Guest Contributors


Raymond Van Dyke

The Categorical Imperative for Innovation and Patenting

Posted 3 hours ago

In his Categorical Imperative, Kant simplifies a moral argument position for an individual by asking a question: if you thought that your position or Statement would be Universal, i.e., applicable to all people, it would have the stance of a Categorical Imperative and thus you must do it. A proposed Categorical Imperative is the following Statement: creators should be protected against the unlawful taking of their creation by others… Allowing the free taking of ideas, content and valuable data, i.e., the fruits of individual intellectual endeavor, would disrupt capitalism in a radical way. The resulting more secretive approach in support of the above free-riding Statement would be akin to a Communist environment where the State owned everything and the citizen owned nothing, i.e., the people “consented” to this.

Jeremy Doerre

Berkheimer, the Administrative Procedure Act, and PTO Motions to Vacate PTAB § 101 Decisions

Posted 1 day ago

After several years in which the U.S. Patent and Trademark Office (PTO) did not seem to have an official position on the issue, and many Patent Trial and Appeal Board (PTAB) panels took a position that was clearly at variance with the Administrative Procedure Act (APA), the PTO recently seems to be acquiescing to principles that the patent bar has been urging for years: (a) the PTO is subject to the same Administrative Procedure Act obligations as any other agency, and therefore cannot make factual findings without substantial evidence, and (b) there’s no carve-out for factual findings underlying § 101 subject matter eligibility rejections.

Bob Zeidman

Oracle v. Google: Protecting Software Development, Not Destroying It

Posted 2 days ago

Many articles are coming out about how the recent decision in Oracle America v. Google is going to destroy the ability to create and protect software in the United States. The latest doomsday prophet is Jie Lian in his IPWatchdog article entitled Oracle v. America: Fair or Unfair. As a longtime programmer and an expert in software copyright law, I can tell you that the Federal Circuit got it right, and the decision helps software developers and encourages software development because it leaves in place the copyright protections that have existed at least since the Software Copyright Act of 1980. I am sure that most of us can agree that software development has skyrocketed since 1980.

Michael Bernet

Can You Trademark a Color?

Posted 3 days ago

Yes, under certain circumstances you can trademark a color… Examples of protectable color marks include: red soles for women’s high-heel dress shoes, where the rest of the shoe is not also red (Louboutin); pink fiberglass insulation (Owens-Corning); red knobs on cooking appliances (Wolf); light blue for jewelry boxes (Tiffany); brown for parcel delivery trucks and uniforms (UPS); magenta for telecommunications services (T-Mobile); and orange for scissor handles (Fiskars).

Arie Michelsohn

Reflections on Drug Patents and the High Cost of Healthcare

Posted 4 days ago

The Hatch-Waxman Act and the Biologic Price Competition and Innovation Act are both forged from a noble ideal, grounded in a commitment to a robust and earnest patent system that rewards real innovation… By the power vested in them by specially-reserved patent laws, drug patents are a patent species of their own universe. They can have the economic power of nuclear warheads, in an industry built on an exclusivity model worth hundreds of billions of dollars, per year. We simply cannot afford to fill the silos of those warheads with patent waste that does not innovate or improve upon anything, but which can wreak economic and social havoc, while feeding the general public’s perception that all patents stink.

Alex Poltorak

Bittersweet Milestone: Ten Million Patents Issued in the US, but What Are They Worth?

Posted 5 days ago

Last month, the U.S. Patent Office issued patent number 10,000,000. This historic occasion calls for rethinking our patent system and the future of American innovation… It is nothing short of misleading the public by telling inventors that in exchange for their invention disclosure they will receive a limited monopoly, a patent. Most of the time inventors get no monopoly rights whatsoever. At best, after years of litigation, millions of dollars in attorney fees and multiple challenges to their patent validity at the Patent Office, they may get some monetary compensation. But is it worth the hassle?

Peter Sleman

Using Anonymous Third-Party Submissions to Advance Your Business Goals

Posted 5 days ago

A decent patent strategy starts with protecting your current commercial product.  A better patent strategy builds on this by not only considering what is, but what could be.  To provide real value, consider the actions of others and invest time studying the patent landscape and gathering business intelligence from competitors’ filings.  Additionally, instead of passively observing such filings, a company should also consider being more active by filing one or more third-party submissions (often termed preissuance submissions) in their competitor’s pending applications.  These third-party submissions are a terrific defensive tool to slow down or impede your competitors’ patent ambitions.

