An IPWatchdog Year in Review: Looking Back at 2011

It was another exciting year for us here at IPWatchdog, and before anything else we want to thank all of our readers for continuing to make us one of the top intellectual property blogs.

If the vote tally on the ABA Journal mobile website is correct, it looks as if congratulations are in order for PatentlyO and Professor Dennis Crouch.  We were in the lead going into the last day of voting, but a strong surge by the PatentlyO faithful couldn’t be match by our own late surge.  Nevertheless, it is a great honor to be recognized by the American Bar Association as one of the top 100 legal blogs.  For three years now we have been in the top 100, which really continues to fuel the drive to excel.  Sometimes you go long stretches not knowing whether what you are doing matters, and then someone will send a note, you will hear that a particular article has stirred debate in the industry or that folks at the ABA are noticing and know who you are.  The intellectual property community and the patent community specifically, are lucky to have a bunch of excellent citizen journalists and commentators, and it is humbling to be considered one of the best.

I try and keep my finder on the pulse as best I can, which hopefully comes through as you read IPWatchdog. Throughout the year I reach out to many individuals in the industry to chat, learn what they see going on and to pick their brain.  In doing so recently I found myself chatting with David Kline via e-mail.  David is an IP communications strategist and co-author of Rembrandts in the Attic and Great Again.  He wrote, in part: “I don’t know if it was your plan all along, but IPWatchdog has become a home for not just your own very smart analysis but for the most interesting IP thinkers around. You offer readers a portal to the most original IP thinking and analysis in the country.” I hope David is correct.  Moving forward into 2012 I can promise that we will do everything we can to live up to that praise.

It was always the plan to have my writings leavened by the writings of others in order to balance out my opinion-based editorials.  With other points of view present I don’t have to strive to balance myself out and play devils advocate.  I think it creates more lively debate and associated discussion.  I will, however, confess to not planning for contributions by IP thought leaders, politicos and business leaders, like Hank Nothhaft, Manus Cooney and Bernard Cassiday, to name but a few.  We are, however, grateful for their contributions, as well as the contributions of all of our guest contributors, and enjoy providing readers a different perspective on the issues.

During 2011 we managed to get several interviews with high level industry insiders and politicos.  These included interviews with Commerce Secretary Gary Locke, Congressman Jason Chaffetz and IBM Chief Patent Counsel Manny Schecter. During the later half of 2011 we didn’t do many, if any, interviews.  That will change leading into 2012, with a big interview already in the can with the transcript waiting for my editing and publication, so stay tuned!

Finally, yesterday we published The Top 20 Articles for 2011, which is perhaps an interesting year in review.  I am also working on another old standby — The Top 10 IP News Stories for 2011 — which is likely to appear in the coming days.  Looking back on the year and our articles is always an interesting task.  I see what things occupied my mind at various times during the year and identify trends.  I think patent reform threw me off my intended focus during 2011, but that was a story that begged to be pursued.

If there is anything that is frustrating about blogging it has to be that sometimes the articles you feel best about in terms of quality and content are the ones that are read by the fewest number of people.  Titles impact article reads a lot, but so does daily life, holidays and weekend timing.  With that in mind I thought I would end this IPWatchdog year in review with a list of some of the articles that I most enjoyed writing during 2011, in reverse chronological order.  My creative juices are flowing and I can’t wait to jump into 2012!  I hope you enjoy the ride with us!

Happy new year!

10 of my favorites from 2011:

Christmases Past: Sleigh Patents of the 1880s & 1890s

I love history, innovation, patents and Christmas.  Writing this article gave me the opportunity to weave all of those interests together.  This was undoubtedly the article I enjoyed writing the most during 2011.  It was fun to write!

Top 10 Locations the PTO Should Consider for Satellite Offices

Thanks to the America Invents Act the USPTO will be setting up three satellite offices in the coming years.  Detroit is already selected as the first and expected to open during 2012.  Where will the others be?  I hear cities are lining up to make the case for themselves behind the scenes.  This is my list of places the USPTO should consider (and why).

Patent Funding Scam? USPTO Funding is Like a Ponzi Scheme

I love writing about the intersection of politics and innovation policy, and this article gave me the perfect opportunity to write about the biggest political and social issues of the day and relate them to the world of patents.  What could be more fun?  For me not much!  Anyway, former PTO Director Jon Dudas said at a panel at the University of New Hampshire School of Law that the funding of the Patent Office is a ponzi scheme just like Social Security.  I couldn’t resist.

Technology Solutions: In Support of a Clean Energy Economy

Another political story.  The Solyndra scandal seemed to potentially have the ability to curtail the government’s ability to spur green and alternative energy technologies.  I am not at all a fan of wasting money, but I do believe that any future energy plan needs to build on renewable, clean technologies.  Having said that, I can read the e-mails from the disgraced global warming “scientists” and know that liberties were taken with data.  Why can’t we all just agree that renewable, alternative and clean energy is a laudable goal?

