12:01 Tuesday

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.

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.

Special Offer, Just For You: Yahoo's patent on targeted advertising

Last week Yahoo! announced it was shuttering its answer to Google's AdSense, which was targeted at allowing smaller players -- blogs -- to make a few bucks through placement of ads. While that may be a front on which it has conceded defeat, judging by at least one of its recently issued patents, however, Yahoo! is keeping active in the bigger world of targeted online advertising. Consider this patent from a few weeks ago:

U.S. Patent No. 7,680,786 Optimization of targeted advertisements based on user profile information Assignee: Yahoo! Inc. Issued: March 16, 2010 1. A method of targeting based on user information, the method comprising:  identifying a set of keywords associated with content information requested by a user over a network;  retrieving advertising information corresponding to said set of keywords;  retrieving user profile information associated with said user, said user profile information comprising a user matrix, said user matrix comprises, for said set of keywords and said corresponding advertising information, click-through-rates associated with said user and a bid price for said advertising information;  filtering said advertising information to select advertisements based on said bid price for said advertising information and said corresponding click-through-rate associated with said user identified in said user matrix for said set of keywords; and  providing said advertising information selected to be displayed for said user in connection with said content information.

In other words, an advertiser pays more to present its online ad to you when it knows you historically have a higher rate of clicking-through to presented online ads. That, of course, can only happen if somebody is keeping track of your click-through rate. While this may not be so different from other forms of targeted advertising based on user profiles, something about it feels closer to the "evil" end of the Google-motto-scale. (The University of Chicago part of me sees this as a kind of double price discrimination: a) the advertiser willing to pay the most gets the slot; and b) the price is further determined based on traits of the specific users. Of course, the users here are the real "product" being sold to the advertisers, so it's not quite the same. But still interesting.)

From the patent prosecution angle, there are two additional things to note. First, there was no Bilski rejection.  Looks to me like the "network" is the only machine-like element explicitly mentioned.

Second, this patent is the first I've seen that went through the First-Action Interview Pilot Program. This program, which expired just last week, was set up for certain art units to allow applicants an opportunity to receive search results and interact with the examiner prior to a first action on the merits.  Here's how that played out for Yahoo!:

• 10/30/06 - Yahoo files application
• 6/4/08 - Yahoo enrolls in pilot program
• 9/10/08 - PTO gives a "Preinterview first office action"
• 10/10/08 - Yahoo proposes amended claims
• 11/18/08 - Yahoo and PTO have interview to discuss proposed amendment - no resolution
• 12/9/08 - PTO issues "First Action Interview Office Action" rejecting claims
• 1/9/09 - Yahoo amends claims
• 4/1/09 - PTO issues Non-Final, "first" action on the merits
• 7/7/09 - Yahoo amends
• 10/28/09 - Allowance

By participating in the pilot program, Yahoo got two extra bites at the apple (by proposing amended claims after the "Preinterview" action, and again amending after the "First Action Interview" action), PLUS the interview. And all before a true "first action on the merits." It also appears that the examiner may have accelerated the examination of this application (though this was not an advertised feature of the program).

The pilot was extended once, to 4/1/2010. But there's been nothing about it being extended again. If anyone has seen statistics relating to the program, please feel free to share.

Patent of the Week: Condom Valve

Was it only this past September that we discovered this gem (see list at bottom of page) among several pro se patent applications by a Hawaiian doctor? Appropriate for today, I'm feeling a bit like Bill Murray in Groundhog Day:

U.S. Patent No. 7,654,265  Condom valve Inventor: Attila Mady Issued: February 2, 2010 1. A condom having a valved geometry, said condom comprising a first layer and a second layer of a material that is capable of providing a barrier to the passage of bodily fluids, microorganisms and viruses, with said first layer and second layer configured in an overlapping fashion to form a plicated membrane valve at a distal portion of the condom, with said first and second layers further configured such that they are tightly apposed to the glans penis, with said condom further including a reservoir for retaining ejaculate at a distal tip of the condom, and wherein said plicated membrane valve is configured such that the aforesaid first and second layers may separate and the membrane valve may open under pressure provided from the urethra to transmit ejaculate therefrom, permitting emission of semen from the reservoir to an area outside of the confines of the condom in the region corresponding to and physically approximated to the introitus of the urethra, to prevent build-up of fluid at the tip of said condom and to permit impregnation of the female partner engaged in sexual intercourse.

