Posts Tagged: "independent inventors"

The Framework rolled out by Congress last week to fix Section 101 law in the United States will not improve the current 101 disaster. It codifies current exceptions and even adds an entirely new exception specifically intended to protect big tech monopolies. Congress is pitifully unserious about restoring our innovation engine. For more than 200 years, the U.S. patent system was the primary engine propelling the United States to lead the world in virtually every new technology. But over the last 15 years, activists in Congress, the courts and the administration pulverized this engine to benefit a few huge multinationals in exchange for political donations and favors. Today, the patent system is a complete failure causing technologies critical to our economy, job creation, global technological lead, and national security to flee the U.S. and go to China. In a brutal political irony, the Communist Chinese have a better property rights system than we do here in the U.S.

There really is no one-size-fits-all approach entrepreneurs and business executives can follow, and there is no roadmap to success that will work in all cases. That doesn’t mean there aren’t a number of things that can and should be understood, appreciated, and truly internalized if you are going to pursue any kind of economic engagement as more than a hobby, or to do more than merely punch a clock for a paycheck every other week. This is not to say that there isn’t anything wrong with making a few extra dollars as the result of a hobby, or being happy where you are, doing your job and then punching out at 5 o’clock. But if you want more, if you have hopes and dreams of building something from the ground up that is your own and will become your business, or climbing the corporate ladder to become a C-suite executive, you need to treat each business endeavor with an entrepreneurial mindset from the earliest stages. If you don’t, it will create all the wrong habits, and worse, it will create the wrong mindset. A mindset is a very difficult thing to change, and patterns become easy, comfortable and difficult to break.

On April 10, inventor Gilbert Hyatt and the American Association for Equitable Treatment (AAET) filed a petition for writ of certiorari with the U.S. Supreme Court asking the Court to review a Federal Circuit case that struck down an Administrative Procedures Act (APA) claim brought by the petitioners. If the Supreme Court grants certiorari, they will determine whether a section of the U.S. Patent and Trademark Office’s (USPTO) Manual of Patent Examining Procedure (MPEP) authorizing examiners to reopen patent prosecution and block a patent applicant’s appeal after a second rejection violates that patent applicant’s statutory right of appeal under the Patent Act. The particular section of patent examination procedure at issue in this appeal is MPEP § 1207.04, titled Reopening of Prosecution After Appeal. This section was adopted by the USPTO in August 2005. Prior to this, patent examiners could propose reopening prosecution to patent applicants who had appealed a decision after a second rejection and patent applicants were free to disregard this proposal. In Gil Hyatt’s case, Section 1207.04 was used by patent examiners to force the reopening of prosecution, ending 80 appeals of examiner decisions to the Patent Trial and Appeal Board (PTAB).

You’re a patent prosecutor. You’ve just received an office action. The examiner has rejected your claims. You think the examiner got it wrong. On the technical issues, it looks like the examiner is off base, pointing out elements in the prior art that aren’t really there, and finding motivation based upon the flimsiest bases. Also troubling is that the examiner has based some of the rejections upon rules or precedent that you think are incorrect, both on their face and as applied to your claims. So, it’s time to prepare an office action response. Hopefully this will change the examiner’s mind and will allow your client to receive a patent. Your response may include some preliminary matters, perhaps some claim amendments and recitation of the prosecution history, and the status of various claims. Then you come to the arguments. You want to argue with the examiner’s decisions, to be sure, but that does not mean that you want to be disagreeable. Your job as an advocate is to help the examiner understand your client’s position. There are numerous techniques you can apply in order to argue your case in a more effective manner. Effective advocacy is not limited to legal documents filed in court or an administrative appeal. Even when you are arguing to an examiner, your arguments can be made more effective by the manner in which those arguments are presented.

Yesterday, members of congress announced in a press release a proposed framework to fix patent eligibility law in the United States.Reactions to the framework were mixed. While many are delighted that the issue seems to be getting real attention on Capitol Hill, others are skeptical of some of the proposals. For example, Russ Slifer, former Deputy Director of the United States Patent and Trademark Office (USPTO), described the framework as “a big swing and a miss.” Having attended the meeting on the Hill yesterday in which the framework was released and discussed prior to being circulated to the public, Todd Dickinson of Polsinelli, and the former USPTO Director, said that he can understand how those seeing the proposal without having taken part in the dialogue might be alarmed. “There are still some big questions to answer, but I left the meeting encouraged by the momentum,” Dickinson told IPWatchdog. The discussion, which he described as decidedly “more lawyerly” than previous meetings on the topic, included staffers for both the House and Senate, and from both political parties, which “is a good sign that there is a continued intention to do something,” he said.

