Definition - "Patent Troll"

"PATENT TROLL" - Any party that intentionally misconstrues the claims of their patent to assert it against another. A patent troll does not have to be a non-practicing entity (NPE) or in any particular industry, all that is required is an intentional misconstruing of the claims in an attempt to extort money from another.

Disclaimer



Disclaimer - All information and postings in this blog are provided for educational purposes only. Nothing in this blog constitutes legal advice and you should not rely on any information herein as such. If you do not have a signed engagement agreement with me, then you are not represented by me and you should retain your own attorney for any legal issues you are having.

Thursday, May 26, 2011

Preliminary Invalidity Analysis for Lodsys's '078 Patent

Background Info
Patents are presumed valid once they issue, however, a party may challenge the presumption of validity in a reexamination request, as a defense to a patent infringement suit, or in a declaratory judgment action.  There are multiple reasons why a party can argue a patent may be invalid, but I will only address the two reasons based on prior art:  Anticipation under 35 U.S.C. 102 ("102") and obviousness under 35 U.S.C. 103 ("103").

under 102:  For a piece of prior art to anticipate a patent claim and make it invalid, each and every limitation of the claim must be found either expressly or inherently in a single piece of prior art.

under 103: For a combination of pieces of prior art to make a patent claim obvious and make it invalid, the decider (a court or the USPTO) must ask whether "[t]he combination of familiar elements according to known methods is likely to be obvious when it does no more than yield predictable results."  This is a very quick overview of obviousness and does not explain all the intricacies, which is not the goal here.  If you need more thoughts and detail about 103 see other articles (for example, here or here ).

Thus, the ultimate goal of any invalidity search is to find a single piece of prior art that includes all of the elements of the claim that is trying to be invalidated.

In my search, I have found a reference that MIGHT provide a decent 102 argument or could be a good 103 argument.  Whether it would be considered 102 or 103 art will depend on the interpretation of the elements in the claim, which can be affected by interpretations of the patent's specification, statements made by Lodsys during prosecution of the patent (or possibly another related patent), statements Lodsys makes during litigation, and other factors.  The interpretation of a claim is typically not determined by a court until a Markman opinion is issued during the patent litigation.

As with my previously posted search results (here and here), I am assuming the earliest possible priority date that Lodsys could claim based on the continuations and CIP filed dating all the way back to 1992.  Sorry, but I have not had the time to read through all the documents to determine which claims should get what priority date; just trying to beat the earliest listed date is the shortcut at this point.

Analysis
Here is my preliminary invalidity chart:
Possible Claim Interpretation (note: needs more direct analysis from specification and file histories)
1.  A system comprising:

Hand-held computer system (p.243)
units of a commodity that can be used by respective users in different locations,
Multiple computer hardware products with a user interface
Hand-held computer systems (p.243) are commodities that can be used by respective users in different locations, as that is inherent in their design.
a user interface, which is part of each of the units of the commodity, configured to provide a medium for two-way local interaction between one of the users and the corresponding unit of the commodity, and
Each of the multiple computer hardware products has a user interface
Computer screen can show menus and scrolling lists on the hand-held computer, keyboard allows two-way interaction. (P. 243)  Also, the Psion included a keyboard and screen.    http://archive.psion2.org/org2/psion1/manual3.htm

further configured to elicit, from a user, information about the user's perception of the commodity,
The user interface can be configured to ask the user a question about the product. 

Or, the user interface can receive feedback from a user about the product
A survey can be programmed.  Surveys may include questions about conditions or attributes.  (P. 244)   

USPA comments: Inherently, a survey could ask any type of question, including a question about the hand-held computer itself.  Thus, receiving user feedback about a product being used to conduct the survey is merely a simple design choice of the survey.

