Yeseterday I wrote an article titled Obama to Fund Entrepreneurs in Latin America.  In this article I discussed President Obama’s remarks while at the Summitt of the Americas, particularly picking up on his pledge to send $448 million dollars to foreign countries impacted by the economic crisis, and a plan to create a fund to restart the lending to businesses and entrepreneurs in Latin and South America.  According to Bloomberg.com, the US would pledge $100 million to the so-called Microfinance Growth Fund.  The news of this US funded program to assist entrepreneurs in Latin and South America comes just days before the Wall Street Journal reported earlier today that lending at the biggest U.S. banks has fallen more sharply than realized.  It seems that despite government efforts to pump billions of dollars into the financial sector, lending at U.S. banks, including those receiving TARP funds, continues to decline month after month.  What this means is that the credit crunch is not only not getting better, it is getting worse.  Now is not the time to spend any taxpayer funds on entrepreneurs in Latin America and South America.  If money exists to create an Entrepreneurship Growth Fund, then that fund should be started in the United States and aid inventors and entrepreneurs in the United States. 

Sometimes I wonder if I am dreaming.  Virtually all of us have been affected by the economic crisis that has gripped the world, so no one can really claim to be uniquely impacted above and beyond others, although to each their own circumstance no doubt feels unique.  There are tried and true solutions that historically have lead to economic growth and prosperity, so the fact that our leaders seem more interested in pursuing strategies that would be first time successes even if they do work, because there is no historical evidence to suggest that spending more, printing money and increasing the size of government will do anything other than make things worse.  You cannot borrow and spend your way out of debt.  It was Daniel Hannan, a previously unknown member of the European Union Parliament, who best summed this up in a YouTube clip that has been viewed more than 2.2 million times.  Yet we continue to borrow and spend, and now U.S. taxpayers are being asked to give away $448 million to other countries to help citizens of those countries hit by the economic downturn, including $100 million for small business and entrepreneurs in Latin America, according to Bloomberg.com.  Mr. Obama, if you want to assist small business and entrepreneurs there are plenty here in the United States that could use a helping hand.  And, by the way, the best thing you could do would be to come up with a national technology policy to foster innovation and entrepreneurship in the U.S., and you can start with fixing the United States Patent and Trademark Office!

Yesterday as I was watching news coverage of the thousands of tea parties that occurred all across America one particular sign caught my attention.  It was a poster of Ronald Reagan in a style reminiscent of the now famous Barack Obama poster created by Shepard Fairey.  You may recall that Fairey created a popular print made famous through the 2008 Presidential Campaign, which the Associated Press claims was an unauthorized copy of an AP photograph of then candidate Obama.  The Associated Press came forward with a statement explaining that it believed Fairey’s work was an infringement upon its copyright in the photograph, and then days later in a strange move Fairey sued the Associated Press for a declaration that he did not infringe the copyright in the photograph and that his use was a fair use. 

For some time now I have been writing about how a patent stimulus plan would revitalize the economy, but I am all fired up today after a flurry of comments and e-mail exchanges regarding some of my recent blog articles. It is way past time to rethink the patent application process and how patent prosecution is carried out by patent examiners.  I know I am starting to sound like a broken record, a dog with a bone, or perhaps even the patent equivalent of Sean Hannity, harping on the same things over and over and over again, but it is necessary at times to get your message heard unfortunately.  In any event, call me whatever you want, but the reality is that unless and until the Patent Office actually starts granting patents in a technologically relevant time frame there is little or no chance that innovation will lead to the growth that can and historically has pulled us out of troubled economic times.  There is simply no benefit applying for a patent on a high-tech, cutting edge solution when that application likely will remain pending for at least 3 years, and more likely 4, 5 or 6 years.  That is not a technologically relevant time frame.  A technologically relevant time frame means a patent must issue before the invention is obsolete!

Just the other day Arstechnica.com ran an article discussing the fact that Red Hat is succeeding despite the recession. It seems that the global economic chaos is forcing an increasing number of companies to search for ways to reduce IT costs, which means that more and more companies are turning to open source solutions in order to get away from having to pay for proprietary software solutions. It is difficult, if not completely impossible, to argue the fact that open source software solutions can reduce costs when compared with proprietary software solutions, so I can completely understand why companies and governments who are cash starved would at least consider making a switch, and who can fault them for actually making the switch. The question I have is whether this is in the long term best interest of the computing/software industry. What is happening is that open source solutions are forcing down pricing and the race to zero is on. As zero is approached, however, less and less money will be available to be made, proprietary software giants will long since gone belly-up and leading open source companies, such as Red Hat, will not be able to compete. It is quite possible that the open source movement will ultimately result in a collapse of the industry, and that would not be a good thing.

On July 28, 1987, President Ronald Reagan set forth what became known as the “11-point superconductivity initiative” in a speech to the Federal Conference on Commercial Applications of Superconductivity.  As a part of President Reagan’s superconductivity initiative he proposed amendments to the antitrust laws to make it easier for companies to collaborate with respect to basic research, he requested changes to the Freedom of Information Act to allow national laboratories to keep basic scientific research secret and he required the United States Patent Office to proceed with all due speed on applications relating to superconductivity technologies.  In this speech President Reagan explained: “We need to strengthen patent laws to increase protection for manufacturing processes and speed up the patent process so that it can keep pace with the fast-paced world of high technology.”  This caused the US Patent Office to allow Petitions to Make Special to be filed along with applications relating to superconductivity inventions so as to accelerate the examination process.  See MPEP 708.02.  This is exactly what we need to do today for green technologies.  While I am not foolish enough to suspect much of Reagan’s agenda will be adopted by President Obama, this is one lesson President Obama should learn from.  Expediting patent applications on green innovations will help the economy, make the world more environmentally friendly and improve US national security.

