Those who are readers of IPWatchdog.com on a regular basis are familiar with the jousting that goes on in the comments between myself and a core group of patent believers and those who are, shall we say skeptical of the value of patents and would prefer that patents simply not exist, or at least not exist in certain areas, such as software. Without getting into that debate directly here and now allow me to observe that if you are an independent inventor, start-up or small business one successful way to responsibly move forward is to pattern yourself on successful companies. There is no mileage in following the lead of a company in decline, so lessons can be learned by observing successful companies and weaving together a strategy that will lead to market success. Perhaps no other company today so aggressively pursues patents on core technologies and products than Apple, and they enjoy enormous success. So why not take a page from the Apple playbook? Innovate, patent, commercialize and dominate.

Apple, Inc., the tech giant that has revolutionized how we listen to music and the functionality of a cell phone, is now seeking to expand its extremely popular iPod and iPhone products into greener pastures. Specifically, in a US Patent Application No. 20100013309, which published earlier today, Apple is seeking a patent on a solar powered electronic device, such as an iPod or iPhone.

Every week Apple obtains patents and every week more pending patent applications are published where Apple is the assignee (i.e., owner). Apple aggressively pursues patent protection because quite frankly patents make good business sense. There is a reason that the iPod and iPhone dominate the market, and other alleged substitutes lag far behind. It is because Apple has a well developed and ever expanding patent portfolio that protects these core products and prevents competitors from getting too close.

Last week a US Patent Application No. 20100010893 published detailing an invention relating to digital advertising, and more particularly to creating video overlay advertisements suitable for use with digital videos. The owner is Google and the patent application was originally filed on July 9, 2008. It seems that the Internet giant and purveyor of the extraordinarily popular YouTube video sharing website, is attempting to make it easier to create multimedia advertisements.  The screen shots in the patent application show that YouTube video is, in fact, what Google has in mind.  Just what we need, more advertising!  But advertising does pay the bills and allows individuals and businesses to create unique content for the Internet while making a living, thereby enabling for additional creation.  This, after all, is the justification for intellectual property rights.  Grant to businesses and individuals exclusive rights that they can monetize, if in fact there is a market.  Through monetization they can, hopefully, make enough to engage in further original creation, and so goes the cycle.

Earlier today President Barack Obama, perhaps with the best of intentions, demonstrated that he is not all that familiar with the United States Patent and Trademark Office and how they handle patent applications. The short of it is that what President Obama said to tech executives was wrong on the facts, but at least partly correct in spirit. Essentially, President Obama said that the way the Patent Office handles electronically filed patent applications is to print them and scan them. Sadly, that is not true, or is at least extremely misleading. It is certainly true that the Patent Office used to do things that way, but since the new EFS Web system was unveiled on March 16, 2006, electronically filed patent applications are not printed and then scanned. Perhaps the President or his speech writers are readers of IPWatchdog.com and got the wrong impression when I lamented a few months ago that genius federal minds thought printing and scanning created a paperless system, or perhaps the White House has been spying on the PLI Patent Bar Review Course and listening to John White tell stories of the old days when printing and scanning of electronic filings was the rule. Whatever the case, the President was incorrect on the facts, but certainly correct to say that it is embarrassing that the Patent Office computer systems are woefully inadequate and behind the times.

Reports are widespread that large corporations have cut back on the number of patent applications they file, and I see no reason to believe these first hand accounts are incorrect. Nevertheless, fiscal year 2009 saw the second highest number of patent applications filed at the United States Patent and Trademark Office, down only some 11,000 applications from the record year in FY 2008. Meanwhile, tech sector giants have been crying and moaning about how the patent system has run amok and needs to be scaled back, and continually beg for patent reform that would gut the patent system and weaken patent rights. This grumbling is picked up by patent abolitionists who say “see, even Microsoft thinks there should be no patents,” which only adds to the hysteria. Against this backdrop the corporations bemoaning patents received record numbers of patents during 2009. Obviously they talk a good game but when push comes to shove they will get as many patents as they can, but want to make it hard for small businesses and individuals to get patents.  Quite curious if you ask me!

Yesterday the United States Patent and Trademark Office announced the creation of a pilot program to accelerate the examination of certain green technology patent applications. The announcement was short on details, which will apparently be forthcoming, but the move to accelerate green technology patents is one that can and should pay off handsomely. Back on March 30, 2009, I wrote an article titled A Proposal for Green Technology, which called on President Obama to issue an Executive Order requiring the accelerated examination of patent applications that relate to green technologies, while cautioning that relying on the current acceleration avenue would be inappropriate given the number and magnitude of unfavorable admissions that would need to be made. While it is unclear as yet under what circumstances green patent applications will be advanced out of order, we can only hope that the onerous and untenable Examination Support Document will not need to be filed in order to accelerate. If an ESD is required that would make this enormously positive initiative nothing more than a publicity stunt because as long as patent applicants must file an ESD few will because the document must include horrific admissions that would almost certainly render any patent unenforceable if litigated.

