Etch A Sketch!

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May 22, 2020

Nearly 61 years ago, on July 23, 1959, a patent application was filed with the U.S. Patent and Trademark Office for the iconic and wildly popular Etch A Sketch toy. The patent was later issued on September 25, 1962 as US Patent No. 3,055,113 titled Tracing Device.

The Etch A Sketch toy was invented in the mid 1950s by a French electrician who originally named the toy The Magic Screen. Lacking funds initially, the inventor obtained financial assistance from an investor to file patent applications in France and the United States in 1959. That same year, he presented the toy at an international toy fair in Nuremburg, Germany where it finally caught the attention of The Ohio Art Comapny.

The Ohio Art Company eventually licensed the toy and launched it in the United States under the Etch A Sketch name during the holiday season in 1960 where it became an almost immediate commercial success -- and still is to this day.

In 1988, The Ohio Art Company received a patent (U.S. Patent No. 4,764,763) for an electronic, and much less successful version of the Etch A Sketch, marketed as the Etch A Sketch Animator 2000.

In 1998, the original Etch A Sketch was inducted into the National Toy Hall of Fame.

Is the State of Section 101 in “Complete Disarray?”

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September 20, 2019

That’s what Trading Technologies International, Inc. contends in its recent Petition for Certiorari to the Supreme Court. Well, Trading Technologies technically argues that the Federal Circuit’s jurisprudence on patent eligibility is in “complete disarray,” stating that “[w]hile one line of Federal Circuit decisions holds computer-implemented inventions to be ineligible if they do not make hardware-like improvements to computers’ basic functions, another line holds the opposite.”

The patents at issue in this case (US7904374, US7212999 and US7533056) generally relate to the graphical user interfaces (GUIs) used by professional stock market traders – interfaces that allegedly improve the accuracy and speed of communicating offers and bids in a complex stock market environment. There is no allegation that the interfaces of these patents make “hardware-like improvements” to the computer – e.g., they do not cause the computer to operate faster or more efficiently. Rather, the inventions are focused on user interaction, thereby improving the "user-directed functionality."

The two questions presented are thus:

1. Whether computer-implemented inventions that provide useful user functionality but do not improve the basic functions of the computer itself are categorically ineligible for patent protection.

2. Whether the Court should overrule its precedents recognizing the “abstract idea” exception to patent eligibility under the Patent Act of 1952.

We will continue to monitor this case and provide updates as they become available.

Calculating the Term of a Patent Can Be Challenging

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May 28, 2019

Questions concering the term or expiration date of a patent are common and can arise under a number of different circumstances. For instance, you may be wondering when your patent will expire, or in some cases, when someone else's patent will expire. Although these questions may be commonplace, they can also be complicated or challenging to answer.

As an example, the term of a patent is often not as easy as adding twenty years to the the filing date (in the case of a utility patent) or fifteen years to the issue date (in the case of a design patent). Rather, in additon to the type of the patent (i.e., utility patent, design patent or plant patent), there are a number of different factors that can impact the length of the patent or otherwise when the patent will expire, including, but not limited to, the filing date (e.g., whether the application that led to the patent was filed before, on or after June 8, 1995), whether the patent claims priority to a prior-filed U.S. or Patent Cooperation Treaty (PCT) patent application, whether there was a terminal disclaimer submitted with the patent application, whether the maintennce fees have been timely filed, or whether there are any applicable patent term adjustments as provided by 35 U.S.C. 154 or patent term extensions as provided by 35 U.S.C. 156.

Recognizing the difficultly involved in calculating the term of a patent, the U.S. Patent & Trademark Office now provides a Patent Term Calculator, which can be used as a starting point or estimator. However, if you have any questions regarding the expiraton of a patent, whether owned by you, your company or another, please contact us for assistance.

Happy Halloween

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October 27, 2018

Halloween is one of the more creative holidays, with interesting new costumes, decorations and novelty items being invented each year. Here is a short list of some Halloween patents that we found to be fun and interesting.

U.S. Patent No. 9,022,595
Illuminated Halloween Candy Container
May 5, 2015

Have you ever wanted a Halloween candy bucket that can illumate the night? How about a bucket that can play spooky sounds as you go door-to-door collecting candy? This patent combines all of these features with a plurality of LED's to emit light in various directions, as well as a digital media player to to play spooky recorded sounds.

U.S. Patent No. 6,776,687
Haunting Aid
August 17, 2004

Everyone needs a Haunting Aid on Halloween. This patent is for a ghostly creature with glowing eyes that stare or flash at terrified onlookers with LEDs embedded in empty eye sockets or below evil eye brows.

U.S. Patent No. 6,035,447
Halloween Mask with Flash Device
March 14, 2000

This spooky Halloween mask includes a flash device that, according to the patent, not only increases the attractive effect and sense of reality for the mask, but it also enhances safety by calling awareness and attention to the wearer.

