AmberBlog

New York based Surfcast are suing Microsoft over the tiles used in the recently released Windows 8 products, and which are also seen in tablets and smartphones incorporating the latest Windows operating system.

The basis of this litigation is the Surfcast owned patent US6724403, which has a priority date of October 1999, and discloses:

a graphical user interface which organizes content from a variety of information sources into a grid of tiles, each of which can refresh its content independently of the others

But were Surfcast the first to patent this concept?

To help answer this question, we entered patent number US 6724403 into our patent search engine AmberScope, currently available in a free beta trial, and which employs the concept of Network Patent Searching to help find patents. This revealed a complex patent landscape, which may not that surprising given the current level of interest in user interfaces. In the picture below, the red circled dot shows the position of US 6724403, and the dots show all of the patents connected by backward or forward citations to this patent, along with a selected number of the indirectly connected patents

There are a number of ways we can analyse such a landscape. In this particular case, we chose to focus on the patents that were filed prior to the year 2001, and ranked all of the patents for their potential relevance to the Surfcast patent. AmberScope includes the ability to capture our rankings via a change in patent colour - in the diagram below red patents are ranked by us as having a relevancy score of 4 (out of a possible 4), orange patents have a relevancy score of 3, purple patents have a relevancy score of 2, and yellow patents have been read but not marked as relevant, 

It should be noted that none of these highly rated patents appeared to give a direct disclosure of the Surfcast patent. This is not surprising - if they did, being a known listed backward citation for the Surfcast patent, the Surfcast patent may not have been granted.

However the value of these patents is that they can guide us to other patents that may have been missed by the patent examiner for the Surfcast patent. In this case, one of the highly ranked prior art patents was US5479602 to Apple. This discloses: 

a method and means for generating and displaying a content-based depiction of a standard icon on the display of a computer

Which does differ from the Surfcast patent, but is a little bit similar.

Where it gets more interesting though, is what happen when the patent network is refocused on this Apple patent. This patent does not have that many connected patents, and one of them, a forward citation is US6988248 to Sun Microsystems (now owned by Oracle), and which has a priority date of June 1997.

US6988248 discloses the concept of a software 'container', where:

An animated indicator displays a graphical animation on the computer screen that represents a software container.....

 ...potentially including information such as amount, type, and activity of the container. As the state of the container changes, the animation routine may change accordingly. In this manner, users are presented with up-to-date and detailed information about a container represented by a small graphic pictorial. Thus, the user receives a continuous supply of useful information about the container without having to specifically select and view the container as a full screen representation.

The particular animation sequence is keyed to the software container represented, and may change as parameters of the software container change.

Which does appear to disclose some of the key elements of the Surfcast patent - suggesting that it could possibly be used to help invalidate the Surfcast patent.

This is a great example of the limitations of conventional patent searching based on keywords. Different patent applicants and attorneys can use different technical words for similar concepts. In this case, Sun used the term 'container' for a concept referred to by Surfcast as a 'tile'. But a rose is a rose by any other name, and this case, a 'container' has a similar apparent meaning to a 'tile'. Just to further confuse things, Apple in turn used the word 'icon' for the same concept.

How many patent searchers reading this would have used 'container' as a synonym for 'tile'? Or for 'icon'?

The example also highlights the inconsistent use of patent codes in this patent document. Consider the table below, which summarise these differences: 

So in summary, a search for earliers patents similar to Surfcast's US patent 6724403 using AmberScope has identified a Sun patent US6988248 that discloses a similar concept, that is connected to the Surfcast patent via an Apple patent. 

The search strategy for this search is shown below.

This case study is a great example of the additional value that AmberScope adds to your patent searching in additional to conventional techniques - and the dangers of relying on keyword or IPC searching alone.

AmberScope is a new patent search engine that allows you to easily search for similar patents to a known patent via its network of citation connections. But given the many already excellent patent search engines out there, why did we decide to develop a new, and very different way to search patents?

1) Because there are many undeserving patents out there

As discussed in an earlier post, there is evidence that suggests that many patents are being granted which may not deserve to be granted:

• Only 54% of litigated US patents are valid: Allison and Lemley, 1998
• Only 22% of US patents have all claims unchanged after re-examination: USPTO, 2012
• 40% of oppositions to granted European patents lead to full or partial loss of claims: EPO, 2012
• Only 47% of litigated Australian patent claims survive invalidity proceedings: Wetherall and Jensen, 2005
• Many patent attorneys believe that non-litigated patents are also of doubtful validity: "the percentage of invalid patents -probably more than 60%" - US patent litigator, 2012

Yet these undeserving patents can have a distortionary effect on the markets they are filed in. Competitors may be discouraged from releasing products and services they have the right to release, or need to commit time and money to file undeserving patent assertions.

The awareness of these undeserving patents is now starting to become a public issue, recognised by the general public as well by the patent profession. In turn, this is starting to lead to political pressure to change the patent system. So it may be in the interest of all of us in the patent profession to improve the quality of granted patents, so that patent laws are not changed in a detrimental fashion as a knee-jerk reaction to undeserving patents.

2) Because searching long lists of patents can be boring and unproductive - and risky

Many likely readers of this blog would have had to search long lists of patent for relevant art. We all know that it can be a boring and unproductive use of our time. So we try to reduce the length of the lists by making certain assumptions about keywords and IPC codes, but these can create the risks that these assumptions lead to relevant prior art patents being missed.

To minimise these risks, patent examiners can be very careful about patent searching, one of the key parts of their job. This can lead to patent examination taking longer than it otherwise might, creating a backlog of patent examinations that can run to 5 years or more in some offices. This in turn provides greater uncertainty to both patent applicants and in particularly their competitors.

3) Because searching by keywords and patent classification codes can miss relevant patents

Whether intentional or not, different patent applicants (and their patent attorneys) can use different keywords for the same technical concepts. As but one example, a cardboard box can be also be described as a container, carrier, carton, receptacle, package, packaging, and there are probably terms I have missed. This can be repeated for almost every technical concept, and means that even the most diligent of searchers can miss relevant patents, even allowing for the dictionaries of synonyms now available in some search engines.

The same applies to patent classification codes such as IPC or USPTO classifications. Because there is always a degree of subjectivity in the allocation of these codes by patent examiners, different patent examiners (for examples in different patent offices) can allocate different IPC codes to very similar inventions. Further errors can result when patent codes are automatically converted from say the USPTO patent classification system to the IPC system.

So the current patent searching system can be boring, unproductive, and still miss relevant patents for a variety of reasons. This can lead to undeserving patents being granted and long examination backlogs, which can have a variety of economic and even political consequences. Clearly improved patent searching processes are required, and AmberScope is our contribution to improving patent searching.