Posts Tagged: "Gene Quinn"

United States Court of Appeals for the Federal Circuit issued a decision in one of the patentable subject matter cases that was returned to the Court by the Supreme Court in the wake of the Supreme Court’s decision in Bilski v. Kappos. On remand, once again, the Federal Circuit held (per Judge Lourie with Judge Rader and Judge Bryson) that Prometheus’s asserted method claims are drawn to statutory subject matter, reversing for the second time the district court’s grant of summary judgment of invalidity under § 101.

United States Supreme Court issued a non-decision in the matter of Costco Wholesale Corporation v. Omega, S.A. The Per Curiam decision simply read: “The judgment is affirmed by an equally divided Court. Justice Kagan took no part in the consideration or decision of this case.” Unfortunately, this non-decision could well signal the beginning of the end for the first sale doctrine given that goods manufactured and sold outside the United States can apparently be controlled downstream by the copyright owner without the copyright owner having exhausted rights through the sale.

During fiscal year 2009, 596 new companies were formed as a result of university research, which is one more than the 595 formed in 2008 and 41 more than the 555 formed in 2007. The increase, while modest, does come despite a downturn in the U.S. and global economy, proving that even during a down economy good technology and innovation can and does create jobs. The AUTM survey also shows that invention disclosures continue to rise, patent applications are up, and during fiscal year 2009 there was a surprisingly high increase in foreign filings over fiscal year 2008.

Commerce Secretary Gary Locke announced that the first Regional Patent Office would be located in Detroit, Michigan and will open at some point during 2011, employing some 100 patent examiners with some additional support staff. Locke explained that as a part of the nationwide workforce initiative of the Obama Administration high paying jobs would be coming to the USPTO Detroit Satellite Office. Locke said that while 100 patent examiners is an appropriate level of staffing initially that number could expand over time if the Regional Patent Office model proves successful. Secretary Locke also explained that the Detroit Satellite Patent Office will be “the first of several Patent Offices we hope to establish around the country.” When pressed during the question and answer phase of the call, Secretary Locke said that perhaps two additional Satellite Patent Offices might open “within the year after Detroit.”

Contrary to the FDA, the European Medicines Agency confirmed that the benefits of Avastin® in combination with paclitaxel outweigh the risks, further determining that the combination of Avastin® and paclitaxel remains a valuable treatment option for patients suffering from metastatic breast cancer. If the FDA is successful in removing the breast cancer indication from Avastin® Genentech (a member of the Roche Group and the maker of Avastin®) could lose $1 billion of its $6 billion in annual sales of Avastin® due to the lost sales associated with use to treat breast cancer.

There are a number of things that you need to know about the invention and patent process that can help you focus your efforts and know what obstacles lay in front of you. Once you conceive (idea + game plan) you will need to be diligent and not let any grass grow under your feet as you move forward toward defining and experimenting with your invention. Generally speaking, conception without diligence can cause the first person who invents to lose the right to the invention assuming someone else invents after you but files their patent application first. So, the moral of the story is once you have your idea and the game plan move swiftly. The law realizes that so-called “garage inventors” cannot quit their day job, but the law will also require proof that you are consistently moving forward and not shelving the invention for periods of time in favor of other endeavors.

What we need to focus on are those that are taking from the patent system without returning anything to the patent system. Rather than call these groups patent trolls, I would much rather call them what they really are — innovation vampires. These innovation vampires grab hold of as many patents as they sink their teeth into a company and begin to suck the life right out by holding the company, and often times the entire industry, hostage. No tax policy could ever do as much damage to an economy. This massive redistribution of wealth without an iota of benefit to society must stop!

If the remainder of her decision is any evidence as to what she was thinking, it seems pretty clear to me that if she were forced to have addressed that issue she would have said that as a result of Twombly and Iqbal the model patent infringement complaint no longer satisfies the requirements of Federal Rule of Civil Procedure 8. She also found unpersuasive the argument that since Twombly and Iqbal are not patent infringement cases they offer no appropriate guidance or insight.

The Intellectual Property Committee of the Dade County Bar Association had grown weary of the typical attorney cocktail reception thrown to raise money for a good cause, so the Committee devised The Patently Impossible Project, which was a charity race to assemble a patented invention based only on patent provided, various parts and tools. The patent selected was US Design Patent No. D366,908, simply titled Toy Catapult. The event was staged on Friday, December 3, 2010, at the Miami Science Museum, with proceeds going to The Legal Aid Society, which is the oldest legal services provider for the indigent in Miami-Dade County.

Today marks the 30th Anniversary of the most forward thinking patent legislation since Thomas Jefferson wrote the Patent Act in 1790, which was the third Act of Congress. Truthfully, the Bayh-Dole legislation is likely more forward thinking and inspired than even Jefferson’s work, given that the patent law written by Jefferson was merely an attempt to codify and improve upon the patent regime of Great Britain. The Bayh-Dole Act, which was enacted on December 12, 1980, has lead to the creation of 7,000 new businesses based on the research conducted at U.S. universities. As a direct result of the passage of Bayh-Dole countless technologies have been developed, including life saving cures and treatments for a variety of diseases and afflictions.

Article One Partners announced yesterday that patents held by NTP Incorporated are the focus of three new requests for research, which Article One Partners refers to as Patent Studies. NTP was made famous for its litigation against BlackBerry maker Research-in-Motion (RIM) that resulted in a settlement north of $600 million. New litigation by NTP has expanded the assertion of patent infringement to other top players in the mobile and smartphone industry, which is prompting Article One Partners to engage their global community of researchers by challenging them to identify evidence predating the patents in question and which can be used to invalidate one or more of the patent claims owned by NTP.

Yesterday Director Kappos deviated a bit from his routine and utilized a powerpoint presentation, which was titled: “The USPTO by the Numbers: Progress and Reform at Our Nation’s Innovation Agency.” While some of the slides tell what appears to be a remarkable turn around story, the real news to come out of Director Kappos’ presentation is that he is challenging the Patent Office to get down to a patent application backlog of 650,000 by the end of fiscal year 2011. To paraphrase Sam Cooke: what a wonderful world it would be!

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.

Two months ago I wrote about one of my favorite patents — The Animal Toy — which is U.S. Patent No. 6,360,693. See Patent on a Stick: Learning from the Animal Toy Patent. Shortly after writing that article, which was not intended to poke fun at the Patent Office but to merely teach a point relative to claim drafting, I received an e-mail from Stephen Kunin, who is a partner at Oblon Spivak, LLP. Steve wrote to me indicating that this patent was reexamined by the Patent Office and none of the claims exited reexamination. This in and of itself may not be very odd, but something didn’t seem quite right.