’s patent rights because of similarities to its 100C phone, the Beijing Intellectual Property Office wrote in its decision.
Many are speculating that Apple's recent $1 billion investment in the Chinese Uber clone Didi was in part to help deal with attacks like this. Basically every American company that wants to sell products in China ends up investing in Chinese companies for this kind of purpose. But, once again, just as we've been saying for years, the Chinese, unlike many in the West, absolutely recognize what patents are: a trade barrier, and they must love the fact that the US keeps asking them to build more trade barriers.
Until US patent officials finally understand that patents are not about innovation, but are really about restraints on trade, innovation and competition, we're only going to see more and more stories like this.
As we've noted over the past decade or so, the Supreme Court has been smacking down the Court of Appeals of the Federal Circuit (CAFC) over and over and over again on issues related to patent law. And on Monday, the Supreme Court
did it once again -- but this time in a way that actually might not be good.
The key issue in the case (which is actually a combination of two separate cases that the Supreme Court put together) -- Halo v. Pulse and Stryker v. Zimmer -- concerns when it is and when it's not appropriate to triple damages in patent infringement cases. Basically, for centuries, the patent system has allowed for treble damages, but basically made it optional and a tool only for egregious violations of clear copying for most of that time. In 2007, CAFC created a specific two part test for awarding treble damages. First, an "objective recklessness" standard defined as "the infringer acted despite an objectively high likelihood that its actions constituted infringement of a valid patent...." Second, it must be shown that the risk of such infringement "was either known or so obvious that it should have been known to the accused infringer."
The unanimous ruling does state that it shouldn't be easy to get treble damages, and that it is fitting that it only applies in the most extreme cases -- but then says that the test above, called the Seagate test since it was first articulated in a case involving Seagate -- is "unduly rigid." And the Justices' main concern is that such a rigid test might leave out other kinds of egregious behavior that deserve punitive damages awards:
The principal problem with Seagate’s two-part test is that it requires a finding of objective recklessness in every case before district courts may award enhanced damages. Such a threshold requirement excludes from discretionary punishment many of the most culpable offenders, such as the “wanton and malicious pirate” who intentionally infringes another’s patent—with no doubts about its validity or any notion of a defense—for no purpose other than to steal the patentee’s business...., a district court may not even consider enhanced damages for such a pirate, unless the court first determines that his infringement was “objectively” reckless. In the context of such deliberate wrongdoing, how- ever, it is not clear why an independent showing of objective recklessness—by clear and convincing evidence, no less—should be a prerequisite to enhanced damages.
Conceptually, this argument makes sense. The court points to the important Octane Fitness ruling from a couple years ago that tossed out a similarly "rigid" standard, but that one was over the question of when to award attorneys' fees for egregious behavior by patent holders. The court notes that this is a similar issue, though one more likely to negatively impact defendants, rather than plaintiffs in patent cases.
And I certainly see the logical consistency there, especially in allowing flexibility to the courts in deciding what's truly egregious behavior. But, of course, this somewhat ignores the reality of the patent landscape today, where so much activity is really in the shakedown process, where the final outcome is unlikely to be via a court ruling. Instead, it's all about the shakedown threats -- and this ruling can be seen as giving trolls even greater leeway in insisting that someone they're threatening has much greater liability on the line. I can almost guarantee that we'll start hearing of threat letters from patent trolls that point to this ruling in Halo as providing support for massive punitive damages.
So, in the end, I don't necessarily think this is the wrong decision. There's certainly a legal consistency there (especially one that says "damn, CAFC gets everything wrong..."). But that doesn't mean we should be concerned about the overall impact. Perhaps it won't matter that much -- as any competent patent attorney will let many people facing a shakedown know that the treble damages argument is unlikely to meet any reasonable standard used by any court. But lots of people are scared into just settling when they see the potential losses they face, and it seems like this might embolden patent trolls some more.
