Just about 24 hours ago I posted an article relating to my changing position with respect to first to file, and already there is something of a firestorm.  I understand there are those who feel I have abandoned them and adopted a naive view of the world. But excuse me for recognizing the new tone and identifiable actions taking place at 600 Dulany Street.  Yes, I have been an ardent supporter of first to invent for years, but I have been questioning my views for some time, as I speak with attorneys, inventors and others.  Then several things recently caused me to realize the benefits of first to file for the independent inventor community, and then I heard USPTO Director David Kappos explain that in 2007 only 7 cases were decided in favor of an individual who invented first and filed second.  Kappos explained “we already have a de facto first to file system.”  All this arguing for 7 cases?  Cases where once the rule changes behaviors will change to the point where some, perhaps most or even all of those 7 cases will never happen again because everyone will know they need to file rather than wait.  On top of that, it is inarguably good, correct, legally sound and business appropriate advice to file sooner rather than later.

I am just getting back from two days at the United States Patent and Trademark Office, having attended the 14th Annual Inventors Conference.  There is much to report, and much to write about, and I will continue to digest, analyze and write about what I saw and my impressions in the days to come.  It is, however, undeniable that there is a completely different tone at the Patent Office.  Senior level management, from Director David Kappos,  Deputy Director Sharon Barner, Patent Commissioner Bob Stoll and Deputy Commissioner Peggy Focarino, mingled with inventors and seemed genuinely happy to discuss issues and appear committed to revitalizing the patent system.  There were many, including myself, who wondered what direction the Patent Office would take under new leadership, and while it is early to give a grade, if we are going to be honest and give an interim report card the only fair grade to give at this point is an A.  From top to bottom there is an optimism that exudes from everyone I spoke to at the Patent Office.  Changes that ordinarily would take months are taking weeks, and the political leadership seems to REALLY understand the importance of innovation.  In fact, in video-taped comments played during lunch today Commerce Secretary Gary Locke said that the Obama Administration pledges to provide US inventors the strongest IP protection available anywhere in the world.  What more could we realistically ask for at this point?

The 14th Annual Inventors Conference is presently ongoing at the United States Patent and Trademark Office in Alexandria, Virginia.  The conference started yesterday and continues today.  I am here at the USPTO presently, and I was here yesterday as well and had an opportunity to hear Patent Office Director David Kappos address the attendees during a lunch speech and then again during the reception at the end of the day.  Congressman Dana Rohrabacher (R-CA) also spoke during the reception last night, giving a heavily pro-inventor, pro-patent speech to a very receptive audience.  The event has run smoothly, the presentations have been good and it is always nice to be able to get face-to-face time with friends and allies within the independent inventor community.  The one potential hot-button issue to be discussed at this conference and taken directly head on by Director Kappos was patent reform, and in particular those issues that may be seen by some as difficult to swallow in the independent inventor community.  Credit definitely needs to be given to Kappos for now shying away, addressing concerns and answering questions.  I think he even persuaded some in the audience, one of whom was me.

I just so happened to stumble across an interesting article declaring me Patent Twit of the Week.  Normally one would not be proud of being declared a “twit,” but I have to say that I am enormously proud of this recognition.  It seems that The Center for a Stateless Society has declared me a patent twit.  Yes, you read the name correctly. These folks are nothing more than anarchists who hold a grudge, which I realize is a redundant characterization. In any event, this is mighty high praise coming from an organization that describes themselves as a project “dedicated to building public awareness of, and support for, market anarchism.” So why do I care? Why do I even given them the time of day? It certainly isn’t to promote them or to even engage in a debate with them. I write only to disclose the biases of those who have an anti-patent agenda. With the ever building assault on intellectual property rights and patents in particular I think it is imperative that decision makers understand the positions and biases of those leading that anti-patent charge. Those leading the charge and cheering from the sidelines are anarchists who make up lies to support their positions and ignore facts.  They would have us dismantle our patent system, our economy and our government.  So allow me to expose the anti-patent movement for what is — utter nonsense.

On Monday, November 9, 2009, the United States Supreme Court will hear oral arguments in the much anticipated Bilski case, which could well decide once and for all whether business methods and software remain patentable in the United States. I will be in attendance at the oral argument, which will take place after a lunch recess. I will be joined by John White , the creator of the PLI Patent Bar Review Course and patent attorney with Berenato & White. My intention is to write and post throughout the day on Monday, leading up to the oral arguments and then in the afternoon as soon as I an after oral arguments are completed. John and I will then participate in a PLI Hot Topic Briefing on Wednesday, November 11, 2009 from 1pm to 2pm ET. We will be joined on this briefing by Scott M. Alter of Faegre & Benson LLP and Douglas R. Nemec of Skadden, Arps, Slate, Meagher & Flom LLP, both of whom along with John White are co-chairs of PLI’s 4th Annual Patent Law Institute. The title of the PLI briefing is Bilski Supreme Court Arguments: Eyewitness Report and Expert Analysis, and CLE credit is available. As always, PLI Privileged Members may attend for free, as they may do with virtually all PLI programs. Those who are not Privileged Members can also join in the briefing for a standard fee. PLI has also decided to make this briefing and other pre-recorded Bilski presentations freely available to any members of the media who may be interested in obtaining a deeper understanding of the issues surrounding this extremely important case.

