EDITORIAL NOTE: Each year February is Black History Month, but this year we will also mark the 50th anniversary of the Civil Rights Act of 1964. With this in mind we decided to do a series celebrating the important and innovative contributions of African-Americans. This article is about George Washington Carver. Earlier this month Eric Guttag also wrote The Black Edison: Granville T. Woods. Later this month we also will take a look at recent innovations coming out of historically black colleges and universities. For more on this topic please visit black inventorson IPWatchdog.com.
George Washington Carver in 1942.
Again, in celebration of the 50th Anniversary of the Civil Rights Act of 1964, here is my second article on African-American inventors: George Washington Carver. Carver was not only a talented innovator, but was also an extremely gifted educator and scientist.
So as I usually do, let’s start off with a couple of questions. Before today, how many of you knew George Washington Carver was a scientist and educator? Now how many of you knew Carver was also a talented painter, as well as a talented musician? How many of you knew that Carver was a man of devout Christian faith? Well, before this article ends, you may learn quite a few things about Carver you never knew before.
I’ve divided this tribute to Carver into essentially six sections, which will be covered in a two-part series. I begin by giving you an overview of the early years of Carver’s life, including his family background, early education, as well as his developing Christian faith. Then we will move onto Carver’s activities as a young adult. In part 2 of this series we will then review the most well-known part of Carver’s career, as an educator and scientist at Tuskegee Institute, including the tremendous impact he had in educating young black students, and the local farm community near Tuskegee, as well as exploring and revealing the wonders of agricultural science, including innovating and developing the infant domestic peanut industry. We will then close out Carver’s career during his final years at the Tuskegee Institute. And, if it’s possible to do it justice, in the last section, I’ll wrap up with a final assessment of Carver’s legacy on those he touched directly, and also on those of us like you and me that he has touched indirectly.
EDITORIAL NOTE: The following article has been posted as an online petition you may sign by visiting IndependentInventorsofAmerica.org. On Friday the United States Senate held additional hearings and seem poised to act relatively quickly on the Senate version of patent reform. For information about how to directly contact your U.S. Senators please see Senators of the 113th Congress.
We represent independent inventors and small patent-based businesses across the country and we are against any patent legislation that includes provisions of the Innovation Act (H.R. 3309) and the many variations and additions under consideration in the Senate. This legislation will levy grave harm upon independent inventors and small patent-based businesses, as well as the investors we need to help commercialize new technologies and to protect our inventions.
The American patent system is a trade between an inventor and society. An inventor discloses an invention for all to see and build upon, and the government grants and protects for the inventor an exclusive right to the invention for a short period. The American patent system was intended to enable anyone, regardless of economic status, race or gender, to profit from the invention of something new and valuable. This system has worked as intended for over 200 years, fueling the creation of the greatest economy in the world.
Starting on September 16, 2012, on the first anniversary of the signing of the America Invents Act, the Patent Trial and Appeal Board (PTAB) was born. The jurisdiction of the PTAB is greatly expanded compared to the previous Board of Patent Appeals and Interferences (BPAI). Most specifically, the PTAB now conducts trials within the patent office. These trials are required by the new procedures ushered in by the AIA, namely Inter Partes Review (IPR), Post-Grant Review (PGR) and Covered Business Method (CBM) Review. These three new flavors of patent challenge allow a petitioner to challenge the propriety of one or more patent claims once they have been granted by the Patent Office.
As the chart created by the USPTO below shows, Inter Partes Review is gaining in popularity since it first became available on September 16, 2012. While Post Grant Review cannot be filed unless the challenge is against a patent that issued under the new first to file rules that went into effect on March 16, 2013, an IPR can be filed to challenge any patent issued on, before or after September 16, 2012.
Obtaining a patent can be the best decision you could possibly make, and may even be the best business move you could make. On other hand, the patent path may wind up costing you time, energy and a lot of money. The investment placed into getting a patent may be wise, but it is important to realize the no one is simply going to show up on your doorstep with a money dump truck and unload lottery like winnings onto your stoop. The road to riches in the invention world is hazardous, has many detours and seldom goes as planned. That is why the first question you absolutely must ask yourself before you rush off to your friendly neighborhood patent attorney is this: why do you want to get a patent?
