Let me set the record straight from the start. I do not agree with President Obama on much, and I voted for and supported John McCain dating all the way back to his first run for President. Having said this, it is impossible to ignore the fact that so far President Obama and his Administration is saying all the right things with respect to innovation and patents, and there is real cause for optimism, at least if you believe that innovation and strong patent rights will lead to a better economy and leverage what Americans do best, which is solve problems with ingenuity and innovation. Not only has President Obama appointed a patent attorney to run the Patent Office, which is sadly revolutionary, but when he speaks of innovation his words sound Reaganesque. This has never been more apparent than in his speech on innovation and sustainable growth delivered at Hudson Valley Community College in Troy, New York, on Monday, September 21, 2009.

David Kappos at IPO

Last week USPTO Director David Kappos explained during his speech at IPO that intellectual property law “is widely recognized as the engine that drives our information age economy, maintains our competitiveness and is responsible for creating and sustaining tens of millions of U.S. jobs.” I have been beating this drum now for several years, and despite the obvious and indisputable correlation between innovation and economic expansion that leads to new jobs, the old guard at the USPTO simply couldn’t or wouldn’t understand. It would seem that the days of shuffling chairs on the Titanic are over, and if nothing else at least the USPTO has a leader that seems to understand the link between recessions, start-up companies forming and increased innovation leading to new industries that create jobs. Of course, it certainly helps that Kappos is a patent attorney and was responsible for being Captain of the IBM intellectual property ship, which after all is really all IBM has because without intellectual property protection, particularly without patent protection, IBM would be just three random letters rather than one of America’s mega-corporations that provides jobs.

David Kappos, USPTO Director

Last week David Kappos addressed the IPO annual meeting in Chicago, Illinois.  Kappos’ remarks were varied and really set a new tone for the future of the USPTO under his watch.  Kappos continued the theme he has already established in differentiating how the USPTO will run under his regime, as compared to how it ran under the previous regime.  Specifically, Kappos promises to cut pendency across the board, to develop a count system for patent examiners that does not require an endless stream of RCEs and he wants a patent system that does not favor (or disfavor) any particular technology over others.  On the negative side, Kappos was the bearer of bad news with respect to the fiscal crisis facing the Patent Office, and saying that there will be no new hires during 2010 and likely no way to dig into the backlog of pending cases.  He also announced his support for patent reform, which will get many shaking in their boots.  It is hard to argue with what he says, namely that it has been long enough without any overhaul of the patent system.  I think everyone will likely agree with that statement, but the devil will be in the details.  In any event, the agenda set out by Kappos is ambitious.  Now we have to see where it leads and whether it will result in a truly better patent system.

Legend has it that Zeus punished Prometheus by binding him to a rock while having his regenerating liver eaten daily by a great eagle. After the case of Prometheus Laboratories, Inc. v. Mayo Collaborative Services, we in the patent world may now be subjected to similar torture in determining when medical/drug dosage calibration methods qualify as statutory subject matter under 35 U.S.C §101. The district court in Prometheus ruled that a patented drug dosage calibration method was non-statutory under 35 U.S.C §101 as essentially correlations of “natural phenomena,” citing Justice Breyer’s dissenting opinion in Laboratory Corp. v. Metabolite Laboratories, Inc. But in the resulting collision with the “machine or transformation” test of In re Bilski, the Federal Circuit held, instead, that this patented method was “transformative,” and therefore statutory subject matter under 35 U.S.C §101.

The United States Department of Justice on Friday filed papers with the United States Federal District Court for the Southern District of New York, challenging the settlement reached by Google and the plaintiffs in the copyright litigation challenging how Google is digitizing books and offering them for free. The DOJ told the court in a 32 page filing that the district court should not accept the class action settlement in The Authors Guild Inc. et al. v. Google Inc. as proposed due to concerns regarding whether the class adequately represents the interests of those who are not class members, copyright and antitrust laws. The DOJ indicated in its filing that its own review of the Antitrust implications are ongoing, and that since the parties have indicated a willingness to continue negotiations they should be encouraged to continue their discussions to address the concerns raised by the United States. The proposed settlement has been widely criticized because it would significantly alter that rights, and potentially de facto alter copyright law, not to mention that Google would be essentially handed complete and total rights to exploit digitized works. There are serious and significant copyright issues that remain, and the settlement as proposed would almost certainly grant Google a monopoly, which is hardly ideal.

