Todd Dickinson, AIPLA Executive Director, 8/19/10

In this second installment of my interview with current AIPLA Executive Director and former USPTO Director, Q. Todd Dickinson, we start out discussing pendency at the Patent Office.  Dickinson tells me about the incentives he used to keep patent examiners as they matured into the level of experience where they are ready to really roll up their sleeves and become the work-horses the Office needs.  We talk about the AIPLA position on the proposed Three Track Proposal now pending at the USPTO.  We then moved into a very interesting discussion of patent reform, and a bombshell is dropped, at least in my opinion.  I was surprised to hear Dickinson say that he does not think patent reform is dead for THIS legislative cycle.  He says: “The clock’s running and, the plays have to be run a little faster,” but that he “can see a path forward once the Congress returns.”  He goes on to point out that the American Inventors Protection Act was attached to an appropriations bill.  Looking at what Congress has on its plate upon returning it looks like there are a lot of appropriations bills.  Curious indeed!

Mass hysteria seems to have been unleashed on the Internet and directed toward Amazon.com for patenting social networking.  Some of the Internet media have suggested that Amazon has patented Facebook, but it is apparent that virtually no one has read the patent (U.S. Patent No. 7,739,139) past the first sentence of the Abstract, which is really the only thing that gets quoted in most of the stories on the Internet.

It is truly sad that massive anti-patent hysteria can be whipped up simply based on a single sentence in the Abstract of a patent.  For crying out loud people, the Abstract is hardly considered to be a part of the patent application and has absolutely nothing to do with the exclusive rights granted.  The claims are what defines the exclusive right, nothing else!  But we will never get the anti-patent types to ever read a claim because they are just too difficult to understand and there are way too many details.  WAKE UP!  That is the point!  The more details in the claim the more narrow the rights!

Kappos delivers speech at Center for American Progress, 6/2/2010

Earlier today the Center for American Progress hosted a speech given by David Kappos, Undersecretary of Commerce for Intellectual Property and the Director of the United States Patent and Trademark Office.  The speech was open to the public, RSVP was required and space was limited.  A light lunch was served.  I was lucky enough to be present as a member of the Press, and unlike the United States Supreme Court which requires members of the press to sit in partial view seats behind the tall pillars with an extremely large diameter, the Center for American Progress reserved front row seating for the press.  Not that such front row treatment is required, but it sure does make taking pictures far more easy, but I digress.

A packed room of at least 200 individuals, including the newly retired Chief Judge Paul Michel, former USPTO Director Q. Todd Dickinson, former USPTO Director Bruce Lehman and others listened to Kappos give an impassioned speech about how innovation can create jobs, how the Patent Office is unfortunately continuing to hold jobs hostage due to a staggering backlog of pending patent applications and how American economic security depends upon development of a comprehensive national IP strategy.  This is something near and dear to my own heart, as readers of IPWatchdog.com know I have been beating that drum since before Kappos was appointed (for example see this, this, this and that; and more recently here and here, among many others).  But can Director Kappos persuade Members of Congress and others in the Executive Branch of the truth we all know?

Representative Zoe Lofgren (D-CA) grills Kappos on Capitol Hill

On Wednesday, May 5, 2010, David Kappos, Undersecretary of Commerce for Intellectual Property and Director of the U.S. Patent and Trademark Office, testified in front of the United States House of Representatives Committee on the Judiciary. See Hearing Page and Kappos Prepared Remarks.  Many issues were covered during the hearing, but there were a couple matters that jump out as quite important. Most significantly, it seems that once again the Senate patent reform bill may be running into some difficulty in the House of Representatives. Some in the House of Representatives seem interested in slowing down regarding the substantive changes embodied in the Senate bill, but seem willing to consider legislation less grandiose and focused solely on giving the Patent Office fee setting authority and perhaps the ability to retain its fees. This, however, lead to a heated exchange that has been misreported in some outlets, so lets set the record straight.

L to R: Armitage, Kappos and Gurry chat on
stage before Super Session at BIO

This week I am attending the BIO International Convention in Chicago, IL. This is my first trip to a BIO Convention and I have to say it is a sight to behold. Those running the event expect approximately 15,000 people this year, and the number of buses and cabs lined up outside McCormick Place in a steady and revolving stream suggests that the many attendees are coming and going in great order.

Inside the Convention Center the programs have started in earnest, and the first program I attended today was the first so-called “Super Session” of the Convention, staring David Kappos, the Director of the United States Patent and Trademark Office, and Francis Gurry, the Director General of WIPO, who I interviewed earlier in the day. The conversation was facilitated by Bob Armitage, the Senior Vice President and General Counsel of Lily, who himself would be a headliner on most other occasions. The session title was “Leveraging IP to Spur Global Biotechnology Innovation, Investment and Jobs,” which largely was preaching to the choir. You would be hard pressed to find a more patent dependent industry in the US and worldwide than the biotech industry, particularly when you realize that as BIO defines the biotech industry it not only includes those companies with a clear biotech research and development focus, but also includes pharmaceutical development.

Without strong patent protection the entire industry would not exist, and neither would the countless thousands of companies and the hundreds of thousands of jobs. While it may be in vogue in some circles to beat up on those innovating on new frontiers the reality is that without such innovation real people would not have paying jobs, and life saving innovations would not occur. So for those paying attention the greater good is clearly on the side of the industry and not on the side of those who vilify the industry to forward an agenda. But there I go again.  It seems even when I try and play it straight I just cant help but weave my 2 cents in!

