Value Of A Patent System
Article I, Section 8, Clause 8 of the United States Constitution grants Congress the power “[t]o promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.” From this clause, Congress formed what is now known as the United States Patent and Trademark Office (USPTO). One function of the USPTO is to grant patents to inventors for their patentable inventions. A patent may provide a limited monopoly right to an inventor in exchange for public disclosure of the invention, a trade-off intended to promote innovation.
Despite this intent, a highly debated topic regarding patent systems is whether a patent system actually promotes innovation. An editorial published in The Economist entitled “Time to Fix Patents” states that a patent system does not promote innovation, but instead actually blocks innovation. A reply editorial published in Forbes entitled “Do Patents Really Promote Innovation? A Response to The Economist by Marshall Phelps suggests that patents are strongly correlated to increased innovation, knowledge sharing, and economic growth.
The Economist editorial submits that patents are supposed to spread knowledge, but fail “because patent-lawyers are masters of obfuscation.” For clarity, Merriam-Webster’s collegiate dictionary defines obfuscation as to make obscure, or to confuse. As a Patent Attorney, I can state that I have never intended to draft a patent application to obscure or confuse, but do acknowledge that I often write in an abstract manner. A patent may be enforceable for up to twenty years from the filing date of the application, and technology advancements can be significant during that period of time. To put twenty years into perspective, the first generation of the ubiquitous iPhone® device was released less than ten years ago on June 29, 2007, with the subsequent generations of the device including new and improved technologies. When a Patent Attorney drafts a patent application for an invention, the Patent Attorney must try to cover advances in technology from the first to later generations of that invention, a process often requiring an abstract form of language in patent applications.
To support its assertion that a patent system does not promote innovation, The Economist editorial stated “[a] decade-old study reckons that in 2005, without the temporary monopoly patents bestow, America might have saved three-quarters of its $210 billion bill for prescription drugs.” The editorial additionally stated “[a]n early study found that newcomers to the semiconductor business had to buy licenses from incumbents for as much as $200m.” With these statements as the basis for an argument the patent system is flawed, The Economist editorial provides recommendations to improve the patent system. Namely, The Economist editorial suggests including a “use it or lose it” rule where patents would expire if the invention is not brought to market, strengthening the requirement for non-obviousness, and reducing length of patents.
In his reply to the editorial published by The Economist, Phelps questions whether patents set innovation back. Phelps writes “[e]conomists have repeatedly demonstrated that inventors are driven primarily by the expectation of profiting from owning the rights to their inventions.” To support his assertion, Phelps references The Democratization of Invention: Patents and Copyrights in American Economic Development, in which author Zorina Khan observes that people are “stimulated by higher perceived returns or demand-side incentives to make long-term commitments to inventive activity.” Phelps additionally cites to R&D and the Patent Premium for additional support, which determined that Firms earned a 50% average premium when the innovation is patented, as compared to the no patenting case. This premium is noteworthy, potentially supporting the assertion by Phelps and Khan that inventors may be incentivized by higher returns with patented products. Conversely, authors of The Economist editorial may refer to this premium as unnecessary, wasteful, and actually contributing to the reduction of overall innovation.
Phelps additionally supports his assertion that patents promote knowledge-sharing and innovation by referencing Experimentation, Patents, and Innovation by Acemoglu, Bimpikis, and Ozdaglar. This article suggests that “patents may improve the allocation of resources by encouraging rapid experimentation and efficient ex-post transfer of knowledge across firms.” Phelps also points to a study by the Organization for Economic Co-operation and Development (OECD), which found “stronger levels of patent protection are positively and significantly associated with inflows of high-tech product [and] expenditures on R&D.” In his concluding remarks, Phelps recommends that a strong patent system is needed, but stops short of stating there is conclusive proof a patent system results in increased innovation.
After working with inventors for many years, I have found that inventors are primarily driven by the benefits provided by a strong patent system. The possibility of monetary gain appears to increase the likelihood that inventors will disclose their invention and take a product to market. Additionally, the limited monopoly of a patent provides small businesses and individual inventors (particularly those without manufacturing capability) a foundation upon which to work with manufacturers and retailers to effectively compete in a global economy.
