Posts Tagged: "Authors"

You’ve Lost Your Non-Profit Status

We are still in limbo. I got a post card from the IRS telling us that they have received of our materials and that they will be working on it but with 270,000 extra cases to process I am not expecting anything real soon. If you knew of the change and have been filing annual 990s, my hat is off to you. However, no news in this case is really bad news because if you haven’t been filing an annual 990 and you haven’t received the notice, the IRS probably doesn’t know where you are. So rather than assuming everything is OK it might be a good idea to make inquiries.

Tenth Circuit Finds Patent Infringement Insurance Coverage Under “Advertising Injury” Clause

Therefore, no one should read this decision as stating a general rule that patent infringement is covered under “advertising injury” provisions in a typical insurance contract. Rather, the decision should be read as saying that it is possible, based on these peculiar facts, that coverage could exists for this particular patent infringement claim under the advertising injury provisions. Essentially, reaching this determination on summary judgment without full consideration was deemed inappropriate.

Having it Both Ways: the USPTO’s Inconsistent Positions in In re Lovin and Kappos v. Hyatt

Since 1993, the United States Patent & Trademark Office (USPTO) has pursued an “aggressive campaign” to free itself from oversight by and accountability to the courts. [1] At the same time, the USPTO has been just as aggressive in ignoring the provisions of the Administrative Procedure Act (APA) and related administrative laws that place responsibilities on the USPTO vis-à-vis the public. Fortunately, most administrative laws provide the public a remedy exercisable against agency overreaching: when an agency skirts its obligations, the agency loses its powers of enforcement vis-à-vis the public. Unfortunately, in July 2011 the Federal Circuit in In re Lovin [2] (opinion authored by Judge Dyk) allowed the USPTO to avoid obligations that the USPTO owes the public under the APA, while giving the USPTO judicial deference on issues where the APA grants none. A petition for rehearing of the Lovin case would give the en banc Federal Circuit the opportunity to ”right this wrong,” and to give the public the remedy that Congress intended, and to reinforce that the Administrative Procedure Act gives agencies both rights and obligations.

Shooting Ourselves in the Foot

Contrary to the tone of the Jobs Council report, U.S. academic technology commercialization made possible by Bayh-Dole is a world- wide recognized success. The law allowed universities and small companies to own and manage inventions arising from federally supported R&D. It decentralized technology management from Washington, allowing a market driven system to flourish. It did not create any new bureaucracy to select winners and losers. And it works in the hard, cold light of day.

Rebuttal Finale: A Response to Lemley’s Myth of the Sole Inventor

Lemley’s response introduces the new term “sequential improvement.” This suggests to us that he has now abandoned many of his claims of “simultaneous invention.” The word ‘sequential’ does not occur a single time in his article. We agree with Lemley’s new description that invention and innovation are often sequential, building in a series of related but different inventions: it is a normal feature of development and does not require a 108 page and 260 footnote article to establish it. Nor does it have radical policy consequences for the patent system which is well-adapted to this feature of real invention. But Lemley’s recommended policy would deny patents to second comers who contribute the key missing ingredient that unlocks an entire field. To Lemley’s credit, he recognizes the benefits of patent races and that the patent system leads to more innovation. But if that is true, Lemley does not explain why the patent system that we actually have is broken. His proposal to deny patents on “the most important inventions” and not grant more patents seems to flow from unreliable scholarship rather than a precise, reliable diagnosis of a problem.