Patent and Trademark Archives - Page 4 of 6

Category: Patent and Trademark

Can artificial intelligence be a patent inventor?

The United States Patent and Trademark Office (USPTO) was recently required to determine whether a patent application may list artificial intelligence as an inventor. At issue were two patent applications for two separate, seemingly mundane devices. One application described a shape-shifting container for food and the other an emergency flashlight. The two inventions were created by DABUS, an artificial intelligence system created by physicist and artificial intelligence researcher Stephen Thaler. In a published decision, the USPTO determined that neither DABUS, nor any other artificial intelligence, can be listed as an inventor on a patent filing.

For a patent to be granted, it must satisfy certain requirements. The invention must be (1) patent eligible in that it is either a machine, process, article of manufacture, or a composition of matter; (2) useful; (3) new; (4) nonobvious; and (5) described with enough particularity that a person of ordinary skill in the relevant technology field would understand the invention without undue experimentation. Aside from these patentability requirements, the application must be filed with certain documentation, including, among others, an application data sheet which identifies the inventor(s).

When filed, the application papers at issue included an application data sheet, a substitute statement in lieu of a declaration, an inventorship statement, and assignment documentation assigning the entire right title and interest to Stephen Thaler. The application data sheet, which identifies the inventor or joint inventors of an invention, identified a single inventor with the given name “DABUS” and the family name “Invention generated by artificial intelligence.” Similarly, the substitute statement was executed by Stephen Thaler, who identified himself as the legal representative of DABUS and the applicant of the invention. Substitute statements take the place of an oath or declaration when an inventor is deceased, under a legal incapacity, has refused to execute an oath or declaration, or cannot be found or reached after diligent effort.

In August 2019, a Notice to File Missing Parts was issued, which indicated the application data sheet “did not identify each inventor by his or her legal name.” In instances where a Notice to File Missing Parts is issued, the patent application will still be accorded a filing date and application number. The applicant is then given a certain time period (usually two months) to file all required items and any fee. In this case, although the Notice sought a new application data sheet with correct inventorship, the applicant instead filed a petition requesting supervisory review of the Notice. This petition was dismissed, and the applicant requested reconsideration of this decision. The USPTO agreed with the prior ruling and therefore, refused to vacate the decision.

According to the applicant, DABUS is programmed as a series of neural networks that have been trained with general information in the field of endeavor to independently create the invention. Thaler claims it was DABUS, not a person, that recognized the novelty and importance of the purported invention. Moreover, DABUS was not trained to solve any specific problem nor was it trained on any special data relevant to the invention at issue. As a result, Thaler maintains the position that inventorship should not be limited to natural persons.

In explaining its decision, the USPTO provided several statutes, including that which sets forth the requirement that a patent application include “the name of the inventor for any invention claimed in the application” and that which defines “inventor” as “the individual or, if a joint invention, the individuals collectively who invented or discovered the subject matter of the invention.” The USPTO determined that the statute precludes the applicant’s proposed broad interpretation of “inventor.” Indeed, it was also explained that the terms “whoever,” “himself,” “herself,” and “person” suggest a natural person and not a machine. Further, the USPTO cited several Federal Circuit Court of Appeals decisions that set forth that drafted must be natural persons. Overall, the USPTO found that the language of the patent laws as written by Congress and as subsequently interpreted by courts unequivocally supports the position that machines cannot be inventors.

Can a test for COVID-19 be subject to patent infringement?

Labrador Diagnostics has filed a lawsuit in the United States District Court for the District of Delaware against BioFire Diagnostics, a company that makes medical testing equipment and most recently, developed a test for the new coronavirus. The lawsuit alleges patent infringement of two of Labrador’s patents related to testing the presence of substances in bodily fluids. Labrador purchased these, and other, original Theranos’ patents after the failed blood-testing startup sold its patent portfolio to Fortress Investment Group in 2018.

