Harrity Patent 300 Cryptography and Security

Cryptography and Security Ranks as the #10 Technology Area in the 2019 Patent 300™ Report

Patent Analytics ,
By Rocky Berndsen

The 2019 Patent 300™ Report details the top 300 companies, organizations, and universities obtaining patents in the United States.  Data from the report shows that nearly 70% of the U.S. patents obtained in 2018 were for electrical, software, or computer-related technologies.  The top 10 technology areas, which represent 49% of the 167,164 U.S. patents obtained by Patent 300 companies in 2018, are dominated by electrical technologies.

As is shown in Chart 1, the Cryptography and Security technology area is the 10th largest technology area in 2018 with over 4,300 patents issued in the U.S.  The Cryptography and Security technology area covers United States Patent & Trademark Office (USPTO) technology classifications related to secure communications and information security.

Chart 1 – Top 10 Technology Areas for Patent 300 (2018 U.S. Patents)

RankPatent 300 Technology Area2018 U.S. PatentsPercentage of Total 2018 U.S. Patents
1Semiconductors/Memory15,1539%
2Electrical Circuits and Systems13,2158%
3Multiplex and VoIP9,8756%
4Optics9,0035%
5Printing/Measuring and Testing8,6415%
6Thermal & Combustion Technology, Motive & Fluid Power Systems7,0174%
7Selective Visual Display Systems4,8553%
8Telecommunications: Analog Radio Telephone; Satellite and Power Control; Transceivers, Measuring and Testing; Bluetooth; Receivers and Transmitters; Equipment Details4,7613%
9Computer Networks4,5443%
10Cryptography and Security4,3113%

When you look at the top 20 companies obtaining patents in the Cryptography and Security technology area, shown in Chart 2, most of the companies are large technology companies such as IBM (#1), Dell (#2), and Intel (#4).  In addition, there are also cryptography and security-focused companies like Symantec (#9) and Fortinet (#14).  IBM ranks #1 on the list having obtained 613 U.S. patents in the Cryptography and Security technology area, which is a 3% increase over 2017.  About 7% of IBM’s U.S. patents obtained in 2018 are classified in the Cryptography and Security technology area.

Chart 2 – Top 20 Companies by U.S. Patents in Cryptography and Security

Patent 300 - Company NamePatent 300 Rank in Cryptography and SecurityCryptography and Security Patents 2018% of Company’s 2018 U.S. PatentsCryptography and Security Patents 2017Change from 2017 Patents
IBM16137%5953%
Dell225712%23210%
Amazon325212%21415%
Intel42196%222-1%
Microsoft51998%248-25%
Samsung61232%10713%
Alphabet71195%144-21%
Cisco811013%8325%
Symantec910370%134-30%
Bank of America108928%7615%
AT&T11837%93-12%
Qualcomm12823%811%
Apple13733%678%
Fortinet146752%5518%
Oracle15578%64-12%
Huawei16563%535%
Verizon17569%64-14%
Blackberry184813%52-8%
Canon19471%48-2%
Ericsson20473%439%

Cryptography and Security is an important technology area in the patent world with over 4,300 U.S. patents in 2018 alone.  The importance and value of this technology is only increasing as evidenced by the daily news headlines related to data privacy, data security, and secure communications.

For more detailed information about this technology area, or any other data related to the 2019 Patent 300™ Report, please visit harrityllp.com/patent300/ or contact Rocky Berndsen directly via email at rberndsen@harrityllp.com.

Recent Court Decisions Weigh in on Prior Art Standard in Patent Law

Articles, Case Summary , , ,

By Jonathan Goodman

Is a printed publication that predates a patent application always considered prior art?  Many may think that a reference published, and available to the public, prior to a patent application’s filing date is prior art.  While this is usually the case, recent court decisions have highlighted exceptions to this standard.

Courts Clarify What Constitutes Prior Art

In GoPro, Inc. v. Contour IP Holding LLC,  2017-1894, 2017-1936 (Fed. Cir. July 27, 2018) (“GoPro”), the Federal Circuit determined that a catalog distributed at a trade show open only to dealers of action sports vehicles was prior art to patents relating to action sports video cameras.  Particularly, the Court noted that the trade show’s focus on action sports vehicles did not preclude persons of ordinary skill in the art from attending because a primary purpose of action sports cameras is for use on action sports vehicles.

GoPro clarifies that a printed publication disclosed at a trade show is publicly accessible within the meaning of section 102 even if the trade show is not aimed at persons of ordinary skill in the relevant art.  While GoPro takes an expansive view, practitioners seeking to overcome a printed publication distributed at a trade show, conference, meeting, or similar gathering may still find success arguing that the printed publication was not publicly accessible when there is no credible reason that a person of ordinary skill in the relevant art would have been in attendance.  For example, a slight change to the facts in GoPro, such as the cameras at issue being used for portrait photography rather than action sports photography, may have persuaded the Court to find that the catalog was not publicly accessible.

