Yesterday's post, e-LYNXX Patent – What’s Next?, generated a lot of interest, a number of comments, and a several phone calls. In response, e-LYNXX Director of Communications, Joe Patterson, sent a number of points of clarification. He also provided a summary of the patent as a small PDF for those who want the condensed version, rather than the full text of the patent (PDF - 642 KB).
Following are the key points he provided:
- The new e-LYNXX patent application was first filed on November 30,1998, and applies to the competitive pricing and procurement of all types of customized goods and services, not just print. ...Although e-LYNXX also received a U.S. business method patent in 2002, it is this recent patent which is broader and more powerful as it covers all customized goods and services, not just print.
- [T]his patent applies to any computer-operated system that associates suppliers with a particular buying entity for the purpose of procuring customized goods or services that includes the following five steps:
- ENTER supplier attributes (e.g. production capabilities, location, quality and business status)
- ENTER project specifications (e.g. required production capabilities, location, quality and business status)
- MATCH supplier attributes to project specifications (to determine sub-set of qualified suppliers)
- SEND project specifications to sub-set of qualified supplier
- RECEIVE a bid response from at least one supplier
- Our business method patent is not simply the computerizing of an existing method. Rather, it is the invention of a novel process ... [and] the patent application covering this invention was filed by e-LYNXX Corporation on November 30, 1998. During the intervening 10 years, this approach to procurement has likely been implemented, and if so, would now be covered by the business method patent. Our interest is to work with organizations that see licensing of this method as an attractive proposition in the procurement of customized goods and/or services.
- [In Bilski] the Court reaffirmed and elaborated on the U.S. Supreme Court's "machine or transformation test" for patentability, which says that a process claim is patentable if it is either tied to a particular machine or apparatus or otherwise transforms an article. The claim language approved in U. S. Patent No. 7,451,106 meets this test because it is tied to a specific machine or apparatus, namely a computer-operated system. ... [T]here is a difference between business method patents that protect processes and other types of utility patents that require a technical contribution for patentability.
- [T]he scope of this patent is very broad [and it can apply] to the procurement of any customized product or service. Examples include, but are not limited to, commercial print, construction services, direct mail, labels, machined parts, marketing materials, product packaging, temporary staffing, textiles, transportation, trucking, and more.
Discussion
By Patrick Henry on Nov 19, 2008
Please correct the details if they are inaccurate, but does anyone remember a patent granted to a printer about 10 years ago for the combination of stochastic screening and hi-fi color? This printer then sought to license the combination to other printers who were already using it. There were protests, and the patent was overturned after review. This incident comes to mind when reading that the holders of the e-LYNNX patent apparently will try to do the same thing, i.e., license their procurement method to those who have developed and implemented it on their own before patent protection for the method existed.
By Barry Walsh on Nov 20, 2008
I think you mean National Printing and Packaging's President Rich Stein's patent on combining waterless and stochastic. I don't recall it being overturned, but do recall it putting a damper on waterless printing in the mid 90's.
The e-Lynxx patent really brings to mind Henry Freedman's seminal patent from 1989.
I found an abstract on freepatentsonline.com...
"A system for automated control of the printing of a work comprises a first terminal adapted for use by a printing requester for receiving from the requester a informaton concerning parameters for the printing of the work. A second terminal is adapted for use by a printing facility for receiving from the printing facility pricing and administrative information concerning the printing of a work. A programmed computer having a memory and input/output means is provided in communication with the first and second terminals. The computer interacts with the printing requester through the first terminal for receiving and storing the printing parameter information. The computer interacts with the printing facility for receiving and storing pricing and administrative information concerning the printing of the work. The pricing and administrative information is transmitted to the first terminal for use by the printing requester."
If you have saved any old literature from the print dotcoms you will notice many carried an acknowledgement of this patent.
By Ralf Schlozer on Nov 21, 2008
A "patent" like this would not stand a chance in a European patent court - and rightfully so.
Vistaprint just lost a similar case on a web-to-print patent
By Michael Josefowicz on Nov 21, 2008
Darn that global marketplace. I thought we get to decide everything.
By David Locke on Nov 24, 2008
A patent like this is just theft. It could be overturned on prior art. The problem is that they wouldn't be pushing this if they thought that anyone challenging their patent could outlast them.
The problem with software patents and business patents is that they were approved before the patent inspectors had a clear picture of prior art. The end result is that these early patents must be taken to court and overturned, an expensive process.
By Jon Hansen on Dec 09, 2008
The simple complexity of patents is at times confusing. The fact that the patent was first registered in 1998 and during that 10 year period was never challenged is the first major obstacle that must be overcome. For whatever reason, and it is likely due to the uniqueness of the Gindlesperger Methodology, did not invite a challenge. And since the period between registration and award is the most vulnerable, one would have to give credence to the US patent office's decision.
That said a patent only provides the inventor with protection in that it provides both the rights and mechanisms to challenge an infringement. And this for all intents and purposes is the true battlegound of the patent world.
Ask Blackberry, who recently went through their own tribulations when they were sued for a patent infringement.
However, most organizations will want to avoid the higher costs of a legal proceeding, and will willingly pay what amounts to a significantly lesser amount to receive the required permission to legally use another party's patent.
As long as the cost of usage (or licensing) remains considerably less than the cost of taking legal action, such as challenging a patent, more organizations will opt for the former versus the latter. At least if other more "strategic" considerations are not a factor.
What's interesting the Gindlesperger case is that you similar sentiments with others such as the UK patent office, in which an official from that office made the following comment:
However, the UK patent office said that merely transferring a process that already existed to an electronic platform was unlikely to result in an enforceable patent.
"Merely computerising the whole procedure wouldn't be anything you could patent," said Jim Calvert, deputy director at the UK Intellectual Property Office."
What the patent official does not appear to understand however, is the true nature or elements of the methodology as it relates to the patent itself.
I had actually touched on these unique elements in a post I wrote earlier this year about my extensive research, which was partially funded by the Government of Canada’s Scientific Research and Experimental Development Program, on the utlization of advanced algorithms in the procurement process. And in particular, the development of my theory of strand commonality. Here is a link to the article; http://procureinsights.wordpress.com/2008/04/08/similarity-hueristics-iterative-methodologies-and-the-emergence-of-the-modern-supply-chain/
The fact is that the Gindlesperger Methodology extends far beyond the mere automation of a manual process. It possess elements that are very much in line with the theory of strand commonality in which unique attributes from seemingly disparate streams of data or information are linked to produce a collective real-world outcome. And it doesn’t matter if there are only two or three strands or variable streams as the primary difference is in the complexity of the algorithms (re the greater the number of strands or variable streams, the more complex the algorithms).
By implying that the Gindlesperger invention is simply an automation of an existing or known manual process without understanding the methodology behind it, is tantamount to making a comparison between the horse and buggy and the automobile. While both are certainly methods of transportation, they hardly share similar characteristics.
All this being said it is indeed an interesting situation, and one that is likely to gain momemtum as time progresses.
By Michael Josefowicz on Dec 10, 2008
Interesting post.
So..do I understand correctly that if the computer process does not use the strand architecture the patent does not apply?
Also,just curious, does Amazon have a patent on their recommendation engine? I know that when I type "recommendation engine" into Google I get lots of hits.