AmberBlog

Patent landscaping is becoming an increasingly important tool to extracting the wealth of information from the 80 odd million patent publications, with it potential to show the leading areas of activity, patent owners and patents.  However when talking to clients, it is becoming clear that these clients want to know more than what is hot - they also want to know what is not - not yet, that is.  In other words, clients want to know where the white spaces are that will give them an opportunity to create new IP ahead of their competitors.

Or in the words of an experienced US patent analyst we are in contact with:

One KEY disadvantage, and in fact limitation that I see in landscapes is the fact that other than providing visual cues where “hot spots” or islands of research are located (and by extension researchers themselves) there is very little insight as to the connections between those hot spots or islands.

…a map showing every contour line does not tell you the entire story, or the best route to a destination. This is true if you are trying to find new paths between two locations on the map.

Luckily, our long standing tool for patent landscaping, Network Patent Analysis (NPA) can help with white space analysis as we will show below with a case study in the smartphone space.

Long terms readers of our blogs will know that NPA differs from other available patent landscaping tools. One of the most important parts of patent landscaping is 'clustering' or grouping patents similar patents together. Other patent landscaping tools tend to do this in one of two ways

• By grouping patents based on keywords. However experienced searchers will quickly recognise that a given keyword (for example 'phone') can cover a broad range of patents, and yet highly relevant patents can easily be missed: 'A handheld computer device'
• By grouping patents based on patent codes. Again a given patent code, whether the older US patent or IPC patent, or the new CPC patent codes can both include a lot of irrelevant patents while missing highly relevant patents.

At Ambercite, we believe that humans are much better at recognizing similarity between patents than computers. More specifically, we rely on the tens of millions of available patent citations, each of which is a record of similarity. But we do more than than that, we then apply advanced algorithms to weight these citation links so that we can tell the most similar patents. This provides a very precise means of grouping patents, more more precise than available with keywords or patent codes (think of how precisely patent examiner can review what can be hundreds of candidate prior art patents to identify the closest X citation prior art patents)

Other algorithms then allow more just grouping patents, as we can also rank individual patents, which in turn allows us to rank patent owners, not just overall but on a technology by technology basis. For these reason, it is not surprising that this combination of: 

• much greater precision than available with other patent landscaping methods.
• an ability to group and rank patents at the some time

has attracted worldwide interest in the NPA. But moving back to the main topic of this blog, how can NPA identify the white spaces in an area of technology?

To answer, we will return to a very popular earlier published NPA patent landscape study on the smartphone 'patent wars', originally published in 2011. Although over two years old, this publication and its accompanying patent landscape map (the zoom function in your pdf reader can provide extra detail of this patent landscape map) provide an excellent example of what is possible using NPA, for example showing that:

• the major areas of smartphone patent litigation were in the areas of mobile data access, touch screen technology, and mobile data transmission, as shown below (with 13 other clusters also identified).

• Apple had a very strong position in touchscreen patents, while Interdigital and Qualcomm had strong position in mobile data transmission:

• Research In Motion (now Blackberry) is the leading patent owner in the mobile data cluster, ahead of Microsoft and Palm (now HP), as shown below.

What should also be obvious from these maps is that there is a lot of 'white space' between these clusters. When we consider the mobile data access' cluster shown above, it appears that this cluster could be also regarded as two sub-clusters (consider the question: 'Is Wall Street in Manhattan or New York?' Of course 'both' is the answer). 

For the rest of this blog, we will regard the 'mobile data access' cluster as comprising two sub-clusters (in the same way New York includes the suburbs Manhattan and Brooklyn), even if these two sub-clusters are well connected. The common subject matter of these two sub-clusters can be surmised by a review of some of the leading patents in the left hand and right hand clusters:

So, not surprisingly, the subject matter of the two sub-clusters were different, but both fell under the general theme of 'mobile data access'. It should be noted that the three patents in the right hand cluster were not targeted toward hand held devices, instead being targeted toward general computer networks, for example as disclosed by US6023708:

This invention relates generally to computer networks, and more particularly to a system and method for using a global translator to synchronize workspace elements such as files across a computer network.

