Thursday, January 31, 2013

LED Lighting - The Future?

Source: NY Times

The quintessential symbol of an idea is the incandescent light bulb. No less a purveyor of ideas than the US Patent and Trademark Office (USPTO) pushes a lightbulb icon to the tab on your browser when you visit their web pages and a flag embossed lightbulb as the logo for the America Invents Act. Director David Kappos displays one of Thomas Edison’s original light bulb models in his office. The incandescent light bulb was a truly disruptive and transformative invention that has been used by billions of people worldwide.

The US Energy Information Administration (USEIA) estimates that in 2012 US residential and commercial lighting used 13 and 20 percent, respectively, of the electricity purchased in those energy use sectors (USEIA Annual Energy Outlook 2013 Early Release, reference case). Thus, lighting represents a major opportunity for reducing energy use via technological changes (e.g., compact fluorescent bulbs, LEDs, automated controls), behavioral changes (e.g., energy conservation programs), or government laws and regulations that incrementally ban the manufacture and sale of a more than century-old lighting technology.

The USPTO Green Tech Pilot Program issued a significant number of lighting-related patents. We’ll look at some of those representative of inventions by one of the dominant assignees in the program.

LG Innotek

LG Innotek (011070:Korea SE), headquartered in Seoul, Korea, was “the first general electronic component company in Korea”, according to the company’s web page. The company manufactures and sells LED lighting, printed circuit boards, mobile devices such as digital camera modules, electronic display components, network and automotive devices.

Some LED Patents

Three patents are representative of some of LG Innotek’s LED technology.

The Single LED Package

Light emitting diodes (LED) are semiconductors that convert electricity into light. Once used almost exclusively as indicator lighting for electronics, solid state LED lighting is a rapidly emerging technology that continues to move into the mainstream of general purpose illumination technology.

Early energy inventions in lighting, and specifically light emitting diode technology, reach back to 1907. LEDs operate based on electroluminescence — where a material emits light in response to an electrical current or a strong electric field. The phenomenon was discovered in 1907 by British researcher H. J. Round.

Source: USPTO Green Technology Program Discovery and Analysis Report, Way Better Patents.

A good example of a typical LED is found in LG Innotek’s US 8,039,863 patent, ‘Light emitting device’, issued on October 18, 2011. The single inventor is Bum Chul Cho.

Claim 1 is a concise summary of the invention:

A light emitting device comprising:

a package body comprising a trench;
a first electrode and a second electrode on and/or in the package body;
a wire electrically connected to the second electrode;
a light emitting diode on the first electrode, the light emitting diode being electrically connected to the second electrode through the wire; and
a lens on the package body and covering the wire, wherein at least one of the first electrode and the second electrode extends up to a bottom surface of the package body via the trench disposed in the uppermost surface of the package body.

Many multiples of these individual packages make up LEDs you might purchase in your local big-box store, in stop lights (that in winter have difficulty in snowy weather because they don’t generate sufficient heat to melt snow and ice. There are always unintended consequences; for example, (see our post patentECO - The Unintended Consequences of Inventions) or that would be found in the next two patents below.

A LED With Sand

Patent US 8,115,369, ‘Lighting device’, issued on February 14, 2012 to Seok Jin Kang and three co-inventors. Filed on November 8, 2010, its three-year plus prosecution was significantly longer than the 19.7 month average from the program up to that point (a detailed review of pendency under this demo ‘economically important technology’ program may be found in Way Better Patents Discovery and Analysis Report.)

Claim 1 shows the use of the major component of sand in a heat transfer pad between the light emitting substrate and a heat sink:

A lighting device comprising:

a substrate;
a light emitting device disposed on the substrate;
a heat sink to radiate heat from the light emitting device;
and a pad being interposed between the substrate and the heat sink and transferring heat generated from the light emitting device to the heat sink and comprising silicon of 10 to 30 wt° A, a filler of 70 to 90 wt %, glass fiber of 2 to 7 wt % in terms of weight percent (wt %), wherein the light emitting device includes an LED.

The sand-based (i.e., silicon) heat transfer pad and heat sink are necessary to reduce heat generated from the device.

A LED for Your Shop

How many of you have ceiling mounted multiple-tube fluorescent light fixtures in your kitchen, garage, workshop, rec room (does anyone have those anymore, or have they all become ‘media rooms’?), office, or store? LG has a light for you.

Patent US 8,109,647, also entitle ‘Lighting device’, issued on February 7, 2012 to Kim Dong Soo and Kim Yun Ha. This patent issued in less than 18 months, faster than the Green Tech program average pendency.

Claim 11 provides a good summary of the invention:

A lighting device comprising:

a case comprising:

a bottom plate;
walls extending from ends of the bottom plate; and
louvers coupled to and inclined from respective edges of the walls;
a light emitter coupled to the bottom plate;
a diffuser plate spaced apart from the light emitter and disposed between the walls, and a reflector, disposed on an inner surface of the case, to reflect light emitted from the light emitter and to direct the reflected light through the diffuser plate, wherein each of the louvers is oriented at an obtuse angle relative to the diffuser plate and wherein the light emitter includes an LED.

Market Opportunity

Other companies in the LED innovation space include Cree, Philips, Osram, and GE among others. They are aware of the great market potential of LED lighting, as described by the US Department of Energy:

Widespread use of LED lighting has the greatest potential impact on energy savings in the United States. By 2027, widespread use of LEDs could save about 348 TWh (compared to no LED use) of electricity: This is the equivalent annual electrical output of 44 large electric power plants (1000 megawatts each), and a total savings of more than $30 billion at today’s electricity prices.

That’s a good thing, because recent USEPA regulations caused the retirement of more than 9,000 MW of coal-fired power plants in the US in 2012 and could eventually lead to the closing of almost 35,000 MW of coal electricity generation.

Wednesday, January 30, 2013

An New Indicia of Extortion

Here is the latest from our Indicia of Extortion collection, brought to you via Ars Technica.

Newegg, Inc. won its patent suit against non-practicing entity, Soverain on appeal.  Soverain claimed it owned the patent for the electronic shopping cart.  The Ars Technica article includes the details on the defendants, just about every major e-commerce player who sells products on the internet.

Newegg's Chief Legal Counsel, Lee Cheng's interview in the Ars Technica article offered insight into Newegg's commitment to follow the case through all the way to the end based on their well-founded belief that their products didn't infringe Soverain's patents and that Newegg didn't owe royalties on prior and future sales.  Mr. Cheng note that, "It's part of our duty as a good corporate citizen to try to accelerate the rationalization of patent law."  He is to be commended.  It's easy to say the patent system is broke.  It's much harder to do something about it especially when it would have been cheaper to just pay up, pass the 1% royalty fee to your customers and move on.

And when commenting on the submarine patent nature of patent trolls, where patent holders lie beneath the surface for long periods of time, usually while entrepreneurs create markets for products using patented technology and then do the pop-up and pay-up by suing the now profitable company for royalties, Mr. Cheng added,

"It's actually surprising how quickly people forget what Lemelson did. [referring to Jerome Lemelson, an infamous patent troll who used so-called "submarine patents" to make billions in licensing fees.] This activity is very similar. Trolls right now "submarine" as well. They use timing, like he used timing... Then they pop up and say, "Hello, surprise! Give us your money or we will shut you down!" Screw them. Seriously, screw them. You can quote me on that."

The Court's decision on Soverain Software v. Newegg, Inc. is an interesting read because it provides an accessible example of a patent infringement decision based on obviousness and the scope of prior art.  It is easier to understand than many other more technical obviousness claims because the technology is understandable to anyone who has shopped over the internet and used an e-commerce shopping cart.  If you are trying to wrap you head around how obviousness works, read the decision.

The folks at a long list of America's top retailers and e-commerce giants are sleeping easier night.  Tomorrow they should be calling their IT folks and telling them to check out Newegg the next time they need laptops, keyboards, software or a host of any other products and to have fun clicking Add to Cart.

Update - February 11, 2012:  Mr. Cheng provided comments to the Federal Trade Commission on the impact of patent trolls on Newegg's business.  The comments, available here, provide insight into the complex and nuanced impact that patent assertion entities have on Newegg's business.  The comments are thoughtful and highlight the complexity of the issues.

