On Monday the Intellectual Property Owners Education Foundation held its popular annual event simply titled PTO Day, which started early in the morning and ran throughout the day. PTO Day is, however, not the only event on the IPO calendar for December. After the close of the conference proceedings and as afternoon turns to evening a who’s who of the patent and innovation communities don black-ties (for the men) and elegant gowns (for the ladies).
One of the highlights of the year in such circles is the awarding of the National Inventor of the Year Award at a dinner ceremony in Washington, DC. This year the Awards Ceremony was hosted at the old Patent Office building, which today houses the Smithsonian American Art Museum and the National Portrait Gallery. If you have never been to this venue it is, in my opinion, one of the finest venues in all of Washington, DC for such an event. Of course, the fact that it was a first class, extraordinarily well done event only added to the evening. The meal was a fabulous shrimp appetizer, followed by filet mignon and an incredibly rich chocolate cake and ice cream for desert. The wine flowed throughout the evening, and everyone had a great time.
On Sunday, September 30, 2012, Timothy Lee of Ars Technica wrote a terribly researched and demonstrably erroneous article attacking the Federal Circuit titled How a rogue appeals court wrecked the patent system. The article is a cheap shot, factually inaccurate and just plain embarrassing. Lee concludes the Federal Circuit is at the heart of all problems in the patent system, which is, itself, simply not true. Of course, conclusions are not evidence and if he could have backed up what he was saying with any kind of factual, true information then it would have been a matter of opinion. Instead, he was wrong about pretty much everything he wrote.
If most reporters knew anything about patents they would be embarrassed to have their names professionally associated with the drivel they try and pass off as news. But media ignorance of patents specifically and intellectual property generally is nothing new. Errors are so easy to document that it is virtually impossible to take them seriously. But then every once in a while an article crosses the line even for a know-nothing anti-patent zealot masquerading as a journalist.
Indeed, few articles have struck a nerve in me quite the way that a recent Ars Technica article did. The article is titled How a rogue appeals court wrecked the patent system. It is a cheap shot, factually inaccurate and embarrassingly incorrect “news” story that concludes the Federal Circuit is at the heart of all the problems in the patent system. A real Pinocchio tale.
How did the media get to such a low place, where sensationalism means more than truth? Once upon a time the media was viewed as a bastion of truth and integrity. They were viewed by the Founding Fathers as the virtual fourth branch of government. A free media would offer checks and balances against the three co-equal branches of the federal government, and by keeping the people informed would keep government in check. Oh how the mighty have fallen. There is hardly any such thing any more as a fair and objective media outlet. Simply put, truth doesn’t matter to the media. That which passes for news is full of errors, inaccuracies and outright lies. The public is being deceived, and in our little space the deception seems to be part of a coordinated effort to destroy the patent system as we know it.
It is that time of the year where we all start to look ahead to the new year, perhaps making some New Year resolutions that are sure to last for at least a few days. Over the past several years I write an article titled “Patent Wishes,” and two years ago I contacted a number of my industry contacts to ask them what they wish for moving into the New Year. See Industry Insiders Make Patent Wishes for 2010.
With that in mind I once again contacted some of my friends to get them to go on the record with their patent and innovation related wishes for 2012. I was lucky enough to get a number of very thoughtful responses from individuals with a variety of experiences.
So without further ado, here are the wishes of some industry insiders for 2012. Please feel free to add your own wishes to the comments, and stay tuned for my annual Patent Wishes article where I write about my own wishes for the year ahead.
As you may have seen, IPWatchdog.com has been named to the ABA Blawg 100, which recognizes the top 100 blogs on the Internet written by lawyers for lawyers. This marks the third year in a row we have been honored by the American Bar Association Journal as a top 100 blog.
Now the voting begins. Last year we were voted the top IP Law blog and greatly appreciate the support we received. Once again this year we are in the same category — IP Law — as is Professor Dennis Crouch’s widely popular PatentlyO blog. If you are inclined to vote for us we would once again greatly appreciate your support.
