Posts in Interviews & Conversations

I think it’s interesting to see how people present this as a bipartisan issue but that covers up the fact that actually there are some very clear splits within the parties themselves. A number of the conservative think tanks and interest groups have come out and come out very strongly against broad-based patent reform. But, if you look at some of the Republicans in the House and Senate who support legislation they have not really addressed that property right piece and have focused more on litigation reform and things like fee shifting which they feel need to be part of any strong reform package. So the politics is quite split and is actually quite nuanced which I’m not sure people always appreciate.

CUBAN: I have invested in more than 150 companies and never has having or not having a patent impacted the final decision. Small businesses can and do become great without patents. The problem for little guys with patents is that no patent lives in a vacuum. Particularly with software and technology. There is always a work around and you can always find a patent that enables the big guy to sue the little guy. So with just few exceptions the current system doesn’t protect anyone.

“It has met and exceeded my expectations,” Sharon Israel told me during a recent interview to discuss her term as AIPLA President, which concludes at the end of the AIPLA Annual Meeting next week. “I thought I had a good idea of what my year would be like, but it went beyond what even I expected. There is a lot to be said for what AIPLA does in terms of advocacy, education, member services and global outreach – it is a wonderful organization.”

Yesterday I moderated a Google Hangout on the topic of patent reform, which was sponsored by the Innovation Alliance’s save the inventor campaign. Joining me for the conversation was United States Senator Chris Coons (D-DE), a member of the Senate Judiciary Committee and the driving force behind the STRONG Patents Act, and Congressman Thomas Massie, an inventor and patent owner who is a member of the House Science, Space and Technology Committee. Our wide ranging conversation addressed whether patents promote or inhibit innovation, the most problematic provisions in the pending patent reform bills, whether patent reform is even necessary, and the inevitable reality that a push for patent reform will remain on the agenda for the foreseeable future.

KAPPOS: “Back when I was an engineer we saw it in mainframe computers where you’d make an invention and frequently initially the software wasn’t fast enough to be able to run the algorithm. So the algorithm would first be built in silicon, really expensive, but you’d wind up then fabbing up chips to be special purpose chips to run the algorithm. And then later as the software got faster the underlying computer systems got faster you’d reimplement the same algorithm in software, same algorithm, same invention but just reimplement it in software and then even later after that when the ASIC density got good enough you’d reimplement yet again in an application-specific integrated circuit, an ASIC. And so you’d have a little bit of a hybrid, if you will, but more on the hardware side, it’s an IC. It’s again putting the algorithm in a chip. And so what you’d see by looking at that is that it made no sense to say that an algorithm was patentable if it was implemented in a hardware chip. But the same algorithm implemented in software was unpatentable. Just didn’t make sense to say that.”

KAPPOS: ”Companies like Microsoft and Apple and GE — all of whom are members [of the Partnership for American Innovation] along with IBM, Ford, DuPont and Pfizer as well as smaller companies like Many Worlds and Second Sight — all of them are engaged in the hard work of making major, I’ll call it bone-grinding innovations. Second Sight is literally coming up with electro mechanical and implantable human interfacing medical technology that enables blind people to see. And like you said, Gene, serious software development involving lots of super smart people and putting in tremendous amount of time with a lot of specialized expertise, devising solutions to very important problems. You know, enabling blind people to see — it’s hard to imagine a more tangible, practical and important problem than that.”

This is the final segment of my interview with Drew Hirshfeld, Commissioner for Patents at the United States Patent and Trademark Office. In this segment we get to know Hirshfeld personally, as a father and New York Knicks basketball fan.

HIRSHFELD: “[Y]ou caught my attention with quality means we issue a few patents. So let me address that first. We’ve always focused on quality as far as I’ve been here. What we have been asked to do in recent years is ask how can we take a more “out of the box” approach to quality, right? Is there anything that we could be doing with the goal of continuous improvement? And so to me that’s an absolutely wonderful position to be in for anybody asking how can you do your job better. And so I don’t look at quality as saying we want to issue more patents or less patents, we want to do a better job, a good job in the process as we’re moving forward. Things like clarity of the record. That does not mean we’re going to issue more or less, it means that we’re going to take extra steps to make sure we’re on the same page as the applicant. Or make sure we’re creating a good record so that a third party down the road can evaluate the application history, the prosecution history and tell exactly what took place. Certainly there is not a sentiment to try to reject more or less. Our goal is to do what the courts are asking us to do but we want to make sure that we’re thinking about all the ways we can do that in the most effective, efficient and clear way.”

