Admittedly, the selection of an Undersecretary of Commerce for Intellectual Property, a post that also carries the title of Director of the United States Patent and Trademark Office, is not as important in the greater scheme of things as many of the other posts President Obama has had to fill. Having said that, given the unique and real challenges facing the U.S. patent system, it would be nice to eventually have a leader in place. While those within the Patent Office are starting initiatives that will likely help in the long run, the major issues facing the USPTO are not likely to be resolved until there is new leadership. My hope is that a new leader will be able to explain to Congress that more funding is needed, and maybe even explain that patent reform should take actually attempt to help the patent system, and the Patent Office in particular. But with the announcement of Supreme Court nominee Sonia Sotomayor, does anyone think it is realistic to anticipate a nominee for PTO Director to happen before Sotomayor’s confirmation hearings? Add to this the fact that North Korea announced that the Korean War is back on, Vice President Cheney and President Obama are jousting over how to handle terrorists, no one wanting Gitmo prisoners in the U.S., Cap and Trade working its way through Congress and Iran perpetually wanting to erase Israel from the map. With all these issues occupying the President and Congress is there any real expectation that a PTO Director will be named anytime soon?
It has come to my attention that there is no real good way to check on the voting for Top Patent Blogs. I primarily use Mozilla Firefox and that seems to behave differently than Internet Explorer, at least with respect to this survey powered by SurveyMonkey.com. I have heard that some folks have been voting multiple times to see the current standing, which seems to be the only way to keep track of voting results for those using Internet Explorer. Some have worried this was skewing results. I have confirmed that the survey is set up so that only one vote per computer will count, and if you try and vote multiple times it will appear as if you are allowed to do that, but additional votes are not registered. So everything is proceeding according to plan, with perhaps the exception of Patently O killing everyone! That is not surprising really given how popular Patently O has become, but what is great to see is that within the first 24 hours of voting every blog received at least 1 vote on question 2, and many are receiving a lot of question 2 votes, which means while Patently O is the early “favorite blog” there are a lot of other patent blogs that are well respected and well read.
Without further ado, for those wanting to periodically check the voting standings, below is the latest. You should be able to check back and refresh to keep an eye on voting progress.
Mike Drummond is the Editor of Inventors Digest, perhaps the most popular and widely read magazine in the innovation space. While I like to consider myself a commentator who can type, Mike is a bona fide journalist with credentials that most only dream about. He was a Pulitzer Prize finalist, a war correspondent in Iraq and the acclaimed author of a book profiling some of the larger than life personalities inside Microsoft.
Mike is a friend, and a good guy even though I think his preference for Godfather Part II over Godfather Part I is curious if you ask me, but you will have to keep reading for the full story on that topic! So without further ado, here is my interview with Mike Drummond of Inventors Digest.
As promised, we are moving forward to attempt to determine the Top Patent Blogs. With the objective component making up Phase 1 of the Top Patent Blog selection process complete, it is now time to move forward into Phase 2, which is the voting phase. Below are 50 patent blogs for you to choose from. Question 1 asks which patent blog is your favorite, and question 2 asks which patent blogs you regularly read. Only one selection is permitted for question 1, but multiple selections are permitted for question 2. For each question 1 vote a total of 2 points will be awarded. For each question 2 vote a total of 1 point will be awarded. Each computer will be allowed only one opportunity to vote, so that we do not run into an American Idol situation where die hard fans can vote hundreds of times and skew results.
Here is an interesting obscure patent from IPWatchdog past, but one too good to miss. This originally caught my eye while reading the New York Times. The article in the Times is titled: Using Termite Flatulence Against Them. This all seemed like a joke, but it must be true, right? Just the same, and perhaps in light of the time recent past, I decided to verify. It does seem that the United States Patent Office has granted a patent apparatus and method for detecting the presence of wood destroying subterranean termites. Termites can be one of the most damaging pests in the country, according to the information about termites at Orkin.com. Apparently, when wood destroying termites are present they generate combustible gas, which can be detected by the combustible gas detector. I don’t know enough about the state of the art in flatulence to issue an opinion on whether this is a “true” invention that warrants the mantle of US Patent, but it was just too good to pass up and had to enter the Museum of Obscure Patents.
As promised I am moving forward with the Top Patent Blogs. Originally the plan was for there to be 25, but I decided to make the list more inclusive so you will see that there are more than 25 blogs mentioned on each list. I was also going to base Phase 1 on Technorati, but Technorati has refused to cooperate. The plan was to use Technorati data from a few different days in order to try and smooth out any biases and wild swings in the data that many observe. Over the past three weeks when attempting to visit Technorati I would constantly get a message about the Technorati Monster being loose, whatever that means. It seems as if Technorati technology just cannot keep up with traffic, making the site of questionable reliability. I gave it another chance on Memorial Day, and was able to find authority for many of the blogs for which I could find Alexa rankings, so I will combine these scores to come up with the quasi-objective component of the scoring, knowing that neither Technorati nor Alexa are perfect. At least it is some information.
