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February 07, 2012

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November 10, 2010

October 20, 2010

October 19, 2010

Sign of the Times: Topps' Method of Trading Baseball Cards

The small pharmacy a mile from my childhood house was a frequent summer bicycle destination for me growing up. That's where my friends and I would go to buy packs and packs of Topps' baseball cards. I still remember opening a wrapper in 1978 to find a Pete Rose--while he was in the middle of his 44 game hitting streak. I hear that card in mint condition might fetch 20 dollars. (Mine--now bent and missing corners--maybe gets a buck.)

So it was nice to see a few weeks ago that Topps obtained its first utility patent in almost seven years (only its sixth utility patent in 30 years). Moreover, this is Topps' first patent that has nothing to do with chewing gum or candy -- it's...get this...a business method patent:

U.S. Patent No. 7,797,194

Method and apparatus for offering for sale collectibles on primary and secondary markets

Assignee: The Topps Company, Inc.

Issued: September 14, 2010

1. A method of facilitating an issuer of collectibles to manage an offering of collectibles for sale, each of the collectibles having a predetermined condition, said method comprising the steps of:
a) initially offering for sale the collectibles to potential purchasers for a period of time set by the issuer;
b) receiving orders from the ordering potential purchasers;
c) allocating the offered collectibles among selected of the ordering potential purchasers;
d) facilitating steps a), b) and c) by a programmed computer; and
e) maintaining the condition of the collectibles during steps a), b) and c), whereby the allocated collectibles are of the predetermined condition and the issuer may guarantee the condition of the allocated collectibles,
wherein step b) offers an initial offering of collectibles, and there is further included the step of offering for sale selected of the allocated collectibles on a secondary market at the direction of the purchasers of the allocated collectibles.

Commentary: Great. I suppose this means that my kids may not be trading actual baseball cards: instead, they'll be trading futures in baseball cards. Then again, if "personal seat licenses" are now the norm for ticket holders, then why not introduce children to similar concepts early on, right? At least it gets them to think of these cards as the investments they really are, rather than just things to put in your bike spokes so they will make cool ratchety noises. (Sorry, Pete.)

Of course, there's one immediate shortcoming, in my opinion. The patent talks about an "IPO" for a card ("Initial Player Offering") and buying multiple cards for players expected to increase in value (e.g., you may want to buy many Derek Jeter cards "if you believe that Derek Jeter will become the best shortstop of all time," says the patent). That's a great tool to teach kids about buying and holding stocks, but what about selling short? There's apparently nothing in Topp's system that allows me to sell you the Stephen Strasburg card I don't have.

Topps No formal drawings. Even the figures look like they were drawn by 11-year olds.

Bilski. Does this even need mentioning? Actually, the Examiner did reject several claims for failing machine-or-transformation, but other claims somehow survived. Given the recent PTO's recent pronouncements on interpreting KSR, however, I'd think that step d) here might not overcome an obviousness rejection.

Seven Appeal Briefs, No BPAI Decision. The claims in Topps' patent application were given their first final rejection in 2001. But as hard as Topps tried to appeal those rejections, it just couldn't make it up to the Board. The first two attempts resulted in the examiner reopening prosecution with new grounds of rejection. Then there were two defective briefs. Then a substitute brief kicked by the Board because it was not considered by the Examiner. Then another defective brief. Then another brief that reopened prosecution with a new rejection -- which was overcome, resulting in allowance. I suspect the Examiner was simply worn out by this point. Or Topps' counsel takes lessons from the Swamp King.

Filed five months too early? Topps' application was filed in January 2000. Unfortunately, Patent Term Adjustment only is allowed for applications filed after May 29, 2000. With over ten years from application to issuance, that would have been over seven years of "B" delay, alone (assuming there was no applicant delay--you can check that for yourself). But here is is the real travesty of all those failed appeal attempts: under the older Patent Term Extension--which applied to this application--had Topps received a favorable appeal decision from the BPAI, then it would have received extra term dating back to the Notice of Appeal. But without any decision on the merits by the Board (even though the Examiner reconsidered his rejections several times), the term is a flat 20 years from filing.