But what about the patents in the middle of these two sub-clusters? Many would regard this spaces between these two clusters as white space. But if you consider some of the maps shown above (in particular the last map) you will see that even in the white spaces between the major clusters, there are almost always patents found. In other words, just like vacuums even in space, white spaces are never truly empty.

We tend to regard the patents found in these white space patents as 'broker patents' because they help to connect technology clusters. But regardless of what you call them, these patents can be very valuable as they provide information about just what the white space opportunities might be - and how a company wanting to file patents in these white spaces could exploit these opportunities.

So what are these white space patents sitting between the two sub-clusters? If we look at the space again, I have selected a couple of the larger patents that sit within this white space.

So why do these patents act to broker these clusters together?

A) US5974238 (1996) - Automatic data synchronization between a handheld and a host computer using pseudo cache including tags and logical data elements - was originally filed by Compaq, discloses:

An apparatus ... for performing dynamic synchronization between data stored in a handheld computer and a host computer,

Which you would expect to fit about midway between the left and right sub-clusters shown above.

B) US6101531 (1998) - System for communicating user-selected criteria filter prepared at wireless client to communication server for filtering data transferred from host to said wireless client - was originally filed by Motorola, and discloses: 

 prestage filtering is applied via user-definable filter parameters (e.g., reject, pass, or granularity filters) on data being transferred between a communication unit (201) and communication server (220) ..This system is configured to support one or more user devices such as wireless subscriber units

Again, this patent appears to be sitting in about the right position in the patent network. While being predominately linked to data synchronisation, it also refers to handheld devices and so is positioned a little away from the 'data synchronisation to remote platforms' sub-cluster and towards the 'smartphone data entry' cluster.

 Applications of white space analysis

This case study has shown what is possible with white space analysis using NPA, once we accept that white space is not in fact as empty as we might think. Applications for white space analysis include product development, IP strategic planning, and targeting of patent acquisitions. NPA is particularly suited for white space analysis because grouping by citation analysis gives greater precision than it possible when grouping patents by keywords or patent codes.

To discuss how white space analysis can be applied in your area of business, please contact us to discuss our NPA service offering.

How do other analysts do it?

It should be noted that this approach differs from the approach used by other patent analyts. These analysts tend to:

1. Build a patent landscape using a grouping method other than the very precise citation based grouping that NPA uses 
2. Try to identify white space by the absence of patents in certain spaces, i.e. in relation to specific keywords or patent codes

In contrast, our NPA approach tends to positively identifies white space technologies by identifying broker (white space) patents siting between patent clusters - hence the title of this blog Positively identifying white space opportunities

PS - what if there are few white space (broker) patents?

Back in April 2012 we reported on an NPA study on patents for Alzheimer's treatments, and in particular how this patent landscape seemed to contain fewer broker patents than normal. At the same time, clinical results from a then highly rated prospect for the treatment of Alzheimer's disease was suggesting that the clear gaps between the various patent clusters may not be justified in practice - in other words treatments for Alzheimer's may show more potential cross-over between these clusters than patent applicants realized. Or as we wrote at the time:

The take home lesson from this is that such clear white space in an NPA landscape should raise the question - what opportunities for new technologies that cross over this white space are going begging?

This is another reason for reviewing your patent landscape of interest carefully for broker patents - because a relative lack of broker patents between dense clusters of patents may signal a commercial opportunity.

After the almost infamous "using a scanner to email documents" patent, one of the controversial patents in the media at the moment is the Personal Audio patent US8112504, filed in 2009, in which is being asserted against a number of high profile podcasters, as well as against NBC and CBS. Co-inventor Charles Call has claimed in relation to this patent that 

We invented the technology that enables podcasting back in 1996 as part of an effort to develop a portable and personal audio system that would offer users a customized listening experience using content and data downloaded over the Internet

But did they? The Electronic Freedom Foundation has taken exception to this claim, and started a project to crowdsource the collection of potential prior art that predates the October 1996 priority date for this patent. The claim that this project is concentrating on is claim 31, namely:

Claim 31: Apparatus for disseminating a series of episodes represented by media files via the Internet as said episodes become available, said apparatus comprising:

