Mike Drummond, the Editor-in-Chief of Inventors Digest Magazine and a decorated journalist, has just joined the Board of Directors of American Innovators for Patent Reform (AIPR). AIPR, headquartered in New York, represents a broad constituency of American innovators and innovation stakeholders, including inventors, engineers, researchers, entrepreneurs, patent owners, investors, small businesses, and intellectual property professionals such as patent attorneys, patent agents, tech transfer managers and licensing executives. Most recently, AIPR has opposed the Patent Reform Act of 2009, which some vocal critics have called “patent deform.” AIPR is on record as opposing proposed apportionment of damages, post grant opposition and a change to the first-to-file regime, all sensible positions and views that I personally hold myself. When reached for comment, Drummond said: “Ideally, the AIPR will be one of those bodies that becomes irrelevant – we do our job so successfully that odious versions of patent reform die and meritorious patent changes take root. It will be interesting to see what sort of posture the new head of the USPTO takes, and what sort of fight we’re in for.”
In a story that is totally off topic, but intended to continue to develop a sense of community that reaches beyond intellectual property, we had our IPWatchdog Fantasy Football Draft yesterday, online via ESPN, at 3:00pm Eastern. It went relatively smooth I think, although the draft did not turn out anything like the mock drafts I was participating in over the weekend to prepare. One twist for the league I set up was that we will play with 2 Quarterback staters each week, and we are playing with 1 Defensive Lineman, 1 Linebacker, 1 Defensive Back and a Punter in addition to the traditional 1 Defense/Special Teams setting. I thought this would make things more interesting and leading to roster moves and some strategy during the season. We will see how it develops, but some trash talking has already started, albeit all in jest.
This post is long over due, and quite frankly it is because I thought I had already posted it several months ago. As I am getting back into the swing of things and gearing up to write more about software, software patents, Parts III and IV of the History of Software Patents (see Part 1 and Part 2), I want to highly recommend The Genie in the Machine: How Computer-Automated Inventing is Revolutionizing Law and Business, written by Robert Plotkin (who not too long ago wrote Why Wishes Should be Patentable for this blog), a patent attorney located in Boston, MA, who is also an Adjunct Professor of Law at Boston University. If you are pro-software patent you need to read this book because it will likely give you some wonderful insights that you can use to help you convince non-believers, and maybe even persuade a patent examiner or two. If you are anti-software patent I would also recommend you read this book as well. Plotkin’s positions are somewhat radical in that not only does he think software should be patented, but he wishes should be patentable as well, and that is exactly what will happen as computer automated inventing becomes increasingly more realistic.
This week the Federal Trade Commission (FTC) announced it had preliminarily reached a settlement with Dyna-E International and its owner George Wheeler, which would bar the retailer of rayon towels from making false and misleading claims that dupe consumers into believing its paper towels are biodegradable. under a proposed settlement with the Federal Trade Commission. This preliminary settlement is now open for public comment, as is routine and customary when the FTC seeks to settle a complaint against individuals or companies charged with violations of law. Those wishing to comment have through September 25, 2009, after which the Commission will decide whether to make it final. While nothing can be certain, it is safe to say that in the vast majority of cases a preliminary settlement is made final. It is also worth knowing that a consent agreement is for settlement purposes only and does not constitute an admission of a law violation, but a final order does carry the force of law with respect to future actions and each violation of a final order may result in a civil penalty of $16,000.
Every once in a while we do an Internet search to find out what is out there quoting to IPWatchdog.com or me personally. We also try and make sure that others are not infringing upon our works by republishing our content without permission. It is flattering in one sense to have people want to steal your stuff and copy it without permission, but that is, of course, copyright infringement. I authorize some republication, but not much any more. Search engines, particularly Google, punish websites for identical content being on multiple websites. That has been and to some extent still is a tell-tale sign to Google that you are trying to manipulate their search rankings via other than preferred means. So the republication, particularly when not authorized, is something that I do not tolerate. I have even started sending out DMCA takedown notices as appropriate. See Sample DMCA Take Down Letter.
I was at work today, doing what I usually do. I talk to inventors who want to patent their inventions. I speak to so many different levels of inventors. There are those who have no disposable income at all and are hoping their invention will change that for them; there are those on a tight budget who are hoping to do things as “cheaply” as possible; there are those who have some disposable income and can afford to put some money into this endeavor and there are those that have the financial backing of the small, medium or large company they work for. I also speak to inventors who are very protective of their inventions and those who are willing to share with anyone that will listen. I also speak with some inventors who have been through the patenting process before and others who are first time inventor who by their own admission “doesn’t know the first thing about patents.” This last group is the inventors I speak to the most, and it pains me to hear some of their stories.