In Acceleration Bay, LLC v. Activision Blizzard Inc., 2017-2084 (Fed. Cir. Nov. 6, 2018), the Federal Circuit found that an article published on a university website was not prior art to later-filed patents because the website only indexed articles by author and year, and lacked a reliable search function.  Specifically, the Court noted that the test for public accessibility is not whether a reference has been indexed, but whether the reference was indexed in a meaningful way that would permit a person of ordinary skill in the art to locate it.

It is worth noting that the university website at issue in Acceleration Bay was from 1999 and may have lacked competent search functionality that is now commonplace.  Moreover, today, articles published on a website likely would be keyword indexed by a search engine, thus making it difficult to argue against public accessibility regardless of the manner of indexing performed by the website.  Nevertheless, practitioners should be mindful that articles published on a website are not necessarily publicly accessible if it can be shown that no meaningful indexing of the article was performed.  In particular, if an article is not keyword indexed by the publishing website or a search engine—which may occur if the website prevents pages from being indexed by search engine crawlers—it may indicate that the article was not publicly accessible.

Key Takeaways

Although not every printed publication is considered prior art under Section 102, the growing ease with which nearly all printed material is easily accessible online makes that determination less and less likely.  Thus, when filing and prosecuting patent applications, practitioners should be wary of withholding references from the USPTO in reliance on prior art exceptions, such as those implied by GoPro and set forth in Acceleration Bay.

Getting To Know Your Patent Examiner Through Data

Firm News, Patent Analytics , , , , , , , ,

Law360 (June 13, 2019) — How many office actions should I expect at the U.S. Patent and Trademark Office? Should I file a request for continued examination or a notice of appeal? Is it worth filing a pre-appeal?

These, among others, are common questions that practitioners may ask themselves during patent prosecution. In the past, these were mostly questions that could not be answered by taking into account unique proclivities of different examiners. Now, using data analytics, we can get a better sense of how prosecution will go and be able to make an informed decision when a crossroad is reached.

Below, we will explore how to use public data about an examiner, provided by the USPTO, during patent prosecution.

Allowance Rate

By looking at an examiner’s allowance rate (i.e., allowance vs. abandonments), we can get a sense of the journey early on. A high allowance rate is an indicator that the examiner likely has no qualms about allowing applications, and that the examiner likely will not stubbornly stick to poor rejections. For these types of examiners, if appropriate, it may be worth taking a more assertive initial position, including arguing that the rejections should be withdrawn, or offering modest amendments.

However, if the examiner’s allowance rate is low, you may want to consider including substantial amendments or anticipate the possible need to file an appeal as these types of examiners tend to combine three, four, or even five-plus references in their art rejections. If the allowance rate in the art unit is significantly higher than the examiner’s allowance rate, you may want to consider getting the examiner’s supervisor or a primary examiner in the art unit involved early in the process as it may be easier to reach an agreement with them than with the assigned examiner.

Office Actions Per Patent, RCEs Per Patent

A high office action per patent and/or RCE per patent rate may be an indication that reaching allowability will be challenging. These types of examiners also are likely unafraid to combine three, four or five-plus references to make their art rejections. Similar to examiners with low allowance rates, you may want to consider including substantial amendments, getting the supervisory examiner or a primary examiner involved, or planning to file an appeal. You may even want to check the supervisory examiner’s and primary examiner’s allowance rates when deciding whether to get one of them involved.

Interview Statistics

Generally speaking, it is beneficial to interview an examiner as it gives a practitioner an opportunity to get a better sense of the examiner’s interpretations of the application and the applied references, and a chance to explain the invention.

A high interview success rate (i.e. the rate that interviews lead to an allowance in the next office action) may be an indicator that the examiner uses interviews for compact prosecution. These examiners are likely willing to provide suggestions for amendments that would lead to allowance or at least advance prosecution. For these types of examiners, you may want to be prepared to discuss multiple, different types of amendments to take advantage of their willingness to expedite prosecution. However, if the interview success rate is low for the examiner, consider sending a substantive interview agenda with proposed amendments to maximize the chance of reaching an agreement with the examiner.

A comparison of an examiner’s final rejection allowance rate with After Final Consideration Pilot and his/her final rejection allowance rate without AFCP may be an indicator of whether the examiner takes the AFCP program seriously. If there is a significant difference with those rates, the examiner likely uses the allocated two to three hours in the AFCP program to find a way to allow the application. For these types of examiners, consider filing an after-final amendment with an AFCP request before deciding whether to file an RCE or a notice of appeal. However, if the rates are similar, the examiner likely uses pre-pilot procedures regardless of whether an AFCP is filed.