• one or more data storage servers,
• one or more communication interfaces connected to the Internet for receiving requests received from remotely located client devices, and for responding to each given one of said requests by downloading a data file identified by a URL specified by said given one of said requests to the requesting client device,
• one or more processors coupled to said one or more data storage servers and to said one or more communications interfaces for:
• storing one or more media files representing each episode as said one or more media files become available, each of said one or more media files being stored at a storage location specified by a unique episode URL;
• from time to time, as new episodes represented in said series of episodes become available, storing an updated version of a compilation file in one of said one or more data storage servers at a storage location identified by a predetermined URL, said updated version of said compilation file containing attribute data describing currently available episodes in said series of episodes, said attribute data for each given one of said currently available episodes including displayable text describing said given one of said currently available episodes and one or more episode URLs specifying the storage locations of one or more corresponding media files representing said given one of said episodes; and
• employing one of said one or more communication interfaces to:

a) receive a request from a requesting client device for the updated version of said compilation file located at said predetermined URL;

b) download said updated version of said compilation file to said requesting client device; and

c) thereafter receive and respond to a request from said requesting client device for one or more media files identified by one or more corresponding episode URLs included in the attribute data contained in said updated version of said compilation files.

Which is a long winded way of saying:

updating listings (and providing links to) new versions of available media episodes to subscribers when they become available via URL links.

The crowdsoucing site has a range of suggestions for prior art, and some of these are quite interesting. Among these suggestion is a reference to a now defunct company called PointCast, who developed a screensaver that pushed news and information to subscribers.

PointCast filed for a series of patents, and among these was US5740549, for Information and advertising distribution system and method, and filed in June 1995.

The '549 patent discloses 

An information administrator in each workstation establishes communication with the data server from time to time so as to update the information items and advertisements stored in local memory ..

Yet another goal of the present invention is to divide news stories into at least two portions, a preliminary portion and a secondary portion, where the preliminary portions of news stories are automatically displayed during idle periods, and the secondary portions are displayed only upon subscriber request....For instance, as will be described below, there are number of ways in which a subscriber can request the display of the "full text" of a news item (which may include photographs and the like). For convenience, the primary component of each news story is sometimes herein called the "headline", even though it will often contain more information than just the headline of the news item, and the secondary component of each news story will sometimes be called the "body."

Substitute the words 'media file' in the Personal Audio file with the words 'news item', and there are some clear similarities to this PointCast patent. One definition of media, btw, is mass communication, which clearly covers news feeds.

There is a also a later US6807558 Utilization of information “push” technology (filed in 1998, but claiming the same 1995 priority date as the '959 patent and preceding the Point Cast patent by 11 years)  which discloses

In the PointCast Network, a user, employing locally installed push client software, subscribes to channels or topics of interest.  Basically, after establishing a profile, the user receives updated information either in response to automatic polling of the content server at specified intervals by the push client software or in response to the server sending immediate information updates to client software that has been enabled for such frequent feeds of information..The URL property specifies the location of a HTML or animation file.

The '549 patent is doubly useful as it can it be used as the focus patent in an AmberScope network patent search. However before doing so, we need to return to the inventive concept we had discussed previously for the Personal Audio patent.

 updating listings (and providing links to) new versions of available media episodes to subscribers when they become available via URL links.

Unlike most other patent searching systems, AmberScope is not based on finding patents with similar keywords or IPC codes - as we believe that such methods, while useful in many cases, can lead to highly relevant prior art being missed. But this require you to understand the underlying concept of the patent being investigated before using AmberScope, as listed immediately above.

The image below shows some of the patents connected to the '549 patent, namely the 124 of these patents filed in 1996 or earlier.

While 124 patents sounds a lot to review, AmberScope comes with a useful feature to work your way through these patents in order of predicted patent influence (AmberScore values), namely the "Next" button, shown below, which opens up the next not read patent in the network. Often the most influential patents have the highest AmberScore values, meaning that you might only need to review a small fraction of the 124 connection to find more relevant prior art.