Ah, yes. How could we forget this invention, the SkyDome of contraception. Its purpose is "..to permit re-use with the same partner, or to...permit conception...while retaining...barrier type infection control."

I won't post all the details here (you're welcome), but it is worth reading the specification for entertainment (example: this is probably the first patent to use the words "surgically affixed", "Crazy Glue", "condom" and "shaft" in the same sentence. Ouch.)

You have to admire the patience of the examiner, though. Consider this snippet from the first of four interview summaries:

Applicant notified examiner of his displeasure stemming from his experience during prosecution of a different pending utility application. Examiner alerted applicant that he was not the examiner of record in the other pending application. Applicant maintained that his experience thus far with the PTO may be due to his lack of representation by an attorney. Examiner informed applicant that it is his intention to assist applicant throughout prosecution. Applicant maintained that examiner's rejections based on the prior art...were spurious.

Really?? An attorney might help? Ya' think? And recall that this is the inventor who actually did hire an attorney for a quick hit to respond to a messy 112 rejection in his previous patent...only to revoke the POA shortly thereafter.

We'll keep an eye out for more of Dr. Mady's patents in the future. Fun stuff.

Patenting the Virtual World: Webkinz

There's few situations more embarrassing than when your six-year old son figures out that you were playing his video game the night before.  Okay, maybe when your wife stumbles upon you after midnight playing your son's video game...  Alas, I admit to suffering both of these shames last summer when I became fascinated with my children's Webkinz.

For those of you with kids between 5ish and 10ish(?), I don't have to explain.  For the rest of you, Webkinz are Beanie Babies meets Tamagotchi meets facebook (kind of).  In the "real world", you spend a few bucks and get a cute cat/hippo/gorilla/kangaroo/pterodactyl/etc. animal to cuddle.  Inside the toy's package is a code that is then entered into a website to unlock a "virtual" version of your animal.  In the virtual world, you feed and take care of your pet, and earn "kinzcash" by playing games.  The cash can be spent on things like room decorations, food, or gifts that you can "send" to your networked friends.  It's pretty wholesome stuff, not expensive, and the commercialization factor, while present, isn't off the charts (though there is temptation to buy "real" clothing accessories, which come with their own codes, to then see those garments magically appear on the virtual version).  And there is one small, though real 'hook' to your wallet: your registration on the site is good for a year, extendible by... buying and registering another Webkinz.  But for under $10, it's well worth it.

Of course, what I found most intriguing was that there are several patent numbers that appear on the Webkinz website.  Last week, Howard Ganz, creator of Webkinz and grandson of the family-owned company's founder, was granted his sixth Webkinz patent.

U.S. Patent No. 7,604,525 System and method for toy adoption and marketing Assignee: Ganz (Woodbridge, Ontario, Canada) Filed: January 22, 2009 Issued: October 20, 2009 9. A method that provides a virtual world presentation comprising: registering a toy; using a computer system for providing a website associated with the toy, said website having a user account associated with said registering of the toy; in response to and subsequent to said registering, using the computer system for displaying a virtual replica of the toy representing said toy on said website, wherein said virtual replica of said toy is manipulated by a user accessing the website via the user account; in response to said and subsequent to said registering, using the computer system for granting access to the user by way of the user account to at least a subset of features on the website in connection with the virtual replica of the toy; and in response to said and subsequent to said registering, using the computer system to facilitate caring for the virtual replica of the toy presented in the virtual world presentation, wherein said caring for the virtual replica of the toy comprises, and maintaining both of a health and happiness of the replica of the toy via a plurality of maintenance activities, which include all of feeding the toy, shopping for the toy, and playing with the toy, and taking the virtual replica of the toy to a virtual health and welfare facility, wherein playing with the toy comprises participating in an activity on the website in combination with another virtual replica of another toy appearing on the website that is controlled by another user via another user computer over a communication network, wherein an appearance of the virtual replica of the toy is animated using video components for the animation, said animation being used during participation in the activity on the website in combination with the another virtual replica of another toy.

