The White House website explains that it is the right of the people to petition the government, a right that is guaranteed by the First Amendment of the United States Constitution. Of course, the idea of petitioning the President is not something that is new, but the ability to use the Internet to create an online petition that may be considered and responded to by the Federal Government is indeed quite new. Not surprisingly, the Obama Administration, known for savvy use of the Internet both in governance and campaigning, pioneered this unique approach to making government reachable by the masses.

With this in mind, last week, a petition was created to petition the White House to take down the website Jerk.com. To date the petition has unfortunately not received many votes. Earlier today I was the 28th e-signer of the petition. My guess is that this is due to lack of publicity more so than anything else. Once people learn of the petition my guess is that the signatures will accumulate quickly, but will there be enough time to reach the 100,000 signature threshold by February 22, 2013?

The first order of business, however, is to get the required 150 signatures so that the petition will be searchable on WhiteHouse.gov.  To view and/or sign the petition visit We the People.

The Old Patent Office is one of the most beautiful buildings in all of Washington, DC. Presently, it hosts the Smithsonian American Art Museum and the National Portrait Gallery. For those who are not from DC or familiar with the city, allow me to explain that obtaining directions to the Old Patent Office on your electronic device of choice may be difficult because there is no street address. At least I have never been able to find a street address for the building. The Old Patent Office Building takes up an entire city block in DC, located on the corner of Eighth and F Streets, roughly between the White House and Capitol.

Yes, the Patent Office was once upon a time thought to be so important to our new nation that this ornate building was located between the White House and the Capitol. Yet today there are forces throughout academia and elsewhere that would rather see the entire U.S. patent system dismantled. Oh how we have departed from the views of Madison, Jefferson and the other founders who thought a strong patent system would be central to the success of the new nation. That, however, is a story for another day.

The Old Patent Office Building has had a storied history, which is commensurate with what our early leaders, such as Presidents Jefferson, Madison and Lincoln thought of the patent system. In addition to housing the Patent Office from 1842 to 1932, in 1865 the Old Patent Office hosted President Lincoln’s second inaugural ball in the model room. This marked the first time that a government building was used for the inaugural ball. See Inaugural Ball, from the Joint Congressional Committee on Inaugural Ceremonies.

You would have to be living under a rock not to know that President Barack Obama was reelected last night in what really can only be characterized as a resounding victory. While I went on the record endorsing Governor Mitt Romney, rather than feeling too bad, I at least have the reassurance that the U.S. patent system will remain in capable hands for the foreseeable future.

Even in my endorsement of Governor Romney I discussed that it is undeniable that the USPTO is run better now than at any time during the Bush Administration. So while the Republicans in the patent community are no doubt disappointed about the results of the election last night, the consolation prize is that the federal agency that handles matters in our little niche will be competently run moving forward.  So there is a silver lining.

Of course, there have been rumors flying around that David Kappos will not remain at the USPTO for long even if President Obama did win reelection. No one knows for sure what will happen, and frankly who could blame Kappos if he decided that 4 years was enough and he wants to return to the private sector.  Still, if and when Kappos would make a decision to return to the private sector I would be surprised. As far as I can see he remains the highly energetic, extremely motivated, dedicated servant of the patent system that he was when he first assumed the mantle of Director in August 2009.

I am presently in San Francisco, California teaching the last live course for the PLI patent bar review course this year.  As I was in my hotel room this morning getting ready for the day news coverage showed President Obama at a rally where supporters were screaming the familiar “4 more years” chant that you hear every time an incumbent President is running for reelection.  The coverage then turned to Governor Romney in Wisconsin, where the crowd started chanting “4 more days.”

Then when I fired up my laptop to check e-mails and approve comments from first time posters and those otherwise caught up by our comment spam software, I came across a comment from a patent attorney who explained why he had finally decided to vote for President Obama — the Patent Office is working very well.

The comment to that article really didn’t fit with the broader content or theme of the article on which it was left.  As frequent readers know I always try and encourage relevant comments that don’t go to far off tangent so as to keep the discussion focused and on point.  So I didn’t approve that comment there but reached out to the commenter to let them know I would be posting this article.

Today’s Supreme Court ruling on Obamacare is historic.  This issue has dominated political and private discourse for the past several years in America and, therefore, it is unrealistic to believe any legal commentator could resist the temptation to comment or opine.  While Obamacare and the Supreme Court decision have nothing to do with intellectual property, I will, to the best of my abilities, turn this into a tongue in cheek patent commentary.  Of course that is after I bash the Supreme Court.  So liberals and others who believe the Supreme Court knows anything about anything should probably skip Part 1 and jump right to Part 2 of the article.  I had a blast writing it.  Hopefully you will have as much fun reading.