When reviewing patents in this way, one of the most interesting connected patents was US5450505, covering a System for scheduling transmission of indexed and requested database tiers on demand at varying repetition rates, filed in 1991. This covers:

An information broadcasting system provides a large number of subscribers access to a large amount of information using one or more satellite transmission channels...A program supplier station stores an information database and tags all the information in the database with indices so as to form a single hierarchical structure which encompasses the entire information database. Portions of the information database are transmitted often, at least once per day, in order to provide the basic subscriber with information need to access the remainder of the database

This system is linked to cable TV broadcasting and does not appear to specifically refer to downloading the program by the subscriber. Nonetheless the overall principle is similar, suggesting that the network can be refocused onto this patent using the "more button

When this is done, a further 252 patents are shown (the network below shows these patents filed in 1996 or earlier)

Again using the Next button, one of the first patents we come to is US5901287 for an Information aggregation and synthesization system, filed in July 1996, and disclosing

The user selects information to be viewed from the results of the search. This information is retrieved from its source and presented to the user in the manner and at the time requested. The available display options include but are not limited to: display on the user's network capable device, personal TV channel, customized Internet page, custom CD-ROM, electronic mail, mobile devices (Personal Digital Assistants, telephones and pagers) and facsimile. Information retrieval and display can be text, still pictures, videos, Interactive multimedia, audio and geographic.

Users using the user access system 100 will be able to establish persistent (stays in the system after the user quits using the system) software text agents which describe some criteria, which, if met, will cause them to be notified. 

Another similar patent in the same network is US5768528 for Client-server system for delivery of online information, filed in May 1996, which discloses 

This invention relates to a client-server system for delivering online information, and more specifically to a news delivery system configured to send updated information at scheduled intervals.

And we could keep going finding similar patent, but by now the key messages should be clear

• Crowdsourcing can be an excellent means of not only finding prior art, but also patents that can be used as starting point for network searches using AmberScope. 
• A search in AmberScope for patents connected either directly or indirectly to a very influential patent filed prior to the October 1996 priority date of a controversial Personal Audio systems patent shows that already at this date, there was  patent literature disclosing similar inventions.

Having said that, Personal Audio has in recent days reaffirmed its faith in its patent, and perhaps only the courts can determine the ultimate validity of this patent.

This patent searching process is summarised below:

 PS - The hidden risks of suing broadcasters?

As reported in Networkworld, there may be hidden risks is suing broadcasters, as is being done by Personal Audio. Broadcasters do just that, broadcast, and personal affected broadcasters have not held back on this issue, and Networkworld has suggested that the broadcasts may have been influential on new laws being proposed in the patent space - and perhaps even on the very recent announcement by President Obama in this area.

Can the atomic bomb be patented? Would the US government have ever allowed this?

According to Alex Wellerstein, an historian at the Institute of Physics, the answer is a resolute yes. Wellerstein has written how during the Manhattan project there was a directive to patent the bomb broadly, and this led to some 2100 patent applications, across 493 different subject classes (even if many of these were kept secret by the patent office). This policy was initiated by the then director of the National Defence Research Committee (NRDC) in an attempt to consolidate the ownership of this intellectual property under the US government.

The atomic bomb is in fact the culmination of a long series of inventions, as detailed in the excellent Pulitzer Prize winning Richard Rhodes book The Making of the Atomic Bomb (originally published in 1987). The first of these was the concept of an atomic bomb itself. According to Rhodes, the concept of using nuclear fission to create powerful bombs was first conceived by Hungarian born engineer Leo Szilard in 1933. Szilard was familiar with the patent system during time spent in Berlin, where he collaborated with a former patent examiner by the name of Albert Einstein to develop and patent a refrigerator. Moving to London in 1933 to escape Jewish persecution, Szilard had read a 1932 speech by Ernest Rutherford dismissing the likelihood of the process developed by Rutherford to split the atom ever creating more energy than it consumed. Szilard disagreed with this view, and realised that fission did have the potential to create enormous amounts of energy, leading to his 1934 patent application, GB630726 Improvements in or relating to the transmutation of chemical elements.

Moving to the US in 1938, Szilard became concerned by German developments in the area, and in 1939 encouraged the already famous fellow US immigrant Albert Einstein to co-sign and present a letter warning the then president Franklin D. Roosevelt that the Nazis were working on such weapons. The letter caught the attention of Roosevelt and became the catalyst for what was to become the Manhattan Project.

Szilard became involved with this project, including working with Italian emigre Enrico Fermi, who had escaped Fascist Italy in 1938 to protect his Jewish wife. Fermi famously was the first to create a self-sustaining nuclear reaction, in a converted squash court at the University of Chicago - he later admitted not asking the University for permission to build a nuclear reactor on their site, because they would probably would have said no. Luckily for the university and the nearby residents, the experiment went exactly to plan, and the reactor was later moved to a more remote site.