On Monday I wrote about how Senator Arlen Specter (R-PA) was opposed to the pending patent reform legislation and how there was going to be an Executive Meeting of the Judiciary Committee this morning at 10:00 am to discuss some pending nominations before the committee and the patent reform legislation supported by Senator Patrick Leahy (D-VT) and Senator Orin Hatch (R-UT).  To use the words of Lee Corso of ESPN College Football fame – Not so fast my friend!  After originally announcing that the meeting would begin at 10:00 am, Senator Leahy decided the next day that the meeting would begin at 9:30 am.  Not a major change I suppose, but if you were like me and planning to tune into the live webcast of the meeting at 10:00 am you, and I, were surprised to learn that the meeting time had changed. 

On March 2, 2009, the Practising Law Institute kicked off the Third Annual Patent Law Institute at its New York City headquarters.  The West Coast version of this live program started today and will conclude tomorrow, live at the California offices of PLI in downtown San Francisco, CA.  Right about now the participants are probably seeing a video of Robert Clarke, the Director of the Office of Legal Administration at the United States Patent & Trademark Office.  Clarke was to have attended live both the New York presentation and the California presentation of the Patent Law Institute, but because travel and appearances are being cut back PTO Officials such as Clarke are not able to participate in many, if any, remote events.  I encountered a similar situation while I was in Charlotte, North Carolina two weeks ago taping a 10-part mini-series sponsored by the United Inventors Association.  A PTO Official was to have participated in the two segments I taped on basic patent law and on avoiding scams, but due to budget problems no PTO representative was able to attend the taping, which took place at the Enventsys studio, where Everyday Edisons is shot and Inventor’s Digest calls home.

There is a lot of money sitting on the sidelines just waiting for the climate to change enough to warrant investment.  By some estimates the amount of capital lying in wait is perhaps as much as $10 trillion.  With no end in sight on just how low the Dow will fall, fears that banks will become nationalized have spooked investors.  No doubt the growing fears of hyper-inflation are also dragging down investor enthusiasm, and many are wondering how in the world the United States is ever going to be able to repay the growing mountain of debt we are accumulating for generations to come.  The only way that the Obama economic plan will make any sense is if there is extremely robust growth in the economy starting almost immediately.  Absent tremendous growth, what some call China-like growth, things are going to get far worse before they start to get better, and once they get better we will likely tip-toe our way through another recession caused by inflation before we come out on the other end.  It is hard to believe, but it does seem that we are poised to recreate the tumultuous economic times of the 1930′s all over again.  What we need to get us out of this nose-dive is a coherent plan to revitalize innovation.  Through a comprehensive innovation based plan we can grow the next generation of technologies and plant the seeds for prolonged economic growth with new industries playing a vital role in creating jobs and charting the course for a better future.  This coherent and comprehensive plan for innovation must start with a system wide revamping of the United States Patent and Trademark Office.

As scary as it is, it is becoming harder and harder to believe anything other than that we are in another period of depression, call it the Great Depression II.  The Dow Jones industrial average closed today at 6,763.29, which marks the lowest close of the Dow since April 25, 1997.  It also means that we are now 52.4% off the high of 14,279.96 on Oct. 11, 2007.  It is also an undeniable historical truth that on September 3, 1929, the Dow hit a high mark of 381.17. And over a similar length of time, it fell 54.7% to 172.36 on January 2, 1931.  See Dow Jones decline rate mimics Great Depression.  So we are one more AIG bailout away from the 54.7% decline in the Dow experienced during the Great Depression.  Oh, wait, we just had another AIG bailout, which is what the talking heads and economic pundits seem to think caused the 300 point drop in the Dow today.  I am sure the AIG bailout didn’t help, but let my hypothesize that the real reason the Dow was down 300 points today was because I wrote last night that patent reform legislation was imminent.

Earlier today more than 130 US manufacturing companies sent a joint letter to President Obama detailing their serious concerns about the economic impact that enactment of patent reform legislation would have on the US economy should such reform look anything like what was proposed during the 110th Congress last year. The letter sent to President Obama coordinated by the Manufacturing Alliance on Patent Policy (MAPP), an ad hoc coalition of manufacturing companies. Last month MAPP released an economic analysis that explained that adopting the failed patent reform proposals of 2008 would put at risk 298,000 manufacturing jobs and reduce R&D investment by up to $66 billion. 

In a strange twist, Shepard Fairey, the artist of the popular print made famous through the 2008 Presidential Campaign, has sued the Associated Press in federal District Court in Manhattan seeking an order from the court that his use of the underlying photograph owned by the Associated Press is a fair use.  Mr. Fairey’s lawyer, Anthony T. Falzone, the executive director of the Fair Use Project at Stanford University says that Mr. Fairey used the photograph only as a reference and transformed it into a “stunning, abstracted and idealized visual image that created powerful new meaning and conveys a radically different message.”  Such an argument is quite surprising coming from a fair use expert, who must know that the great weight of authority is against him.  While determining what is and what is not a fair use is typically far from certain, it is my opinion there is no chance that a court will rule that Mr. Fairey’s work is a fair use, because it simply does not meet the requirements set forth in the relevant statute – 17 USC 107. If this is a fair use then virtually any derivative work would be a fair use and that is not a Pandora’s Box I see any court opening.

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.