This is a really important question both with respect to biologics and other interventions and also as the Federal Circuit does work with the Supreme Court’s body of precedents. We have basically two principle points. One is that in our view the Federal Circuit has to do a better job rationalizing and reconciling two different sets of precedent. One is the set of modern cases and the second is an older case that the modern cases embrace, Diamond vs. Diehr, which as we understand it adopts exactly the opposite rule from the Federal Circuit in this case, which is that the combination is what has to be new not the individual processes. And then second we believe that we have a case that fits squarely within what the Supreme Court intended to remain patent eligible after those more modern cases. So we filed an en banc petition and we thought that there would be amicus support for sure. But what we didn’t expect, to be honest, was the outpouring of interest and support that we received.

Everybody has to be careful because you’re right if we undermine our patent system that is the only thing that allows America to remain strong competitively because China they just have labor rates that are a fraction of ours. We couldn’t possibly make products as cheaply as China. We need to make sure that Congress isn’t hearing so much about how bad the patent system is that they without intention undermine it in significant part and then hurt our competitive advantage against China. I mean that’s all possible. I agree. I share that concern. Are we going too far?

I think there was certainly a level of abuse prior to patent trolls from larger companies that weren’t scrupulous trying to sue smaller companies and using the high cost of patent litigation to get things they weren’t entitled to. The only difference was these smaller companies that were being abused didn’t have any lobbying efforts before Congress. So when the whole patent troll issue came to a fever pitch the biggest companies in America were being held hostage to it. Apple, Microsoft, Facebook, LinkedIn, all of the most notorious companies that are just great technologies were being sued by smaller entities. And how do these smaller entities get economic leverage over these big companies? They did it because they could file 40 lawsuits at a time so the incremental cost beyond case number one didn’t cost anything. And they would just hold out for these nuisance value settlements and that’s why even the largest companies in America were being held hostage. How Octane changed that is now that you have a realistic chance of getting attorneys’ fees, now you have that chance now the bigger companies can stand up to a troll.

Since she first joined the USPTO as the newest examiner in 1977, Focarino has worked tirelessly in a variety of different roles, always as a public servant. Not only has she worked in the public sector doing whatever job has been asked of her on behalf of the patent system, but she has also worked to be accepted as an employee of the USPTO, and not merely a female employee of the USPTO. Today it almost sounds sexist to even refer to someone as “a female employee,” but that wasn’t always the case. There is no doubt that Focarino has been a trailblazer. As the first woman to become Acting Commissioner for Patents, the first woman to become Commissioner for Patents, and a member of the first all female leadership team in the history of the USPTO, Focarino has seen the agency change dramatically over the past four decades.

Who owns what and whether the rights are perfected simply cannot be a question if you want to have a market economy that recognizes patents as an asset class. For assets to be traded to the party who can best maximize value transaction costs must be kept low enough to facilitate a deal. Simply stated, if ownership information is spotty, incorrect or incomplete, there is no way to maximize the value of any single asset or patent portfolio.

Things have changed in a way because technology has allowed sampling of very specific parts of songs to take place sometimes without written prior acknowledgement or permission from the original artist. I think in music, going back many decades, people have always been lifting ideas from one another and interjecting those bits of ideas as musical “flavors” into songs. The lifted parts were brief and the influence might have been subtle, but noticeable. Guitar players have lifted licks or phrases off of the old Blues artists, and continue to this day. So this is really nothing new. But to extract specific parts of an existing song and make it the basis of a “new” song for me is a stretch and potentially signals a lack of deeper creativity and emotion. If however a musician does this and obtains permission to use from the original copyright holder, then I can respect that.

According to Martin-Wallace, the goal of the Patent Quality Summit is to establish a dialogue between the USPTO and stakeholders so that both sides can obtain a better understanding of where everyone is coming from when we talk about patent quality, and to set expectations going both directions. “Quality is two-fold – both internal and external,” Martin-Wallace explained. “We want to make sure we are delivering quality to stakeholders… patents that can stand up in the courts.”