Posts in Government

Earlier today the United States Patent and Trademark Office issued U.S. Patent No. 9,000,000. The invention that was awarded this historic patent is a system and method of collecting and conditioning rainwater and other moisture from a windshield of a vehicle and utilizing the collected fluid to replenish the fluids in the windshield washer reservoir. Undeterred by my inaccurate prediction on when the USPTO would issue Patent No. 9,000,000. I predict that the Patent Office will issue Patent No. 10,000,000 on November 28, 2017.

This year we’re placing our focus on the rapid pace of development in autonomous vehicles and self-driving car technologies here on IPWatchdog. We’re still a fair ways off from the entrance of a self-driving vehicle into the consumer marketplace; some with a knowledge of the industry believe that the debut for autonomous vehicles won’t be experienced until 2020, with widespread…

Gulbrandsen’s chief complaint with the U.S. system centers around the fact that it has become enormously easy to challenge issued patents once they have been granted. In fact, organizations in pursuit of acquired technology are leveraging the kill-rate at the Patent Trial and Appeal Board (PTAB) at the United States Patent and Trademark Office (USPTO), to negotiate lower licensing payments. Threats are made that patents will be challenged in Inter Partes review, “so that you amend the license and reduce the fees,” Gulbrandsen explained. “So, immediately you know that devalues the patent and devalues the license agreement that you’ve got.”

The USPTO today announced the appointment of Meryl Hershkowitz as Deputy Commissioner for Trademark Operations. In her new position, Hershkowitz will oversee the examination and processing of applications throughout trademark operations. Hershkowitz has been one of two group directors for trademark operations of the USPTO for the last seven years. As group director, she led a staff of 10 law offices comprised of more than 200 trademark examining attorneys.

The immediate modification to the page limits for motions to amend is more in line with reality given the high burdens placed on patent owners. Even when patent owners sought additional pages, the norm was a three to five page extension. So getting ten extra pages is a welcome change. Changing the page limits, alone, is unlikely to impact the calculus underlying the strategic choice to amend. But when the choice is made to amend, patent owners will be better able to meet their burden.

The U.S. Senate Committee on Commerce, Science, & Transportation addressed whether unmanned aerial systems (UAS), also known as drones, could be further incorporated into American airspace for commercial purposes. Drones have enjoyed a growing profile in our collective consciousness thanks in large part to both the incredible array of applications for this technology as well as the concerns over public safety and privacy. Drones can take much of the danger out of work such as utility line inspection or search and rescue missions but their ability to capture images with high-definition cameras has led many to worry about a growth in unwanted snooping by drones.

In 2014 there were 1,070 fewer patent lawsuits filed than during 2013. Furthermore, the number of patent cases filed in 2014 was lower than the number of cases filed in 2012 by some 433 cases. Therefore, the stories of continued run away litigation seem to be greatly exaggerated. Given the dramatic decrease in patent litigation it seems entirely premature for Congress to be considering additional patent reform at this early stage.

There was a split in the circuit courts as to what effect a TTAB decision will have, and this depends heavily upon where the litigation is happening. The weight of a TTAB decision will vary depending on the jurisdiction, ranging from none at all to complete preclusion. Here, the issue was whether one mark was confusingly similar to another, which the Supreme Court determined was exactly the same as what was being litigated.

Mobile devices were the subject of a pair of recently issued Bank of America patents recently. It was at least a little intriguing, however, that the invention relates more to personal security than the protection of financial accounts. U.S. Patent No. 8922657, entitled Real-Time Video Image Analysis for Providing Security, claims a method for providing security to a user by receiving an image of an area frequented by a user, building a directory of non-human object and individual data within that area, recognizing variations between the data directory and a real-time video stream of the area and presenting selectable indicators of recommended security actions associated with the variations to a user via a mobile device. The innovation is intended to provide smartphone owners and other mobile device users with an augmented reality service for identifying unwanted home intrusions and offer them options for contacting authorities.

The fact is, patent examiners are struggling with the application of 35 USC 101 in light of the Alice decision just as much as everyone else. Greater uncertainty among both patent applicants and patent examiners surely increases the likelihood of disagreement between them. Thus, the Alice decision will not just increase the number of rejections under 35 USC 101, but is also likely to result in more rebuttals by applicants and more appeals of examiner decisions. A loss in patent examination efficiency, even if small, will act as a headwind against further reductions in patent pendency.

This patenting step is absolutely crucial for the commercialization of inventions. In the absence of a strong intellectual property system – specifically patents – most of those inventions will never see the light of day. Why is that? The answer is quite simple – the cost to develop those inventions to a marketable product are significant and in the absence of intellectual property protections that the patent system provides, no one will ever invest in the promise of an invention. Said another way, how many of you would invest in a company that will spend tens to hundreds of millions of dollars on a product knowing that a competitor will be free to offer the same product at a fraction of the cost since they invested substantially less in R&D?

The last time patent quality was being discussed the leadership of the Office had not come from the private sector, but rather came from within government ranks. Running the USPTO today are two people with substantial private sector experience and knowledge about how patents are used. This bodes well for the future, and is no doubt why so much of the focus on patent quality today was on issuing patents that deserve to be issued.

Director Lee announced that earlier this morning she swore in Russ Slifer to serve as the new Deputy Director of the USPTO. Slifer had been the Director of the USPTO Rocky Mountain Regional Office. He practiced intellectual property law for 20 years, serving for the last 8 years of his private sector practice as the Chief Patent Counsel for Micron Technology in Boise, Idaho.

According to Martin-Wallace, the goal of the Patent Quality Summit is to establish a dialogue between the USPTO and stakeholders so that both sides can obtain a better understanding of where everyone is coming from when we talk about patent quality, and to set expectations going both directions. “Quality is two-fold – both internal and external,” Martin-Wallace explained. “We want to make sure we are delivering quality to stakeholders… patents that can stand up in the courts.”

Unfortunately, the high cost of pharmaceutical medications is why about 50 million adults between the ages of 19 and 64 do not fill out a prescription every year. Medications purchased over the Internet can cost up to 90 percent less than the same medication purchased in a brick-and-mortar pharmacy. It is also easy to understand those cost savings given the ingredients found in online pharmaceuticals. Consumers obviously need better protections to make sure that the medication they’re purchasing is the medication are ordering and not drywall or rat poison.