Earlier today President Barack Obama, perhaps with the best of intentions, demonstrated that he is not all that familiar with the United States Patent and Trademark Office and how they handle patent applications. The short of it is that what President Obama said to tech executives was wrong on the facts, but at least partly correct in spirit. Essentially, President Obama said that the way the Patent Office handles electronically filed patent applications is to print them and scan them. Sadly, that is not true, or is at least extremely misleading. It is certainly true that the Patent Office used to do things that way, but since the new EFS Web system was unveiled on March 16, 2006, electronically filed patent applications are not printed and then scanned. Perhaps the President or his speech writers are readers of IPWatchdog.com and got the wrong impression when I lamented a few months ago that genius federal minds thought printing and scanning created a paperless system, or perhaps the White House has been spying on the PLI Patent Bar Review Course and listening to John White tell stories of the old days when printing and scanning of electronic filings was the rule. Whatever the case, the President was incorrect on the facts, but certainly correct to say that it is embarrassing that the Patent Office computer systems are woefully inadequate and behind the times.
Christmas is coming early for inventors, innovative companies, patent attorneys and anyone in the technology/innovation industry that relies upon patent protection. Faced with a growing backlog and long patent pendency periods in a difficult fiscal environment, the United States Patent and Trademark Office (USPTO) is reaching out to former patent examiners, inviting them to return to the agency. According to David Kappos, the Director of the USPTO and Undersecretary of Commerce for Intellectual Property: “Because of their prior experience, returning examiners will need little training and will be able to hit the ground running. These examiners can have an immediate impact on the patent examination backlog and reducing the backlog is our top priority.” In the past I have written over and over again that the USPTO should bring back former patent examiners, precisely for the reasons stated by Kappos (e.g., 5th paragraph and 5th paragraph). I am not about to claim that the USPTO listened to me, but whether they listened to me or came up with this idea on their own it is something I have thought made a lot of sense for a long time. So, not surprisingly, I think this is a wonderful idea!
This year as we wind down and look back we not only need to look back at the previous year, but the first decade of the new century and new millennium will be ending. So at this reflective time of year it seems appropriate to take a look back at the biggest patent related news stories of the decade. As with any Top 10 list, or any ranking, there will undoubtedly be disagreements, arguments and some things that people believe should have been on the list. What follows is Part 1 of my personal Top 10 patent news related stories for the decade. Once I get all 10 out, by later in the week, I will provide a survey that allows you to rank them, and I hope you will. We can then take a look back at my Top 10 vs. the Top 10 of IPWatchdog.com readers next year. Please also feel free (and I am sure you will) to point out things that I missed or clearly got wrong, at least in your opinion.
Without further ado, in descending order, here is Part 1 of my Top 10 Patent Related Stories of the Decade:
Yesterday the United States Patent and Trademark Office announced the creation of a pilot program to accelerate the examination of certain green technology patent applications. The announcement was short on details, which will apparently be forthcoming, but the move to accelerate green technology patents is one that can and should pay off handsomely. Back on March 30, 2009, I wrote an article titled A Proposal for Green Technology, which called on President Obama to issue an Executive Order requiring the accelerated examination of patent applications that relate to green technologies, while cautioning that relying on the current acceleration avenue would be inappropriate given the number and magnitude of unfavorable admissions that would need to be made. While it is unclear as yet under what circumstances green patent applications will be advanced out of order, we can only hope that the onerous and untenable Examination Support Document will not need to be filed in order to accelerate. If an ESD is required that would make this enormously positive initiative nothing more than a publicity stunt because as long as patent applicants must file an ESD few will because the document must include horrific admissions that would almost certainly render any patent unenforceable if litigated.
