Letter from AmeriKat - Patents

This past week was one of those chaotic weeks for the AmeriKat which could have had David Bowie and Queen's "Under Pressure" as the soundtrack. However, mitigating this 'loss' was the promise of the upcoming sunny weekend and planning the next few weekends of fun including a trip to her beloved Guernsey. (picture left - the AmeriKat chilling under the rays) The soon to be real image of the AmeriKat basking in the sun on one of the little island's blue beaches with very limited cellphone reception and the smell of her favorite flower, freesias, everywhere is propelling her through the next few weeks. Ahh...the power of positive imagery...

US Court of Appeals does not find Microsoft oh so appealing

No amount of positive imagery could have saved Microsoft from the federal court's ruling of three weeks ago that denied their petition for a rehearing in the i4i case (previously reported here). Readers may recall that the i4i case focused on the infringement of i4i's patent which covered a method whereby the software can process and store custom XML separately and distinctly from user-imputed content called a "metacode map". Microsoft's WORD program allegedly included this patent. In March 2007 the Canadian company sued Microsoft. After a 7-day trial in the Eastern District of Texas, the jury returned a finding in i4i's favor and awarded i4i $200 million in damages. On appeal by Microsoft to the Circuit Court in August, Judge Davis increased the award of damages by $40 million (enhanced damages) for the outspoken nature of Microsoft's trial attorney, Matthew Powers. Microsoft appealed this judgment to the US Court of Appeals for the Federal Circuit who upheld the lower court's ruling in December.

In January, Microsoft complied with the lower court's injunction and removed the patented element from their programs. Microsoft then requested an en banc review which sought review of this decision. En banc reviews at the US Court of Appeals for the Federal Circuit involve an 12-judge panel. However, no April's Fools joke for Microsoft when on 1 April the appeals court denied the request.

According to the Wall Street Journal, i4i's Chariman Loudon Owen said

"This has been a long and arduous process, but this decision is a powerful reinforcement of the message that smaller enterprises and inventors who own intellectual property can and will be protected."

Microsoft's director of public affairs stated that Microsoft still believes that

"there are are important matters of patent law that still need to be properly addressed, and we are considering our options for going forward."

Microsoft could reapply for an en-banc review based on the recent revised decision of the federal court in March that held that Microsoft had wilfully infringed i4i's patents. The earlier en banc request was based on the federal court's December opinion. Microsoft could also appeal to the Supreme Court. Or settle or do nothing. Or, according to TechDirt's report "Microsoft should reconsider its pro-patent stance position. It seems it can come back to bite you."

The AmeriKat believes that this may not be last we hear from Microsoft in this battle because they are not known to give up quickly. However, in the AmeriKat's opinion there seems to be a note of exasperation from Microsoft's statement - its not the usual robust "they got it completely wrong. We will keep fighting" statement but a more reflective sentiment. But after a three appeals and an assumingly massive lawyer's bill to face, who wouldn't sound a bit exasperated?

Ombudsman pilot program invades the USPTO

To an AmeriKat, the usage of an ombudsman sounds distinctly British conjuring up images of dusty hallways and wooden shelves with papers askew and red tape everywhere (despite the word having originated from Sweeden). However, Wikipedia informs the AmeriKat that there are in fact ombudsmen abundant in the U.S. including one ombudsman at the ironically named "Department of Homeland Security" .

The Department of Homeland Security and the US Navy will not be alone with the announcement two weeks ago that the USPTO will launch its very own "Ombudsman Program". The one-year program is designed to provide patent applicants whit more assistance with problems encountered in the application process if they are not solved through normal procedures in the Technology Center. The aim is that problems are resolved efficiently and effectively to save the USTPO and applicants time and money.

Apparently the applicant can contact the ombudsman representative and will receive a return call within one business day to discuss the problem. The ombudsman representative will then work with the Technology Center's staff to resolve the issue. USPTO Director, David Kappos, stated that

"This program is a direct response to feedback we've received from members of the patent community who have told us that they need a dedicated resource they can turn to when they have concerns about the prosecution of their application. We are always striving for ways to improve the quality and efficiency of patent examinations,and we believe this imitative is an important step forward on both these fronts."

The AmeriKat wonders if the new Ombudsman program was influenced at all by the recent UKIPO/USTPO meeting and agreement in March to reduce patent backlogs. To contact the USTPO Ombudsman click the link here.