At least some of the Justices seem to understand this. Even though they signed onto the unanimous opinion, Justices Breyer, Kennedy and Alito added a concurrence (written by Breyer, who is usually quite good on patent issues) that at least raises the issue of patent trolling behavior. Breyer uses the concurrence to basically try to prevent the case from being misused (something that it might not succeed at, as it holds no weight at all as case law). He reiterates that treble damages should only be used in the most extreme cases, and nothing in this ruling changes that. He also notes that not checking with a patent lawyer before creating a product is not evidence of willful infringement. And, finally, he notes that such "enhanced" damages should have a "limited" role, as they have a high likelihood of impeding, rather than enabling, innovation.
To say this is to point to a risk: The more that businesses, laboratories, hospitals, and individuals adopt thisapproach, the more often a patent will reach beyond itslawful scope to discourage lawful activity, and the moreoften patent-related demands will frustrate, rather than “promote,” the “Progress of Science and useful Arts.”
One hopes that this concurrence helps stop the ruling from being abused, but that may be too optimistic.
At the very least, this seems like an argument for Congress to finally stop sitting around and doing something to fix the patent troll problem.
I've spoken to a few patent attorneys who have fought against patent trolls who have admitted to me that, at times, it's quite tempting to give up and join the other side, since patent trolling is fairly easy and incredibly lucrative. You just have to sell your soul and give up the idea that you're doing anything productive or good in the world, and instead become a pure bottom feeder. Someone who did exactly that is apparently Ira Blumberg, who is now speaking out about his experiences working on "the dark side" of patent trolling. Blumberg didn't end up going to one of those tiny patent trolls, but rather left a job at Intel to go work for Rambus, a company not everyone considers to be a patent troll, but which certainly has a history of being an aggressive patent litigant. From Rambus, Blumberg then joined the world's largest patent troll, Intellectual Ventures. He eventually left IV and is now at Lenovo. So he's been actively on both sides of the patent troll situation -- as an active participant in suing operating companies while working for companies that did nothing but license, and at companies that are relentlessly pursued by patent trolls.
And he's now willing to speak out and say that patent trolling is just bad. He mostly uses the more politically correct "PAE" or "patent assertion entity" rather than patent troll throughout the article.
It is now abundantly clear to me that PAEs are, in net, detrimental to business and innovation. Despite what they say, trolls are not making the world a better place for anyone. It is time they lay down their arms and allow companies to use the patent system in the way in which it was intended.
He also has no problem admitting the reality of most patent trolling: that it's not about quality patents. In fact, crappy patents are pretty good for trolling:
The sad reality is that the patents used by trolls do not need to be good for IV, or any PAE, to make money. Quality is not an issue when it costs $2-$3 million to find out whether a patent claim has merit, whereas settling costs “just” $500,000-$1 million. Trolls often aggressively push for extortionate settlements that far surpass the value of the IP because they know many companies will choose to settle rather than get embroiled in an expensive and drawn-out lawsuit. Their actions can wreak havoc on tech companies of all sizes.
Blumberg does note that patent trolls and their supporters claim that such companies are the only way to get independent inventors paid, but notes that this is not what's happening in reality:
In theory, there is some validity to this argument. It is true that individual inventors and smaller companies are not always well-compensated for their inventions. But in reality, the harm businesses suffer on this front is significantly outweighed by the harm caused by the exorbitant costs of patent litigation lawsuits. The settlements IV gains from tens of thousands of patents is vastly out of proportion with the value of the innovation being licensed.
Of course, he could go much further than that. First off, there are lots of ways for inventors to make money other than selling out to trolls. If their invention is really good, they can work with a company (or build one) to produce it. Some respond that some people don't want to do that, and to some extent the response is "too bad." There are lots of people who don't want to work for a living, and we don't necessarily say that companies have an obligation to pay them anyway. But, even if someone just wants to invent, they could easily team up with another entity to pass off their ideas and let that other company build them with a contractual agreement for royalties or some similar arrangement. The idea that you need patent trolls to provide liquidity is greatly exaggerated.