One of the Theranos patents, United States Patent No. 8,283,155, teaches point-of-care fluidic systems and uses thereof. The patent describes a generic architecture for a machine that automates testing for the presence of substances in bodily fluids. The system includes a test device and a reader device. The test device contains both the patient’s bodily fluid to be tested and the reactants required to perform the test. However, no particular reactants, other than generally an immunoassay and nucleic acid reagents, or bodily fluids are disclosed. The reader device triggers the chemical reactions necessary to perform the test and reports the results. Again, however, no particular testing protocol is disclosed.

The other Theranos patent-in-suit, United States Patent No, 10,533,994, teaches systems and methods of sample processing and fluid control in a fluidic system. The system generally comprises a cartridge for sample collection and assaying and a reader assembly for detection of the presence or absence of the analyte and communication of the same. Again, no particular reactants or bodily samples are disclosed, nor are any reaction types. Indeed, the reactant is described as something that “reacts with the analyte to yield a signal indicative of the presence of the analyte.”

A working prototype or actual use of an invention is not needed to obtain a patent. In this way, your technology need not necessarily work in order to obtain a patent. This is how Theranos managed to obtain numerous patents regardless of its famed inability to produce functioning technology. Indeed, all that is needed to obtain a patent is a novel, non-obvious invention. In addition, a patent document must sufficiently describe the technology on which a patent is sought by disclosing the technologic knowledge upon which the patent is based and demonstrating that the inventor was in possession of the invention that is claimed at the time of filing.

The defendant-in-suit, BioFire Diagnostics, offer a BioFire Filmarray machine that automates detection of a variety of pathogens. Labrador claims that each of BioFire’s FilmArray devices, including the accompanying pouches and software, infringe its patents. Most recently, BioFire added coronavirus to the slate of pathogens capable of detection. Prior to the initiation of this litigation, the medical diagnostic supply company hoped to make this test publicly available to customers by the end of March.

After filing its lawsuit last week, a slew of bad press fell upon Labrador, including multiple articles referring to it as a “patent troll” and “tone deaf” given the recent coronavirus crisis. As such, earlier this week, the small firm announced it would grant royalty-free licenses to companies developing COVID-19 tests. The company also claims that it was unaware that BioFire was developing a coronavirus test at the time the lawsuit was filed. Nonetheless, Labrador appears to be intending to proceed with the lawsuit as no notice of dismissal has been filed.

Apple Indoor Location Mapping Patent

Among 57 patents issued this week to Apple, one involves techniques for creating a location fingerprint within a venue. While GPS is a common feature to any mobile device, when enclosed within a structure, the signal may be outside of the line of sight with GPS satellites, resulting in a greater margin for error. The new technology, known as indoor location mapping, distinguishes itself through its ability to generate a location map inside a building or tunnel. Apple’s iOS 11 harnesses this invention and Apple Maps is now supported at major malls and airports around the world. Through this technology, any app utilizing location will be able to deliver its services indoors. #omnilegalgroup #patent #Apple

Wrigley Trademark

Wrigley, well known for their assortment of chewing gums, has filed suit to enforce their intellectual property rights in the JUICY FRUIT mark. In a trademark infringement action brought in the US District Court of the Northern District of Illinois this past Friday, Wrigley accused the owner of an electronic cigarette company selling Juicy Fruit e-liquids of violating their registered United States Trademarks. Mohammed Ghatala, owner of Dreamecore Enterprise, failed to reply to two cease-and-desist letters from the American gum maker and could now face injunctive action and a recall of the allegedly infringing products. Just last year, Wrigley sued another electronic cigarette company named Chi Town Vapes for infringing their DOUBLEMINT and JUICY FRUIT marks. #omnilegalgroup #trademark #Wrigley

In-N-Out v. Smashburger

In-N-Out v. Smashburger. In a lawsuit filed on August 30th, In-N-Out has accused the fast food chain Smashburger of causing consumer confusion with their latest advertising campaign. In-N-Out has a number of registered marks the most relevant being DOUBLE-DOUBLE, TRIPLE TRIPLE, and 2 X 2. The action, filed in the Central District of California, alleges that these marks are being infringed by Smashburger’s advertisements promoting the SMASHBURGER TRIPLE DOUBLE. Smashburger filed for their own trademark in November of last year. The Examining Attorney approved but that application is currently being opposed by In-N-Out as well. #burgers #trademarks #InNOut #Smashburger #omnilegalgroup

