Last week David Kappos, Undersecretary of Commerce and Director of the USPTO, told a packed room of people at the BIO International Convention that innovation produces high paying jobs and patents are a critical component of the innovation to commercialization to job creation cycle. He didn’t receive any disagreement, but lets face it, he was preaching to the choir. As Jim Greenwood, President & CEO of BIO told me, “the only thing [most biotech companies] have is intellectual property… They start off with that and then they have to raise money to even begin to have microscopes and bricks and mortar and staff. It is on the strength of that intellectual property that they have to raise all of those dollars for a very long time.” So without patents the biotechnology sector simply wouldn’t exist, and that means many tens of thousands of jobs, if not hundreds of thousands of jobs, wouldn’t exist. So the BIO Convention was well in tune with the message Kappos delivered, but preaching to the choir is only so helpful. With that in mind allow me to take a stab at explaining how vital the US patent system is to the economy, why ignoring the USPTO has directly lead to this recession lasting far longer than it should have, and why properly funding the USPTO is critical to job creation and the US climbing out of this horrible economic crisis.
First, allow me to point out the reality that so many want to ignore. We can all pretend that innovation simply happens without funding, and the naysayers and anti-patent advocates will just assume that is true, but the unspeakable reality is that innovation requires funding. Without funding there can be no innovation, period! Anyone that believes otherwise is ignoring reality and akin to the quacks that run around claiming they have discovered the secrets of a perpetual motion machine. Perpetual motion machines don’t exist, and neither does unfunded innovation. Even if you are operating in an area where innovation doesn’t require enormous capital investment, it always requires the investment of time, which comes with opportunity costs. So please save me the ridiculous, head-in-sand ravings that innovation doesn’t cost. It does, and the overwhelming majority of investors want to see issued patents. It really is that simple.
Francis Gurry, WIPO Director General at BIO Convention
Yesterday I had the honor of spending 30 minutes interviewing Francis Gurry, the Director General of the World Intellectual Property Organization (WIPO). The interview was conducted on the record and at the BIO International Convention being held in Chicago, this week. My interview with the Director General took place at 11:00am, prior to his panel session with USPTO Director David Kappos at 2:00pm.
The Director General spoke substantively about issues facing the Patent Offices of the world, as well as some possible solutions. Gurry also discusses harmonization attempts, work-sharing agreements and the crushing worldwide backlog of patent applications that could lead to irrelevance of the system. As you read the interview you will also see that he thinks it is possible that the rest of the world will adopt a US-like grace period, which echos Kappos’ recent push to not only get US patent reform enacted but to harmonize laws, but to push the rest of the world toward a uniform grace period. Gurry also indulged me in a bit of speculation regarding software and the worldwide disagreement on whether software should be considered patentable subject matter.
Gurry was quite engaged and gracious. He is extraordinarily well informed and conversant with the issues and processes on both a macro and micro level, as well as the political realities associated with harmonization and other issues that have for decades dogged the international intellectual property community. We could have easily talked for hours on all sorts of issues, and I hope to have the opportunity to go back on the record with him in the future.
Louis Foreman is the creator, executive producer and lead judge of the Emmy® award-winning PBS reality show Everyday Edisons, which features ordinary people transforming their original ideas into retail products. Foreman is also Chief Executive of Enventys, an integrated product design and engineering firm with offices in Charlotte, NC and Taiwan, as well as the publisher of Inventors Digest, the largest and oldest publication for the inventor community. He is also co-author of The Independent Inventor’s Handbook. Foreman is an inventor himself, holding 10 US patents. So it is fair to say that few people know the trials and tribulations of independent inventors better than Louis does, and Louis Foreman supports patent reform.
Earlier today, Foreman sent the letter reproduced below to Senator Patrick Leahy (D-VT), who is Chair of the Senate Judiciary Committee. It is the Senate Judiciary Committee that has pending before it S. 515 relating to patent reform. As his letter explains, Foreman supports patent reform because “leaving the current system alone is not an option, nor does it benefit anyone.” Foreman believes the pending patent reform is a “significant improvement” because, among other things, it will lower fees for micro-entities and because it will “ultimately result in a stronger patent making it easier for independent inventors and small businesses to attract start-up capital.”
