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Celebrating 15 Years of

On October 10, 1999, first went live on the Internet. It has been an honor and privilege to get to know so many wonderful people in our industry over the last 15 years, to talk to many industry leaders on the record, and to in some small way continue to push the debate forward. Thanks to our readers and contributors we have been recognized as as one of the top 100 legal blogs by the American Bar Association for 5 years in a row. For 3 of the last 4 years (2010, 2012, 2013) we were recognized as the top intellectual property law blog according to the ABA. In January 2014 we were also honored to be inducted into the ABA Blawg Hall of Fame. CLICK HERE to read more.

Hot on Social Media

Over the past several months we have had a number of articles that have gotten quite a bit of attention on various social media outlets. If you haven’t read these articles yet take a look, they seem to be driving an interesting debate.

  1. Extortionist Demand Letters are Wrecking Public Confidence in the U.S. Patent System
  2. Patent Trolls are NOT the Biggest Barrier to Innovation
  3. 25 Years Since Galileo: A Recent Look at NASA Technologies
  4. Silicon Valley's Anti-Patent Propaganda: Success at What Cost?
  5. Patents are Important: Bursting the Twitter Patent Mythology
  6. Why Brands Need to Pay Attention to Unregulated Domains
  7. Post Patent Issuance Challenges and the Quest for Patent Quality
  8. If Patent Reform is Meant to Starve Patent Trolls, Why is it Feeding Them Instead?
  9. Eli Lilly Patents Treatments for HIV and Ebola Virus
  10. The Ramifications of Alice: A Conversation with Mark Lemley

Most Recent Articles on

The Constitutional Underpinnings of Patent Law

Posted: Wednesday, May 11, 2011 @ 11:50 am | Written by Gene Quinn | 8 comments

A patent is a proprietary right granted by the Federal government to an inventor. There are three types of patents available in the United States: (1) a utility patent, which covers the functional aspects of products and processes; (2) a design patent, which covers the ornamental design of useful objects; and (3) a plant patent, which covers a new variety of living plant. Each type of patent confers “the right to exclude others from making, using, offering for sale, or selling” the invention in the United States or “importing” the invention into the United States. It is important to note, however, that patents do not protect ideas, but rather protect inventions and methods that exhibit patentable subject matter.

The United States Constitution grants to the Congress the power to grant patents; this power residing in the Congress is found in Article I, Section 8, Clause 8. Unlike most of the enumerated powers granted to Congress in the Constitution, the Intellectual Property Clause is a qualified grant of power, which does limit Congressional discretion in significant ways. The Congress does not have free reign to decide that patents should be easily or freely given, but rather must limit their exercise of power to the dictates of the clause itself.   See Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 489 U.S. 141, 146 (1989).  See also Graham v. John Deere Co. of Kansas City, 383 U.S. 1, 5 (1966) (“The clause is both a grant of power and a limitation. This qualified authority, unlike the power often exercised in the sixteenth and seventeenth centuries by the English Crown, is limited to the promotion of advances in the ‘useful arts.’”).

Prince and the Copyright Compulsory License Scheme

Posted: Tuesday, May 10, 2011 @ 11:39 am | Written by Beth Hutchens | 18 comments

Imagine a world where the dulcet tones of “Inagaddadavida” never graced the airwaves.  Gasp you should!  According to the artist currently known as, but formerly known as “The Artist Formerly Known as, Prince,” once a song is covered the original artist’s version doesn’t exist anymore.  Soooo…Iron Butterfly’s iconic song no longer exists because Slayer remade it in the late 1980s. Yeah, I don’t think so, but let’s explore, because Prince does make an interesting point and he’s kind of right to be miffed, even if it’s for the wrong reasons.  He was talking about the compulsory licensing requirements in copyright law and the “original work is banished to music purgatory once it’s covered” argument is his way of explaining his indignation.

I doubt the Purple One spends much time perusing the Copyright Office’s circulars or exploring the Department of Justice’s (“DOJ”) website but, fortunately, I do.  Basically, in copyright, a compulsory license is an exception that allows a person who does not own, and did not create, the subject matter of the copyright to exercise one or more of the copyright holder’s exclusive rights without having to obtain permission.  In English, the “license” part means a person can cover any song he or she wants to and the “compulsory” part means the copyright holder and/or original author can’t say “boo” about it.   

