Posts Tagged: "manus cooney"

Today, after several years of substantial turmoil, patent eligibility in a variety of economically significant technologies is extremely uncertain, including software, natural products, medical diagnostics and personalized medicine. It is with great irony that one of the few things we know with any degree of certainty is that business methods are patent eligible… If you haven’t noticed, overwhelming portions of the U.S. economy are tied to the biotechnology and software sectors. Are we about to throw away our economic leadership? There are already some lawyers talking openly with clients about whether they may be able to in some cases actually get broader, more certain protection outside the United States.

EDITOR’S NOTE: What follows is a summary of the Goodlatte patent bill created by American Continental Group, which is a government affairs and strategic consulting firm in Washington, DC. Manus Cooney, a former Chief Counsel of the Senate Judiciary Committee is one of the partners at ACG, and is also frequent guest contributor on IPWatchdog.com. Cooney and his partners and associates worked to prepare this summary, which was described as a team effort. It is republished here with permission.

Instead of condemning NPES, the GAO emphasized at the very outset of its report that our nation’s history is filled with examples of inventors who did not develop products based on the patented technologies… [O]verall, the report directly and indirectly supports the view that there is no patent litigation crisis and that, to the extent that there are problems with the patent system, they are linked primarily to patent quality – not the identity of the patent owner (e.g. NPE, PAE, PME, operating company or whatever name one chooses to use).

On Friday, November, 30, 2012, a bill making technical changes to the AIA was introduced in the House of Representatives. The bill number is HR 6621. The proposed AIA package does NOT include a so-called “fix” to post-grant review that some considered to be substantive and not technical. Key staff on the Hill believe the measure to be non-controversial. House passage of the measure could take place before year’s end.

The PTO, the House and Senate Judiciary Committee staffs, and some segments of the patent community, mainly those that were supporters of the AIA, had drafted a a proposed technical corrections bill. Obviously, if a proposed change is purely technical in nature, there shouldn’t be a lot of trouble passing it, but what is technical and what is not technical can be a rather subjective test. There has been some talk about efforts to change the AIA in ways that would have substantive effect on the law . And it’s those issues that have garnered some attention in recent months. There was some discussion about changing the estoppel standard for the post grant review provisions of the AIA, and there have been some proposals regarding a proposed expansion of prior user rights being kicked around as well. If those are on the table or appear in a technical corrections package, “technical” in quotes, I think it would be difficult to pass such a measure this calendar year. Nevertheless, that doesn’t mean that those who support those changes won’t continue to press for them and try to see them enacted, if not this year maybe next year.

Cooney is a prominent behind the scenes player in Washington, DC. He is a partner in the American Continental Group, a D.C. based consulting and lobbying firm that boasts one of the most prominent IP practice groups in town. Cooney and the American Continental Group were intimately involved in working behind the scenes on the America Invents Act (AIA), as well as the predecessor legislation that was circulating through Congress for years before it ultimately passed. With the anniversary of the passage this month I asked Manus if he would go on the record to talk about his experiences, legislation and lobbying in general, as well as what is on the horizon for the future.

News analysis and op-ed pieces following the $1 billion jury decision in Apple v. Samsung have been filled with reactive statements critical of the US patent system. Apple’s enforcement of its patents may “literally choke innovation” cried one law professor. A critic of the decision said that cases like this will require competitors to innovators like Apple to be much more mindful of patents and to “try to avoid or secure rights to [patents]” before bringing a product to market. What the critics have not explained is how making it easier for a foreign company like Samsung to steal US-born innovation is in our long-term national interest.

Over the years IPWatchdog.com has continued to try and add additional perspectives from a wide variety of guest contributors, ranging from well respected practicing attorneys and agents to high profile academics to inventors and pro-patent lobbyists. It is hard to imagine providing such depth of analysis on such an array of topics without having truly wonderful guest authors. So we take this moment to say a very special thank you and to shine the spotlight on them. Each deserve to share in any recognition of IPWatchdog.com. Without further ado, here are the guest contributors in alphabetical order, along with their contributions for 2011.

It is fair to say that enactment of the AIA is not what most stakeholders championed early on. Many small inventors and innovation companies feel that some of the provisions are not in their best interest. IT would have preferred a bill that did more to change how patents are valued and enforced. Nevertheless, to most stakeholder, the final version of the bill is an improvement over previous versions of patent legislation. When patent reform legislation was first introduced in 2005, its primary objective was to reduce the infringement liability of large technology aggregators by significantly limiting equitable and monetary remedies, restrict venue, and make issued patents far easier to invalidate through post-grant review. In addition, earlier versions of the bill would have given the USPTO unprecedented substantive rulemaking authority and increased the cost and burden of filing a patent application. In combination, these measures would have significantly undermined the enforceability and value of patent rights, while increasing the cost, complexity, and uncertainty of obtaining patents. All of these reforms were advanced by a IT interests set on weakening the ability of small innovators to obtain and enforce patents.

On Friday, September 16, 2011, President Obama signed into law “The America Invents Act” (“AIA”) which passed the Senate on September 8, 2011, by a vote of 89-9. The AIA passed the House of Representatives on June 23rd by a vote of 304-117. The measure, which is the product of a seven-years-long legislative battle among patent policy stakeholders, changes how patents are obtained and enforced in the United States. Important reforms to patent law are incorporated into the AIA and, just as significantly, several controversial proposed changes were deleted from the AIA before final passage. This article is a play-by-play of the process and how it unfolded.

The magnitude of the problems facing our economy cannot be overstated. Neither can it be overstated that a coherent national innovation policy is the answer to what ails the U.S. economy. As Hank explains in the Introduction, “for the first time in our history, the connection between technological innovation and job creation has broken down. And for the first time also, the wealth created by innovation is going mostly just to a handful of founders and venture capitalists rather than to many thousands of employees, not to mention the community at large.” Through mismanagement and misapplication of tax, immigration and patent policies our leaders in Washington, D.C. have done us no favors. Speaking at the reception last night Nothhaft explained: “We live in the greatest country in the world and we seem bent on tying our arms behind our backs.” That has to change.

With a powerful vote of 87 to 3 on a motion to bring debate to a close, the Senate is on the cusp of passing comprehensive patent reform legislation. S.23, “The America Invents Act,” is expected to pass with a strong vote as early as Wednesday of this week. In the end, the full House and Senate will need to pass the same version of any patent reform bill before it can become law. Assuming House Judiciary Committee Chairman Smith passes a bill of note through the House; the House and Senate bills will need to be reconciled. While civics books teach that the differences in the bills will be resolved via a formal Conference Committee, the Senate and House have not conferenced on a Judiciary Committee bill since 2005. A formal conference for patent reform is considered very unlikely.

While New Mexico is not the only institution fostering growth, they do on average participate in the start up of 5 to 8 new companies a year. Kuutilla said that STC.UNM has participated in licensing technology to start-up companies that have created multiple hundreds of jobs at an average annual salary of $80,000 per job, which is $30,000 higher than the average private sector salary in the United States. There is no doubt that jobs in the innovation economy are high paying and exactly the type of jobs we need to be fostering.