12:01 Tuesday

Patented: Formula for Computing Wind Chill

As if summer isn't closing down fast enough, this week gives us the issuance of the following patent, reminding us of what's around the corner.

U.S. Patent No. 7,578,615
Method and system for determining wind chill temperature
Inventors: Rashid A. Ahmad & Stanton Boraas

Commentary:

Mathematical Formula or Law of Nature?  Take your pick.  Not sure how this one (or its parent, U.S. Patent No. 7,481,576) got through -- this goes well beyond Bilski.  Is there any test under which this claim, as written, would not have a patentability problem?  Perhaps it is just that the "Circuits/Measuring & Testing" division of TC 2800 simply isn't tuned in to 101 issues... 

Other notes:

• First action allowance (also for parent)
• "This model...has been validated experimentally," says the specification.  Where?  Probably in the inventor's hometown of Talmoon, Minnesota, 47.6 degrees north of the equator.  
• Why don't they ever report the wind chill in the summer, when we'd really welcome it? ("It's ninety-seven degrees outside, but that breeze makes it feel like a balmy 89..")
  

A key is not a collar stay

Jason Bier and Josh Gutstein are Chicago lawyers.  They are also entrepreneurs.  Several years ago, when stayed collar dress shirts were once again gaining popularity in the men's fashion world, Bier and Gutstein found themselves facing a persistent problem: like socks, their stays (either one at a time or by pairs) would eventually disappear, usually due to inadvertently forgetting to remove them before laundry or dry cleaning.

So the two formed a new partnership in addition to their law firm, and invented the Stayclip, a keychain-like device which, when coupled with specially designed collar stays, keeps those stays organized and easily accessible. (And it works, too: I have purchased one for myself and given several as gifts -- though I'm not quite sure who the target market is for the $7,800 set of platinum stays, or the $595 designer shirts that expose the diamond studs and/or monograms.)  Bier and Gutstein also sought patent protection on several aspects of their creation, both for design and utility.

One of those patents finally issued today as U.S. Patent No. 7,578,034 after a long battle in the PTO.  The case is unremarkable but for an Examiner who insisted that this: 

 

was an anticipatory reference for this:

1. A device for storing at least one perforated collar stay comprising:

first and second arcuate members releasably engageable to form a closed loop, at least one arcuate member being pivotable; and 

a collar stay having a perforation, and an arcuate member extending through the perforation. 

It was, strangely, a 102 rejection--not 103 for obviousness.  So how did the Examiner say that the keyholder met the claimed limitation of "a collar stay having a perforation"?  Because "a key is capable of functioning as a collar stay.  For example, a long key having a small head portion such as taught by [other prior art] can be used as a collar stay."

This led to what may be the greatest piece of evidence ever submitted to the PTO: a Rule 132 declaration by Bier with this exhibit as support that "A key is not a collar stay," and that using a key as such would damage a shirt's collar.

The BPAI agreed last November: 

We acknowledge the Examiner’s argument that a key 9 is considered a collar stay, since a key is capable of functioning as a collar stay. The first part of the Examiner’s statement is simply erroneous. A key is not a collar stay. And the Examiner is in error for “considering” it so. The second premise is that a key is capable of functioning as a collar stay. This statement is amenable to proof, but the Examiner, who bears the burden of establishing anticipation by a preponderance of the evidence, has offered no proof for this assertion. Inasmuch as this assertion has been challenged on the record by the Appellants, it is incumbent on the part of the Examiner to offer more than a bare assertion that this is so. Since the Examiner has merely repeated his argument in more detail at page 11, we must conclude that this finding is based on speculation.

For their troubles, the patentees were awarded over 1,100 days of patent term extension due to to PTO delays. Congratulations, Josh & Jason.

More Bilski on the Brain

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 1. A method of determining whether a test subject is sufficiently alert to perform a predefined task comprising:  a) recording an electroencephalograph (EEG) over a period of time from the test subject using an EEG recording apparatus;  b) analyzing the frequency distribution of the wavebands recorded in the EEG; and  c) quantitating any ERN waveform in the EEG,  wherein presence in the EEG of both  (1) (a) an alpha waveband power component ratio of 0.5-1.0 and a theta waveband power component ratio of less than 0.5 or (b) a theta waveband power ratio of 0.5-1.0 and an alpha waveband power component ratio of less than 0.5; and  (2) one or more ERN waveforms recorded during the period of time  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.

