This is a little off-topic but since we’re generally talking about patent reform and one of the most contentious issues is the damages apportionment issue, let me put this food for thought out there:

If a patent-holder and an accused infringer can’t agree on a reasonable royalty (in the context of the Georgia Pacific analysis), allow for an offer to be made (by either party) to remove the accused infringing component from future products. If the accused infringer agrees, allow the jury to give greater weight to the accused infringer’s royalty rate and not award an on-going royalty for future damages. Conversely, if the accused infringer refuses to remove the accused infringing component going forward, allow the jury to give greater wieght to the patent-holder’s royalty rate (for past and future damages).

I’m somewhat bemused about the entire damages apportionment issue because accused infringers always make the argument that the accused infringing component is SUCH A SMALL PART OF THEIR OVERALL INVENTION AND CERTAINLY NOT WORTH PAYING MUCH FOR. I say, if that’s true, put your money where you mouth is and agree to remove the accused infringing component if it’s just not worth that much to the overall value of your invention.

I had a case where the accused infringer repeatedly told its customers (in product literature and at trade shows) about the benefits of using the component that we accused of infringing our patent. During the damages phase, they naturally took the position that this component was there merely as a convenience for the few customers that may have wanted that functionality. Interestingly, when we asked their technical people whether they would agree to remove that accused component, their response was that “We never remove features from our products.”

Bemused

That is exactly what I am afraid of. I am starting to see exactly how Washington works. Open ended language that allows for what everyone believes is reasonable, but which also would/could allow future unnamed actions that many would view as unreasonable.

-Gene

I don’t have a specific information about India. That was just an example.

In my post a couple months ago I observed that the KIPO search option has become the norm for most big corporate clients when they file PCT applications, mostly due to the discounted search fees. It is a pretty small step to offer a similar discounted fee structure for an examination (or a preliminary examination) to be done in the KIPO. This might start with the PCT then progress to the USPTO. Alternatively, it would be a trivial matter to restructure fees such that applicants have an incentive to file PCT rather than USPTO direct. Once clients get used to examination in a foreign patent office this model can be applied to US applications.

A few more off the cuff comments, since I don’t have a lot of time. First, I do not believe the current patent statute requires examination in the USPTO. I think this could be implemented right now–it’s not even clear to me that it requires a formal rule subject to APA rulemaking procedures. Second, outsourcing examination offers the PTO a way to address the backlog and cut costs in one nice little package. Third, large tech companies (like IBM) are going to love this. What exactly is the downside for Kappos?

I’m similarly uncomfortable with outsourcing the examination function, but honestly, examination can’t really get much worse than it is right now. I wouldn’t blame any client for choosing to roll the dice in a foreign patent office.

As to your comments on the dollar, two things are required in order for the dollar to maintain it’s status as a reserve currency. The first is an open and transparent banking system. The second is a federal government at least nominally committed to fiscal responsibility. This administration offers neither. Hence, the dollar is tanking with respect to other currencies and especially with respect to commodities.

It appears to cover both the Patent Prosecution Highway as well as future unnamed actions.

Yes, I know that and work sharing is one thing, and it seems completely plausible that this was taken out of context. Nevertheless, I do think it is worthwhile for folks to look into this, what is actually in the bill and what the Obama Administration wants removed specifically. Sharing search resources and cooperation is one thing, yielding sovereignty and allowing prosecution and decisions to be made by an international body or outside the US is quite another.

I would normally not give a second thought to a statement like this, chalk it up as definitely out of context and wrong, but some of what is being discussed openly about the US being willing and even encouraging the US Dollar not to be the international standard makes me very worried. If the Obama Administration is willing to give up on the US Dollar, or at least float the idea, then it seems plausible that they could want truly outsourced patent prosecution.

-Gene

Seriously, who’d have thunk?!!! I hope this administration doesn’t have the “We CAN’T do this attitude” that the Bush administration so aptly portrayed. Or else America is nigh unto history.