Posts in IPWatchdog Articles

On Tuesday, May 25, 2010, Adam Albrett, a patent attorney (Reg. No. 50514) who lives in Fairfax, Virginia, was arrested and charged with making threats on the life of the President of the United States, Barack Obama. At that time an order of temporary detention was issued by US Magistrate Judge Thomas Rawles Jones, Jr., who ordered that Albrett be held in custody pending a detention hearing that was to be held on Thursday, May 27, 2010 at 1:30 pm. Instead of the detention hearing being held today it was deferred until Tuesday, June 1, 2010, at 2:00 pm. Albrett’s temporary detention was extended until that time.

While this patent statute of limitations is an extraordinarily long statute of limitations by legal standards there is another very important piece to the puzzle that needs to be appreciated by those who would choose not to pursue infringers; namely the doctrine of laches, which can prevent recovery against a defendant even if infringement is conclusively proven. So those who are patent owners don’t usually have to worry too much about the statute of limitations, but they should be mindful of the 6 year limitation period. Now one also needs to be mindful of estoppel, but don’t forget laches either. Laches and estoppel are both equitable remedies, which are related, but at least somewhat different.

After first “threatening,” then being “silent” for over three years, the patentee in Aspex Eyewear was barred by the defense of equitable estoppel from getting any relief for patent infringement. What’s even worse, after the initial “threat” of infringement the patentee in Aspex Eyewear created this ticking estoppel time bomb by failing to mention (in follow up exchanges) the two patents for which suit was filed, while mentioning three other patents which were not involved in the suit that was filed.

If you ever thought of starting a patent software company, I have some good news for you. Unlike the general software markets for, say, antivirus or mp3 software, the legal software market is just not very saturated. A lot of the existing software for patent lawyers is outdated, ridiculously expensive, and frankly, not that good. There is definitely room for…

Earlier today the United States Supreme Court denied Microsoft Corporation’s petition for writ of certiorari in Lucent Technologies, Inc. v. Gateway, Inc. et al, with Microsoft being among the “et al.” While the Federal Circuit affirmed the validity and infringement aspects of the underlying decision of the United States Federal District Court for the District of Southern California, the Court vacated and remanded the damages portion to the district court for further proceedings because the damages calculation lacked sufficient evidentiary support. Despite the Federal Circuit vacating and remanding of the damages award of $357.69 million Microsoft appealed to the Supreme Court, an appeal that will never happen with the denial of the petition for writ of certiorari.

After 6 months and 15 days we still wait for a decision in Bilski v. Kappos, perhaps the most anticipated Supreme Court patent decision of all time. So, once again, it seems as if the patent story of the day will be the one that never materialized. The difficulty the Supreme Court is facing is in all likelihood this: how do they kill the Bilski patent application as being unpatentable subject matter without also killing the US economy. A decision that is too broad not only could put an end to the pure business methods akin to the Bilski “invention,” but could also put an end to the patentability of software, business methods and medical innovations. Thus, it is hardly an overstatement to observe that the Bilski case, if decided improperly, could destroy an already fragile US economy and set back medical research decades.

And now a message from the shameless commerce division, brought to you by the #1 Patent Bar Review Course in the Nation… the PLI Patent Bar Review Course. PLI is offering a 20% discount for those who sign up to attend the Orange Country course in Costa Mesa, California. To take advantage of the 20% discount you need to call the PLI Patent Bar Review Hotline at 888.296.5973 by the close of business Eastern Time on Wednesday, May 26, 2010.

If you have gone to Google today, you have probably noticed that Google’s newest Doodle is a Pacman board. Doodles are known as the decorative changes that are made to the Google logo to celebrate holidays, anniversaries, and the lives of famous artists and scientists. May 22 marks the 30th anniversary of the game we all loved and played as kids, and to commemorate Pacman’s anniversary Google has created this one-of-a-kind Pacman Google Doodle. This doodle is unlike any other Google doodle that has come before it because the Google Pacman logo is actually Google’s very first interactive doodle in the form of a Pacman game you can actually play.