Patent of the Day: Laser Optical Surveying Instrument and Method
On this day in 1971 Richard Jaenicke and Raymond Evanson were grated the patent for LASER OPTICAL SURVEYING INSTRUMENT AND METHOD. U.S. Patent No. 3,627,429.
This invention relates to optical surveying instruments and method and more particularly to the use of laser beams in surveying applications. This invention includes a laser surveying instrument with a telescope and a laser head coupled together with movable optics for directing the output beam from the laser head into the eyepiece and through the telescope after routine sighting.
This method proposed that a laser beam be used alongside or parallel with a standard surveying instrument to mark the sightline or the instrument between itself and the remote position to which it is aimed.
Surveying has been around since 1400 B.C., the Egyptians used it to evenly divide land into plots. In 120 B.C., the Greeks used surveying for land division. The Greeks were also responsible for the standardized practice of conducting surveys as well as creating the first piece of surveying equipment, a diopter.
In 1800 A.D., the industrial revolution began and surveying became very prominent as it was needed to give exact measurements for canals, railways, and roads. It was during this time period that the Science of Geodetic and Plane surveying were developed. Geodetic surveying takes into account the theoretical shape of the earth, it has a high rate of accurate but is typically used in larger areas with a square mileage over 300. Plane surveying is based on the assumption that the plane being measured is flat. This is the most common method used today and is mainly used for smaller areas, less than 300 square miles.
The technological advances of surveying have come a long way since 1400 B.C. Today's trends are leaning more towards optical systems, the increased use of computers and satellites.
Office Hours January 13 at The Startup Collaborative
Suiter Swantz IP will be holding office hours January 13th at The Startup Collaborative, located in the Exchange Building in downtown Omaha.
Matt Poulsen will be there from 1:30- 3:30 pm. Feel free to send Matt an email (map@suiter.com) if you’d like to reserve a time slot or have any questions. In addition, meeting times can always be made on an as-needed basis.
Suiter Swantz IP
402-496-0300
www.suiter.com
A Journey with Santa through History and Intellectual Property
Who is known as Kris Kringle, St. Nick, and Father Christmas? Why, Santa Claus of course. The origin of the modern name used in America, Santa Claus, is most likely an anglicized form of one of the Dutch names for St. Nicholas, “Sinterklaas”. With Christmas approaching, what a great time to look at the history of Santa Claus in America and his influence on intellectual property.
Colonial Germans in Pennsylvania observed the feast of St. Nicholas as did the Dutch settlers in Manhattan. They may have brought with them the tradition of giving children presents on St. Nicholas Day, December 6th. The historical person, Nicholas of Myra (modern day Turkey), was a bishop famous for his anonymous gift-giving as well as his compassion for the poor and the marginalized particularly, children. His philanthropy became so legendary that it inspired others and has been imitated around the world at Christmas in many countries.
In the 1800s, after the American Revolution, New Yorkers rekindled their connection to their Dutch roots. New York's emerging
literary figures borrowed from Dutch traditions and helped create much of the folklore of the modern Christmas. Washington Irving wrote about St. Nicholas ("Sinterklaas") in his satirical series of works, Diedrich Knickerbocker's History of New York, first published December 6, 1809. In his story, Sinterklaas rode through the skies in a horse and wagon and slid down chimneys to deliver presents to children. In 1821, an American children's book published by William B. Gilley called The Children's Friend, changed Santa's horse and wagon to a reindeer and sleigh.
On December 23, 1823, a poem attributed to Clement Clarke Moore was published in the Troy (NY) Sentinel. This famous and still popular poem, “Twas the Night before Christmas” was originally published as “A Visit from St. Nicholas.” (Authorship is disputed—an article for another day!) In this poem, Santa names eight reindeer. New York merchants, such as A. T. Stewart, capitalized on the popularity of these stories and pushed for a tradition of gift giving. The merchants understood the best route to parents’ money was through their children. They filled their stores and windows with eye-catching toys and children’s merchandise.