Over the years IPWatchdog.com has continued to try and add additional perspectives from a wide variety of guest contributors, ranging from well respected practicing attorneys and agents to high profile academics to inventors and pro-patent lobbyists. It is hard to imagine providing such depth of analysis on such an array of topics without having truly wonderful guest authors. So we take this moment to say a very special thank you and to shine the spotlight on them. Each deserve to share in any recognition of IPWatchdog.com. While I am loathe to single any guests out I would be remiss if I didn’t separately thank both Beth Hutchens (10 contributions) and Eric Guttag (9 contributions)!
Without further ado, here are the guest contributors in alphabetical order, along with their contributions for 2011.
The vast number of America’s companies that need patents to prosper and grow should fear the post-grant provisions for challenging patents in H.R. 1249, the patent reform bill passed last month by the House of Representatives. In a system already plagued by delays in granting patents, they threaten to delay courts from enforcing patents once finally granted. This threat has received little attention, perhaps because advocates of the bill promise promptness that they cannot deliver.
Advocates’ promise of completion in one year rings hollow for several reasons. First, the one-year deadline does not count the year, on average, that the inevitable appeal will take. Second, the deadline is extendable to 18 months and, in any event, not enforceable. Third, the one year does not count the petition stage before the proceeding begins. That adds at least another 5 months—two months for the patent owner’s response plus three months, again unenforceable, for the patent office to decide whether the challenger’s petition warrants initiating such a proceeding. So, total elapsed time usually will be not one, but almost three years.
Pat Choate and Hank Nothhaft, at the Met Club, June 14, 2011.
I was lucky enough to receive a review copy of Great Again several months before it became available. I have also had the pleasure of getting to know Hank Nothhaft and his co-author David Kline over the past year or so, frequently exchanging e-mails discussing a variety of innovation and patent related issues. It has been exceptionally difficult to keep quiet knowing what Hank and David were writing about, and then reading the nearly finished manuscript. Simply put, everyone in the innovation industry and patent community needs to read Great Again. Every Staffer on Capitol Hill and everyone working in the White House needs to read Great Again. While Members of Congress are no doubt busy with a great many things, they too should read Great Again, but at the very least Members of Congress and those in the Executive Branch, including President Obama, should at a minimum read the Introduction, which is just 12 pages long.
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.
Earlier today Chief Judge Paul Michel (ret.) of the United States Court of Appeals for the Federal Circuit testified before the Subcommittee on Intellectual Property, Competition and the Internet, a subcommittee of the House Committee on the Judiciary. The House IP Committee held the hearing titled “Crossing the Finish Line on Patent Reform: What Can and Should be Done?”
Substantively, Chief Judge Michel also explained that “[t]he PTO desperately and immediately needs: several thousand additional examiners, dozens of additional board of appeals members, and major modernization of its IT systems, which are antiquated, inadequate and unreliable.” The funds for additional hiring and improved IT systems would come from the Patent Office being allowed to set its user fees and keep the fees it collects. Greater resources are necessary, Chief Judge Michel explained, because of the extraordinary increase in the size and complexity of patent applications over the last two decades, which makes the 20 hours on average provided to patent examiners wholly inadequate.
It is admittedly hard to get worked up about the prospects of patent reform given that over the last 5 to 6 years we have be variously told that it was only a matter of time, a done deal, imminent and/or guaranteed. Of course, patent reform hasn’t happened; legislative efforts have simply been unable to cross the finish line.
Notwithstanding, Congress is at it once again, with the Senate Judiciary Committee reporting out a bill last week that remarkably resembles the bill that has been unable to gain any traction in the Senate for the last several years. That would suggest that the same fate is in store for this legislation. Not so fast! I have a suspicion that this year things are different and that we really could be on the cusp of patent reform. Whether that is for better or for worse will largely be in the eye of the beholder, but what is emerging feels different and I think we are closer to change, and perhaps an end to fee diversion, than we have been at any point over the last 6 years.
Manus Cooney (American Continental Group) discusses job creation with the panel, Chief Judge Michel looks on.
