Gene Quinn at the AIPF Annual Meeting in Washington, DC, September 29, 2014.
Today I am going to talk about what I call the patent pendulum. When Todd Van Thomme and I originally started talking about what I would talk about today I said that there would undoubtedly be something that comes up at the last minute. I even joked that I might wind up talking about how the Supreme Court actually got the Alice decision right, surprising us all and saying once and for all that software is clearly patentable. We all know it didn’t turn out that way. So the title of my presentation today is this: Dark Days Ahead: The Patent Pendulum.
As you are probably all familiar, patent law never stays the same in the same spot. It is always swinging one or another, either swinging more towards stronger patent rights and the patent owner, or away from strong patent rights and away from the owner. It has been that way throughout history.
Normally what’s happened is that we’ve seen the pendulum swing over longer periods of time, like over decades, and then it’ll move away. For example the 1952 Patent Act was premised on the fact that Congress didn’t like the way the law was developing over the preceding years and wanted more things be patentable, hence the 1952 Patent Act did away with the flash of creative genius test. So things swung back toward a more patent friendly law, at least for a while. And then in the 1970s no courts ever saw a patent that actually had valid patent claims. This famously prompted Congress to create the Federal Circuit. Under the guidance of Chief Judge Markey and Judges like Giles Sutherland Rich and Pauline Newman, who is still on the court, the pendulum swings back toward the patent owner once again.
One of the frequent claims made by those in the anti-software patent community relates to Twitter and the clearly erroneous belief that patents are not important to the company. Indeed, recently when I wrote Fairy Tales and Other Irrational Beliefs About Patents the claim arose in the comments suggesting that Twitter is proof that patents are unnecessary to succeed. Quite to the contrary. If you actually concern yourself with facts, Twitter is a perfect case study to demonstrate just how important patents, particularly software patents, are to a start-up company that has aspirations of going public.
Doubt me? Perhaps you will believe Twitter themselves. In repeated filings with the Securities and Exchange Commission since October 2013, Twitter has explained over and over again just how important their patented technology is to the company. They have also repeatedly explained that unlike other companies and competitors, even with nearly 1,000 patents, their own patent portfolio is extremely small by comparison. This poses real concerns for Twitter, which is why they warn the SEC and investors of the ramifications of such a small patent portfolio with every new filing.
Let’s begin our tale about Twitter at the start. Twitter, founded on March 21, 2006, was initially believed to be of the opinion that patents didn’t matter. Behind the scenes and unknown to many, Twitter was actively filing patents very early on in the development of the company. This is hardly shocking news given that Twitter’s initial round of funding dated back to 2007 and the near universal reality that high-tech investors not only love patents, but they demand patents. Investors love patents because if the company does not succeed at least some valuable patent assets will remain, which can be sold to recoup losses.
Yesterday the Partnership for American Innovation (PAI), which is comprised of Apple, DuPont, Ford, GE, IBM, Microsoft and Pfizer, submitted comments responsive to a request for public information published in the Federal Register back on July 29, 2014, titled Strategy for American Innovation. Some may recall that in February 2011, President Obama released a Strategy for American Innovation, which described the importance of innovation as a driver of U.S. economic growth and prosperity, and the critical role the government plays in supporting the innovation ecosystem. The Office of Science Technology Policy and the National Economic Council are now tasked with updating the document to create a revised Strategy for American Innovation.
One can hope that this group of venerable American innovators will be able to get through to decision makers who will be responsible for charting the new innovation and intellectual property strategy. Notably missing from the PAI, however, is Google, who will certainly have different views.
Google is known to be one of the primary advocates of watering down, if not outright destroying, the U.S. patent system. This is interesting because Google is a top 10 patenting company according to data from the United States Patent and Trademark Office for 2013. They have also spend tens of billions of dollars acquiring patent portfolios that now due to their lobbying efforts are practically worthless. Regardless of Google’s schizophrenic approach to patents, the arm of Google that seems to loathe patents and the U.S. patent system has particular influence in Washington, DC. Both current and former Google executives are known to have the ear of the White House, which is largely to blame for the substantial anti-patent sentiment flowing from the White House. Unfortunately, all of this suggests that whatever the new strategy for innovation will be it will be one that incorporates significant anti-patent positions support by Google.
