Posts in IP News

The fiscal year 2011 results are now in and the backlog of untouched patent applications as of the end of FY 2011 was 669,625, so there is plenty of work to be done and hiring more patent examiners has to be a part of the solution. But did you know that Albert Einstein was a patent examiner? How about Thomas Jefferson? Jefferson is largely regarded as the first U.S. patent examiner. Thomas Jefferson (then Secretary of State), along with Secretary of War Henry Knox, and Attorney General Edmund Randolph, made up the first patent examination panel for the United States of America. Einstein, on the other hand, worked for the Swedish Patent Office. It was while working for the Patent Office that Einstein came up with his theory of relativity.

Whenever I write about USPTO conferences, symposia and events for independent inventors I say: “Simply stated, if you are a serious inventor you need to go to this Conference.” I really do believe that is true. You will be amazed at how much useful information you can obtain, and meeting up close and personal with successful inventors and government Officials is both educational and inspiring. It is sometimes easy to feel all alone as an independent inventor, facing a huge faceless bureaucracy as you attempt to do something that few of your friends and family really understand. These events that cater to the independent inventor help you realize you are not alone and while the USPTO is a government agency — even a bureaucracy — there are dedicated people up and down the chain of command who really care about innovation and want to help independent inventors. So be prepared to learn and be prepared to be inspired. Also come armed with ideas and suggestions. USPTO officials genuinely seem to want to hear what independent inventors are thinking and what they would find useful in the future.

It would be bad enough if politicians did nothing once elected, but it seems that they have a knack for doing those things that will do the most harm. That is why one of the recommendations in the interim report has me rather concerned. On page 21 of the report the Jobs Council recommends: “the Administration should test an ‘open source’ approach to tech transfer and commercializations.” What does that even mean? It might sound good to some, and certainly is the “in thing” to recommend I suppose. After all, “open source” is the solution to all the problems of the world, right? Never mind that the open source community has yet to identify a long term, stable business model that makes money.

Since 1993, the United States Patent & Trademark Office (USPTO) has pursued an “aggressive campaign” to free itself from oversight by and accountability to the courts. [1] At the same time, the USPTO has been just as aggressive in ignoring the provisions of the Administrative Procedure Act (APA) and related administrative laws that place responsibilities on the USPTO vis-à-vis the public. Fortunately, most administrative laws provide the public a remedy exercisable against agency overreaching: when an agency skirts its obligations, the agency loses its powers of enforcement vis-à-vis the public. Unfortunately, in July 2011 the Federal Circuit in In re Lovin [2] (opinion authored by Judge Dyk) allowed the USPTO to avoid obligations that the USPTO owes the public under the APA, while giving the USPTO judicial deference on issues where the APA grants none. A petition for rehearing of the Lovin case would give the en banc Federal Circuit the opportunity to ”right this wrong,” and to give the public the remedy that Congress intended, and to reinforce that the Administrative Procedure Act gives agencies both rights and obligations.

Contrary to the tone of the Jobs Council report, U.S. academic technology commercialization made possible by Bayh-Dole is a world- wide recognized success. The law allowed universities and small companies to own and manage inventions arising from federally supported R&D. It decentralized technology management from Washington, allowing a market driven system to flourish. It did not create any new bureaucracy to select winners and losers. And it works in the hard, cold light of day.

Lemley’s response introduces the new term “sequential improvement.” This suggests to us that he has now abandoned many of his claims of “simultaneous invention.” The word ‘sequential’ does not occur a single time in his article. We agree with Lemley’s new description that invention and innovation are often sequential, building in a series of related but different inventions: it is a normal feature of development and does not require a 108 page and 260 footnote article to establish it. Nor does it have radical policy consequences for the patent system which is well-adapted to this feature of real invention. But Lemley’s recommended policy would deny patents to second comers who contribute the key missing ingredient that unlocks an entire field. To Lemley’s credit, he recognizes the benefits of patent races and that the patent system leads to more innovation. But if that is true, Lemley does not explain why the patent system that we actually have is broken. His proposal to deny patents on “the most important inventions” and not grant more patents seems to flow from unreliable scholarship rather than a precise, reliable diagnosis of a problem.

The United States Patent and Trademark Office (USPTO) released two Federal Register Notices on October 7, 2011, seeking written comments and announcing two public hearings for two studies the agency is required to conduct under the America Invents Act. Specifically, Congress is requiring the USPTO to study and report on the availability of prior user rights in foreign countries as well as options to aid small businesses and independent inventors in securing patent protection for their inventions. The USPTO reports for both studies are due in mid-January 2012.

