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U.S. Patent Office Closing in on Patent No. 8,000,000

Posted: Tuesday, Aug 9, 2011 @ 2:09 pm | Written by Gene Quinn | 16 comments

Yesterday the United States Patent and Trademark Office profiled U.S. Patent No. 1,000,000, which was issued on August 8, 1911 to Francis H. Holton of Akron, Ohio for his improvement in vehicle tires, which made them more durable and puncture resistant.

Under the current numbering system for patents, U.S. Patent No. 1 was issued on July 13, 1836 to John Ruggles of Thomaston, Maine for his invention related to the locomotive steam engine.   Therefore, it took just over 75 years to issue 1,000,000 United States patents.  Today the U.S. Patent and Trademark Office is poised to soon issue patent number 8,000,000, perhaps as soon as next week.

Patent Attorney and Blogger Named President of Patent Calls

Posted: Monday, Aug 8, 2011 @ 6:34 pm | Written by Gene Quinn | Comments Off

Patent Calls, Inc., a provider of technology-based patent analysis services and solutions, last week announced the appointment of patent attorney Patrick Anderson as President. Those who are familiar with the patent blogosphere might recognized Anderson’s name from his popular Gametime IP blog.  Anderson is also contributing editor of the Patent Calls’ blog, Patent Connections.

Making Small Business Look Bigger

Posted: Saturday, Aug 6, 2011 @ 3:02 pm | Written by Renee C. Quinn | 13 comments

Starting a small business can have many challenges for any entrepreneur.  Getting the word out about your business, getting your website created or completed, finding clients, having the means for your clients to contact you, office space, (deciding is it necessary), hiring , book keeping and everything else just further complicates the start-up process. It’s endless and makes starting a business seem like such a daunting task. But just because you have or are starting a small business, doesn’t mean that you have to look like one.

There are many ways to enhance your small business, making it look bigger, at relatively inexpensive costs. Everyone has to start somewhere, but think about things from the customer’s perspective. Think about a time when you were searching for businesses that you wanted to work with for personal use. Did you choose the smallest entity you could find, one that did not have a website or even have a business card to give you? Probably not! Chances are you decided to look a little further to find someone you felt was more “experienced” in their field. If that’s something you’ve done, then chances are your small business may lose customers for the same reason. Starting a new business can be a very expensive venture. Following are some fairly inexpensive suggestions that you can execute in order to make your small business look more like an established corporate entity.

USPTO to Hold California Independent Inventors Conference

Posted: Friday, Aug 5, 2011 @ 12:33 pm | Written by Gene Quinn | 1 Comment »

John Calvert, USPTO Inventors Assistance Program, will teach claim drafting at the Conference

The United States Patent and Trademark Office will host an Independent Inventors Conference from August 12 – 13, 2011, in Pasadena, California. This California Regional Conference will be the west coast equivalent to the Independent Inventors Conference that has been held at the campus of the USPTO in Alexandria, Virginia in previous years. The purpose for having this Pasadena Regional Conference is to try and bring the USPTO to other parts of the country and give inventors from a variety of locations the opportunity to interact with USPTO Officials without the need to travel to Alexandria.

Senior USPTO officials, successful inventors, including National Inventor Hall of Fame inductee Dr. Gary Michelson, and intellectual property experts will be on hand to provide practical advice and information for both novice and seasoned inventors. Congressman Adam Schiff, a member of both committees with oversight of issues related to intellectual property protection and the USPTO, the will be the opening speaker August 12. Teresa Stanek Rea, Deputy Under Secretary of Commerce for Intellectual Property and Deputy Director of the USPTO, will deliver a keynote address at the luncheon on August 12. Mark Hatch, CEO of TechShop and Louis Foreman, Chief Executive of Enventys® and producer of Everyday Edisons will also deliver keynote addresses for attendees.

Indicia of Extortion – Federal Circuit Slams Patent Troll

Posted: Thursday, Aug 4, 2011 @ 12:27 pm | Written by Gene Quinn | 9 comments

Last week the Federal Circuit handed a major victory to a defendant who fought a baseless patent infringement litigation, giving hope that the district courts and the Federal Circuit have had enough of patent litigation used as a ploy to shake down defendants. In Eon-Net v. Flagstar Bancorp, the district court found that Eon-Net’s litigation misconduct and its filing of a baseless infringement action in bad faith for an improper purpose warranted an exceptional case finding. The Federal Circuit decision, with Judge Lourie writing and Judges Mayer and O’Malley joining, concluded that the district court did not clearly err in finding and addressing the litigation misconduct.

