Business Methods Mash Up

Today we bring you the Business Methods Clean Tech Community Mashup.

A “System and method for building a green community” was patented in mid-January 2013. The business method invention was granted to Nancy Lynne Welsh (Raleigh, NC). Welsh’s invention, protected by US 8,355,995, is for

“a system and method for building a green community construction. The system and method may comprise preparing a site for green community construction, acquiring housing for the site, wherein the housing is acquired below assessed value, moving the housing to the site, and remodeling the housing at the site to form the green community.”

The key features in the patent’s claims are listed below.

1. A computer-implemented method for managing green housing community construction, wherein the method is executed by at least one programmed computer processor which communicates with at least one client via a network, the method comprising:
   • coordinating preparation of a site for green housing community construction
   • processing acquisition of existing housing for the site, wherein the existing housing is acquired below assessed value, and the existing housing is slated for demolition
   • scheduling transfer of the existing housing to the site
   • managing remodeling of the existing housing at the site to form the green housing community
2. receiving one or more permits for site construction
3. receiving funding for site construction
4. performing foundational work for the site
5. searching for housing based on at least one of location, value, type, size, and provider
6. performing at least one of assessments and inspections on the housing
7. determination of acceptable housing for the site
8. determining one or more move routes for transporting the housing from an original site to the site for green housing community construction [Editor’s note: how disruptive will moving enough houses from dispersed locations to create the ‘green community’ be?]
9. acquiring unwanted materials from the original site for reuse, wherein the unwanted materials comprise at least one of brick, asphalt, wood, shrubbery, and recyclable materials
10. remodeling is achieved in at least one of the following: foundational remodeling, exterior remodeling, interior remodeling, and community remodeling
11. using at least one of recyclable materials, energy-efficient materials, and green-building approved materials
12. A computer readable medium encoded with computer executable instructions to perform the acts of the method of claim 1. [Editor’s note: this claim and its phrasing help the inventor meet machine-or-transformation tests necessary for business methods patenting. This is software and the hard-drive it runs on.]
13. A computer-implemented system for green housing community construction … [Editor’s note: similar to claim 1 contents, but this covers the software, server, and client system; again, needed to qualify for business methods status.]
14. A method for transforming a plurality of houses initially situated in different locations and slated for demolition into a green housing development solely formed from the plurality of houses …
    • preparing a development site
    • defining a plurality of criteria for the houses, including the distance and route from a present location of the house to the development site, the maximum width and height of the house, and the cost of the house
    • searching for and identifying existing houses that are slated for demolition and that meet the plurality of criteria
    • effecting the transfer of ownership of the houses
    • transporting each of the houses from its present location to the development site
    • installing each of the houses on a foundation
    • remodeling using green construction methods
15. The method of claim 14, further comprising: hiring at least one disadvantaged person to perform the remodeling, wherein the disadvantaged person is a homeless person, an at risk youth, or a person with a criminal record; training the disadvantaged person to perform the remodeling; and providing a ongoing, customized work mentor program for the disadvantaged person.
16. criterion for cost is that the house is donated [refers to cost in claim 14]
17. installing computers and wireless access in the houses at the development site

The problem Welsh is trying to solve is discussed in the patent’s specification:

"Buildings have a profound effect on the environment. … Although green building in residential sectors is receiving increased attention due to environmental issues such as global warming, rising energy prices, and indoor air quality issues, there continues to be high number of residential tear-downs in or near larger cities across the United States with no environmentally viable replacement strategies currently available. In addition, costs associated with green building are often significantly higher than conventional construction. For example, green construction may be 5% to 20% more expensive than conventional construction. Furthermore, designs and plans for green construction do not typically include a comprehensive and integrated approach for using recycled housing, guidelines for using such materials, and strategies for continued neighborhood development. 

As a result, there are significant problems and shortcomings associated with current building techniques. Therefore, a system and method for constructing a green community using recycled housing, implementing custom guidelines for using such materials, and/or continuing neighborhood development would be highly desirable."

We’ve written about business methods, software patents, and clean tech applied to building construction and housing in past posts. Additional information on business methods patents may be found here.

Time will tell whether or not this approach to community construction has any commercial viability. Perhaps it is a modern-day version of the numerous utopian communities that were attempted in the 1800s?

But another question given how residential real estate works is whether this is novel and whether this is patentable.  We'll see.

Author Obfuscation in the Patentsphere

The Winter 2013 edition of Journal of Economic Perspectives features an article called , "Of Smart Phone Wars and Software Patents" written by Stuart Graham and Saurabh Vishnubhakat.

According to the abstract, "Principally, the article highlights how the US Patent Office acts responsibly when it engages constructively with principled criticisms and calls for reform as it has during the passage and now implementation of the landmark Leahy-Smith America Invents Act of 2011."