Commentary:  There was an Examiner's Amendment that deleted a clause in the last element, leaving a difficult parsing job (the [, and] before "maintaining" probably should have gone).  We can ignore that for now, in light of all the other good things to discuss here.

• Accelerated Examination.  Ganz's first patent was from an application filed in 2004.  That same application has served as the parent for all of his patents.  Of course, the AE program wasn't around until 2006, and Ganz has now taken full advantage in this continuation patent.  Notably, this patent has five earlier-filed sibling applications that are still pending.  And Ganz unsuccessfuly tried AE on a couple of these, getting petitions denied.  This time they got it right.
  

• Bilski Guidelines. In June 2009, the examiner hit Ganz with a 101 rejection: "As explained in the Interim Guidelines in view of In re Bilski, the first step in determining whether a claim recites patent eligible subject matter is to determine whether the claim falls within one of the four statutory categories..."  That sounds fine, and it is certainly in line with the current Guidelines published in August 2009. (In fact, this same Examiner just rejected a related Ganz application under 101--in October 2009--with exactly the same language.)  But to my knowledge, in June there were no post-Bilski 101 guidelines other than John Love's January 7, 2009 memo, which was silent as to particular steps, and only referred examiners back to MPEP 2106 for specifics.  Was there another, unpublicized set of Interim Guidelines adopted before August?  My guess is that the August guidelines were available and in use for a couple months before going public.

• Machine? Transformation? Both?  To overcome the 101 rejection, Ganz amended the claims, partly as marked above, with several references to computer systems and stressing the linkage between real and virtual worlds (e.g., there was an element reciting a "virtual adoption process" that was subsequently removed by the examiner).  Ganz argued this satisfied not only Bilski's machine prong, but its transformation prong, as well, following Bilski's nod to Abele: "A transformation of raw data into a particular visual depiction of a physical object on a display is sufficient" to satisfy the transformation test, argued Ganz.  

That's not so clear here however. The visual depiction in Webkinz is really a generic animation of "a" Webkinz toy, and not necessary your Webkinz toy.  That is, the same graphic used on the website to display your Gecko is also used for the thousand other kids' Geckos out there.  That's quite different from the x-ray data of Abele, which really was derived from an actual physical article.  So does this virtual image really "particularly" depict a physical object?  It's unclear.  And we don't know if this argument succeeded for Ganz: the examiner allowed the claims without any 101 discussion.

• Scott C. Harris? Yes, the same Scott Harris of Fish/Google fame and who argued the In re Ferguson paradigm non-shifting case appears to have been involved here.  You won't find his signature on any of the papers, but the Examiner notes an August interview with Harris in the Notice of Allowance, where Harris authorized an Examiner's Amendment.  Sure enough, PAIR reveals that Harris is now associated as an attorney of record on this application, working with the Cleveland-based Pearne & Gordon firm.

• Claim strategies.  It's worth looking at the claims in the other Ganz patents.  For example, the parent, U.S. Patent No. 7,534,157, claims the physical toy as an apparatus, but all the elements are directed to the computer ("A toy for utilizing a computer system for providing a virtual world to a user of said toy, the computer system comprising:...").  Sister Patent No. 7,425,169 includes method claims from the perspective of the end user's actions ("A method comprising: first using a first registration code obtained from purchasing a first toy, to access a website;...").  Other patents in the portfolio cover variations on the method claims. Having different claiming approaches like these allows for a wide scope of overlapping claim coverage, and for potential infringement under both direct and indirect theories.

[UPDATE 10/26/09: See comment below on the "transformation" question in light of last week's Ex parte Gardiner decision.]

The Onion Gets a Patent

No, not that Onion.  But by the time you finish reading this post (and you really should finish reading this post), you'll have to wonder...

Timed perfectly to coincide with today's Federal Circuit decision in Prometheus Labs v. Mayo Clinic, the following patent issued yesterday. Here's claim 1:

U.S. Patent No. 7,588,784 Use of onion extracts to prevent and treat acute and chronic cardiac and vascular complications and their sequelae, as well as to resolve hematomas Inventors: Attila Mady & Juliana Mady 1.  A method of treating hematomas comprising the steps of:     providing an extract of onion (Allium cepa); and     topically applying the onion extract to or proximate an area of a hematoma, for transdermal delivery to increase and accelerate hematoma resorption.