Financial services are one of the more interesting areas of innovation which we touch on in IPWatchdog’s Companies We Follow series. Many unique products and services for both individual consumers and business organizations are patent-protected, and a number of American banking institutions are regular applicants at the U.S. Patent and Trademark Office. In our most recent look into the state of financial innovation in America, we sought out the most intriguing patent applications or patents assigned to the Bank of America Corporation, JPMorgan Chase Bank and Wells Fargo Bank. What becomes clear is that the Supreme Court decision in Alice v. CLS Bank does not seem to have slowed the allowance of financial services software patents to these and other major banking institutions.
The Companies We Follow series is visiting this major manufacturer of medications as we continue our survey of recent innovations in pharmaceutical fields. Patent applications recently published by the U.S. Patent and Trademark Office show that Pfizer’s recent development goals have focused on a broad spectrum of diseases and disorders. We discuss a trio of patent applications related to treatments involving the nervous system, including a couple of medications treating Alzheimer’s disease along with a host of other ailments. A couple of patent applications are also related to novel treatments for cancer, especially in the area of preventing cancerous growth.
Many of the patent applications published recently by the U.S. Patent and Trademark Office and assigned to Hitachi involve various aspects of data storage and systems for data management, including a method for energy-efficient cooling of data center equipment. Hitachi is also involved in the development of automotive services, and we’ve included one patent application describing a vehicle information system that can improve pedestrian and bicyclist crossings. Other patent applications that intrigued us today include one waterproof panel for protecting a building against a tsunami influx and an identification system that can authenticate a person based on the blood vessel pattern in their finger.
Here at IPWatchdog, we wanted to take some time in our Companies We Follow schedule to take a closer look at the incredible world of innovation in pharmaceuticals. In our perusal of Eli Lilly patent applications recently published by the U.S. Patent and Trademark Office, we got a close look at many of the medications created in recent months by this company. Leukemia, diabetes and Alzheimer’s disease are all addressed by innovative compounds which we explore in detail below. We also feature a trio of patent application related to improvements to injector pens for self-administration of medications. But perhaps most exciting is the patent that covers antibodies that could be used to treat the Ebola virus.
Last week we profiled recently published patent applications owned by Panasonic. In today’s edition of the Companies We Follow series, we’re wrapping up our in-depth coverage of Panasonic, one of the many major electronics developers found throughout the country of Japan. This company has been issued dozens of patents in recent weeks from the U.S. Patent and Trademark Office. In our new format, we’re taking an extended look at the patents recently issued to this company to gain an even wider view of the type of inventions this corporation has been successful in protecting.
As you will see below, our recent survey of Panasonic patents shows us a great deal of innovation in all electronic fields, from the basic foundation of the semiconductor through complex computer-implemented systems designed to aid human functioning. Although Panasonic may be moving away from manufacturing the semiconductors and integrated circuits which it has designed, many of the issued patents shared below support the fact that this company is still heavily entrenched in this field.
From U.S. Patent Application No. 20140226294, titled “Display Device.”
In our latest installment of the Companies We Follow series here at IPWatchdog, we want to take an in-depth look at an indisputable giant in the field of electronics development and manufacturing over the past few decades. The Panasonic Corporation of Osaka, Japan, is a brand well-known to consumers of electronics all over the world.
There can be no doubt that Panasonic has lately been an intellectual property giant; in 2013, the company was issued 2,601 U.S. patent grants from the U.S. Patent and Trademark Office, the 6th-most among any global entity seeking U.S. patents that year. We want to be thorough in our investigation of a company’s recent research and development operations, so today we’ll be focusing strictly on patent applications published recently by the USPTO. Although these applications do not indicate that a company has earned the right to protect an invention, they have been filed more recently than issued patents and are therefore a better indication of a corporation’s recent developments.