Sunday, January 27, 2013

The Rube Goldberg Patent Term Calculator

- A Rube Goldberg - a comically involved complicated invention, laboriously contrived to perform a simple task. - Webster's New World Dictionary.

The first thing we did after we read the January 25th press release and accompanying information on how to use the new USPTO Patent Term Calculator was to check and make sure that it wasn't Rube Goldberg's birthday.  We thought that the new patent term calculator was the Patent Office's way of honoring the famous inventor, sculptor, author, engineer, known for his cartoons depicting complex gadgets that perform simple tasks.  To our disappointment, it was not Mr. Goldberg's birthday and sadly it isn't April 1st.

For those of you who haven't seen the press release we present it here for your reading pleasure:

"USPTO Releases New Patent Term Calculator
Downloadable Resource Helps Determine Estimated Expiration Date of Patents 
"Washington – The U.S. Department of Commerce’s United States Patent and Trademark Office (USPTO) today announced the release of a new calculator that enables members of the public to estimate the expiration date of a utility, plant, or design patent. The calculator can be downloaded at
“This new calculator is another educational tool we’re providing to our nation’s innovators and entrepreneurs,” said Under Secretary of Commerce for Intellectual Property and Director of the USPTO David Kappos. “In conjunction with the Intellectual Property (IP) Awareness Assessment Tool we released in March, the calculator can help manufacturers, small businesses, entrepreneurs, and independent inventors assess and improve their knowledge of IP. 
The calculator provides a best estimate of a patent’s expiration date, based on a comprehensive list of factors than can be found in USPTO records. Before relying on an expiration date, individuals should always carefully inspect all relevant documents available through the USPTO, court records and elsewhere, and consult with an attorney."

Sharing the objective of making patent information easier to find for regular joes (and joettes), we were excited about the prospect of something that would advance the ball by helping folks figure out what patents were enforceable and which are not.  We were expecting an online tool where you enter a patent number and get back an expiration date and maybe a status, something delightfully simple.

The patent expiration date is an important and largely inscrutable piece of information.  Inventors and entrepreneurs need to know if they need a license to patented technology and for how long.  Likewise inventors and innovators also need to know if the inventions disclosed in a patent are free to use. It's part of that whole advancing knowledge and promoting innovation part of the patent compact.  Being able to find out if a patent is enforceable or not is an essential piece of information on this asset.

Instead what we found is a tool that will help "the public" understand what patent professionals deal with every day.  A tool that in a single download will fuel the patent haters and the patent system is broke crowd.   (And guarantee patent attorney full employment.)

Here's how the Patent Term Calculator Works.  (The Rube Goldberg part starts here…)

First, the Patent Term Calculator is a downloadable Excel spreadsheet. USPTO assumes that the ‘public’ is  spreadsheet-savvy; and has access to a spreadsheet program that is compatible with whatever macros and/or formulae it has built in to this spreadsheet.

For most folks it won't work on their mobile devices unless they already have a spreadsheet app on their smartphone or tablet.  Not very new millennium.

Next, after downloading…

"Please enable macros in order to use all features of the calculator."

So now we have a downloadable piece of software from a public site where we are being instructed to enable the macros.  Macros are a primary source of viruses, spyware, and other  mechanisms for viruses to enter a computer. The NIST Guide to Malware Incident Prevention and Handling specifically instructs government cyber security personnel to restrict macro use.  (Check out NIST 800-83)

The calculator contains prompts to enter specific information related to the patent in order to help in estimating expiration dates. (Doesn't USPTO know a definitive expiration date?)

"This information can be obtained from USPTO’s online systems, links to which are provided below.”

Ok, download the spreadsheet, have a chat with your resident cyber security officer before you enable macros, scan for malware, crank open the USPTO spreadsheet, and get ready to rumble.  Then get your list of links to USPTO systems.

Next the "Factors to Consider for Patent Term Calculations."

“A patent owner or the public must consider the following factors in calculating the expiration date of a patent for utility and plant applications." (Ok now it gets scary, the patent owner is part of the target audience for the Patent Term Calculator.  What?  They don't know the expiration of their patent either?)

"The factors include the following:  (We added the bullet points for clarity.  It's a long list of factors. Commentary in  {} brackets is ours.

  • Type of application (Utility, Design, Plant)  {Doesn't the patent number tell you this?}
  • Filing date of the application  {Isn't this data created by USPTO and associated with the patent number? OK, there are international filing dates and PCT dates but couldn't USPTO at least provide the US basics?}
  • The grant date of the patent {Ditto - see filed date above. }
  • Benefit claims under 35 U.S.C. § 120, 121 or 365(c)m  {Huh?  Where do you find these? Oh, a little light reading on the Uruguay Round.}
  • Patent term adjustments and extensions under 35 U.S.C. § 154  {More legal mumbo jumbo and patentista speak.}
  • Patent term extensions under 35 U.S.C. § 156 {Ditto on the legal mumbo jumbo}
  • Terminal disclaimer(s)  {A term we hate when working with real people.}
  • Timely payment of maintenance fees.  {Doesn't USPTO know about the timely payment of maintenance fees, can't they help the regular joes and joettes with this? Besides the rules on maintenance fees, when they are paid, when things can be reinstated are also hard to understand and even more unknowable than the patent expiration date.  The patent management firms are safe.}

Right around this time intellectual vertigo starts to set in.

Next go on the tour of USPTO public systems to harvest the information needed to use the prompts to enter specific information related to the patent in order to help in estimating expiration dates.  Let us not forget that all of the systems you need to use for this drill  have different user experience and interface interactions and require lots of browser/operating system/Adobe PDF alchemy to get everything to work.

USPTO then suggests that users of the Patent Term Calculator access PTO links to explore the various factors that contribute to the calculation of a patent term using their system resources:

Public PAIR portal
Images of Published Patents
Patent Term Extensions under 35 U.S.C. § 156
Patent Maintenance Fees (can also use Fees tab in PAIR portal)

Isn't this the Patent Office?  Aren't these the people who are supposed to know the definitive answer on when a patent expires?  Aren't these the guys who grant the patents and collect the fees?  Does USPTO really expect that the average person interested in learning when a patent expires to use or be able to make sense of PAIR?

Then there is the problem of having the right browser/operating system voodoo to be able access the nasty TIFF patent images and the other public information resources available through the USPTO website.  Are regular joes going to know to look for the Certificates of Correction at the back of the image file?  Or to know how to search all these different places and what to look for when they get there?

Can the public make sense of 35 U.S.C § 156?  The pharma and biotech patentistas know about this one.  (Here's useful link to USPTO 156 page.)  A note that this type of adjustment to patent expiration dates is related to pharmaceuticals might have been helpful so an inventor trying to patent a new wrench doesn't have to waste any time.

The level of subject matter knowledge USPTO expects for a citizen using their new Patent Term Calculator just to figure out an estimate  of the expiration date of a single patent is breath taking in its expansiveness.

Why  can't USPTO provide the information interactively?  Enter a patent number, get the date?  This is an example of how truly inaccessible the innovation, invention, and patenting system in this country is to the average member of ‘the public’.

The Office says that “This calculator is only an educational tool.” A disclaimer which basically says use this tool at your own risk and then consult a patent attorney.  This is a another affirmation that you can't really be sure of anything in the patentsphere and that even figuring out the expiration date of a patent requires a patent attorney or two.

This tool adds fuel to the "patent system is broken" fire.

(We'll deal with figuring out priority dates in some other posts.  We're too tired to do it now.)

Friday, January 25, 2013

Dreamliner Batteries - Some Inventions

The Patents Behind the Plane

The Boeing 787 Dreamliner is much in the news due to several high profile problems associated with the lithium ion (Li-ion) batteries integrated into its electrical system, not the least of which is its grounding by FAA:

"As a result of an in-flight, Boeing 787 battery incident earlier today in Japan, the FAA will issue an emergency airworthiness directive (AD) to address a potential battery fire risk in the 787 and require operators to temporarily cease operations. Before further flight, operators of U.S.-registered, Boeing 787 aircraft must demonstrate to the Federal Aviation Administration (FAA) that the batteries are safe....
"The in-flight Japanese battery incident followed an earlier 787 battery incident that occurred on the ground in Boston on January 7, 2013. The AD is prompted by this second incident involving a lithium ion battery. The battery failures resulted in release of flammable electrolytes, heat damage, and smoke on two Model 787 airplanes. The root cause of these failures is currently under investigation. These conditions, if not corrected, could result in damage to critical systems and structures, and the potential for fire in the electrical compartment."

