Social media is quickly become THE way to market your business. In the US, more than two thirds of all adults who are active online are also actively using social media today, However, there is still a whopping 57% of businesses who, for one reason or another do not understand the real impact that social media can have on their businesses. Gaining new and retaining old customers, sharing your products and services to a broader audience and giving your customers a voice, are just a few of the many benefits that using social media can bring to your business. There are many myths and misconceptions that keep business owners and marketers from reaping the benefits that social media. If you are one of these businesses, let me “set you free” to explore all that social media has to offer.

The term “patent misuse” refers to specific types of prohibited behavior engaged in by the owner of the patent rights. Patent misuse is an affirmative defense that recognizes that it is possible for a patent owner to abuse the exclusive right enjoyed as a result of the issuance of a patent. As an affirmative defense, patent misuse cannot be used as a sword, but can only be used by an alleged infringer if and when the patent owner seeks to enforce the exclusive right of the patent in a patent infringement suit. Once a patent infringement suit is initiated, the alleged infringer, in order to successfully rely upon the patent misuse defense, must “show that the patentee has impermissibly broadened the ‘physical or temporal scope’ of the patent grant with anticompetitive effect.” If the alleged infringer can demonstrate that the patent owner did engaged in prohibited behavior, the patent will be unenforceable despite the fact that it is valid. In this respect, patent misuse is similar to the doctrine of inequitable conduct, which also works to make an entire patent unenforceable.

With copyright misuse having recently been successful in a rather high profile case I thought it would be worthwhile to revisit patent misuse and misuse concepts generally. To do that in a way that allows the casually interested reader to follow along probably requires first taking a step back away from the intellectual property centric theories to discuss some basic antitrust law concepts. This seems particularly appropriate since many of the misuse cases have a distinct antitrust flavor.

On November 9, 2011, the United States District Court for the Eastern District of California, per Senior Judge Terry J. Hatter, Jr., granted Costco a summary judgment victory due to the fact that Omega engaged in copyright misuse. Yes, the plot thickened. The district court originally granted summary judgment to Costco on the basis of the first sale doctrine, which was overturned by the Ninth Circuit and then affirmed by the Supreme Court in the tie decision, or non-decision of December 2010. That meant that the case would proceed because the first sale doctrine summary judgment victory was erased. But not so fast! Judge Hatter had other ideas!

But surely inventors, who are very smart people, could resist the advances of the unscrupulous, right? While that is what you might expect, my experience tells me otherwise.  Aside from the conditions being right (i.e., being told the invention is brilliant, etc.), most inventors tell me that even if they were told that there would be only 1 success out of 3,000 inventions they would be utterly convinced that their invention would be that success.  I have asked this question many times at presentations, the answer is always the same, and while on one had you have to love the optimism and tenacity, this is the final ingredient that leads so many to the doorstep of the unscrupulous.  Even with perfect knowledge and information many will still make what many would characterize as a bad move.

You may have noticed that there is a new addition to IPWatchdog’s extensive arsenal of information available to IP professionals, employees and employers alike. This week IPWatchdog.com has launched its newest brand, the JobOrtunities™ Help Wanted Section; which will feature available career opportunities within the IP world.

In view of the growing need for innovator companies to obtain patent protection in multiple Patent Office around the world simultaneously, leaders of the most heavily used patent regimes continue to seek ways to streamline the process and engage in work sharing. Heads of the European Patent Office (EPO), the Japan Patent Office (JPO) and the United States Patent and Trademark Office (USPTO) – collectively known as the Trilateral Offices – pushed forward earlier this week with efforts to further harmonize global patent systems. The Trilateral Offices agreed on steps to enhance efficiency in patent-related procedures.

Consider the title of this article a very mild way of stating my frustration with the Patent Office. Yesterday, as I was trying to file a simple document using the Patent Office’s Electronic System, I kept getting an authentication error when I was trying to log on. I could not figure it out. I know that my digital certificate is up to date and I know that I had the right password. What in the world could possibly be wrong?

There has to be some patent attorneys living in the portions of Montgomery and Prince George Counties represented by Congressman Van Hollen. There has to be some patent law firms in Dallas with ties to Congressman Hensarling and/or the 5th District of Texas. I know for sure there are patent attorneys in Ohio, Arizona, Massachusetts and Washington. These are the folks who are tasked with the burden of finding $1.2 trillion to submit to Congress for a vote, and stakeholders in the patent system should reach out to them and express their views on funding for the Patent Office. Businesses, firms and individuals within the relevant Districts and States will likely have the most influence, but anyone and everyone should stand up and be heard. Who knows when, or if, there will ever be an opportunity as good as this to end fee diversion.

Effectively immediately Pappas is the new Chief of Staff and the immediate past Chief of Staff, Drew Hirschfeld, will assume the role of Associate Commissioner for Patent Examination Policy, which for a long time has been a key role within senior management at the USPTO.

As the Super Committee struggles to find nearly $1.2 trillion in revenue or savings, they should take a serious look at the proposal to give the US Patent and Trademark Office greater control over its budget and fees by creating a revolving fund. At the request of many in the patent community, Senator Jon Kyl – a member of the Super Committee – is proposing that the Super Committee include the revolving fund The Congressional Budget Office (CBO) has informally indicated that it will score the Kyl provision as saving $700 million over 10 years. By taking the USPTO out of the regular appropriations process, the creation of a revolving fund will take approximately $700 million off budget and help the Super Committee reach their goal. And –besides being a budget saver – the revolving fund is good policy.

Yesterday The Hartford announced via press release that it had invented a faster way to deliver life insurance, which is now patent pending. Can you that be true? As with many things associated with the law, particularly patent law, a simple, straightforward answer is not possible. In a nutshell, it is possible that one could patent a method of more quickly delivering life insurance if the process is new and non-obvious. However, given the law that the United States Patent and Trademark Office is required to apply there will need to be much more than a real world business method, or “pure business method” as they are sometimes referred to.

Under the Paris Route PPH pilot program, an Office of Second Filing (OSF) may utilize the search and examination results of a national application filed in the Office of First Filing (OFF) in a corresponding application filed under the Paris Convention in the OSF. The PCT-PPH pilot program will use positive international written opinions and international preliminary examination reports developed within the framework of the Patent Cooperation Treaty.

If you think the title only raises a wild possibility, consider what happened in a recent case decided by the Federal Circuit. After being sued for infringement, the defendant had the ex-wife of the inventor of the patent-in-suit sell to it any interest she had in that patent. The defendant argued that as a result there could be no infringement, both because plaintiff lacked standing and because the defendant had acquired an undivided interest in the patent. It almost worked.

As the second largest economy in the world, China is emerging to the center of the world’s economic stage. This emergence has been accompanied by constant changes in its legal and economic sectors. The intellectual property sector also has witnessed numerous recent changes. There have been significant new advances in China’s national innovation policies. New trends in Chinese patent filings have emerged. A growing number of Chinese companies are creating their own IP and increasingly filing infringement suits against foreign companies and their local competitors in China. China’s third patent law amendment has materially changed patent practice and procedures in that country.