For many months we have been hearing about the government attempts to “reform” health care in the United States, and this weekend the United States Senate is actually working, yes Senators working on a weekend, as the contentious debate continues. Even a relatively rare Presidential visit to Capitol Hill is scheduled for later this afternoon, presumably so President Obama can rally the troops for whatever lies ahead. While patent policy has not taken center stage in these debates, it is hard to ignore the under current that rages through the debates. Health care costs too much, so costs need to be contained. Of course, market initiatives like a national heath insurance market, which would lower premiums for everyone overnight, are not being considered. Likewise, attempts to prevent those without insurance from clogging up emergency rooms for simple matters like runny noses, sprains, colds and a litany of other ailment is not on the table either, so rather than discussing health insurance premium reform and government sponsored clinics in areas where there is the highest density of uninsured, we are debating a host of other things and trying to squeeze the private sector. I have long wondered why there has been such an all-out patent war against pharmaceutical and biotechnology companies, but the ACLU patent challenge against Myriad Genetics and the assault on biologic from some corners of government has me thinking that the preferred way to control costs in the minds of some politicians is to either stop or dramatically slow medical technology progress through revised patent and innovation policy. That is a mistake, an enormous mistake. We enjoy an ever increasing life span and higher quality medical care than anywhere in the world because of technology and innovative advances in an array of disciplines, and that MUST be preserved.
Once again I find myself traveling for PLI, this time I am in an airplane heading for Oakland, California, with the final destination of San Francisco, California via taxi. This will be the last live location for the PLI Patent Bar Review Course for 2009. John White and I will be in San Francisco teaching at PLI headquarters downtown starting Wednesday and running through Sunday. There is always a home study course available for those who want to take the course between now and our next live course, which will be from January 6-10, 2010 in Washington, DC. So as I travel cross country I will be working on a few articles I have wanted to get to for some time, but which obviously don’t require contemporaneous research. One such article is a different kind of KSR perspective. Since the infamous and horribly troubling decision by the Supreme Court in KSR I have from time to time looked at the crazy patents that continue to be issued by the US Patent Office and concluding that KSR is much ado about nothing. For example see Crazy Patents in an Era of Alleged Patent Quality. Of course that is not really true, but the Supreme Court KSR decision did replace the previous objective test and supplanted it with a subjective test that literally requires inventors to demonstrate they undertook a fools errand because they knew their invention could not work. The only way that makes any sense logically is if it could be used to prevent trivial, perhaps stupid patents. That hasn’t happened though, so what good did KSR do? None, but it has and will cause harm. Notwithstanding, I thought it might be fun to identify a few inventions that clearly are not obvious, because if they were as obvious as they seem a variety of very smart people would have figured them out long ago. This is the first in what will hopefully be a fun series of obvious non-obvious inventions.
The Wall Street Journal is reporting good news for patent owners, in particular those holding patents on green technologies. President Obama, who is currently attending the Asia-Pacific Economic Cooperation forum in Shanghai, China, along with other world leaders announced that they no longer have ambitions of reaching a binding international agreement on climate change during the United Nations Climate Change Conference in Copenhagen, which begins December 7, 2009 and runs through December 18, 2009. This is extremely important for those who are interested in strong intellectual property protections, particular patent rights. It had been feared that in order to obtain an international agreement the Obama Administration would broker the patent rights held by US concerns and give them to third world and developing nations in exchange for them taking steps to curb carbon dioxide emissions. Thus, the news that there will not be a binding agreement as a result of the UN conference in Copenhagen can allow patent and intellectual property advocates breathe a sigh of relief, at least for now.
David Kappos addresses Inventors Conference 2009 at USPTO
I am just getting back from two days at the United States Patent and Trademark Office, having attended the 14th Annual Inventors Conference. There is much to report, and much to write about, and I will continue to digest, analyze and write about what I saw and my impressions in the days to come. It is, however, undeniable that there is a completely different tone at the Patent Office. Senior level management, from Director David Kappos, Deputy Director Sharon Barner, Patent Commissioner Bob Stoll and Deputy Commissioner Peggy Focarino, mingled with inventors and seemed genuinely happy to discuss issues and appear committed to revitalizing the patent system. There were many, including myself, who wondered what direction the Patent Office would take under new leadership, and while it is early to give a grade, if we are going to be honest and give an interim report card the only fair grade to give at this point is an A. From top to bottom there is an optimism that exudes from everyone I spoke to at the Patent Office. Changes that ordinarily would take months are taking weeks, and the political leadership seems to REALLY understand the importance of innovation. In fact, in video-taped comments played during lunch today Commerce Secretary Gary Locke said that the Obama Administration pledges to provide US inventors the strongest IP protection available anywhere in the world. What more could we realistically ask for at this point?