Earlier this week we reported on Lori Cheek, an independent inventor who is defending herself for the second time against accusations brought by Alfred Pirri, Jr. of fraud and misappropriation of trade secrets, among other claims, and who feels like the U.S. patent and legal systems have done her few favors thus far. Following publication of the article, Pirri’s lawyer, Steven Fairchild, sent a letter to IPWatchdog claiming that, since the previous suit was thrown out in pre-trial conference, before discovery or a decision on the merits, the “present suit will uncover the truth of what happened with Mr. Pirri’s invention.” Fairchild specifically points to notarized documents from 2006 that he claims prove Pirri invented the dating cards and their spin-off use for business, which Fairchild says Cheek copied in her other company, Networkd. As mentioned in the previous article, Cheek denies she has ever met Pirri’s therapist, Joanne Richards, whom Pirri claims told Cheek about his idea. She and Richards have signed sworn affidavits attesting to as much, and Cheek insists there is simply no way she could have come in contact with Richards.“Discovery will reveal the truth of the relationship between Ms. Richards and Ms. Cheek,” wrote Fairchild in his letter to IPWatchdog.

In one more example of ways the U.S. patent system can be stacked against the small inventor, we have the story of Lori Cheek, who more than ten years ago had an idea for a unique dating service that she dubbed Cheekd. In 2008, still just prior to the age when people existed via smartphone, the patent she applied for covered a card-based dating system. Cheek decided to leave her steady job as an architect to pursue the idea of a business centered around pre-printed dating cards featuring clever pick-up lines and held a brainstorming session with friends on February 22, 2008. On March 7, 2008, she registered the URL Youvebeencheekd.com (now cheekd.com) with GoDaddy, and officially founded her company, Cheekd, on April 20, 2009. She applied for a patent in 2010 and it was granted on September 24, 2013. A few years later was when the trouble started for Cheek, and today, she is embroiled in her second lawsuit over a patent on a business she is no longer pursuing, both brought by a man, Alfred Pirri, whose first suit was dismissed in pre-trial conference.

In their latest letter weighing in on intellectual property issues, Senators Thom Tillis and Chris Coons have expressed their concerns about the effects of “serial” inter partes review (IPR) petitions on the U.S. patent system.In March, the senators sent a letter to Karyn Temple, Register of Copyrights, to ask a series of questions about the Copyright Office’s ability to handle the likely impact of Fourth Estate Public Benefit Corp. v. Wall-Street.com, LLC. Today’s letter was addressed to USPTO Director Andrei Iancu and similarly asked Iancu to respond to a list of five pointed questions about the Office’s willingness to take action on serial IP challenges.

On the afternoon of Wednesday, April 3, the Senate Committee on the Judiciary’s Subcommittee on Intellectual Property held a hearing titled Trailblazers and Lost Einsteins: Women Inventors and the Future of American Innovation. The day’s discussion on the U.S. Patent and Trademark’s recent report on gender disparity in patenting rates covered much of the same ground as the House Intellectual Property Subcommittee’s hearing on the same topic from the previous week, although a new witness panel was able to provide some fresh perspective on the issues. However, there were arguably some instances where the witnesses either supported or acquiesced to policies that damage the patenting prospects for at least some female inventors.

Today, April 3, the Senate Subcommittee on Intellectual Property held a hearing titled Trailblazers and Lost Einsteins: Women Inventors and the Future of American Innovation—a topic that also was considered last Wednesday by the House Committee on the Judiciary’s Subcommittee on Courts, Intellectual Property, and the Internet in their first hearing of the term. The House hearing was titled, Lost Einsteins: Lack of Diversity in Patent Inventorship and the Impact on America’s Innovation Economy and, like today’s Senate hearing, focused on a recent report on female inventorship released by the U.S. Patent and Trademark Office (USPTO) and featured testimony on how to improve rates of female inventorship from a collection of women in fields having strong ties to the U.S. patent system. Susie Armstrong, Senior Vice President of Engineering for Qualcomm, Inc., said that, for companies like hers that were trying to take the lead in 5G mobile networks and other areas of innovation, more great tech minds from underrepresented communities were needed. An inventor herself who helped create single packet data communications that allowed cell phones to access the Internet for the first time, Armstrong said that Qualcomm had produced educational initiatives like the Thinkabit Lab, which partners with school districts and libraries to encourage students to innovate in the Internet of Things (IoT) sector.

