12:01 Tuesday

97 Days

In the quickest patent to issue so far this year (by my calculation), Intermune, Inc. has been granted U.S. Patent No. 7,566,729 for "Modifying pirfenidone treatment for patients with atypical liver function". The claims appear to cover particular dosing method of administering pirfenidone to treat a patient with idiopathic pulmonary fibrosis.  Just under 100 days from filing (April 22, 2009) to issuance (July 28, 2009). That's Accelerated Examination in action.

A runner-up, at just over 100 days, goes to Perfect Pushup.  Yes, that Perfect Pushup, whose commercials you've certainly seen if you have ever watched ESPN for more than a few minutes.  It seems that one of the inventors is over 65, and the company wisely has filed Petitions to Make Special to jump to the front of the line.  Their fourth utility patent, U.S. Patent No. 7,566,292 issued today for a Handle Assembly for Use With an Exercise Bar. All of their utility patents appear to have had quick prosecutions: their longest filing-to-issuance has been 15 months, and the average is about 9.5.

To Tell the Truth (about 101)

I was encouraged in recent weeks that the examining corps at the PTO had really picked up the ball with respect to Bilski.  Although there were still several of the standard financial service-type patents coming though (auctions, trading systems, etc.), none of them seemed to pack the same punch as those I'd found even a few months ago.  Or maybe I've gotten less sensitive.  But it certainly started getting harder for me to find blog-worthy posts for 101, and I had to start looking at a broader base, venturing outside of the beloved Class 705.

But just when you thought it was safe to go back in the water...along comes this doosey that issued last week.  It's the first patent I'm aware of to make 12:01Tuesday that was allowed after March 2009, when the blog went public. (I mention this fact purely as coincidence, and not to imply that the blog has had any effect whatsoever on examiners.  But it is interesting that the blog gets more hits from uspto.gov than from any other identifiable domain.  About 18% of the total traffic.)

A nod once again to Landon IP's Blaise Mouttet.

U.S. Patent No. 7,565,193 Questions and control paradigms for detecting deception by measuring brain activity Assignee: Cephos Corp. 1. A method for determining whether a subject is truthful or deceptive to a question of interest, wherein it is not known to an examiner beforehand whether the subject is truthful or deceptive to the question of interest, the method comprising the steps of:     (a) an examiner asking a subject a question of interest at least twice;     (b) the examiner asking the subject at least once to admit to the question of interest during an admission period and at least once to deny to the question of interest during a denial period;     (c) measuring brain activity of the subject during each period;     (d) comparing brain activity of the subject during the denial period and during the admission period in at least one brain region;     (e) optionally repeating steps (a) to (c); and     (f) determining when the subject is truthful or deceptive to the question of interest.

Commentary: Uh oh.. it's got that "paradigm" word in the title.  In re Ferguson, anyone?

First, let's dismiss any thought (ha ha) that there is a transformation here, though I'm sure some will try to argue the brain is transformed from an "admission" state to a "denying" state.

Second, where's the machine?  It must be buried somewhere in that "measuring" or "comparing" step.  Measuring, for example, is claimed in more detail in dependent claim 2, which limits the measuring to "fMRI, BOLD fMRI, PET, SPECT, EEG, MEG, optical tomography and combinations thereof".  That's probably sufficient for tying to a machine.  But without this limitation, is this a data-gathering step with no specification as to how the data is gathered, i.e., what the CAFC would call a "meaningless limit", or "insignificant extra-solution activity"? (See In re Bilski, slip op. at 27).  Probably.

Even with claim 2's limitation, is the "measuring" step really enough to tie the invention to a particular machine?  Consider a claim with an element of "measuring the length of an object, using a tape measure."  Do we feel that's less "particular" because the tape measure feels like less of a specific "machine or apparatus" than an fMRI machine?  (After all, as some of you may recall, parts is parts).  Or perhaps it all comes down to being "tied", i.e., the measuring really is just a data gathering step in the overall context of this claim, regardless of whether the data is gathered by hand or by a HAL 9000 with an 1.21 gigawatt-consuming flux capacitor.

As for the "comparing" step, again there is nothing in the claim to suggest any particular machine is being used.  And unlike the "measuring" step, there is no dependent claim to give more details on how the comparing is accomplished.  That's too bad, because the spec appears to contain such details (e.g., col. 31 discusses that the fMRI data were analyzed with particular software packages that at least imply the use of / need for a fancy-schmancy computer).

Lastly, note the optional repetition.  I believe that means that if you don't have the option to repeat while you perform the method, then you don't infringe.  Or, it means the claim might just be indefinite.