The Plaintiffs allege that because human genes should not be patented.  Hardly something that anyone can argue.  The only trouble is that this is not what the US Patent Office allows, and it is not what Myriad Genetics has been granted a patent on.  Nevertheless, the frivolous ACLU lawsuit that seeks to use the US Constitution to declare patent claims invalid is allowed to proceed regardless of the facts and in spite of there being no justifiable statutory theory for the plaintiffs to purse.  Instead, Judge Sweet is allowing the plaintiffs to cite generalized Constitutional harm, in direct and open violation of well establish standing principles.  They seek to challenge patents because they want others to be able to use the Myriad Genetics techniques for free and without paying.  They claim that patents control thoughts, and therefore violate the First Amendment.  How ridiculous!

In one of the worst opinions I have ever read from any federal court, the United States District Court for the Southern District of New York ruled earlier today that the ACLU challenge against the Myriad Genetics patents and the United States Patent and Trademark Office for issuing patents can proceed. Procedurally the posture was a Motion to Dismiss, which are granted only in rare and extraordinary cases. What makes this decision surprising is that District Court Judge Robert W. Sweet, the 87 year old judge who has been on senior status since 1991 and who was appointed by President Jimmy Carter, recognized that there is no valid basis to bring this lawsuit but allowed it to proceed anyway. Truly amazing!

It is with great sadness that I am writing to inform that Robert H. Rines passed away on Sunday, November 1, 2009.  Bob was a patent lawyer, an inventor and the founder of Franklin Pierce Law Center, where I received both my JD and LL.M. degrees.  He was a fierce advocate for independent inventors, a tremendous patent attorney and world-class inventor.  In the popular press he was known as the guy who chased the Loch Ness monster. Yes, he did go looking for the Loch Ness monster numerous times, famously chasing images of the creature and appearing in several popular TV documentaries on Loch Ness and Nessie.

In chasing the creature he used advanced scanning technology he invented, scouring Scotland’s Loch Ness. According to the National Inventors Hall of Fame, of which Rines was a member – Class of 1994, Rines’ scanning technologies “underlie nearly all the high-definition image-scanning radar used to provide early-warning, weapons fire-control, and some artillery and missile detection radars during the war in the Persian Gulf.”  His ultrasound scanning innovations have been used to search for the shipwrecks of the Titanic and the Bismarck.  While he did have fun looking for Nessie, and more than one graduating class at Franklin Pierce Law Center poked fun at his expense courtesy of the pond in White Park where graduation festivities take place, Bob Rines was in every sense a true Renaissance man.

Last Monday, October 26, 2009, I had the opportunity to discuss gene patents on GritTV with host Laura Flanders. I appeared on the show via Skype video along with David Koepsell, the author of Who Owns You? , who was in the studio. I was supposed to be in New York City with David to debate him at Cardozo Law School, and then over tot he GritTV studios, but I was unfortunately under the weather and unable to make the trip. Thankfully the producers were able to connect us via Skype, and I was able to down some DayQuil and manage to get through the 12 minute segment, which appears below.  I think this segment came out quite well, and Flanders did an excellent job.  Before the tape started rolling she told us both that after reading the material we both submitted she didn’t know what she believed, because both sides raise good points.  I think you will see she did a very even handed job, and I hope she picks up with this more in the future.  It was clear she did her homework and facilitated a fair exchange, which is all you can ask for in such a format.

On October 30, 2008, the United States Court of Appeals for the Federal Circuit issued a landmark decision in In re Bilski. The United States Supreme Court has accepted the Bilski case and will hold oral arguments on Monday, November 9, 2009. My plan is to be present for the oral arguments, and I have submitted a request to the Supreme Court for press credentials for the day. I still have not heard back from the Clerk of the Supreme Court, and it is my understanding that the Supreme Court has never provided press credentials for those who write primarily online, which is interesting in and of itself given the nature of the Internet and the fact that niche reporting is done far better (typically) by bloggers. Nevertheless, in order to prepare for the Supreme Court oral argument I am picking up the History of Software Patents series. The History of Software Patents Part I appeared in January 2009, and focused on US Supreme Court cases in the software space, namely Gottschalk v. Benson and Diamond v. Diehr. The History of Software Patents Part II appeared in April 2009 and focused on Federal Circuit development of law in Arrhythmia Research Technology, Inc. v. Corazonix Corp., and the supposed demise of the Freeman-Walter-Abele test. Part III now picks with In re Alappat.