This collaboration lead to the 1944 filed patent US2708656 Neutronic reactor, which is regarded as one of the key patents for the atomic bomb as it discloses the production of 'fast neutrons', which travel at roughly 10% of the speed of light and which are considered essential for the creation of an atomic bomb. This patent was to cause tension between the Szilard and the managers of the Manhattan project, who forced Szilard to hand over the ownership of this project to the US Government in return for being allowed to stay on the project.

US2708656, not surprisingly given its importance, sits in the centre of a network of similar patents, as shown in the AmberScope network below. In the network, patents owned by the five leading patents owners are colour coded - with these owners being, in order of the number of patent held, Hungarian American nuclear physicist Eugene Wigner (green patents), UK Atomic Energy Authourity (blue patents), US Government agencies (purple patents), Fermi (orange patents), and the US French government agencies (red patents).

The majority of the patents within this network were filed between 1945 and 1959, as shown in the figure below, suggesting a rate of technology development (at least for patentable inventions - see the section below) that was slowing significantly by the early 1960s.

 By 1944 the Manhattan Project was well underway. Costing around $2 billion at the time (about $26 billion in 2013 dollars), at its height the Manhattan Project employed 130,000 people, more than the US automobile industry at the time. Yet this project took place in high secrecy, with the then vice-president Truman needing to be briefed from scratch upon assuming the US presidency in 1945.

The Manhattan project had to overcome a large number of enormous engineering challenges. Among these challenges was to produce enough of the right sort of radioactive material needed for a fission bomb. Uranium in its natural state comprises two isotopes, and only the lighter isotope U235 is suitable for atomic bombs. However U235 only comprises 0.7% of natural uranium, and chemically is very similar is to the main isotope U238, and making separation proved very difficult. One of the answers to this challenge was patented by the American Nobel Prize physicist Ernest Lawrence, who developed a calutron, an industrial sized mass spectometer, to separate these isotopes in 1944. This was projected by (along with 150 other patents) US patent US2709222 Method and apparatus for separating materials in 1944.

U235 was used as the raw material for the 'little boy' atomic bomb that was dropped onto Hiroshima, which was based on firing a cylinder of U235 down an internal gun barrel onto a inner slug of this material to obtain the necessary critical mass to support nuclear fission, and which at the same time initiated the fission reaction through a separate neutron generator at the end of the gun barrel.

An alternative approach to producing fissionable material was to bombard uranium with neutrons to produce the very rare element plutonium, which is both eminently suitable for fission bombs, and relatively easy to separate from uranium due to its different chemistry. Plutonium was used as the basis for the Trinity nuclear test, the first atomic explosion in the deserts of New Mexico, as well as the 'Fat man' bomb that was dropped onto Nagasaki. These bombs had a different design to the Hiroshima bomb, being based on a core of plutonium imploded into itself to create a critical mass. This design is more or less used to this day as part of the design of hydrogen bombs (hydrogen bombs require an atomic bomb to initiate the nuclear fusion process).

The production of plutonium was claimed by patent US 3190804 Method for producing, separating and purifying plutonium. As with the Fermi/Szilard patent, the ownership of this patent was contested, but the inventors ended up being paid $100,000 in 1955 each for their patent rights - the equivalent of around $860,000 in 2013 US dollars.

Should atomic bombs be patentable? And you thought that patenting business methods was controversial

As described by Wellerstein, at the end of WWII the US senators sitting on the Special Committee on Atomic Energy were most surprised in 1946 to hear that thousands of patents had been filed for aspects of the atomic bomb, for reasons including: 

because it had been feared that private inventors might file speculative patent applications and believed that the “first-to-file” status of the U.S. government would help in potential interference lawsuits.

with the overriding objective being to control this technology (these days we might also talk about patent thickets). This surprise soon turned into intention to control the technology using other legislative instruments than the patent system, which after all is designed to encourage private innovation by publishing the innovation as well as providing a temporary monopoly, and so not really suited to technologies such as atomic weapons. 