And this doesn't even get into the issue of how valuable patents are, really. It's quite rare that patents are actually disclosing true inventions in the tech space. Almost all patent disuptes are ones involving totally independent invention, where it's not the invention that's important, but the execution. And yet, patent holders and patent trolls like to pretend the idea is much more valuable than the execution.
Either way, it's good to see people like Blumberg recognize how dangerous his former employers have been to the world of innovation and to speak out about it. He's asking more people to speak out as well.
As someone who has spent time on both sides, I feel a call to speak out against frivolous and overpriced patent litigation. The work I did for both PAEs and corporations was certainly legal, but not the same: While I was always on the right side of the law, I prefer being on the right side of innovation.
Companies want to create technologies that matter five years from now and beyond, so patents continue to matter. Frivolous lawsuits and those demanding damages far in excess of the value of the allegedly infringed patent detract from our ability to push innovation and better products forward. I hope that many more voices in tech will join mine in decrying the harmful effects of needless patent litigation — our future depends on it.
from the just-because-it's-your-genome,-don't-think-you-own-it dept
One of the biggest victories on the patent front was when the US Supreme Court finally ruled that naturally-occurring DNA cannot be patented. The company involved in this case, Myriad Genetics, didn't give up at this point, but tried to claim that despite this ruling, its patents on genetic testing were still valid. Fortunately, the courts disagreed, and struck down those patents too.
However, as we noted at the time, there's another issue that remains unresolved, which concerns the huge database of DNA that Myriad Genetics has built up over years of sequencing the BRCA1 and BRCA2 genes that have variants linked to cancer. Because of Myriad's unwillingness to provide that important data to the people whose DNA was sequenced, the American Civil Liberties Union (ACLU) has decided to take action:
On May 19, 2016, the ACLU filed a complaint pursuant to the Health Insurance Portability and Accountability Act ("HIPAA") with the U.S. Department of Health & Human Services ("HHS") on behalf of four patients against Myriad Genetics, a genetic testing laboratory based in Utah. The complaint was filed by patients who have experienced cancer, including breast and bladder cancers, or who are members of families with substantial histories of cancer.
All of the patients received genetic testing from Myriad Genetics in order to determine their hereditary risk for various forms of cancer and to guide treatment decisions. They later asked for all of their genetic information, not just the results, but Myriad refused to provide it. As the ACLU explains:
The patients want full access to their genetic information because they know that the understanding of genes and their variants is constantly evolving, and they want to be able to proactively monitor their own cancer risk and that of their family members as scientific knowledge and clinical interpretation of genomic information advances. Most importantly, the patients, many of whom have uncommon genetic variants, are concerned that Myriad controls much of the data about BRCA1 and BRCA2 genetic variants in a proprietary database. This impedes the ability of researchers to better understand whether these variants are connected with various types of cancer. The patients want to have the option of sharing their data with the broader research community.
The last point is key. Myriad is sitting on a wealth of information that might well lead to new treatments and even cures for the many cancers involved. Instead, it is asserting its proprietorial right over DNA that comes from other people. That's particularly egregious since the scientists who first sequenced DNA on a large scale were pioneers in data sharing. As early as 1996, laboratories taking part in the Human Genome Project not only agreed to share their data, but to do so immediately, and with no restrictions. Myriad Genetics' action is totally at odds with the ethos of sharing that lies at the heart of genomics.
As a blog post on the ACLU site notes, on the eve of the HIPAA complaint being filed, Myriad suddenly agreed to provide the information requested, but only on a "voluntary" basis. That is, it refused to recognize the broader rights of patients to their own genetic information. However, the ACLU believes that the law is straightforward here:
Patients are guaranteed access to their health information -- including their genetic data -- under HIPAA. In 2014, the U.S. Department of Health and Human Services amended the HIPAA regulations to make clear that all laboratories, which were previously exempted, are subject to this obligation. And earlier this year, HHS released guidance stating that with respect to genetic testing, patients have a right to access "not only the laboratory test reports but also the underlying information generated as part of the test," including "the full gene variant information generated by the test, as well as any other information in the designated record set concerning the test."