A standardized visual image of Santa Claus started to take shape in the 1860s when American political cartoonist, Thomas Nast, created drawings for Harper’s Weekly, a New York publication. His cartoons helped establish the present day image of Santa as a jolly, bearded, fat man in a fur-trimmed hat. Many of his early depictions were of Santa Claus visiting military troops during the Civil War.
In the mid-20th century, a series of Santa Claus illustrations by Haddon Sundblom were used in Coca-Cola ads. These
illustrations modernized the image of Santa. In the ads, Santa is depicted as a rosy-cheeked, rotund man in a plush red suit, black boots and sporting a tousled white beard. Sundblom may have been inspired by the poem, “Twas the night before 
Christmas”. While Coca-Cola cannot “own” Santa Claus since he is loosely based on an actual person, Coca-Cola can control the exact reproduction of the Sundblom series of images (hundreds of them) with copyright protection. Along with copyright protection, it could be argued that with Coca-Cola’s continuous use of Sundblom’s Santa image over the span of thirty years, the company has established a common law trademark of the Sundblom character.
Through the years, there have been many patents for Santa-related items‒ everything from toys and candy dishes to decorations and toy banks. A quick patent search of the words “Santa Claus” turns up about 1,677 results. Here are a few of them.
TOY (U.S. Patent No. 276,586) issued to Ezra Holden, of Chicago, IL on May 1, 1883.
TOY SAVINGS BANK (U.S. Design Patent No. D19,356) issued to Charles G. Shepard & Peter Adams of Buffalo on October 15, 1889.
MECHANICAL TOY (U.S. Patent No. 1,068,147) issued to Mabry Lovejoy of New Mexico on July 22, 1913 and assigned to Mabry Lovejoy and Joshua D. Kuykendall.
DESIGN FOR AN ELECTRICALLY-ILLUMINATED SANTA CLAUS (U.S. Design Patent No. D81,393) issued to Gotthilf Lehmann of Bronx, NY on June 17, 1930.
SANTA CLAUS DOLL (U.S. Design Patent No. D159,168) issued to Elsie R. Schaaf of San Diego, CA on June 27, 1950.
SANTA CLAUS WINDMILL TOY (U.S. Design Patent No. D165,957) issued to Charles F. Baumann of Oakland, CA and Verner Schultz of San Leandro, CA on February 19, 1952.
TOY SANTA CLAUS FIGURE (U.S. Design Patent No. D199,447) issued to Willard F. Miner of Barrington, IL on October 27, 1964.
PACKAGING DISH FOR CANDY OR THE LIKE (U.S. Design Patent No. D234,942) issued to Marten Gottsegen of Chicago, IL on April 22, 1975.
SANTA CLAUS DETECTOR (U.S. Patent No. 5,523,741) Issued to Thomas Cane of San Rafael, CA on June 4, 1996.
COWBOY SANTA ON A ROCKING HORSE (U.S. Design Patent No. D372,683) issued to Seymour Cohen of Jericho, NY on August 13, 1996 and assigned to Telco Creations Inc. of Hicksville, NY.
SANTA CLAUS VISIT KIT (U.S. Patent No. 7,258,592) issued to John I. Colak of Edmonton, Alberta, Canada on August 21, 2007.
TALKING SANTA CLAUSE DEVICE WITH RED LIGHT FOR INSIDE THE CHIMNEY (U.S. Publication No. 2015/0202543) invented by Erik Knear of Riverside, CA, published July 23, 2015.
As you can see, Santa Claus has quite a storied history in America and has inspired many patented toys and decorations.
Patent of the Day: System of Electrical Transmission of Power
On this day in 1892 Nikola Tesla was granted the patent for SYSTEM OF ELECTRICAL TRANSMISSION OF POWER. U.S. Patent No. 487,796.