U.S. Patent No. 7,866,276
Spiderweb Maker
January 11, 2011

Have you ever wanted to make your own spooky spider web on Halloween? Of course you have. Well, this patent discloses a spiderweb gun which discharges hot glue through the use of pressurized air. The pressurized air blows the hot glue into a stream that can be used to create a spooky spider web.

Consider a Patentabilty Search

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October 25, 2018

The first step in the patent application process is almost always a patentability search. While searches are never exhaustive, they will often help the patent attorney, as well as the inventor(s), determine whether the invention, or in some cases a portion of the invention, may be patentable.

Importantly, the United States Patent & Trademark Office ("USPTO") will not grant a patent on an invention that is already known or otherwise already in the public domain. Thus, the goal of most patentability searches is to find any patents, patent applications, and sometimes other publications, that are similar to the proposed invention. Based on the search results, an informed decision can be made as to whether to proceed to the next step of applying for a patent.

Here is an interesting artile from about the importance of a patentability search: "Inventors: Do a Patent Search Sooner Rather Than Later.

UPDATE: Apple and Samsung Patent Wars

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May 25, 2018

Yesterday, after nearly a week of deliberations, a jury returned a verdict in favor of Apple requiring Samsung to pay $539 million for copying three U.S. design patents. This is an increase of $140 million from the previous amount, and shows the risk Samsung took by continuing to fight.

While Samsung has not indicated whether another appeal will follow, they have stated that the "decision flies in the face of a unanimous Supreme Court ruling in favor of Samsung on the scope of design patent damages" and they "will consider all options."

Below are some interesting articles on the topic:

Apple and Samsung Continue the Patent Wars in a California Federal Court

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May 15, 2018

Apple and Samsung meet, yet again, in a California Federal Court. This time to determine how much Samsung owes Apple for infringing three of Apple's U.S. design patents.

This case began in 2011 when Apple filed multiple lawsuits around the world accusing Samsung of infringing various patents. By August of 2011, Apple and Samsung were litigating 19 ongoing cases in 9 different countries in a dispute commonly referred to as the smartphone "patent wars."

One of the U.S. cases is still pending and currently underway in San Jose, California. While Samsung has already been found to infringe Apple's patents, the remaining issue to decide is how to calculate the damages owed.

In 2012, a jury awarded Apple $1.05 billion (with a "b") in damages, although that amount was ultimately reduced to $548 million in December 2015. A large portion of that amount -- $399 million of it -- was attributable to the total profits made by Samsung under the additional remedy avaialble for infringement of a U.S. design patent.

The following design patents are involved in this case:

The damages were initially calculated based on Samsung's sales of the entire smartphone, even though only minor (in Samsung's view) portions of the smartphone were found to infringe the design patents (i.e., the front face, raised rim, and colorful icons).

In October 2016, the Supreme Court decided that, in the case of a multi-component product, the relevant "article of manufacture" for purposes of damages calculation for infringement of a design patent under 35 U.S.C. 289, can, in some cases, be a component of the product, rather than the entire product. The case was then remanded for further proceedings consistent with this holding.

The question now presented in this case is whether the $399 million owed under the original calculation can be reduced to the value of the offending individual parts of the smartphone, rather than the entire smartphone.

Whatever the outcome, it will surely impact damages in future design patent infringement cases.

Presidents' Day and the Foundation of the U.S. Patent System

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February 19, 2018

Today we celebrate Presidents' Day, also known as George Washington's birthday, which is a federal holiday held in honor of all of the U.S. presidents. Although Washington was born on February 22, 1732, Presidents' Day is celebrated on the third Monday in February, which can occur anywhere between February 15th and February 21st.

Included on George Washington's long list of celebrated accomplishments is the founding of the U.S. patent system. On April 10, 1790, almost immediately into his first presidential term (which was between 1789 and 1793) and about one year after the U.S. Constitution was ratified, President George Washington signed a bill -- the Patent Act of 1790 -- that paved the way for today's patent system in the United States. This bill marked the first time in American history that granted an inventor the "sole and exclusive right and liberty of making, constructing, using, and vending to others to be used" of his invention. The Patent Act of 1790 defined the subject matter of a U.S. patent as "any useful art, manufacture, engine, machine, or device, or any improvement thereon not before known or used."

Although the Patent Act of 1790 has since been amended several times, the underlying goal of promoting the progress of science and the useful arts remains intact.

The very first U.S. Patent, issued on July 31, 1790 to Samuel Hopkins for the improvement in "the making of Pot ash and Petal ash by a new Apparatus and Process" can be accessed here.

U.S. Patent and Trademark Office Press Release #02-26
"George Washington Founds the U.S. Patent System,"

Happy New Year!