Fundamentally this is an articles designed to show that software patents aren't handled any differently at USPTO than other patents.  The authors select a group of patent classifications to define software patents and use the behavior of the patents in comparison with other non-software patents to illustrate that the USPTO outcomes are similar.

(We could make the argument that if we shifted the Classes included in the paper here and there, that the outcome might be different.  It is also curious that after the big build up to the new Cooperative Patent Classification (CPC) system by USPTO, that the authors didn't elect to use the new classifications in their article.  But we digress.)

But there is something very curious here.  Who are the authors?

The articles bibliographic information about the authors says,

"Stuart J. H. Graham is an Expert Advisor to the US Patent and Trademark Office.  He is an Assistant Professor, Scheller College of Busines, Georgia Institute of Technology, Atlanta, Georgia and is an attorney licensed in the State of New York.  Saurabh Vishnubhakat is an Expert Advisor at the US Patent and Trademark Office.  He is an Adjunct Professor at the Norther Virginia Community College, Alexandria, Virginia and is licensed in the State of Illinois."

Expert Advisors to the USPTO and academics.  Well, not quite.

Stuart Graham is the Chief Economist at USPTO.   Or as noted on the USPTO website, "The USPTO established the Office of the Chief Economist (OCE) in March 2010, with the appointment of Dr. Stuart Graham as its first Chief Economist.  The Chief Economist is responsible for advising the Under Secretary and the Administrator for External Affairs on the economic implications of policies and programs affecting the United States intellectual property system.  The Chief Economist initiates and oversees groundbreaking economic analysis in the field on the topics of intellectual property protection and enforcement, with the object of fulfilling the USPTO’s statutory obligation to provide the President (through the Secretary of Commerce) and the Administration with advice on intellectual property policy."  Dr. Graham has a considerable research agenda at USPTO and is the public fact of many of the Office's outreach efforts including encouraging colleagues in the patent research world to comment on issues like the impact of the lack of transparency on patent assignees and the real person of interest in patent litigation.

Mr. Vishnubhakat, another Expert Advisor at USPTO, works in the Office of the Chief Economist.  He works for Mr. Graham.  According to public, "Saurabh Vishnubhakat advises the USPTO's Chief Economist and senior management on a range of issues including genetic patenting, IP assignment, international trademark examination, and technology standards. ...As part of the USPTO's implementation team for the Leahy-Smith America Invents Act, Saurabh helps administer a number of regulatory reforms, studies, and reports to Congress."

Mr. Vishnubhakat was an active participant in USPTO's efforts to deal with the problems associated with hiding the real interests in patents and perhaps more importantly, patent litigation and the Roundtable on Proposed Requirements for Real-Party-in-Interest Information Throughout Application Pendency and Patent Term published in the Federal Register.  USPTO sought comments on means for collecting and dissemination information about who the real owner of the patent applications and patents  and how the USPTO what USPTO can do to collect more timely and accurate patent assignment information during patent prosecution and during it's term.  He was the conduit through which organizations submitted comments to USPTO.  (Here's an example.)

So what's going on here?  Mr. Graham and Mr. Vishnubhakat both work for USPTO.  Neither is simply an Expert Advisor doing some work at USPTO as a break from academia.  Both are active participants in research and analysis and are directly involved in policy strategy and formulation and the implementation of the new Leahy-Smith America Invents Act.  Why didn't the bios on the article reflect that?  Why did the editor of the Journal of Economic Perspectives not require a more accurate bio?

So the guys at USPTO who are working on seeking input on changing the rules of the game with respect to hiding the real-person-in-interest in patents are obfuscating their relationship with USPTO in academic articles.

Obfuscation must be contagious in the patentsphere.  A little transparency might be in order here.

(Oh - and the whole cotton gin, sewing machine, laser discussion gets a little hackneyed when you consider that the level of complexity in the patent system hadn't reached today's breathtaking complexity when these inventors were duking it out.  Just look at the size of the footnote needed to define the universe of software patents.)

Update - 4:47pm

This afternoon we reached out to the Editor of the Journal of Economic Perspectives (JEP) on their editorial policy with respect to the biographical information of their contributors.


Ms. Ann Norman Assistant Editor, JEP relayed the following, "Stuart Graham was Chief Economist at USPTO and now is an Expert Advisor. That status changed only at the last minute, apparently, at the last stages of preparing to send this paper for printing…

"So the authors did disclose their potential conflicts of interest to us, and it was/is an editorial decision as to whether these conflicts were significant enough to post online. We can, in-fact still post the full disclosure statements with the paper, though of course it is too late to mention in the paper itself that the online disclosure statement exists."

Ms. Norman graciously provided the full disclosures statements for both each author which confirm the status change.

We appreciate the timely response to our inquiry.  We still believe it is important to the readers of articles about patents that the affiliations of the authors are known.  We believe information transparency is an important element in fixing the perception that the patent system is broken.  We don't believe it's broke we believe that the system needs more transparency.

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.