There is little doubt that the way intellectual property is viewed and protected has transformed over the last 12 years, at least in the eyes of those who strategically appreciate both the importance and limitations of rights available today. Once upon a time, corporations would seek to patent as much innovation as possible, working to obtain gargantuan patent portfolios. These gargantuan patent portfolios often provided protection in numbers, and not necessarily in quality. But with the Supreme Court becoming more interested in patents since 2007, and with decisions in KSR, Bilski, Myriad, Mayo and Alice, many of these gigantic portfolios were reduced to rubble. There were several very large technology companies that led the charge both in the courts and on Capitol Hill to change U.S. patent laws in a way that many believed would weaken patent rights and ultimately the patent grant itself. These companies enjoyed tremendous success, and today, U.S. patent laws simply do not look anything like they did a mere 12 years ago. This became indisputably clear last year when the U.S. Supreme Court decided Oil States and said that a patent is merely a government franchise, which shocked many observers.

Apple made headlines with its recent decision to close its stores in Frisco and my home town of Plano, Texas. The rumor is that Apple was afraid of the dreaded “patent troll.” However, Apple is not afraid of patent trolls. They are afraid of inventors. Whenever you hear the term patent troll, think of inventors. Inventors like my friend Bob Short, who solved an important technical problem in 1998 with his invention—a protocol that encrypts real-time audio and video transmissions. Apple wanted his technology for their FaceTime app, so they took it. Bob’s company, VirnetX, has spent six years trying to stop them and make them pay. Meanwhile Apple, Google, and other tech titans have spread propaganda and paid lawyers, academics, lobbyists, and politicians to destroy the U.S. patent system.

Since the 2014 Supreme Court decision in Alice v. CLS Bank International, patent claims including software have faced a much higher barrier for receiving patents than any other field of invention. This has also infected specialized software, such as artificial intelligence (AI), which is both distressing and sad. It also explains why Chinese AI start-ups are receiving more funding than U.S. AI start-ups, a fact that should be sending a shockwave through Capitol Hill. Since Alice, patent examiners have presumptively classified software claims that can be implemented on a general computer as covering nothing more than an abstract idea, which means they are ineligible subject matter under 35 U.S.C. § 101. To overcome this rejection, applicants must show why their claimed invention is something more than just a mere abstract idea.  Ironically, what constitutes something more is itself an abstract idea, and even what is an abstract idea is itself an abstract idea. In something straight from out of the Monty Python version of patent eligibility, these key terms – something more and abstract idea – have not been defined by the Supreme Court or the Federal Circuit. As a result, most applications with software are routinely denied, which is understandable when frontline decision makers (i.e., patent examiners) are left without objective guidance. Subjectivity prevails.

USPTO Director Andrei Iancu participated in a fireside chat, titled “The Crossroads of Technology and Innovation,” hosted by the Consumer Technology Association (CTA) at its sixth annual Innovation Policy Day on Tuesday, March 12 at SXSW in Austin, Texas. Sitting with Director Iancu was host Michael Hayes, Sr. Manager of Government Affairs for the CTA. The chat was quite short and briefly touched on topics such as celebrating the 10 millionth-issued patent, the preparedness of the patent system for the future, artificial intelligence and patent eligibility, and the availability of patenting for all peoples. Then, in what some may consider to be an unscrupulous move, Hayes introduced the narrative of patent trolls.

Representative Steve Stivers (R-OH) and Representative Bill Foster (D-IL) introduced the Support Technology & Research for Our Nation’s Growth and Economic Resilience (STRONGER) Patents Act, which would in part restore injunctive relief as a remedy for patent infringement, in the U.S. House of Representatives in March of last year. While there has been much talk about closed-door discussions taking place on Capitol Hill recently around fixing Section 101 law, the House has not yet re-introduced the STRONGER Patents Act, and has thus far been focused on other issues this term. But Rep. Stivers seems confident that the Act has a chance this term, and says that this could be the consensus legislation the House needs. Read below for more on Rep. Stivers’ thoughts about patent reform in the 116th Congress, where the America Invents Act went wrong, and how we ensure the U.S. patent system is restored to number one.