Predicting the Future: When Will U.S. Patent 9,000,000 Issue?

he United States Patent and Trademark Office issued U.S. Patent No. 8,000,000 on Tuesday, August 16, 2011.  So let the speculation begin on when U.S. Patent No. 9,000,000 will be issued!  I pick Tuesday, May 24, 2016.

Jump the Shark Patent Style: Supremes Take Kappos v. Hyatt

The phrase “jump the shark comes from one particular scene in the television series “Happy Days.”  In the premiere episode for season 5, which aired on September 20, 1977, Arthur Fonzarelli (aka “The Fonz” or “Fonzie”) was challenged to jump a shark.  The water-skiing Fonz successfully jumped the shark and simultaneously spawned a new pop-culture phrase referring to the moment that a television show had run out of ideas.  A television show would “jump the shark” when the peak had been reached and it was believed that everything was downhill from there.  The Supreme Court accepting cert. in Kappos v. Hyatt is most certainly the legal equivalent of jumping a shark.  This case simply doesn’t deserve the attention of the High Court.  It affects virtually no one.

U.S. Patent Office Pays More Taxes Than General Electric

General Electric paid no taxes for 2010.  Yes, the largest corporation in the United States had a very good 2010.  They booked over $14 billion in profits, with over $5 billion coming from U.S. operations, yet they paid not a dime in taxes to the Federal Government.  On the other hand, year after year Congress prohibits the USPTO from keeping all of the user fees collected.  The USPTO is forced to remit many tens of millions of dollars in user fees to the Department of the Treasury.  Sounds like the USPTO pays more taxes than GE if you ask me.

Top 10 Reasons Republicans Might Oppose the Patent Office

As a Republican patent attorney I was extremely disappointed that Congressman Paul Ryan and Congressman Hal Rogers, both Republicans, came out to force the removal of the Coburn Amendment from patent reform, which would have once and for all stopped the practice of fee diversion.  That lead to this tongue-in-cheek article about why the Republicans might be opposing an adequately funded Patent Office.

Non Sequitur: We Need to Go Back to the Clinton Tax Rates

The fact is that one of the most revolutionary of all technologies came into its adolescent being and was starting to be widely adopted by average people during the Clinton years.  Innovation triggered the risky behavior; the irrational exuberance if you will.  Without paradigm shifting innovation there would have been no run up of the stock market, no massive spending, no rush to create businesses to cash in on the moment and no speculative investing, or at least not to the unbelievable levels that actually occurred.  Innovation was the trigger for the tremendous economy during the Clinton years.  We cannot get back to that without innovation and raising taxes on a sinking economy to get back to the Clinton tax rates is an enormous mistake.  You might be able to raise taxes on an expanding economy, but not one that is contracting or experiencing anemic growth.

An Inconvenient Truth: Patents Do Not Deter Research

It is funny how when a know-nothing researchers proclaims that patents harm innovation the media is there with cameras rolling, all to eager to capture a factually inaccurate story and relay it to the masses.  When research actually demonstrates that patents do not deter research what do you hear?  Crickets!  But the truth is that patents do not deter research.  Anyone who has ever thought about the patent system and understands anything about human nature can appreciate that patents foster innovation.


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Join the Discussion

7 comments so far.

  • [Avatar for Stan E. Delo]
    Stan E. Delo
    January 3, 2012 08:19 pm

    Paul F. Morgan-

    Very well said in my opinion, and I especially like the Inequitable Conduct relief for patent attorneys. I once helped a Medical doctor build a 47-foot stay-sail schooner, and he told me of having to pay more than $60 K per year, just for insurance ot various types? Agreed about derivations being a small factor, but when it happens it will be curtains for whomever, since Prior User Rights provisions might be able to blunt the validity of honestly submitted inventions. The complainant will have no way to request discovery, so what sort of case can you build upon that? Maybe never even Be there in the first place is the wiser choice I suppose.

    Best regards,

  • [Avatar for Gene Quinn]
    Gene Quinn
    January 2, 2012 06:11 pm

    Thanks dw. The plan is to draw the winner next week. We have a patent bar review course in Arlington, VA, so I thought I would have John White pick the winner randomly out of a hat. So stay tuned!

  • [Avatar for dw]
    January 2, 2012 06:05 pm

    Hey Gene,
    I would have voted for you without the possibility of winning the PLI class (but I sure hope I did win).

    Thanks – I learn much from you and sometimes even others that post here 😉
    Hope you have a great new year.

