From Camera Obscura To Camera Futura - How Patents Shaped Two Centuries of Photographic Innovation and Competition

Elliot Brown, Ben Hattenbach, and Ian Washburn

The development of photographic technology has been one of the defining achievements of the last several centuries. About a thousand years ago, the state of the art approach to recording imagery involved what was called a ”camera obscura.” This device was a large box or even a full room with a hole in one side, which was used to project an upside-down image of its surroundings on a screen, enabling one to trace the image onto paper. Less than two hundred years ago, the cutting-edge technology for imaging was the daguerreotype, an expensive and unwieldy process through which a delicate image could be etched onto silver-coated copper plates that had been sensitized in iodine vapor. Today, in contrast, the Internet provides ready access to gigapixel imagery captured by space telescopes of galaxies billions of light years away. Even run of-the-mill consumer equipment offers image-stabilized autofocus lenses and image sensors whose tens of millions of pixels can capture details in near darkness.


Written By: Roland Casillas
              Web and Blog Editor

Patent No. 4,166,462 A

Self-propelled Shark-proof Cage

Inventors: James M. Ellis


Written By: Roland Casillas
      Web and Blog Editor

Patent No. 1,809,593 A

Folding Ornament of Expansible Tissue

Inventors: Henry E. Luhrs

Assignee: Beistle Company


The Failure to Preserve CRISPR-Cas9’s Patentability post Myriad and Alice

Benjamin C. Tuttle

The CRISPR-Cas9 system is a highly versatile genome-editing technology that is derived from bacteria. Heralded as one of the most influential biotechnology discoveries in history, CRISPR-Cas9 is unlike any previous geneediting technology because it utilizes a simple RNA template and a relatively small universal enzyme to accurately, efficiently, and cheaply make genetic modifications in any organism. Developed independently by two leading research groups out of the University of California, Berkeley (“Berkeley”) and the Massachusetts Institute of Technology (“MIT”), the ownership of CRISPR-Cas9 technology has lead to a patent dispute, culminating in the recent allowance of an “interference proceeding” by the United States Patent and Trademark Office (“USPTO”). The USPTO’s pending decision on this interference proceeding leaves uncertain the propriety of a technology projected to be worth billions. 


Curiouser and Curiouser! Why the Federal Circuit Can’t Make Sense of Alice
Austin Steelman

In 2010, the Supreme Court broke nearly its nearly three-decade silence on patentable subject matter under 35 U.S.C. §101 in Bilski v. Kappos. The Court rejected the Federal Circuit’s machine-or-transformation test but declined to “define further what constitutes a patentable ‘process”’. Without a new test, the Federal Circuit’s post-Bilski decisions presented inconsistent interpretations of §101, especially for software patents. So in June 2014, the Supreme Court once again sought to bring clarity to the questions surrounding the abstract idea exception in Alice Corp. v. CLS Bank.


Written By: Roland Casillas
      Web and Blog Editor

Patent No. 6,568,120 B2

Ice Fishing Trap

Inventors: Kasmir Smolinski 


Two Years After Alice v. CLS Bank 

Jasper L. Tran

As of June 19, 2016, courts have examined 568 challenged patents brought under § 101 motions citing Alice, resulting in 190 valid patents and 378 patents invalidated with an average invalidation rate of 66.5%. Specifically, the Federal Circuit upheld 3 patents and invalidated 34 patents—an average invalidation rate of 91.9%. Also, courts have decided a total of 500 motions brought under § 101 citing Alice, resulting in 109 validation holdings and 391 invalidation holdings with an average invalidation rate of 78.2%. Specifically, the Federal Circuit has decided 26 motions, resulting in 2 validation holdings and 24 invalidation holdings with an average invalidation rate of 92.3%. The district courts have decided 251 motions, resulting in 84 validation holdings and 167 invalidation holdings with an average invalidation rate of 66.5%. The PTAB has decided 209 motions, resulting in 23 validation holdings and 186 invalidation holdings with an average invalidation rate of 89.7%.


The Bedeviling Mess of ePlus, Contempt, and Article III

Wayne A. Kalkwarf and Matthew D. Tanner

ePlus, Inc. v. Lawson Software, Inc.1 concerns the cancellation of patent claims. Although a judicial decision cancelling a patent claim would not necessarily warrant significant scrutiny, ePlus addresses an issue beyond the scope of routine patent jurisprudence. The decision involves a basic constitutional power of the judicial branch.

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