FAA press release statement, January 16, 2013

FAA issues airworthiness directives (ADs) in three tiers, with the emergency AD “issued when an unsafe condition exists that requires immediate action by an owner/operator. The intent of an Emergency AD is to rapidly correct an urgent safety of flight situation.”

The lithium ion batteries are used in the Dreamliner to start the auxiliary power unit and to provide flight system power backup and computer display startup power.

Boeing took an innovative approach to building the Dreamliner - use a global network of suppliers to develop, and then build, most of the parts in locations in many locations including Germany, Japan and Sweden. Boeing employees manufacture just 35% percent of the plane before assembling the final aircraft at its plant outside Seattle. This approach has spread innovation across the globe as well.  There are many news reports and other online sources that discuss the Dreamliner battery problem, but what of the patents behind the batteries?

The Companies

Boeing chose the French firm  Thales as the prime contractor to provide “electrical power conversion technology … to efficiently power the vast array of consumer systems onboard the B787 with the least environmental impact.” Thales stated that “Boeing chose Thales’s lithium-ion battery technology, which provides higher reliability and improved maintenance compared to traditional solutions, for the B787 low-voltage DC emergency back-up subsystem. This is a first in civil aviation, with Thales as prime contractor in association with Securaplane of the United States and GS Yuasa of Japan.”

Securaplane Technologies, Inc., headquartered in Tucson, AZ, supplies avionics products to the aviation industry including batteries, battery chargers and inverters. Securaplane manufactured the chargers for the Dreamliner lithium ion batteries; on January 20, 2013 the National Transportation Safety Board (NTSB) stated that those chargers did not cause battery overcharging.

GS Yuasa Lithium Power, formed in 2006 and located in Roswell, GA, is the manufacturer of the Boeing 787 Dreamliner Li-ion batteries. The company’s LVP10 and LVP65 Li-ion cells are used in the aircraft.

The Patents

We conducted searches for potentially relevant US and international patents of these companies. Some of the representative inventions that support the Li-ion technology under investigation are summarized below.


Thales is listed on more than 11,000 patents or applications worldwide according to Espacenet. One of those specifically relates to Li-ion battery technology. WO2005031943, “Module load transfer between two dipoles,” issued in April 2005, and provides a system for the “equilibration of dipoles in a battery of rechargeable cells, particularly lithium ion or supercapacitance type cells.” A related US patent “System for equilibrating an energy storage device”  (US7,755,325) issued in July 2010. Inventor Christophe Taurand notes that:

"The number of [electrical storage] elements depends on the application aimed at: typically 24 volts in the industrial sector, 28 volts in the aeronautical sector and 42 volts in the automotive sector. If we take cells of lithium-ion type (4 volts for a charged cell) and an aeronautical application, an energy storage device thus typically comprises 7 elements. A charger, comprising a power converter supplied by the main network and whose output is regulated in voltage and in current, makes it possible to charge the cells which are connected in series. … Lithium-ion … cells are very sensitive to overvoltages, thereby requiring monitoring of the voltage at the terminals of each cell. … if a cell recharges more quickly than the others, it will overcharge (voltage greater than 4 volts for a lithium cell)."

His invention provides,

" equilibrating system … to maintain an identical voltage on all the storage elements. The basic principle of equilibration consists in the monitoring by the [battery monitoring unit] of all the voltage differences between the series elements of the storage device, so as to trigger the equilibrating system as soon as at least one of these voltage differences exceeds a certain critical value."


Four US patents have been issued since 1998 to Securaplane, three of which are relevant here.

US8,38736, “Power system having a local sense control dominant over a remote sense control to avoid effects of interconnection failure modes,” is “generally directed to electrical power systems, and, more particularly, to a power system configured with a local sense control dominant over a remote sense control to avoid effects of one or more failure modes that can occur in interconnecting lines of the system.”

US8,057,931, “Battery busing scheme,” provides for interconnecting (busing) the cells of multi-cell batteries:

The busing concept described herein utilizes components that enable one to reduce the assembled height of the packaging of the battery pack as compared to prior art. The concept reduces the need for large gauge inter-connect cabling by incorporating bus clamps for the main power inter-connects. Internal monitoring circuitry can also be incorporated into a printed circuit board which is part of the bus assembly. Utilizing all of the components of the concepts described herein will allow a minimal envelope for the battery pack into its enclosure.

US5,780,994, “Detection of inflection point in secondary-battery charging process by matching voltage response to first derivative of battery’s characteristic curve,” “pertains in general to the field of battery chargers. In particular, the invention consists of a novel approach for detecting the voltage-response inflection point during the process of constant-current charging of secondary batteries.”

GS Yuasa

GS Yuasa has received 74 US patents thus far. Fourteen of these are directly related to lithium-ion battery technology, of these three reference the lithium cobalt oxide formulation of the Dreamliner batteries.

US7,393,476, “Positive electrode active material for lithium secondary cell and lithium secondary cell,” provides a composite lithium-manganese-nickel-cobalt oxide cathode which reduces the amount of scarce and expensive cobalt needed, yet reduces abrupt decreases in battery discharge capacity following repeated charge/discharge cycles that can result from using that composite.

US7,691,535, “Active substance of positive electrode and non-aqueous electrolyte battery containing the same,” addresses the crystalline structure of the oxide composite, and according to the inventors, “retains the high thermal stability characteristic of lithium-manganese oxides having a spinel structure, has a high energy density and excellent high-rate discharge performance, is inhibited from suffering self-discharge, and has excellent storage performance.”

US7,964,305, “Non-aqueous electrolyte battery wherein a battery case and a terminal are connected through resistance,” relates to the structure of a lithium cobalt oxide metallic battery case.

The Wrong Battery?

Research firm Lux Research has suggested that a safer alternative to lithium cobalt oxide (LCO) batteries might have been chosen. They point out that LCO batteries do not resist overheating very well. They suggest that lithium iron phosphate (LFP) batteries are a safer alternative, being resistant to thermal runaway and oxygen generation in response to overcharging.

Many US patents related to lithium cobalt oxide batteries or cells (i.e., mentioned in the title, abstract, or claims) have been granted from 1972 through 2013. The earliest and latest in each category are listed below.

Title (9 grants)

US 6,521,379 Non-aqueous electrolyte secondary cell with a lithium cobalt oxide positive electrode, 2003, Sanyo Electric Co., Ltd.

US 8,354,191 Layered lithium nickel manganese cobalt composite oxide powder for material of positive electrode of lithium secondary battery, process for producing the same, positive electrode of lithium secondary battery therefrom, and lithium secondary battery, 2013, Mitsubishi Chemical Corporation

Abstract (144 grants)

US 4,555,457 Battery cell containing potassium monoperoxysulfate in the cathode mix, 1985, ACR Electronics Inc.

US 8,354,191 Layered lithium nickel manganese cobalt composite oxide powder for material of positive electrode of lithium secondary battery, process for producing the same, positive electrode of lithium secondary battery therefrom, and lithium secondary battery, 2013, Mitsubishi Chemical Corporation

Claims (811 claims)

US 3,647,542 Sold-fluid battery, 1972, McDonnell Douglass Corporation

US 8,354,192 Electrode active material, electrode, and nonaqueous electrolyte secondary battery, 2013, Sumitomo Chemical Company, Limited

Here are the citations for patents for lithium iron phosphate batteries, granted from 1974 through 2013.

Title (1 grant)

US 6,835,500 Hydrated iron phosphate electrode materials for rechargeable lithium battery cell systems, 2004, Rutgers University

Abstract (45 grants)

US 4,452,873 Positive electrode for galvanic high-temperature cells and method of its manufacture, 1984, Varta Batterie Aktiengesellschaft

US 8,137,841 Cathode compositions for lithium-ion electrochemical cells, 2012, 3M Innovative Properties Company

Claims (133 grants)

US 3,847,671 Hydraulically-refuelable metal-gas depolarized battery system, 1974, Electromedia Inc.