  • [Avatar for Paul F. Morgan]
    Paul F. Morgan
    January 2, 2012 03:06 pm

    Gene, since the most patent significant IP event of 2011 was the new patent law, this is my attempt to very simply express the most important real-world impacts of that AIA legislation. I believe the media and others have been missing several of these by miss-focusing on less significant consequences, especially from “first inventor to file”. Feel free to disagree, or add.
    1. Re “first inventor to file” the number of situations in which two different parties file patent applications on the same or substantially the same invention, and the second to file obtains valid, dominant, patent claims, is miniscule now, and will simply gradually become a bit smaller. I.e., the removal of alleged prior “invention date” issues is not a significant AIA change for interfering claims. Cases involving actual invention “derivation” are a small percentage of even that miniscule number!
    2. The most significant AIA changes, which will affect almost everyone, are in what will become prior art against patent applications and patents. The AIA provides a considerable simplification (albeit with a few ambiguities). Also, most prior art will now become instant “bars.” U.S. application foreign priority filing dates and foreign public disclosure dates both becoming U.S. prior art dates will be a significant prior art increase. The ending of PTO Rule 131 alleged prior invention dates declarations “swearing behind” earlier prior art dates will have a limited effect on patent grants, but little or no effect on successfully litigating patents. Rule 131 declarations are ex parte, uncontested, and often inadequately examined, so they rarely survive litigation challenges and can easily raise inequitable conduct issues.
    3. Delaying filing patent applications after publicly disclosing one’s invention is foolishly dangerous now, and will remain so. It will also continue to destroy foreign patent rights. There is a [sole remaining] one year “grace period” for doing that, but that grace period is ambiguous as to its disclosure extent requirements and effect. Delaying the filing of at least provisional applications for new products still under development will become more dangerous even if kept secret, due to the above changes in what will be prior art and its effective dates.
    4. The AIA significant increases trade secrecy protection (instead of or in addition to patenting) for any inventions which can be kept secret while being commercially exploited. There is potential dual IP protection from the AIA elimination of “best mode” defenses. Even more so if disputed ambiguities in AIA 102(a)(1) are held to overrule the long-established Metalizing Engineering doctrine that “forfeits” patenting after having already commercially exploited an invention, which would allow tacking on full term patent protection after unlimited years of trade secrecy protection.
    5. The ability to eliminate any inequitable conduct defense before patent litigation in the new “Supplemental Examination.” An ex parte reexamination solely for patent owners to request and participate in. A potentially powerful new tool for patent enforceability, although its PTO rules and actual usage remains to be seen.
    6. Ending the “false marking suits” plague and the naming numerous defendants in the same patent suit to avoid venue transfers. Also, there is a new “virtual” marking system.
    P.S. The practical effects of other AIA extensive changes, such as the new or amended and Board-run inter partes reexaminations and 9 month PGR opposition systems, are too soon to predict, especially given their dangerous estoppels, predictable increased costs, and the limited number the PTO will accept each year.

  • [Avatar for Stan E. Delo]
    Stan E. Delo
    January 2, 2012 12:57 pm


    I couldn’t have said it better myself, as I found the interviews with David Kappos and the recently retired honorable Chief Judge Michel, to name just two, to be fascinating and very informative and offering a few rays of hope. Also the great variety of topics displayed here makes it a Great place to learn and stay informed, and the civil discussions insisted upon by Gene makes it a much easier and saner place to discuss things in a reasoned manner.

    In honor of that, I would like to introduce my new Rational Root Beer flavour of Kool-Aid, which has a new twist to it…. If you add a large twist of Lemon or Lime to it, it becomes somewhat irrational RB, right on towards rabid, so go easy on the sour twists! Cheers~

    All the Best in the New Year!

  • [Avatar for Gene Quinn]
    Gene Quinn
    January 1, 2012 03:52 pm


    Thank you very much for the comments.

    I will confess to being disheartened a bit by the way the voting unfolded, but such is the nature of being a type-A competitive personality I suppose.

    I don’t know whether anything unsavory happened during the voting, and I did not see where it was suggested that a single person could vote more than once. I do know, however, that PatentlyO surged forward with upwards of 250 votes within the final day of voting and we just couldn’t match that total. PatentlyO also had a surge of the same magnitude on or about December 15-16. Our totals grew steadily throughout the competition, and in our final e-mail, Twitter and LinkedIn push on the final day we managed to add about 65 votes, which I thought was a great total!

    Renee and I deeply appreciate all the kind things readers like you have been saying. It certainly does motivate us to do more, and to do better. We already have some interesting things in the works for 2012, so stay tuned!

    Thanks to everyone who voted for us! There is always next year!


  • [Avatar for Blind Dogma]
    Blind Dogma
    January 1, 2012 12:43 pm

    Congratulations Gene on the recognition.

    As to the final vote talley, I would not put stock in the “award.” Patently-O engaged in some rather obvious last minute pandering, even hinting at the fact that with registration anonymous, a single person could cast more than a single vote (plus the ABA voting itself let a person have 12 votes, not restricted to a one vote per category). Thus, any final talley is subject to a very strong suspicion of ballot-stuffing.

    As for content, I find your site more satisfying with more “real” posts, great key interviews with patent world movers and shakers, less academic posturing and better controls on the discussion strings far more “entertaining.”

    Congratulations again and a happy and prosperous New Year.

    Stan, break out the special new year Kool-Aid!