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December 29, 2017

In the next few days, many of us will celebrate the new year with fireworks, confetti, and champagne. As you prepare for this Sunday night, keep in mind that many of the celebratory New Years Eve products are, in fact, patented innovations. Below is a short list of some New Years patents that we found to be fun and interesting.

U.S. Patent No. 8,936,503
Mobile Celebration Device
January 20, 2015

Have you ever seen the prominent ball drop in New York's Times Square on New Years Eve, either on television or in person? Well, now you can carry your very own celebratory ball everywhere you go this New Year's Eve with the Mobile Celebration Device disclosed in this patent. An illuminated, timed decending ball is mounted to a base that can take the form of a pair of eye glasses, a hat, tiara, or ring. An electrical motor will control the decent of the ball down a post via batteries and mechanical drive assemblies. The device can visually resemble the Times Square ball and can be synchronized to drop at midnight on New Years Eve. Other features, such as colored or flashing LED's, decorative elements including stationary lights assembled to form numbers representing a year, such as 2018, or letters to form celebratory words, such as 'Happy New Year, ' can be incorporated to enhnance the device.

U.S. Patent No. 6,572,435
Controllable Confetti Launcher
June 3, 2003

I think we can all agree that no New Years Eve celebration is complete without confetti! This patent discloses a Controllable Confetti Launcher that includes a housing for storing the confetti, a rotatable actuator attached to the housing, and a spring biased movable member disposed within an interior of the housing for ejecting the confetti. The movable member is positionable between a locked position and a position where it is free to move. Upon actuation, a spring releases its stored energy on the movable member, thereby ejecting the confetti from the housing. For example, in order to discharge the confetti, as shown in the drawing, a user will rotate the actuator relative to the housing until the spring is released, thereby displacing the movable member. This applies a force to the confetti and results in the confetti being ejected from the housing, perferably in celebratory fashion on New Years Eve, of course.

U.S. Patent No. 8,376,161
Novelty Associated with Beverages
February 19, 2013

This patent is directed to a fun novelty cork or stopper that will almost certainly enhance any celebration, particularly on New Years Eve. The stopper can be used to seal just about any type of pressurized bottle, including, for example, a bottle of sparkling wine or champagne. In some instances, confetti, ribbon or other like material is stuffed or packed inside a hollow chamber within the bottle stopper. The bottom of the hollow chamber is temporarilty closed or sealed off with a disk made of natural cork material to isolate the confetti from the beverage. As shown in the drawings, when the stopper is removed from the bottle, the cork disk will separate, and the confetti or other material will be ejected from the hollow chamber.

U.S. Patent No. 9,409,100
Confetti Popper
August 9, 2016

This patent describes another confetti launcher or "Confetti Popper" that begins with a quantity of confetti (e.g., confetti paper, strings, sparkles, tissue paper, reflective items, streamers, etc.) stored within a elongated cylindrical or other shaped body. In this device, an expandable membrane, such as a balloon, is inflated within the body until a certain amount of pressure is developed. In many cases, an air pump is either permanently or removably attached to the balloon at its inflation end, allowing for manual inflation of the balloon via a hand or foot pump. As the balloon is inflated, it grows or expands on the inside of the body, increasing the pressure with each pump. The increased pressure will eventually cause a cover to be forcefully released, ruptured or broken from the body, while simultaneously ejecting or popping the confetti.

Facebook's Patented Technology Spies Through Your Camera and Responds to Your Expressions

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August 22, 2017

Earlier this year, Facebook, Inc. patented a new technology that watches its users through device cameras, such as front-facing cameras commonly found on cell phones and other mobile devices, to detect the user's emotions and facial expressions as the user browses content on Facebook's social network. The patent (U.S. Patent No. 9,681,166) was issued on June 13, 2017 and is titled "Techniques for Emotion Detection and Content Delivery."

The technology is described as being capable of detecting the emotions of a user by watching and analyzing facial expressions as the user scrolls through content on Facebook. The application can use the detected emotion to "tag" the content or to decide what content to display next.

For instance, detected emotions from a number of different users can be used to determine crowd-sourced emotional responses to content. As an example, when a certain amount of users (such as 75%) exhibit laughter when viewing an article, the article may be automatically tagged as being funny.

A user's detected emotional state may be used by the social network to determine what content or advertisements to display next. For example, if a user's facial expression is detected as being bored, Facebook may automatially display funny content or interactive advertisements in an attempt to capture the user's attention. As another example, if a user appears sad, uplifting and happy content or advertisements may be displayed on the user's network feed.

It should be noted that just because a piece of technology is patented, that does not necessarily mean that it is being implemented in the real world. So, while there is no indication that Facebook is currently using the patented emotion detection technology today, similar technology may be or will be implemented soon.

