California Patent Attorney® Blog

March 2011 Archives

Google's Search Goes Visual...And Social

March 21, 2011,

face.jpgCalifornia - Google's empire, built on advertising revenue tied to keyword searching, has recently taken a turn toward image-driven search capability with the addition of two patents.

The first, "User Interface for Presenting Search Results for Multiple Regions of a Visual Query," describes how an overall visual query, such as a photograph, screen shot, or video frame is first submitted to a computing system, which then breaks it up into discrete pieces, possibly according to type. Each piece is then sent to a specific search system implementing a distinct visual query search process. A plurality of results is generated and an interactive results document is created and sent back. This document has one or more visual identifier for each piece of the overall picture with a selectable link to a particular result for that piece. The visual identifier may be a box or a translucent label which could be color-coded by type.

Even more provocative, though, is the second patent, "Facial Recognition With Social Network Aiding," which describes a computer-implemented method of processing facial image queries using social media data pertaining to the requester in order to obtain results. This is accomplished by identifying one or more individuals associated with potential image matches and measuring social connectivity between that image and the requester. These social metrics may be obtained from communication applications, social networking applications, calendar applications and other collaborative applications. Next, an ordered list of persons is generated by ranking the visual similarity between the queried image and potential image matches. Finally, results from the list are sent to the requester.

Google has a couple of ideas for protecting the privacy of Facebook users and the like. First, Google contemplates allowing facial recognition capabilities only to the person positively identified in a picture. A second possibility is based upon obtaining permission. Once a person has been positively identified, a request might be sent to that person asking to allow their image to be returned in future searches conducted by people within their social network.

The ideal of mining social network data to improve facial recognition has been explored by others, too, including researchers at Harvard, who published a paper on the topic in 2008 concluding the technology had promise. (Autotagging Facebook: Social Network Context Improves Photo Annotation).

Critics point to darker possibilities, though. Dictators and governments are already identifying people based upon photos posted in social media connected to their real names. After the Iranian protests were over in 2009, the government is known to have gone through Flickr, collected photos of protesters then published them on government websites.

Nonetheless, Google continues to develop such technology amid its broader overall effort to add visual and social networking capabilities to its search technology.

Apple's New Patent - The iGlove?

March 15, 2011,

gloves.jpgCalifornia - Capacitive touch-screens, such as those found on the Apple iPod, as well as many tablet PCs and smartphones, detect inputs through distortions in the screen's electrostatic field. These distortions can be caused by the touch of a finger, thanks to the human body's conductive properties. On the other hand, nonconductive materials such as fabric are unable to interact with the screen.

Since actions such as cleaning the screen with a cloth or keeping the device in a pocket will not activate the screen, this also means that a user will not be able to use their iPod or smartphone touchscreen while wearing gloves, a dilemma in times of cold weather. In its new patent for a "High Tactility Glove System," Apple seeks to solve this problem by creating a system where a user can operate the touchscreen while keeping their gloves on and hands warm.

The patented glove consists of two layers, a thin inner liner and a thicker outer shell. The inner liner is made of an electrically conductive material, simulating the electrical properties of human skin. The thicker and more insulated outer shell contains apertures at the fingertips. Normally, these are kept closed, which can be done with an elastic ring surrounding the aperture or by having the aperture covered by a removable cap. However, when a user wearing the gloves wishes to use an electronic device, they can peel back the outer shell so that the inner liner protrudes through, where it is able to contact and interface with the device. After performing the desired operations, the liner is then withdrawn back into the shell.

The patent also claims an embodiment of the invention where the outer shell also contains a conductive portion electrically coupled to the inner liner, allowing the surface of the outer shell to interact with a touchscreen. However, the apertures still exist in this embodiment should the user wish to perform actions requiring more precision than would be practical with the bulkier outer shell.