Pre-Appeal Statistics

Pre-appeal statistics can be useful when deciding whether to file an appeal brief or a pre-appeal brief. A high rate of allowance and/or re-opening of prosecution when pre-appeals are filed may indicate that the examiner, the examiner’s SPE, and other panel members in the examiner’s art unit take the pre-appeals process seriously and that it is worth presenting arguments in a pre-appeal brief. However, a low rate of allowance and a low rate of reopening of prosecution after pre-appeal may indicate that it would be better to forego the pre-appeal process and go straight to appeal or go another round with an RCE.

Appeal Statistics

Analyzing an examiner’s appeal statistics may be useful in determining whether to file an appeal or an RCE. If the examiner’s rate of allowance after an appeal is filed is high, it may be worth appealing rather than filing an RCE and avoid narrowing claims unnecessarily. However, if the examiner’s rate of allowance after appeal is low, it is highly likely that your appeal will go to the Patent Trial and Appeal Board.

Since it may take a couple of years for the PTAB to pick up your appeal due to their backlog, you may want to make certain that your client is comfortable with going through with the appeals process and waiting rather than filing an RCE and possibly reaching an agreement with the examiner earlier. For these types of examiners, you may want to consider the examiner’s allowance rate and RCEs per patent rate to help you and your client in making this decision.

If the examiner’s board decision success rate is high, it may be an indication that the examiner goes to the board only when he/she believes that his/her examiner’s answer would be particularly strong. If you receive a compelling examiner’s answer from these types of examiners, consider filing an RCE rather than going to the board.

Conclusion

Just like how data analytics has improved efficiency in other industries, examiner analytics has the potential to improve the efficiency of patent practitioners and patent prosecution. Therefore, using examiner data in your practice may lead to better, quicker and cheaper outcomes for you clients.

By Kris Rhu

The example screenshots in this article are from Patentprufer, which was developed by Harrity & Harrity.

Facebook
Facebook
Twitter
LinkedIn
Share

John Harrity – Clause 8 – Episode 11

Clause 8 , ,

Our Managing Partner John Harrity is the featured guest on this episode of the Clause 8 Podcast, sharing his thoughts on everything from how firms in the patent law space should be innovating, to some of the secrets of our own firm’s success. #Innovation #LawFirms #IntellectualProperty #Podcast

Facebook
Facebook
Twitter
LinkedIn
Share
Harrity 4 Charity


Harrity & Harrity’s John Harrity and Sandra Maxey Named Co-Chairs of 30th Annual Lawyers Have Heart Race Supporting American Heart Association

Firm News, Harrity 4 Charity , , ,

WASHINGTON (June 11, 2019) – The American Heart Association (AHA), the world’s leading organization devoted to fighting cardiovascular disease, has selected Harrity & Harrity Managing Partner John Harrity and Controller Sandra Maxey to co-chair the 30th annual Lawyers Have Heart 10K Race, 5K Run & Fun Walk.

“As a survivor of a 2016 ‘widow maker’ heart attack, I am honored and humbled to serve in this leadership position for a cause near and dear to my heart,” said Harrity. “I hope that my personal story helps to underscore the importance of working heart healthy activities into everyday life. Harrity & Harrity continues to support the AHA in our Harrity4Charity philanthropic initiative because of the impact that heart disease has on families across the globe.”

Lawyers Have Heart brings runners and walkers of all ages and experience levels together to raise awareness of heart disease and stroke. In 2019, the event raised more than $1 million in support of the AHA’s mission to be a relentless force for a world of longer, healthier lives.

“I am honored to serve alongside John as co-chair of the 2020 Lawyers Have Heart race. This year, we hope to raise even more,” added Maxey. “To achieve our goal, we need more law firms, corporations, and the general Washington, D.C. community to join the fight for healthier lives.”

While largely supported by the Washington, D.C. legal and corporate community, Lawyers Have Heart 10K Race, 5K Run & Fun Walk is open to the public, and all are welcome to participate in support of the cause.

Lawyers Have Heart will take place on June 13, 2020, at the Washington Harbour in Georgetown. For more information on the event, visit www.lawyershaveheartdc.org.

About Harrity & Harrity, LLP

Harrity & Harrity is the nation’s leading patent preparation and prosecution firm specializing in the electrical and mechanical technology areas and is considered a Go-To Firm for the Patent 300™. Our clients have come to trust in our high-quality work, experienced people, industry leading innovation, and outstanding service. For more information, visit harrityllp.com/.

About the American Heart Association

The American Heart Association is devoted to saving people from heart disease and stroke – the two leading causes of death in the world. We team with millions of volunteers to fund innovative research, fight for stronger public health policies and provide lifesaving tools and information to prevent and treat these diseases. The Dallas-based association is the nation’s oldest and largest voluntary organization dedicated to fighting heart disease and stroke. To learn more or to get involved, call 1-800-AHA-USA1 or visit heart.org.