US 8,343,661 Cathode compositions comprising Zn and chalcogenide and energy storage cell comprising same, 2013, General Electric Company

The Bottom Line

The investigations now underway by the FAA, NTSB, Boeing, the Japanese government, Thales, Securaplane, GS Yuasa and others will ultimately determine root causes of the 787 Dreamliner Li-ion battery problems, which will lead to corrections and guidelines for the future application of lithium battery technology in the aviation industry. It is not clear exactly which patents the companies involved have licensed to support the design and manufacture of the electrical systems in question. Knowledge of the licensing agreements and the specific underlying patents might be an important component for the root cause analyses now underway.

To paraphrase a line from the movie ‘Cool Hand Luke’, what we have here is … an excellent example of unintended consequences of using technology in a way that pushes the envelope of past engineering practice.

Thursday, January 24, 2013

Freight Train - Clean Tech

Union Pacific M–10000 (left) and Burlington Pioneer Zephyr. America’s first two diesel-powered streamliners pose side-by-side at Kansas City’s Union Station. Source:

Freight Train

“Blow Your Whistle Freight Train” was an early classic of American country and bluegrass music, performed by groups as wide ranging as The Delmore Brothers, Hank Snow, Clarence White, The Grateful Dead, Doc Watson, Nitty Gritty Dirt Band, and by front porch and shade tree pickers such as my Uncle John and myself.
I’d rather be in some dark hollow
Where the sun don’t ever shine
Than to be home alone and knowing that you’re gone
Would cause me to lose my mind.
So blow your whistle freight train
Take me far on down the track
I’m goin’ away I’m leavin’ today
I’m goin‘, but I ain’t comin’ back.
And then there was Elizabeth Cotten’s “Freight Train”, also performed by a wide range of musicians including Peter, Paul, and Mary, Joan Baez, Jerry Garcia and David Grisman, and your correspondent and his uncle:
Freight train freight train goin’ so fast
Freight train freight train goin’ so fast
Please don’t tell what train I’m on
So they won’t know where I’ve gone.
One of the first songs I learned to play.

So what does this have to do with clean tech?

Railroads have been a major force in American westward expansion, economic development, transportation, and culture for close to 200 years. They continue to move massive quantities of freight, but far fewer passengers. They provide a highly fuel efficient means of land transportation, and offer opportunities for innovation to produce more efficiencies. Hence, the connection.

Union Pacific Railroad

Union Pacific (NYSE: UNP), headquartered in Omaha, Nebraska, is the largest rail network in the US. Founded on July 1, 1862 with the signing of the Pacific Railroad Act by President Abraham Lincoln, the company was directed, along with the Central Pacific, to construct a transcontinental railroad. Seven years later the ‘Golden Spike’ was driven at Promontory, Utah, completing the cross-country line and inaugurating its use. Today the railroad has a fleet of more than 8,000 locomotives, travels in 23 states from Tennessee to the West Coast and the Canadian to Mexican borders on more than 32,000 miles of track, and employees 45,000. According to the company’s 2011 Fact Book, the railroad moved 978,163 gross ton-miles of freight, using 1,106 million gallons of fuel, had an average train speed of 25.6 mph, and an average inventory of 272,900 rail cars. UP’s freight revenue was obtained from energy (2%), intermodal (20%), agricultural (18%), industrial products (17%), chemicals (15%), and autos (8%).


Shipping containers and over-the-road trailers are often shipped long distances via rail, mixing different modes of freight transportation, hence, ‘intermodal’.

Rail transportation of freight is three times more fuel efficient than moving the same freight on the highway. A ton of freight can be moved 450 miles on one gallon of fuel (e.g., diesel) via rail. Even though this is a very fuel efficient mode of land transport, railroads are constantly working to improve their fuel efficiency. One of the ways this is being carried out is through improvements to railroad locomotives. For example, see our posts here and here on a new fuel cell locomotive. The latter post contains a photo taken at the Golden Spike National Historic Site.

Another approach to increased fuel efficiency is modifications to the rolling stock.

Remember Aerodynamic Locomotives? Intermodal Container Cars Join Them

Does anyone remember the aerodynamic train engines of days gone by, particularly those from the 30s–50s?

Inventor Michael Iden was awarded patent US 8,215,239, ‘Aerodynamic pseudocontainer for reducing drag associated with stacked intermodal containers’, on July 10, 2012 from the USPTO Green Tech Pilot Program. Union Pacific benefitted from the accelerated examination offered by the program, receiving the patent slightly more than 18 months after initial filing.

Iden’s abstract provides a succinct, understandable summary of his invention:
Disclosed is an aerodynamic pseudocontainer for a train. The pseudocontainer is configured to be stacked atop an intermodal container in a lead container car at a lead end of the train, so that its aerodynamic configuration reduces drag when the train is in motion, thereby reducing fuel costs and emissions. The pseudocontainer may have connectors on its bottom so that when it is placed on top of the intermodal container, locking devices may be used for attachment.
This is illustrated by one of the patent drawings, and the photo showing the testing of Union Pacific’s ‘aerowedge’ prototype in August 2012.

A Historical Connection

The earliest patent citation on Iden’s ‘239 patent is US2,253,209 granted to John W. Patton on August 19, 1941 and assigned to the Edward G. Budd Manufacturing Company of Philadelphia. Patton recognized that “it is desirable to provide a rounded end on the last car of the train.” This led to a railroad efficiency problem (i.e., an unintended consequence of innovation) because it meant that the last train car was a very different configuration than the others in the train, resulting in the need “to turn the train around at each of its terminals in order to prepare it for its return run.” This was found to be impractical, and Patton developed his solution:
One object of the present invention is to solve this problem by providing a streamlined casing for removable attachment to the tractor unit of the train, so that the tractor unit may be connected to the rounded end of a car and still preserve the streamlined appearance of the train.
His removable streamlining attachment, showing in an accompanying drawing, is a direct antecedent of Union Pacific’s new “Aerowedge” attachment for intermodal freight cars.


Wednesday, January 23, 2013

The Patentista on the New Innovator's Dilemma

The Patentista decided we needed a coffee and the usual home/office brew wasn't going to work so a walk to the nearest espresso emporium was in order.  The Patentista likes being around the freelancing denizens of the Laptopistan viewing them as figuring out the next big thing.  Folks with the next big thing usually need someone who knows a bit about intellectual property at some point.  A good thing for the Patentista.  After getting settled in among the throng of connected folks, the Patentista related a recent conversation had with a leading computer scientist and some technology transfer types on the new innovator's dilemma.

The computer scientist was worried.  It seems that many of his most talented students and protégés were not executing on their innovations or their talent.  It seems that several forces are at foot.  First there is the matter of student loans.  The young and naive and their aspirational parents felt it was worth going out on a limb financially to make sure that their kids could go to school.  As the loans were mounting, no one realized that every $4.35 latte paid for with student loan money was going to have to be paid back from future dollars with lots of interest on top.  The parents and the students never sat down and figured out what the monthly payment was going to be when the budding computer scientists graduated and went into the workforce.  These loans cost serious money on top of housing, food, healthcare (even on the parents plans), and living expenses.  When faced with the after graduation choice of joining a starving entrepreneurial venture where there risk and rewards for success were high along with the potential that the whole thing would implode and the payroll checks might stop versus a more stable corporate gig, only those students with financial resources could take a risk on the risky venture.  (The Patentista pointed out that not all start-ups have venture capital money behind them from Kleiner Perkins Caufield & Byers.)  So the potential innovators were buried somewhere.  While there was the potential that they would use their skills in corporate America, the odds of a truly disruptive invention coming from that locale was slim.  A least not anytime soon.

Then their is the university spin-out entrepreneurial adventure.  Few of the innovations created by leading graduate level engineering and medical program were making it to the commercialization phase.  The program, designed to have engineers and doctors spend a year in each other's shoes figuring out technical ways to solve pressing medical problems and how to instill medical approaches to engineering had a serious entrepreneurial element.  Identify a compelling project.  Write up the business plans.  Do the research to see if the invention is patentable, figure out all the FDA and other regulatory issues that would impact commercialization, figure out how to make it and support it.  The folks at the university also found this troubling.  But what was up here?

