Posts in IPWatchdog Articles

The Oil States v. Greene’s Energy Group case heard by the U.S. Supreme Court Nov. 27, 2017, has generated much ink, analysis and opinion. Rightly so, given the profound consequences for the security of exclusive private property rights of limited duration in patents. Among the worthy and constructive reflections, conservative experts and leaders have contributed a fair share… Heritage Foundation legal scholar Alden Abbott, whose background includes service at the Federal Trade Commission and as a senior corporate IP counsel, has summed up the shortcomings of PTAB “patent death squads.” Abbott suggests how the Supreme Court should rule in Oil States: “The best option to fix the Patent Trial and Appeals Board is to get rid of it. There is a powerful legal case that board review violates the U.S. Constitution, and therefore is invalid.”

Concerns about the ability of academic institutions to keep contributing to the U.S. innovation economy go well beyond federal funding stagnation according to the recent AUTM survey. In an executive summary section entitled The Perils of Eroding Patent Rights, AUTM notes that a slight decrease in options and exclusive license agreements compared to the number of non-exclusive license agreements could be due to fears that licensing companies have over protecting the intellectual property under the current iteration of the U.S. patent system. In 2016, option agreements were down year-over-year by 7 percent while exclusive licenses dropped 2.1 percent. Non-exclusive license totals, however, rose by 2.1 percent to 4,201 such license agreements in 2016. A sharp increase in startups ceasing business activity, up 37.4 percent to a total of 331 such startups, is another “ominous trend” which AUTM notes is likely attributable to eroding patent rights.

In the absence of a discernable IP policy, America achieved leadership through laws and courts that supported inventors, and commerce, and that encouraged risk-taking. But the world is now flatter than we could have imagined. If America hopes to remain at the innovation forefront, it needs to rely not only on the ingenuity of its inventors and creators, but on the leadership and vision of government and businesses… Despite the incredible success of several Internet companies — and, some believe, because of it — U.S. IP dominance is in quantifiable decline. Compounding the problem is China, which is now able and willing to fill the void. It has been widely reported that China is a better place than the U.S. and most other nations to obtain patent injunctions and receive a fair hearing in court. Despite this, many U.S. businesses and consumers, impatient with IP rights and cavalier about the impact of IP theft, have come to act with much same attitude the Chinese did before they learned better.

The issues I will be watching in 2018 other than Oil States are as follows: (1) What does the new Director of the USPTO do with respect to reforming the PTAB? (2) Will the USPTO adopt a code of judicial ethics for PTAB judges? (3) Will the U.S. drop out of the top 10 countries for patent protection in the annual U.S. Chamber IP Index? (4) How will the Federal Circuit resolve Eleventh Amendment sovereign immunity and the assertion of sovereign immunity by Indian Tribes? (5) Will the Federal Circuit continue its unprecedented disposition of cases without an opinion by relying on Rule 36 summary affirmance? (6) Will Conservative groups become even more vocal advocates of a strong patent system?

Somewhere near the end of 2011, I responded to an ad that was left on Craigslist. A website called IPWatchdog.com was looking for a writer to contribute content on Apple’s patenting activities… Over the past five years, I’ve learned a lot about what it means to be an inventor in today’s patent system. I’ve learned that, unless you have the deep wallets to create advocacy groups which beat the drums for further patent reforms in service to the efficient infringer lobby, you tend to get railroaded by the system… In short, I’ve learned that the United States of today is not the same country where the famed garage inventor can become a business success thanks to hard work and ingenuity. Today, the true beneficiaries of innovation seem to be those well-entrenched interests who can copy without great fear of reprisal, leaving the actual inventors without any true ability to commercialize and profit from their intellectual property.

For my wishes, I’ll make four. First, as I did last year, I again continue to wish for patent eligibility reform in Congress that would overrule Mayo, Myriad and Alice.With there major industry organizations coming out in 2017 to support legislative reform perhaps this wish will eventually come true, although as of now it seems to be a long shot in 2018. Second, I hope the Federal Circuit dramatically decreases its use of Rule 36 affirmances, and specifically stops using this docket management tool when cases are appealed from the PTAB and also with respect to appeals dealing with 101 patent eligibility issues. Third, I wish for the AIA post grant procedures to be declared unconstitutional, which with the Supreme Court set to decide Oil States in 2018 is at least plausible. Finally, assuming the Supreme Court does not do away with post grant challenges, I wish for the new PTO Director to dramatically reform the post grant process in ways that remove the systemic biases that have made the proceedings hopelessly one-sided against patent owners.