You can access other articles on this topic by the Consumerist and The Daily Dot.

Happy Easter

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April 16, 2017

In celebration of Easter Sunday, below is a short list of some intesting U.S. patents and patent applications with Easter themes:

Easter Egg Coloring Kits
U.S. Patent No. 5,074,239: "Easter Eggs Decorating and Coloring Kit"
U.S. Pub. Patent App. No. 2007/0210594: Egg Dipper for use in Egg Decorating Kit"

Easter Candy
U.S. Design Patent No. D657,527: "Confection" (Godiva Easter Bunny Chocolate Candy)
U.S. Pub. Patent App. No. 2014/0193545: "Caramel, Confection Comprising the Caramel and Method of Making the Confection" (Mars Chocolate Egg)

Easter Decorations
U.S. Patent No. 4,124,135: "Hinged Plastic Easter Egg"

Step 1: Conduct A Patent Search Now

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April 1, 2017

If you have a new idea or invention, the first step in the patent process is often to have a patent search conducted. The results of a thorough patent search can help answer some important initial questions concerning your invention - answers that can help you decide what to do and where to go next.

For exmaple, is your invention new or unique? Does your invention have any specific features or advantages that are different than existing patents or prior art? What features of your invention are important to you, the consumer, or the industry? Where is the industry heading?

Oftentimes, the results of a patent search can be somewhat eye-opening, at least initially. When you receieve the results, analyze them, review the prior art, and attempt to distinguish your invention from those found in the search. This can assist the patent attorney in preparing a more defined or focused patent application -- for instance, one that is directed more toward the features and functions that set your invention apart from others.

You may even realize that, after the results of the patent search become available, your inveniton may change, evolve or improve as you continue to to fine-tune the details and build towards a stronger invention with more unique features and functions.

Again, the patent search is often the first step in the direction of protecting your invention or some of the unique portion(s) of your invention.

Contact us today to get started or to answer any questions that you may have.

Technology Giant, Apple, Continues to Increase its Patent Portfolio at a Significant Pace and is Granted 48 Patent This Week

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In the last three years, Apple has increased its U.S. patent portfolio in a significant manner -- perhaps in an attempt to bolster its position in the intellectual property wars against Samsung and other like technology companies. Apple has grown its U.S. patent portfolio by about 25% every year for the past three years, and currently holds nearly 11,000 U.S. patents.

In a single day this week, the U.S. Patent and Trademark Office granted a series of 48 patents to Apple, Inc., covering inventions directed to optical connectors, methods of improving a search, a multipoint touchscreen, a design for an Apple Watch table drawer, etc.

In comparison, Samsung owns over 55,000 U.S. patents -- more than any other company or entity -- and IBM owns ths second largest U.S. patent portfolio, with a total of about 44,000 U.S. patents.

While it appears that the patent litigtation wars between these companies are winding down, their patent portfolios are continuing to increase at a steady and significant pace.

See the following articles for more information on this topic:

The Telegraph

Patently Apple

Supreme Court Relaxes Standard on Enhanced Damages for Patent Infringement

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On June 13, 2016, the Supreme Court of the United States decided a case (Halo Electronics, Inc. v. Pulse Electronics, Inc.) that surrounds the potential for patent infringement damage awards up to three (3) times the amount found as actual infringement damages. This extraordinary damage multiplier arises under Federal Law (35 U.S.C. 284) and is meant to punish egregious infringement behavior. In order to enforce this law, the Federal Courts previously adopted a two-part test for determining whether such egregious or willful infringement behavior was exhibited, and thus an enhanced damage award would be appropriate.

In this case, the Supreme Court ruled that the two-part test adopted by the Federal Courts is inconsistent with the Federal Law. Specifically, the Supreme Court declared that the test is unduly rigid and impermissibly encumbers the degree of discretion that should be provided to the Courts. The Supreme Court also rejected the two-part test because it inappropriately requires the elevated evidentiary standard of "clear and convincing evidence," as opposed to the lower "preponderance of the evidence" standard.

The result of this case is to lower the burden on patent litigation plaintiffs to obtain triple damages against a defendant who exhibits egregious infringement behavior, even when the infringement is conducted without an "objective" recklessness to the conduct of the infringing party.

An additional article on this topic can be found here.

Can Patents Benefit Your Start-Up Company?

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An interesting article published by the National Law Review identifies 9 reasons start-up companies can benefit from a patent.

Among other items, the article notes that patents can help stop the theft of innovations, can bring prestige and influence, and can increase the chances of acquisition or obtaining venture capital. For instance, in a 2010 study, 80% of start-up companies that received venture capital owned one or more patents. From a marketing perspective, consumers can oftentimes percieve patented products or technology to be of a higher caliber than products or technology that do not have patent protection.

The original article from the The National Law Review can be read here.