Dudas started off discussing USPTO funding by explaining that while he was at the agency, while he was preparing to testify before Congress at one particular moment, he discussed with his senior staff the problem. “Why can’t I just tell them that the PTO funding is like a ponzi-scheme,” Dudas recounted. He would go on to say that everyone to a person told him “you can’t say that!” So Dudas settled on saying it this way: “the funding of the USPTO is similar to the way Congress funds Social Security.” That seemed to please his advisors and apparently didn’t ruffle any feathers on Capitol Hill. Of course, those on the Hill probably had no idea what Dudas was saying, after all many leaders (including Senate Majority Leader Harry Reid) are in denial with respect to Social Security and actually claim that there isn’t a crisis and those claiming Social Security is going broke are perpetuating a myth because they don’t like government.

Forever a PC family, IPWatchdog has slowly converted over to all Apple/Mac products. It started with iPhones, then an iPad, followed by 27″ iMacs, and now MacBook Airs. This conversion ultimately got me thinking, “What happened to the old Mac vs. PC Commercials?” Nearly two years ago I wrote an article Mac vs. PC: A Simplistic Yet Effective Marketing Strategy. You remember Mac vs. PC don’t you? The usually frazzled, often disheveled “PC” was played by John Hodgeman and the always hip, cool and technologically advanced Mac was played by Justin Long. The Get a Mac ads which started in May of 2006 and ended in October of 2009 seem to have virtually disappeared. In fact, the commercials are not even featured on the Apple Website. If you click on the “Commercials” link you are now taken to a “Why You’ll Love a Mac” page. Boring. Could it be that Apple thinks PC’s no longer have the issues that have always plagued them in the past? I doubt it. Why do you think we are moving over to “the Dark Side???” Maybe Hodgeman and Long got too big for their roles? Well no matter what the reason, I have one question, “Hey Apple, what happened to Mac vs. PC?”

I have done quite a bit of writing about the America Invents Act, but I have been a bit derelict in providing the sequel to America Invents: A Simple Guide to Patent Reform, Part 1. Part of the reason, if not the entirety of the reason, is that the major parts of the American Invents Act that remain are anything but simple. On this note I embark upon Part 2, which will seek to make sense of prior user rights, post-grant review, preissuance submission and patentability changes. This will leave inter partes review, supplemental examination and derivation proceedings for the finale — Part 3.

22% of social network patent applications are filed within one year of the youngest prior art cited against them. So speed of filing counts. If these applications had been filed a year earlier, then 22% of them would have avoided the youngest prior art cited against their independent claims. The applicants would have had correspondingly broader claims allowed. They would not have had to argue or amend around this prior art or abandon their applications altogether.

The reality is that science fact and science fiction are dictated based on currently accepted understandings, whether they be true or not. As impossible as something sounds, what we understand as science fact is always bounded by our understanding of our surroundings. As our knowledge expands what was formerly science fact frequently becomes science wrong, sometimes badly wrong. Does that mean that someday perpetual motion will be a reality? Who knows. I am not holding my breath or taking any bets, but there are a lot of highly intelligent people constantly trying to unlock the mysteries of the universe and with so many new discoveries it seems science continues to encroach upon the impossible. Just think about cloaking devices and a transporter a la Star Trek, which are already to some extent realities.

Accudial Pharmaceutical®, Inc. has acquired Stephen Key Design, LLC. This acquisition expands AccuDial’s patent portfolio to over fifty patents for weight based dosing and other extended content rotating labels (ECRL), which adds 75% more labeling space to a container. Yes, this is that same Stephen Key, known known to many inventors and entrepreneurs as the man behind Invent Right and the author of One Simple Idea: Turn Your Dreams Into a Licensing Goldmine.

Steve Jobs, the visionary founder and leader of Apple Computer Corporation, died Wednesday, October 5, 2011 at the age of 56 after an 8-year battle with a rare form of pancreatic cancer. Jobs, who is sometimes referred to as the father of personal computing, was the mastermind behind Apple’s Computers, iPods, iPhones, iMacs and iPad’s and is seen by many as a man who pioneered the personal computing industry and literally changed the way we live our lives every day. In celebration of his life and his accomplishments over the years, the following is a timeline of Jobs’ history, and the history of Apple, beginning in 1972 when he graduated from High School in Palo Alto, CA, and focusing on the major events in a memorable life.

If you actually read my article you will find that I simply don’t say the things they claim I say. The basic refrain of the Howells-Katznelson paper is that (1) I think Edison and the Wright brothers didn’t make inventive contributions, and (2) I diminish their contributions in service of my “radical” anti-patent agenda. With all due respect, I don’t see how anyone who read the whole paper could think I said any such thing. There is no question that Edison and the Wrights made useful contributions to the world. The point of my article is that they (and the many other iconic inventors I discuss) did not act alone. They made important but incremental contributions on the shoulders of many other inventors advancing the technology, and they often did so at about the same time as other, lesser-known inventors.