12:01 Tuesday

Class 705 Issuances Rising

For searching purposes, the USPTO classifies patent applications according to their general subject matter.  If you're the type to read the Patent Act cover-to-cover, you may already know that there is actually statutory authority for classification in 35 USC Section 8, which authorizes the Director to maintain a classification system "for the purpose of determining with readiness and accuracy the novelty of inventions for which applications for patent are filed."  Currently, there are over 400 classes, and you can find them on the PTO site if you really are curious (or really are bored...) See MPEP 900 et seq. for more information.

One class that is worth watching, and is part of my weekly scan, is class 705, titled, "DATA PROCESSING: FINANCIAL, BUSINESS PRACTICE, MANAGEMENT, OR COST/PRICE DETERMINATION." Class 705 contains most of the so-called "business method" patents.  Over the past couple years, a typical week would see about 45-65 patents issue from Class 705. Today that number jumped to 111.  And, as shown in the chart below, it appears to be the latest point in an upwards trend.

 
The trend is highlighted by focusing on the 60 patent mark. From January through July 2009, only three times did the number of weekly issuances from Class 705 exceed 60.  But from August 2009 through today, there have been only five weeks when the number was below 60.

This data runs counter to the CW that there would be a post-Bilski drop in the allowance of business method patents. (Potentially, anyway...it may be that there was a surge in non-business method applications from 705.)

Theories?  Could it simply be more examiners being hired in the Art Units that deal with 705-type applications?

BPAI to HP: Equal Protection Clause doesn't save claims from 101

For a move even Stephen Colbert would admire for its ballsiness, we extend kudos to Hewlett-Packard, who argued the following in its appeal brief of App. No. 09/976,630:

 

No mention of In re Nuijten, which was decided several months earlier. Or maybe HP thinks that it is unconstitutional to apply KSR, too, since there are oodles of obvious claims out there in issued patents...

Today, the Board of Patent Appeals and Interferences responded appropriately in its Ex Parte Haines decision:

Section 101 rejection of claims 21-27   Appellant alleges that the USPTO has issued patents to others that contain “propagated signal claims.” Appellant contends that the § 101 rejection of the instant claims is a violation of Appellant’s rights under the equal protection clause of the Fourteenth Amendment to the U.S. Constitution. App. Br. 14.   However, Appellant has not cited any authority in support of the novel legal argument. The U.S. Patent and Trademark Office is not part of a state (or local) government, but an agency of the U.S. Department of Commerce. Cf. U.S. Const. amend. XIV, § 1 (“No State shall . . . deny to any person within its jurisdiction the equal protection of the laws.”). We are not persuaded that the USPTO has violated Appellant’s rights to equal protection of the laws under the Constitution.[FN1] [FN1]: Absent showing that the agency acted pursuant to some impermissible or arbitrary standard, an argument based on the equal protection component of the Due Process Clause of the Fifth Amendment would also fail. See In re Boulevard Entertainment, Inc., 334 F.3d 1336, 1343 (Fed. Cir. 2003) (TTAB decision that affirmed the refusal to register marks containing the term “jack-off” did not violate equal protection principles, even though the USPTO had previously registered similar marks for other applicants).

Flames of 101 Stay Unkindled for Amazon

I was starting to lose hope for some of the patent applications I'd written that were more on the Comiskey end of the 101 spectrum. Fortunately, yesterday's issuance to Amazon.com renews my faith that an allowance is still possible.

U.S. Patent No. 7,672,868 Creating an incentive to author useful item reviews Assignee: Amazon.com 1. A method in a computer system for evaluating a creator of item reviews, comprising: causing the display of one or more item reviews submitted by the creator to a plurality of viewers; soliciting, from the viewers to whom an item review is displayed, an indication of whether the review is helpful; receiving and storing any solicited indication provided by the viewers to whom item reviews are displayed, each indication being either positive or negative; and applying, by said computer system, a formula to obtain a score for the creator based upon the stored indications that considers, for each review submitted by the creator, the number of viewers to whom the review was displayed that subsequently ordered the item identified by the review.

Commentary: Okay, it's not quite on the level of Comiskey's arbitration method. But is it that far off? The "applying, by said computer system…" -- the only possible tying to a machine -- was added by Examiner's Amendment in a first action allowance. The Bilski elephant just sat quietly in the room. Nor was 101 raised in the parent, U.S. Patent No. 7,428,496, a pre-Bilski issuance on extremely similar claims. What was raised there, however, was a head-scratching restriction requirement, leading to the divisional filing of what became the patent at issue:

This application contains claims directed to the following patentably distinct species: Species I: Directed toward determining an author score based on a net number of positive and negative indications received for each of the reviews submitted by the author. Species II: Directed toward determining an author score based on the number of consumers to whom a review was displayed that subsequently ordered the item identified in the review.

"Independent and distinct," eh? Regardless, Amazon chose to not traverse, and now has two patents for its user review system (which I admit to finding very useful).

Speaking of user review systems, it is interesting that Internet recommendation engine Yelp appears to have no patents or published applications to its name. Do you think it could have avoided some of its recent troubles if its approach and algorithm for reviews were "patent pending" and publicized? Perhaps that would, as the WSJ blog suggests, let Yelp "find a way for [its] sales team to more clearly express to business owners how its filtering process works." Just sayin'.

[Actually, it looks like Yelp really should know about such patents. U.S. Patent No. 7,590,562 for the somewhat-related, "Product recommendations based on collaborative filtering of user data", is assigned to Google. But the inventor is listed as Michael Stoppelman, brother of Yelp founder Jeremy Stoppelman. A former Google employee, Michael apparently has now joined forces with brother at Yelp.]