Commentary: If the CAFC is correct that "[C]laims to methods of treatment...are always transformative when a defined group of drugs is administered to the body to ameliorate the effects of an undesired condition."  then there's no Bilski problem (assuming onion extract is a defined group of drugs).

Of course, there may be other 101 problems, like utility. For instance, in looking at the healing effects of onions, here's what the inventors said:

Onions are even more ignored [than garlic]. Used in multiple cultures worldwide as a blood thinner and "cardiac tonic", there has nevertheless been very little research regarding its composition and effects. Yet there is not only overwhelming evidence that the onion contains compounds that have a profound impact on the entirety of hemostasis (including platelet function and the coagulation cascade), but this evidence is obvious and easily demonstrable in standard platelet and coagulation assays.
...
However, the most obvious and dramatic effect of onions is on thrombolysis. Topical application of sufficient amounts of onion juice to a site anywhere approximate to a hematoma (and at sufficiently frequent intervals, approximately every 6 hours) will result in the absorption of said hematoma even days after the formation of this hematoma. Even more remarkably, re-absorption shall occur at sites where there is NEVER reabsorption without surgical drainage, such as sub-periosteal pretibial and olecranon hematomas. Due to the absence of blood flow in these areas, an incision and drainage are always necessary to prevent the progression to fibrosis and the development of permanent tissue deformity.

Hematoma resorption does not only occur in places where it never would under spontaneous circumstances, but is also accelerated, meaning absorption occurs more rapidly (approximately 5-7 times faster than without onion juice). Hematoma resorption is also more complete, reducing the incidence of residual hemosiderin deposition. Finally, hematoma resorption will occur long after it would on a spontaneous basis, up to a week after the initial injury. There is no other thrombolytic known that works beyond approximately 12 hours after initial clot formation.
...
Further, there is also one report that attributes direct anti-arrhythmic effects to garlic (WO9405307). If this is true, it would be logical to assume that onions would also be likely to possess these properties, since onion juice is vastly more active in terms of its impact on the hemostatic mechanism than garlic. This antiarrhythmic property, however, is only conjecture at this point.

There are no citations to documented research or empirical evidence to back up most of these statements, however.  Is the utility of the claimed invention "credible" to a person of ordinary skill in the art? (MPEP 2107) (This is an honest question...I'm no POSITA here.)

Other interesting notes:

• Did you suspect this was a pro se inventor?  Look at the originally filed claims on PAIR to remove all doubt.  Actually, when the 112-ridden first office action came back, the inventor wisely hired an attorney to clean up the claims into a meaningful form.  And then promptly revoked the POA to continue pro se.  Nice.

• Practice Tip #1: When filing an Accelerated Examination application, be sure not to have any missing parts.  That's fatal.  (Here, the wait was not much longer, with a first office action coming just seven months after filing.  The applicant owed $420 for four extra independent "claims".)

• Practice Tip #2: If you are going to have a "Background" section, try to keep it SHORTER than the rest of the specification.  Remember that the Background is the one section that is not required by statute (i.e., 112) or rule (e.g., 1.71 - 1.75), yet it is the one section that is admitted prior art.  You do the math.

• Dr. Mady (yes, he is apparently an M.D.) is the named inventor on another patent, U.S. Patent No. 6,328,764 for a Primary axis prosthetic joint design.  That patent, unlike this one, contains figures.  But Dr. Mady happened to file nine other patent applications on the same day as the '784 patent. Check 'em out:

20090093856     High fidelity electronic tactile sensor and stimulator array, including sexual stimulus
20090093783     Use of vacuum suction in conjunction with diapers.
20090093782     Mask to compress face
20090092794     Turgor shaping. Control of shape and rigidity through the use of pressure transmitting channel patterns (hydraulic channel arrays).
20090092693     Platelet manipulation to prevent and treat endovascular disease and its sequelae, to prevent and treat arrhythmias and to prevent malignancy
20090090671     Apparatus to assist platelet manipulation to prevent and treat endovascular disease and its sequelae
20090090369     Condom Valve
20090090368     Adhesive condom and deployment
20090089934     Gradient bed

To answer the immediate questions:

1) the diaper vacuum appears to be aimed at elder care, not babies.