There are a lot of crazies coming out of the woodwork with respect to the ACLU’s efforts to have the patent laws of the United States declared unconstitutional. Perhaps you have heard, the ALCU is standing up for breast cancer patients because Myriad Genetics has patented genes. How awful really. Not that Myriad has patented genes, because that is factually not at all what has happened. What is awful is that the ACLU is telling lies and the public seems to be buying it, never mind the facts of the case or the lack of merit to the ACLU claims. On top of that, in an editorial published today, the San Francisco Chronicle wrote that the law of gravity is an abstract idea. Wow! How can anyone take anything the article says seriously when such a ridiculous statement has been made? Perhaps the San Francisco Chronicle should take the advice of Abraham Lincoln: “It’s better to keep your mouth shut and be thought a fool than to open it and remove all doubt.”
Mark Malek, Patent Attorney with Zies Widerman & Malek
I just spoke with Mark Malek, a patent attorney at the firm I am with – Zies Widerman & Malek. Mark had an interesting conversation earlier today with a patent examiner who shall remain nameless. The purpose of the call was to inquire about the status of a particular application that had been filed over 4 years ago and which was still waiting a First Office Action. The patent examiner told Mark that about 2 weeks ago management told the examining corps that they need to start issuing patents. This may seem strange to those who are not familiar with how the Patent Office has been operating, but this is sadly important news to report. The allowance rate had dipped to 42% during the first quarter of 2009, and over the five year term of Jon Dudas the allowance range had dropped from its historical averages year after year.
Today I read on Patently O that the Board of Patent Appeals and Interfences is shutting down dissent in favor of efficiency. The source of the anonymous tip contacted me about two weeks ago with the same tip and I followed up and talked to many in the patent community and no one seemed to think that was what the Patent Office was doing at all. I then heard back from the anonymous source on May 16, 2009, inquiring why I had not run with the story and whether he should take this “smoking gun” elsewhere. I expressed my concerns that the literal meaning of the memo does not suggest that the BPAI is putting a muzzle on dissents or concurrences, or even mandating that the Board simply affirm patent examiners. I did point out that if this is the perception on the Board that perception would be important because as we all know, perception becomes reality. It would seem that the decision was made by this anonymous source to go elsewhere in hopes of outing the Patent Office.
Recently I saw one of Intel’s new TV commercials, oddly enough as I was standing in line at Dunkin Donuts waiting for a coffee. It was playing on the TV positioned perfectly for everyone in line to see, no doubt taking your mind off the wait. I thought this commercial was so awesome I grabbed my cell phone and called my office phone number to remind myself to write a blog post about Intel, the commercial and how inventors are indeed rock stars! As an inventor myself, and a patent attorney who comes in contact with inventors from all walks of life, levels of experience and technology backgrounds, I thought to myself that this commercial is completely brilliant. Way to go Intel, and thanks for making it cool to be an inventor!
On October 30, 2008, the United States Court of Appeals for the Federal Circuit issued its much anticipated decision in In re Bilski. The question that was presented by this case was whether a purely mental process is patentable subject matter. The Federal Circuit, however, took it upon themselves to call into question whether software patents are patentable subject matter. We had been expecting a far reaching decision that dealt a blow to business method patents, but few would have predicted just how far reaching the decision would be and that it would call into question thousands of software patents granted over the last 10 to 15 years. Ever since this decision was rendered there has been rampant speculation as to what Bilski means and how it will be interpreted. As one who works in this area and one with my own patent application pending in class 705, I was greatly interested both professionally and personally. Thankfully, I can report that it does not seem as if Bilski is turning out to be the impediment to patentability that many feared. In fact, based on what is going on at the USPTO one could make a convincing argument that it is actually getting easier to obtain patents that related to software and computer related processes. This is good news indeed.
In a decision that is simply painful to read, the United States Court of Appeals for the Federal Circuit yesterday decided in Autogenomics v. Oxford Gene Technology that a foreign patent owner cannot be made a defendant to a lawsuit seeking a declaratory judgment of invalidity, unenforceability and noninfringement. According to the majority opinion, Oxford is a British biotechnology company organized under the laws of England and Wales, and despite being the owner of US Patent No. 6,054,270, which relates to oligonucleotide microarrays for analysis of polynucleotides, could not be hauled into court in California because personal jurisdiction could not be exercised. This leaves Autogenomics, Inc., a biotechnology company organized under the laws of California, unable to proceed against Oxford in California despite the fact that they could be sued for infringement in California should Oxford choose to move against them. How is this fair? It is not! It is absurd, and for the majority to point to the Federal District Court in the District of Columbia as a potentially appropriate venue for Autogenomics is disingenuous. Oxford never argued for transfer or an alternative jurisdiction, they simply maintained that they could not be sued. Score a major victory for foreign patent owners over US corporations! How ridiculous!