Attention Patent Attorneys, $25 Million Available for Inventors

Posted: Monday, May 9, 2011 @ 3:35 pm | Written by Gene Quinn | 3 comments

Louis Foreman at Inventors HOF Induction May 4, 2011

Louis Foreman, the producer of the Emmy Award winning PBS television show Everyday Edisons, as well as the CEO of the design firm Enventys and publisher of Inventors Digest, recently announced the launching of a $25 million Innovation Fund, the proceeds of which will be used to bring innovations to market.  In an interview with Foreman (see below) he explained to me that he is looking for inventions and ideas for all kinds of products, and not just the consumer products that Everyday Edisons has become known for.  Foreman explains that medical devices, military and law enforcement technology, social networking innovations and even software are all desirable ideas/innovations for the Innovation Fund.

To help what might be the best ideas and inventions percolate to the top Foreman has created what he refers to as a “Patent Attorney Referral Program.”  This program is designed to benefit patent attorneys and patent agents whose clients submit innovative ideas and concepts. This isn’t one of those unethical referral programs though, so no worries there.  If a client of a patent attorney or patent agent is selected and accepts the offer of assistance from the Innovation Fund then the patent attorney or patent agent representing that inventor will be retained by the Innovation Fund to provide the legal services required to pursue patent rights.

One Grave Problem: Counterfeiting, Piracy and IP Theft

Posted: Sunday, May 8, 2011 @ 11:55 am | Written by Gene Quinn | 21 comments

Counterfeiting and the theft of intellectual property rights is not just a matter for companies.  Such theft, or piracy as it is frequently referred to, is a major issue for the United States government.  Over the years the piracy problem has continued to grow in importance in both trade relations and in the war against organized crime and terrorists.  The United States needs to do what it can to prevent intellectual property theft because of the negative impact it has on job creation and our economy.  It is also imperative to shut off the flow of easy money to criminal enterprises.  Without money they become starved for resources, a big strategy in the fight against global terror.

On May 5, 2011, in prepared remarks in a speech to commemorate World Intellectual Property Day, U.S. Commerce Secretary Gary Locke acknowledged  that much still needs to be done regarding theft of intellectual property around the globe.  Secretary Locke said: “[W]hen over 80 percent of all software installed on computers in China is counterfeit and when first-run movies continue to appear on rogue web sites as soon as they show up in the theaters – then we know the problem is still grave.”

Obscure Patent: Combined Cigar Lighter and Perfume Ejector

Posted: Friday, May 6, 2011 @ 6:59 pm | Written by Stewart Walsh | 3 comments

From U.S. Patent. No. 348,409

As a patent searcher from time to time in my daily activities I will stumble across a patent that is, shall we say, rather unique.  Just in time for the gifting season for Moms and Dads I happened to stumble across a gift suitable for both Mothers Day and Fathers Day.  Yes, this gift would kill two birds with one stone, perhaps quite literally.

In keeping with the age-old tradition of inventing by juxtaposition (see, for example, hamburger earmuffs), this highly functional and aesthetically pleasing invention “Cigar Lighter and Perfumery Ejector Combined,” which was patented on August 31, 1886, and combines the lighting of cigars with the dispensing of perfume. So if you’re a cigar and perfume enthusiast on a budget, it’s nice to know you have the option of getting a device that addresses all your cigar-lighting and perfume-spraying needs in one. And as the inventor Henry Munk of Fremont, Ohio points out, you can now put perfume on your cigars “to enhance the odor and consequent value of the cigar.”

Best Mode Patent-Raptor Claims Another Victim in Wellman

Posted: Friday, May 6, 2011 @ 12:24 pm | Written by Eric Guttag | 3 comments

Last year, I reported on the “best mode” Patent-Raptor of 35 U.S.C. § 112, first paragraph, in Ajinomoto Co., Inc. v. International Trade Commission. See Best Mode Patent-Raptor Devours Another Victim in Ajinomoto. I also remarked that, like the Jurassic Park film franchise, we would probably have sequels for this stealthy and certainly ravenous patentivour. How right I was. The latest sequel happened late last month in Wellman, Inc. v. Eastman Chemical Company where the “best mode” Patent-Raptor claimed yet another victim.