Coming on the heels of the BP disaster in the Gulf of Mexico the expansion of the green tech initiative at the PTO seems to be in line with the overall direction of the Obama Administration, which today shifted away from a true “all of the above” energy solution and is tending away from domestic oil exploration and drilling in favor of green technologies, including increasing the fuel efficiency of automobiles even further. The USPTO is front and center in a coordinate effort by the federal government to pursue green technologies as part of a unified energy plan. The latest USPTO green initiative will lead to faster patents and a coherent national policy built on the back of American inventors and entrepreneurs.

For most of us patent prosecutors, Judge Newman is our hero. She is one of us. On some occasions the patent planets even align and Judge Newman gets to write the majority opinion in a Federal Circuit case. And fortunately for us patent prosecutors, In re Vaidyanathan is one of those cases where Newman waxed very eloquent in saying: “Obviousness is determined as a matter of foresight, not hindsight.” More importantly for us prosecutors, she provided us with useful case law precedent to challenge rejections which are long on conjecture and speculation, but extremely short on facts, evidence, logic, or reasoning. In short, Judge Newman flattened a factually unsupported and badly reasoned obviousness rejection under 35 U.S.C. § 103 in Vaidyanathan.

You just couldn’t make this stuff up. A team of humans creates genetically altered and a self-replicating synthetic cell using a computer. I suspect that computer was running some pretty powerful and sophisticated software. So the anti-patent crowd should be sufficiently whipped into a frenzy over this story top to bottom. It hits all the hot button issues, life, genetics, software, ethics and it rolls them all into one. But while we might relish the anguish of those in the anti-patent community, this type of scientific advance should not be taken lightly because it has the potential to fire up those with an anti-patent agenda and could also fire up religious groups as well. The coming together of such strange bedfellows would result in an alliance with enormous political power. So innovators need to pay attention and be vigilant.

On May 19, 2010, USPTO Director David Kappos and China’s State Intellectual Property Office (SIPO) Commissioner Tian Lipu signed a Memorandum of Understanding (MOU) on comprehensive bilateral cooperation on patents. The signing took place during a signing ceremony held at the USPTO campus in Alexandria, Virginia. Second, in a separate and seemingly unrelated item, the USPTO also announced today that it would eliminate the fee for the petition to participate in Patent Prosecution Highway (PPH) programs. The elimination of the PPH petition fee is expected to encourage greater PPH participation by patent applicants. The good news is that yet more is being done to address the backlog and pendency. But I am still hoping for a plan aimed straight at independent inventors and start-up businesses here in the U.S.

The reality is that unless and until Congress steps up to the plate and does something, which seems extraordinarily unlikely, the Patent Office will be left to attempt to piecemeal together solutions. So while no one solution can or will solve all of the problems plaguing the patent system, if cascading solutions are employed at least some applicants can be helped and at least some applications can be accelerated. Of course, the name of the game today is job creation, so I propose a creative way to accelerate patent applications out of order upon proper showing that jobs will be created, and focus my suggestions on those companies that are most likely to create jobs; namely those 5 years or younger and with 99 or fewer employees.

In response to the privacy concerns being raised against Facebook, four United States Senators, Charles Schumer of NY, Michael Bennet of CO, Mark Begich of Alaska and Al Franken of MI, joined forces and on April 27th wrote a letter to Facebook CEO Mark Zuckerberg requesting that Facebook alter its policies on privacy. Currently Facebook information is available on third party websites without user permission. However, the Senators want Facebook to change its provisions so that Facebook user information is kept private and can only be shared with the user’s explicit permission blocking non-Facebook websites from accessing this information.

This unique initiative seeks to reduce the backlog of patent applications by getting rid of those that are no longer important to applicants or are of marginal value. In exchange for giving up on certain applications and abandoning them another application will be advanced out of order to the front of the examination queue. Over and over again the message directly from Kappos and his top Lieutenants is that the backlog is costing America high paying jobs. This initiative picks up on the recently released PTO study that concluded that high-tech jobs are high paying jobs, innovators rely on patents and an overwhelming majority of Venture Capitalists say that they want to see issued patents before they invest in start-up companies. The expanded Exchange Program is yet another attempt to help give the Patent Office the tools necessary to unleash commercially viable innovation into the marketplace so that funding can be obtained, jobs created and innovation can play its role in economic recovery.