Drummond Joins American Innovators for Patent Reform

Mike Drummond, Inventors Digest

Mike Drummond, Inventors Digest

Mike Drummond, the Editor-in-Chief of Inventors Digest Magazine and a decorated journalist, has just  joined the Board of Directors of American Innovators for Patent Reform (AIPR).  AIPR, headquartered in New York, represents a broad constituency of American innovators and innovation stakeholders, including inventors, engineers, researchers, entrepreneurs, patent owners, investors, small businesses, and intellectual property professionals such as patent attorneys, patent agents, tech transfer managers and licensing executives.  Most recently, AIPR has opposed the Patent Reform Act of 2009, which some vocal critics have called “patent deform.”   AIPR is on record as opposing proposed apportionment of damages, post grant opposition and a change to the first-to-file regime, all sensible positions and views that I personally hold myself. When reached for comment, Drummond said: “Ideally, the AIPR will be one of those bodies that becomes irrelevant – we do our job so successfully that odious versions of patent reform die and meritorious patent changes take root. It will be interesting to see what sort of posture the new head of the USPTO takes, and what sort of fight we’re in for.”

Now, with respect to first-to-file proposals, as crazy as it may seem they are among the least troubling.  I had long believed that first-to-file would never happen in the United States because it is not only a bad idea, but the inventor lobby and patent bar always stood up to kill it.  With Patent Reform version current, there were so many other, far worse components to that first-to-file was hardly objected to by anyone.  Nevertheless, it is pure craziness to simply harmonize US patent law with the patent laws of the rest of the world.  I get sick and tired of the illogical, irrational argument that the US needs to come into line with the rest of the world and harmonize our patent laws.  At the time when our parents were saying it none of us believed it was an appropriate analogy, but the truth is that the old saying — “would you jump off a bridge if your friends did” — largely applies, and I am not talking about bungee jumping, thank you very much.  Just because a whole bunch of people do something that is stupid doesn’t mean we should do something stupid, and in the US first-to-file would be recklessly stupid.  Depending on where you get your estimates, between 70 and 80 percent of people in the US are employed by small businesses.  First-to-file helps small businesses, so moving to a mega-giant friendly system would not be right for America.

Frequently people who support first-to-file point out how expensive proving you are the first to invent is, and how unlikely it really is for most to do.  I understand that, and I respect that view point, particularly when it is presented by those familiar with interference practice.  Nevertheless, the fact that the fight is not worthwhile in many or even most cases doesn’t change the fact that in some cases it is worth the fight and the small company or independent inventor can win.  If we really want to do what the US Constitution says we are supposed to be doing, which is promoting and fostering innovation for the betterment of society, then we absolutely need to provide advantages for independent inventors and small businesses.  We all know that large corporations simply cannot invent.  There are too many layers of red-tape between an invention and the person that can green light the invention that many bad inventions are pursued and good ones weeded out.  In small, nimble and focused businesses the decision-makers can and do make better decisions because they are not married to corporate bureaucracies that promote form over substance.

In any event, the AIPR advocates strengthening the US intellectual property regime and increasing the funding of the US Patent and Trademark Office, another brilliant idea!  According to the press release announcing Drummond’s joining the Board, AIPR also advocates patent reform that creates a multi-tier patent system, synchronizes patent and copyright laws, and clearly strengthens US patents.  I have been on record saying that a multi-tier patent system is something that should at least be on the table for consideration, but I am not sure synchronizing patent and copyright laws means, but like the strong US patents part.  I personally do not see any need to synchronize patents and copyrights.  They protect different things, and easily co-exist.  When I hear patents and copyrights and synchronization I actually almost start to twitch a little, because the anti-patent crowd, particularly the anti-software patent crowd, thinks copyright protection is all software should be entitled to and needs.  Boy are they wrong!  Anyone that argues that copyrights meaningfully, adequately or even at all protect software is either naive, promoting a nonsensical agenda or simply ignorant about copyright law.  You might as well get a copyright for your software code given the cost is $45, but you get about $45 worth of protection.  Only those that cut and paste your code could be chased with a copyright on software, and the nebulous and clear-as-mud fair use provisions apply in omnipresent ways.   But I digress.