This invention is an improvement in systems of electrical distribution of power wherein are employed motors having two or more independent energizing circuits, through which are passed alternating currents differing in phase that are produced by a magneto electric machine having independent induced circuits, or that are obtained from any other suitable source or by any other suitable means. In illustration of the various conditions which is regarded as most important to an attainment of the best results from the use of motors of this character, generally forms of generator have been used in which the relations of the induced or current-generating coils and field-magnets were such that but two impulses or current are produced in each coil by a single revolution of the armature or field cores. The rate, therefore, at which the different phases or impulses of current in the line-circuits succeeded one another was so little greater than that at which the armature of the generator revolved that without special provision the generator required to be run at very high speed to obtain the best results. It is well known that the most efficient results are secured in the operation of such motors when they are run at high speeds; but as the practicable rate of speed is much limited by mechanical conditions, particularly in the case of large generators, which would be required when a number of motors are run from a single source, Tesla sought to produce a greater number of current impulses by a slow or slower speed than that at which the ordinary bipolar machines may be economically operated. Therefore the system has adapted to this system any of the various types of multipolar alternating-current machines which yield a considerable number of current reversals or impulses for each revolution of the armature by observing the main condition essential to the operation of my system that the phases of the currents in the independent induced circuits of the generator should not coincide, but exhibit a sufficient difference in phase to produce the desired results. This may be accomplished this in a variety of ways, which, however, vary only in detail, since they are based upon the same underlying principle.
Another feature of this invention is in the plan which was devised for utilizing generators and motors of this type, whereby a single generator may be caused to run a number of motors either at the same speed as its own or all at different speeds. This is accomplished by constructing the motors with fewer poles than the generator, in which case their speed will be greater than that of the generator, the rate of speed being higher as the number of their poles is relatively less. This will be understood from an example. Suppose the generator has two independent generating-coils which revolve between two pole pieces oppositely magnetized and that the motor has energizing-coils that produce at any given time two magnetic poles in one element that tend to set up a rotation of the motor. A generator thus constructed yields four impulses or reversals of current by each revolution, two in each of its independent circuits, and I have demonstrated that the effect upon a motor such as that mentioned is to shift the magnetic poles through three hundred and sixty degrees. It is obvious that if the four reversals in the same order could be produced by each half-revolution of the generator the motor would make two revolutions to the generator’s one. This would be readily accomplished by adding two intermediate poles to the generator or altering it in any of the other equivalent ways above indicated. The same rule applies to generators and motors with multiple poles.
Patent of the Day: Hovercraft
On this day in 1955 Christopher Cockerall was granted the patent for IMPROVEMENTS IN OR RELATING TO VEHICLES FOR TRAVELING OVER LAND AND/OR WATER. Patent No. GB 854,211.
This invention relates to vehicles for traveling over land and/or water and may be applied to ships or aircraft or land-going vehicles or to vehicles which represent a combination thereof.
This invention in on respect consists in a vehicle which comprises means for causing a fluid to issue from the lower part of the vehicle in such a way as to result in the formation and maintenance of at least one curtain of moving fluid which travels across the gap that in operation exists between the surace over which the vehicle is to hover or travel and the structure and surface, encloses a space into which the said fluid, or a gas other than said fluid, flows so as to result in the formation of a pressurized cushion or cushions by which the vehicle is wholly or partly supported, the pressure of the cushion causing, and in its turn being contained due to, a change of direction of the moving fluid which results in a curvature of the curtain, and in which the means for forming the curtain are such that in cruising conditions the thrust due to the stream of fluid is finally leaving the vehicle in substantially less than the weight of the vehicle when loaded.
This invention in another aspect consists in a vehicle which comprises means of causing at least one stream of fluid to issue from the lower part of the vehicle to form at least one curtain of moving fluid which travels across the gap that in operation exists between the surface over which the vehicle is to hover or travel and the structure oft he vehicle and, together with said structure and surface encloses a space into which the said fluid, or a gas other than the said fluid, flows so as to result in the formation of a pressurized cushion or cushions by which the vehicle is wholly or partly supported, the pressure of the cushion causing, and in its turn being contained due to, a change of direction of the moving fluid which results in a curvature of the curtain, the plan area enclosed by the said stream of fluid, the said surface and the structure of the vehicle being a number of times larger than the cross-sectional area of the stream of fluid, an in which the means for forming the curtain are such that in the cruising conditions the thrust due to the stream of fluid finally leaving the vehicle is substantially less than the weight of the vehicle when loaded.