For many months we have been hearing about the government attempts to “reform” health care in the United States, and this weekend the United States Senate is actually working, yes Senators working on a weekend, as the contentious debate continues. Even a relatively rare Presidential visit to Capitol Hill is scheduled for later this afternoon, presumably so President Obama can rally the troops for whatever lies ahead. While patent policy has not taken center stage in these debates, it is hard to ignore the under current that rages through the debates. Health care costs too much, so costs need to be contained. Of course, market initiatives like a national heath insurance market, which would lower premiums for everyone overnight, are not being considered. Likewise, attempts to prevent those without insurance from clogging up emergency rooms for simple matters like runny noses, sprains, colds and a litany of other ailment is not on the table either, so rather than discussing health insurance premium reform and government sponsored clinics in areas where there is the highest density of uninsured, we are debating a host of other things and trying to squeeze the private sector. I have long wondered why there has been such an all-out patent war against pharmaceutical and biotechnology companies, but the ACLU patent challenge against Myriad Genetics and the assault on biologic from some corners of government has me thinking that the preferred way to control costs in the minds of some politicians is to either stop or dramatically slow medical technology progress through revised patent and innovation policy. That is a mistake, an enormous mistake. We enjoy an ever increasing life span and higher quality medical care than anywhere in the world because of technology and innovative advances in an array of disciplines, and that MUST be preserved.

Courtesy of NASA

Inventors Digest held a youth innovation essay contest, in part to celebrate National Inventors Month, last August. The four winning essays are at InventorsDigest.com. The magazine received and reviewed some 400 essays from across the country. Inventors Digest, in cooperation with IPWatchdog, is showcasing several essays deserving of honorable mention. This is the second Honorable Mention Essay. The first was written by Hannah Joy Coad and was titled Nanobots – An Invention of the Future. This and other essays illustrate the creativity and optimism of today’s youth.

Gene Therapy – Double Helix Health Care

By Evan Brown, 17, Ocean Lakes High School, Virginia Beach, VA

It’s an average day. You wake up, read the paper, and head off to work. While stuck in the daily traffic jam, you notice a slight twitch of your head.

The fleeting movement goes by unnoticed, unchecked and you go about your life. That seemingly innocuous tick is the precursor to a debilitating and often fatal condition known as Huntington’s Disease.

Medical Nanobot Cleaning Infection

Inventors Digest, in cooperation with IPWatchdog, is showcasing several essays deserving of honorable mention.  The first in this series appears below.

Inventors Digest held a youth innovation essay contest, in part to celebrate National Inventors Month, last August. The four winning essays are at InventorsDigest.com.  The magazine received and reviewed some 400 essays from across the country. The following illustrate the creativity and optimism of today’s youth. “The level of competition was extremely high, making selection of just four winners a tough task,” said Inventors Digest editor Mike Drummond.

Nanobots – An Invention of the Future

By Hannah Joy Coad, 17, Classical Christian Academy, Sagle, Idaho

Our world will be dramatically different 50 years from today. In the year 2059 people will be living in ways beyond what most can imagine, will have new ways of transportation, and there will be new technology including medical advancements that will substantially change our lives.

Hillary Clinton, US Secretary of State

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.’”

Jim Greenwood, BIO CEO

A study released today by the Biotechnology Industry Organization (BIO) provides first-of-its-kind data on the importance of university/industry research and development partnerships to the U.S. economy. The study of university technology licensing from 1996 to 2007 shows a $187 billion dollar positive impact on the U.S. Gross National Product (GNP) and a $457 billion addition to gross industrial output, using very conservative models.

“It has long been believed that the Bayh-Dole Act, which permits and encourages industry to partner with research universities to turn federally-funded basic research into new and valuable products, is a critical factor in driving America’s innovation economy. Indeed, because of this inspired piece of legislation, the U.S. leads the world in commercializing university-based research to create new companies and good, high-paying jobs throughout the country,” stated BIO President & CEO Jim Greenwood. “This new study provides the evidence to back up that belief.”

At 6 p.m. CST on November 10, 2009, Foundation Surgical Hospital will present a live webcast of a partial knee replacement featuring the iUni® G2 Personalized Knee Resurfacing System. The live procedure will be performed by Dr. Terry Clyburn and Dr. Brian Parsley from Foundation Surgical Hospital in Houston, Texas. During the webcast, the viewing audience can email questions to the doctors.  The patented technology that will be used during the procedure comes from ConforMIS, Inc., a privately-held company that develops and commercializes medical devices for osteoarthritis treatment and joint damage, which allegedly holds proprietary rights to more than 250 patents and patent applications in the areas of imaging software, image processing, implant design, surgical techniques, instrumentation, and manufacturing.  While this announcement tied together with discussion of proprietary technology is likely to capture a lot of attention for both Foundation Surgical Hospital and ConforMIS, ConforMIS has missed an excellent opportunity to tout its technology to a sophisticated audience by not including any patent numbers in the press release, and not having such information findable on its website.

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.

Steve Jobs, with hair. His official photo from his Apple Bio page.

