News, Notes & Announcements

By Gene Quinn
September 11, 2010

Occasionally I come across some news that I wish I had time to write about, and frequently any more I am asked to help spread the word on a variety of topics relating to the intellectual property industry.  With that in mind, what appears below are some random things that many would likely we interested in knowing about.

In this edition of News, Notes & Announcements, patent attorneys asked to participate in an inequitable conduct study, BIO seeks session proposals for 2011 Convention, Huffington Post and other popular press starting to report that patent backlog is costing jobs, the Second Circuit refuses en banc rehearing in reverse patent payments case and PLI sponsoring yours truly on a speaking tour.

  1. Christian Mammen, Resident Scholar at UC Hastings Law School and IPWatchdog contributor, is researching a potential article on the impact of inequitable conduct litigation on the attorneys who prosecuted the patents involved.   Patent attorneys who prosecuted a patent that was later involved in inequitable conduct allegations are invited to take a brief survey here: http://www.surveymonkey.com/s/9HZSW3Y.  For those not wishing to take the survey but curious about the survey, here is a pdf of the questions.
  2. The Biotechnology Industry Organization (BIO) has an open call for proposed sessions at the BIO 2011 International Convention, which will take place at the Walter E. Washington Convention Center in Washington, DC from June 27-30, 2011. All submissions will be graded by the 2011 BIO Program Planning Committee which is composed of biotechnology professionals, industry editors and BIO staff. Submissions will be reviewed and evaluated using the following criteria; educational value, topic timeliness, subject matter appeal, appropriate audience type, speaker qualifications and expertise, newsworthiness & novelty. Proposals that focus on key business, science and policy issues are encouraged. Submissions are due by September 22, 2010. Those submitting proposals will be notified by email from BIO on or before Tuesday, November 30, 2011 of the status of their submission. For more information see: 2011 Breakout Session Submission Process.
  3. Yesterday the Huffington Post ran an article titled Patent Backlog Is Clogging Job Growth. The article picks up on a Yahoo Finance interview of Pat Choate, which took place on September 8, 2010. The Yahoo Finance story titled is Innovation Crisis: Job Creation Stalled by Patent Backlog, Says Pat Choate. The contents of these articles will not come as newsworthy to most within the industry, but what is particularly interesting is the fact that the popular press seems to be at least cluing into the story as one of importance. Hank Nothhaft, CEO of Tessera, has been writing about the issues for some time, most recently teaming with Chief Judge Michel in a NY Times op-ed piece which seems to be where quite a number in the popular press clued into the story. Additionally, the story being told by USPTO Director David Kappos is also starting to resonate. With horribly unacceptable unemployment numbers given the US based technology jobs that are tied up in red tape at the USPTO, I expect this story to continue to be an important one as we move into the midterm elections and then as we move out of the election cycle and our leaders start to try and fix the economy in advance of 2012. The pressure is on and we can all play a part in continuing to get the word out. I have and will continue to do that, hopefully everyone with a blog or connections to politicians will also work the story as well.
  4. On September 7, 2010, the United States Court of Appeals for the Second Circuit denied the request for en banc hearing in In re Ciprofloxacin Hydrochloride Antitrust Litigation.  See Order Denying En Banc Hearing. Back on April 29, 2010, the Second Circuit panel issued a ruling addressing whether so-called reverse payments, payments made under a negotiated settlement by a pharmaceutical patent owner to a would-be generic entrant in exchange for not entering the market, are a violation of U.S. Antitrust Law. In a per curiam decision the Second Circuit panel (Judges Newman, Pooler and Parker) affirmed, determining in accordance with Second Circuit precedent (see In re Tamoxifen Citrate Antitrust Litig.) that reverse payments stemming from a patent settlement do not violate U.S. Antitrust Laws. The panel did, however, make the extraordinary invitation to petition the Second Circuit for rehearing in banc, citing the exceptional importance of the antitrust implications, the fact that the primary authors of the Hatch-Waxman Act have stated reverse payments were never intended under the legislation and the fact that the Second Circuit in Tamoxifen simply got it wrong when they said that subsequent generic entrants could potentially obtain a 180 exclusive period even after the first would-be generic entrant had settled. For more see Pharma Reverse Patent Payments are Not an Antitrust Violation. Forbes magazine blog is suggesting that this might not be the last of this case, because it has the Supreme Court written all over it. That it does. A patent issue that deals with public policy and a question where the Court would have to ignore the clear dictates of the law to come out with the popular opinion decision. Expect the Supremes to be asked to weigh in, and expect them to be unable to control themselves and take the case.
  5. The Practising Law Institute is sponsoring Gene Quinn to go out to firms, law schools and bar associations to give free substantive presentations on mutually agreed topics. Many law firms and bar associations have weekly, bi-weekly or monthly sessions scheduled where presentations worthy of CLE credit are given. Gene can come to your location to give such a presentation, and at no cost. Given these presentations will be free PLI will not be submitting for CLE credit, but Gene is happy to cooperate with your firm or bar association liaison to prepare written materials so that any presentation can qualify for CLE credit. Gene is able to speak about practically any topic in the patent arena, and he is willing to take requests. He can speak as long or as short as desired, and even allow for one-on-one time to meet with attorneys or students to discuss patent law issues, the patent bar examination or a career in patent law. For more information or to schedule a presentation see this 1 page informational PDF.