At the same time, it was decided to issue a legislative decree that:

no patent shall hereafter be granted for any invention or discovery which is useful solely in the production of fissionable material or in the utilization of fissionable material or atomic energy for a military weapon,

as covered in 42 USC § 2181 - Inventions relating to atomic weapons, and filing of reports 

There of course a number of good reason for this, including that patent applications are designed to be discoverable, and even confidential applications can be copied by determined spy networks. In a later book on the development of the hydrogen bomb, Rhodes writes about how about Soviet Russia in the early 1940s had turned industrial espionage from the US into a virtual industry, including bulk copying of patent applications which were transported by Lend-Lease flights to Russia - thereby saving the need of Soviet Russia to pay patent license or technology transfer fees. 

Is the Manhattan Project a candidate for the greatest startup of all time?

Very few people have probably heard of Leo Szilard, but this review would suggest that he has a claim to being one of the greatest start-up 'entrepreneurs' of all time. While not being hands-on during all of the part of the Manhattan Project, Szilard did originally conceive the concept of the atomic bomb, filed some key patents in the area, sold the project even if indirectly to the President of the USA, and then watched the project grow in a few short years to a $26 billion (in today's money) project employing 130,000 people and allegedly having priority over all other US military projects in WWII. A true rival for Steve Jobs or Mark Zuckerberg?

As followers of IP would attest, IP law develops in two ways, firstly via new legislation, and secondly through new (or revised) interpretations of existing laws, applied during patent law cases that can end up the highest courts in the land - and hence become influential on lower courts who are required to apply these new interpretation whenever applicable.

Both processes are ongoing, with new patent legislation before the US Senate aimed at dealing with so-called patent trolls, and with the recently announced US Federal Circuit en ban decision in CLS Bank v. Alice Corp making patent professionals think again about software patents.

Each of the cases that lead to revised interpretations are based on real court cases, and often in relation to questions of validity of patents that challenge the existing understanding of the limits of patentable subject matter.

So what are the types of patent that can change patent law? Do they deserve their exulted status?

There are many candidates for such patents, but patents for five of the most relevant cases that are still impacting on modern patent law are reviewed below. In each review we will concentrate on the patents and not the legal aspects of the case - these have often been well covered by legal scholars.

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1) Diamond v. Chakrabarty (1980) concerned the question of whether a genetically engineered bacterium capable of breaking down crude oil could be patented by General Electric, the employer of Chakrabarty. The examiner rejected the patent on the grounds that he understood at the time that living things could not be patented. However the US Supreme Court allowed the patent, ruling that patentable subject matter should 'include anything under the sun that is made by man'. This definition has since been used to justify the patenting of a wide variety of inventions, including business methods and software, as will become clearer in the subsequent discussions.

The patent in question is US 4,259,444, filed in 1972. When reviewed in our novel patent search tool AmberScope as shown below, it can be seen that while this patent had a huge impact in patent law, it only had a mild impact on the patent literature. The '444 patent has an AmberScore value of 0.19, or 19% of the average for US granted patents (admittedly filed in the last 20 years). This may reflect its zero backward citations, and just 21 forward citation in over 40 years.

Another interesting test of relative quality is to compare the AmberScore value of the patent being reviewed to the AmberScore values of its directly connected neighbors (forward and backward citations). The median AmberScore value for the patents the '444 patent is directly connected to is 0.61 - and in fact, this patent sits in the bottom 20% of these patents when rated by AmberScore value.

So for this patent, its impact on the patent literature has been smaller than its influence on patent law.

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2) State Street Bank v. Signature Financial Group (1998) concerned a case where the US Federal Circuit held that a patent in relation to setting a share price to minimise tax was patentable as it "it produces a useful, concrete and tangible result" - . In doing so, the Federal Circuit essentially confirmed the patentability of business patents, a decision that is thought to have been overturned by the Supreme Court ruling on the validity of the next patent on this list. 

But returning to State Street, the patent in question was U.S. Patent 5,193,056, filed in 1993. In contrast to the Chakrabarty patent, the Signature Financial Group owned patent has had a strong impact on the patent literature, with an AmberScore value of 6.7. This includes contributions from 277 forward citations. Similarly, an AmberScore value of 6.7 compares well to a median score for 3.3 for its directly connected patents, and sits in the top 25% of these patents.

The intensity of the connection to the Signature patent is shown in the image below, which shows a crowded patent network.

