I was lucky enough to receive a review copy of Great Again several months before it became available. I have also had the pleasure of getting to know Hank Nothhaft and his co-author David Kline over the past year or so, frequently exchanging e-mails discussing a variety of innovation and patent related issues. It has been exceptionally difficult to keep quiet knowing what Hank and David were writing about, and then reading the nearly finished manuscript. Simply put, everyone in the innovation industry and patent community needs to read Great Again. Every Staffer on Capitol Hill and everyone working in the White House needs to read Great Again. While Members of Congress are no doubt busy with a great many things, they too should read Great Again, but at the very least Members of Congress and those in the Executive Branch, including President Obama, should at a minimum read the Introduction, which is just 12 pages long.
At this festive time of year we always try and profile turkey and/or Thanksgiving related patents, because after all what better way is there to celebrate a holiday than to celebrate American ingenuity? This year we did a slightly different article for the occasion. We bet you didn’t know the role Thanksgiving leftovers played in achieving the fundamental breakthrough that led to the invention of LASIK, but that only proves that inspiration can come at any time from anywhere. We also invite you to check out our holiday articles from Thanksgivings past. Happy Thanksgiving everyone!
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You hear a lot these days about the need to protect Intellectual Property and capture innovation, but you don’t hear much about the traditional expense involved. There’s a reason for that: given the constantly evolving, “wild west” nature of today’s technical frontier, it is often prohibitively expensive for the little guy to cover all the bases and keep up with all the changes. Small businesses have had few options for affordable, comprehensive preparedness on the IP front, and in the wake of the recession, you’re likely to hear a lot more about the need to cut legal spending than you are about performing more audits and hiring more lawyers.
Companies are beginning to tackle this paradox by practicing the word on the lips of everyone from David Kappos (Under Secretary of Commerce for Intellectual Property and Director of the USPTO) to Robert L. Stoll (Commissioner for Patents, USPTO), to business leaders, to even President Obama – innovation. But what good is innovation in and of itself? The innovation our leaders want demands adequate protections in place to turn those promising innovations into business assets.
Lately there has been much made of the attempts to argue that patent reform efforts in the House of Representatives is unconstitutional due to the inclusion of first to file provisions, which would change U.S. patent law to give a patent to the first inventor to file rather than to one who is the first inventor in time. These specious arguments have been exposed here and elsewhere. See Does “Inventor” in the Constitution Mean “First Inventor”? and Did the Supreme Court Rule First to File is Unconstitutional?
As Patent Doc Kevin Noonan pointed out recently, what hasn’t been much discussed is the fact that prior user rights violate the intent of Article I, Section 8 of the U.S. Constitution. I have alluded to this in some articles, and have also alluded to the fact that first to file provisions are more in keeping with the purpose of the so-called Patent Clause to the U.S. Constitution. The very reason for granting Congress the power authorize the granting of patents is to promote the dissemination of information. That is how society benefits, and it is how progress is promoted. I will not go so far as to say that first to invent is unconstitutional, that would be nonsensical. Neither will I go so far as to say that prior user rights are unconstitutional. Nevertheless, what I will say is that first to invent and prior user rights embrace a philosophical choice that is antithetical to the very purpose of the Patent Clause.
I have been watching in utter amazement as individuals with a variety of experience in the patent field debate the constitutionality of the first to invent proposals. This started when those who will not allow truth and accuracy to deter from their arguments started saying that the Supreme Court ruled first to file unconstitutional in Stanford v. Roche. That argument was, and still remains, specious because Standord v. Roche had nothing to do with the issue, nowhere in the case did Chief Justice Roberts make such statement, hint that he was thinking such a thing, or say anything colorably related to such a conclusion. See Did the Supreme Court Rule First to File Unconstitutional?
Now the argument is morphing into a discussion of whether the word “inventor” must mean “first inventor.” This very question is being seriously raised in some academic circles, by some patent practitioners who ought to know better, and by those who simply want to kill patent reform at all costs even if they have to engage in gross misrepresentation in order to do so. Indeed, there are those ranging from neophyte to relatively experienced that are seeking to change history, ignore logic and refuse to acknowledge well established patent law precedent in order to twist the word “inventor” in the U.S. Constitution to mean “first inventor,” which would then call into question the constitutionality of the first to file provisions of patent reform now before the House of Representatives; H.R. 1249.
Now that the dust is settling down after the Supreme Court’s recent ruling on the much debated Stanford v. Roche case, we need to take stock of its pragmatic impact. We are happy to report that Bayh-Dole remains unscathed.
After all was said and done, the underlying case was a standard debate over ownership of a valuable invention between two parties who had been working together.