Harrity IAM Patent 1000

Harrity Receives Highest Ranking in IAM Patent 1000 Guide

Firm News , ,

Harrity & Harrity is pleased to announce that the firm was ranked in the elite “Highly Recommended” category by IAM Patent 1000: The World’s Leading Patent Professionals for prosecution firms in the Washington, D.C. metro area. The eighth edition of the IAM Patent 1000 guide lists the world’s leading patent experts and identifies only a few as “highly recommended” in instances where firms receive significantly greater positive feedback.

IAM writes:

“Fully deserving its promotion to the IAM Patent 1000 highly recommended tier for prosecution, Harrity & Harrity is a top performer in the patent field. It ensures consistent high quality by performing legitimate second-attorney reviews on every patent application and does this without ever missing a deadline.”

“Paul Harrity is extremely process oriented and has amazing attention to detail. He is doing a lot of interesting things in the practice – tracking examiner trends, for example – and the work he does helps his clients make the best decisions possible.”

“The two brothers have the firm way ahead of the curve when it comes to the development of disruptive technology for the patent field; their software development team has stepped up its efforts around machine learning prediction models and process efficiency, so watch this space.”

As one of the most respected guides in IP law, the IAM Patent 1000 identifies the top attorneys, law firms and patent experts in key jurisdictions around the globe. The organization’s rigorous research process is conducted over five months and involves approximately 1,800 interviews with patent attorneys and in-house counsel. Only firms that stand out for their depth of expertise, market presence and level of work are listed in the IAM Patent 1000. For more information on the methodology click here.

John Harrity Delivers Diversity Message to Meeting of Chief IP Officers

Diversity, Firm News ,

Managing Partner John Harrity was a featured speaker at the final day of the two-day Chief Intellectual Property Officers Council meeting, hosted by The Conference Board in New York City this week.  Speaking about diversity and inclusion in the legal profession, John presented an overview of Harrity & Harrity’s diversity and inclusion journey, mentioning among other things, the firm’s self-imposed adherence of an adapted version of the Rooney Rule for hiring.

The Conference Board is a global, independent membership and research organization working in the public interest. Its mission is to provide the world’s leading organizations with the practical knowledge they need to improve performance and better serve society.

In only its third year of existence, the Chief Intellectual Property Officers Council provides a confidential environment where a select group of chief and senior IP leaders come together to openly discuss both legal and business issues related to IP protection and management.

Harrity Womens Workshop 2019

Harrity & Harrity Holds its 2nd Annual Women’s Workshop

Articles, Diversity, Firm News , ,
By Elaine Spector

Harrity & Harrity just completed its 2nd Annual Women’s Workshop.  The workshop is part of Harrity’s Diversity Initiative, whose Diversity Mission is to “promote and nurture a respectful, highly engaged, family friendly, and inclusive culture that values the diversity of our talented team with diverse backgrounds, experiences, perspectives, skills/talents, and capabilities.”  Nine women, including recent law school graduates, current law students, and one research scientist with a Ph.D in electrical engineering, participated in a 3-day long workshop. The interactive programs included patent preparation and prosecution skills training, resume and interview preparation, and sessions with prominent women guest speakers in the intellectual property field.  The guest speakers ranged from IP partners at major law firms (both litigation and prosecution partners), former leaders at the U.S. Patent and Trademark Office, Chief IP Counsel and IP Counsel at major corporations, and leaders within Diversity and Inclusion organizations.

The participants were particularly interested in how these women navigated their careers in light of gender issues associated with working in a male-dominated profession as well as balancing career with life.  For example, Barbara Fiacco, President-Elect of AIPLA and litigation partner at Foley Hoag, indicated that her love for research and writing led her to a career in IP litigation, where she is thriving.  Ellen Smith, a partner at Sughrue Mion, shared her philosophy from her daughter’s school, “If there is no path, make your own,” as she described her experiences in navigating a different path for herself at Sughrue Mion while she was starting a family.

Cynthia Raposo gave us an inside look on how she helped develop the legal department for Under Armour before Under Armour was a household name.  Interestingly, Cynthia had moved back to a small firm to a part-time position in attempt to achieve a better work-life balance.  She began to do work for Under Armour and soon became their go-to lawyer for legal advice.  When offered the position to go in-house at Under Armour, she indicated it was too exciting an opportunity to turn down.  Cynthia was responsible for developing strategies for securing trademarks worldwide well before Under Armour would even enter those particular countries.

Other sessions included health and wellness issues in the practice of law, top career tips, as well as the very sage advice from our Harrity founders.  John and Paul Harrity both conceded that their best career advice includes reading as much as possible with a focus on continued learning.  We hope the participants had a great time, and we are looking forward to next year’s workshop!