2) The condom valve has two uses: "to permit re-use with the same partner, or to permit the transmission of semen and thus permit conception as a result of intercourse while retaining the protective effect of barrier type infection control." Sort of like keeping the top down on the convertible when it's raining.

And according to Dr. Mady, "[C]ondoms are completely useless for the prevention of the transmission of the herpes virus. Hepatitis B, hepatitis C and even HIV are only partially prevented with condoms."  Not to get political, but is that the message we've been teaching in our kids' sex ed classes??

3) No, I don't expect Judge Posner to sit by designation as an examiner to weigh in on the obviousness of any of these inventions.

4) None of these other applications have yet been allowed.

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.

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.

Deck of Cards = Particular Apparatus?

I've only started playing my game for the day, and I've determined an early winner:

U.S. Patent No. 7,549,863 Method of playing card games comprising saying the alphabet with words, saying words with words, and saying the alphabet with words while saying words with words Filed: October 1, 2008 Inventor: Timothy Joiner 1. A method of playing a card game by a plurality of players; comprising (a) providing a deck of 52 playing cards; each card having an identical identifying design on the back side, wherein 31 of the 52 cards are letter cards having one specific letter from the alphabet marked on the face side such that the five vowels A, E, I, O, and U are marked on two of the cards and each of the other letters of the alphabet is marked on one card, and 21 cards are wild cards, such that 3 cards are marked as a single letter wild card; 15 cards are marked as single letter or multiple letter wild cards and 3 cards are marked as 2 times the same letter or more wild cards; (b) shuffling and stacking the deck face down into one pile for use by a plurality of players; (c) a player beginning their turn by removing the top card from the stack of face down cards, flipping it over face up and setting it down in a face up pile; (d) when the face up card is one of the 31 letter cards the player must enunciate a word that pronounces the letter on the face up card as it is pronounced as an alphabet letter such that the player says an alphabet letter while saying a word; (e) when the face up card is one of the 21 wild cards the player must enunciate a word the pronounces a letter as an alphabet letter per a specific requirement of the wild card; (f) awarding points to the player upon successful enunciation of a word as follows: one point for the 31 lettered cards, one point for the 3 single letter wild cards; one point for each letter pronounced as an alphabet letter for the 15 single or multiple letter wild cards; two points for the first time plus one point for each additional time the same letter is pronounced as an alphabet letter for the 3 wild cards marked as 2 times the same letter or more; (g) repeating steps (c)-(f) for each player in turn until all the cards in the face down pile have been played; and (h) adding the total points of each player to determine a winner.

Commentary: See the spec for play examples.  In theory, I have no problem with this claim from a Bilski perspective. (But see Homer J., "In theory, communism works.  In theory....")  There's no question the method is tied to the cards.  And the cards are clearly "particular", i.e., they aren't "general purpose" cards, if that even matters.  On the other hand, I can take a Sharpie to my old deck of Bicycles to mark them up as recited in step a). Perhaps throwing in that step would make this a clean transformation prong case.  Maybe I'll try that tonight and play this with my kids -- modifying the game, of course, so as not to infringe.  On the other hand, are the cards really necessary to play this?  Why not have one player yell out a letter to challenge an opponent?  Wouldn't that make using the cards insignificant post-solution activity?  In theory...

The serious question, of course, is--if there was not a 101 problem before--does a 101 problem arise by encoding this game in software so that the "card" is virtual and flashes on the screen of a home computer (which also keeps track of score)?  Your choices:

1. card game passes machine prong; software implementation does not
2. card game fails machine prong; software implementation passes
3. both pass machine prong
4. both fail machine prong
5. it depends
   

Discuss.

More notes:

• Pro se inventor (Surprised?)
• No Figures
• No accelerated exam needed for this app, which gestated for nine months before issuing
• Parent app was rejected for improper claim form, then abandoned.

