Posts in Interviews & Conversations

A Patent Eligibility in Crisis: A Conversation with Bob Stoll

The Supreme Court is simply not knowledgeable about patent law. And that’s not to say that the Justices couldn’t become knowledgeable, but even in this active state they’re only handling six or eight patent cases a year at most and so a lot of those deal with contracts and that sort of thing. So they’re not ever going to do enough patent cases to develop a specialty. They’re allergic to bright line rules despite the fact that in our space we have 10,000 front line decisions makers between the patent examiners, the Board, the district courts, and the Federal Circuit. You can’t have that many decisions makers without bright line rules, which should be self-evident to anybody including those that went to Ivy League schools and wear black robes. But apparently it’s not.

John Calvert, A Champion for Indepenent Inventors

John Calvert, a twenty-four year veteran of the USPTO, retired in June 2014. If you are in the independent inventor or product commercialization communities you undoubtedly know Calvert. After starting as a patent examiner, in 1999 he started working with independent inventors. He would ultimately be in charge of the independent inventor outreach efforts of the USPTO by the time…

A Conversation with New UIA Executive Director John Calvert

Many within the independent inventor community are well acquainted with John Calvert. Calvert started out working for the United States Patent and Trademark Office as a patent examiner, but by the time he retired twenty-four years later in he was in charge of the independent inventor outreach efforts of the USPTO. I have known him for a long time and he is a true friend and champion for the independent inventor community has had over the years. He is also the new Executive Director of the United Inventors Association, where he will continue to promote, assist and educate inventors for years to come.

The Software Patent Problem: Not Emphasizing the Technological Contribution of the Innovation

LEMLEY: “People have been writing claims that don’t emphasize the technological contribution of the innovation. And I think that’s part of the problem. And I think if we can write claims that really highlight the technological contribution then the Court maybe is going to be inclined to view those differently. And more favorably.”

The Ramifications of Alice: A Conversation with Mark Lemley

LEMLEY: “I think Alice is a real sea change on the patentable subject matter issue. I’ve heard a lot of folks talk about how Alice doesn’t really use the word “software” so it doesn’t really change anything, but I honestly think that’s wishful thinking… I think a lot of patent lawyers had talked ourselves into thinking that the Court didn’t really mean it in Mayo when it talked about having to add a significant inventive component beyond the abstract idea or the natural process. But the court in Alice makes it clear that if your patent covers an implementation of an idea we want proof of an inventive concept beyond that idea before we’ll grant you a patent.

Creating Software Obviously Isn’t Easy – Part 3 with Bob Zeidman

“[F]or a living I reverse engineer code and testify in court. Yet I could not reverse engineer this code. Every time I touched it to make some kind of change to test it, the whole thing broke. And I finally had to write the code completely from scratch because this open source code was such a kludge, such a mess, that it was impossible for me to figure out… [T]here’s a bunch of issues here and maybe some of them are that programmers nowadays aren’t well trained and they’re not well disciplined in programming techniques… [they] write code as quickly as you can, throw it out there, people will debug it for you. So first of all maybe we need to be teaching more discipline to programmers. We need to… convince them, hey, now that you’ve really gone through a rigorous program it’s not just okay to throw stuff together but create something with a structure that’s debuggable, that’s understandable, and that is innovative and patentable.”

A Conversation About Software and Patents: On the Record with Bob Zeidman

Modern software tools allow people to turn fairly abstract ideas into reality. That’s the beauty of software. You can start describing things in such a high level and yet output what I consider an innovative invention. And so how do we separate abstract ideas that are unpatentable from an actual software implementation is going to be really difficult. And I don’t think this ruling helps…. One of the reasons there’s an explosion in software patents is that it’s really easy to create a software patent without having written the code. And I’m not saying that’s a bad thing. But I do know, I have seen patents where there have been code snippets that don’t work. And I think that’s one thing to be careful of.