On Monday, October 26, 2009, Google, Inc. was sued for patent infringement relating to its new Chrome browser by Red Bend, Ltd., an Israeli corporation and Red Bend Software, a Delaware corporation located in Waltham, Massachusetts.  Red Bend, Ltd. is the owner of US Patent No. 6,546,552, and Red Bend Software is the exclusive licensee of the ‘552 patent (hereinafter “Red Bend”).  The complaint filed by Red Bend in the United States Federal District Court for the District of Massachusetts alleges that the Google Chrome browser infringes “one or more claims of the ‘552 Patent either literally or under the doctrine of equivalents.”  The complaint is rather bare bones, does not identify the claims that are believed to be infringed and upon initial reading I thought this type of complaint by ambush, of which I am not a fan, wreaked of a patent troll.  That was my thought at least until I got to the end and see that Dwyer & Collora, a Boston law firm, are local counsel and Baker Botts is seeking admission pro hac vice.  While I may not like complaints without claim numbers, this is definitely not a troll action.  Red Bend offers products and services, and are not just in the business of suing.  On top of that, the big guns have been brought to bear.  Without knowing anything about the underlying merits I feel comfortable saying that we should keep an eye on this litigation.

Earlier this week, on October 27, 2009, Amazon Technologies, Inc., received US Patent No. 7,610,382, which relates to a computer implemented method of marking copies of content distributed on a network. More specifically, the patent discloses and claims a variety of embodiments of a method and associated apparatus for programmatically substituting synonyms into text content distributed through a Web service. Embodiments include having a synonym substitution mechanism that will replace selected words in text with synonyms for those selected words, such as by substituting the synonyms in excerpts of copyrighted works that are provided to via a Web service interface. Tip of the hat to Slashdot for finding this patent and bringing it out into the open, but the major thrust of the patent and its potential importance was unfortunately downplayed. The submitter did recognize that in one version of the invention the method can be used to identify and call out copyright infringers, but then snidely joked about a minor aspect of the patent by saying “anti-piracy measures should trump kids’ ability to spell correctly, shouldn’t they?” Perhaps it is to much to ask for the masses to take any software related patent seriously, but there is no doubt this is an innovation and a good example running up to the Bilski Supreme Court arguments why software innovations should be patentable if they satisfy the other patentability requirements; namely if they are new and non-obvious.

Last month a two-day international symposium sponsored by WIPO concluded with broad agreement on the need to pool efforts at the international level to address the problem of backlogs in patent applications at patent offices around the world.  In 2007, the last year for which complete worldwide statistics are available, unprocessed patent applications around the world reached 4.2 million, and that number continues to grow according to WIPO.  The Director General of WIPO, Mr. Francis Gurry, explained at the symposium that the main challenge of the future for patent offices around the world is to promote coordinated international action to enhance efficiency of operations and encourage dissemination of best practices in modernizing the infrastructure, operations and management of  the world’s various patent offices. WIPO hinted that work sharing could be enhanced through the Patent Cooperation Treaty (PCT) and Patent Prosecution Highway (PPH) agreements, with new pilot projects to come on line in early 2010.  According to Gary Smith, of the PCT Learning Center and a former member of the United Nations diplomatic corps who served as the Director of the Patent Cooperation Treaty at WIPO, “this will be a considerable inducement to those applicants wishing to obtain patent protection in the growing list of countries participating in the PPH.”

By now many in the inventor community know that I resigned my position on the UIA Board and stepped down as UIA Vice President as a result of my being uncomfortable with the perceived and growing cozy relationship the UIA was pursuing with Invent Help, one of the most notorious of all invention scams.  I found it necessary to write a follow-up article stating my position and disagreeing with how some in the invention community were using my resignation to bolster themselves and their own agenda.  Unfortunately, the invention community that provides services to independent inventors is full of seedy operators.  There are the scams, then there are those who make a living convincing inventors that everyone except for they are scammers and then there are the legitimate individuals and businesses.  At times it seems that the legitimate individuals and businesses are greatly out numbered by those in category 1 or 2, and now I find myself being questioned by someone who has long claimed to be one of the good guys, but who himself advertises in multiple formats about how you can make millions from your ideas.  Regardless of what Stephen Key says, and regardless of whether he wants to question my ethics, the truth is you cannot make millions from ideas and a tell-tale sign of a scam is an individual or business who lures you in by telling you that you can make money from ideas.  You simply cannot protect ideas by any form if intellectual property protection, so there are no assets to license and, therefore, no revenues possible.

