Commissioner Focarino in her office at the USPTO on January 27, 2012.
On January 27, 2012, I interviewed the new Commissioner for Patents Peggy Focarino. In part 1 of the interview we discussed her career at the United States Patent and Trademark Office, the ombudsman program and more. In this installment we discuss a day in the life of the Commissioner for Patents, negotiating with the Examiner’s Union relative to the updated examiner count system and implementation of the America Invents Act.
Stay tuned for part 3, the interview finale, which will publish on Friday, February 17, 2012. In part 3 we discuss the fact that certain examiners and certain Art Units seem to simply not issue patents. We also discuss the process for determining where the Patent Office will locate satellite Offices.
Without further ado, part 2 of my interview with Peggy Focarino, Commissioner for Patents.
Commissioner Focarino in her office at the USPTO on January 27, 2012.
On January 27, 2012, I had the privilege to interview Margaret Focarino, who is the new Commissioner for Patents at the United States Patent and Trademark Office. Focarino, known simply as “Peggy” throughout the Office, rises to the position of Commissioner for Patents after the departure of Bob Stoll. At the beginning of the Obama Administration, after the resignation of then Director Jon Dudas, Focarino became Acting Commissioner for Patents, a position she held until the appointment of Bob Stoll.
When I interviewed USPTO Director David Kappos in December I asked him about Focarino and the first words out of his mouth were: “What a wonderful leader.” Kappos went on to tell me:
Peggy’s the perfect next Commissioner for Patents. She’s got deep knowledge of the agency, extremely well respected in the IP community, rose up through the ranks, knows everything about patents and patent law and patent examination and works extraordinarily well with employees. She’s loved and she’s revered by the employees, not just respected. And if that weren’t enough, works terrifically well with the union. So Peggy’s the perfect package. She’s got tremendous judgment. She knows how to deal with people, she knows how to deal with issues, she’s very diplomatic and just a wonderful leader. I’ve been doing leadership for a long time. I’ve worked with and studied under some of the best leaders in the world and I know a good leader when I see one and Peggy is certainly one.
While that may seem to be unbelievable, lofty praise, it is consistent with what I have heard many times over the years. Indeed, I have only heard positive things about Focarino, and everyone expresses that she is not only a very nice person but a knowledgeable and respected leader within the Office. She is also someone that I personally respect and like.
Simply stated, the OPEN Act would be completely and totally ineffectual and, therefore, it must be opposed. There is simply no point in enacting more pointless legislation, we have enough pointless legislation already.
Anyone who is at all familiar with intellectual property knows that thanks to the digitization of content and the advent of the Internet infringement is rampant. With great frequency articles posted to IPWatchdog are cut and pasted and posted to various websites. On a daily basis companies and even government agencies are copying IPWatchdog articles verbatim and circulating them internally, presumably believing that the internal copying and distribution is not copyright infringement. Being a content creator, whether large or small, is exceptionally difficult because most people either don’t care or they don’t stop to think about what they are doing.
The UK Intellectual Property Office (UK IPO) characterizes it as misleading, warning “don’t be misled.” The European Patent Office (EPO) calls it deceitful, characterizing it as “subterfuge,” and further pointing out that “their services have no legal effect whatsoever.” The World Intellectual Property Organization (WIPO) says that they are “unrelated to the processing of international applications.” Yet many continue to believe that the nefarious and seemingly ubiquitous solicitations sent to patent applicants and owners are official invoices that must be paid in order to continue to move forward with an international patent application or foreign patent application.
Skullduggery is defined as “craft deception or trickery,” which seems an appropriate characterization of the unsolicited requests for payments sent by for-profit companies to unsuspected patent and trademark applicants and owners world-wide. On February 2, 2012, I wrote Trademark Skullduggery, which discussed solicitations sent by for-profit companies for publication services relative to U.S. trademark applications. The mailings, which look like invoices and seem official, offer publication of trademarks for a hefty fee, typically $960. Any fair reading of these trademark letters should lead many, if not most or even close to all, to believe that there is a scheme to misrepresent the unknowledgeable into paying for something that offers no legal benefit whatsoever. After all, the United States Patent and Trademark Office already publishes trademark applications and issued trademarks, so to the extent publication may be desirable the applicant already receives that for the filing fee to the USPTO.
On September 26, 2011, the a three-judge-panel of the United States Court of Appeals for the Federal Circuit issued a ruling in Marine Polymer Technologies, Inc. v. HemCon, Inc., which found intervening rights due to certain patent claims due to the fact that Marine Polymer made arguments about claim language during reexamination, but without actually amending the claims. See Marine Polymer vacated opinion. On January 20, 2012, the full Federal Circuit decided to hear this case en banc and ordered that the original panel decision be vacated and the appeal reinstated. No additional briefing by the parties was requested, but on January 26, 2012, the Federal Circuit issued an Order allowing amicus briefs to be filed on or before February 10, 2012. On February 10, 2012 the Biotechnology Industry Organization and Pharmaceutical Research and Manufacturers of America filed a joint Amici Curiae Brief supporting the appellee and seeking affirmance of the district court decision.
Before getting into the arguments made by the Bio/Pharma brief, let’s go over the now vacated original panel decision to set the table.
If you have been in the patent industry for any length of time and you represent individuals or small entities, you have almost certainly heard complaints about the perception that corporate giants are treated differently at the United States Patent and Trademark Office. Until recently determining whether there was any merit behind the often mumbled whispers alleging disparate treatment was exceptionally difficult. With the recent unveiling of PatentCore, however, it is easy to collect all kinds of information about Patent Examiners and Art Units.
Although not a part of their basic offering, PatentCore also provides detailed analysis of assignee portfolios, including issued patents, pending applications and abandoned files. So what do you suppose those numbers show? It does seem clear that the allowance rate for large corporations is much higher than the average allowance rate for all patent applications. But does that suggest some nefarious bias? Not so fast my friends!
One of the most common questions I receive, dating back to the very beginning of IPWatchdog.com, is whether recipes can be protected by any form of intellectual property. Typically the question presents specifically by a reader asking whether a recipe can be patented, or how once can patent a recipe.
In most cases the typical recipe for a “killer Margarita” or “the best barbeque sauce ever” will not be patentable because they won’t be unique enough, typically failing on the non-obviousness requirement. Of course, the only way to know for sure is to understand how the Patent Office reaches its conclusions relating to what can and cannot be patented. It is certainly possible to obtain a patent on a recipe or food item if there is a unique aspect, perhaps if there is something counter-intuitive or a problem (such as self live or freshness) is being addressed. The trick will be identifying a uniqueness that is not something one would typically think to try.
Last week I wrote an article titled Stopping Online Piracy in the Age of Entitlement, which lamented the egregiously false claims made by those who challenged and protested the Stop Online Piracy Act (SOPA). The truth is there are anarchists who simply believe that they have the right to steal creative works of others without paying for them and that causes real damage to businesses, to the economy and to workers who lose their jobs or are not hired.
A recent comment to the aforementioned article explained the problem perfectly. The commenter — Big Greg — explained:
[T]heft of our company’s creative works occurs regularly and costs real money. The effort our small group is forced to spend policing our IP from both ignorant and purposeful Internet thieves is so unproductive. And, win or lose, the cost to play in federal court is so daunting. I’d much rather put that effort and those resources into growing a business, hiring creative staff and making tangible contributions to our customer’s lives.
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.
Without hesitation I recommend One Simple Idea and think it should be required reading for any motivated inventor. There is so much to like about the book and so much that I think author Stephen Key nails dead on accurate. The book is educational, information and inspirational. For the $14 cover price it is essential reading.
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