Part 1: Not Intended for Liberal / Supreme Court Consumption

A majority of the Supreme Court finally placed a meaningful limitation on the rampant, intellectually dishonest and terribly troubling use of the Commerce Clause to justify everything Congress ever wants to do.  Unfortunately (at least in my opinion), Chief Justice John Roberts got in touch with his inner liberal and decided that the individual mandate is constitutional under the taxing power granted to Congress in the Constitution.  Rather peculiar given that during the rancorous debates and ultimate passage of the bill the Obama Administration and Democrats in Congress repeatedly proclaimed this was not a tax on the American people.  To be fair, the Obama Administration did seem to argue it both ways on the tax issue depending upon the forum.  I guess arguing in the alternative paid off even if Congress and the President were dishonest with the American people in public.

In the annual State of the Union Address President Obama explained: “Innovation is what America has always been about.”  Today the Obama Administration took major steps forward to collaboratively work with private industry to tap American ingenuity to assist in a world-wide humanitarian effort.  The United States government will work with the private sector, universities, and non-profits to foster game-changing innovations with the potential to solve long-standing development challenges in health, food security and environmental sustainability.

I had the honor of being invited to the White House today for the Innovation for Global Development Event, which was held in support of the President’s commitment to using harness the power of innovation to solve long-standing global development challenges.  As a part of this event, David Kappos, Under Secretary of Commerce for Intellectual Property and the Director of the United States Patent and Trademark Office, launched a pilot program dubbed Patents for Humanity, which is a voluntary prize competition for patent owners and licensees.  The pilot program seeks to encourage businesses of all kinds to apply their patented technology to addressing the world’s humanitarian challenges.

On March 10, 2010, District Court Judge Kathleen O’Malley was nominated by President Barack Obama to succeed Alvin Schall, who retired from the United States Court of Appeals for the Federal Circuit. Earlier today, Judge O’Malley was confirmed by the United States Senate, see Senate Confirms Five Judicial Nominees.  O’Malley’s confirmation, along with the confirmation of 18 others in recent days, is the result of a deal between Senate Democrats and Republicans that ensured passage of 19 nominations in exchange for an agreement not to move forward with other controversial nominations, including the hotly challenged nomination of Goodwin Lui, who is Associate Dean and Professor of Law at University of California Berkeley School of Law.  O’Malley will join 15 other colleagues on the Federal Circuit, 6 of who are on senior status.

Judge O’Malley has served on the the United States District Court for the Northern District of Ohio since being appointed by President William J. Clinton on September 20, 1994 and confirmed by a voice vote of the Senate on October 12, 1994.  See Thomas: Nomination PN1786-103.

Earlier today President Barack Obama, perhaps with the best of intentions, demonstrated that he is not all that familiar with the United States Patent and Trademark Office and how they handle patent applications. The short of it is that what President Obama said to tech executives was wrong on the facts, but at least partly correct in spirit. Essentially, President Obama said that the way the Patent Office handles electronically filed patent applications is to print them and scan them. Sadly, that is not true, or is at least extremely misleading. It is certainly true that the Patent Office used to do things that way, but since the new EFS Web system was unveiled on March 16, 2006, electronically filed patent applications are not printed and then scanned. Perhaps the President or his speech writers are readers of IPWatchdog.com and got the wrong impression when I lamented a few months ago that genius federal minds thought printing and scanning created a paperless system, or perhaps the White House has been spying on the PLI Patent Bar Review Course and listening to John White tell stories of the old days when printing and scanning of electronic filings was the rule. Whatever the case, the President was incorrect on the facts, but certainly correct to say that it is embarrassing that the Patent Office computer systems are woefully inadequate and behind the times.

I wish I had some inside information to pass along, but I do not.  All I can seem to come up with is unsubstantiated rumor and innuendo, but the report the other day from Patently-O that Duke Law Professor Arti Rai is heading to the Patent Office to fill a long vacant policy setting position has too much of a ring of truth to completely ignore.  There have long been rumors associated with Professor Rai given that she is a long-time friend of President Barack Obama, both having been in the same Harvard Law School class.  What we do know is that Rai was a member of the Obama transition team, and was rumored to be on the short list for Undersecretary of Commerce for Intellectual Property, a position that also carries the title and responsibilities of Director of the Patent and Trademark Office.  As practically everyone in the patent bar that came in contact with Professor Rai was kissing her ring in anticipation that she would become the new PTO Director, I heard an unsubstantiated rumor that she had been offered the position and declined.  I want to make as clear as possible that I am writing about rumors, and unsubstantiated ones at that in order to distinguish from hard facts and inside information so that readers understand that this may all be much ado about nothing.  Having said that, as well respected in academic circles as Professor Rai is, it would be an enormous mistake for her to be given a policy setting position within the USPTO.  So allow me for a moment to buy into the rumors and make my case.