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3) Bilski vs Kappos  (2010). State Street may have opened up the door for business method patents, but Bilski is thought to have started the process of closing this door. First filed in 2002, Bilski claimed a method of hedging risks in commodities trading via a fixed bill system. Rejected by the USPTO, Bilski was litigated all of the way up the US Supreme Court, who rejected the patent in 2010 because the claimed invention did not "transform any article to a different state or thing". While legal obligations were transformed by this invention, they "cannot meet the test because they are not physical objects or substances, and they are not representative of physical objects or substances." 

The patent application in question was US20040122764. Besides being unsuccessful in attracting patent protection, the Bilski patent was also unsuccessful in attracting citation connections. The image below shows this the Bilski patent, with an AmberScore value of just 0.01, or 1% of the average AmberScore value for granted US patents less than 20 years old. All of the connected patents have higher AmberScore values, but with a low median value of 0.42.

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 4) Mayo v. Prometheus (2012). The next major narrowing of patentable subject matter came in 2012 with Mayo v. Prometheus. This case concerned an invention for a feedback loop that adjusted the dosage of a drug depending the measured response of a body to the drug. The US Supreme Court ultimately rejected the patent, on the grounds that it was an unpatentable "natural law" and not a “genuine applications of those laws ....rather ... drafting efforts designed to monopolize the correlations."

There were two patents in question, namely  US 6,355,623 (AmberScore value 1.1, 3 forward citations, 2 backward citations) and US 6,680,302 (AmberScore value 1.3, 1 forward citation, 5 backward citations). The AmberScore map for the higher scoring 302 patent is shown below (besides the directly connected patent, this map shows potentially relevant indirectly connected patents.

The median AmberScore values for the directly connected patents was 0.3, with the the '302 patent having a higher AmberScore value than any of these patents, including the '623 patent.

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5) CLS Bank v. Alice Corp (2013). The last patent is a recent Federal Circuit en banc ruling that may be appealed to the Supreme Court, but already has thought to have wide ranging implications. CLS Bank concerns an application for four patents, which including claims for a business method of reducing counter-party risk during trading using a third party - and claims for the application of this business method using a computer.  While the different judges on the panel gave slightly different opinions, the dominant opinion can be simplified to 

• The business method claims were abstract ideas and therefor not patentable
• And more controversially, incorporating the use of a computer into a similar claim was 'insignificant post-solution activity' because 'Abstract methods do not become patent-eligible machines by being clothed in computer language'.

The four patents in question were:

• US 5,970,479 filed in 1993, (AmberScore value of 23, 234 forward citations, 30 backward citations)
• US 6,912,510, filed in 2000 (AmberScore value of 6.7, 28 forward citations, 61 backward citations)
• US 7,149,720, filed in 2002 (AmberScore value of 5.3,  2 forward citations, 63 backward citations)
• US 7,725,375, filed 2005 (AmberScore value of 5.6, 13 forward citations, 92 backward citations)

So all patents have respectable AmberScore values. This is demonstrated in the very crowded patent network for the first listed of these patents, shown below. The median AmberScore value of the directly connected patents is 1.73, and the AmberScore value of the '470 patent was enough to put this into the top 10% of this crowded patent landscape.

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When comparing these patents, three of these patents had comparatively low AmberScore values, showing in this limited sample a non-existent relationship between high AmberScore values (and forward citation count) and litigation. Does this mean that such measures are a poor predictor of important patents, since litigated patents are more likely to be important than non-litigated patents?

Not at all. Without doubt, litigated patents are important to their owners, but patent owners are not always a truly objective judge of the value of a patent. More to the point, for the validity of a patent to be litigated up to superior courts requires an opponent with a belief that the validity of the patent is arguable, and be prepared to spend a significant amount of money to pursue this argument. It also requires courts that are willing to hear these cases, that is willing to accept that there is an argument to be heard. 

Imagine, in contrast a hypothetical high quality patent that an opponent reviews and finds no substantial grounds to oppose. They would be more likely to settle a dispute in relation to this patent than risk the cost, bad publicity, embarrassment, and court ordered damages that could result from what would be likely to be a unsuccessful attempt to invalidate the patent.