Adding even more insult to injury, Topps had successfully petitioned to make the application special, resulting in an accelerated examination. Despite, these efforts, in hindsight Topps would have been better off dropping this app in favor of a continuation after the first final rejection in October 2001.

Derivatives. Anyone care to create an options exchange for Topps?

UPDATE 10/20/2010: I'm informed that Topps actually has a commercial service based on the teachings of this patent, called etopps.

August 31, 2010

Last Day of Enforceability for Patent 4,xxx,xxx

Odometer
Today marks the end of the four millions.

U.S. Patent No. 4,997,100

Unitary biological specimen processing apparatus

Inventor: Peter P. Dudek

Issued: March 5, 1991

Filed: August 31, 1990

Abstract: A Unitary biological processing apparatus for processing specimens therein is described wherein a perforated receptacle member with two arc shaped abutment means and a third hook shaped abutment means is attached through a frangible hinge portion to a perforated lid member with two arc shaped detent means at the two edges of the lid member which are perpendicular to the lid member edge extending along the hinge portion, and a third detent means engageable with the hook shaped abutment means. When the lid member is swung about the hinge the arc shaped engagement means become engaged even before the lid member mates against the receptacle member and the two arc shaped engagement means provide with the third engagement means a three-point lock of the lid member onto the receptacle member

You can check for yourself, or you can take my word for it: any other patent under 5,000,000 is either: a) 20 years past its earliest priority date; or b) expired for failure to pay maintenance fees. (And every patent under 5,000,000 is more than seventeen years past issuance.)

Challenge: When will the last of the 5,000,000s expire? I suspect that PTE (which was not applicable to the 4,000,000s) may cause major headaches in determining the answer.

August 06, 2010

Old Becomes New in 2010

Are we starting to see some evidence of President Obama's promised Transparency?

Consider the following odd statistic: 

  • Number of patents to issue in 2010 (so far) with prosecution histories of more than 20 years: 10
  • Number of patents to issue in 2009 with prosecution histories of more than 20 years: 0
  • ,,,in 2008: 4
  • ,,,in 2007: 3

The 2010 patents are shown in the chart below.

20yearpatents 

As you might expect, most of these patents (the longest seven on the list) were subject to secrecy orders in the name of national security that delayed their prosecution and issuance by many years. (Two of the other three patents were involved in long interference battles, and the last one on the list was simply unintentionally abandoned for several years.)

Why the vast difference between 2010 and 2009 (and the previous two years)? One theory is that, under the Obama administration and its promise "to usher in a new era of open government," the secrecy orders on older patent applications were reviewed with a new eye toward transparency, resulting in lifting more confidentiality restrictions than had previously been done. The timing would fit: if the secrecy orders were lifted during Obama's first year in office -- 2009 -- then after a few months of resumed prosecution and preparation for publication, the patents would issue in 2010. Makes sense.

But like many nice theories, it's unfortunately not supported by the facts. In actuality, only one of these patents, 7,673,565, had its secrecy order rescinded in 2009. In fact, the oldest patent on the list, 7,696,460, was declassified in 2000 under Clinton. The others came out of hiding between 2005-2008, during the "secretive" George W. Bush presidency.

For now, we'll just chalk this up to coincidence and randomness. But if someone out there has a better theory, please share.

June 15, 2010

Expiration Challenge II

ExpirationDateEggs Today Symbol Technologies -- the company that revived the doctrine of prosecution laches to bring down Lemelson's patents -- received U.S. Patent No. 7,738,865.  On the surface, it appears that this patent, like a few of the Army's described in earlier posts, expired long before it issued.  But did it?

You tell me.  When does/did this patent expire?

Hint #1: you will probably have to argue your position using case law.

Winner gets the bottle of Costco ibuprofen sitting in my desk drawer, expired 1/06. (And to you pharma folks -- is there really a harm in my still taking them?)

A more complete discussion will follow.

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