Senator Orrin Hatch (R-UT) has been out in front on patent and intellectual property issues for years, and he is at it once again. Senator Hatch has recently been very active with respect to writing op-ed articles explaining what all of us in the patent community have known for a very long time. My hope is that his profile will bring attention to what is obvious — “If we are to have a durable economic recovery, we must rely on our renowned American ingenuity to lead us into prosperity again.” These words were written by Senator Hatch in an op-ed published by TheHill.com earlier this week. I have been beating this drum for many months now, and with Senator Hatch beating the drum hopefully the rest of America, and in particular the Congress and White House, will pay attention.
On Wednesday, June 17, 2009, while I was on the road in Boston teaching the PLI Patent Bar Review Course I was invited to chat with David Gleason, the host of State of the Nation, which is a radio talk show that airs in South Africa. It seems that Mr. Gleason and his staff were devoting a significant portion of his evening show to discussing the patenting of genes, genetically modified food, designer drugs and they stumbled across IPWatchdog and invited me on to chat. The conversation was cordial, and Gleason asked some probing questions typically written about by the popular press, but he genuinely seemed interested in the answers and in getting the best information, both pro and con, out to his listeners. Apparently, there are some ongoing gene patent matters working their way up through the courts in South Africa, which seems to have prompted his treatment of the issue. We spoke live on the air for about 15 minutes and he gave me a opportunity to make the case for gene patents and to disspell the rumors and misinformation that is rampant in the debate. Who knows whether my interview will change any minds, but I did the best I can to put forth the case for why gene patents need to be allowed if we are ever going to achieve the break throughs that the patent system is supposed to foster.
First, let me say that it is really a complete misnomer to refer to “gene patents” because despite what the popular press may write, and perhaps believe, genes are not patented. Nevertheless, I will cave into the masses and concede (at least for now) the linguistic high ground and refer to gene-related innovations that are examined by patent authorities and provide exclusive rights to owners as “gene patents.” This is, however, a big part of the problem facing the US patent system and patent systems around the globe insofar as genetics, bio-technology, software and business method patents are concerned. Because we live in a world dominated by sound bites and pithy commentary, reality and truth are frequent victims of easy, misleading and sometimes completely inaccurate reporting.
About a week ago I received a fairly typical e-mail from an individual who was inquiring about whether I could help provide certain services. As you can probably imagine, I get inquiries from people looking for all different kinds of legal services, and I also get a lot of e-mails from those who have great ideas and want to sell the idea to a giant corporation and reap the rewards that come with providing them with an idea. As I explain in Protecting Ideas, ideas cannot be protected and reputable companies do not even listen to ideas. Reputable companies are going to require that you have at least a patent application pending, which will define your idea with enough specificity to call it an invention. This is not for your protection, but rather for their protection. If they listen to an idea that is not very well formulated and then proceed with a product or service that is similar, which they may have been working on for quite a while or acquired elsewhere, that just opens them up to a disgruntled individual, who may sue.
I am a software engineer who writes about that topic and related areas of computer science. Recently, I published an article titled Software Engineering != Computer Science, which discusses the differences between programming and formal (mathematical) computer science. In response to that article, IPWatchdog.com kindly invited me to comment about some of the controversy surrounding patents for software. I gladly accepted.
My position is that software must be patentable, or 500 years of patent laws make no sense.
The Wall Street Journal Online just published an article titled Why Technologists Want Fewer Patents, which will apparently appear in the June 15, 2009, edition of the paper on page A13, under the heading “Opinion.” The article discusses the US Supreme Court agreeing to hear Bilski v. Doll, which will decide the fate of at least some business method patents, and may have significant implications for the patenting of software as well. The article does make one enormous error though, when it says that each year there are 500 million patent applications filed with the United States Patent and Trademark Office. This is obviously a mistake, and one that will likely not strike many as over the top. In reality, the USPTO has never had more than 500,000 applications in a single year. In fact, the largest number of applications ever filed were 495,095, which was the total filed during fiscal year 2008. During fiscal year 2009 there will likely be between 450,000 to 475,000 applications, so the Wall Street Journal op-ed page is off by several orders of magnitude. In my opinion this is quite problematic though because people who don’t know any better will read it and believe it. People will form beliefs based on what is clearly a ridiculous number of patent applications being filed, but the trouble is the Wall Street Journal claim of 500 million patent applications per year is off by a factor of 1,000.
I favor innovation, and am interested in ensuring that science and technology work hand in hand to both better our standard of living, and enrich those who create new and useful works. But it is not necessarily true that current intellectual property laws always accomplish this. Nor is it so that everything under the sun is subject to intellectual property protection. When Jonas Salk developed his vaccine for polio, he was asked by Edward R. Murrow who owned the patent on the vaccine. His famous reply was “well, the people, I would say. There is no patent. Could you patent the sun?”
The June 15, 2009, edition of Business Week has an interesting article about innovation by Michael Mandel, which concludes that during the last decade US innovation has failed to deliver on the hyped promises, and this failure of innovation may have contributed to the economic woes we are now experiencing. Indeed, this article is interesting for many reasons. First, how is it possible that an article that questions American innovation could never once mention the crisis facing the Patent Office? Second, it is not accurate to say that the failure of US innovation “may have contributed,” the failure of innovation definitely contributed to the economic mess we face now because there has been no sustained technological growth that lead to an expansion of jobs. Third, the primary reason innovation has not come through for us is because the Patent Office has for years held innovation hostage, refused patents, extraordinarily delayed even making a decision on patent applications, and this lead to the evaporation of venture funding for many US companies, and prevented many other companies from being able to interest those with capital because no exclusive rights had been obtained, or could be predicted in any relevant time frame.
How to Write a Patent Application is a must own for patent attorneys, patent agents and law students alike. A crucial hands-on resource that walks you through every aspect of preparing and filing a patent application, from working with an inventor to patent searches, preparing the patent application, drafting claims and more. The treatise is continuously updated to address relevant Federal Circuit and Supreme Court decision impacting patent drafting.
On Wednesday, June 17, 2009, while I was on the road in Boston teaching the PLI Patent Bar Review Course I was invited to chat with David Gleason, the host of 
First, let me say that it is really a complete misnomer to refer to “gene patents” because despite what the popular press may write, and perhaps believe, genes are not patented. Nevertheless, I will cave into the masses and concede (at least for now) the linguistic high ground and refer to gene-related innovations that are examined by patent authorities and provide exclusive rights to owners as “gene patents.” This is, however, a big part of the problem facing the US patent system and patent systems around the globe insofar as genetics, bio-technology, software and business method patents are concerned. Because we live in a world dominated by sound bites and pithy commentary, reality and truth are frequent victims of easy, misleading and sometimes completely inaccurate reporting.
The June 15, 2009, edition of 
