Posts Tagged: "Gene Quinn"

It is time once again to profile some patents in honor of the festive day. While many might not consider Valentine’s Day to be a major holiday worth of profiling patents, allow me to suggest that you test the theory by failing to acknowledge the amorous sentiment of the day and see just exactly how much of a major holiday your significant other considers it to be! Not that I would suggest giving heart shaped pepperoni slices to the love of your life (yes, patented, see below), but Valentine’s Day does need a proper celebration.

Today it is quite difficult to demonstrate that a patent claim issued by the United States Patent and Trademark Office is invalid and should not have been issued. Microsoft, along with a great many others, is urging the Supreme Court to change that and make it easier for them to demonstrate that patent claims, and thereby the associated patent rights, are invalid and should not have been issued. A strange association of those who are large patent owners themselves are urging the Microsoft position because they are tired of getting sued on patents that they infringe and having to pay tens of millions or hundreds of millions of dollars because they have trampled on the rights of innovators. So in order to excuse their own infringement they are asking the Supreme Court to throw the entire patent system under the bus, which is sadly more likely to happen than not.

Congress is at it once again, with the Senate Judiciary Committee reporting out a bill last week that remarkably resembles the bill that has been unable to gain any traction in the Senate for the last several years. That would suggest that the same fate is in store for this legislation. Not so fast! I have a suspicion that this year things are different and that we really could be on the cusp of patent reform. Whether that is for better or for worse will largely be in the eye of the beholder, but what is emerging feels different and I think we are closer to change, and perhaps an end to fee diversion, than we have been at any point over the last 6 years.

Of course, it will be most useful for patent examiners to review and truly internalize the guidelines, but there is some excellent language here that is quite practitioner and applicant friendly. There is explanation of situations where a rejection should be given, but more importantly from a practitioner standpoint will be those examples and illustrations of when a rejection is not appropriate. The discussions of what an appropriate Office Action should include will no doubt be particularly useful as well as practitioners try and hold examiners feet to the fire to provide the type of information required in order to truly appreciate any problems identified by the examiner and how to appropriately respond. Indeed, it is my guess that patent practitioners will be yelling “AMEN” from the top of their lungs as they read various portions of the Guidelines.

Staffers worked with us to coordinate the interview with Congressman Chaffetz, which took place earlier today. I was told I would have 15 minutes with the Congressman, and graciously he allowed the interview to go a little long. We talked about the President’s States of the Union address, patent reform, the USPTO budget, innovation generally, manufacturing, job creation, China and more. I think many will find what Congressman Chaffetz has to say quite interesting and very encouraging. I myself found him to be well informed and refreshingly candid.

Copyright infringement has nothing to do with citation or linking back. A copyright owners rights have been infringed if another reproduces the work without their permission with or without citation. In the minds of some copyright infringement is synonymous with plagiarism. Plagiarism, however, is the passing off of the work of another as your own without citation. Legally, however, copyright infringement is merely copying, with or without appreciation of the wrong. So those who cite and link back are not absolved from copyright infringement. They are misappropriating an original work and free-riding. There is nothing creative, laudatory or commendable about free-riding.

The stories of abusive cease and desist orders are legendary. In fact such letters are indeed typically referred to as being “a dime-a-dozen.” Trademark owners and their representatives have long been believed to grossly overstate the rights a trademark conveys when they send letters to unsuspecting and often legally unsophisticated individuals who are immediately petrified and will do nearly anything to resolve the matter. These individuals and small businesses are frequently coerced to give up legal rights they have without justification, which alters their business plans without justifiable reason.

The Coburn Amendment would create a specialized fund within the Department of Treasury known as the ‘‘United States Patent and Trademark Office Public Enterprise Fund.” The PTO Director would have access to monies in the Fund for expenses ordinarily and reasonably necessary for running the Office. Perhaps most importantly, the Fund could grow so monies in the Fund could be accessed by the Director without fiscal year limitation. This could allow the Fund to grow in certain years to a critical mass that may be needed for capital expenditures. This is a brilliant idea and one that the industry needs to get behind wholeheartedly.

On Friday, February 4, 2011, the USPTO will publish in the Federal Register a notice of proposed rulemaking on “Track One” of the program, which will give applicants the opportunity for prioritized examination of a patent within 12 months of its filing date for a proposed fee of $4,000. Sadly, because the Patent Office does not have fee setting authority there will be no reduction in fees available to small entities who otherwise normally pay 50% of most Patent Office fees. Because the Congress controls which fees qualify for small entity preference everyone will need to pay $4,000 to accelerate under Track One.

A tip of the hat to Wheelpump Corporation and all other start-up and established companies seeking to be more environmentally friendly and energy conscious. We need more independent inventors pursuing these technologies, we need start-up companies to attract venture capital and we need clean, home-grown American jobs. Incremental innovation is what will bridge the gap between our current energy economy and whatever the sustainable energy economy of the future will be. Let’s just hope that the Supreme Court and the Federal Circuit don’t kill incremental innovation by rendering steps in the right direction obvious because they were inevitable eventually.

Yesterday the United States Court of Appeals for the Federal Circuit, in a split decision with Judge Lourie writing and Judge Bryson joining, took a step forward in the evolution of the law of obviousness that confirms my worst fears about obviousness in this post-KSR era. It has been argued by many that even after KSR it is not an appropriate rejection, or reason to invalidate an issued claim, that it would be “common sense” to modify elements within the prior art in a wholly new way and then combine the “common sense” modifications. I did agree that was true, at least until yesterday.

If you are anti-patent then you are anti-innovation because those who innovate are not the behemoths of industry, but rather start-up companies that absolutely require patents in order to attract funding, expand and create jobs. Thus, given the hostility toward patents it is entirely accurate to characterize the Roberts Court as anti-innovation. The Roberts Court increasingly puts hurdles in the way of high-tech job growth. You see, it is easy for anyone to characterize the Supreme Court as “pro-business” because selecting a victor in a “business case” almost necessarily means that a business has been victorious. But what business? One that is likely to innovate, expand, create jobs and form new industry? Or one that once innovated and expanded, but now finds themselves stagnant and laying off employees?

It is unfortunate for businesses, but China is becoming practically synonymous with intellectual property theft, piracy and counterfeiting. On top of that, many technology companies are learning that doing licensing deals with the Chinese means they turn over the technologies and as soon as the Chinese corporation is capable of employing the technology the sever the relationship and then compete against American companies with American technology, they just don’t have to recoup the research and development costs and they have a cheap labor force.

Monster.com®, the leading job matching engine and flagship brand of Monster Worldwide, Inc. (NYSE: MWW), is now allowing its millions of job seekers to have the opportunity to update their behavioral targeting settings, thus ensuring even more relevant matches. The Career Ad Network uses patent pending behavioral targeting technology to reach candidates where they spend time online and present them with relevant job ads.

Apple, the company known for such popular devices as the iPad, iPhone and the iPod, has obtained a patent on a glove. Yes, the company known for pushing the envelope with high tech gadgets has entered the clothing market with a patented glove. Not just any glove mind you, but rather one that will be sure to help you keep your hands and fingers warm while still being able to use your favorite smart-gadgets. With respect to claim 1, I do wonder whether a double layer glove with a hole in the outer layer might be infringing, which of course would mean that it should have anticipated the claim.