Tuesday, June 29, 2010

The Supreme Court Keeps Business-Method Patents Alive « On the Docket

The Supreme Court, as expected, dealt the final blow to Pittsburgh inventor Rand Warsaw's dream of patenting a method for hedging energy costs against changes in the weather. In doing so, however, the court didn't upset the foundations of the multibillion-dollar world of "business method patents," which are based less on a particular machine than a process for achieving some practical end.

It was an anticlimactic end to a case whose decision was so long delayed that some speculated the justices were deadlocked over how far to rein in what some see as an out-of-control patent process. Instead, the court rejected a narrow test that would require patents to involve a machine or transformation of matter and merely said patents can't cover an abstract idea.

"It looks like what people actually thought it would be, before it took forever," said John Dragseth of Fish & Richardson in Minneapolis. "Not much has changed from what thoughtful people thought the law should be."

The decision, penned by centrist Justice Anthony Kennedy, says the machine or transformation test is "a useful and important clue, an
investigative tool," but not the sole test of whether something can be patented. The appeals court rejected the Bilski patent in stronger terms that suggested all patents lacking this qualification would be invalid.

By rejecting the narrow approach of the federal circuit, the court is eschewing artificial limits on patentability," said Andrew Pincus, a partner at Mayer Brown in Washington who represented the Business Software Alliance in briefs presented to the court.

Pincus wouldn't offer an opinion as to how the decision might limit future software patents -- he's an advocate, after all. The decision leaves for future litigation questions about whether software that involves an algorithm based on natural laws, for example, or patents on certain medical procedures will survive review.

"When you have something that's more than abstract, but still preempts a law of nature or natural phenomenon, what do you do?" said Dragseth, who represents the Mayo Clinic in a case over a medical procedure that seems to mimic the normal thought processes of a physician.
The Bilski decision is "a cautious effort to limit what they're going to do in a very special case," he said. "They know there's danger out there if they're not careful."

The court went out of its way to avoid saying anything specific about software and other patents that don't specifically involve machines. This statement sums up the majority's refusal to take a firm stand:

"With ever more people trying to innovate and thus seeking patent protections for their inventions, the patent law faces a great challenge in striking the balance between protecting inventors and not granting monopolies over procedures that others would discover by independent, creative application of general principles. Nothing in this opinion should be read to take a position on where that balance ought to be struck."

The Supreme Court first upheld a software patent in 1981, involving software controlling a process for curing rubber, and since then patents have become a vital bulwark protecting the assets of big companies like IBM and Microsoft.

A federal appeals court first approved business method patents in a 1997 decision involving State Street Corporation. That same year, Amazon.com won a patent for its one-click ordering system, which struck many critics as being too obvious and unconnected with machinery to be patentable. Amazon.com immediately went after rivals in the new Internet retail industry seeking royalties for its supposed innovation.

While the patent system is enshrined in the Constitution, Congress has the job of specifying the rules. Current law allows patents on a “process,” unhelpfully defined as a “process, machine, manufacture, composition of matter, or material.”

Warsaw and Bilski began working on a hedging system in the early 1990s designed to shelter both consumers and utilities against big swings in energy prices and demand. While the idea is commonplace now –weather derivatives and energy hedging are both booming businesses – Warsaw says he and his partner were at the cutting edge when they designed their system.

“When I started on this concept in early 1990s, it wasn’t obvious,” Warsaw told Forbes last year. “There was absolutely no weather hedging going on.”

this continues to get more muddy. Best bet seems to be to protect those ideas that a core to your business. The cost of loss is just too great!

On the other hand, don't stop innovating just because it seems like someone owns it. Things can and do change and opportunities continue to open up every day! Good luck to all!

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Sunday, June 20, 2010

We got quoted in June Market Place

Please read the Market Place article on patents and idea protection.
Lots of good information and maybe even an insight or two that would help business leaders make the very best decisions.

thanks for the story Steve!

A storyƂ© about protectingSM intellectual propertyĆ¢�¢ (Pat. Pend.)

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Growing a Business - Discover Demand

OK, so here we are.

Sales off by 50% since this recession started, headcount down by 25% or more. Likely 25% of our suppliers are no longer with us and those that remain are in the same situation. If we only had the customers we could get back in the groove…..

The assessment is absolutely right yet does not yet get to the heart of the matter. Let’s go one layer deeper.

The old customers are no longer there, even if the people are there they now think differently, have different needs, and are under different pressures….The suppliers we have grown to trust have changed drastically. Maybe not from the outside but I can assure you they are different inside. Less experienced, more hurried, apt to look for new solutions rather than honor old relationships. To get back to where we once were, we have to double in size. And we are not going to add employees. You know it and you know why… Oh one last thing, all your competitors are in exactly the same situation. We have to grow by 100% quickly, not add people and not get out of control…

Demand for our product or service is the driver that lets everything else happen. Demand is the foundation of a thriving business. Demand creates the opportunity to make sales. Demand is what creates competitors. Demand is out there. Demand has to be discovered. To find demand one must be an explorer, a miner, a detective. Yes many of the skills are the same as a sales professional however the approach is different. In the demand discovery mode, we are not focused on delivering a product or service. We are focused on understanding how we can help someone else meet their needs. Because of this the communications are different and frankly some people just don’t get it. Imagine, as a customer not having to pick from options rather being able to explain your needs and have someone else work to meet them. If you work in a demand creation role, you are inventing solutions to someone else’s problems.

So for all those who don’t want to be in sales, relax demand creation is not sales. Sales has to be profitable, sales has to find a way to keep the work standard, sales has to find a way to play to our strength. Sales when done well, creates a backlog of work, fair profit margins, and long term happy customers. In the cycle of rinse, lather, repeat. The sales team is trying to repeat, repeat, repeat.

Demand Discovery is the business of finding markets, finding channels, discovering messages that will allow our business to communicate with particular types of customers. Demand Discovery is something that some businesses never had to do….imagine that. Demand Discovery is something that some businesses once knew had to do but after a while they got complacent and forgot …. Lots of sales can do that to you. Demand Discovery for some is a way of life …. These businesses continue to invent products, invent markets, re-invent themselves….. We know who they are.

After a recession, comes an expansion, kind of a law of nature thing. Expansion is the same as increased demand. That is easy. Knowing exactly what will be in demand that is the real question. What are these people looking for, what will they need, what will they buy. Just a few of the questions.

Bottom line, there are two ways to find out what is on the other side of the mountain. One is to sit here and wait for someone to send us a report. The other is to climb up and over and see for ourselves. Those who value Demand Discovery….have already left the building!

Good luck to all of you,


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Wednesday, June 9, 2010

Thanks to WHBY

Thank you WHBY, appreciate the the help.  Robbie you're getting the word out!

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