Earlier today a pending non-provisional utility patent application assigned to Apple Computer published.  This application, US Patent Application 20090265214, is titled Advertisement in Operating System, and covers exactly what the title implies; namely an operating system that is capable of displaying a variety of advertisements to users. You are likely to have heard of the first listed inventor, Steven Jobs, the CEO and co-founder of Apple Computer, Inc. While it is difficult to know the purpose and strategy behind a patent application, the attorneys at Fish & Richardson in Minneapolis, Minnesota, who drafted and filed the patent application certainly did a very good job describing just about every conceivable feature and alternative that could coincide with the displaying of advertisements to users of an operating system. It almost sounds funny to call the displaying of advertisements within an operating system “a feature,” particularly given the annoying, ubiquitous and ever more intrusive nature of advertising these days. In any event, the patent application is well written, albeit it written in pre-Bilski style at least with respect to the claims. If Apple does want to pursue this all the way to a patent I suspect there will be plenty of opportunity to do so, and there will certainly be allowable claims that fall within this disclosure.

When it comes to talking with their kids, parents say the topics of math and science are harder to discuss than drug abuse, according to a survey of 561 adults who have children ages 5 to 18. The survey was conducted online between Sept. 23 and 28, 2009 by Penn, Schoen and Berland Associates on behalf of Intel Corporation, and is reported to have a margin of error of +/- 4.14 percent. The survey found that although more than 50 percent of parents rank math or science as the subjects most critical to their children’s future success, they report discomfort talking to their children about these subjects. In fact, nearly a quarter of parents who admit to being less involved in their child’s math and science education than they would like say that a key barrier is their own lack of understanding of these subjects. On top of this, last week, the National Assessment of Educational Progress (NAEP) revealed that fewer than 40% of fourth-graders and eighth-graders in the United States are proficient in math.

Whenever I travel I always take my laptop, and thanks to a Verizon USB wireless modem I can stay connected pretty much anywhere, although twice a year when I am in Chicago getting any signal is a challenge.  While I am not such a dinosaur that I don’t have a cell phone, I had resisted the Blackberry temptation, at least right up until my cell phone found itself being left in the pocket of a pair of jeans that was then washed.  Not surprisingly, that was the end of the useful life for my Motorola Krzr, which had been extremely dependable.  So I decided it was time to at least consider a Blackberry, and when I went to Verizon I quickly gravitated to the Blackberry Tour, which is a handsome phone that allegedly offers a lot of functionality.  The key being the word “allegedly.”  I have since learned from several others that the problems I was experiencing with the Blackberry Tour are not unique, and indeed have been experienced by many. I realize this post is off topic, but attorneys and other professionals who largely make up the IPWatchdog Blog audience have to make up the overwhelming percentage of Blackberry customers, so I thought I would share my experiences, which were not at all good.

I seem to have started a firestorm by writing a post openly questioning how a patent attorney (i.e., Stephan Kinsella) could be of the opinion that it is preferable to have weak patent rights.  I openly questioned how and why any individual or corporation would hire a patent attorney who does not believe in the patent system and seems to think that patents are bad, perhaps even evil, and certainly the preferable model would be to have exceptionally limited rights.  I appreciate the debate that is ongoing in the comments to that article, but I remain extremely confused regarding the irrational arguments being made.  It seems facts are largely being ignored, and when they are being used they are distort reality, history and truth.  When I make direct statements about facts and history off handed non-responsive and dismissive statements are made along the lines of “if you hold that belief it is obvious you don’t understand.”  Saying that is fine, but that needs to be backed up with facts and argument, which is not happening.  We all know why that isn’t happening, namely because there are no facts or legitimate arguments that can be made to counter what I am saying, so rather than addressing them an artificially zen approach to deflecting and recasting, even ridiculing, is preferred.  Notwithstanding, below are my thoughts regarding some of what is being said.

I stumbled across an interesting article today from The Post and Courier regarding how interest in US patents is picking up in Cuba.  First, it was interesting enough to learn that it is possible for companies and individuals in Cuba to obtain a US patent given how Cuba and the US have been on rather inhospitable terms for many decades.  It was also interesting today to see this article, which discusses how since 2000 there has been a steep rise in patent applications from Cuba, on the same day that the typically anti-patent blog Tech Dirt published What Kind of Innovations Do Patent Encourage? In all fairness to Tech Dirt, which I rarely if ever agree with, the post today was extremely even-handed and even solicited input from those who disagree with the thesis that patents do not promote the right kind of innovation.  The belief is that patents prevent “vertical innovation” and instead promote “horizontal innovation.”  Apparently, patents prevent from building onto patented technology so innovation never really advances with patents and all you can hope for is modest improvements.  Never mind that the thesis ignores reality and that those with a sophisticated understanding of patent laws and a strategy understand that companies build on patented technology constantly, and that is in and of itself a strategy, and a wise one at that.  Never mind that blocking patents exist in every technology and that causes fragility of a patent portfolio and causes every company to continue the invention march or risk obscurity.  See, when you ignore facts and what actually happens such a thesis makes perfect sense.

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.