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Senate to Vote on Patent Reform, First to File Fight Looms

Posted: Sunday, Feb 27, 2011 @ 12:24 pm | Written by Gene Quinn | 44 comments

It appears as if the time has finally arrived for an up or down vote on patent reform in the United States Senate.  It has been widely reported that the full Senate will take up patent reform upon returning from recess this week, and it is now believed by many on the inside that the Senate will take up patent reform on Monday, February 28, 2011, the first day back.  Some are even anticipating that the Senate will vote on patent reform bill S. 23 late in the day on Monday, February 28, 2011.  See Crunch Time: Call Your Senators on Patent Reform.  That would seem exceptionally quick, particularly given the rancorous issues and Amendments still to be presented, but nothing will surprise me.

As we get closer to a vote in the Senate the rhetoric of those for and against patent reform is heating up to a fever pitch.  The big fight, once again, is over first to file, with battle lines drawn that run extremely deep.  Senator Diane Feinstein (D-CA) is expected to file an Amendment stripping the first to file provisions, which could be supported by Senate Majority Leader Harry Reid (D-NV).

Part 2: Don Dunner on CAFC Judges & Future CAFC Candidates

Posted: Sunday, Feb 27, 2011 @ 9:58 am | Written by Gene Quinn | Comments Off

Donald Dunner

In part 1 of my interview with Don Dunner we talked about how he managed to  become the the dean of CAFC appellate advocates, arguing more than 150 cases before the court.  We also discussed many of his most high profile cases and his approach to handling multiple simultaneous appeals.  In this second installment of my interview with Dunner we talk about which judges on the Federal Circuit ask the most difficult questions, who he thinks are capable candidates for future federal circuit vacancies, why the Federal Circuit was created as a specialty court, continued hostility toward a purely specialty court and Congressman Issa’s attempt to create a pseudo-specialty trial court for patent issues.  We also touch upon the familiar fun questions and learn that one of Dunner’s favorite movies is a well known courtroom comedy.

Gary Michelson’s Letter to Congress Supporting Patent Reform

Posted: Friday, Feb 25, 2011 @ 6:52 pm | Written by Gary K. Michelson | 23 comments

EDITORIAL NOTE: What follows is a letter to Congress from Gary K. Michelson, MD, published here with permission.

President and inventor, Abraham Lincoln

As Abraham Lincoln said “The Patent system added the fuel of interest to the fire of genius”.

Many inventions allow a worker to be more productive.  That is to provide more service or more product with no increase in the work performed.  For example in the era of the building of the great canals in America steam shovels appeared such that one man and such a machine (an invention) could displace 100 men with shovels.  Similarly a large room full of typists with typewriters were replaced by a single person with a word processor (an invention) who was then capable of turning out an unlimited supply of originals.

Crunch Time: Call Your Senators on Patent Reform

Posted: Friday, Feb 25, 2011 @ 12:53 pm | Written by Bryan Lord | 25 comments

It’s crunch time.  The Patent Reform Act of 2011 is scheduled for an up-or-down vote on the Senate floor this Monday, Feb. 28.  It’s time for all intellectual property professionals to look carefully at the Patent Reform Act, and decide: is this bill good for American innovation or bad?

I am convinced that it is bad.

This bill (and its predecessors) has been extensively lobbied.  A handful of large, multinational companies have lobbied vigorously for it.  A handful of other large entities have lobbied vigorously against it.  Yet consistently, small businesses, start-ups, entrepreneurs, and independent inventors – the present and future job creators in the U.S. – have said that this bill will hurt them today and it will hurt U.S. competitiveness tomorrow.

USPTO to Host Women’s Entrepreneurship Symposium

Posted: Friday, Feb 25, 2011 @ 12:37 pm | Written by Press Releases | Comments Off

The United States Patent and Trademark Office (USPTO) and the United States Women’s Chamber of Commerce (USWCC) will host a women’s entrepreneurship symposium Friday, March 11, focused on women entrepreneurs, the importance of intellectual property protection for their innovations, and how to leverage economic opportunities for women-owned businesses.  The symposium will be held from 9:00 a.m. – 6:30 p.m. at the USPTO headquarters in Alexandria, Va.

U.S. Senator Mary L. Landrieu (D-La.), chair of the Senate’s Small Business Committee, will serve as the symposium’s keynote speaker.  Additional confirmed speakers include newly-appointed Deputy Under Secretary of Commerce for Intellectual Property and Deputy Director of the USPTO Teresa Stanek Rea and CEO of the U.S. Women’s Chamber of Commerce Margot Dorfman, as well as experts in intellectual property law, government leaders and successful entrepreneurs.

The Power of Branding Through Catchy Advertising, GEICO Commercials

Posted: Thursday, Feb 24, 2011 @ 3:17 pm | Written by Renee C. Quinn | 2 comments

Brand building can be defined as “Building the perceptions of your target audience.”  Those who work in marketing usually say that in order to really build your brand you need to be consistent in your marketing campaigns.  Consistency and repetition are a sure way to create a focused brand image and ingrain your message into the minds of those you are trying to reach.  However, Geico, has shown that, when done right, you can break the widely accepted and customary brand building “rules” often having numerous different iconic ad campaigns running at once. So today I’d like to discuss 5 of the more memorable GEICO ad campaigns beginning with the GEICO Gecko® through the most recently added Mike McGlone Commercials and analyze what your business can learn from these ad campaigns.