Let's hope this case leads to yet another defeat for Myriad, and establishes once and for all that DNA sequences belong to the people from whom they were obtained. That way they will be free to make data available to researchers for the benefit of everyone, not just for a few companies like Myriad Genetics.
You may recall that a few months back we wrote about LARPing.org being sued by a company called Global Archery for trademark and patent infringement. At issue was LARPing.org, which is a hobby site for live action roleplayers, selling foam-tipped arrows acquired through a German manufacturer. Global Archery claims that those arrows infringed on a patent it owns and that LARPing.org's use of Google Ad-Words infringed on its trademarks. While both of those charges seemed destined for loserdom, as the German company would be the patent infringers and the Google Ad-Words thing almost never works, the fact that Global Archery was relatively big and LARPing.org is tiny meant that perhaps that would be enough to tip the scales. With that in mind, Newegg's Lee Cheng jumped into the fray, helping to back LARPing.org's legal efforts in defending itself.
US District Judge Joseph Van Bokkelen didn't rule on that request, or make any ruling on the case's merits. Two weeks ago, Van Bokkelen issued a 7-page opinion finding that Gwyther's ties to the state of Indiana were so minimal that his court didn't have jurisdiction over the case.
We need to take a step back for a moment. Almost immediately after Cheng jumped into all of this, Global Archery dropped the patent portion of its suit. It claims that it was then that the prior art for the arrows LARPing.org was reselling was presented to them, except that Gwyther had presented it long before. Instead, this was almost certainly a patent troll realizing its victim had a larger backing and retreating. That left the Google Ad-Words trademark portion of the suit.
For that portion, Gwyther informed the court that he runs LARPing.org out of his home in Seattle, that he had never been to Indiana (where the suit was filed), and that his sales in Indiana amounted to something like $9,000. Global Archery attempted to argue that Gwyther had not questioned the court's jurisdiction properly, but Judge Van Bokkelen wasn't buying it.
The Court concludes Defendant did not waive or forfeit his personal jurisdiction defense. As for the merits of this defense, Plaintiff bears the burden of establishing that the Court has personal jurisdiction over Defendant. Advanced Tactical Ordnance Sys.’s, LLC v. Real Action Paintball, Inc., 751 F.3d 796, 799 (7th Cir. 2014). In its personal jurisdiction briefs, Plaintiff has not presented sufficient evidence to counter Defendant’s claims, and Plaintiff’s argument regarding personal jurisdiction is limited to a footnote and the last half of the last paragraph of the last brief. In any event, Plaintiff concedes that the Court lacks personal jurisdiction over Defendant, absent waiver.
And, thus, the suit is now tossed. Gwyther has said he hopes that this will be the end of it and that Global Archery will now leave his small hobby site alone. That certainly is what it should do, rather than giving another court another opportunity to smack it around again.
This month features not only a stupid patent, but also a stupid trademark to go along with it.
My Health, Inc. is the owner of U.S. Patent No. 6,612,985, which is entitled "Method and system for monitoring and treating a patient." My Health also holds a trademark in the term "My Health." My Health claims that it is "the only person or entity entitled to use... ‘My Health' in commerce."
Since getting patent and trademark rights, My Health has been pretty active in federal court. It has sued at least 30 companies for patent infringement and has been involved in another three lawsuits involving allegations of trademark infringement. But regardless of what type of case it is, we think both the patent and trademark are stupid.
First, My Health's stupid patent. The patent is generally directed to "a method and system for monitoring and treating a patient who has one or more diagnosed conditions and is located at a remote location from a treatment processing system." If that sounds mundane, that's because it is.