Gaurav Agnihotri

High Efficiency Video Coding: How the video ecosystem is evolving

Posted 6 days ago

The latest television technology (4K) contains four times the number of pixels as 1080p (full HD). Without HEVC, broadcasters wanting to transmit programs in 4K quality face the challenge of needing high quality broadband reception to make 4K broadcasts a reality. A benefit of HEVC is that it makes broadcasting 4K more feasible – reducing both the cost and time it takes to deliver high quality programming. While the technology is anticipated to be used in almost all video processors and display devices in the future, adoption remains slow because of a complex licensing scenario.

David Teece

Enabling Technologies and the Underinvestment Problem

Posted 7 days ago

Certain innovations—known as enabling technologies—provide the foundation for progress across a range of industries. Enabling technologies include mobile wireless, the laser, CT scanners, the microprocessor, artificial intelligence, and freight containerization. Such technologies drive wealth creation throughout the economy. However, the difficulties associated with monetizing this type of IP, which I explore in this article, mean that private enterprise tends to underinvest in new enabling technologies. Public policy needs to be more supportive, and firms need to be willing to support more blue-sky projects. As a nation, we are harvesting the fruits of old enabling technologies without investing sufficiently in new ones. We are eating our seed corn.

Joseph Allen

Want a greater ROI for taxpayers? Restore the patent system, protect Bayh-Dole and cut the red tape strangling federal labs

Posted 8 days ago

Three events boosted our economic turnaround in the 1980’s: the passage of Bayh-Dole, which injected the incentives of patent ownership into the federal R&D system; the enactment of the Court of Appeals for the Federal Circuit, which insured the courts would apply the patent law consistently; and the Supreme Court’s ruling in Diamond v Chakraberty that living organisms could be patented. That decision stated that patents could “include anything under the sun that is made by man.” Today that quote is only ironic.

Jie Lian

Oracle America v. Google, Free Java: Fair or Unfair?

Posted 8 days ago

The Federal Circuit recently decided the case of Oracle America v. Google Inc. To “attract Java developers to build apps for Android,” Google copied the declaring code, but wrote its own implementing code for the 37 Java API packages. Id at 1187.  Previously, the Federal Circuit held that “[the] declaring code and the structure, sequence, and organization (‘SSO’) of the Java API packages are entitled to copyright protection.” .  On the other hand, the Federal Circuit also recognized that a reasonable jury could find that “the functional aspects of the packages” are “relevant to Google’s fair use defense.” In this key decision that has the potential to rock the software industry, the Court of Appeals for the Federal Circuit rejected the jury verdict and found that “Google’s use of the 37 Java API packages was not fair as a matter of law.

James Edwards

Legislative Steps in the Pro-patent Direction

Posted 9 days ago

New patent legislation would rectify some of the damage done by several court rulings and by Congress.  It would reestablish the fundamental constitutional principle that a U.S. patent secures certain rights in private property. Reps. Thomas Massie (R-KY) and Marcy Kaptur (D-OH) have introduced H.R. 6264, the Restoring America’s Leadership in Innovation Act.

Kent Richardson

My Top 25 Songs of All Time

Posted 13 days ago

Frankly, this was a really tough project. My musical tastes range from rock to hip-hop to blues, from Pink to Ottmar Liebert to Kendrik Lamar. The list includes songs from almost five decades, with a significant Canadian component. I like Victor Hugo’s view on the topic, “Music expresses that which cannot be said and on which it is impossible to be silent.” I hope you have a wonderful fourth of July.

Michelle Armond

The Supreme Court, the Federal Circuit, and the Patent Office Walk Out of an Appellate Review Bar: Changing Standards For Appellate Review of IPR Institution Decisions

Posted 18 days ago

This article reviews recent Federal Circuit and Supreme Court decisions addressing the scope of appellate review of institution of inter partes review (IPR) by the Patent Trial and Appeal Board. The America Invents Act, 35 U.S.C. § 314(d), provides that: “[t]he determination… whether to institute an inter partes review under this section shall be final and nonappealable.” Federal courts initially interpreted Section 314(d) to bar appellate review of institution decisions entirely. However, recent decisions have narrowed Section 314(d) and expanded the scope of appellate review of matters decided by the Board at institution. This article will review decisions interpreting Section 314(d) to date, and explain how recent precedents have created new opportunities for appellate review of the Board’s decisionmaking in IPR proceedings.

Jake Wharton

Supreme Court to Resolve Copyright Registration Circuit Split

Posted 19 days ago

On Thursday, June 28, the U.S. Supreme Court agreed to hear a case that should resolve the long-standing question of whether a copyright plaintiff must have a registration in hand when filing suit or, instead, can merely have an application pending. The case is Fourth Estate Public Benefit Corp. v. Wall-Street.com LLC, 17-571… The Solicitor General filed a brief in favor of the court taking the case. That brief urges the high court to adopt the “registration” approach based on the plain language of the statute.

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