It turned out that the program was expensive.  Even with a scholarship, most of the participants were already in their mid-20s by the time they started and finished the year long adventure.  At the end of the program there was tremendous pressure from parents and the looming student loans to "get a real job."  Because the program didn't have a path that included helping the participants actually get their business up and running or provide funding for salaries post-completion (the participants had graduate stipends while they were in the program) as the program came close to an end, everyone was job hunting.  The Patentista rued the lost potential of those innovations which might just sit in some university repository but never get taken out for a real trial run to see if they were viable.  Again a situation where economic pressures and fear of the marketplace was hindering innovation.  While the university could license the technology, it wasn't the same as having the minds who created the technology finish the job.

The conversation moved on.  Instead of the people working in Laptopistan, what about the folks behind the espresso machine?  The Patentista asked a simple question, "how many of these baristas have more than one job?"  The answer was pretty easy - most of them.  The digital videographer and technologist with great ideas is working on her new technology/videography projects as a stinger for a leading newspaper.  They kind of get her work but are more interested in her superior editing and content skills.  She gets a small fee, the use of their equipment, and the ability to create her own YouTube channel to showcase her work. (They are generous with the shared copyright.) After that almost 30 hour gig, she does another 20 hours foaming milk and making coffee drinks because, well, she needs the insurance.  So after two jobs and 50 hours a week or more of work, there is little time for developing her own work or saving enough money to start her own firm.  Same with the firmware designer-barista who has figured out a new way to stop hackers, or the anime artist with ideas about new ways to use avatars in commercial advertising.

Not everyone can pick up and move to Silicon Valley.  People have to pay their bills and fix their cars, and pay their student loans.  And the universities are not much help.  They aren't setting expectations on the economics of getting a new millennium college degree or the impact of staying in college for six years instead of four.  And these are the kids getting the science and technology degrees.  What about the art majors?

The same is true for technology programs away from major hubs where economic development gurus ask the question, "how can we get these kids to stay here and develop their ideas?"  Same story - even though there is an ample supply of old brick buildings with lots of high speed internet and other resources, the young scientists and technologists have to go where the jobs are.  The Patentista fears that the best minds might be doing identify management in the server room of some big company.

The Patentista and the computer scientist are chagrined.  How can we nurture the next generation of innovators if everyone is making coffee, working two jobs, worried about their student loans and getting healthcare once they turn 27, and getting heat from their parents to get a "real job." (A real concern for patents in these challenging economic times.)  What we need is for the ideas to fly, for these people to do their own thing, to innovate.  After all, a social media search engine optimization wasn't even a job 10 years ago.  (And, the Patentista, always the realist, noted that these are the future clients.)  These people are in their prime - now is the time.

So there it is.  The new innovators dilemma.  How to we free them up so that they can innovate?  It's going to take a lot more coffee to figure that one out.

Saturday, January 19, 2013

More Disruption in the Green Tech Marketplace

There is more turmoil in the green technology marketplace.

In October, Shai Agassi left his post as CEO of Better Place, GmbH, the firm announced another change. Evan Thornley, who replaced Agassi as CEO.  Thornley previously served as Chief Executive of Better Place Australia, is now himself out of that position after only three months. .

Better Place is an electric vehicle infrastructure company focused on providing a rapid battery replacement system to support wider adoption of electric vehicles (EV).  Better Place's patented inventions seek make the installation and management of EV batteries easier to eliminate long charging times and support longer driving distances through a network of battery swapping locations.  Better Place's rapid battery swapping approach may have the potential to overcome some of the issues impacting the expansion of the market for electric vehicles.  The battery swapping approach might make electric vehicles more acceptable for taxi and livery uses as well.

Better Place is one of the Young Guns firms that received patents under the USPTO Green Tech Pilot Program. Young Guns are new and emerging entrepreneurial firms that bring new business models, new products, and new ideas to market. On the innovation, invention, and intellectual property front, Young Guns are the firms to watch because these are likely to be the engines of new economic growth and new markets.

Israel’s Globes reports that differences regarding the company’s future, “especially over plans to reduce activity in global markets and focus on its core markets of Israel and Denmark” between Thornley and company Chairman Idan Ofer were behind the departure. Better Place reportedly has $490 million in losses since it was founded in 2007. The firm has already laid off 140 people with another 150-200 person layoff in the works.

The worldwide cleantech industry as a whole has been undergoing significant growing pains over the past several years, between numerous high profile bankruptcies or significantly depressed sale of the business and/or its assets:

Solyndra  (Solar - Bankruptcy and liquidation)
A123 Systems (Batteries - Bankruptcy and pending sale to a Chinese company)
Twin Creeks Technologies, Inc. (Solar - Bargain basement sale of assets to GT Advanced Technologies)
Sunpower (Solar- Reorganization and downsizing)
International Battery (Batteries - abruptly closed operations in March 2012 citing an inability to turn a profit)

Sales of emerging green tech companies and their intellectual property assets to foreign interest has raised  national security questions like the sales of A123 Systems (sale pending to the Chinese) and MiaSole (sale of the thin film solar products company to the Chinese).  This list only scratches the surface of the changes taking place in the nascent clean tech marketplace.

Some prognosticators view this as the pending demise of clean technology business.  Others view it as part of the inherent nature of capitalism according to the principles of “creative destruction” put forward by economist and political scientist  Joseph Schumpeter's discussion  in his book, "Capitalism, Socialism and Democracy",

"Capitalism, then, is by nature a form or method of economic change and not only never is but never can be stationary. And this evolutionary character of the capitalist process is not merely due to the fact that economic life goes on in a social and natural environment which changes and by its change alters the data of economic action; this fact is important and these changes (wars, revolutions and so on) often condition industrial change, but they are not its prime movers. … The fundamental impulse that sets and keeps the capitalist engine in motion comes from the new consumers’ goods, the new methods of production or transportation, the new markets, the new forms of industrial organization that capitalist enterprise creates. … The opening up of new markets, foreign or domestic, and the organizational development from the craft shop and factory to such concerns as U. S. Steel illustrate the same process of industrial mutation — if I may use that biological term — that incessantly revolutionizes the economic structure from within, incessantly destroying the old one, incessantly creating a new one. This process of Creative Destruction is the essential fact about capitalism. It is what capitalism consists in and what every capitalist concern has got to live in."
From: Joseph A. Schumpeter, Capitalism, Socialism, and Democracy; Chapter VII, The Process of Creative Destruction. New York: Harper and Brothers, third edition, 1950

Time will tell.

Friday, January 18, 2013

Gas From Coal - KBR Edition

 Left: KBR TRIG gasifier schematic. Right: TRIG gasifier demo unit, Wilsonville, AL. Source:

A recent post was about a patent issued to Bechtel for refueling natural gas combined cycle power plants with syngas derived from coal, and how it may be caught between market forces and a regulatory environment that could limit, if not preclude, its commercialization. This time, we’ll look at an invention from another international engineering, procurement, and construction company that pertains to syngas production.


KBR  (NYSE:KBR), headquartered in Houston, TX, employs about 27,000 people worldwide in its various activities. The company, in addition to being a major defense contractor, is a major player in the energy, hydrocarbon, minerals, civil infrastructure, power and industrial markets. Started in 1901, the company claims milestones such as constructing the world’s first catalytic cracking facility in 1942 and creating a new ammonia process for fertilizer production in the 1960s, which had direct implications for improved global food and crop yields.

KBR’s intellectual property portfolio includes 170 issued US patents and applications (assigned to Kellogg Brown & Root). One of its more recent patents is US 7,955,403, issued under USPTO’s Green Technology Pilot Program.  The '403 patent is the subject of today's post.

The Invention

The ‘403 patent, ‘Systems and methods for producing substitute natural gas’, was invented by Siva Ariyapadi and Philip Shires and issued on June 7, 2011. The application was filed in May 2009, and assuming a 2–3 year lead time for R&D of the invention prior to filing, the genesis of this invention was probably in the 2005–2006 time frame - about the time that Bechtel was probably researching its refueling patent. See the Bechtel post for additional information on the natural gas market production and prices around that time and in the years since.