Lets be perfectly clear, the Patent Office does not call me and ask my input regarding anything, which should be readily apparent to those who read IPWatchdog.com regularly. Had the Patent Office done so, and actually taken my suggestions to heart the Department of Justice would not have needed to ask the Federal Circuit to hold off on taking the claims and continuations case en banc pending David Kappos being confirmed and perhaps withdrawing the rules and mooting the case. No, it wouldn’t have been necessary because I was suggesting that directly since at least December 2008, and was begging Jon Dudas in my writings week after week to do the right thing the go back to the drawing board as early as September 2007. In any event, this doesn’t stop me from pounding my keyboard and publishing my thoughts here. I guess you could say I am naive enough to believe that eventually good ideas will be implemented; and yes, I do understand that I just impliedly referred to good ideas and the federal government in the same sentence. Notwithstanding, there is real hope in the patent community that Kappos will usher in real reform, so I have hope. In the meantime, I want to nominate a few people for the open position of Deputy Patent Commissioner for Patent Examination Policy.
Three weeks ago, TechRadium, Inc., a Texas Corporation with its principal place of business in Sugar Land, Texas, sued Twitter, Inc., a Delaware corporation with its principal place of business in San Francisco, California, alleging the infringement of US Patent No. 7,130,389, issued on October 31, 2006, and US Patent No. 7,496,183, issued on February 24, 2009, and US Patent No. 7,519,165, issued on April 14, 2009. Twitter, Inc., owner of the seemingly ubiquitous microblog Twitter.com, which allows individuals to post 140 character messages, is alleged to be using systems that incorporate the proprietary technology of TechRadium, a company that develops, sells, and services mass notification systems that allow a group administrator or message author to originate a single message that will be delivered simultaneously via multiple communication gateways to members of a group of message subscribers. No doubt this sounds a lot like what Twitter does. Incidentally, as fast, free and useful as Google Patents is, this last patent, the ‘165 patent, which issued over 4 months ago, is still not available through Google Patents.
We argue, hour by hour, day by day, about large issues of morality and ethics and discuss how to make our nation “green”. We discuss large high-level issues like “should we have a public option for healthcare?”, but we give less attention to the details regarding what such an option might look like. Similarly, in the patent system, the public often argues large issues like the patent eligibility of business methods, computer related inventions, and genes, but gives less attention to the establishment of consistent standards for determining which patents will issue and what innovations will be buttressed by the exclusivity incentives that come with those patents. It is time to focus on the details, and a good place to start is with the hiring of a new Deputy Commissioner for Patent Examination Policy (DCPEP).
UPDATED: Tuesday, August 25, 2009 at 11:54am Eastern
It has come to my attention that the Patent Buddy Top 100 seems to be flawed. I have been contacted by one firm on the Top 100 list and told that number of patents they obtained in 2008 is at least double what is listed on the list. I then did a search for myself and confirmed this, and subsequently searched a few other firms using the USPTO database and confirmed other discrepancies. That being the case, I do not feel comfortable leaving this list up on my site.
Updated: Monday, August 24, 2009 @ 5:12:pm Eastern
On Friday, August 21, 2009, the United States Patent and Trademark Office posted a job opening for the position of Deputy Commissioner for Patent Examination Policy at USAJobs.gov. See Job Announcement No.: MJM-09-0217-ExRD. Many will undoubtedly recall that when Jon Dudas resigned, the day Barack Obama was inaugurated as President of the United States, John Doll who was the Commissioner for Patents was promoted to become Acting Director of the PTO, leaving open the position of Commissioner, which was filed by then Deputy Commissioner for Patent Operations, who was Peggy Focarino. Peggy Focarino then became the Acting Commissioner for Patents, leaving open the Deputy Commissioner for Patent Operations position. With the recent confirmation of David Kappos as Undersecretary of Commerce for Intellectual Property, a title that also comes along with the title of Director of the USPTO, that seems to have left John Doll in limbo, and perhaps Focarino in limbo as well. Now the USPTO is looking for a Deputy Commissioner for Patent Examination Policy, the job formerly held by John Love who retired earlier this year. In any event, it would seem that the management ranks at the USPTO are in flux. I cannot claim to be in the loop on this, but if I were asked to opine on what might happen my opinion would be that Focarino will have the “Acting” removed from her title and become the Commissioner for Patents, and John Doll will be the odd man out. As for the Deputy Commissioner for Patent Examination Policy, who knows? There are plenty of qualified candidates out there, including some who lost their jobs during the Dudas Administration.
The plot thickens as the United States Court of Appeals for the Federal Circuit issued an Order earlier today granting Microsoft an expedited appeal of its patent infringement loss to i4i Limited Partnership. In addition to losing approximately $300 million in a decision handed down on Tuesday, August 11, 2009, Judge Leonard Davis of the United States District Court for the Eastern District of Texas also entered a permanent injunction that will become effective 60 days from the judgment date, ordering Microsoft to cease selling the ubiquitous word processing program Word. Of course, Microsoft could remove the infringing functionality from Word, which relates to the opening of a file containing custom XML. Early news reports confidently stated that Microsoft would have absolutely no difficulties accomplishing this task, which were ridiculous on their face, as evidenced by Microsoft scrambling at break-neck speed to secure an expedited hearing in extraordinary fashion. The oral arguments have been scheduled for Wednesday, September 23, 2009, so it appears as if this matter will be coming to a head sooner rather than later.