Posts in Government

The United States Patent and Trademark Office (USPTO) today announced the Full First Action Interview Pilot Program, which is an expansion of the Enhanced First Action Interview Pilot Program so as to include all utility applications in all technology areas and filing dates. As with the previous First Action Interview pilot programs (which included the Original and the Enhanced pilots), the applicant is entitled to a first action interview, upon request, prior to the first Office action on the merits. This pilot will run through May 16, 2012.

U.S. Commerce Secretary Gary Locke will belatedly commemorate World Intellectual Property Day on Thursday, May 5, 2011, in a ceremony at the Rayburn House Office Building in the House Judiciary Committee hearing room. The event will take place starting at 4:00 pm. Secretary Locke’s remarks will begin at approximately 4:10 pm, and he is expected to highlight the importance of intellectual property protection and enforcement to the U.S. economy, celebrating the 11th anniversary of World Intellectual Property Day. World Intellectual Property Day is April 26, 2011, each year.

U.S. Commerce Secretary Gary Locke has appointed James Donald Smith of Chicago, Ill. to serve as the next Chief Administrative Patent Judge of the Board of Patent Appeals and Interferences (BPAI) at the U.S. Patent and Trademark Office (USPTO). As BPAI Chief Judge, Smith will lead the board that hears and adjudicates patent appeals from decisions of patent examiners. Smith begins serving as Chief Judge on May 8, 2011.

I have long believed that the next breakthrough, paradigm shifting technology will be battery technology. Unfortunately, even given all the excellent research and development that is ongoing in the U.S., much funded by venture capitalists (over $200 million last year) and the Federal Government through research conducted at Argonne National Laboratories and other federal labs, the energy density for the lithium ion battery is still a factor of 10 away from the energy density of gasoline. Progress is being made and new lithium derivative batteries are being tested and showing some promise, although they are a long way away from the energy density of gasoline, but there is a path forward.

The United States Patent and Trademark Office (USPTO) is seeking public comment on a proposal to streamline the procedures governing ex parte and inter partes patent reexamination proceedings. The timing of this announcement, which appeared in the Federal Register on April 25, 2011, seems curious to me. With patent reform circulating in the House of Representatives does this signal a belief that on the part of the Patent Office that patent reform is dead? The patent reform passed by the Senate and that being considered by the House has revised post-grant review proceedings, so wouldn’t it be wise to wait to revamp reexamination until after patent reform passes, that is if it seems likely to pass?

Did World Intellectual Property Day sneak up on you again this year? How could you let that happen? At a time when the United States Congress seems hell bent on destroying the patent system by inadequately funding the United States Patent and Trademark Office we really should celebrate something that seems to be functioning, so why not celebrate the World Intellectual Property Organization (WIPO) and the innovation policies of nations who are stealing research and development away from the United States? What a tragedy that the World has better innovation policies than the United States.

The last Continuing Resolution (or CR) ran out on April 8, 2011, with a 11th hour agreement, which was ultimately passed by Congress and signed into law by President Obama the following week. When the dust had settled the United States Patent and Trademark Office did not fare well at all, with $100 million be diverted from the Patent Office. That lead to the Office today announcing severe austerity measures because they don’t have the funds available to operate as a going concern.

The ACLU lead plaintiffs have a real predicament relative to standing. It does not sound as if the Federal Circuit believed any single plaintiff could satisfy both prongs required to bring a Declaratory Judgment Action, and rather were trying to say we have some plaintiffs with first prong evidence and some with second prong evidence. Simply put, that dog doesn’t hunt, at least not under current law relative to standing. Thus, there seems a real chance that the entire case could be thrown out because no plaintiff has standing.

At an all-day session on April 14, members of the Committee gave serious consideration to a variety of amendments to the bill and concluded with an overwhelming, bi-partisan vote of 32-3 in support of the long-overdue improvements to the patent law. The Committee proceeding demonstrated the careful balancing of interests and the compromises necessary to address the concerns of the diverse stakeholders. While more work is yet to be done, the Committee’s effort represents encouraging progress.

BIO has consistently praised House Judiciary Committee Chairman Lamar Smith (R-TX) for his introduction of a comprehensive patent reform bill similar to the bill adopted by the U.S. Senate earlier this month by a nearly unanimous vote. Unfortunately, given the addition of the Goodlatte supplemental examination amendment, added to the bill during Committee consideration, we have no choice but to oppose floor consideration of the bill until this issue is repaired.

H.R. 1473, the Full-Year Continuing Appropriations Act, 2011, is the legislation reflecting the compromise on the Continuing Resolution to fund the government for fiscal 2011. The letters point out that the provisions of the bill related to the USPTO appropriate $100 million less than the projected user fee revenues to be collected, essentially diverting that money to other government programs.

Leading industry experts will provide an overview of the clean technology landscape, addressing the importance of regional accelerators, giving an update on clean tech patents, and highlighting the benefits of the USPTO’s Green Technology Pilot Program.

For goodness sake, innovation is the key to a better economy, not raising taxes! Simply stated, taxing more at a time when individuals and businesses are doing less well is not the same as taxing more when individuals and businesses are doing better year after year. In one scenario the tide is rising and will remain high, although slightly less so with increased payments to the government. In the second scenario the tide is already lower and becomes even lower still with additional financial burdens owed to the government. It doesn’t take a rocket scientist to realize there is a fundamental difference between taxing a rising economy and taxing a falling, stagnant or sluggish economy.

The United States Patent and Trademark Office (USPTO) will update its registration examination and provide new reference materials effective April 12, 2011. The changes will help ensure that newly registered patent attorneys and agents are fully qualified in the most current patent laws, rules and procedures. This change marks the first change to the exam in approximately 5 years, and will bring the patent bar exam current with law, rules and regulations through the Winter of 2011.

While at the USPTO Barner commuted back to Chicago on weekends to visit her family, choosing not to uproot her children from their schools. Since leaving the Patent and Trademark Office she has returned to Chicago and to Foley & Lardner. Barner was the keynote speaker at the 5th Annual Patent Law Institute sponsored by the Practising Law Instituted. I caught up with her in San Francisco at the Patent Law Institute on March 21, 2011. What follows is the transcript of my interview with her.