Office Hours December 29 at The Startup Collaborative
Suiter Swantz IP will be holding office hours December 29th at The Startup Collaborative, located in the Exchange Building in downtown Omaha.
Chad Swantz will be there from 3:00 - 5:00 pm. Feel free to send Chad an email (cws@suiter.com) if you’d like to reserve a time slot or have any questions. In addition, meeting times can always be made on an as-needed basis.
Suiter Swantz IP
402-496-0300
www.suiter.com
Unanimous Supreme Court Decision Backs Samsung in Patent Infringement Case
On Tuesday the 6th of December, the Supreme Court issued a unanimous decision in Samsung Electronics Co. v Apple. The 8-0 vote sided with Samsung and found that damages awarded for an infringement of a design patent do not automatically attribute profits to the entire article; rather, it would attribute the infringement to a specific component of the article.
We previously wrote about the inimical patent battle between Apple and Samsung. In 2012, a US jury ruled that Samsung had infringed on Apple patents, specifically patent nos. D593,087, D618,677, and D604,305. The judgement ordered Samsung to pay Apple $930 million. On Appeal, Samsung was able to get the amount reduced to $548 million due to the reversal of a trademark liability ruling. Samsung agreed to pay Apple $548 million–with one caveat. Samsung reserved “the right to reclaim or obtain reimbursement” of the $548 million depending on the holding of the Supreme Court. Samsung has already paid Apple $399 million.
In the written opinion, Justice Sonia Sotomayor believed the lower court’s interpretation of an “article of manufacture” to be too broad in its application. The lower court had interpreted the phrase “article of manufacture” to encompass the entire phone. Justice Sotomayor noted that “article” could pertain to just one part of the phone and stated that an article is “just a particular thing”. Sotomayor further noted that “The term ‘article of manufacture’ is broad enough to embrace both a product sold to a consumer and a component of that product whether sold separately or not.”
This is the first product design case the Supreme Court has ruled on since 1885. In that case, Dobson v. Hartford Carpet Co., dealt with the infringement of carpet design patents. The Supreme Court reversed the lower court’s ruling and construed the statute to require proof that the profits were “due to” the design rather than other aspects of the carpets. In another product design case, Dobson v. Dornan, the Supreme Court ruled that “[t]he plaintiff must show what profits or damages are attributed to the use of the infringing design”.
Now that the Supreme Court has issued their decision, the reversed and remanded case will be sent back to the United States Court of Appeals for the Federal Circuit (CAFC) to decide the damages owed by Samsung and whether those damages exceed the amount already paid by Samsung to Apple. In the event that the damages are less than the amount Samsung has already paid, Apple may be in a position where it has to refund a portion of the reward to Samsung.
In a statement, Apple said this case has “always been about Samsung’s blatant copying of our ideas, and that was never in dispute. We will continue to protect the years of hard work that has made iPhone the world’s most innovative and beloved product. We remain optimistic that the lower courts will again send a powerful signal that stealing isn’t right.”
Patent of the Day: Clinical Thermometer
On this day in 1884 Joseph Hicks was granted the patent for CLINICAL THERMOMETER. U.S. Patent No. 309,050.
This thermometer registers minute changes in temperature and to this end are required to have a bore very minute relative to the capacity of the bulb; but in order to adapt the mercury to respond promptly or as quickly as possible to the temperature changes, and bring the whole instrument within small dimensions, the capacity of the bulb and the entire quantity of mercury employed should be as small as possible.
Another requirement of the clinical thermometer is that it shall have a registering index. This has been formed of a small body of mercury at the top of the column, forming the head of the column,but separated from the main body thereof, so that as the mercury contracts in cooling the said detached head or index will remain at the highest point, thus forming a maximum register.