What follows are pieces of Director Kappos’ remarks at the session prior to taking questions and answers.  While it is probably unfair to call these remarks prepared remarks, it was clear that he referred to his notes as he provided detailed information and statistics.  He also seemed to be reading what he said when he spoke about the ACLU case against Myriad Genetics, but who can blame him given the USPTO was a nominal party to the case and it will be appealed to the Federal Circuit.  Discretion is the better part of valor, and while I was somewhat surprised he addressed the case so directly, I was glad he did.  After all, how could he present at a BIO Convention and not discuss the 800 pound gorilla in the room?

In a decision handed down earlier today in Avid Identification Systems v. The Crystal Import Corporation, a bad acting President of a closely-held company managed to create potentially bad inequitable conduct law for the rest of us. Intent to deceive was admitted, if you can believe that, but as it turns out the prior art withheld, a prior sale, was not invalidating and would not have lead to an appropriate rejection by the Patent Office. Nevertheless, the prior sale of an earlier version of the invention in question was the closest prior art and the Federal Circuit, per Judge Prost, explained that materiality does not require that the the withheld prior art lead to a good rejection. So Judge Prost applied the Patent Office law relative to materiality as it existed prior to the 1992 revision of 37 CFR 1.56. In a feat of mental gymnastics, however, Judge Prost quoted the current Rule 56 to support her decision, muddying the waters even further in the area of inequitable conduct. Who would have thought muddying the inequitable conduct waters was even possible!

Senator Patrick Leahy (D-VT), Chair of Judiciary Committee

Senate Judiciary Committee Chairman Patrick Leahy (D-VT) recently came to agreement with Committee Ranking Republican Jeff Sessions (R-AL) on changes to the Patent Reform Act of 2009 (S. 515), winning Senator Sessions’ support for passage and making it extremely likely that patent reform will happen this year, and likely very soon. An individual involved in the ongoing patent reform debate on Capitol Hill tells me that the Leahy-Sessions language would substitute for the Committee-passed language, and then be considered by the Senate as a whole. This is an important procedural step toward passing patent reform, and could mean that patent reform will be passed by the full Senate any day now. Leahy’s procedural move is called a “hot line”, in which Senate Majority Leader Harry Reid (D-NV) will ask all Senate offices for unanimous consent to proceed to the bill, substitute the new language, and consider it passed.

RENO, NV: A group of Nevada patent owners and experts announced the formation Thursday of a coalition to oppose legislation aimed at changing U.S. patent laws in a fashion that will have a strongly negative impact on patents, innovation, and job creation generally and particularly in Nevada.

Called “Nevadans for Fair Patent Reform,” the coalition combines the leadership of some of the state’s top entrepreneurs and innovators with the technical expertise of attorneys from top intellectual property businesses and law firms.

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.”

David Kappos participates in inventor round-table at USPTO, 3/29/10.

On Monday, March 29, 2010, the United States Patent and Trademark Office conducted an inventors round-table in the Madison Auditorium on the campus of the USPTO.  USPTO Director David Kappos has been meeting with independent inventors and those who work with independent inventors all across the country.  Kappos, who keeps late hours more akin to the private sector, has been making time to meet with inventors pretty much wherever his travels take him across the country.  I know he has held such meetings in California, and in Boston, as well as other locations.  This marked the first time the event was held in Alexandria.  There were probably about 40 people in the room, and the event was broadcast live over the Internet.  Kappos took a number of questions and seemed very engaged.  It is a breath of fresh air for the USPTO to be listening to the inventor community in a substantive way like this.  But it goes beyond just listening.  The USPTO proposal with respect to essentially extending the life of a provisional patent application to 24 months, which was announced officially last week, was the result of a suggestion Kappos received at a round-table event in California.  So not only is the USPTO listening, they are taking what the hear into consideration.  What a novel, yet profound concept.

Dr. Gary K. Michelson

Recently I had the opportunity to chat with Dr. Gary Michelson, an Orthopedic Surgeon and celebrated inventor who holds over 900 patents worldwide. Dr. Michelson acquired both fame and fortune as the result of his innovations, which were infringed by Medtronic, and who later settled with Dr. Michelson for $1.35 billion. As many readers know, Dr. Michelson recently sent a letter to Congress, specifically addressed to Senator Patrick Leahy (D-VT) and Congressman John Conyers (D-MI), who chair the Senate and House Committees responsible for moving forward with patent reform efforts. Specifically, Dr. Michelson supports S. 515 and wanted to make sure that the Congress heard from an actual inventor who greatly benefited from the US patent system.

In my conversation with Dr. Michelson he explained to me that while he benefited greatly from the patent system he would have benefited even more if the system worked better. At this point Dr. Michelson “does not have a dog in the fight,” as he explained, because with the exception of a few lingering applications his patent portfolio has been fully acquired and he stands to gain no additional revenues. Nevertheless, Dr. Michelson, the quintessential successful American inventor, would like to see the US patent system improve for the benefit of all independent inventors, the American economy and to promote real job growth. He has some excellent ideas, I agree with his positions on almost every front, and it is with his approval that I put my conversation with him on the record.

One of the proposals in the pending patent reform legislation is a change from first to invent to a first to file system. I think it is safe to say that the United States is the only country that has a first to invent system, whereby an inventor who claims they are the first to invent but second to file a patent application could prevail and receive a patent over the first to file a patent application. This has historically been viewed as a benefit to independent inventors and small businesses, and in theory it is. The trouble is that an interference proceeding, the proceeding that would take place to determine who is entitled to receive the patent between the alleged first to invent and the first to file, costs over $650,000 (see An Interference: What, When and How Much Does It Cost? – page 9 at bottom). With that cost not many independent inventors or small businesses are going to be able to foot that bill. Nevertheless, I thought it might be good to take a look at this thing called an interference proceeding, which if patent reform is successful would become a relic of US patent law.  By understanding interferences inventors and small businesses can decide for themselves whether they think they are missing out on anything should patent reform do away with interference proceedings.