Commentary: 

• 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?

13. The method of claim 1 wherein the ERN waveform(s) are detected in real time by performing a frequency transform of the EEG.  14. The method of claim 1, wherein each EEG recording is sequentially (a) amplified; (b) filtered through a 30 Hz low pass filter and a 0.3 Hz high pass filter; (c) converted from analog to digital; (d) subjected to a fast Fourier transform.

Patent of the Week: Fake Thong

For the plumber in us all.

U.S. Patent No. 7,574,752 Garment with Integral faux thong extension and associated method Inventor: Patrick Walters, Long Beach, CA 9. A method for covering an exposed portion of a user buttock crevice, said method comprising the steps of: a. providing a leg wear having a waist line formed along a top-most edge thereof, said leg wear including a lower torso buttocks covering garment provided with a crotch and leg portions respectively; b. providing and disposing a faux underwear garment along an interior surface of said leg wear such that a bottom-most end of said faux underwear garment is attached to said leg wear at a location below said waist line of said leg wear while a top-most end of said faux underwear garment is exposed above said waist line of said leg wear, said faux underwear garment being selected from a group including a faux g-string and a faux thong respectively; c. providing and engaging a first cord with said top-most end of said faux underwear garment such that a posterior section of said first cord remains abutted to said top-most end of said faux underwear garment, said first cord contiguously extending adjacent to an entire circumference of said waist line of said leg wear; d. adapting said leg wear to partially cover a user buttock in such a manner that said waist line of said leg wear is selectively situated below the exposed end of the user buttock crevice during use thereof; and e. automatically adapting said faux underwear garment between stretched and equilibrium positions when said waist line of said leg wear drops below and rises above the exposed end of the user buttock crevice respectively such that said faux underwear garment remains continuously positioned over the exposed end of the user buttock crevice while said waist line of said leg wear is selectively adapted below the exposed end of the user buttock crevice respectively; wherein said posterior section of said first cord remains abutted to said top-most end of said faux underwear garment as said faux underwear garment is adapted between the stretched and equilibrium positions.

Commentary: No Accelerated Examination needed here.  Just a very helpful examiner (female, if that matters) with some 112 issues. Thirteen months later, voila.  Interesting that it was filed with a non-publication request; I'd think the European or South American market might be strong for this invention.  And the first eight claims are apparatus claims, as you might expect.

Patent of the week?  More like Patent of the Rear.  (Commenters, you may now insert your own jokes...)

U.S. Patent No. 7,574,752 Garment with Integral faux thong extension and associated method Inventor: Patrick Walters, Long Beach, CA 9. A method for covering an exposed portion of a user buttock crevice, said method comprising the steps of: a. providing a leg wear having a waist line formed along a top-most edge thereof, said leg wear including a lower torso buttocks covering garment provided with a crotch and leg portions respectively; b. providing and disposing a faux underwear garment along an interior surface of said leg wear such that a bottom-most end of said faux underwear garment is attached to said leg wear at a location below said waist line of said leg wear while a top-most end of said faux underwear garment is exposed above said waist line of said leg wear, said faux underwear garment being selected from a group including a faux g-string and a faux thong respectively; c. providing and engaging a first cord with said top-most end of said faux underwear garment such that a posterior section of said first cord remains abutted to said top-most end of said faux underwear garment, said first cord contiguously extending adjacent to an entire circumference of said waist line of said leg wear; d. adapting said leg wear to partially cover a user buttock in such a manner that said waist line of said leg wear is selectively situated below the exposed end of the user buttock crevice during use thereof; and e. automatically adapting said faux underwear garment between stretched and equilibrium positions when said waist line of said leg wear drops below and rises above the exposed end of the user buttock crevice respectively such that said faux underwear garment remains continuously positioned over the exposed end of the user buttock crevice while said waist line of said leg wear is selectively adapted below the exposed end of the user buttock crevice respectively; wherein said posterior section of said first cord remains abutted to said top-most end of said faux underwear garment as said faux underwear garment is adapted between the stretched and equilibrium positions.