Earlier this week, on Tuesday, February 16, 2010, TiVo, Inc. (NASDAQ: TIVO) was granted US Patent No. 7,665,111, titled Data storage management and scheduling system. This patent is indicative of what I suspect will become a growing problem in the years to come, which is a resurgence in so-called submarine patents. This patent matured from a patent application filed on October 20, 1999, which means it was pending at the United States Patent and Trademark Office for over 10 years. Amazingly, according to the Patent Office no patent term extension is owed. Exactly how can a patent remain pending for over 10 years and not be entitled to an extension in the term? I really don’t know to be perfectly honest, but it seems that this patent will apply to pretty much any and all DVRs currently on the market, so even if there is no patent term extension granted it could produce a choke-hold on the industry through October 20, 2019, which should create a tidy sum of royalty payments for TiVo, at least over the near term. Of course, it will also spark a rush to innovate around the TiVo patent, thereby causing innovation to march forward, much to the chagrin of anti-patent advocates who are already proclaiming this patent to be evidence that patents harm innovation. In any event, a patent that issues after 10+ years suggests problems, even if the intended march of innovation is encouraged, which will of course be the case.
The patent backlog and all of the associated problems that go along with it, such as the increasing length of time it takes to obtain a patent, is the largest single problem facing the United States Patent and Trademark Office. In fact, this problem is not unique to the US Patent Office. Other Patent Offices around the world are also plagued with growing demand as the global economy continues to transition into an information and technology based economy. In the US the reason for our backlog getting out of control over at least the last 5 years is well documented, and largely related to the top level political appointees not having any patent experience. That has changed under President Obama and there remains a lot of optimism with respect to where the Office is heading, although to really get to the bottom of the problem Congress will need to cooperate and fund the Patent Office rather than viewing it as a revenue generator for other government programs.
I am not naive, so I realize getting Congress to do anything relating to patents is nearly impossible and getting them to do anything that is actually helpful seems almost akin to believing in the tooth fairy. So the Patent Office is going to have to come up with incremental solutions on their own. From time to time I will offer solutions that will help, to one extent or another. Today I suggest that the Patent Office immediately suspend prosecution on any and all patent applications in which a Bilski patentable subject matter rejection has been or could be made. Redeploy patent examiners to other areas and dig into the backlog.
On December 21, 2009, I embarked upon identifying the top 10 patent stories of the decade, which ends as we usher in the new year. The Top 10 Part 1 identified what I thought were in the bottom half of the top 10, and while any top 10 list is sure to be at least somewhat controversial, it seems as if the list hasn’t created too much of a stir, at least so far. Undoubtedly, once I set out the top 5 the real debating will begin as folks suggest what they would have preferred instead. Notwithstanding, I really cannot imagine any bigger stories than the top 5 below. 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 2 of my Top 10 Patent Related Stories of the Decade, with numbers 5 through 1. Up next, honorable mentions, which will be Part 3.
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 is straight from the “you have to be kidding me” file, and for more reasons than immediately are apparent simply by looking at the invention. This invention is a doll urn, which allows for the storing of a human’s or a pet’s ashes. The invention comprises a doll body, a doll head, a doll top, and a voice recorder for recording or playing a message. Disposed in the doll head is an internal compartment, wherein a secure container for holding the ashes may be inserted into the internal compartment via an aperture on the doll head. The doll top comprises a stopper for fitting into the aperture so as to prevent ashes from spilling out of the internal compartment. In one particular version the name of the deceased is imprinted on one foot and the birth date and date of death are imprinted on the other foot (see Figure 6). As strange as this invention seems, the truly sad aspect is that it was granted in just over 10 months! So while some inventors must wait many years (i.e., 3, 4, 5, 6 or more years) this particular inventor was able to file and obtain a patent on her invention in about 10 months. While I am happy for this particular inventor, allow me to notice that something is dramatically wrong at the Patent Office if this invention can get treatment so quickly and commercially viable inventions that could form the basis for investment and business growth languish for years.