Posts in Government

One of the issues that took up a significant amount of time during the first half of the hearing was the proposed extension of the transitional program covered business method review. The amendment submitted by Congressman Issa (R-CA) sought to extend CBM by pushing back the sunset period until December 31, 2026. The Issa amendment to extend CBM was defeated by a vote of 18-13.

The House Judiciary Committee will hold a hearing on Thursday morning, June 11, 2015, at 10am ET in order to markup the Innovation Act. The Manager’s Amendment is currently available on the hearing webpage. Additional proposed amendments by Judiciary Committee members are excepted to come in and be posted sometime later today. While a markup of this legislation has been rumored numerous times only to be postponed, it seems that this hearing will go forward. It is widely expected that the Innovation Act will easily clear the House Judiciary Committee. The resulting bill with whatever amendments may be approved may move quickly to the full House of Representatives for a vote.

The need for Rep. Issa’s company to enforce its rights reminds us that inventors and small businesses often have to protect their patents through litigation. But the patent legislation supported by Rep. Issa will make it much harder for all patent owners to protect their rights, imposing extensive financial and procedural burdens that go far beyond what is necessary (or helpful) to curb abusive litigation practices. Whereas true patent reform should be a scalpel, this patent legislation is a sledgehammer. All legitimate inventors and startup companies, like Reps. Issa and Massie, are treated as acceptable collateral damage in the effort to eliminate the handful of bad actors who file nuisance lawsuits.

To Musk’s credit, he has not denied that his companies received substantial government assistance, and it seems as though he’s never refuted the amount of money he has received, which one reporter for the Los Angeles Times pegged as high as $4.9 billion when accounting for public assistance to any of Musk’s companies. In Musk’s mind, the benefits that his corporations pose in the form of new age technologies and well-paying jobs more than make up for the public investment into his business activities. He’s also keen to point out that his companies would still be in business without government assistance, a point that is nearly impossible to prove. Further, he sought to deflect inquiry by pointing out that the incentives his company has received “are a tiny, tiny, pittance compared to what the oil and gas industry receives every year.”

At the end of a three-hour long hearing held by the U.S. Senate Committee on the Judiciary this Thursday, June 4th, S.1137, the proposed legislation known as the PATENT Act, was approved to move to the floor of the United States Senate by a 16-4 vote of the Senate committee. Proponents of the bill lauded the bipartisan support which brought the bill committee approval. Interestingly, a small but vocal bipartisan minority has developed, a couple of whom have pledged to continue debate aspects of this legislation which they fear will pose a threat to American innovation.

Senators repeatedly brought up the Hatch-Waxman legislation. One after another Senators discussed how inter partes review (IPR) of pharmaceutical patents at the United States Patent and Trademark Office (USPTO) has, in an unanticipated way, upset the delicate balance reached in Hatch-Waxman to ensure that generic drugs would come to market quickly. Those familiar with IPR and Hatch-Waxman will undoubtedly recognize that this concern is entirely misplaced. A successful IPR would result in the immediate death of patent claims, which would inure to the benefit of all generics, which would in fact result in generics entering the market quickly.

Although the latest version of the PATENT Act (S.1137) represents an improvement over previous versions of the legislation, it would still make all U.S. patents less enforceable and cast an ominous cloud over startups and small inventors… The latest version of the PATENT Act notably fails to address the critical overbreadth problems of the customer stay, heightened pleadings, and discovery provisions. Together these provisions place an undue burden on the enforcement rights of legitimate patent owners.

According to Grassley’s office, the amended PATENT Act will provide important reforms for the way that the Patent Trial and Appeals Board (PTAB) of the United States Patent and Trademark Office (USPTO) operates. For instance, the managers amendment would: (1) Require the PTAB to apply the claim construction standard used in federal district court (i.e., the Phillips standard) and further requires the PTAB to consider if claims have previously been construed in district court. (2) Makes explicit that for purposes of PTAB adjudications patents are presumed to be valid, although does so retaining the current law providing that the petitioner has the burden to prove a proposition of unpatentability by a preponderance of the evidence. (3) Makes clear that the Director has discretion not to institute an IPR or PGR if doing so would not serve the interests of justice. (4) Allows patent owners to submit evidence in response to a petition to institute an IPR or PGR, and petitioners to file a reply to respond to new issues. (5) Directs the PTO to modify the institution process so that the same panels do not make institution and merits decisions. (6) Directs the PTO to engage in rulemaking in order to institute a Rule 11-type obligation in IPR and PGR proceedings.

Recently, a small business that designs, installs and services digital video surveillance systems, 3rd Eye Surveillance, sued the United States federal government for alleged patent infringement. The lawsuit, filed in the U.S. Court of Federal Claims, seeking damages exceeding $1 billion for unlawful use of the company’s three video and image surveillance system patents – U.S. Patent Nos. 6,778,085, 6,798,344, and 7,323,980. The surveillance system patents are owned by Discovery Patents, LLC of Baltimore Maryland, who is also a Plaintiff in the case, and exclusively licensed by 3rd Eye Surveillance.

The mainstream media has been aflame over a recently unveiled Google innovation which poses an Orwellian challenge to family privacy in the eyes of some critics. A patent application published May 21st by the U.S. Patent and Trademark Office describes a smart toy developed by Google which can respond to a child’s voice or gestures. Some of the creep factor inspired by this invention might simply be the result of Google’s ability to create products which naturally ingratiate themselves with users. For instance, the patent application cites the benefits of the anthropomorphic device taking on a “cute” and “toy-like” form, specifically where it comes to attracting the attention of young children.

Positive train control, or PTC, seeks to create a complex infrastructure network for railroad lines which enable the real-time sharing of information between trains, rail wayside devices and software programs referred to as “back office” applications. The communication system tracks a train’s position and movement and determines any speed restrictions as well as the state of signal and switch devices along a railway. If a railway vehicle is speeding or a risk of a collision develops, the PTC system takes control of the train away from a human operator to reduce the speed or take other actions to prevent a collision.

Strong patent protection is almost universally considered critical to robust innovation. Venture capital and private investment in new technology-based businesses heavily depend upon it. Yet, the Innovation Act is positioned to significantly reduce the value of patents by making the risk of enforcement prohibitively high.

The proposed bill comes as welcome news to large companies like Google and Amazon which have been looking for ways to start developing beyond line-of-sight flight plans and other complex operations. The rules may, however, be less well suited for smaller UAV innovators. As an article published by Motherboard points out, the Booker/Hoeven legislation will require commercial drone operators to register for a license whereas currently allowable commercial drone operations operate in a non-licensed legal grey area. The undisclosed registration fees that would be put in place for licensing is also a cause for concern among small commercial players with limited financial resources.

Is Uber really a technology company? Essentially, Uber runs a car service and at first glance the company is no more a technology company than any other company that happens to have an app, such as your local grocery store. But as you dig deeper you start to see that Uber’s value is not in running a car service, but rather in mining all kinds of data from the devices of those using its service. In fact, Uber’s privacy policy, which governs the information users allow them to collect from their devices, is substantially longer than the document labeled “terms of service.”

Art Unit 3689 has the lowest allowance rate at 7.7%. Art Unit 3659 has the highest at 98.3%. Oddly enough, these two art units are from the same technology center. It’s worth noting, however, that the 3600s deal with a variety of inventions, including transportation, e-commerce, and national security. Of the 20 art units with the lowest allowance rates, eight are in the 3600’s. This is not surprising. After all, the 3600’s host many business-method art units.