Posts in Interviews & Conversations

The U.S. economy is full of intermediaries everywhere you look. But for some reason we have demonized the intermediaries in the market for innovation. Think of it this way. Most people buy their groceries at a grocery story. That grocery store does not grow any of the vegetables, raise the meat, nor catch the fish. It is simply an intermediary. Now I can see why from the point of view of a manufacturer the PAE may be a nuisance. But from the inventor’s point of view the PAE is a valuable intermediary.

Large companies can steal your patented technology, make a great deal of money, ignore you all together, and then have the resources, the vast resources in most cases, to delay your enforcement actions or actually destroy your patents by any means necessary. So the only recourse left for me and others like me is to bring suite to protect my invention – my intellectual property rights. However, the loser pay clause in HR 9 would be a showstopper for me. Bringing a suit against a patent infringer would be too much of a risk for me and my family now and I’ve already used my life savings and family inheritance and hard work for over 15 years plus the untold impact on my family just to develop and maintain my patents. I just do not believe the independent inventor is the problem.

”A few years ago we ramped up our foreign filings and recognized that we’re writing this one document, this one patent application for so many different audiences. We started settling in on the European technical standard as a guide for how to draft, how to cover the innovation from that vantage point, in order to try to write this document that would satisfy the USPTO as well as the EPO, Chinese Patent Office, the Japanese Patent Office, and so on. So for me, what this environment means as a practitioner has more to do with how the patent is drafted and how we capture the innovation, and not really a huge difference about what the underlying innovation is or how it’s implemented.”

According to Congressman Collins, who I spoke with via telephone on Friday, March 6, 2015, there was a great deal of treatment of the SEA at the subcommittee level during the 113th Congress, but now during the 114th Congress consideration will move to the full Committee level, which suggests a seriousness about getting something done. ”Music licensing will be an area where something bubbles up this Congress,” Collins explained. ”I’m hoping the industry will come together.”

”[L]itigation abuse is driving so many of the issues and so much of the negative sentiment around patents generally. Certainly it’s important to ensure that quality patents are issued, with quality examinations, and quality patents are filed from a disclosure standpoint. The problem is largely addressed with the patent owners and how they’re asserting and using and abusing their rights versus how those rights may or may not come out of the Patent Office.”

I do feel that the whole notion of trying to find an “inventive concept” is really challenged. While the Supreme Court went out of its way to say we are really not putting Sections 102 or 103 in here, I think what’s happening is the Courts are basically trying to do that. And they’re looking deeply into prior art in some cases to knock out patents under Section 101 and whittle away the invention, and trying to find the abstract idea by doing a prior art analysis, and I think that’s troubling.

On January 20, 2015, I interviewed Fatih Ozluturk, a prolific inventor who has close to 200 patents to his credit and a similar number of patent applications still pending. His inventions have been licensed by every major cellular OEM, and have created over $1 billion in licensing revenue. Today Ozluturk continues as an inventor himself, but he is also now an…

”We have corporate interests masquerading the drastic overhaul of the patent system as mere tort reform… It makes no sense to undermine long-standing property rights to address a supposed litigation explosion that doesn’t exist with a supposed tort solution that doesn’t apply.”

”Even a startup with strained resources can afford to file provisional applications. As a result of the American Invents Act and the fact that the United States is now a first inventor to file country, it is advisable for any company to file provisional applications as soon as they have a meaningful invention and have the ability to put it down in an application and file it. So, that would be the most important advice I can give.”

There was a lot of action on this in the last Congress. There is a group of law professors that have expressed some opposition to the proposal to add a civil remedy, in spite of widespread support among industry stakeholders. There was some controversy around some seizure provisions that were suggested in one version of the legislation. And I think those discussions will usefully inform what will be done in this Congress. But I believe there is a great deal of support for making that basic change to allow companies to have another—not a displacement, not preemptive of state law but an additional place to go to get the benefit of nationwide service of process and other special advantages of being in federal court.

During our interview Lee explains that she is supportive of expanding trade agreements currently under consideration in Congress, that she looks forward to working on patent quality and receiving feedback from stakeholders on how the Office can better address patent quality, and she explained that the Office was pleased with the recent Federal Circuit ruling in In re Cuozzo Speed Technologies, which is the first appeal of a final decision of the Patent Trial and Appeal Board (PTAB) in an Inter Partes Review (IPR) proceeding.

With the Euro once again in crisis people look back on the decision to go with the common currency and many people here believe that that was a step too far. That engaging in the expectation that if we do this it will naturally bring us closer together was perhaps way too optimistic. And too risky. And that risking the kind of fiscal instability that we have seen recently in order to push everyone towards a closer political union some people are saying now was a very bad bet to make, without a real supra-national bank and without having first knitted the countries together better politically.

An interview with Jim Pooley, former Deputy Director General of WIPO – The actual changes that we might have to accept in a truly globalized, harmonized system are not going to be that difficult for us. The real difficulty is getting everybody to agree on one set of best practices. That, it turns out, is a political road that is just as difficult now as it ever has been. But the goal is clear, the goal is compelling and I think all of us need to work as hard as we can to push things in that direction. First of all we’ve got to get the industrialized countries to agree on a single approach, or at least an understood and aligned approach, to a grace period. Once that happens I think the other issues that we have to deal with will fall into place. We have to keep in mind that while the politicians or diplomats argue with one another, we have sitting on the sidelines all of our clients who are cheering for harmonization. They want to see this happen. And at the end of the day politicians need to recognize it’s the users of the patent system that own it and we need to make sure that they get the system that they deserve.

LES is focused on licensing standards, which will also define best practices to separate patent owners with good behavior from bad behaviors. The committees also contemplate establishing template documents for transactions. The overall idea is that these standards, best practices, and template documents will become the foundation for an accreditation process. And so, yes, we absolutely encourage anyone to join the discussion as it’s being framed now but all participants need to recognize that to meet the standards and accreditation requirements you are going to be accountable yourself to the standards that are defined by these programs.

Phil Hartstein is the President and CEO of Finjan Holdings, Inc. (NASDAQ: FNJN)… On January 6, 2015, I interviewed Hartstein, which appears below. We had a wide ranging and lively discussion about the current state of the patent market, how the pejorative use of the term “patent troll” does nothing but attempt to denigrate innovators as second-class patent owners simply because they don’t manufacture, efforts to promote ethical licensing standards, and patent reform.