Recently I learned that Drinker Biddle & Reath LLP and NERA Economic Consulting are teaming together to co-sponsoring a luncheon on May 8, 2013, at the Four Seasons Hotel Silicon Valley at East Palo Alto to discuss effective responses to patent infringement claims and threats of such claims from patent assertion entities – also known as patent trolls. According to Bob Stoll, former Commissioner for Patents who is currently with Drinker Biddle, “Our program will explore the reasons for the steady — some would say explosive — rise in PAE enforcement practices in recent years and what various categories of the targets of these practices might do about it.”
The reason this luncheon discussion caught my attention was because it cross through my e-mail box at a time when I was already working on updating patent litigation statistics I have accumulated dated back to 1980. See The Rise of Patent Litigation in America: 1980 – 2012.
Certainly there is an increase in the number of patent litigation lawsuits brought, particularly over the last several years. Many want to blame patent wars over smart phones and pretend that they are something unusual, when in fact patent wars over important technologies are hardly new. In fact, there were 600 patent lawsuits brought over an 11 year span relating to the invention of the telephone. See Worldwide History of Telecommunications. Yet, Apple has been involved in 142 patent lawsuits relating to the smartphone since 2006 according to the NY Times. This should help put into perspective the so-called smartphone patent war problem. The smartphone patent wars are of a much smaller scale and hardly the first battles of their kind. Amazing how telephone technology prospered even with 600 patent lawsuits. The patent nay-sayers would have you believe that is impossible, but we know it happened.
But what is the solution? Do we even need a solution?
It is that time of the year when reflections are made on the year that is about to pass, wishes are made for the new year, and a prediction or two start to pop from both amateur and professional prognosticators alike. In years past we have done a Patent Wishes article, which is currently in the works. This year I thought I would add an article that gave some industry insiders an opportunity to reflect upon the biggest moments in intellectual property for 2012.
Whenever I do something like this I keep my fingers crossed. The biggest moments in IP seem rather obvious to me, so will they to others? Will I wind up printing the same thing 5 or 6 times? The answer: Absolutely not! We had a very busy year, from Supreme Court decisions to failed legislation to fight piracy on the Internet, to important Federal Circuit cases and implementation of the America Invents Act.
Indeed, for this inaugural edition of Biggest Moments in IP we have a variety of reflections on a wide array of IP issues. Former Commissioner for Patents Bob Stoll walked through some of the biggest items on the patent docket for the year. Stephen Kunin of Oblon Spivak gives us his Top 10 list in David Letterman style. Former staffer to Senator Leahy (D-VT) and current lobbyist Marla Grossman reflects on Senator Leahy’s decision to refuse the Chairmanship of the Senate Appropriations Committee to stay on as Chair of the Judiciary Committee. IP attorney and frequent feature contributor to IPWatchdog.com Beth Hutchens focuses on several copyright and first amendment issues, and reminds us of the battle that ensued to defeat SOPA.
On July 19, 2012, I interviewed Bob Stoll at the Washington, D.C., offices of Drinker Biddle. In part 1 we discussed his adjusting to life in the private sector, the fact that he doesn’t enjoy the billable hour part of private practice (just like every other attorney I know) and we discussed politics a bit, as well as the U.S. economy and innovation policy. In part 2 we discussed Presidential politics, how innovation drives the U.S. economy, why a great new technology that has spawned an entirely new industry as we have coming out of so many recessions in the past, patent examination process and how to streamline the examination process.
In this final installment, Bob Stoll and I discuss the United States Supreme Court. We spend some time talking about the Supreme Court’s recent patent eligible subject matter decisions. We also discuss the problem of bad patent applications contributing to bad law and slower, more inefficient patent prosecution. We also discuss inequitable conduct after Therasense and who might make a good addition to the Federal Circuit. Stoll says the name he keeps hearing is Todd Dickinson.
Without further ado, here is part 3 of my interview with Bob Stoll.
Bob Stoll (right) at the White House, Nov. 2010, with then USPTO Deputy Director Sharon Barner.
On July 19, 2012, I interviewed Bob Stoll, former Commissioner for Patents of the United States Patent and Trademark Office. The interview took place in a conference room at Drinker Biddleon K Street in Washington, D.C. After 29 years working for the USPTO and a total of 34 years working for the government, Stoll retired on December 31, 2011. He then started his new, second career as a private citizen and all around patent specialist at Drinker Biddle in the firm’s Intellectual Property Group.
In part 1 of my interview with Stoll we discussed his adjusting to life in the private sector, the fact that he doesn’t enjoy the billable hour part of private practice (just like every other attorney I know) and we discussed politics a bit, as well as the U.S. economy and innovation policy. Part 2 of my interview, which appears below, picks up where we left off discussing Presidential politics and the buzz that engulfs D.C. every 4 years. We then move on to talk about how innovation drives the U.S. economy and I get his thoughts on why we haven’t seen a great new technology that has spawned an entirely new industry as we have coming out of so many recessions in the past. We then finish part 2 discussing changes to the patent examination process and how to streamline the examination process.
