SpaceX Barge Landing Patent Petition Challenge Denied – and Accepted
UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD SPACE EXPLORATION TECHNOLOGIES CORP., Petitioner, v. BLUE ORIGIN LLC, Patent Owner. Case IPR2014-01376 Patent 8,678,321 B2. Paper 6
“Space Exploration Technologies Corp. (“SpaceX”) filed a Petition (“Pet.”) for inter partes review of U.S. Patent No. 8,678,321 B2 (“the ‘321 patent”). The Petition challenges the patentability of claims 14 and 15 of the ‘321 patent on the ground of obviousness under 35 U.S.C. 103.1 Blue Origin LLC, the owner of the ‘321 patent, did not file a Preliminary Response to the Petition.”
“IV. CONCLUSION Because the challenged claims are not amenable to construction, we are unable to reach a determination on the reasonable likelihood of SpaceX prevailing on the prior art ground asserted in the Petition.
V. ORDER For the foregoing reasons, it is ORDERED that the Petition is denied.”
Keith’s note: The title of this post is taken directly from words and statements used in the USPTO decision. Read the document. As best as I can figure this legal mumbo jumbo out, everyone involved is confused about what the patent claims and whether it can be challenged – and if so, how. Yet the SpaceX Internet fan boys are all over social media chastising non-believers and saying that this is a big win for SpaceX while others are saying that its a win for Blue Origin. Indeed, sources inside SpaceX now say that this decision is good for them.
If SpaceX thinks that this decision is good for them – and they want people to know that this is good for them – then they need to put out a statement that says so. Expecting the Internet to figure it out – clearly and accurately – and then tell the world – is not going to work.
Keith’s update: But wait. There’s more. There is another USPTO document (see excerpt below) that just fell out of cyberspace into my inbox wherein USPTO agrees with claims made by SpaceX. Taken together these two documents are not a formal decision for – or against – Blue Origin/SpaceX. The patent is still the patent and more lawyers will need to weigh in before anyone changes anything in that patent – if anything is ever changed. My point still stands with regard to letting Internet chatter suffice for statements by the actual parties to this dispute (SpaceX and Blue Origin) and I await their responses/non-responses.
UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD SPACE EXPLORATION TECHNOLOGIES CORP., Petitioner, v. BLUE ORIGIN LLC, Patent Owner. Case IPR2014-01376 Patent 8,678,321 B2, Paper 7
“Space Exploration Technologies Corp. (“SpaceX”) filed a Petition (“Pet.”) for inter partes review of U.S. Patent No. 8,678,321 B2 (“the ‘321 patent”). The Petition challenges the patentability of claims 1-13 of the ‘321 patent under 35 U.S.C. §§ 102 and 103.1 Blue Origin LLC, the owner of the ‘321 patent, did not file a Preliminary Response to the Petition. We have jurisdiction under 35 U.S.C. § 314(a). After considering the Petition, we conclude that SpaceX has demonstrated a reasonable likelihood that it would prevail in showing unpatentability of the challenged claims. Thus, we institute an inter partes review of claims 1-13 of the ‘321 patent.
IV. CONCLUSION On the current record, SpaceX has demonstrated a reasonable likelihood of prevailing on the asserted ground of anticipation of claims 1-3 by Ishijima under 35 U.S.C. § 102 and the asserted grounds of obviousness of claims 4-13 over Ishijima and variant combinations of Lane, Mueller, Waters, Spencer, and Kindem under 35 U.S.C. § 103. As such, we authorize institution of an inter partes review of claims 1-13 of the ‘321 patent. Our decision to institute acts as a preliminary measure of SpaceX’s evidence as having enough merit to take the case to trial. Blue Origin may now come forward with argument and evidence in response to SpaceX’s prima facie proof of unpatentability.3
V. ORDER For the foregoing reasons, it is ORDERED that, pursuant to 35 U.S.C. § 314(a), inter partes review of claims 1-13 of the ‘321 patent is instituted on the grounds of anticipation under 35 U.S.C. § 102 and obviousness under 35 U.S.C. § 103; and FURTHER ORDERED that pursuant to 35 U.S.C. § 314(c) and 37 C.F.R. § 42.4, inter partes review of the ‘321 patent shall commence on the entry date of this Order, and notice is hereby given of the institution of a trial.”
Can somewhat smarter in this area than I am explain what this means for SpaceX?
It means the lawyers on both sides are going to make a lot more money.
It is pretty much entire point of existence of half of laws on Earth. Not for wellbeing of humanity, but wellbeing of lawyers.
Spot On!
Quoting this slashdot article:
http://slashdot.org/story/2…
“…the judges explained that Blue Origin’s patent lacks sufficient disclosure, effectively stating that the patent is invalid, but not on the specific grounds brought by SpaceX…If SpaceX wants to move forward against Blue Origin, this opinion bodes well for them, but they will need to take their case in front of a different court.”
The petition to summarily invalidate the patent wa denied, so it will drag on now and possibly head to court. The denial was due, in part, to the vague nature of the claims made in the patent. The way I read the ruling is that it tends to support SpaceX’s position, just that the judges weren’t able to make a summary ruling in this case.
The text pretty much confirms something that vague had no business being issued a patent. In other words, a Pyrrhic “victory” for BO.
SpaceX will continue to operate their droneship and BlueOrigin might legally protest if they successfully land Falcon on it.
But they can crash as many stages as they wish on that barge without issue, since the patent does not cover using the barge for target practice.
As best I make out the doc, it’s saying that the patent is so vague that spacex cannot demonstrate that it is so obvious that it cannot be patented, so spacex may not challenge it.
