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The house loses all pushes October 24, 2014

Posted by Brian Schar in General, Patent prosecution, USPTO.
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Ex parte Lucas is an interesting example of a situation that you don’t see that often – although it’s probably a situation that should arise a lot more often than it does.

Lucas claimed a “double throat pulsation dampener for a compressor.”  The PTAB opinion is short and does not go into detail about what, exactly, that is.  I used Google to find a web page from Flowguard USA that describes such a thing, in case you, the reader, are interested.  (I have no commercial or other relationship with Flowguard USA and did not even know they existed until I searched “pulsation dampeners.”)  Lucas claimed a dampener that, among other things, had airflow reversed compared to the prior art.

The Examiner rejected the claims under 102 and 103 on particularly flimsy grounds, and cited art; the PTAB found that the Examiner provided no evidence or technical reasoning for either rejection.

However, the PTAB also found that the Applicant provided no evidence or technical reasoning to demonstrate why the cited device may or may not work with the air flow reversed.

As a result, the PTAB held that “at most, the issue is in equipoise. As the Examiner bears the burden of establishing patentability, the Examiner’s rejection cannot be sustained on the record before us. See In re Warner, 379 F.2d 1011, 1016 (CCPA 1967)”

This PTAB decision is nonprecedential.  However, I think it would behoove appellants to essentially cut and paste the holding of Ex parte Lucas into their reply briefs, as a reminder in case of a push, the house loses.

A refreshing view of software patents October 1, 2014

Posted by Brian Schar in General.
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This is probably the best thing I’ve read on software patents lately: David Stein’s “Disrespecing Software.”


My personal view is that Big Software/EE simply doesn’t care about IP.  They’d rather compete on size than on novelty or IP, so for them they’d rather IP just not exist instead of going to the trouble of patent things and perform freedom-to-operate analyses.  Another key benefit for Big Software/EE is that they don’t have to worry about competition or pay a premium valuation to acquire a smaller upstart competitor, if that competitor isn’t able to assert any IP.

On the one hand, I wouldn’t worry about this as much if it were limited to software/EE.  However, many of the anti-software-patent people have a stated goal of blowing up the entire patent system.  See , for example, http://www.theatlantic.com/business/archive/2012/09/the-case-for-abolishing-patents-yes-all-of-them/262913/

I suppose in that case we’ll see which Silicon Valley company will be the first trillion-dollar corporation, as there will be nothing stopping any of the Valley giants from stealing code or anything else from their competitors outright.  Goodbye, startup culture.