It has now been several weeks since the U.S. House of Representatives passed H.R. 1249, dubbed the America Invents Act, which is commonly referred to as patent reform. In February 2011, the U.S. Senate passed S. 23, their version of patent reform. In their infinite wisdom, or lack thereof depending upon your perspective, the House did not pass a bill that was identical to S. 23, which means that before patent reform will become a reality it needs to once again be taken up by the Senate. But what are the odds of that happening any time soon?
Even the most casual observer likely knows that the United States is in the middle of a debt crisis. According to Treasury Secretary Timothy Geithner we have until August 2, 2011, within which to raise the debt limit and allow for more borrowing. Apparently the failure to raise the debt ceiling will trigger calamitous events that will cascade into an economic catastrophe. Yes, pretty big stuff seems to be at issue over the debt limit, which is consuming all of the oxygen in the room.
The U.S. Chamber of Commerce conducted two small business focus groups on April 1, 2011, in Philadelphia, as well as a national survey of small business owners through interviews with 900 businesses April 8 – 12, 2011. The findings from this study make up the inaugural quarterly “Small Business Outlook Survey,” and paint an unfortunately bleak picture of the collective outlook of small businesses moving forward.
Small businesses are the backbone of the nation’s economy and those that are most likely to engage in job creation. Unfortunately, the small businesses surveyed tell a tale of little or no job creation over the next 1 to 3 years, and in fact suggest there will be more layoffs coming. The respondents see too much uncertainty in Washington, DC, too many regulations and a number of other matters (i.e., the deficit, debt, health care and taxes) as significant impediments to job creation. This on the heels of a disappointing jobs report for June 2010, downward revisions of the number of jobs created in April and May, and unemployment rising to 9.2%, this Chamber survey only piles on the continuing terrible news for the economy. With Congress bickering over the obvious — namely that we simply cannot spend money we don’t have and need to start spending less than we bring in to cut the deficit — it doesn’t seem there is likely to be any good news on the horizon.
Last week, the 8th Circuit handed down a ruling saying that knickknack companies can’t use Warner Brothers’ copyrighted images on their merchandise even if they use public domain elements. Shocking. But for reasons unknown, some Hollywood types took this to mean that “every Wizard of Oz movie is in jeopardy”. Ummmm… no. Granted, the issues deal with one of the quirkier concepts in copyright law but just… no. At the end of the day, my pretties, it all boils down to what is protected by copyright, what is not, and what you can do with that stuff.
Here’s what happened. About five years ago, Warner Brothers (who owns the copyrights) sued companies selling little bits of stuff featuring characters and scenes from Gone with the Wind and The Wizard of Oz (and Tom & Jerry, too, but for the sake of brevity we’re not going there.) The companies had some restored publicity photographs, movie posters, and other promotional stuff for the movies and began incorporating elements from those posters with the images of the characters from the films to make snow globes, lunch boxes, and other types of nostalgic trinkets. Lots of times, they would modify the image to add a character’s catch phrase from the movie. Other times, they would combine different publicity photos into a single product. For example, a publicity photograph of Dorothy posed with the Scarecrow served as the model for a statuette and another publicity shot of the yellow brick road was the model for the base of that same statuette. Warner Bros said “No way, Jose! That’s copyright infringement!” The companies said “Nu-uh! It’s public domain!” The 8th Circuit Court of Appeals was tapped to decide who was right. Turns out, it’s Warner Brothers. Here’s why.
The vast number of America’s companies that need patents to prosper and grow should fear the post-grant provisions for challenging patents in H.R. 1249, the patent reform bill passed last month by the House of Representatives. In a system already plagued by delays in granting patents, they threaten to delay courts from enforcing patents once finally granted. This threat has received little attention, perhaps because advocates of the bill promise promptness that they cannot deliver.
Advocates’ promise of completion in one year rings hollow for several reasons. First, the one-year deadline does not count the year, on average, that the inevitable appeal will take. Second, the deadline is extendable to 18 months and, in any event, not enforceable. Third, the one year does not count the petition stage before the proceeding begins. That adds at least another 5 months—two months for the patent owner’s response plus three months, again unenforceable, for the patent office to decide whether the challenger’s petition warrants initiating such a proceeding. So, total elapsed time usually will be not one, but almost three years.
How to Patent an Invention Idea | Moving from Idea to Patent
By now everyone has undoubtedly seen the late night television commercials, and the online ads offering to help you patent your invention idea. Despite what these advertisements say, you cannot patent or protect an idea, but don’t despair. The idea is the first critical step toward being able to obtain a patent, and in my experience many inventors think they only have an idea and are not yet at the invention stage when, in fact, they really do have an invention that could be protected.
You will need to move from idea to invention and ultimately to a patent application, but the idea gets the ball rolling. Unfortunately, there are a lot of scams at work in the invention market, so you need to be careful and actively work to avoid invention scams. What you need is a strategy to help you move past the idea and learn to describe your idea with enough specifics so that it no longer is what the law would call a “mere idea.” In a nutshell, if you can describe your idea with enough detail you don’t have an idea, what you have is an invention, or at least the makings of an invention.
Article One Partners is at it again, this time with four patents in the cross-hairs owned by the company suing Apple App Developers for patent infringement — Lodsys. Article One Partners has made a name for itself as the premiere crowd sourcing, prior art locating company in the world. Now they have three different studies (see below) aimed squarely at the four Lodsys patents. In addition to being used against Apple App Developers, these four patents were also used earlier this week to sue the New York Times and others, and earlier still against Best Buy, Adidas, CVS and others. Indeed, it seems that Lodsys is becoming quite a nuisance for defendants, which places them at or near the top of the patent troll most wanted.
Now that the dust is settling from the passage of H.R. 1249/S.23 (aka the oxymoronic America Invents Act) and those (like me) have stopped “moaning and groaning” about how the America Invents Act or AIA (I feel like washing my mouth out with Ivory soap every I say it) is an utter “sham” to be called reform, it’s time to deal with the reality. The AIA will definitely affect how innovative American small businesses and individuals (the “Davids”) approach patenting their technology in the U.S., especially the change from “first to invent” to “first to file” which has now slanted the playing field in favor of large multinational corporations such as Microsoft (the “Goliaths”). But there are still patenting strategies for the American Davids of Innovation to cope with the AIA (and still compete with the Goliaths) if the primary market to protect is the domestic market.
First, let’s define what I mean by the domestic market. By domestic market, we’re talking about the United States. Not Asia. Not Europe. Not even NAFTA. Just good ol’ America which, for many American Davids is all they care about, and can usually deal with.
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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