Returning to Drummond, once again, he is a real journalist.  He was a 2008 Pulitzer Prize finalist and has won numerous investigative, feature and business-writing awards. His career has included covering natural disasters and national economic issues, and he served two reporting tours in Iraq, including one as bureau chief in Baghdad for the McClatchy Newspapers. He is the author of Renegades of the Empire, the inside story of Microsoft’s computer-game and Internet ambitions. His work has appeared in Wired, Salon.com, Fortune, CNET, Business 2.0 and Forrester Research Magazine, among others, and is routinely carried by the Associated Press and Knight Ridder/McClatchy newswires.

Drummond should be an important and influential voice on the AIPR Board.  Upon joining the Board Drummond said: “This issue is too important for our nation’s innovative and economic well-being to sit on the sidelines.  While I am for improvements to the patent system that would decrease the backlog and elevate the overall quality of granted patents, the legislation as currently written does much more harm than good.”  Luckily, it appears as if Patent Reform is dead, at least in this present incarnation.  But it will be back before long, and the tech sector is all but certainly going to once again propose changes that would benefit only them and cripple everyone else, so we all need to remain vigilant.  Thankfully, Mike Drummond will be in several high profile industry positions if and when Patent Reform comes around again.  His story telling abilities may well be needed to explain to members of Congress what they should already know… independent inventors, entrepreneurs and start-up companies drive the US economy and can, if allowed, lead to yet another round of substantial economic growth.  All Congress needs to do is get out of the way, or at least not build up roadblocks.

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One comment so far.

  • [Avatar for Paul F. Morgan]
    Paul F. Morgan
    September 1, 2009 06:10 pm

    It certainly amazes those of us who have had many years of client responsibilities for interference law and practice (and settlements) that “small inventors” still think that the U.S. “first to invent” system of 35 USC 102(g) and the current interference rules generally benefits “small inventors.”
    First, It has been shown for years that only a relatively small percentage ALL inventors who delay filing patent applications until after someone else with interfering claims will normally end up getting those claims in an issued patent by successfully proving a prior invention date. Especially if the second to file does not have an actual reduction to practice before the conception date [not just the filing date] of the first to file. More recently, a study published in the JPTOS showed that small inventors are actually disadvantaged by the interference system (something practitioners have always known).
    This is not just a problem for the inventors who cannot afford the several hundred thousand dollar or more costs of using a real interference expert. It is also because well-heeled parties who filed later can very often use the current interference system to obtain a decision of unpatentability on any grounds against any or all parties. Thus, even the small inventors who file first can be are vulnerable an interference litigation attack. [They would be protected from that under a first to file system.] A high percentage of interferences these days do not even get to the priority of invention issue, because of the frequency of prior adverse patentability decisions. To put it bluntly, a significant percentage of interferences in current years end up as successful invalidity attacks, never even deciding who was the “first to invent.” The latter are significantly less than 100 a year.

    Other than the common misunderstandings above, the superficial attraction of the “first to invent” system is that it allows those applicants who are NOT claiming the same or interfering claims inventions to use Rule 131 declarations to “swear behind” [instead of distinguishing over] the filing date of earlier-filed patent applications or publications of others. [Such declarations are not even legal if any equivalent disclosure to the reference was published more than a year before the applicant’s filing date, but that is rarely checked by PTO examiners.] Nor are the alleged facts of prior invention in a 131 declaration very often given much scrutiny, even by the rare examiner who really understands the 35 USC 102(g) requirements. Thus, patent claims obtained with 131 declarations rarely survive litigation, because they rarely meet the real, and tough, tests for actually proving their invention was prior the invention date of the reference. By using a 131 declaration they have fatally created a file history that fails to distinguish over the reference.

    There is, however, a genuine problem with the present first-inventor-to-file system proposal in the most current pending legislation. There is a real need for an accompanying ‘prior user’ personal pure defense for those who have expensively developed actual products but not yet launched them or filed patent applications on every detail thereof prior to the filing date of another party.

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