Abbot Wins Federal Circuit Reversal of $1.67B Patent Verdict

Posted: Wednesday, Feb 23, 2011 @ 11:48 pm | Written by Gene Quinn | 6 comments

The largest patent infringement verdict in U.S. history did not stand the test of time at the United States Court of Appeals for the Federal Circuit, saving Abbot Laboratories the tidy sum of $1.67 billion, at least for now. With a loss such as this one can only expect the inevitable request for reconsideration, request for an en banc hearing in front of the entire Federal Circuit and an appeal to the United States Supreme Court. We haven’t heard the last of this case by a long shot, but for today Abbott has to be extremely pleased while the patent owners, Centocor Ortho Biotech and New York University, have no doubt seen better days.

The patent infringement suit involves pharmaceutical antibodies used to treat arthritis. The patent owners, Centocor Ortho Biotech, Inc. and New York University sued Abbott Laboratories, Abbott Bioresearch Center, Inc., and Abbott Biotechnology Ltd. alleging that Abbott’s Humira® antibody infringed claims 2, 3, 14, and 15 of U.S. Patent No. 7,070,775. After a five-day trial, the jury found Abbott liable for willful infringement. The jury rejected Abbott’s argument that the asserted claims were invalid, and awarded Centocor over $1.67 billion in damages.

Exclusive Interview: Superstar CAFC Advocate Don Dunner

Posted: Wednesday, Feb 23, 2011 @ 11:29 am | Written by Gene Quinn | 3 comments

Donald Dunner

On two different occasions I had the privilege of interviewing the Honorable Paul Michel, the most recent former Chief Judge of the United States Court of Appeals for the Federal Circuit. In the final segment of my second interview with Chief Judge Michel we talked about appellate advocacy in general. The conversation turned to the type of appellate advocate parties should be looking to retain when in front of the Federal Circuit. Near the end of that conversation Chief Judge Michel said: “Don Dunner is a good example of somebody like that. Chemical engineer, lifetime patent lawyer, appellate specialist, wrote a treatise about the Federal Circuit. Covers all the bases. Argues in the court very, very, very frequently, and has for decades. He’s an example of a superstar advocate in my opinion.” With such lofty praise I had to interview Don Dunner.

Don Dunner is a partner with Finnegan, Henderson, Farabow, Garrett & Dunner, LLP, and he has argued over 150 cases before the Federal Circuit. I contacted Don Dunner in mid-January 2011 and our interview took place shortly thereafter. Dunner was enormously candid, although many of the things I would have liked to ask him had to be off the table due to ongoing litigation. In fact, Dunner is involved in three exceptionally important cases: TiVo v. Echostar, Microsoft v. i4i and Uniloc v. Microsoft.  Thankfully, Dunner did agree to return to talk to us further once these important cases finally resolve without further opportunity for appeal.  We did, however, go in depth discussing eBay v. MercExchange, the dynmic between the Supreme Court and the Federal Circuit, how he approaches appeals generally and specifically blow-by-blow and which Federal Circuit Judges ask the toughest questions.

Former PTO Deputy Director Barner Returns to Foley & Lardner

Posted: Tuesday, Feb 22, 2011 @ 11:52 am | Written by Gene Quinn | Comments Off

Sharon Barner with Bob Stoll at the White House on November 17, 2010

Foley & Lardner LLP announced today that Sharon R. Barner has returned to the firm’s Intellectual Property Department in its Chicago office. Barner most recently served as Deputy Under Secretary of Commerce for Intellectual Property and Deputy Director of the U.S. Patent and Trademark Office (USPTO).  During her stay at the Patent Office she undertook no fewer than 8 trips to China on official government business, among the 15 foreign missions she participated in.

A well rested Barner was the keynote speaker at the 5th Annual Patent Law Institute hosted by PLI in New York City last week, and she will also speak at the San Francisco Patent Law Institute in mid-March.  Barner seems anxious to get back into the swing of things as an attorney, and no doubt will be able to bring an array of useful experiences back to her litigation practice.  While it is almost crazy to contemplate, not having to work for the energizer bunny (a.k.a. David Kappos) Barner might actually have more free time, although certainly fewer frequent flier miles.

The Expansion of Overlapping Intellectual Property Rights

Posted: Tuesday, Feb 22, 2011 @ 7:15 am | Written by Andrew Beckerman-Rodau | 10 comments

As a law professor, engineer, and patent attorney, I am an advocate of strong intellectual property rights (IPR). However, the extent of what is currently protectable under U.S. IP law has become too expansive. Design patent law, copyright law, and trademark law have grown significantly over the past few decades. Design patent law was first enacted in the 1800s to cover the ornamental appearance of commercial products. This is often referred to as industrial design protection.  According to legislative history it was needed to fill a gap in the existing law because neither utility patent law nor copyright law provided protection for such industrial design even though protection had long been available in Europe. Copyright law originally covered only the form of expression embodied in maps, charts, and books. Trademark law – a species of unfair competition law – protected the mental association between symbols, words and short phrases that identified products or services against third party commercial uses that would create consumer confusion.