Trademark Fraud

The leader of one of the most notorious trademark scams in recent years has been sentenced to 8 years in prison for sending out thousands of solicitations designed to confuse recipients into thinking they were official government documents. Artashes Darbinyan, a Glendale resident, defrauded unsuspecting trademark applicant’s out of at least $1.6 million dollars for “trademark monitoring services” that were never rendered. Sadly, this practice is not uncommon. Because trademark applications are so readily accessible online, there are numerous companies, which “troll” the trademark applications database and send solicitation letters for services related to trademarks. These letters should be taken as advertisements and it is not recommended that you use their services. However, because they are designed to look as though they are from the USPTO, many recipients are tricked into thinking they have no choice but to remit payment. Hopefully, this verdict will send a message to those seeking to defraud unwitting applicants, and put an end to an unscrupulous practice that has gone unchecked for too long. #omnilegalgroup #trademarklaw #fraud

Motorola Patent

Motorola files patent application for a phone that can repair its own screen. The application details a method and device for detecting fascia damage and repairing it. How it would work is by way of thermal elements imbedded within the screen itself that, when activated, would heat up and repair the cracked surface. Modern electronic devices comprise ever-increasing screen sizes, which are prone to damage when dropped. As part of the repair process, an application within the phone would be used to assess the damage prior to initiating a repair. That patent also discusses a docking station that would charge the device as it is being repaired, because the repair process could take a significant amount of time. A number of recent patent filings have demonstrated that technological advances for mitigating repair costs are gaining popularity. Given the significant reduction in mobile phone subsidies, these innovations will certainly be well received by consumers. #omnilegalgroup #patent #Motorola #mobilephonepatent

A New Tesla Patent

Tesla has patented a device that can improve EV battery safety after a collision. The safety of lithium-ion batteries in the event of a collision is frequently called into question, but Tesla is hoping to quell these concerns with their special “pyrotechnic disconnect” safety device. The patent states that their pyrotechnic disconnect can quickly sever all electrical connections between their battery pack and motors, which will reduce the risk of harm to occupants after an accident. This disconnect would need to interrupt a very large current using a housing with a combustion chamber inside and a pyrotechnic charge within. It’s not clear yet whether this patented technology will be licensed to other automakers, but it’s reassuring to see a carmaker taking proactive steps to ensure the safety of vehicle occupants and pedestrians alike. #omnilegalgroup #patent #Tesla

Did You Know…?

Nick Woodman founded the GoPro camera in 2002 as a great way to record footage while on a surfboard. His desire was to create a wearable camera that would allow him to capture himself and friends while out on the water. Initially, the camera company was called Woodman Labs. In 2004, the company sold its first camera, which was a 35mm unit called the Hero. They coined the phrase “GoPro Be A Hero” and later became known as GoPro Inc. Today they have a variety of offerings to satisfy any action seeker and have succeeded in their effort to merge sports & technology.

Amazon Has Fashion On Its Mind

The king of supply chain logistics has made its way to the way you and came up with a fashionable idea for cutting the cost of making clothes. Amazon was recently awarded a patent for what they call “on-demand-apparel-manufacturing” that will create or make your clothing once it has been ordered. The Patent has the software designed to collect clothing orders internationally and then derives a way to fulfill them.

Also, stated in the patent, “the orders can be organized by the computing environment into one or more groups of orders based on one or more productivity factors like size, shape, fabric type, or delivery location for the textile products.” On-demand or fast fashion is taking over the country and is an affordable way to consume clothing.

If the disclosures in the patent are any indicator of future plans, Amazon intends to expand beyond on-demand manufacturing and dive into other items such as fabric products, accessories, footwear, bedding, curtains, towels, especially in a variety of different materials, but not limited to paper, plastic, leather etc. Just last year, Amazon came out with seven in-house fashion brands and some experts believe it is on its way to becoming the biggest clothing retailer in the U.S. They also debuted a fashion tool namely, Outfit Picker, that even helps its Prime members choose what to wear. The company also launched a TV ad campaign for $15 million that featured fall fashions from Amazon.com.