Four months ago, the House of Representatives passed the “Innovation Act” (H.R. 3309), which would impose sweeping changes to U.S. patent law and the judicial system. Now, as the Senate prepares to act on its own patent reform measure, the “Patent Transparency and Improvements Act” (S-1720), it’s more important than ever that we try to separate fact from the various fictions driving this unprecedented rush to alter a patent system that for 224 years has been vital to U.S. competitiveness and economic growth.
It is a glaring fact that patent trolls extort businesses and harm the patent system, and that measures to curb their extortionist behavior are needed. The lawsuits they file (or threaten to file) against small businesses are designed to extort nuisance settlements that are less than the cost of litigation and are called “strike suits” in legal parlance.
On April 11, 2014, I was contacted by Legal Counsel for the World Intellectual Property Organization (WIPO). The communication alleged that publication of a complaint of misconduct and exhibits filed by the WIPO Deputy Director was defamatory and criminal under Swiss law. Legal action was threatened unless I immediately acquiesced to the demands. Here is the e-mail I received:
I am writing to you in my capacity as Legal Counsel of the World Intellectual Property Organization (WIPO), in relation to a report and its accompanying exhibits (“WIPO Deputy Director General Alleges Gurry Misconduct”) that are posted on your website IP Watchdog.
Each morning as I wake up, I roll over and reach for my smartphone. I don’t have to reach far because I charge it overnight on my bedside table. As I pick it up and scroll through the emails and news that came in overnight, look at my calendar for the day and check the weather, I yawn and stretch and finally put my feet on the floor. Walking out of the bedroom and toward the kitchen to get my coffee, I’ll keep reading and browsing through items that interest me, and deleting the messages that don’t. After letting the dogs out, I’ll sit down at the table with my mug of hot coffee and my smartphone and continue getting informed and organized until the mug is empty. I might check Facebook, Twitter, watch a YouTube video or two, and check the traffic along my route to work. Maybe I’ll even text my workout partner and let them know I’m running a little late this morning. Because I’m a creature of habit, I’ll repeat this routine day after day without thinking much about it. It probably sounds familiar to you.
But the other morning, I did stop to think about it. I asked myself how this device called the “smartphone” – which didn’t even exist as a product category five years ago – could have become such an integral part of my morning routine. Why do I always keep it charging on my bedside table at night instead of the other room?
The short answer is patents. But here’s the long answer to tell you what I mean.
After seeing how the federal agencies intend to implement the recommendations from The White House Lab to Market Summit the difference between product and process oriented people really hit home.
Product people burn with a passion to get the job done. Process people focus on rules and procedures to minimize risk. Thus, product people are like the accelerator and process people are the brakes. You need both in your car, but if the brakes run the show you’ll never get out of the driveway. Similarly, whenever deal makers are subservient in a system to process people, frustration is sure to follow.
Last year the White House put together its Lab to Market Summit and asked Diane Palmintera and me to co-chair a panel of external experts to review several innovative agency technology transfer programs and come up with “transformational, not incremental” ideas to increase the commercialization of $140 B of federally funded research.
The Federal Trade Commission charged the operators of the website “Jerk.com” with harvesting personal information from Facebook to create profiles labeling people a “Jerk” or “not a Jerk,” then falsely claiming that consumers could revise their online profiles by paying $30. According to the FTC’s complaint, between 2009 and 2013 the defendants, Jerk, LLC and the operator of the website, John Fanning, created Jerk.com profiles for more than 73 million people, including children.
In its complaint, the FTC charges that the defendants violated the FTC Act by misleading consumers that the content on Jerk.com had been created by other Jerk.com users, when in fact most of it had been harvested from Facebook; and by falsely leading consumers to believe that by paying for a Jerk.com membership, they could access “premium” features that could allow them to change their “Jerk” profile.
The FTC is seeking an order barring the defendants’ deceptive practices, prohibiting them from using the personal information they improperly obtained, and requiring them to delete the information.
“In today’s interconnected world, people are especially concerned about their reputation online, and this deceptive scheme was a brazen attempt to exploit those concerns,” said Jessica Rich, Director of the FTC’s Bureau of Consumer Protection.
As part of the Trademark Operation’s continuing series of roundtable discussions to gather stakeholder views on important issues, a roundtable discussion about USPTO’s practice regarding amendments to identifications of goods and services due to technology evolution will be held on Friday, April 11, from 2 – 3 pm. The session will be open to the public and webcast. The event will take place in the Madison Auditorium at the USPTO offices, located at 600 Dulany Street, Alexandria, Virginia 22314.
Under §7(e) of the Trademark Act, a registration based on an application under §1 or §44 of the Trademark Act may be amended for good cause upon application of the owner and payment of the prescribed fee, provided the amendment does not materially alter the character of the mark. 15 U.S.C. §1058(e). With respect to the identification of goods/services, an identification may be amended to restrict the identification or change it in ways that would not require republication of the mark. See 37 C.F.R. §2.173(e). However, no goods/services may be added to a registration by amendment. Moreover, under current USPTO practice, changed circumstances, such as new technology, will not render acceptable an amendment that is not otherwise permissible. TMEP §1609.03.
EDITORIAL NOTE: What follows is the Summary of the Argument from the AIPLA amicus briefin Limelight Networks, Inc. v. Akamai Technologies, Inc. The brief is filed by Wayne P. Sobon, who is the current President of the AIPLA, with Jeffrey I.D. Lewis listed as Counsel of Record. Lewis is himself a former AIPLA President. Also on the brief with Lewis is Scott B. Howard.
The cornerstone of Petitioner’s argument is that it follows from the language and simple structure of Sections 271(a) and 271(b) of Title 35 “that § 271(b) proscribes conduct that induces actionable direct infringement of a patent as described in § 271(a).” Pet. Br. at 1 (emphasis added). In doing so, Petitioner focuses on the elements of a claim for induced infringement under 35 U.S.C. § 271(b), but hides the true issues of this case – what is the meaning of “infringement” and is there patent liability when someone causes all of the steps of a method patent to be performed but no single entity performs all of the steps of the method claim by him or herself?
Recent Federal Circuit law has, without any statutory basis, limited infringement under Section 271(a) to the actions of a single entity, and some amici have even mistakenly characterized the single entity rule as settled law, e.g., Brief of Amici Curiae Cargill, Inc. et al. at 4 (but it is not, as shown below and in district court cases in the accompanying footnote  ). It is that erroneous limitation that leads to confusion over whether or not direct infringement is necessary for a finding of indirect, induced infringement.
A few months have gone by since our last check, so it’s the perfect time to return to the U.S. Patent and Trademark Database to see what inventions have been assigned to Qualcomm in recent weeks. We’ve noticed patent applications and issued patents galore that chart an intriguing path of technological innovation that may turn into services which are widespread through electronic devices. Here at IPWatchdog’s Companies We Follow series, we’ve analyzed what makes these inventions revolutionary and share our favorites with our readers.
Fuel efficiency and carbon reduction from vehicle use are the main thrust of our featured patent application today. This patent application describes a system by which a fuel transaction can be uploaded to a carbon credit management system for applying rewards to vehicle owners. Electronic device owners who are walking around in urban centers may find better mapping applications because of two other recently published Qualcomm applications.
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.
Typically blog roll links are not helpful to a website's rank. To give some additional "link love" to those we think you might be interested in reading we have moved our blog roll and links to a dedicated page. Go to IPWatchdog Blog Roll & Links.