Here is claim 1 of the patent, annotated for clarity:
1. A method for tracking compliance with treatment guidelines, the method comprising:
[a] determining a current assessment of one or more diagnosed conditions in a patient based on data about each of the diagnosed conditions from the patient who is at a remote location and on one or more assessment guidelines for each of the diagnosed conditions;
[b] updating an existing treatment plan for each of the diagnosed conditions based on the existing treatment plan, the current assessment, and on one or more treatment guidelines for each of the diagnosed conditions to generate an updated treatment plan for each of the diagnosed conditions;
[c] reviewing the updated treatment plan for each of the diagnosed conditions;
[d] determining if one or more changes are needed to the reviewed treatment plan for each of the diagnosed conditions;
[e] changing the reviewed treatment plan if the one or more changes are determined to be needed;
[f] providing the patient with the reviewed treatment plan for each of the diagnosed conditions; and
[g] generating and providing compliance data based on the updated treatment plan and the reviewed treatment plan for each of the diagnosed conditions.
This claim is essentially TeleHealth, with the addition of "generating and providing compliance data" at the end. This patent is almost surely invalid under the Supreme Court's decision in Alice, which held that abstract ideas are not patentable, absent something more. Here, My Health is claiming little more than the idea of remotely diagnosing and treating a medical patient. This is not a new idea, and the patent doesn't even claim how to do it, but only the idea of doing it (albeit with a bunch of patent-speak to make it look complicated). This 1998 episode of Star Trek: Deep Space Nine shows how the ideas in this patent are routine and conventional enough to be a plotline in a TV series.
We're not the first to reach the conclusion the patent is invalid. In a lawsuit from last year, a defendant sued by My Health asked the court to rule the patent invalid. Unfortunately, the court said it was too early in the case to decide that issue and the parties later settled.
Along with being abstract, we doubt that this patent described anything new or nonobvious in 2001. In fact, the Patent and Trademark Office has twiceagreed that there are serious problems with the patent's validity in light of what people already knew and were doing in 2001. It instituted 2 different "inter partes" reviews, meaning on two different occasions someone was able to show that there was a reasonable likelihood that the claims were invalid. But on both occasions, the parties settled before the Patent and Trademark Office decided whether the patents should be cancelled.
My Health recently sued again based on its stupid patent, and we wouldn't be surprised if this case also settles. By settling quickly with various parties before a court can make a decision as to the merits of it claims, My Health can continue to collect on its stupid patent.
But it's not only a stupid patent that's causing problems. My Health's stupid trademark is prompting a whole other stream of litigation. Not surprisingly, plenty of other companies have used the term "My Health" to describe services that provide health information to their users. So My Health is going after them, too.
In February 2015, My Health sued General Electric (GE), and alleged that GE's use of the term "myHealth" in connection with its online employee portal infringed My Health's trademark. My Health claimed that it "invested substantial time, money, and goodwill in advertising and promoting [My Health] in commerce and in the healthcare and technological services sectors." My Health further claimed that "GE is attempting to use [myHealth]...in order to take advantage of and capitalize on My Health's efforts to market and popularize My Health."
Given these statements, you might think My Health was an actual company with an actual business to protect. Indeed, My Health was required—under the penalty of perjury—to claim that it was using the term "My Health" in commerce in order to register it at the Patent and Trademark Office.
However, in February of this year GE told a very different story. According to a GE's motion for summary judgment (asking the court to rule in its favor as a matter of law), My Health "did not [have] a single document showing the actual sale of any goods or services under the purported MY HEATLH mark." That is, from the evidence GE was able to gather, "[My Health] simply obtained a patent, obtained a trademark registration, and proceeded to extract settlements based on threats of infringement litigation."
Beyond GE's claims, this is a trademark that never should have issued. Using the term "my health" to describe products and services related to—you guessed it—your health, is something the entire world should be able to do without fear of a trademark lawsuit. In fact, GE presented evidence that it had been using the term "myHealth" to describe its employee portal at least three years before My Health even applied for the trademark. (You can see GE's use yourself at the Internet Archive's Wayback Machine). It's not surprising GE was using this term: it is a completely predictable way to describe GE's service.
From what we can tell, My Health didn't oppose GE's motion. Instead, My Health settled with GE and the court never determined whether My Health was even entitled to hold a trademark in the term "My Health." This is unfortunate, because if My Health's patent infringement activity is any indication, My Health will continue to assert its trademark despite the serious doubts about its validity raised by GE.