The inventors developed improvements to KBR’s synthetic natural gas system to provide coal gasification of low grade coal in a manner that reduces auxiliary power and process water requirements. Ariypadi and Shires teach that

[c]lean coal technology using gasification is a promising alternative to meet the global energy demand. Most existing coal gasification processes perform best on high rank (bituminous) coals and petroleum refinery waste products but are inefficient, less reliable and expensive to operate when processing low grade coal. These low grade coal reserves including low rank and high ash coal remain underutilized as energy sources despite being available in abundance. Coal gasification coupled with methanation and carbon dioxide management offers an environmentally sound energy source. Synthetic or substitute natural gas (“SNG”) can provide a reliable supply of fuel. SNG, with the right equipment, can be produced proximate to a coal source. SNG can be transported from a production location into an already existing natural gas pipeline infrastructure, which makes the production of SNG economical in areas where it would otherwise be too expensive to mine and transport low grade coal. Alternatively, in developing countries, the production and supply of clean efficient SNG to densely populated cities instead of the transport and use of low grade coal as an energy source in a multitude of inefficient and polluting facilities within the cities provides the means to effectively mitigate pollutants and carbon capture.

Their claim 1 states:

A method for producing synthetic natural gas, comprising:

gasifying a carbonaceous feedstock within a gasifier to provide a raw syngas;
cooling the raw syngas to provide a cooled raw syngas;
processing the cooled raw syngas within a purification system to provide treated syngas, wherein the purification system comprises a flash gas separator in fluid communication with the gasifier and a saturator;
converting the treated syngas to synthetic natural gas to provide steam, a methanation condensate, and a synthetic natural gas;
and introducing the methanation condensate to the flash gas separator.

The Technology and Its Use

The improvements memorialized in the ‘403 patent are a component of KBR’s TRIG™(Transport Integrated Gasification) technology which allows the gasification of inexpensive, low grade feedstock such as lignite, sub-bituminous, and high ash coal. KBR and Southern Company successfully demonstrated the system at USDOE’s Power Systems Development Facility in Wilsonville, Alabama. The companies are commercially deploying the TRIG system around the world. Major projects include two in China that will provide a retrofit to an integrated gasification combined cycle plant and a coal to chemicals facility, and an IGCC unit being installed for Mississippi Power in Kemper County, MS.

This technology, by allowing the efficient use of lower quality coal resources in a manner that reduces process energy requirements and water use, is an excellent example of truly clean technology.

Other examples may be found in other articles here on The Inkling, and in Way Better Patents’ USPTO Green Tech Pilot Program Discovery and Analysis Report.

Saturday, January 12, 2013

Another US Solar Firm Sold To The Chinese

Another Young Gun that benefitted from the USPTO Green Technology Pilot Program's accelerated examination program has been sold to a Chinese company.

On January 10th, 2013 MiaSole, founded in 2003,  announced that Hanergy Holding Company of China has acquired the company and its technology for a fraction of the funds  the start-up received from its investors.  Investors put $550 million into the firm.  Hangery is paying about $30

MiaSole's received  patents  US 7897020 , US 7829783 and US7960643 under the green tech program.  MiaSole's thin film products, called CIGS technology, use copper, indium, gallium and selenide.  This technology is lighter than traditional silicon based products and can be layered between sheets of glass that can be used as tinted windows on a building or integrated into flexible material for use on rooftops.

What Solar Tech Do The Chinese Get This Time?

Here's a partial list of the intellectual property that the Chinese get this time.  It doesn't include trade secrets or pending patent applications.  This is a significant portfolio of thin film solar technology and methods for making those products.

PAT. NO.Title
18,342,229Method of making a CIG target by die casting
28,338,214Sodium salt containing CIG targets, methods of making and methods of use thereof
38,329,496Dithered scanned laser beam for scribing solar cell structures
48,227,287Partially transmitted imaged laser beam for scribing solar cell structures
58,203,200Diode leadframe for solar module assembly
68,134,069Method and apparatus for controllable sodium delivery for thin film photovoltaic materials
78,123,565External electrical connectors for solar modules
88,115,095Protective layer for large-scale production of thin-film solar cells
98,110,738Protective layer for large-scale production of thin-film solar cells
108,076,174Method of forming a sputtering target
118,062,384Systems, methods and apparatuses for magnetic processing of solar modules
128,058,752 Thin-film photovoltaic power element with integrated low-profile high-efficiency DC-DC converter
13 8,048,707 Sulfur salt containing CIG targets, methods of making and methods of use thereof
148,048,706 Ablative scribing of solar cell structures
15 8,017,976Barrier for doped molybdenum targets
168,004,232Method of battery charging and power control in conjunction with maximum power point tracking
177,963,802External electrical connectors for solar modules
187,960,643Isolated metallic flexible back sheet for solar module encapsulation
197,935,558Sodium salt containing CIG targets, methods of making and methods of use thereof
20 7,927,912Method of forming a sputtering target
217,897,020 Method for alkali doping of thin film photovoltaic materials
22 7,838,763Manufacturing apparatus and method for large-scale production of thin-film solar cells
237,829,783 Isolated metallic flexible back sheet for solar module encapsulation
247,785,921 Barrier for doped molybdenum targets
257,544,884Manufacturing method for large-scale production of thin-film solar cells
26 6,974,976 Thin-film solar cells

Saturday, January 5, 2013

What Is USPTO Up To? - The Software Partnership

In February the US Patent and Trademark Office is holding Software Partnership meetings; one in Silicon Valley on February 12th and one in New York City on February 27th, 2013.  According to the Federal Register announcement, "The Software Partnership will be an opportunity to bring stakeholders together through a series of roundtable discussions to share ideas, feedback, experiences, and insights on software-related patents."

(Gut reaction - this is going to be a free for all.  The software patent haters and the patent system is broken crowd will be in a frenzy.)

The meetings are being presented as "roundtable events" that will provide a forum for an informal and interactive discussion of topics related to patents that are particularly relevant to the software community.

(Interactive?  Let's hope that stakeholders aren't, well, holding any stakes.)

USPTO seeks to improve the quality of software related patents that use functional language seeking comments on, "How to improve the claim boundaries that define the scope of patent protection for claims that use functional language."

The vertigo-inducing Federal Register announcement went further inviting attendees to make oral presentations on the advantages and disadvantages of applicants employing the following practices when preparing patent applications as they relate to software claims.

1) "Expressly identifying clauses within particular claim limitations for which the inventor intends to invoke 35 U.S.C. 112(f) and pointing out where  in the specification corresponding structures, materials, or acts are disclosed that are linked to the identified 35 U.S.C. 112(f) claim limitations; and

2) Using textual and graphical notation systems known in the art to disclose algorithms in support of computer-implemented claim limitations such as C-like pseudo-code or XML-like schemas for textual notation and Unified Modeling Language (UML) for graphical notations.

Ok, so the first one is generally linking the claims to the spec so that you can't have a claim for a "a method to buy stuff over the internet" without having language in the description that explains exactly what the invention does.  Legalese aside, this seems to be a way to rein in the patent argot language stylists who have very large vocabularies and know all the overly broad words in the English language or make up new ones when needed to make the boundaries on what exactly the invention IS fuzzy.  The tighter mapping, which seems to have disappeared for under a cloud of patent argot both software patents and its, cousin the business method patent, might help both the examiners and the rest of us trying to figure out what inventions ARE.

(The Zipcar folks were talking about their sophisticated computer implemented "personal mobility" proprietary business models earlier today when announcing Zipcar's merger with Avis. - Note to patent prosecution language architects - renting a car (or maybe a bike share) is now a personal mobility business method when it uses a sophisticated computer implemented method - the reservation system.  "A computer assisted method of using the Avis cars that sit unrented on the weekend to fill the personal mobility access requests from personal mobility orderers when there is higher than normal requests for personal mobility on Saturdays")

But Wait!!

The use of "textual and graphic notation systems" to disclose computer implemented claim limitations.  

Before you click off to read something less mind numbing, consider the following.  Maybe USPTO is going to try to manage the growth of software patents and the patent generating digital invention shops who patent ideas and not things simply by making the patent applications for these inventions much harder or, in some cases, absolutely impossible to file.

(Perhaps this is David Kappos parting gift.)

First, what is a textual and graphical notation system?  One ordinarily skilled in the art  will know, but for everyone else a quick tutorial.