As a result of the misconduct found, Judge Martinez of the United States Federal District Court for the Western District of Washington slapped the patentee-plaintiff with Rule 11 sanctions totaling $141,984.70 for failure to perform a reasonable pre-filing investigation. The district court also awarded the defendant $489,150.48 in attorneys fees and costs pursuant to 35 U.S.C. 285. The Federal Circuit affirmed the district court’s rulings and cited with approval the district court’s characterization of the underlying lawsuit as bearing “indicia of extortion.”

Patent Reform Back to Senate After Labor Day

Posted: Wednesday, Aug 3, 2011 @ 11:38 am | Written by Gene Quinn | 14 comments

Senate Majority Leader Harry Reid (D-NV)

Yesterday Senate Majority Leader Harry Reid (D-NV) filed cloture on the motion to proceed to H.R.1249, the Patent Reform bill passed  by the House of Representatives by a vote of 304 – 117 on June 23, 2011.  By unanimous consent, the cloture vote for H.R. 1249 will occur on Tuesday, September 6, 2011.

What is cloture?  Cloture is the only procedure by which the Senate can vote to place a time limit on consideration of a bill or other matter, and thereby overcome a filibuster. Under the cloture rule (Rule XXII), the Senate may limit consideration of a pending matter to 30 additional hours, but only by vote of three-fifths of the full Senate, normally 60 votes.  Without 60 votes cloture fails and debate continues.  Unfortunately for those who would like to see patent reform derailed, the fact that there was unanimous consent in the Senate for a cloture vote almost certainly suggests that there will be at least 60 votes to end debate on H.R. 1249, which will bring it to a vote, likely sometime later in the week of September 6.

Patent Litigation Statistics: 1980 – 2010

Posted: Tuesday, Aug 2, 2011 @ 12:02 pm | Written by Gene Quinn | 7 comments

A patent owner has the right to prevent others from making, using or selling a product or process covered by an issued and valid United States patent.  Likewise, a patent owner can prevent the importation of products covered by an issued and valid United States patent.  In order to enforce these patent rights it is necessary for the patent owner to bring an action in either a United States Federal District Court, or an action in the International Trade Commission (ITC). The ITC, however, only has limited jurisdiction; the ITC may issue either a exclusion order to prevent importation or a cease and desist order. Federal District Courts have the ability to issue orders prohibiting further infringement and issue monetary awards to compensate for damages suffered by the patent owner as the result of patent infringement.  Increasingly patent owners will simultaneous file a lawsuit in Federal District Court and file an action at the ITC, forcing an alleged infringer to fight the same battle in multiple forums.

It is unfortunate that there is such redundancy in the litigation process, with the Federal District Court and the ITC having overlapping jurisdiction in many cases.  If you add reexamination to the mix the Federal District Courts, the ITC and the United States Patent and Trademark Office are doing nearly the same thing reviewing the validity of claims. But is patent litigation out of control?  A look at the numbers relating to patent litigations in the Federal District Courts over the past 30 years may surprise you.  Patent litigation in the Federal District Court is really where the action is at since that is where patentees must turn to seek money damages for infringement, and the statistics don’t suggest there is the “curse” of litigation that many might want you to believe.

An Overview of the U.S. Patent Process

Posted: Sunday, Jul 31, 2011 @ 9:01 am | Written by Gene Quinn | 3 comments

The patent process actually starts well before you file a patent application or seek assistance from a patent attorney. Every patent application starts with an invention, and every invention starts with an idea.  While ideas are not patentable, there will be a point in time when the idea you are working on comes into vision with enough detail to cross what I call the idea / invention boundary.  To have a protectable invention you have to be able to describe it with enough detail so that someone of skill in the relevant technical field can understand how to both make and use the invention.  Once you can do that, or once the patent attorney or patent agent you hire can, you are ready to file a patent application.

The first step in the patent process should really be a patent search.  Doing a patent search is really the only way to get a realistic idea about whether the invention is likely able to be protected.  There is nothing wrong with inventors doing their own preliminary search, and in fact that is very useful task.  At some point as your project proceeds it will be necessary to have a professional patent search done.  Only with a professional patent search will you really discover everything that can be found.  Just like a novice in your field would make mistakes, as a novice relative to patent searching you won’t find everything that can be found, including many things that really need to be considered during the drafting stage of a patent application.  After all, the whole point of a patent application is to articulate how the invention is unique.  How can  you do that without a comprehensive knowledge of what exists in the prior art?