The victim (or actually victims) in Wellman were U.S. Pat. No. 7,094,863 (the ‘863 patent) and U.S. Pat. No. 7,129,317 (the ‘317 patent) which were collectively referred to as the “Wellman patents.” The Wellman patents relate to polyethylene terephthalate (“PET”) resins useful for making plastic beverage containers. More specifically, the Wellman patents described “slow-crystallizing” PET resins the retained clarity in these beverage containers when “hot-filled” with product. By the time the ‘317 patent was filed in May 2004, Wellman had commercialized a slow-crystallizing PET resin known as Ti818, which was not disclosed in the patents in a deliberate attempt to retain a trade secret.

Celebrating Heroes of Invention at the Temple of Innovation

Posted: Thursday, May 5, 2011 @ 10:17 pm | Written by Gene Quinn | 4 comments

New Hall of Fame Inductee Gary Michelson with USPTO Director David Kappos

Last night some thirty-nine extraordinary scientific trailblazers were inducted into the National Inventors Hall of Fame in the 39th Annual Induction Ceremony.  Of the thirty-nine new inductees, twenty-nine were legacy inventors and ten were contemporary heroes of invention.  The Master of Ceremonies was the award-winning NPR journalist and host of Talk of the Nation, Neal Conan.  Throughout the evening Conan continued to refer to the host building for the ceremony as the “Temple of Innovation,” which is indeed an appropriate moniker.  It was the old Patent Office building in Washington, DC, that hosted the 2011 National Inventors Hall of Fame Induction Ceremony.

Today the old Patent Office building is known as the Smithsonian American Art Museum, which houses the National Portrait Gallery.  The building is one of Washington’s oldest public buildings and a National Historic Landmark. It originally was the home of the U.S. Patent Office starting in 1836, and while it functioned as the U.S. innovation agency some 1,891,197 patents were issued from this address.

Eating Our Seed Corn for Job Creation

Posted: Thursday, May 5, 2011 @ 2:44 pm | Written by Henry R. Nothhaft | 35 comments

Sometimes the problems facing our nation truly are difficult to solve. Reducing the country’s out-of-control budget deficit and fixing our broken public schools systems, for example, each took decades to grow into serious threats to America’s future. And each requires more political vision and national unity to resolve than seem to exist right now.

But other problems are not that difficult to solve, if only our leaders would choose to use some common sense. Take job creation, which is supposed to be the Number 1 policy objective in America right now. The mechanics of job creation are hardly a mystery, after all. We know, for example, that all net new job growth in America comes from startup businesses, not Big Business (see research by the Census Bureau and the Kauffman Foundation).   And we also know that the vast majority of these startups need patents to get the funding from investors they need to start hiring people so they can develop their innovative new products and medical treatments for the public (see the Berkeley Patent Survey of Entrepreneurs).

United States to Commemorate World Intellectual Property Day

Posted: Wednesday, May 4, 2011 @ 3:15 pm | Written by Gene Quinn | Comments Off

Secretary Gary Locke

U.S. Commerce Secretary Gary Locke will belatedly commemorate World Intellectual Property Day on Thursday, May 5, 2011, in a ceremony at the Rayburn House Office Building in the House Judiciary Committee hearing room.  The event will take place starting at 4:00 pm.  Secretary Locke’s remarks will begin at approximately 4:10 pm, and he is expected to highlight the importance of intellectual property protection and enforcement to the U.S. economy, celebrating the 11th anniversary of World Intellectual Property Day.  World Intellectual Property Day is April 26, 2011, each year.  For more on the worldwide celebration of World Intellectual Property Day this year see Ranting on Congress: Not a Happy World IP Day in the US.

Patents, Copyrights and the Constitution, Perfect Together

Posted: Wednesday, May 4, 2011 @ 12:20 pm | Written by Gene Quinn | 38 comments

Congressional power to grant both patents and copyrights is derived from Art. I, Sec. 8, Clause 8 of the United States Constitution, the so-called Intellectual Property Clause.  To patent attorneys Art. I, Sec. 8, Clause 8, will forever be known as the Patent Clause.  For attorneys specializing in copyright law this clause is known as the Copyright Clause.  It is probably best to simply recognize that our founding fathers deemed intellectual property rights so vitally important to the success and stability of our new country that these rights were written into the Constitution, a document not generally known for its length and specificity.

As James Madison stated in Federalist Paper No. 43, the usefulness of the Congresses power to award both patents and copyrights “will scarcely be questioned.”  Madison, Debates in the Federal Convention of 1787, at 512-13 (Hunt and Scott ed. 1920).