As first reported by Bartholomew Sullivan of The Commercial Appeal, last week, on October 22, 2009, thirty-four members of Congress wrote a letter to Secretary of State Hillary Clinton urging her to steadfastly support strong intellectual property rights and not to given in to international demands that would weaken intellectual property rights, particularly patent rights. The concern expressed by these members of Congress centers around negotiations attempting to obtain an international agreement under the United Nations Framework Convention on Climate Change (UNFCCCC). This letter references a 432-0 vote in the United States House of Representatives on June 10, 2009, relative to an amendment to the Foreign Relations Authorization Bill, which stated that the United States “should prevent any weakening of, and ensure robust compliance with and enforcement of, existing international legal requirements as of the date of the enactment of this Act for the protection of intellectual property rights related to energy or environmental technology” in order to “protect American jobs, spur economic growth, and promote a ‘Green Economy.’”

False marking is a statute in the Patent Act that imposes civil liability for intentionally marking a product as patented when it isn’t.

We’ve all come across a product marked with the phrase, “This product is covered by U.S. Patent No. (fill in the blank).” Such marking puts the world on notice that the patent holder has exclusive rights to collect monetary damages from those who infringe their patent.

While patentees are not obligated to display the patent number, the one factor they must always consider is the costly mistake of false marking.

When someone improperly marks an unpatented item as being covered by a patent with intent to deceive the public, that person is legally at risk. Anyone has the right to sue a patentee for false marking, with potential damages of $500 per occurrence.

Apple was issued US Patent No. 7,608,775 earlier today relating to a method of changing time duration guiding a note along a beat ruler in a Graphical User Interface (GUI).  This patent application was filed on January 7, 2005, the same day that several other GarageBand patent applications were filed, including US Patent No. 7,603,623, relating to methods to automatically correct timing of recorded audio in a  GUI, which was issued just two weeks ago on October 13, 2009. According to USA Today, “Apple’s GarageBand is far and away the most popular program for creating and recording music on the computer, since it’s free and shipped with every new Mac.”  GarageBand does come free with every Apple computer, and is a part of the iLife suite.  If you have a Mac and do not have iLife you can download iLife ‘09 for $79.

The United States District Court for the District of Delaware handed Allergan, Inc. (NYSE:AGN) a victory last week in its patent infringement lawsuit brought against Exela PharmSci, Inc., Exela PharmSci Pvt., Ltd., Apotex, Inc. and Apotex Corp. The defendants had been seeking permission to market generic versions of Allergan’s drugs ALPHAGAN® P, which is indicated for the lowering of intraocular pressure (IOP) in patients with open-angle glaucoma or ocular hypertension. The patent infringement trial took place in March of 2009, but a final ruling was not handed down by the district court until Friday, October 23, 2009. Such a length of time between trial and handing down a decision is not uncommon, and at least several months can be expected in a patent litigation, particularly where the science is complex.

The United States Patent and Trademark Office a few days ago announced the designation of the Ryan-Matura Library of Sacred Heart University in Fairfield, Connecticut, as a Patent and Trademark Depository Library (PTDL). The patent and trademark depository library program began in 1871 when federal law first provided for the distribution of printed patents to libraries for use by the public. The addition of the Ryan-Matura Library to the PTDL network makes a total of 82 libraries located in 45 states, the District of Columbia, and Puerto Rico, but why is the is the US Federal Government continuing to support the PTDL initiative and why are they continuing to add PTDLs? The stated purpose of the PTDL program is to assist business, innovators and inventors, presumably by having resources nearby in a local facility, thereby bringing the resources and information of the Patent and Trademark Office to every region.  But why?  With the growth and popularity of a global communications network called by many “the Internet” it would seem that there are far better ways to make the information resources of the USPTO accessible by everyone.  Call me crazy, but if Google can figure out how to make most US patents full text searchable, shouldn’t the USPTO be able to figure it out as well?

On the same day – October 22, 2009 – that an Apple patent application relating to embedded advertisements in an operating system published, the Redmond Giant, Microsoft Corporation, had US Patent Application 20090265604 publish, which seeks to protect a method for displaying a graphical representation of the vitality of a social network. This patent application was filed on April 21, 2008, and is one of many related to social networking that Microsoft has pending presently.  A search of Patent Office recordings using FreePatentsOnline.com shows there are 19 issued US patents to Microsoft containing the term “social network” or “social networking” and 279 pending US patent applications filed by Microsoft containing one or the other of those terms.  This has become an all to familiar business plan for Microsoft, namely scrambling to catch up with whatever the current hot trend is.  Of particular note, Microsoft has in recent years been late to the party with respect to portable MP3 players, only introducing the Zune once the iPod had established industry dominance.  Microsoft has also been late to the search engine business, feverishly attempting to catch up to Google; they have come to the video gaming market only to be behind Sony PlayStation; and they have famously struggled with operating system failures, requiring a completely new OS to be unveiled just days ago in order to address the embarrassing failure of Vista.