Earlier this week two key House Republican leaders, Congressman Paul Ryan (R-WI), who is Chair of the House Committee on the Judiciary, was joined by Congressman Harold Rogers (R-KY), who is Chair of the House Committee on Appropriations, wrote Congressman Lamar Smith (R-TX) explaining that they oppose provisions in House patent reform legislation H.R. 1249 that would allow the Patent and Trademark Office to keep and use the fees collected to run the agency. See House Republicans Oppose an Adequately Funded Patent Office. This is an extremely myopic and ill conceived notion. The Patent Office is unlike other government agencies in that it is completely funded by user fees, takes absolutely no taxpayer funds and provides a valuable service for a fee.
Given that House Republicans seem to fear an adequately funded Patent Office I got to thinking — What could they be afraid of? With that in mind, here are the top 10 things that House Republicans just might be afraid of as they seek to oppose an adequately funded Patent Office. Can you hear the black helicopter squad swirling overhead, conspiracy theories in hand?
It is important for inventors to understand that there is reluctance among some patent attorneys to take on “independent inventors” as clients. Part of the problem is that some independent inventors take up an extraordinary amount of time and rarely convert into clients. Even if they do convert into clients many want to pay a low rate for certain agreed representation and are upset when more is not done by the attorney. I have even heard inventors openly complain that their patent attorney wants to charge them every time they call. It is important to remember, however, that the only thing an attorney has to sell is time; whether that be to perform legal services or give advice. Giving time away for free on a routine basis is a recipe for business disaster for an attorney.
With all this in mind, how does a serious inventor find the help they need and a reputable, experienced patent attorney? Inventors who want a reputable and experienced patent attorney will do themselves a great favor if they try and understand the business realities facing the patent attorney. There are only so many hours in a day to work, and spending a lot of with those who are not likely to turn into clients, or good clients, is not typically a winning business strategy. Therefore, you want to present from the outset as someone who is serious. Keeping this in mind will pay dividends as you seek out a patent attorney you are comfortable with, who you trust and is able to collaborate with you to form a good and prosperous working relationship.
Recently I received a copy of the book “One Simple Idea,” written by Stephen Key of Invent Right. Key is an inventor coach and through Invent Right offers a home study program for inventors, which includes personal coaching, DVD lectures, a year of online training and more. His stories as a successful inventor himself, as well as the stories of his students and those who he consults with, form the basis of the lessons in One Simple Idea. I don’t recommend all that many books, although I am asked to review many. Without hesitation I recommend Key’s book and think it should be required reading for any motivated inventor.
Aside from strongly recommending One Simple Idea I have been struggling with how to do a book review. After all, I am a patent attorney and not a literary critic. But there is so much to like about the book and so much that I think Key nails as dead on accurate. Rather than quote pieces of chapter after chapter, page after page or line after line, I thought it might be a good idea to pick up the phone and chat with Key about the book, his approach to counseling inventors and what he has learned over the years. If there is one thing I love it is a great conversation about patents and inventing!
UPDATED: 6/10/2011 @ 12:28pm (see comments)
Earlier today the United States Supreme Court issued its decision in Microsoft v. i4i. At stake in this closely watched case was whether a patent would continue to carry a strong presumption of validity during litigation or whether that presumption of validity would be significantly weakened. More specifically, since the inception of the Federal Circuit the law has always been that to overturn the presumption of validity required by 35 U.S.C. 282 and invalidate a patent claim there needs to be clear and convincing evidence presented at trial, regardless of whether the prior art offered at trial was considered by the Patent Office.
Microsoft (NASDAQ:MSFT) wanted to see that changed, with prior art not considered by the Patent Office requiring a lower evidentiary threshold to invalidate. To rule in Microsoft’s favor would have required the Supreme Court to throw away 30 years of well-settled Federal Circuit law, as well as overruling Supreme Court precedent in effect since at least 1934, but which traces back in some form from that date a further 100 years. That was a bridge too far for the Supreme Court, who ruled today 8-0 (with concurring opinions but no dissents, and with Chief Justice Roberts taking no part in the decision) that in order to invalidate patent claims 35 U.S.C. 282 requires clear and convincing evidence regardless of whether the prior art was known by the Patent Office during prosecution of the patent application.
In a rather stunning development, key Republican leaders in the House of Representatives are opposing an adequately funded Patent Office. Indeed, the opposition to appropriate funding for the United States Patent and Trademark Office is becoming a political matter, and the language used to describe the issues suggests that Republicans seem to believe they can score points against the Obama Administration by opposing USPTO funding.
In a letter sent to Congressman Lamar Smith (R-TX), two key Republican Chairmen are opposing the USPTO funding mechanisms currently in place in H.R. 1249, which mirror those passed by the Senate earlier this year. Congressman Paul Ryan (R-WI), who is Chair of the House Committee on the Judiciary, was joined by Congressman Harold Rogers (R-KY), who is Chair of the House Committee on Appropriations, opposing provisions that would allow the Patent and Trademark Office to keep the user fees it collects, which are payment for services to be rendered.