In early November 2011, Bob Stoll, Commissioner for Patents at the United States Patent and Trademark Office, announced his intention to retire from the agency effective December 31, 2011. Stoll was appointed Commissioner for Patents by Under Secretary Kappos in October 2009, serving a little more than 2 of his 29 years as an employee at the USPTO as Commissioner for Patents. Bob is currently a partner in on the patent team in the Intellectual Property Group at Drinker Biddle & Reath LLP.
In his 29 years with the Patent and Trademark Office Stoll held several leadership posts including training foreign officials on all aspects of intellectual property (IP), overseeing the Office of Enforcement, and directing federal legislative priorities for the Agency. In his tenure as Commissioner for Patents, Stoll was in charge of implementing initiatives to improve the speed and quality of the patent review process, was instrumental in reducing the patent application backlog, and undertook an initiative to clean out the oldest cases on the USPTO docket, which for a time actually raised some of the key metrics but was objectively the right thing to do. Of course, Stoll was also an integral part of the USPTO team working to get patent reform across the finish line and then in the early implementation efforts of the AIA.
I tried to get Stoll on the record while he was at the USPTO. I don’t think he dodged me, it just never worked out. I travel a lot, he travels a lot and when it was convenient for one of us it was never convenient for the other. In the time I have known Bob we have become friends. I respect him enormously. Bob’s knowledge of all things patent is extraordinarily deep, and whenever we get together it is always a lively conversation. So I am extremely happy to bring this on the record interview to you.
In this conversation we talk about life after the USPTO, billable hours, Presidential politics, being on the famed K Street in Washington D.C., the U.S. economy, improvidently granted patents and much more. So without further ado, here is my interview with Bob Stoll.
One week ago, on July 18, 2012, Justice Antonin Scalia of the United States Supreme Court sat down for an interview with Piers Morgan of CNN. See Scalia interview transcript. During the interview Morgan asked Scalia what his hardest decision has been while on the Supreme Court. This was the back and forth that ensued:
MORGAN: What has been your hardest decision, do you think?
SCALIA: My hardest?
SCALIA: You don’t want to know.
MORGAN: I do want to know.
SCALIA: No, it’s the dullest case imaginable. They — there is — there is no necessary correlation between the difficulty of a decision and its importance. Some of the most insignificant cases have been the hardest. And…
MORGAN: What has been the one that you…
SCALIA: It would probably be a patent case.
You want me to describe it really?
MORGAN: No, I don’t.
SCALIA: No. Of course. (LAUGHTER)
I thought it might be fun to ask some industry insiders what their guess was as to the unnamed case Justice Scalia was thinking of as the “hardest decision.” Some of those I asked didn’t offer a guess, but rather took the opportunity to discuss the aforementioned Scalia statements more generally. Those “musings” will be published tomorrow.
Commissioner for Patents at the United States Patent and Trademark Office (USPTO) Robert L. Stoll (right) has announced his intention to retire from the agency effective December 31, 2011. Under Secretary of Commerce for Intellectual Property and Director of the USPTO David Kappos has announced that he will nominate current Deputy Commissioner for Patents Margaret “Peggy” Focarino (left) to the position of Commissioner for Patents once Commissioner Stoll’s resignation becomes effective.
No doubt you have heard about the new law that is upon us in the land of patents; it’s in all the papers and on all the blogs. The America Invents Act was signed by President Obama on September 16, 2011, and marks the largest single re-write of U.S. patent law ever. Even the 1952 Patent Act pales in comparison because that was almost completely a codification of existing case law that had developed over the decades. America Invents, however, embarks upon a new path and leads us into the great unknown in many respects.
Those preparing to take the patent bar exam or contemplating sitting for the exam at some point in time in the future likely don’t want to hear that U.S. patent law is heading into the great unknown. How can you be expected to take a pass the patent bar examination under these circumstances? First: Relax. You do not have to unlearn or forget what you are currently learning, or soon will learn, for the patent exam or for your practice life after you pass the exam. That being said, the sooner you do take the patent bar exam the better off you will be!
On March 28, 2011 the United States Patent and Trademark Office (USPTO) began offering petitioners the option to automate the filing and decision process for eight patent related petition types through the Office’s new ePetitions system. See USPTO Automates Filing of Patent Petitions. Since then the ePetitions system has accounted for almost 25% of petition submissions for the eight patent related petition types capable of being filed through the system.
“The ePetitions program is an instrumental part of the USPTO’s continuing efforts to expand its eCommerce capabilities and augment its ability to provide new tools and services to patent practitioners,” said Commissioner for Patents Robert Stoll. “Online filing of these specific ePetitions offers an important time saving advantage to petitioners as these submitted petitions are auto-processed and decided immediately upon receipt by the USPTO.”
You hear a lot these days about the need to protect Intellectual Property and capture innovation, but you don’t hear much about the traditional expense involved. There’s a reason for that: given the constantly evolving, “wild west” nature of today’s technical frontier, it is often prohibitively expensive for the little guy to cover all the bases and keep up with all the changes. Small businesses have had few options for affordable, comprehensive preparedness on the IP front, and in the wake of the recession, you’re likely to hear a lot more about the need to cut legal spending than you are about performing more audits and hiring more lawyers.
