Posts in IP News

The back bone, however, is made up of many smaller bones. For example, there are seven cervical vertebrae in the necks of all mammals, and these bones together make up a portion of the back bone. Therefore, a more complete description of the backbone would point out that the neck is a part of the backbone. An even more complete description might include saying cervical vertebrae 1 (i.e., C1, which is a part of the neck) is connected to cervical vertebrae 2 (i.e., C2) and so on. The point is that the more description you provide the better, but you absolutely must have at least the big picture overview of how everything fits together, and how to make and use the invention. Therefore, be sure that you have disclosed with as much detail as possible how all the pieces of your invention connect, work together, function and interrelate.

The USPTO is offering assistance in the form of flexibility on deadlines to the full extent allowable under our laws to Japanese applicants. However, because this catastrophic event occurred outside the United States and did not result in a postal service interruption of the United States Postal Service, the USPTO has no authority to designate a postal service emergency as authorized by 35 U.S.C. 21(a). The fact that the USPTO cannot declare a postal emergency limits what allowances can be made because in the event of a postal emergency the USPTO can treat as filed any paper that would have been deposited with the United States Postal Service but for postal service interruptions or emergencies as designated by the Director.

On Friday March 11, 2011, I attended the Women’s Entrepreneurship Symposium in honor of Women’s History Month at the United States Patent and Trademark Office. The program was co-sponsored by the US Women’s Chamber of Commerce and focused on women entrepreneurs, the importance of intellectual property protection for their innovations, how to leverage economic opportunities for women-owned businesses and what resources are available exclusively for women-owned small businesses. The topics discussed focused solely on American business.

Seeking a writ of mandamus seems as if it is becoming a more popular avenue to pursue than it once might have been. A writ of mandamus essentially seeks an order from a higher court to direct a lower court to follow the law. They are extraordinary remedies because they come well before the case is over, which means that an ordinary appeal cannot be taken at that point; appeals are only typically allowed for final adjudications. Notwithstanding the extraordinary nature of a mandamus request, earlier today the Federal Circuit issued a writ of mandamus requiring a district court to dismiss a false marking lawsuit because the complaint did not contain allegations sufficient to allow the plaintiff to appeal. Essentially, even if each and everything in the complaint were believed the plaintiff could not possibly be entitled to a recovery. Kudos to the Federal Circuit for standing up and getting rid of a frivolous lawsuit initiated by an obviously defective complaint.

Believe it or not, Patents are enforceable in China. Trademarks are enforceable in China. Copyrights are enforceable in China. The devil is in the details. Certainly if you are trying to enforce your patent against a company in the boondocks far west of Chengdu, and that company happens to be the largest employer in the district, then you are going to have problems. No one can / should tell you differently. However, can you tell me with a straight face that these same problems would not occur in the US if the situation was reversed – where a foreigner is asserting a patent against a local, respected employer in a rural area of the US?

Microsoft would like to have the standard for invalidating a patent claim lowered to a mere preponderance of the evidence standard. They say that prior art not considered by the Patent Office should not be afforded the same level of deference. I say — why not? Truthfully the standard for invalidating patent claims in court should be the same as it is when a patent is denied. The standard shouldn’t even be as low as “clear and convincing,” rather it should be “abuse of discretion.”

About 10 years ago, the NFLP decided that they wanted Reebok (and only Reebok) to make hats with the teams’ logos on them. American Needle, Inc., a competitor of Reebok, had been making these types of hats for the NFL for a really long time, and as a result of the NFLP’s deal with Reebok, it lost its contract with NFLP to make said hats. American Needle, Inc. did not have much of a sense of humor about this and sued the NFL under Antitrust principles. Enter American Needle v. National Football League et al. Needle is a big case because if the NFL had gotten what it asked for, the player’s union wouldn’t have been able to decertify and the players wouldn’t have been able to bring an antitrust suit.

Little impacts cascading together can have a large impact, but for the time being we need to realize that the technology is not where it needs to be to leverage alternative and renewable energy in an impactful way. That doesn’t mean we shouldn’t try, but it does mean we need to be perfectly honest with ourselves and realize that a silver-bullet green technology is unlikely. In the meantime as we incentivize innovators we need an all-of-the-above series of solutions.

Earlier this week the United States Supreme Court granted the petition for a writ of certiorari filed by lawyers from Stanford Law School’s Fair Use Project (FUP) and Wheeler Trigg O’Donnell LLP and will review the constitutionality of a federal statute that has removed thousands of foreign works from the Public Domain and placed them under copyright protection. The case presents a two-pronged constitutional challenge to the 1994 law passed by Congress, which amended the Copyright Act. The case will test whether Congress has the authority to remove works from the Public Domain under the “Intellectual Property Clause” of the United States Constitution and whether the 1994 law violates the First Amendment rights of those who performed, adapted, restored and distributed works which had previously been in the Public Domain.

On Monday, March 7, 2011, Article One Partners announced that it had surpassed the $1 Million milestone and has now distributed over $1 million in reward money to Advisors. It would seem that Article One Partners is growing and thriving, and that my initial reaction to the Article One Partners business model was incorrect. In fact, Article One Partners is likely just scratching the surface of its potential and demonstrating the power of coordinated crowd sourcing solutions.

During my interview with Secretary Locke we spoke about patent reform efforts in the United States Senate, what patent reform might look like from the House of Representatives, his management style and how to motivate individuals to achieve transformative change. Secretary Locke strikes me as a thoughtful person, extremely energetic, motivated to succeed and the type of person we need in government. His CEO-like approach to running the Department of Commerce and in working together with both political appointees and career employees has transformed the Patent Office, and he will be missed. I’m sure he will make an excellent Ambassador, but have to wonder about the future of the Department of Commerce and the Patent Office. Whoever becomes the next Secretary of Commerce has some big shoes to fill.

With a powerful vote of 87 to 3 on a motion to bring debate to a close, the Senate is on the cusp of passing comprehensive patent reform legislation. S.23, “The America Invents Act,” is expected to pass with a strong vote as early as Wednesday of this week. In the end, the full House and Senate will need to pass the same version of any patent reform bill before it can become law. Assuming House Judiciary Committee Chairman Smith passes a bill of note through the House; the House and Senate bills will need to be reconciled. While civics books teach that the differences in the bills will be resolved via a formal Conference Committee, the Senate and House have not conferenced on a Judiciary Committee bill since 2005. A formal conference for patent reform is considered very unlikely.

The Humanitarian Award honors work that aims to reduce human suffering significantly or enhance the human experience in a way that has a clear and direct benefit to society. Additional consideration will be given to approaches that are at a turning point and may potentially have immeasurable influence. The Award and a prize of $10,000 will be presented at the 2011 BIO International Convention, in Washington, DC on June 27-30, 2011.

Through a collaboration with the United States Patent and Trademark Office, the museum will present a robust series of public programs and educational outreach about today’s inventors and inventions as a contemporary complement to the exhibition. These programs will include webcast public lectures, an inventors’ symposium and clinic, and hands-on activities for children and families, as well as outreach to schools and professional development workshops for educators.