The object of the present invention is to devise a construction of clinical thermometers which will afford extreme sensitiveness and prompt response to changes in temperature, and will at the same time admit of reading the indications with facility. The construction of the thermometer is done with a very small bore, a lens-front for magnifying the column, and an elongated bulb of small diameter extended in line with the bore without any interposed chamber, but with a contracted throat to separate the column and form a maximum register.
‘Jersey Boys’ Creators Guilty of Copyright Infringement
A Nevada federal jury returned a verdict against the creators of the Tony award winning Broadway musical Jersey Boys finding that they committed copyright infringement. Writers Marshall Brickman and Rick Elice along with director Des McAnuff were found to have copied portions of the Broadway show from an unpublished autobiography titled, Tommy DeVito – Then and Now.
Tony DeVito is one of the founding members of the singing group, the Four Seasons. In 1988, DeVito wanted to write a book about the group and their not so glamorous, even criminal past, but with an eighth grade education he would need help. He enlisted the services of journalist Rex Woodward. Woodward drafted the book but was, unfortunately, diagnosed with lung cancer and his health quickly declined. He tried to get a publisher for the book but he passed away before that could happen.
The three remaining members of the Four Seasons, Frankie Valli, and Bob Gaudio, along with DeVito, and producers Brickman and Elice entered into an agreement with Dodger Theatrical to create a biographic, theatrical, work about their lives and their music. After Dodger Theatrical took on the project, DeVito shared his book with the group.
In October of 2005, the Broadway show, Jersey Boys, premiered. The show received great reviews, winning four Tony awards in its first year for its vibrant depiction of the Four Seasons. Donna Corbella, Woodward’s widow, heard the buzz about the Broadway show and thought the public may be interested in reading the book her late husband wrote. After some investigation, she was shocked to find out that DeVito had registered the manuscript with the U.S. Copyright Office in his name only and had excluded Woodward.
DeVito claimed that Woodward was a mere “scribe” for the book and not the author. Corbella strongly disagreed and was able to supplement the registration and get her husband listed as co-author of the book. With that registration, she was now a co-claimant and sued the writers and directors of Jersey Boys for creating a work without her permission.
A Nevada jury determined that the defendants did, in fact, commit copyright infringement. The jury found that ten percent of the show’s success was attributed to infringement of the book. The jurors did not specifically indicate which parts of the book were copied but U.S. District Court Judge Robert C. Jones found eleven similarities.
Frankie Valli and Bob Gaudio had originally been named in the lawsuit but were dismissed as defendants after the judge found that the singers had no knowledge of the unpublished book until they were deposed for this case.
As the Four Season’s song goes “big girls don’t cry” but in this case, a tear or two may fall from the creators of Jersey Boys as the damages phase of the trial will begin soon.
Patent of the Day: Waffle-Iron
On this day in 1903 Quince Crane was granted the patent for WAFFLE-IRON. U.S. Patent No. 746,033.
An object of this invention is to help the user save time and fuel while using an item that will require little space as well as have the desirable feature of cleanliness, convenience, and simplicity.
Another object of this invention is to form a waffle-iron of two portions or members that are hinged together at the edges as well as being provided with suitable handles to ease the operation of baking.
Waffle irons have been around since the 13th century but only the wealthy had them as they had to be custom made by a blacksmith and were constructed with long handles so the iron could be held over an open flame. Throughout time waffle irons have advanced and there is little effort required to operate them.
Patent of the Day: Cycle-Lamp
On this day in 1897 Charles Miller and Frederick Miller were granted the patent for CYCLE-LAMP. U.S. Patent No. 595,191.
This invention relates to lamps adapted for burning light oils such as paraffin. The lamps are used on cycles, motorcarriages and other road-vehicles and has for one of its objects a smokeless lamp that is unlikely to be extinguished by the normal vibrations of the road. Another object of this invention is screening reflectors and other bright interior parts of the lamp from the products of combustion of the flame. A further object is a new construction of the lamp which makes assembly much easier.
