Industry Insiders Make Patent & Innovation Wishes for 2013
|Written by Gene Quinn
Patent Attorney & Founder of IPWatchdog, Inc.
Principal Lecturer, PLI Patent Bar Review Course Posted: January 2, 2013 @ 9:15 am
It is that time of the year where we all start to look ahead to the new year, perhaps making some New Year resolutions that are sure to last for at least a few days. To switch things up a bit, several years ago I contacted a number of my industry contacts to ask them what they wish for moving into the New Year. See, for example, Industry Insiders Make Patent Wishes for 2012. This has become rather popular and persisted. This year we have a host of industry experts who participated. Over and over again the theme that emerges is that the patent bashing will stop.
So what is your wish for 2013?
Without further ado, here are the wishes of some elite members of the patent and innovation community for 2013.
My wish for 2013 is that the American public take a more balanced view of our patent system instead of the “our patent system is broken” view encouraged by some of the mainstream media. We need to recognize that our patent system has been successful for over 200 years in incentivizing researchers and investors. Sure, we can and should look for ways to improve the system including reducing “shakedown” litigation based on patents of dubious validity, but overall a strong patent system that protects the rights of patent owners has led to unprecedented innovation in the fields of medicine and our “at your fingertips” technology of today. We need to step back and ask ourselves the question, would we have the lifesaving drugs or the information technology available today, or the jobs those industries have produced, without the incentive provided by our patent system?
In the coming year I hope that the public, the media, and the SCOTUS, will take a more informed view of our patent system and recognize the value of a strong patent system and the good it has produced for all of us.
Additionally, I want to wish all of my friends and colleagues in the patent community a healthy and happy new year.
I wish for greater understanding of the patent system outside of the patent community. With increasing frequency I read public commentary which clearly demonstrates a lack of such understanding yet calls for sweeping changes to the patent system or dismantling it altogether. Such calls influence public perception and degrade the integrity of the system. Contrary to this misinformation, the patent system continues to be an engine for innovation and job growth.
The patent system is not perfect, but we should not act hastily or make radical changes that put our innovation economy at risk. Instead, we need to expose the flaws of the system and carefully craft solutions targeted to minimize unintended consequences. We are only just beginning to understand the impact of the America Invents Act and much more will be learned in the coming years. Hopefully, we can all agree to steadily and deliberately strive to improve the quality, accuracy, clarity, certainty, and transparency of our patent system.
I would wish for world peace, but since I am not a contestant in a beauty pageant, I will focus more specifically on perfecting the patent system, even if the goals seem equally unattainable. I would hope that we could find ways to get our decision makers to realize that limiting patent eligible subject matter in the areas of software, diagnostic methods, personalized medicine and isolated sequences, to name a few, harm the US economy in the very industries where we lead the world. Instead we should enhance our focus on improving patent quality so that overly broad patents do not issue. In what would be the rare circumstance where bad patents do issue, those improvidently granted patents should be easily invalidated.
I wish that we could harmonize our patent processes worldwide to eliminate duplicative efforts so that we need only one comprehensive search and examination that accurately determines patentability.
I wish we could further simplify the laws, rules and procedures to reduce costs and make the system more user friendly while providing a fair outcome.
Finally, I also wish that we could find ways to get our inventors the “rock star” status they deserve in our society. That would help encourage all kids to aspire to invent and productively focus the next generation to find even more ways to improve the human condition.
My patent wishes for the new year are:
1. Financial stability for the USPTO to enable it to achieve its pendency reduction, service to the public and quality goals and the selection of a new Director to succeed Dave Kappos who will build on the impressive legacy he has created.
2. A pro-patent pendulum swing in the Supreme Court’s and Federal Circuit’s decision-making that will better help promote innovation and job growth in the U.S.
3. An upturn in global economies that will stimulate investment in research and development to promote innovation, create jobs and improve the standard of living throughout the world.
4. Increased respect for and improvement in the enforcement of intellectual property rights throughout the world.
5. A solution to the debt crisis that will avoid burdening our children and grandchildren as well as generations to come.
My wish is for inventors. That they continue to drive growth in the economy through innovation of all kinds like they have for centuries in this country. Further, that they tap into the many resources, professionals, and inventor groups to educate themselves to become better equipped to tackle their new venture with professionalism. Finally, that inventors learn to grow, adapt, modify, revise and essentially improve their innovations as they critically assess feasibility, market factors and consumer feedback.
My wish is that the media, the public and our political leaders recognize that a relative handful of innovators creating new products encouraged by the patent system make life better for all of us. These entrepreneurs (French for “risk taker”) deserve our admiration, not envy and resentment. Our only chance for meeting the tremendous economic, social and public health challenges staring us in the face is by creating the conditions for innovation– and then getting out of the way so it can grow. The Founding Fathers had good reason to put the intellectual property system in the very first Article of the Constitution. Lincoln said that the patent system “adds the fuel of interest to the fires of genius” yet too many seem determined to dampen the fuel by attacking the very nature of the system. We would do well to remember how our current prosperity was created– and how quickly it is slipping away.
Finally, now the we see that the Mayans were wrong about the world ending, I hope that my Pittsburgh Pirates seize the reprieve and get above .500 this year. Twenty years of futility is quite enough, thank you. Let’s go Bucs!
As the effects of the Leahy-Smith America Invents Act and its implementing regulations – recognized as the first major overhaul to the patent system in almost 60 years – continue to change how we practice, my wish for 2013 is that the jurisprudence of “divided infringement” becomes clearer. The reality is that, in the wake of the Federal Circuit’s August 2012, 6-5 en banc consolidated decision in Akamai/McKesson, the value of many (software) patents containing methods claims remains far too uncertain. Hopefully, in 2013, the SCOTUS provides more definitive guidance on the “single entity rule” and its applicability to indirect and direct infringement. Also, I wish all of my IP community colleagues a happy, healthy and prosperous new year.