It appears that spacex is now on the verge of killing the patent. The judges said that the patent is empty of detail, so if spacex changes course and attacks it as containing no enforceable details, then spacex should prevail.
So, bottom line, it’s going to have to be heard in court and it’s basically because the patent office accepted a very vague patent application from BO?
Right. So, how can we make the USPTO do a beter job in the first place? Currently they seem to be a clearinghouse for creating work for IP lawyers.
That’s easy: fund the USPTO adequately. current policy is a direct result of under-funding, which is a direct result of self-fulfilling prophecy from the right.
You ain’t seen nothin’ yet.
I would patent “One-Click Launching,” but I think Estes has me beat.
You can learn about Patent Challenges over at groklaw.net (which was launched to ensure visibility into the SCO v IBM “Linux copyrights” lawsuit but later discussed patent issues).
As I read it (elsewhere) the challenge failed as-is but SpaceX was advised of an overly broad and unspecific claim that a properly defined challenge would be able to take down.
I suspect that the patent in question, absent actual *practice*, might have some problems since that very lack of actual practice, may not have enough “specificity”.
(sighs)
Gawd, I read too much GrokLaw way back when.
The real problem is that the research needed to ensure you are not stepping on pre-filed “inventions” will kill development, especially if someone decides to use one of their patents for denial value.
Now you have a headache too!
Well, the computer industry would likely consider Blue Origin as a “patent troll” given they are a non-exercising owner of IP; While Blue Origin is looking at ways to monetize their development work on a VTVL they didn’t put as much effort into their filing.
I filed a patent whilst working for IBM and there’s a bunch of criteria for deciding whether to file or just publish it (creating “prior art”); Sadly, shortly after being RIFfed by IBM they abandoned the patent just before it would have been approved, and, no, it was NOT a software patent.
All I can say is, after following a lot of frightening stories on GrokLaw as it threw illumination on back-stabbing, that the only kind of lawyer with a more boring job than a bankrupcy specialist is a patent specialist; I think they’re the equivalent of actuaries…
Remember, actuaries are people who found accounting far too exciting.
I had a very respected Oil and Gas attorney suggest that I go to law school in the mid-70s when I decided not to get my PhD in Astronomy. He said that if I studied IP law, I would be able to walk into a great job, since so few attorneys have science degrees. Alas, I went into rocket science and didn’t make the megabucks. But I think I had more fun.
(He once told me that the difference between a scientist and a lawyer was that I thought 2+2=4. He wasn’t willing to concede that on behalf of a client until the Supreme Court ruled on it.)
Another way of thinking this is a win for SpaceX is that while the original petition was denied, it was denied because the patent is too vague. So, SpaceX just ignores it and if Blue Origin then sues for breach, the patent will most likely be nullified in the suit. So SpaceX gets the nullification for “free” if Blue Origin wishes to sue.
Having been involved in a few patent applications I would point out that the USPTO is essentially a bookkeeping service. They grant any application that has the proper legalese and the obscure and complex format, and the proper fee, after the obligatory initial rejection. Being entirely funded by user fees, what else can they do? All real disputes have to be settled in court, at significant cost.
As a Registered SpaceX Fanboy (I have my liter of Kool-aid and Official Authorized Fan Gear, and as an experienced Internet Quasi-Lawyer, spending much time before (and under) the Bar let me comment…
Beyond expressing the view that the B.O. claims are hopelessly vague, what claims did they pick?
Not the sea-landing. They went on and on about the operations of the engines. Consider a patent on a car garage. Instead of discussing the concept of a sheltered and attached structure to store a car, imagine they discuss whether you use disk or drum brakes in the car to slow it down to enter the garage.
These judges glaringly avoided discussing the central idea of the ship.
It looks like they simply chose to kick the can down the road and let the core dispute be settled elsewhere.
The second order seems pretty straight forward. The first one said claims 14 and 15 where unchallengeable due to vagueness, but the second says core claims 1-13 ARE challengeable and is starting a process where SpaceX has demonstrated a reasonable likelihood that it
would prevail in showing unpatentability of the challenged claims.
I think I have (maybe) The Big Picture.
Here is the patent:
https://www.google.com/pate…
A close reading shows:
Claims 1-13 outline HOW to accomplish the methods
Claims 14-15 do not show how to accomplish the methods only that there are unexplained “means”
So, the patent judges said 14-15 are hot air (“are not amenable to construction”) and have nothing to contest. They just drop out.
But, the key claims, 1-13 are specific and are directly shown to not be either original or non-obvious, and that SpaceX has demonstrated a reasonable likelihood of prevailing on the asserted ground of anticipation of claims (someone else did it first)…, and the asserted grounds of obviousness of claims 4-13..”
In other words, in all actual measurable ways, B.O.’s patent is invalid and likely to be ruled invalid at hearing.
Looks like a 100% Grand Slam for SpaceX.
http://ipinspace.com/2015/0…. Reapply.
Wait – isnt the military experimenting with fighter jet launched satellites? (they have done it before). Then they had better not land that fighter jet on a carrier or that would be in violation of this patent.
In fact if the jet that once launched the satellite killer back in the 90s has EVER landed on a carrier, then there is your “prior art” since it would technically be a reuseable first stage.
I don’t think there is much wiggle room for Blue Origin!
The judges posted the diagrams side-by-side, along with descriptions, followed by a pretty unambiguous rejection of novelty on the part of BO:
“On the current record, there is clearly identity between Ishijima and
claims 1–3 of the ’321 patent. After reviewing SpaceX’s evidence and
analysis, we determine that SpaceX has demonstrated a reasonable
likelihood that claims 1–3 are anticipated by Ishijima. “