A Los-Angeles based street artist named  Shepard Fairey created what many would say was one of the most enduring images of the 2008 Presidential Campaign, a poster of Barack Obama with a stern and confident look gazing slightly upward and to his left.  The trouble with this poster is that is is based on a copyrighted photo taken by the Associated Press, and the Associated Press wants to be paid for the use of the photograph.  According to the Associated Press, the image has led to sales of hundreds of thousands of posters and stickers, and has become so much in demand that copies signed by Fairey have been purchased for thousands of dollars on eBay.  Fairey admits that his poster is based on the AP photograph, but claims that his use of this photograph is fair use and that the Associated Press is not entitled to any compensation.  Predictably, the AP takes the contrary view, saying that it was not a fair use and they they are entitled by law to protect the rights they own in the photograph.

Despite the fact that an official announcement is not due until sometime later this morning, it seems likely that everyone already knows that President Barack Obama has selected Judd Gregg, the Senior United States Senator from New Hampshire, to be his Secretary of Commerce.  All the political pundits have offered expert commentary on why President Obama might choose a Republican Senator to be his Secretary of Commerce, but maybe it is as simple as he actually paid his federal income taxes on time and in full, who knows?  One thing is for certain though, Judd Gregg does not have a long history to review on patent matters, but the man who will be the boss of the next Director of the United States Patent and Trademark Office does have one thorny patent issue in his past, namely the misguided attempts by Columbia University to extend its patent protection on a multi-million dollar process.  If failure to pay federal income taxes does not disqualify a nominee from serving in the President’s Cabinet I doubt this issue will present any problems for Gregg, although it certainly deserves to be an interesting footnote in his political career.  This is particularly true given that he will head the Agency under which the US Patent Office falls.

John Doll has wasted no time moving forward to try and put his stamp on the United States Patent Office.  One week ago today Doll, who became Acting Undersecretary of Commerce for Intellectual Property and Acting Director of the United States Patent & Trademark Office when Jon Dudas resigned, announced in the Federal Register that the USPTO will hold a roundtable discussion regarding deferred examination.  The ostensible reason for this roundtable discussion is to obtain public input to help the Patent Office determine whether the support expressed in some corners for deferral of examination is isolated or whether there is general support in the patent community and/or the public sector generally for the adoption of some type of deferral of examination.  Of course, those of us familiar with how the Patent Office runs know that John Doll is not at all interested in understanding what the patent community wants.  He has already decided to try and push through deferred examination despite the fact that President Obama’s Chief of Staff Rahm Emanuel circulated a memo requesting that all regulatory activity by Bush Administration Officials be kept to only what is absolutely necessary. 

It has already come to light that President Obama is interested in moving the United States federal government away from proprietary software to open source solutions.  I am not sure this ought to a top priority that is so important that it is on his mind during his first 48 hours in Office, but it is apparently ahead of a lot of things.  Personally, I would rather him try and use his vast fund raising abilities to raise the $1 trillion necessary to bailout the economy, but what do I know?  I am just a patent attorney who thinks software ought to be patentable and that the Federal Circuit went way farther than it should have in Bilski.  But I can’t help but notice that by making open source software a priority President Obama is potentially showing his hand and throwing in with those who would rather not see a strong and vibrant patent system.  Perhaps I am reading to much into this and far to anxious about who he might appoint to be the next Director of the USPTO.  Call me a worry wart if you will, but I don’t like where this might head.  It is bad news for the software industry as we know it, and if he has these opinions on software what will his opinions on pharmaceuticals be?

One of the first things the Obama Administration is interested in doing is exploring how the United States government can use open source software rather than rely on proprietary software that is viewed as costing to much money.  So at a time when corporations are cutting jobs left and right and our economy is in jeopardy, one of the first priorities of President Obama is to determine whether it is feasible to stop relying on proprietary software bought from companies like Microsoft, Oracle and IBM.  Much like those who supported Obama only to find out that he would appoint a fiercely pro RIAA attorney to be Deputy Attorney General of the United States, I suspect that there are many in Silicon Valley and beyond who supported President Obama and are now enormously troubled by the fact that his Administration seems ready and willing to proceed with open source, anti-proprietary solutions.  This does not bode well for those concerned by what President Obama’s view of proprietary rights will be.

What is going on with the Recording Industry Association of America (RIAA)?  After many years of waging a war against anyone and everyone that they thought illegally copied music, capturing many innocent people up with their Gustapo-like actions, and fighting with Internet Service Providers at every turn to get private information about users, the RIAA seems to have become a kinder, gentler organization lately.  Not only has the RIAA fired MediaSentry, the company they used to collect information about suspected infringers, but now they are giving up on several cases where they went after college students for downloading and sharing music.  What has gotten into the RIAA?  Have they finally understood that it doesn’t make any sense to sue potential customers?  Are they finally willing to embrace technology?  Have the figured out that they can actually make money with new technologies?  Of course, the technologies are not new to the rest of us, but undoubtedly new to the RIAA given they have spent most of the last decade trying to kill what they perceived to be evil compression technologies.