Also see http://www.jstor.org/pss/2631354 to establish it was well known to receive user feedback about a specific product.

a memory within each of the units of the commodity capable of storing results of the two-way local interaction,
Memory in the product
Data can be collected during a survey and stored in a memory to allow the transfer of data to a PC. 
“… the hand held computer, should prove to be the optimum solution.  The data collected during the survey … the transfer of data to the main computer is controlled by programs on the PC and hand held computer…” (P. 243)

Also, the Psion Organiser included memory, ROM, RAM, EPROM, and data packs. (P. 243)  Also see
the results including elicited information about user perception of the commodity,
Configured to store answers to the question
Answers can be stored in the hand held computer .  “… the hand held computer, should prove to be the optimum solution.  The data collected during the survey … the transfer of data to the main computer is controlled by programs on the PC and hand held computer…” (P. 243)
a communication element associated with each of the units of the commodity capable of carrying results of the two-way local interaction from each of the units of the commodity to a central location, and
An interface for transmitting data to a computer
There is an interface or device to allow the data from a survey to be transferred to a PC. (P. 243)  “it is assumed that a database will be set up on a PC to handle the storage and sorting of the collected data for all systems.” (P.242)

“The transfer of data to the main computer is controlled by programs on the PC and hand held computer…” (P. 243)


a component capable of managing the interactions of the users in different locations and collecting the results of the interactions at the central location.
Software at the computer to manage the questions and store the results.
The hand-held computer can be programmed using survey design software.  A database at a PC can collect the results of the survey from multiple hand held systems.

“As with all computers, the Psion needs to be programmed to enable a survey to be carried out.  There are commercial packages available which enable the non computer literate user to generate a survey…” (P.243)

“The capital costs for the hand held system should also allow for the survey design software…” (P. 243)

“it is assumed that a database will be set up on a PC to handle the storage and sorting of the collected data for all systems.” (P.242)

Also see the following to establish that it was quite well known to elicit user feedback for a product:

(note on last link: scroll down to "User Feedback" section, p. 429)

I have highlighted above what I believe will be the critical issue in any litigation if Lodsys keeps pursuing its patent litigation on the '078 patent.  Also see igoeIP for analysis about interpretation of "user's perception". Whether the art I cited invalidates the '078 patent or even Claim 1 will depend almost entirely on the claim interpretation provided to the highlighted element.

For anyone not familiar with interpreting patents, it may seem like the claim chart above is not really addressing what the '078 Patent discusses in its figures and specification.  That is because the legal breadth of a patent is defined by its claims and, generally, it is the elements of the claim that need to be shown in the prior art to invalidate the claim.  For this analysis, I have assigned what I believe to be a reasonable interpretation of the claim, but I recommend anyone who might use this for an invalidity argument do a much more extensive investigation of claim interpretation.

Conclusion
Based on the above analysis, there is a good argument that Lodsys's patent might be invalid, at least the broadest (independent) claims.  I cannot guarantee to anyone that a judge or patent examiner will agree, but that is my opinion.  If Lodsys keeps pursuing this, we will keep looking for even better prior art and posting it for everyone to have access to it.  If you are aware of any prior art that we can document, please contact me.

These are just my thoughts for discussion, I would love to hear feedback.

-USPA

5 comments:

  1. Helpful Information sharing for the IP of patent.I read this blog with full interest.
    ----
    intellectual property lawyer los angeles

    ReplyDelete
  2. In 1978 I sold a product called "Infopac" and later another called "Scorepad" from a company called Azurdata of Richland WA. This product was configured to show things like product codes (could use a bar code scanner or be pre-loaded with a selection) and ask for things like how many of the item should be ordered. It was hand-held, based on CMOS RAM, had a built-in 1200 baud modem and would talk to a mini or mainframe computer to dump the results.

    Later, Radio Shack sold the RS Model 100 - first of the "notebook" style computers (I still have a couple here in the house) - fully portable and it too had 1200 baud modem built in or would use 300 baud accoustic cups or direct serial connection at 9600 baud. Built in (Microsoft) BASIC and one of the uses I saw of it was exactly the topic - asking people in a mall to answer a series of questions about products so the answers didn't have to be re-keyed into a system somewhere - but instead were stored locally and uploaded to the remote system. The programming was, even for the time, trivial.

    ReplyDelete
  3. I was thinking that another area of search might be "test-taking" software. The test itself would be configurable similar to the survey software mentioned. It would collect answers to the test. It would publish the summary results of the test to both the test taker AND the person giving the test.

    ReplyDelete
  4. This seems like some great information. A company named Article One Partners just started researching the Lodsys patents. You should submit these references on their site to win money and join the group effort! http://info.articleonepartners.com/blog/bid/59524/App-Developer-Community-Invited-to-Join-Lodsys-Patent-Review

    ReplyDelete
  5. Excellent pieces. Keep posting such kind of information on your blog. I really impressed by your blog.
    Android phone app development| Google android app development|

    ReplyDelete