Invariably, the Supreme Court takes a provision or two from pending legislation and makes it law. Will they do the same now that pro-patent reform is actually pending in Congress? After so many years of staying out in front of patent reform legislation that has weakened the U.S. patent system, dropped early stage investment by 62% and brought us a 40 year low in startups thus sending venture capital, startups and complete swaths of new technologies to China, how odd it will be if the Supreme Court doesn’t do the same now that pro-patent reform is actually pending in Congress.

President Donald Trump signed a new space policy directive for human expansion across the solar system, a directive which hearkens at least slightly back to Horace Greeley’s “Go West, young man.” Increased human expansion in space will produce innovations that can improve human life on Earth to the benefit of U.S. consumers, provided our nation’s struggling IP regime can be righted for the proper commercialization of such inventions.

Here’s a different kind of column to end the year. I always talk with taxi drivers. A few months ago while riding with an Ethiopian born cabbie in downtown DC we came to a complete stop. As cars around us started honking even though there was nowhere to go, I said to the driver: “How stupid is that?” He smiled and replied: “Patience is a rose which doesn’t grow in every garden.” I wrote that down as a saying to remember. In that spirit, here are some others for your consideration…

There really is no one-size-fits-all approach inventors can follow, and there is no inventing roadmap to success that will work in all cases. Notwithstanding, there are certainly a number of things that can and should be understood if an inventor is going to pursue inventing as more than a hobby. By understanding some basic but critical information at the outset…

There were numerous decision made by the United States Court of Appeals for the Federal Circuit in 2017. Here are the most noteworthy decisions from 2017.

As we mark the close of yet another year, we’re provided with a perfect opportunity to look back on the previous twelve months and see what has transpired. No one could call it a good year for patent owners (except those with the largest pockets, of course) starting with the United States’ 10th-place ranking among national patent systems in the U.S. Chamber of Commerce’s IP Index, and it didn’t appear as though any weaknesses in uncertain patentability across the U.S. technological landscape were addressed in a positive manner this year. It’s inevitable that the ball will drop on New Year’s Eve and calendars everywhere will turn from 2017 to 2018. Whether the U.S. federal government will be able to stop the death knell sounding doom for our nation’s patent system, however, is still anyone’s guess and it seems far from likely.

Unlike previous years where we had near unanimity on the biggest moments, this year we see wide variety of thought, from SCOTUS to Capitol Hill to the DOJ… Steve Kunin focus primarily on the Supreme Court patent cases, which Bob Stoll also mentions but then goes on to discuss the lack of momentum for more patent reform and the nomination of a new Director for the USPTO as key moments. Paul Morinville also mentions the political on Capitol Hill, but focuses on Members of Congress not buying into the patent troll narrative like they once did. Erik Oliver focuses on a rebound in the patent market, Alden Abbott sees a pro-innovation, pro-patent Assistant Attorney General for Antitrust as a dramatic shift for the DOJ. Ben Natter, Jess Sblendorio and Alexander Callo focus on the Supreme Court’s decision in Matal v. Tam, which declared the prohibition against registering disparaging trademarks unconstitutional.

Every year around this time, many pause to reflect on the past and present and chart a course for self-improvement. For aspiring or accomplished intellectual property (IP) strategists, the new year offers us a clean slate to bid farewell to bad IP habits and adopt sounder approaches to benefit the enterprises we represent, the teams in which we work, and our own careers. To that end, consider these seven resolutions.

December 28 marks the anniversary of the issuance of a patent covering a bandage technology commonly known as the Band-Aid®, invented at Johnson & Johnson… In order to speed up the process of tending to his wife’s cuts and nicks, Dickson came to the idea of preparing a length of adhesive tape with sections of gauze, allowing Josephine to snip off a strip of tape and quickly apply the adhesive bandage. When the couple considered how useful such a product might be in households across the country, Earle brought the idea to his boss James Wood Johnson, another one of the three co-founding brothers of J&J. Band-Aid® brand adhesive bandages first hit the consumer market in 1920.