For this reason, Ambercite, unlike some other analysts, does not include litigation history when assessing patent quality - because many of the best patents may never be litigated.

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PS - A future candidate for the list of patents that may change patent law?

I have already commented twice on the 'using a scanner to email documents' patent, a patent that is still causing problems to small business owners in the US. An earlier post pointed out how relatively weak this patent was according to an AmberScore analysis. Patents such as this have appeared to catalyze new legislation aimed at so called 'patent trolls' - if this legislation is passed, this particular patent is sure to be mentioned as a reason.

The patent network for this patent is shown here - and confirms that this is a low (predicted) value patent. An AmberScore value of 0.03 places this patent dead last last among its directly connected patents.

As the quantity and value of patent filings, acquisition and litigation increases rapidly, there has been an big increase in the number of specialists offering services around the analysis of patents, including Ambercite. Both the clients and service providers use a number of terms in relation to these services, such as patent landscaping, mapping, searching or portfolio analytics/analysis  - and sometimes inconsistently. 

So what do these different terms mean, in our view?

1) Patent searching is exactly that, searching for patents that meet specific criteria and something that should be very familiar to most readers.  Patent searches are often divided into novelty searches (has a given technology been disclosed in the patent literature?) and Freedom to Operate (FTO, can I make or sell a specific product or service?) searches, which aim to understand if a given technology will infringe valid patents 

Patent searching is often by done by patent attorneys  and examiners, inventors, and companies monitoring their competitor's activities. The outputs of patent searches are often lists of relevant or potentially relevant patents.

2) Portfolio assessment (or portfolio analytics) is the process of ranking patents in a portfolio in an objective manner. This can be of particular interest to IP managers or owners who want an independent opinion on the relative quality of their patents. Alternatively they might want an independent opinion on their competitors patents, and how these compare to their patents. Parties looking to acquire patent portfolios might also be interested in portfolio analytics.

The outputs of portfolio analytics tend to be table of patent numbers, with details of each patent given including indicators show the objective assessment of each patent listed.

3) Patent landscaping (also known as patent mapping, or patent technology mapping) generally refers to the process of analysing a group of patents in a specific area of technology. The purpose of patent landscaping is generally to identify key trends in the data, such as clusters of activity within this set of patents, dominant owners, dominant source of technology (such as leading countries), leading inventors, leading patent classes, age profiles etc.

Patent landscaping tends to have particular attraction to larger companies trying to understand their relative competitive position in their technologies, the activities of their competitors and to identify key patents to acquire, license or design around. Other clients can include researchers and universities.

The outputs of patent landscaping can be reports, graphs, and in some cases maps showing the leading aspects of the technology.

These different processes are compared in the table below, which also shows the Ambercite products developed for each of these processes (and which are further described below).

How Ambercite can help with each of the above

Amberscope - patent searching

AmberScope has been developed by Ambercite to assist with patent searching. The challenge with all patent searching is to reduce the over 80 million patents to a manageable number. Traditionally this is done by filtering the patents using a combination of keywords and patent codes. In practice these keyword and patent codes can be inconsistently applied, and so AmberScope uses patent citation connections as an alternative means of finding patents similar to a starting patent. As a bonus, besides lists of relevant patents AmberScope also presents results in an intuitive graphical format.

An output from an AmberScope search is shown below. Further examples of AmberScope searches are found here.

AmberScore  - portfolio analytics

Many important patents tends to have many and deep forward and backward citations - and these cited patents in turn are connected to other important patents. AmberScore is Ambercite's formula for predicting the influence of a patent based on its citation connections.

AmberScore values can be easily obtained for any patent by looking up this patent in AmberScope. A portfolio review product is under development, and should be available soon. An example of an AmberScore value is shown in the image below (this particular patent, the key patent for the multi-billion dollar omeprazole drug, has an AmberScore value of 16, or 16 times the average AmberScore value for granted US patents).

Network Patent Analysis - Patent landscaping 

Ambercite's patent landscaping product is Network Patent Analysis (NPA), which unlike many other landscaping technology, both groups patents with similar patents and ranks them as well, based on their patent citation connections. 

The image below shows an output from an NPA study. The blue patents belonged to a client company, and the red patents to their competitors. Just like in AmberScope, larger patents are more important. Further examples of NPA projects are found here.