25% Rule for Patent Damages Rejected; $19 Billion Cat back in bag

March 3, 2011,

cat in bag.jpgCalifornia - 35 U.S.C. § 284 provides that upon finding infringement of a valid patent, damages shall not be "less than a reasonable royalty for the use made of the invention by the infringer, together with interest and costs as fixed by the court." Often, during litigation, the "reasonable royalty" rate is arrived at through imagining a hypothetical negotiation has taken place between the parties at the time infringement began. (Wang Labs. Inc. v. Toshiba Corp., 993 F.2d 858, 869-70 (Fed.Cir.1993)).

The 25% rule is a tool that has been used to approximate the reasonable royalty rate that the manufacturer of a patented product would presumably be willing to offer to pay to the patentee during a hypothetical negotiation. The Court of Appeals for the Federal Circuit has tolerated its use where its acceptability has not been disputed. Lower courts have invariably admitted evidence based on the 25% rule, due either to its widespread acceptance or because its admissibility was not contested.

Critics of the rule point out three main flaws. First, the relationship between the patent and the accused product is ignored. Consequently, the particular importance of the patent to the profits of the product, the availability of close alternatives, and other potentially important factors likely to be taken into account in real negotiations are not. Second, the relationship between the parties is ignored. For example, degree of risk cannot be explicitly apportioned between the licensor and licensee of a particular technology. Third, the rule is arbitrary and does not relate necessarily to the results of a negotiation hypothesized to have taken place before the infringement. Recently, Uniloc USA, Inc. v. Microsoft Corp., ___ F.3d ___ (2011 WL 9738) gave the Federal Circuit a chance to revisit damages.

Uniloc alleged that Microsoft's "Product Activation" authentication feature found in Word XP, Word 2003, and Windows XP programs infringed its '216 patent covering an anti-pirating software registration and licensing system utilizing a particular algorithm and the jury agreed. They awarded Uniloc $388 million in damages for patent infringement, relying upon Uniloc's expert, Dr. Gemini, who testified that damages should be $564,946,803 based upon a hypothetical negotiation between the parties (and the Georgia-Pacific factors).

Dr. Gemini applied the 25 percent "rule of thumb" to the $10 estimated value of each infringing Product Activation key on Microsoft licensed software, yielding a value of $2.50 per key. He then multiplied this number by the number of new Office and Windows product licenses (225,978,721) sold, which resulted in the $565 million value. He then "checked" his valuation by calculating that against the $19 billion total market value of Microsoft product sales, his $565 million represented only a 2.9% royalty rate. He even presented a pie chart to the jury displaying information to this effect, noting that 2.9% was reasonable.

On appeal, the Federal Circuit, faced for the first time with a chance to rule squarely on the rule, seized the opportunity:

"This court now holds as a matter of Federal Circuit law that the 25 percent rule of thumb is a fundamentally flawed tool for determining a baseline royalty rate in a hypothetical negotiation. Evidence relying on the 25 percent rule of thumb is thus inadmissible under Daubert and the Federal Rules of Evidence, because it fails to tie a reasonable royalty base to the facts of the case at issue."

Id. at 19. Thus, under the Daubert standard for expert testimony and FRE 702, general theories are permissible only if the expert sufficiently ties the theory to the specific facts of the case at hand.

The court went on to review numerous cases, from Kumho Tire and Joiner to ResQNet and Wordtech and held that their meaning was clear: "[T]here must be a basis in fact to associate the royalty rates used in prior licenses to the particular hypothetical negotiation at issue in the case. The 25% rule of thumb as an abstract and largely theoretical construct fails to satisfy this fundamental requirement."

At trial, Microsoft argued that Uniloc's use of the entire market value rule was not proper since the Product Activation key did not create the basis for customer demand or substantially create the value of the component parts, and Dr. Gemini's testimony tainted the jury's damages deliberations. The district court agreed and granted a new trial on damages. The "$19 billion cat was never put back into the bag" and the jury may have "used the $19 billion figure to 'check' its significant award of $388,000,000." Uniloc II, 640 F.Supp.2d at 185. The Federal Circuit affirmed, holding that the district court did not abuse its discretion in granting a conditional new trial on damages for Uniloc's violation of the entire market value rule.

The Federal Circuit did not propose improved methods of calculating damages but seems intent on continuing to modify awards.