An interesting patent issued recently to Forest Hills, NY-based WaveSynch Technologies. The startup bills itself as providing innovative uses for brain wave analysis, including identity confirmation, maintaining alertness, and matching employee attitudes to particular tasks or positions (though the day probably is not distant when a prospective employer might opt to use such techniques on a job candidate. Wouldn't that be a fun interview?). Notably, the company has adopted an aggressive intellectual property strategy. But don't take my word for it; take it straight from the company's website:
WaveSynch Technologies has pursued a particularly aggressive IP strategy. At the end of 2008, the company filed the appropriate US Patent Applications through the Accelerated Examination and Issue program at the US Patent and Trademark Office. This recently implemented program requires a high level of due diligence to be performed as a prerequisite to program entry in order to insure the patentability and uniqueness of the invention. The incentive of the program is that a final decision is guaranteed to be delivered within 12 months of program entry, and the resulting patent is stronger and much less vulnerable to attack than patents issued through conventional channels. (emphasis added).
If only they had stopped short of that last sentence... Although the goal of the Accelerated Examination program is a final decision within 12 months, it's not a guarantee. The PTO made this point clearly when it rolled out AE three years ago. (Then again, I'm not aware of any cases where it's taken longer.)
The bigger problem, of course, is the second part of the sentence. Last I checked, all patents were presumed valid, and clear & convincing evidence is needed in every case to overcome that presumption. I'm not aware of any empirical results that would support that an AE patent is "stronger" than its traditionally prosecuted counterparts (in fact, some have argued it may be more susceptible to an inequitable conduct charge). And as WaveSynch notes, the quid pro quo for the "high level of due diligence" required by the program is a more quickly examined application. But it won't gold-plate your patent.
As you read claim 1, think about the Machine or Transformation test, and whether this claim is distinguishable (with respect to Bilski) from the truth-detector claim previously discussed on this blog:
U.S. Patent No. 7,574,254 Method for monitoring attentiveness and productivity in a subject
Assignee: WaveSynch Technologies
Application date: November 13, 2008; Issued: August 11, 2009
wherein presence in the EEG of both
indicates that the test subject is not sufficiently alert to perform the predefined task, and wherein the presence of (1) but not (2), or (2) but not (1), indicates that the test subject is sufficiently alert to perform a predefined task.
- Accelerated Examination
- First action allowance.
- 101 never raised.
- Possible machine: EEG recording apparatus. But this really is only used for collecting the data. There's really no need for this apparatus for the steps of "analyzing" or "quantitating".
- Possible transformation: ?
- Terminally disclaimed due to double patenting rejection with U.S. Patent No. 7,570,991, an Accelerated Exam patent to WaveSynch that issued a week earlier -- also a first action allowance.
Query: Do we think M-O-T is passed for these dependent claims?