Commentary: No Accelerated Examination needed here.  Just a very helpful examiner (female, if that matters) with some 112 issues. Thirteen months later, voila.  Interesting that it was filed with a non-publication request; I'd think the European or South American market might be strong for this invention.  And the first eight claims are apparatus claims, as you might expect.

Patent of the week?  More like Patent of the Rear.  (Commenters, you may now insert your own jokes...)

IBM Upsells Patent to PTO

Another Armonk classic.

Prior art:"Want fries with that?"
Novel: "Want fries with that? There's room in your bag.."

U.S. Patent No.7,571,105 Weight based upselling Assignee: IBM 9. A computer program product for weight based upselling, the computer program product disposed in a computer-readable recording medium, the computer program product comprising computer program instructions when executed causing a processor to perform the method comprising:     receiving a purchase request for an item from a customer;     determining a weight of the item;     identifying, in dependence upon the weight of the item, a shipping weight range and a shipping cost for the item, wherein the shipping weight range includes a maximum shipping weight;     calculating a difference between the weight of the item and the maximum shipping weight in the shipping weight range;     selecting an upsell item in dependence upon the difference between the weight of the item and the maximum shipping weight in the shipping weight range; and     offering the upsell item to the customer, including offering to ship both the item and the upsell item for only the identified shipping cost.

Commentary: Note that there are no method claims, just system and Beauregard. That's because the method claims that were originally filed--with identical steps as the CRM claims here--were effectively Bilskied in the first office action in August 2008 (the Examiner applied the Machine-or-Transformation test prior to the CAFC's adoption of it).

IBM didn't fight the rejection, and promptly canceled the claims. Why? Because it had already gotten those basic methods through in the parent case. That's right, this is a continuation of what is now U.S. Patent 7,509,262, which issued in March 2009 (not sure how that one slipped by the radar at 12:01...) and has extremely similar method claims:

1. A computer-implemented method for weight based upselling comprising the computer-implemented steps:      receiving a purchase request for an item from a customer including receiving a purchase request in an electronic commerce server through an electronic data communications medium, wherein the purchase request includes an item identifier:      determining, using a computer, a weight of the item including selecting an item record in dependence upon the item identifier, wherein the item record includes data elements describing the item, including the weight of the item, and reading the weight of the item from the item record;      identifying, using a computer in dependence upon the weight of the item, a shipping weight range and a shipping cost for the item, wherein the shipping weight range includes a maximum shipping weight;     calculating, using a computer, a difference between the weight of the item and the maximum shipping weight in the shipping weight range;     selecting, using a computer an upsell item in dependence upon the difference between the weight of the item and the maximum shipping weight in the shipping weight range including selecting an upsell item having a weight not greater than the difference between the weight of the item and the maximum shipping weight in the shipping weight range, a type code matching a type code associated with the item, at least one demographic code matching at least one demographic code associated with the customer, and an item type matching an item type associated with the customer through a purchase history; and     offering, using a computer, the upsell item to the customer, including offering to ship both the item and the upsell item for only the identified shipping cost including offering the upsell item to the customer from the electronic commerce server through the electronic data communications medium.

Note the extra computer beef there in bold. IBM added most of that in a preliminary amendment "in an effort to expeditiously move this case to allowance." A nice preemptive move, particularly since it was made pre-Bilski (I've tried this trick myself post-Bilski).

But it turns out it wasn't necessary here. The amendment didn't make it in front of the Examiner before the mailing of her first office action (May 2008), in which she allowed the original, unamended, broad method claims. Oops... Things got squared away with an Examiner's amendment that incorporated the changes, along with a few others (notably, the "using a computer" modifiers were not in IBM's preliminary amendment).

So IBM tried again, submitting those very same original method claims in a child application (that became this week's '105 patent) and it was examined by the same Examiner...who, as noted above, rejected them under M-O-T in August 2008, just three months after she had allowed them in the parent case.  Go figure.  There must have been a "memo" that went out last summer that caused the change of heart.

But wait... it looks like there's some extra room in the bag: there's another continuation application in the works that's currently being upsold to the same Examiner.