The Author

Gene Quinn

Gene Quinn is a Patent Attorney and Editor and President & CEO ofIPWatchdog, Inc.. Gene founded IPWatchdog.com in 1999. Gene is also a principal lecturer in the PLI Patent Bar Review Course and Of Counsel to the law firm of Berenato & White, LLC. Gene’s specialty is in the area of strategic patent consulting, patent application drafting and patent prosecution. He consults with attorneys facing peculiar procedural issues at the Patent Office, advises investors and executives on patent law changes and pending litigation matters, and works with start-up businesses throughout the United States and around the world, primarily dealing with software and computer related innovations. is admitted to practice law in New Hampshire, is a Registered Patent Attorney and is also admitted to practice before the United States Court of Appeals for the Federal Circuit. CLICK HERE to send Gene a message.

Warning & Disclaimer: The pages, articles and comments on IPWatchdog.com do not constitute legal advice, nor do they create any attorney-client relationship. The articles published express the personal opinion and views of the author as of the time of publication and should not be attributed to the author’s employer, clients or the sponsors of IPWatchdog.com. Read more.

Discuss this

There are currently 4 Comments comments.

  1. Anton September 11, 2010 3:21 pm

    Perhaps this is more of a free trade than a patent question. Lets say it is a given that U.S. patent holders create jobs. Aren’t jobs prevented when patents are awarded Foreign assignees and inventors. While jobs may be created for U.S. assignees the foreign patentees may actually prevent job growth as they use there patents to prevent production in the U.S.

    While the existence of patent protection in foreign countries should equal out the game this would only be true if the patent protection given was as good as the U.S.

  2. Gene Quinn September 11, 2010 6:58 pm

    Anton-

    Interesting point, but don’t forget that most, if not all, of those foreign companies seeking US patents have US operations that themselves account for a great number of high paying tech jobs in America.

    -Gene

  3. The Mad Hatter September 11, 2010 11:51 pm

    Gene,

    For those of us who aren’t lawyers, could you please explain what ‘inequitable conduct’ means?

    As to The Huffington Post, Ariana Huffington is friends with the Gates family. If you check, you will find that she has published a variety of pieces written by Bill Gates, Melinda Gates, and Bill Gates Sr. This is why the Huffington Post at times seems schizophrenic on it’s coverage of major issues. It covers issues that are of interest to Ariana’s friends, even if those issues appear to conflict with what Ariana is saying.

    And yes, I know I’m a cynical old bastard. But 2+2 still equals 4.

    Wayne

  4. Paul F. Morgan September 12, 2010 10:23 am

    Everyone who has ever been accused of Inequitable conduct ought to do the above survey. [The survey results might even help to reduce the problem?]
    Those most affected by IC allegations are those the least protected from it. Often not even given a fair opportunity to defend themselves from the allegations, refused the right to intervene in the litigation, etc., because they are not a party to the litigation, and sometimes are not even aware of it.
    Even completely unfounded IC allegations or investigations [which are practically automatic in patent litigation] can be professionally damaging.
    The threat of such allegations constantly hangs over the heads of everyone who has prosecuted patents, even those of us lucky enough so far to never be formally accused of IC in any patent litigation.