In any event, it's tough to see how claim 1 passes muster under the new 101, which was never raised by the examiner here.  And if you think I'm lying about that, well...

More on Cows

There has been a lot of talk in the comments here and elsewhere referring to "crap" patents coming out of the PTO.  This issuance today takes things to a literal level, and follows naturally from last week's post:

U.S. Patent No. 7,563,302
Apparatus and method for manure reclamation
Assignee: Vermont Organics Reclamation, Inc.

I won't go into the specifics (it's lunchtime here), but the Background is quite interesting reading.  (For example, did you know that manure is 96% water?)  And there's little doubt the claims satisfy the Transformation prong of Bilski.

Of course, should this patent wind up in litigation, good luck finding an attorney to do an inspection of the accused infringing site...

Milking Bilski

My 21-month old son loves to sing the song "Cows" from Sandra Boynton's Philadelphia Chickens album. Okay, so he doesn't know all the words. But he certainly knows the one-word chorus, "Cows". And over the last couple weeks, that word has become consistently more loud, pounding, deafening, pervasive, annoying..., to the point where I can't tell if it is on the CD player or just in my head. Over. And over. And over...

So when Landon IP's Blaise Mouttet [cow-] tipped me off to this week's patent, I knew it had to be written up.

Such remarkable cows...

U.S. Patent No. 7,559,289 Method of and an installation for milking an animal having at least two teats Assignee: Lely Enterprises AG 1. A method of milking an animal having at least two teats, the method comprising: a stimulation phase in which at least one of the teats of the animal is stimulated; and a milking phase in which the animal is milked; wherein the method comprises: applying a stimulation phase and a milking phase to one of the teats of the animal, and applying substantially only a milking phase to at least one of the other teats of the animal.

Commentary: Where to start?

• First, although I did once milk a cow on an elementary school field trip to a farm, it's not an area where I'd consider myself an expert. Still, I think that the milking of animals is a skill/art that's been around since a few thousand years prior to the current Information Age. But apparently it was only with this invention that this more efficient method of milking was discovered.

• No figures? There's a system claim (8) that includes as an element a "stimulation device" and a "control arrangement."  Figures here must not be "necessary for the understanding of the subject matter sought to be patented" per 35 USC 113.  

• This was a national phase of a PCT application, originally filed in the Netherlands. That accounts for the strange form (the "wherein the method comprises" was originally "characterised by") 

• Bilski. Is the animal, or the teat, the "apparatus" here?  Is it a "particular" animal?  Or is there a "transformation" taking place when extracting milk from an animal?  Note that the other independent method claim (15), begins "In a robotic milking station, a method of milking..."  But claim 1 is entirely manual.  

• First action allowance.  

• "At least two teats".  I understand the need for this language in the claim (to differentiate the actions being performed on the different teats).  But in the title?  Know any animals with only one teat?

  

5vxcemgbrn

BPAI: Merely Outputting From a Computer Suffices Under Bilski

Yes, you read that headline correctly.  Today, one panel of the Board reversed an Examiner's 101 rejection of the following claim.  Here's the rationale in its entirety:

“We find that claims 23, 29, and 30 recite a computerized method which includes a step of outputting information from a computer (FF 7 and 9-10) and therefore, are tied to a particular machine or apparatus.”

So much for that "insignificant post-solution activity" requirement.  And there's no antecedent basis for that "computer system", either.

Case is Ex Parte Dickerson.  Care to guess who the assignee is?  Think Blue.

23. A computerized method for identifying a solution to address exposed performance gaps of a company in a specific industry, comprising: first identifying a plurality of operational metrics for the specific industry, wherein the operational metrics includes a factor used to measure health or viability of a generic company in the specific industry, wherein the specific industry is a grocery store industry, wherein the operational metrics include at least one of a rate of inventory turnover and a number of customers per day; assembling a set of solutions for application by the specific industry, wherein the set includes one of a decision, an action, a product, and a service; assessing impacts of application of the set of solutions on the operational metrics for the specific industry, wherein the assessing includes determining which of the set of solutions has a negative impact on an operational metric and determining which of the set of solutions has a positive impact on the operational metric; after identifying, assembling, and assessing, then comparing a current operational performance of the company to an operational performance of another company within the specific industry to obtain at least one performance gap, wherein the operational performance includes a performance of a company based upon the operational metric for the specific industry; identifying a solution based upon the impacts to address the exposed performance gaps, wherein the solution is at least one of a decision, an action, a product, and a service that impacts a problem in a positive manner; and outputting the solution from the computer system.