Companies are beginning to tackle this paradox by practicing the word on the lips of everyone from David Kappos (Under Secretary of Commerce for Intellectual Property and Director of the USPTO) to Robert L. Stoll (Commissioner for Patents, USPTO), to business leaders, to even President Obama – innovation. But what good is innovation in and of itself? The innovation our leaders want demands adequate protections in place to turn those promising innovations into business assets.
Leading off at 8:45am, from left to right: Herbert Wamsley (IPO Executive Director), Peggy Focarino (Deputy Commissioner for Patents), William Smith (Woodcock Washburn), John Owens (USPTO CIO) and Bob Stoll (Commissioner for Patents).
Earlier today some of the top manages from the patent side of the building at the United States Patent and Trademark Office were on stage at the IPO Education Foundation PTO Day to discuss the current state of affairs at the USPTO and what to look forward to next year. The morning started off with Bob Stoll (Commissioner for Patents), Peggy Focarino (Deputy Commissioner for Patents) and John Owens (Chief Information Officer), sharing the stage to provide a year in review, as well as updates on patent operations and the IT infrastructure. The early morning patent session, which I attended, was moderated by Bill Smith, currently Of Counsel with Woodcock Washburn and himself a former member of the BPAI. Later in the day the head man himself arrived. The luncheon speaker was David Kappos, Under Secretary of Commerce for IP and Director of the USPTO.
All of these management officials seems quite open, very straight forward and created news. For example, at lunch Director Kappos explained that the goal for fiscal year 2010, which ended on September 30, 2010, was to get the backlog down to 699,000 — dubbed “project 699.” The Office was not successful, but Kappos says they will get well below 700,000 for fiscal year 2011, perhaps as low as a backlog of 650,000. Kappos’ immediate follow-up: “I say that as Commissioner Stoll starts to choke at me saying that.” Indeed, there are ambitious goals at the USPTO for FY 2011, including a move to unity of invention.
President Obama in the East Room of the White House. All smiles to start the ceremony. 11-17-2010
Earlier this evening President Barack Obama awarded National Medals to 16 distinguished scientists and engineers in a ceremony in the East Room of the White House. I was in attendance as a member of the press, which was an extraordinary experience. I will write about my behind the scenes look at what I experienced in the days to come, and tomorrow we will have complete coverage of President Obama’s remarks at the ceremony.
I probably broke all kinds of press rules by clapping throughout the ceremony. I probably should have remained stoic, but the men and women who were on the stage with President Obama are the true rock stars of our industry and I just could not bring myself to do anything other than applaud them for their achievements.
On Tuesday, November 9, 2010, CONNECT, a nonprofit organization dedicated to creating and sustaining the growth of innovative technology and life science businesses in San Diego, held a public policy forum to discuss the United States Patent and Trademark Office’s proposed Three Track Examination process. Two distinguished speakers participated in the program: (1) Robert Stoll, Commissioner for Patents at the USPTO; (2) Nicholas Godici, a former Commissioner for Patents and former Acting Director of the USPTO, as well as a Special Advisor to Commerce Secretary Gary Locke, who is currently an Executive Advisor with Birch Stewart, Kolasch & Birch, LLP. According to Godici, who spoke with me after the event, the patent community needs to pay attention because Three Track is going to happen. This isn’t a rules package that will languish and never reappear.
John Calvert, Administrator of the Inventors Assistance Program at the USPTO, teaching claim drafting
On Thursday and Friday, November 4-5, 2010, the United States Patent and Trademark Office held its annual Independent Inventors Conference. This marked the 15th time the USPTO has held the conference and it was once again an extremely successful event. A well deserved tip of the hat goes to John Calvert (pictured left) who is the Administrator of the Inventors Assistance Program at the USPTO, and Cathie Kirik (who assists John with Inventors Assistance). Both John and Cathie work tirelessly on behalf of inventors every day and together make sure the program is successful year in and year out.
USPTO Director David Kappos speaks at Inventors Conference Luncheon, November 2009
The United States Patent and Trademark Office and co-sponsor the National Inventors Hall of Fame will host the 15th Annual Independent Inventors Conference. The Independent Inventors Conference provides an opportunity to learn about patents, trademarks and gather tips from experienced inventors and industry experts. The conference will be held November 4-5, 2010 in Alexandria, VA, at the USPTO campus. A pre-conference workshop will be held on November 3, 2010 from 5 p.m. – 7 p.m., and is included with registration for anyone interested in learning patent basics and how they protect inventions. This workshop is for beginners and is a good foundation for the conference if you are new to the area of inventing or patent law. Breakout sessions that will be held over the two day conference include discussion of patents, patent searching, claim drafting, trademarks, trademark searching, obviousness and tips for seasoned inventors.
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. The treatise is continuously updated to address relevant Federal Circuit and Supreme Court decision impacting patent drafting.
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