As Predicted, Federal Circuit Rules Isolated DNA Patentable

Posted: Friday, Jul 29, 2011 @ 2:12 pm | Written by Gene Quinn | 8 comments

Structure of a DNA double helix,
Fig. 1 from the CAFC majority opinion.

After much anticipation, the United States Court of Appeals for the Federal Circuit earlier today issued a decision in Association for Molecular Pathology v. Myriad Genetics.  The decision on first glance will seem to be a split decision, particularly by Federal Circuit standards.  The majority opinion was written by Judge Lourie, Judge Moore wrote a concurring opinion and Judge Bryson concurred in part and dissented in part.  Having said that, the outcome largely seems to be what was predicted by the patent community.  On the major substantive issue — are isolated DNA molecules patent eligible subject matter — the Federal Circuit reversed the decision of the district court and ruled that isolated DNA molecules do constituted patent eligible subject matter.  The Federal Circuit also ruled that methods relating to the screening for potential cancer therapeutics are, likewise, patent eligible subject matter.  All three Judges also found the “comparing” and “analyzing” claims to be ineligible for patent protection because they were not transformative, and thus were merely abstract mental steps.

Groupon Sued for Patent Infringement

Posted: Friday, Jul 29, 2011 @ 10:40 am | Written by Gene Quinn | 2 comments

Groupon is a popular and growing website that features discounted gift certificates usable at local or national companies.  The website launched in 2008, the company rejected an $6 billion offer to be acquired by Google and is eyeing an IPO.  Yet, only now have they have truly and properly entered the tech sector.  Groupon is now being sued in a recently filed patent infringement lawsuit.

SellerBid, Inc. brought the patent infringement lawsuit (see complaint) demanding a jury trial, against Groupon and others on July 20, 2011.  Somewhat surprisingly, the lawsuit was filed in the United States District Court for the Eastern District of Virginia.  The Eastern District of Virginia is famously known by attorneys everywhere as “the Rocket Docket,” thanks to how fast cases go from filing to trial.  In a study published in October 2010, Stanford Law Professor Mark Lemley wrote: “The Western District of Wisconsin and the Eastern District of Virginia are truly rocket dockets; in those districts the average patent trial was completed less than a year after the case was filed.” So this case will not linger if it does, in fact, stay in the Eastern District of Virginia.

The Problem with Patent Trolls

Posted: Thursday, Jul 28, 2011 @ 7:24 am | Written by Gene Quinn | 23 comments

Recently several of my articles have been critical against patent trolls. This is not something new for me, I have been critical of patent trolls for quite some time. Over the years I have also been very supportive of patent owners having the right to bring patent infringement lawsuits to enforce rights that have been granted in the patent; after all, if you cannot enforce a right is it really a right? I think not. This has lead me to at times champion the patent grant and oppose any watering down of the rights of patent owners, as was contemplated in years past with previous versions of patent reform.

For some my pro-patentee and anti-patent troll positions have been difficult to reconcile. I have been contacted privately by some who have urged me to tone down my use of the term patent troll, and that is a fair point. After initially resisting using the term for a great while I embraced its usage years ago, back when earlier versions of patent reform were seeking to curtail the right of a patent owner to obtain due compensation (in the form of damages) for infringement by a defendant. Periodically the Supreme Court has even raised the issue of patent trolls in a casual manner as justification for one bad ruling or another. Typically most use the term “patent troll” to refer to non-practicing entity, but doing that is simply absurd. So I turned to embracing the term. Does it feel right to call a university a patent troll? I think not, and I think most would agree. So not all non-practicing entities can be patent trolls, can they? See how the usage of the term starts to really crystallize the issues?

InterDigital vs. Nokia, Huawei and ZTE at ITC in Patent Dispute

Posted: Wednesday, Jul 27, 2011 @ 10:14 am | Written by Gene Quinn | Comments Off

U.S. International Trade Commission

InterDigital, Inc. (NASDAQ:IDCC) yesterday announced that its wholly-owned subsidiaries InterDigital Communications, LLC, InterDigital Technology Corporation and IPR Licensing, Inc. filed a complaint with the U.S. International Trade Commission (“ITC”) against Nokia Corporation, Nokia Inc., Huawei Technologies Co., Ltd., FutureWei Technologies, Inc. d/b/a Huawei Technologies (USA), ZTE Corporation and ZTE (USA) Inc. The complaint alleges that the defendants have engaged in unfair trade practices by making and importing certain 3G wireless devices into the United States.