On Friday, January 21, 2011, I was at the Newseum for the Innovation Alliance conference on patents, innovation and job creation. The turn out was spectacular. Of course there were the usual suspects, but also in attendance were a number of Congressional Staffers and a good contingent of reporters. No doubt the location, only blocks away from the Capitol, facilitated the attendance of many.
I had the privilege of moderating the first panel on how patented innovations create jobs and economic growth. On the panel were Lisa Kuuttilla, President & CEO of STC.UNM at the University of New Mexico, Harry Leonhardt, Vice President & Deputy General Counsel for Amylin Pharmaceuticals, Inc., and John Swart, President of Exemplar Genetics, a small Iowa-based biotechnology company. The panel discussion ran the spectrum from Kuuttilla, who is responsible for getting University based research licensed and into the hands of start-up companies, to Swart who’s company is only three years old, has raised $6 million from investors and licenses University technologies, to Leonhardt who described Amylin as being in virtually the same position as Exemplar Genetics 20+ years ago.
Inventive Step is reporting that President Obama has renominated Edward C. DuMont and Jimmie Reyna to serve on the United States Court of Appeals for the Federal Circuit. Oddly, the press release announcing the renomination of DuMont and Reyna, along with the renomination of 40 others, is not available from WhiteHouse.gov. On January 5, 2011, President Obama forwarded numerous nominations to the Senate, but the press release naming the 42 judges isn’t available. The only place where I could find a copy of the press release, which was apparently sent to some journalists and just not published otherwise, is here.
In any event, President Obama nominated both DuMont and Reyna in 2010. DuMont was nominated in April to take the position opened by the retirement of Chief Judge Michel and Reyna was nominated in September to take the position opened by Judge Mayer’s decision to take senior status. Neither individual had a hearing in the Senate Judiciary Committee, a prerequisite to an up or down vote by the full Senate. Perhaps the Senate Judiciary Committee will take swifter action on these nominations in 2011, but even if they do there is no guarantee that the Senate will have an up or down vote.
It has been an interesting year for us at IPWatchdog.com, from getting sued in January 2010, to exclusive interviews with the likes of Chief Judge Randall Rader, Chief Judge Paul Michel, Former U.S. Senator Birch Bayh, USPTO Director David Kappos and former USPTO Directors Todd Dickinson and Nick Godici and others, we have stayed busy. We have put more emphasis this year on reporting live from industry news events, such as from the BIO 2010 International Convention and the AIPLA Annual Meeting. Of course, the familiar opinion commentary that I so love to write has also been a mainstay.
The big news for us is just coming in as of today. I am pleased to announce that IPWatchdog.com was selected by the readers of the ABA Journal as their favorite IP Law blog for 2010. See ABA Journal Blawg 100 IP Law category for 2010. I am also pleased to announce that for 2010 we had over 2,000,000 visits, delivered nearly 11.8 million pages, our homepage was viewed 3.06 million times and we averaged over 67,000 unique monthly visitors! Thanks to all our readers for coming back day after day, and thanks to all of our Guest Contributors!
At this time of the year all typically sit back and reflect on the year that has been, spend time with family and friends, watch some football and set a course to follow into the new year. It is also that time of the year where we are inundated with lists, top 10 this, top 10 that, it gets rather mind numbing after a while. So with that in mind — I have my own top 10 list. I know, I know, but they are so much fun to put together and there is something useful about looking back and reflecting that helps put things into perspective.
Without further ado, here are the top 10 events that shaped the patent, innovation and intellectual property industry during 2010 — at least according to me, and with a heavy patent emphasis. What did you expect?
I am pleased to announce that the Editors of the ABA Journal yesterday announced they have selected IPWatchdog.com as one of the top 100 best law blogs by lawyers, for lawyers. Now readers are being asked to vote on their favorites in each of the 4th Annual Blawg 100’s 12 categories. IPWatchdog.com is in the “IP Law” category. To vote, please visit The 2010 ABA Journal Blawg 100. You do need to register to be able to vote, but registration is free (and they don’t seem to send any unsolicited e-mails, which is nice). If you are already registered all you have to do is sign in and vote. Voting ends at close of business on December 30, 2010.
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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