Posts Tagged: "interview"

HIRSHFELD: “[Y]ou caught my attention with quality means we issue a few patents. So let me address that first. We’ve always focused on quality as far as I’ve been here. What we have been asked to do in recent years is ask how can we take a more “out of the box” approach to quality, right? Is there anything that we could be doing with the goal of continuous improvement? And so to me that’s an absolutely wonderful position to be in for anybody asking how can you do your job better. And so I don’t look at quality as saying we want to issue more patents or less patents, we want to do a better job, a good job in the process as we’re moving forward. Things like clarity of the record. That does not mean we’re going to issue more or less, it means that we’re going to take extra steps to make sure we’re on the same page as the applicant. Or make sure we’re creating a good record so that a third party down the road can evaluate the application history, the prosecution history and tell exactly what took place. Certainly there is not a sentiment to try to reject more or less. Our goal is to do what the courts are asking us to do but we want to make sure that we’re thinking about all the ways we can do that in the most effective, efficient and clear way.”

This is a really important question both with respect to biologics and other interventions and also as the Federal Circuit does work with the Supreme Court’s body of precedents. We have basically two principle points. One is that in our view the Federal Circuit has to do a better job rationalizing and reconciling two different sets of precedent. One is the set of modern cases and the second is an older case that the modern cases embrace, Diamond vs. Diehr, which as we understand it adopts exactly the opposite rule from the Federal Circuit in this case, which is that the combination is what has to be new not the individual processes. And then second we believe that we have a case that fits squarely within what the Supreme Court intended to remain patent eligible after those more modern cases. So we filed an en banc petition and we thought that there would be amicus support for sure. But what we didn’t expect, to be honest, was the outpouring of interest and support that we received.

Since she first joined the USPTO as the newest examiner in 1977, Focarino has worked tirelessly in a variety of different roles, always as a public servant. Not only has she worked in the public sector doing whatever job has been asked of her on behalf of the patent system, but she has also worked to be accepted as an employee of the USPTO, and not merely a female employee of the USPTO. Today it almost sounds sexist to even refer to someone as “a female employee,” but that wasn’t always the case. There is no doubt that Focarino has been a trailblazer. As the first woman to become Acting Commissioner for Patents, the first woman to become Commissioner for Patents, and a member of the first all female leadership team in the history of the USPTO, Focarino has seen the agency change dramatically over the past four decades.

According to Martin-Wallace, the goal of the Patent Quality Summit is to establish a dialogue between the USPTO and stakeholders so that both sides can obtain a better understanding of where everyone is coming from when we talk about patent quality, and to set expectations going both directions. “Quality is two-fold – both internal and external,” Martin-Wallace explained. “We want to make sure we are delivering quality to stakeholders… patents that can stand up in the courts.”

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.

”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.

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.