My Health, armed with a stupid patent and a stupid trademark, has sued numerous companies, imposing costs on both those companies and the public at large. For that, it more than deserves this month's award.
As India has been revamping its patent policy, there had been some serious concerns about broadening patent subject matter eligibility to include software and business methods. Earlier this year, however, the Indian Patent Office clarified that it would not allow patenting of just straight software patents. And that's good.
But, it appears that that overall push to expand patents in India is still on a dangerous path, based mainly on some longstanding, but flat out incorrect, myths about patents and their impact on innovation. That link is to a story by Anubha Sinha, noting that it's clear that the new plans are designed to benefit giant corporations at the expense of the public, in part by sticking to the myth that if patents are good for innovation, stronger patents must be better -- ignoring that restricting the rights of the public has a real cost.
Delving briefly into the subject of IPRs, it is a matter of principle that a balanced intellectual property (IP) regime, i.e. a model that balances rights with adequate limitations/exceptions, contributes optimally to the holistic development and growth of the nation. Limitations or exceptions are flexibilities in the law, which cut down absolute monopoly conferred by IPRs, and ensure that use and sharing of knowledge for purposes such as research, education and access to medicines are not overridden by IP rightholders’ claims. The Trade-Related Aspects of Intellectual Property Rights agreement (TRIPS), which is the largest international agreement governing countries’ IPR regimes also promotes the use of these flexibilities to build balanced regimes. The policy does occasionally state its commitment to the TRIPS agreement and the Doha Declaration, but does not commit or spell out any new concrete steps. Thus, it fails to show any seriousness about upholding and promoting a ‘balanced’ regime – in stark comparison to the detailed and surgical manner in which it aims to raise awareness about IPRs and commercialise them.
This is unfortunate -- and it's also a reason why I've argued we need to move away from calling them "limitations and exceptions" and towards what they actually are: the public's rights. The intellectual property laws, themselves, are "limitations and exceptions" on the public's right to use these things.
Unfortunately, when you don't have much experience with these issues, and you just think that all patents are good and spur innovation, you miss out on how much damage to innovation and the public can be done with a patent regime that goes too far in restricting the public's rights.
The other big myth is that "patents = innovation." As we've noted for years, a rather unfortunate fact is that politicians (and, too often, academics) without a way to accurately "measure innovation" fall back on the easiest thing they can do: count patents. But the number of patents is not a proxy for innovation and in fact is quite misleading. But, because patents are countable, it becomes a metric that everyone keys off of. And we've covered how China, for one, has recently embraced a massive increase in patenting, proclaiming to the US that it's no longer a "pirate nation." But, of course, in the process, it's turned into a giant patent troll, using those patents to punish foreign competitors. But the actual patents that China has been getting, even as the numbers go way up, have been mostly junk.
But, as Sinha notes, it appears that India got the exact wrong message from China:
It is likely that the idea to use the IPR policy as a tool for ‘IPR indoctrination’ to result in staggering IPR generation came to the Indian government from their Chinese counterparts. In 1995, China started conducting elaborate training of its officers, researchers and students to popularise a generation of IPRs and last year the country received 10 lakh patent filings – an international record. At the conference, the officials were in awe of the Chinese statistics, and they were confident of catching up in the next few years. This despite the fact that in China, the race to patent innovations has only led to a proliferation of low value innovations in high numbers. Less than 1% of China’s patents are of intermediate or high value. Thus, China despite its high patent filings shows only a weak innovative performance. Globally, there is enough evidence to show that there is no positive correlation between patent filings and cumulative innovative performance of a country.
Unfortunately, this kind of blind belief that "patents = innovation" may serve to do severe damage to both the public and actual innovation in India. There are lots of (reasonable) concerns about high prices for medicines, but it could also harm India's pharmaceutical industry, which has actually thrived on being able to produce generic drugs that compete globally. Increasing a patent regime would actually stifle that industry. One hopes that at least someone who actually understands how innovation works can get through to the Indian government before it makes a big, big mistake.