Showing posts from November, 2017

Strategies for Patenting Solutions to Scaling Challenges

Whether your business has large- or small-scale production challenges, it is important to consider your intellectual property portfolio when developing solutions. There are a couple of strategies that may be helpful to improve the chances of success for applications geared towards production challenges.
            One strategy for a patent application that is directed towards a solution for a large or small production scale related problem is to describe how the solution in the application may address issues associated with that particular production scale.
            Another strategy may be to describe how a particular production scale enables the solution to work so that the production scale is intertwined with the solution in the application. An example of an application that intertwines the scale of the production with the solution may be found at U.S. Patent No. 4,906,578, which relates to temperature control of large tanks for the cultivation of microorganisms.


Tricky Linguistics: Patent Claims

You keep using that word, does it mean what you think it means?

Words in patent claims are given their plain and ordinary meaning, except when they are not.  Patent claim terms are interpreted in view of the specification (written description of the invention), as would have been understood by one of skill in the art, and based on any definitions of the words in the specification.  At least, that is how they are supposed to be interpreted during prosecution before the U.S. Patent and Trademark Office.  In litigation, words in patent claims are interpreted based on all of the above and any arguments made during prosecution before the U.S. Patent and Trademark Office, testimony, expert opinions, and other unwritten sources.  While testimony and expert opinions cannot contradict the evidence put forward during prosecution, the combination of all of these sources still leaves a lot of room for interpretation.

How many words to you know that have only one meaning? Whether it is the actual…

Food and Beverage Industry Spotlight: Utility Patents

As discussed in the design patent section of our food and beverage industry spotlight, patent protection can be a huge advantage for food and beverage businesses. Our earlier example illustrated design patent protection giving a food and beverage company a competitive advantage to distinguish themselves from competitors.
            However, another type of patent, called a utility patent, may also be an avenue to consider when building an intellectual property portfolio for your business. Whereas design patents protect the appearance of an article, utility patents protect how that article is used or works. Utility patent protection may be available for useful, novel, and non-obvious inventions.
            To give an example, a food and beverage company may patent the appearance of a bottle via a design patent. However, should that same bottle have also been developed with useful, novel, and non-obvious features, the bottle may also be eligible for a utility patent. For example, a un…

5 Lessons from a Disney Case to Avoid Issues Caused by the PatentOffice’s Unusual Method of Interpreting Patents

Patent claims are reviewed in light of a broadest reasonable interpretation (BRI) of the claim language. Specifically, following the guidance for the BRI in the MPEP (the guidelines that govern examination procedure at the Patent Office), claim language is interpreted to have its customary meaning unless the term has been defined otherwise in the specification. The claim language must also be consistent with the drawings of the specification. Seems pretty straightforward, right?
Well, in practice the BRI can actually get pretty tricky, sometimes dictating the entire outcome of a case. A recent example illustrating the power of the BRI to impact the decision of a case is found at 13/223,062, entitled “INFANT BODYSUIT” owned by Disney Enterprises, Inc.
Disney appealed the Rejection of the patent by arguing that the Patent Office was being unreasonable in its interpretation.  Disney lost, however, since the BRI gives the benefit of the doubt to the Examiner in most cases.  What is parti…

An Industrious Solution To An Industrial Problem

The term “heavy industry” conjures images such as construction equipment and materials for building various structures such as bridges, hotels, skyscrapers, etc.  Thus, of course one aspect of intellectual property related to heavy industry encompasses the development of, and improvements upon, various types of equipment related to the construction of such structures.  However, another aspect to the heavy industry market includes upkeep of such structures, once they are constructed. Toward that end, there is currently an upswing in activity in terms of obtaining patent protection for “smart” buildings, homes, bridges, etc., which may rely on network-connected sensors capable of providing real-time data pertaining to various aspects of maintenance of large structures.  However, such solutions are inherently complex, have issues related to divided infringement, and the IP space for such solutions is growing increasingly crowded.
            In this age of technological advancement, it i…


In recent years, demand for smaller, more portable digital cameras has largely been driven by the rapid expansion of online social networking as a method for quickly and conveniently sharing photographs with a wide audience.  Consequently, smart phone technologies have increasingly been developed to push the boundaries of digital photography, bringing greater access to high-quality cameras to a growing number of users.  Various producers of smart phones, such as Apple and Samsung, often distinguish their high-end smart phones from less expensive base models by including enhanced photographic features such as higher-quality optics, increased photo storage capacities, increased image resolutions, etc. Although such enhanced features are often enabled by specific hardware included by the phones, the increased interest in the photographic capabilities of such phones has led to a surge of IP activity for software targeted toward digital photographic image processing.  However, existing sof…

IP Protection for Color

Trademarks, Patents, Copyright, or something else – can you protect color with intellectual property? Under Trademark law, color is inherently indistinct, but with sufficient acquired meaning it is possible – think about pink insulation.  But viewing color can be a very individualized experience. For example, two people viewing the same object under the same lighting conditions may have different perceptions of that object's color.  Additionally, even a single viewer may have difficulty determining the color of an object when the object is viewed under two different lighting conditions. As such, individuals or organizations seeking protection of a specific color may run into unforeseen difficulties.

As noted above, one way that a color may be considered distinctive for the purposes of Trademark protection is when it can be demonstrated that the color is so closely associated with a product or brand that the product or brand can be recognized by the color. In building a case for t…

Food and Beverage Industry Spotlight: Design Patents

The food and beverage industry differs from many other industries in terms of building an intellectual property portfolio, as much of the product development surrounds recipe development, and recipes typically end up falling under trade secret protection rather than patent protection. However, this does not mean that intellectual property aspects of a food and beverage business are not able to be protected under patent law.
            On the contrary, many aspects of food and beverage businesses may involve intellectual property that is patent eligible, and obtaining patents for these aspects of food and beverage businesses may prove to be a helpful protection strategy.
            Two main types of patent eligible property that tend to be developed in food and beverage businesses are utility related and design related intellectual property. As described by the USPTO, “a ‘utility patent’ protects the way an article is used and works (35 U.S.C. 101), while a ‘design patent’ protects …