Dmitry Brant, a DC patent attorney at a top patent law firm, recently launched a new software product aimed at the patent market named Patent ClaimMaster.  Patent ClaimMaster is a Microsoft Word plugin that helps you improve the quality of your patent documents while reducing costs. With Patent ClaimMaster you can turn cumbersome and time consuming tasks into simple tasks with only a simple click of the mouse. The software has a script-based engine that can check claims and specification for various errors, and the long list of features will allow you to, among many other things, quickly and easily create claim charts, compare claims to identify the differences, generate a summary of the claims renumber both independent and dependent claims, identify claim terms missing support in the specification, download patents from the USPTO and run analysis on them and much more. This tool seems to include far more features than anything else available on the market (see Comparison Chart), is easy to use and unlike so many other tools for patent attorneys, this tool was created by a patent attorney who understands what we all need and what will make our jobs easier. There is also no reason not to give it a try since you can download a full version of Patent ClaimMaster for a 14 day free trial before you buy, and the Patent ClaimMaster website has demonstration videos showing just how easy it is to perform tasks using the tool, and gives you the ability to visualize exactly how beneficial it is to use. I think if patent attorneys take a moment to look at some of the video tutorials, which are quite short, ranging from 20 seconds to about 90 seconds, you will understand exactly what a wonderful tool Dmitry has created and why it will make you more productive and your work easier.

Yesterday an interesting animated film opened in theaters across the United States. The film by Columbia Pictures’ and Sony Pictures is titled Cloudy with a Chance of Meatballs, and is billed as “the most delicious event since macaroni met cheese.” This film is based on a children’s book of the same title published in 1978.  Bill Hader, star of “Saturday Night Live” and Night of the Museum: Battle of the Smithsonian, is the voice of Flint Lockwood, a young inventor who dreams of creating something that will improve everyone’s life. Anna Faris takes on the role of Sam Sparks, a weathergirl covering the phenomenon. James Caan does the voice for Tim Lockwood, Flint’s technophobic father. Andy Samberg plays Brent, the town bully who has plagued Flint since childhood. Bruce Campbell does the voice for Mayor Shelbourne, who figures out that Flint’s invention can put the town, and more importantly himself, on the map and Mr. T is the voice of a by-the-book town cop Earl Devereaux.

Rob Clarke, USPTO Chief of Staff

Yet another high profile senior level management position has been filed at the United States Patent and Trademark Office, and the trend of qualified “get it” people continues.  Rob Clarke, who is currently the Director of the Office of Patent Legal Administration (OPLA), has been asked by Director David Kappos to become the new USPTO Chief of Staff.  I know Rob Clarke, professionally speaking, and I believe him to be an exceptional choice for this job.  While Director of OPLA Clarke has frequently been given the dubious honor of speaking in public at conferences and CLE events, including many sponsored by PLI, and has defended many of the ill conceived rules that gave the Patent Office such a black eye over the last several years.  There will be some who will question whether Clarke, who has been perceived at times as the defender of the Patent Office position, is the right person for this job.  My own view is that he is knowledgeable, energetic and extremely bright.  I have long felt he was a rising star within the Patent Office, and have heard others refer to him as such.  I do not hold against him the fact that he has been the public voice of the Patent Office explaining unpopular rules.  Having as Chief of Staff someone who has interfaced with so many patent attorneys at various events suggests an open posture and sharp divergence with respect to how the USPTO has operated in recent years.  This is all positive and a very welcome sign from Director Kappos.