Judge Michel Speaks on the Future of the Federal Circuit

Judge Michel: “I’m aghast at the suggestions that are made in some blogs that the Federal Circuit be abolished. The idea that you need more so-called percolation by having different appellate courts take different views on patent laws is completely crazy in my opinion. There’s plenty of percolation just within the Federal Circuit and the Supreme Court doesn’t seem to have the slightly problem identifying cases where they feel that corrections are needed. Look, I don’t think the Federal Circuit’s perfect. I’m glad there is a Supreme Court. And whether I agree with Alice or don’t agree with Alice or love KSR or didn’t love KSR is really beside the point. Every power center needs some supervision over them. In the case of the Congress it’s the voters. In the case of the court it’s the Supreme Court, or a higher court in the hierarchy. And I think that’s all well and good. So the Federal Circuit isn’t perfect but I think it’s a very good court. I think it’s been a huge improvement over the chaos of before 1982 and the various regional circuits. And so I hope we don’t over correct by getting rid of the Federal Circuit.”

Judge Michel says Congress May Have to Revise 101

On July 3, 2014, I had the opportunity to interview Judge Michel, former Chief Judge of the United States Court of Appeals for the Federal Circuit. The interview took place at the University Club in Washington, DC. Our conversation was wide ranging, dealing with all the pressing issues of the moment in the patent world. In part 1 of the…

Judge Michel says Alice Decision ‘will create total chaos’

Judge Michel: “[I]t’s bad news at least for the reason that it will create total chaos. No one will know what is eligible and what is not eligible so there will be no predictability, no consistency, and that by itself will create delays and costs and discourage progress that the Constitution was trying to promote by encouraging Congress to create the patent system. Consider the decision makers. You’ve got 9,000 patent examiners, 250 or so board members, approximately 1,000 district judges, and a few other people, the International Trade Commission, the Federal Circuit, and so on. So you’re talking about 10,000 decision makers. I don’t see any way they can apply the Alice standard in a way that’s fair or consistent or predictable. And all the other people who are involved in advising economic actors and business leaders are similarly faced with chaos and uncertainty, delay and extra costs.”

Ray Niro on Patent Trolls, Obama Administration and SCOTUS

Ray Niro: “The Administration has become a shill for Google — you even have a Google person running the Patent Office. So you have a situation where any number of patents, tens of thousands of patents, are going to be affected by Alice and also by the Limelight decision on split infringement.”

Ray Niro Discusses Fee Shifting in Patent Litigation

Recently I interviewed Ray Niro. Our wide ranging discussion touched on all things patent, we first discussed the announcement that Niro, Haller & Niro is now doing patent infringement defense on a flat fee basis. We wrap up our discussion of this new defense business model for the patent litigation industry below. We then transition into a discussion about fee shifting in patent litigation, first discussing the recently failed patent reform and then moving into a discussion of the Supreme Court fee shifting cases from the October 2013 term.

Conversation with Jay Walker and Jon Ellenthal, Part 3

“Our promise to the small or medium size operating company is we will give them a simple and affordable way to understand the patent environment they’re doing business in, to find the hundred patents that are most statistically relevant to their product line. And provide them with either a license or a warranty that allows them to reduce the risk they’re facing on those one hundred patents. And if you’re a small or medium size operating company who is coming to understand that every business needs an IP strategy these days as IP becomes a more important part of markets and the economy then this is a very affordable and simple entry level strategy for understanding and dealing with patent risk. And that puts you in a much better position arguably than the position that you’re in right now which is you know very little about the risk you’re facing and you can do nothing about it.”

A Conversation with Patent Defense Litigator Ray Niro

Ray Niro is one of the most well know patent litigators in the country. In some circles is may be referred to as “infamous,” and in other circles he may be simply referred to as famous. It all depends upon whether he is your attorney or whether he is the attorney on the other side… I noticed an announcement that he and his firm are now offering flat fee defense representation in patent litigation matters. Ray Niro defending a patent infringement case? I have to admit I didn’t realize he did defense work, so I wanted to talk to him about this new business model. He agreed.

Conversation with Jay Walker and Jon Ellenthal, Part 2

Recently I had the opportunity to interview Jay Walker, the founder of Priceline.com. Walker, with over 700 patents and pending patent applications, is one of the most prolific living inventors in the world. He is embarking on the monumental task to commoditize patent licenses in a way that streamlines the process, keeps costs down, maximizes the number of licenses and charges a low flat fee. A daunting task no doubt, but his methodology is unique and seems to me to be more likely to succeed than any other efforts, which really bear no resemblance to the Patent Properties model. Still, to call the task difficult is an understatement, but if anyone has the ability to pull it off it would be Jay Walker.