As 2012 draws to a close, so does the very successful tenure of David Kappos as Director of the USPTO. Mr. Kappos stepped into the USPTO leadership position at a very difficult time. He assembled an excellent administrative team, dealt with many formidable obstacles, and made remarkable progress in setting the USPTO on a constructive course. Progress at the USPTO has been measurable not only in objective terms. I believe that most practitioners would acknowledge a noticeable improvement in the culture of the Office and in the interaction of Office personnel with the public. Congratulations to all concerned. My wish for 2013 is that the Office remains on this path under the leadership of whoever may take the reins after Mr. Kappos.
As we enter the new year, we should take a moment to reflect and appreciate the significant progress that has been made in the past year to improve the US Patent System. The USPTO is the engine that drives innovation. Patents level the playing field for independent inventors, allowing them to compete with far larger companies, and provide the incentive for investing in the further development and commercialization of their brilliant ideas. We have experienced economic turbulence over the past several years, but we can count on innovation, and the jobs that are created through this, to lead us to stable ground.
At the end of the day, we all want a system that rewards the first inventor who files their invention, and provides greater speed and certainty to the process. We want a system that is responsive to the applicant and minimizes the time necessary to examine an application. My patent wish for 2013 is that the IP community comes together and works hand-in-hand with the USPTO to usher in the AIA and the positive effects it will have on the patent system.
I wish that: (1) we “survive” the changeover from the current “first to invent” regime to the new AIA “first to file” regime when March 16, 2013 arrives; (2) the ACLU/PubPat gets “coal in their stocking” when SCOTUS decides the AMP v. Myriad case; (3) we get a new director of the USPTO that can at least half fill the shoes of the departing David Kappos. (4) Congress fulfills their “promise” in the AIA (Abominable Inane Act) to not “raid” the USPTO user fee coffers and to insure that the USPTO is fully funded from those user fees; (5) we get some more patent law experienced judges on the Federal Circuit;. (6) Congress cease enacting inane legislation in the patent area; and (7) SCOTUS keeps their collective judicial noses out of the patent law area (faint hope though that is) and let the Federal Circuit be the primary arbiters of patent law jurisprudence as was intended by Congress back in 1982.
I don’t have any wishes for our patent system in 2013, because I don’t think our system is broken. The USPTO provides independent inventors and entrepreneurs with fantastic tools to protect their intellectual property from infringement and level the playing field. These tools are affordable and accessible, and they’re even more beneficial when they are fully understood. If you take the time to educate yourself, you can begin to create a wall of protection.
I’ve seen firsthand how well the system works more than once. I’m confident that I was able to sell my company because of my extensive and thorough patent profolio. It made the decision for the other company to buy my company easy: it was explicitly clear that this was my idea alone, and I had already invested a lot in it. And years ago, I sued a large toy company in federal court. It took us three years, but we eventually settled three weeks before we were set to go to trial. Good attorneys are so valuable. You need them to write your patents and manage the process. In court, it was really a prizefight about words. I discovered that. My intellectual property rights helped defend me. And that’s why they’re worth every penny — especially if you end up in up in court.
CEO, Article One Partners
There will be an ample amount written about the major patent litigations, valuations and the America Invents Act. I want to focus my 2013 wish list on the relationship between the patent system and the public – the entrepreneur, like me, who is driven to achieve the American dream by starting her own business, the investors in those business and the employees who are the engine of America’s economic growth.
My company, Article One crowdsources patent research. Our platform is the world’s largest patent research community. Our global community is 25,000 plus researchers from 160 countries. Article One is honored to work members of the public who have self-selected to research on our platform. AOP feels fortunate to represent the unique view of researchers worldwide. We interact with our researchers on an educational level about the patent system and the identification of prior art globally, as well as the technical mapping of claim language to prior art.
Members of the public are subject to the patent system regardless of their knowledge of the law, such as when they are faced with a patent litigation. Patent infringement is strict liability. Infringement is found and damages applied even in cases where an infringer has no knowledge or intention of infringing.
Thus, my wish for 2013 is for those with authority in the patent system, judges, US Patent Office and other government officials, and thought leaders to assess sanctions against those who would misuse our litigation system and clarify legal standards. Judges are in the best position to assert Rule 11 sanctions to those litigants which use patent litigation as a business model, relying on the cost of defense rather than the quality of the patent asserted. The identification of thise abusers is not limited to their commercialization status, but is best judged by their factual conduct and Rule 11 assessment on a case by case basis. Under Director Kappos’ strong leadership, the USPTO now provides new opportunities to improve patent quality in creating portfolios as well as post grant proceedings to determine the merits of issued patents. My hope is that the leadership succeeding Director Kappos can continue his excellent direction and accomplishments. With this focus, the patent system can better serve members of the public subject to the obligations of the patent system and the economic fuel that is entrepreneurship.
Niro, Haller & Niro
My two wishes for 2013: (1) that the NPE-bashing stop; and (2) that 2013 become the year of the individual inventor — the spark needed to create new jobs in our country.
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About the Author
Gene Quinn is a Patent Attorney and the founder of the popular blog IPWatchdog.com, which has for three of the last four years (i.e., 2010, 2012 and 2103) been recognized as the top intellectual property blog by the American Bar Association. He is also a principal lecturer in the PLI Patent Bar Review Course. As an electrical engineer with a computer engineering focus his specialty is electronic and computer devices, Internet applications, software and business methods.