According to the good folks at Wikipedia, "C-like pseudo code is generally an informal high-level description of the operating principle of a computer program or other algorithm. It uses the structural conventions of a programming language, but is intended for human reading rather than machine reading. Pseudocode typically omits details that are not essential for human understanding of the algorithm, such as variable declarations, system-specific code and some subroutines. The programming language is augmented with natural language description details, where convenient, or with compact mathematical notation. The purpose of using pseudocode is that it is easier for people to understand than conventional programming language code, and that it is an efficient and environment-independent description of the key principles of an algorithm. It is commonly used ... in planning of computer program development, for sketching out the structure of the program before the actual coding takes place."

(Emphasis added)

Usually pseudo-code acts as the glue between the business people who are defining requirements and the programmers who need to understand all the rules and processes before turning the requirements into software magic.  (If you would like to see some samples, just search for pseudo-code in your favorite search engine.)

XML and Unified Modeling Languages are more high level versions of the same.  Tags and text.  Human readable representations of the processes.

If USPTO adopts this type of annotation, the inventor would need to write out in pseudo computer lingo or XML or UML exactly what the invention is doing, what the inventor is claiming. If you are a serious developer of digital business methods or digital software inventions, you have to do this anyway as you seek to reduce the invention to practice.  Real software needs to be built just like any other invention.

(The folks at the Electronic Frontier Foundation  and Mark Cuban must be doing their Uber Happy Dance on this one.)

This raises some very interesting possibilities.  Consider some of these.

The Return of the Trade Secret Regime -- Serious players are unlikely to not want to "teach" the honorable competition exactly how they programmed your giant automated package sorting-bar code reading extravaganza that lets you unload a lot of planes, sort all the packages using cool lasers and 3D barcodes, and then get all the packages back on the right plane or truck or bicycle to get them to the customer by the next day invention or their single action ordering system invention.  So back to trade secrets and copyright protection we go. A lot of these players didn't want to do patents anyway but felt compelled to go down that path because their competition was.   Reverting to a trade secret approach protects their proprietary methods just like in the good old days.  It also has the added benefit of making it much harder for the guys in China to steal innovations and market share. (That is if they have a good cyber security regime but I digress.) Not bad.

There are likely to be lots of folks who will want to prevent publication of the pseudocode/XML/UML prior to granting the patent as well especially in light of how easy it would be to let someone clone the invention while the patent was being prosecuted.  But this is for the policy wonks to deal with.

The White Board Only Idea Factory Is Dead -- Organizations that sit around and invent things but don't actually build them let along commercialize them would have to get really deep into the weeds to build a compliant patent application, it will take more people more time, and more money.  It would also make getting software patents something not for the faint hearted.  The added requirement for using notation to document processes is not something you do over the weekend.  But in light of overly broad language and fuzzy definitions, it might be interesting.

Invention vs. Vocabulary -- Requiring a code-based roadmap between the claim and the spec so that you can determine what's really going on will in and of itself limit the scope of the software patent.

Consider the world of "in-situ advertising" (aka product placement) in things like video games.  While it may not totally eliminate writing stuff like this, it might help:

"A method for providing intelligent advertisement placement in a motion picture, comprising: retrieving personalized data associated with a viewer; comparing the personalized data with a plurality of attributes, each attribute associated with an advertisement image, to determine an attribute that is most consistent with the personalized data; retrieving an advertisement image associated with the attribute that is most consistent with the personalized data; and imposing the retrieved advertisement image on a sequence of image frames of a motion picture."  

Followed by some general, broad, fuzzy lingo in the spec like,

"In the multi-media object management system, the production of the Master Program that is used to create the Multi-Media Program typically results in the presence of a plurality of Objects within the Master Program. The multi-media object management system defines a plurality of Multi-Media Object Locations within the Master Program as components of the Multi-Media Program and creates Object Management Data that is used to control the population of these spatial and temporal Multi-Media Object Locations with Objects. These Multi-Media Object Locations can receive animation, audio, moving Objects, stationary Objects, and any other dynamic data. The Multi-Media Object Locations are an integral part of the Multi-Media Program, and their content can be manipulated by referencing a specified Multi-Media Object Location and populating that specified Multi-Media Object Location with a predetermined rendition from the Objects stored in the database. Thus, the image of a beverage can in a Multi-Media Program is populated by any of a number of specific brands of beverages by importing a predetermined representation of the desired brand of beverage into the pre-defined Multi-Media Object Location that is an integral part of the Multi-Media Program. The multi-media object management system enables dynamic product placement in the delivery of a program to a recipient." 
The inventor or team of inventors would need to explain how the multi-media objects are organized in the database, what the Master Program is and what it actually does, how the program determines which object to pull and under what circumstances, how the digital gizmo moves around the network before the soda ad hits your video game.  They would need to write a lot of complex pseudocode or use modeling language to explain how this invention works and what it does, a lot of "if/thens" will be required.  And a lot of time, and a lot of really thinking through how these inventions will operate in the real world.

(Not to worry it will take at least five years for the Patent Modeling Language Standards Coalition meetings to agree on a standard which will then be overtaken by…  technology.)

More Likely to Be Economically Important Technology Option -- This patent notation approach would make it more likely that an inventor willing to go through making this kind of disclosure has something novel and is more likely to commercialize a product or at least be moving in that direction.  Independent inventors and start-ups might benefit by being able to show potential investors or customers how their product will actually work even if the notation requirement is burdensome.  (Patent applications for small organizations are burdensome anyway.)  It would make it harder for the white board patent shops that get a patent and wait for someone else to commercialize the "idea" and stop by for a visit to collect their royalties.

The Running Away With The Circus Prevention Plan -- As if patent examiners don't have enough to do, they now will need to read lots and lots of code and fit that into the time allocated to each patent application for examination.  (We can assume that if you are examining software patents you should know how to read code.)  But it's unclear how this new requirement will operate in the real world.  Will this reduce pendency?  Will the examiners have less but better quality applications to plow through?

But code reading can be boring and dull especially if it's done badly.  In light of that, USPTO might need to make sure that none of the teleworking on in-house examiners have access to internet sites or publications seeking people who want to run away with the circus.  Depending on who you ask, some of the examiners are very experienced in life in the circus and might find the ability to travel the world as part of their job inviting.  A day of code reading might make hanging with the elephants and professional clowns a more compelling and fun career option.

The Programmer and Simultaneous Translator Careers - Now in addition to the gaggle of patent attorneys, claim constructors, drawing drafters, proof readers, and patent prosecution paperwork and fee coordinators, inventors wanting software patents would need to hire a programmer and simultaneous translator type who can both speak patent (generally the patent attorney variety rather than the more generic, "the patent system is broken" variety) and coding - pseudo-C, XML, or UML for the explaining the underlying invention.  In theory, these folks should already be at hand, if you are trying to patent a software invention you should have software people.  Finding someone talented enough (and patient enough) to do this ought to be interesting considering the sentiment frequently made clear in the "software patents suck" blog-o-sphere that the software people who are most likely to be able to create and use such textual and graphical notation systems, especially the open software types, HATE PATENTS.

Now things are getting interesting - this just might work.

USPTO has put forward a very interesting proposition - extremely difficult and complex to implement but interesting none the less.

If USPTO can avoid the Software Partnership meeting becoming a free for all for the patent hating crowd and if the serious patent people looking to rein in ridiculously broad software and business methods patents can stay focused on the implementation details of making such requirements a reality, this might just have legs.

Must See TV

The meeting, which is also being webcast, will probably a mind-numbing, Powerpoint rich, head-banger but as they say in the entertainment world, must see TV.

Thursday, January 3, 2013

The Patentista Drops By

A Chat With The Patentista

Every now and then The Patentista drops by.  The Patentista stops by when the coffee is hot and there is something significant happening.

The Patentista is a knowledgeable sort who knows a great deal about the patent having been involved in all sorts of patent litigation and enforcement actions, hunting for technology to build patent portfolios for some of the major patent shops , doing obscure patent analysis and building classification tools, developing new licenses, finding expert witnesses, prosecuting patents, and helping sell off portfolios of otherwise distressed but one time brilliant companies.

The Patentista likes to opine on matters from the unique vantage point of someone who has made a career in the intellectual property world and who sees both the big picture and the arcane.