The unfortunately reality is that most patents do not make inventors money. When I first started out in the business estimates were that perhaps 2% of patented innovations made money. That estimate has grown over the years to anywhere from 2% to 10%, but this increase isn’t due to the fact that inventors have gotten so much better, but rather is a function of the massive portfolio licensing that goes on at the top of the industry. It is extremely difficult to know which patent or patents out of a 1,000+ patent portfolio are the ones worth acquiring rights for, but you likely don’t have to spend time wondering because if you want to license the valuable patents you probably have to take a license to the entire portfolio. So even by the bloated estimates you might hear today the underlying reality has not changed. No more than 2% of patents individually would be considered viable moneymaking propositions.
In Kilopass Tech., Inc. v. Sidense Corp. (Fed. Cir. December 26, 2013), in a 2-1 decision, the majority suggested that the fee shifting provisions of 35 U.S.C. §285 have broader application and are not applicable only when subjective bad faith and objective baseless claims are found. The push for broader application for the existing fee shifting statutory provisions is particularly relevant since there has been an increase in media coverage about certain abusive litigation tactics of patent trolls. This case might signal a nod to the district courts to apply the fee shifting provisions when trolling behaviors are practiced by the patent owner.
In this case, the District Court focused on the subject of bad faith prong and the objectively baseless prong to prove that the case is exceptional as required under 35 U.S.C. §285 for the fee shifting provisions to kick in. However, the Federal Circuit reiterated that 35 U.S.C. §285 allows for fee shifting in other situations than solely in those situations where the objective and subjective prongs are proven.
The Defendant (Sidense) was granted summary judgment holding that Sidense did not infringe the patent owner’s patent (Kilopass). Thereafter, the Defendant filed a motion in the District Court seeking an award of attorney’s fees under 35 U.S.C. §285, which the District Court denied. Sidense then appealed. This case provides a litany of points argued by the defendant as to why attorney fees should be awarded. The Federal Circuit agreed on some but rejected others.
The patent litigation landscape forever changed on September 16, 2012. On that date the Patent Trial & Appeal Board (PTAB) was born. The precursor to the PTAB was the Board of Patent Appeals and Interferences (BPAI), which would hear appeals from applicants who had their patent applications rejected and also conducted interference proceedings. With the signing of the America Invents Act (AIA) the PTAB was born and the jurisdiction of the appellate body within the United States Patent & Trademark Office (USPTO) was greatly expanded.
This Board, the adjudicative body of the USPTO, consists of technically and scientifically trained administrative patent judges (APJs). The PTAB was created, in part, to adjudicate the new patent challenge mechanisms of the America Invents Act, which include Post Grant Review (PGR), Inter Partes Review (IPR) and Covered Business Methods (CBM). Since 2012 roughly 1,000 challenges have been filed as petitions for either Inter Partes Review or the transitional Covered Business Method challenge proceeding. Post Grant Review is only available for patents that were granted as the result of first to file, which did not go into effect until March 16, 2013, so there will be some time before we see Post Grant Review given the tremendous backlog at the Patent Office.
It’s no secret that the regulatory environment is challenging for companies that license patents – in our case, patents that are deemed essential to wireless standards and that our company, InterDigital, has developed in-house over the course of multiple decades, and continues to develop today. Some of the companies that dominate the wireless market today had little or nothing to do with the development of the standards that have contributed so much to their success, so they make every effort to devalue standards participation. And many in Washington lend them a willing ear, and take up arms to wage their battle for them.
One of the greatest frustrations for me is that so much of this rests on a bedrock of total miscomprehension of how standards are developed, the enormous cost and risk of investing in standards development, the value that standards provide, and the kind of licensing practices that have made the market successful, benefitting everybody. Late last year in New York, I met with a reporter for one of the primary tech websites in the world, and he dismissed standards development. It became apparent he didn’t understand how the process worked at all. When we asked him how he thought these things got developed, he said that he “figured there must be an engineering organization somewhere that did it.” And this is from the legal correspondent of a major tech website, someone whose articles influence debate!
He didn’t realize that it was private sector companies – companies like ours – that committed significant engineering time and resources, and competed to develop the best solutions, and in so doing committed to licensing them fairly. So – for his benefit, should he read this, and for the benefit of anyone involved in the debate – I’ll describe our company’s story, and draw some conclusions about what should and shouldn’t be done to protect, foster and incent innovation that benefits everybody.
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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