Posts Tagged: "Gene Quinn"

As the debate in the Senate starts to wind down and moves to the House of Representatives, whether you are pro-reform or against reform, get involved and participate. Taking the time to be engaged can go a long way. In listening to the debate in the Senate over the past 4 days it is clear to me that Senators are listening to those on both sides who engage in thoughtful debate. While I am often cynical about government, it has been refreshing to watch. Painful at times, but nice to see that ordinary citizens can make a difference.

The Senate Roll was called and a vote taken on whether to table the Feinstein Amendment. The votes were 87 in favor and 13 against, thereby killing the Feinstein Amendment and keeping the first-to-file provisions within S. 23.

As flattering as it was to be inserted into the patent reform debate in some peripheral way, the real news from yesterday was the Manager’s Amendment was passed by a vote of 97-2. The Manager’s Amendment included language that would allow the United States Patent and Trademark Office to keep the fees it collects. The Manager’s Amendment reportedly also included insertions favored by Congressman Lamar Smith (R-TX), who is chair of the House Judiciary Committee. Thus, it seems quite likely that patent reform will soon become a reality.

As I have repeatedly explained over and over again for the past several years, there is nothing to fear about a first to file system (see above) AND there is no reason that a first to file system must be linked with changes to the grace period enjoyed by innovators. It seems those that would prefer to marginalize my factually correct statement about a de facto first to file statement conveniently ignore my complete views. Those who mischaracterize the truth seem to have an unhealthy and unnatural emotional attachment to a first to invent system that simply doesn’t exist, at least 99.99613% of the time.

Easily the most eggregious thing written about patent reform, at least that I have seen, is a statement from the Associated Press. In talking about the grace period in the patent reform legislation the AP wrote: “It comes with an enhanced grace period to protect inventors who publicly disclose their inventions before seeking patents.” This is not misleading, it is flat wrong. The grace period contained in S. 23 is not “enhanced,” but rather it is reduced.

Erik Iverson is Associate General Counsel with the Bill & Melinda Gates Foundation, working exclusively with Foundation’s Global Health initiate. Mr. Iverson works with grantees in the development of intellectual property management plans, collaboration agreements and global access strategies with respect to the health solutions being funded by the Foundation. During our conversation Iverson and I talked about how the Gates Foundation seeks to incentivize innovators, as well as foster and respect intellectual property rights while at the same time engaging in what by its very nature is a humanitarian effort.

In this second installment of my interview with Don Dunner, the dean of CAFC appellate advocates, we talk about which judges on the Federal Circuit ask the most difficult questions, who he thinks are capable candidates for future federal circuit vacancies, why the Federal Circuit was created as a specialty court, continued hostility toward a purely specialty court and Congressman Issa’s attempt to create a pseudo-specialty trial court for patent issues. We also touch upon the familiar fun questions and learn that one of Dunner’s favorite movies is a well known courtroom comedy.

The largest patent infringement verdict in U.S. history did not stand the test of time at the United States Court of Appeals for the Federal Circuit. After a five-day trial, the jury found Abbott liable for willful infringement. The jury rejected Abbott’s argument that the asserted claims were invalid, and awarded Centocor over $1.67 billion in damages. The Federal Circuit reversed and held that the asserted claims were invalid for failure to meet the statutory written description requirement, erasing the $1.67 billion verdict.

Don Dunner is a partner with Finnegan, Henderson, Farabow, Garrett & Dunner, LLP, and he has argued over 150 cases before the Federal Circuit. Dunner was enormously candid, although many of the things I would have liked to ask him had to be off the table due to ongoing litigation. In fact, Dunner is involved in three exceptionally important cases: TiVo v. Echostar, Microsoft v. i4i and Uniloc v. Microsoft. Thankfully, Dunner did agree to return to talk to us further once these important cases finally resolve without further opportunity for appeal. We did, however, go in depth discussing eBay v. MercExchange, the dynmic between the Supreme Court and the Federal Circuit, how he approaches appeals generally and specifically blow-by-blow and which Federal Circuit Judges ask the toughest questions.

Carrier goes on to detail the comprehensive research of Professor John Walsh who in 2007 surveyed 1125 biomedical researchers in universities, government labs and nonprofit institutions. Walsh received 414 responses and the responses were overwhelmingly clear. Carrier explains that only 3% of respondents indicated that they stopped pursuit of a research agenda based on an excess of patents present in the space. Furthermore, Carrier explained that a mere 5% of respondents even regularly checked for patents related to their research and “no respondents reported that they had abandoned a line of research because of a patent.”

If you look at the list, when they first started doing these ranking we were number one, then we were number four, and then we dropped. Now we’re number nine, and they only rank through number ten. So we’re tied for ninth with Duke, which is amazing given our size and our location. Now, the schools ahead of us are Michigan, Harvard and Stanford. In many ways we would never be on that list. To remain on the list, we needed to be in a bigger boat. We needed more resources. Otherwise, we might be pushed off the list, and we don’t want to fall off that list. So I think in some ways we were entrepreneurial as the school has always been, in ensuring our long term vitality. I think our capacity to be a larger player potentially with more resources, with more interdisciplinary activity in our IP center, has been enhanced.

Deputy Director Designate Rea is a patent attorney herself, having been admitted to the patent bar on December 15, 1981. According to her profile page on her firm’s website – Crowell & Moring LLP – Rea’s practice has focused on complex patent litigation and inter partes matters, as well as patent procurement and portfolio management, including patent preparation and prosecution. Rea also has experience in drafting infringement and validity opinions, as well as interference, and licensing matters. Therefore, it seems that the push to have high achievers with industry specific patent experience continues at the Patent Office, which is refreshing.

Today Barner is here to talk to us about what is going on at the USPTO. She is discussing the USPTO Strategic Plan, which she was primarily responsible for pulling together during her tenure. She also went on to discuss appeals to the BPAI, the IT system overhaul, patent reform, patent politics, Microsoft v. i4i and much more. As a former Deputy Director we are getting not only the facts, but her opinions as well. An excellent, informative and candid presentation.

It is impossible to know for sure, but it is reasonable to assume that the 1000+ page IDS Kappos referred to might be in response to what the Supreme Court will likely do. The Supreme Court doesn’t seem to like to apply changes in the law prospectively, even radical changes as this would be. So if they do lower the burden the changes will be applied retroactively and affect (and infect) issued patents and pending patent applications. With that in mind, those with patent applications pending might want to anticipate the worst and file “everything made by man under the sun” information disclosure statements. That way you will be protected if the Supreme Court says there is a reduced standard for invalidating patent claims when prior art was not submitted to the Patent Office.

On January 28, 2011, the recently retired Chief Justice of the New Hampshire Supreme Court, John Broderick, became the Dean and President of the University of New Hampshire School of Law. The new UNH School of Law is the law school formerly known as Franklin Pierce Law Center, renowned around the world for its intellectual property program. On January 31, 2011, I had the opportunity to chat with Chief Justice Broderick, who prefers to go by his first name these days.