Our last conversation took place after the Federal Trade Commission—Department of Justice Patent Assertion Entity Workshop on December 5th, 2013.  It was a far reaching chat on a cold day in Washington — Is the patent system broke (we don't think so), what about non-practicing entities (Thomas Edison was an NPE and no one vilified him), what is with this new classification (Cooperative Patent Classification) System (aren't there enough of these that no one uses or understands - IPC, USPC, ECLA, Derwent), and how patents need to change as we move to a highly digital world (entrepreneurs and investors don't fully get the impact of convergence and patent licensing).  Over the next month or so we thought we'd bring you the highlights of our chat and some of the follow-up we did looking into the issues we discussed.  We hope it's a though provoking series on the patentsphere.

The Patentista's IP World View

The Patentista's world view is that the current state of affairs in the patentsphere guarantees full employment for patent attorneys as long as asymmetry exists between people who understand patents and the rest of the regular joe entrepreneurs, investors, venture capitalists and makers of products that may or may not to be covered by someone else's patents.  This is why non-practicing entities are here to stay and why things are likely to get worse before they get better.  The Patentista was on fire.

A Patent Cultural Aside

The conversation started with a cultural aside.

On the crowd at the Federal Trade Commission workshop on Patent Assertion Entities, a special breed of non-practicing entity and the lack of meaningful news coverage -- Patent attorneys don't Tweet.  They barely use email and are among the last profession in the universe to adopt business casual dress thus explaining the high suits and ties to jeans and blue shirts ratio at the FTC meeting.  As a group of people supposedly steeped in the latest science and technology, the assembled gaggle of patents attorneys are fellows (they were mostly fellows) who operate in a closed society and are perfectly happy to stay that way.  Information disclosure isn't helpful to them.  Dysfunction in the patentsphere is.  It means you need them.

Asymmetric Information

Then we moved on to the gist of the conversation - the asymmetric (one-sided) world of the Non-practicing Entity (NPE).

The Patentista isn't a fan of NPEs finding it difficult when one can't counter sue to keep things even.  The NPE business model is one of the try asymmetric ones.

According to the Patentista, plain old non-practicing entities are not the problem, well not the big problem, the patent hoarders are. (The Patentista said patent trolls but it's too early in the new year for pejoratives.)  The Patentista has had plenty of situations where Big Company #1 calls up Big Company #2 and says, "hey, we think you're infringing our  patented widget and you need a license."  These conversations generally ended with an agreement for an elaborate cross-licensing agreement on the technology and a more important "we'll see you in the marketplace" agreement.  The encounter ends with the business equivalent of let's step outside and fight it out.  The guy with the best product wins.  The Patentista believes in patents but also believes that while monetizing is good and getting the money is better that the best way to see if an invention is worth anything is to fight it out for market share and revenue.  (Well, most of the time.)

The Patentista's point is that what we all need to be worried about is patent hoarders.

On Patent Hoarders

Patent hoarders are extreme NPEs who own lots of patents.  A plain old NPE  has a few patents that are focused on a particular technology, the plain old NPE can make their case, and usually has at least some decent analysis to back up their infringement claim(s), as in, "please sign the enclosed non-disclosure and we'll be happy to send your our nicely formatted analysis of our patents in light of the publicly available information about your products."  Plain old NPEs usually have teamed up with the independent inventor(s) who don't have the money to enforce their patents (or at least they try to make it look that way).

The Patentista still isn't a fan of NPEs but feels it is  generally a more gentlemanly (not gentlewomanly as noted above) affair even though there are some scrappy moments.  The Patentista can figure out what the NPE has, can explain it to a deer-in-the-headlights, freaked out client, and can usually get to something that seems reasonable (maybe to the patentista if not always for the client) and get the client back to business (after reasonable fees of course.)

"But patent hoarders, now they are a big problem."

The Patentista's view is that patent hoarders are just like those people on the Hoarders cable TV show.  The TV hoarders start collecting stuff, what starts out as good stuff morphs into stuff that really isn't useful, piling it up all over the place until eventually you can't get into the house.  You simply can't tell what's good from what's junk.  An intervention is required to clean everything up and return things to some semblance of normal.

The patent intervention is the same kind of behavior when regular patent holding organizations stop paying fees on stuff they don't think they will ever us, usually after an emotional discussion on the topic right before the latest round of fees are due with their General Counsel and Chief Finance Officer as in, "what are we doing with all this stuff".

Patent hoarders assemble all kinds of patents in a particular domain - blocks of patents for wireless, medical devices, "the web", mobile, etc.  Whatever suits their fancy.  Some of the patents may be "standards essential" but a lot are "padding."   Eventually they have these huge patent portfolios full of maybe some good stuff but a lot of junk, marginal patents, patents with hundreds of prior art references and lots of inventors, stuff.  There may be something valuable in there but with all the piles, who can tell.  There tends to be a bad signal to noise ratio in NPE patent portfolios.  The difference between the TV hoarders and the guy with the dumpster and patent hoarders is patent hoarders have printers and offices where they crank out cease and desist letters and file lawsuits.

According to the Patentista, the patent hoarders don't curate, they go for volume and volume is the problem.  Patent hoarders whether they are plain old patent assertion entities or patent aggregators, they operate on volume.  Oh, and their patent attorneys can't do the Big Company #1, Big Company #2 dance because the patent hoarder isn't interested in such a relationship.

The other problem?  Who can analyze 100 patents (or more than 1,000) with an average of 20 claims against a portfolio of products without it taking a lot of time and a lot of money.  It's even better when the hoard of patents are in a domain known for fluid, sales-y (read flakey) vocabulary that is used to describe important elements of the technology.  Does anyone have a one sentence definition of "cloud-computing" "software as a service" "mobile" or web-based anything? - The Patentista points out that mobile computing has been in police cars for quite a while but that the new kids in the space never look there.

And then there's the issue of  patents with overly broad claims. (The Patentista admits to writing quite a few over the years.)  Maximalist on enforcement, minimalist on content.
Patent hoarders benefit from the digital business models and the emerging knowledge-based economy that lives and breathes on the internet.  It's a great formula: -

Lots of patents because filing electronically makes it easier for the patent factory,
Lots of claims,
Lots of emerging products, marketing-esque semi-technical lingo where even the market participants sometimes need a definition or two to advance the conversation, and
Lots of free cash flow from investors.

 But most important -  high margin products.  (58% percent on the iPhone vs. 5 or 6% on a desktop computer? Who can't afford another $0.50 per device?)

The Patentista points out that there aren't many patent hoarders or NPEs that own the patents and operate in the pharma, biotech, or chemistry space.  The domains have a standard vocabulary where everyone speaks the same language and know what a molecule is making buffalo-ing the little guy harder and defending claims of invalidity easier.

The Patentista then went into a long explanation on all the reasons you want this stuff covered by attorney/client privilege and don't want to do it in-house.  (See the note above about patent attorney full employment.)  We'll save the details of that part of the conversation for another post.

Then came the stifling innovation and patent litigation moment.  

When you take a license from a patent hoarder you don't really know what you bought or if you are fully covered as in do you now have a license to all the patents you will need so you can get back to selling your products.  The patent hoarder will sell you a license to their portfolio but can't provide the licensee with any kind of guarantee that another patent hoarder isn't going to come along with their hoard of un-curated stuff and do exactly the same thing.   Generally the patent hoarder can tell you what they own, a lot of stuff, but they can't explain all their holdings in light of the rest of the patents out there.  And you can't figure out their holdings either.  And now you've exposed yourself as a potential sucker who will take a license and go quietly into the night so bring on the lawsuit as a measure of how serious the patent hoarder is and to slow things down to give you some time to figure out what you are going to do or at least make you look like a tough guy.

Patent hoarders just like every other patentista know that explaining a patent to a jury of regular joes is risky business.  It helps the negotiations if the jury selection phase is coming up soon.

Now The Patentista isn't taking a pro or con view on NPEs.  They are part of a robust patentsphere but they operate in new and different ways.  As the FTC-DOJ meeting proves, nothing is simple here.

The Bottom Line

So the bottom line is that NPEs and patent hoarders in particular are the beneficiaries of a very big knowledge gap and the information asymmetry that comes with it. (A view we share.)  They will continue to have an advantage and operate using their current methods until some game changing force levels the playing field.  The Patentista doesn't see such a change  on the horizon or arriving anytime soon.  Neither do we.