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That's FRAHn-ken-steen... (Patent of the Week II)

I'm assured by some of my biology-oriented colleagues that such things are patented all the time, and there is no 101 problem.  (Dupont received its famous patent on the Oncomouse--a transgenic rodent altered to have increased susceptibility to cancer--in 1988.)  Nevertheless, I can't help but get a crazy image in my head whenever I read the title and claims of this patent that issued on Tuesday:

U.S. Patent No. 7,524,491 Non-human animals with human-glial chimeric brains Filed: January 16, 2008 Assignee: University of Rochester 1. A non-human mammal with at least 30% of all its glial cells in its corpus callosum being human glial cells and/or at least 5% of all its glial cells in the white matter of its brain and/or brain stem being human glial cells.

Two prosecution questions: 1) Only 15 months from filing to issuance, and no Accelerated Examination.  Why can't we see that in the "digital arts?"  2) I'm not used to the "and/or" language getting past the examiners, but I suppose it is not a 112 problem if there's no resulting ambiguity.

By the way, I hear that the donor for those human glial cells was a woman.  I can't quite recall her name... Abby something.

Core Competencies

I don't mean to single out IBM, really, but it's sometimes hard not to.  After all, when you are consistently the #1 patent filer, you're going to get noticed.  And when you appear to be the #1 filer of accelerated examination applications, your're going to get noticed by folks like me who look for those things.  So this one that came up today caught my eye, though not for 101 issues -- it appears to be quite, um, clean.

Instead, this patent reminded me of a sign in a pizza place near where I grew up that always gave us a chuckle: "Banks sell no pizza; We cash no checks." 

U.S. Patent No. 7,524,380 Energy efficient dishwashing Filed: July 31, 2008 Assignee: IBM 1. A method for controlling a dishwasher in a energy efficient manner, the method comprising: sensing weight, volume, and location of items disposed in each of a plurality of compartments of the dishwasher, said sensing being accomplished via a plurality sensors disposed in each of said plurality of compartments, wherein said sensing occurs prior to a start of a washing cycle and drying cycle, wherein said sensing further includes sensing at least one of electrical conductivity and transparency of a cleaning solution used in the dishwasher; communicating sensed data from said sensors to a controller; calculating a desired length of time for said washing cycle and said drying cycle based on said sensed data, and calculating a desirable amount of said cleaning solution to be used in each of said plurality of compartments based on said sensed data, said cleaning solution including at least water and detergent, wherein said calculating further includes calculating for a desired temperature, detergent, and detergent ratio of said cleaning solution based on said sensed data; implementing said washing cycle and said drying cycle for said length of said time, wherein a smaller sensing of said weight and said volume results in a shorter amount of time than would be spent based on a larger sensing of said weight and said volume; commanding said dishwasher to direct said amount of said water and said detergent to each compartment of said plurality of compartments, wherein any of said plurality of compartments sensed to include fewer or none of said items will receive less of said water and detergent than any of said plurality of compartments sensed to include more of said items; transmitting efficiency data from said controller to a medium viewable by a user, said efficiency data being based on said calculating, said implementing, said commanding, and said sensing of said weight, said volume, and said location of said items, wherein said transmitting includes suggesting movement of some of said items from one of said compartments to another of said compartments based on said sensing of said location of said items in said compartments, wherein said efficiency data includes a predicted cost for said implementing and said commanding; connecting said controller to an internal or external internet network and transmitting said efficiency data to a computing resource connected to said internet network, wherein said computing resource is said medium viewable by said user; minimizing usage of electrical energy and said water via said implementing, said commanding, and said transmitting; and  transmitting dishwasher control commands implemented by said user from said computing resource to said controller.

Commentary: Since when is IBM in the dishwasher business?  Kind of like Microsoft's recent agriculture patent, I suppose.  There was also a patent to erstwhile Lehman Brothers on a "Method and system for analyzing commuting routes" in 2007 that remarkably issued in under seven months (and with some of the least formal drawings ever -- see Fig. 6), but even that one appears to have been developed and used in-house for Lehman's employees. (Barclays owns the patent now. I hope this patent's traffic analysis performs better than Lehman's market analysis did.)  I somehow doubt that IBM's engineers were in the company kitchen eating lunch when they just decided to design a better dishwasher controller.  But I could be wrong.

Hard to know the stories behind these outliers, but I'd be curious.