Posts in IP News

It generally takes a lot longer and costs a lot more to get an idea licensed. New ideas are hard to sell. The capable companies are not interested because they are generating their own ideas. The not-so-capable companies might be interested but would probably drop the ball. Most workers at these companies just want to make it through the day. An unfinished product looks more like work than an opportunity. It is also risky. Employees are not compensated for risks but are punished for failure.

Litigation is where the big firms and larger IP firms make their money, that much is certain. Those firms with litigation practices that also engage in patent prosecution do so typically for the purpose of keeping clients in the firm for all their patent needs. With large fees available for litigators and extreme downward pressure on patent prosecution it is no wonder many boutiques can’t keep up. Litigation attorneys move on to greener pastures leaving patent prosecution specialists scrambling to pay overhead for an office at 100 Extremely Rich Sounding Street in Crazyexpensiveville.

There were probably about 40 people in the room, and the event was broadcast live over the Internet. Kappos took a number of questions and seemed very engaged. It is a breath of fresh air for the USPTO to be listening to the inventor community in a substantive way like this. But it goes beyond just listening. The USPTO proposal with respect to essentially extending the life of a provisional patent application to 24 months, which was announced officially last week, was the result of a suggestion Kappos received at a round-table event in California. So not only is the USPTO listening, they are taking what the hear into consideration. What a novel, yet profound concept.

On Friday, April 2, 2010, the Federal Register will have a Notice requesting comments on proposed changes to Missing Parts Practice. Don’t just jump over this as something inconsequential. This is the proposal that David Kappos has been talking about regarding extending the pendency period of provisional patent applications to 24 months.

In my conversation with Dr. Michelson he explained to me that while he benefited greatly from the patent system he would have benefited even more if the system worked better. At this point Dr. Michelson “does not have a dog in the fight,” as he explained, because with the exception of a few lingering applications his patent portfolio has been fully acquired and he stands to gain no additional revenues. Nevertheless, Dr. Michelson, the quintessential successful American inventor, would like to see the US patent system improve for the benefit of all independent inventors, the American economy and to promote real job growth. He has some excellent ideas, I agree with his positions on almost every front, and it is with his approval that I put my conversation with him on the record.

It will likely come as a surprise to many, but I really don’t think the ACLU victory in the Myriad Genetics litigation is a big deal. Hakuna Matada is what I say. It’s actually a wonderful phrase. It means no worries for the rest of your days, and is a problem-free philosophy… blah blah blah… Picture begins to wiggle out of focus and fades to black in three… two… one… You are about to begin a journey through space and time, into another dimension. On this odyessy into a wondrous land whose boundaries are that of the surreal, the vastness of the timeless infinity forms a middle ground between light and dark, between science and superstition, and it lies at the heart of humanity’s fears and the pinnacle of understanding. You are about to enter the Twilight Zone…

Unfortunately, the ACLU appears to have found an “ally” in Judge Sweet, who is the district court judge handling the AMP case. In my view, Judge Sweet has either been duped by the ACLU, or is more likely complicit in accepting the ACLU’s warped view of what these patents cover. That became evident when Judge Sweet denied the motions by Myriad and the USPTO to dismiss this case for lack of subject matter jurisdiction, lack of personal jurisdiction, and failure to state a claim upon which relief can be granted.

When embarking on a software development project it is critical to understand that in order to maximize the chance of obtaining a patent you need to approach the task with an engineering mind set, as well as a healthy familiarity with Murphy’s Law. Anything that can go wrong will go wrong, and once you release the process to end users a human element will complicate what should otherwise be a predictable, linear, machine driven response. Embrace the uncertainty and challenges because the fact that software rarely, if ever, works like it should is what makes a working process patentable.

On Tuesday, March 23, 2010, Ropes & Gray filed a motion seeking to dismiss a malpractice claim brought against the firm by Cold Spring Harbor Laboratory (CSHL). The complaint filed against Ropes & Gray also names patent attorney Matthew P. Vincent, who allegedly engaged in plagiarism by copying 11 pages of text from a patent application filed by another scientist, Dr. Andrew Fire. CSHL alleged that the copying of this material led to the United States Patent and Trademark Office concluding that the work of Dr. Hannon (of CSHL) was indistinguishable from Dr. Fire’s work and, therefore, unpatentable. The problem with this theory, as was pointed out in the Ropes & Gray motion to dismiss, copying text out of other patents and patent applications is done all the time.

One of the proposals in the pending patent reform legislation is a change from first to invent to a first to file system. The trouble is that an interference proceeding, the proceeding that would take place to determine who is entitled to receive the patent between the alleged first to invent and the first to file, costs about $600,000. Not many independent inventors or small businesses are going to be able to foot that bill for sure. Nevertheless, I thought it might be good to take a look at this thing called an interference proceeding, which if patent reform is successful would become a relic of US patent law.

Nothing in the appealed issues in Pressure Products (claim construction, denial of motion for JMOL, leave to amend answer) even remotely hints at or suggests the basis for this five judge panel. In fact, Pressure Products has all the markings of a fairly ordinary, garden variety patent infringement case. So why not the standard three judge panel? Not a word of explanation.

Whatever your opinion of the business model, it is impossible to ignore the fact that Cheryl Milone has turned Article One Partners a major player in the patent research field. Article One is attracting big name members to the Board of Directors, they have started a patent quality review blog and Milone was recently invited to the White House to participate in a round-table event, which she talks about in our conversation. So, without further ado, here is my conversation with Cheryl Milone. We talk patent reform, reexamination, patent litigation, improved patent search and IT databases, claim construction and more.

The victories selected represent a diverse array of wins, which a press release announcing the Top 10 list says is due to “the differing objectives of IP litigation today.” These victories range from multimillion-dollar jury verdicts, including the biggest patent award ever, which was won by Johnson & Johnson’s Centocor Ortho Biotech unit against Abbott Laboratories, to the i4i injunction win blocking the distribution of Microsoft Word editions having a popular XML feature.

Sitting by designation in the United States District Court for the Eastern District of Texas, soon to be Chief Judge of the Federal Circuit, Judge Randall Rader, granted summary judgment to Google Inc. and AOL LLC in the case brought by Performance Pricing, Inc., which alleged infringement of U.S. Patent No. 6,978,253. Judge Rader ruled that there was no infringement and summary judgment was appropriate because there were no genuine issues of fact in dispute. More specifically, Rader determined that AdWords does not contain a price-determining activity.

This year individuals seeking registration before the United States Patent and Trademark Office (Office) as patent attorneys and agents can take the exam at the USPTO on July 13 or July 14, 2010. The deadline for applying to take the exam in person at the USPTO is Friday, May 14, 2010. While the last time the Patent Office released Patent Bar Examination results is well over 3 years ago, over the preceding decade some 30,609 administrations of the exam, with 16,266 individuals passing the exam and becoming either patent attorneys or patent agents, which corresponds to an overall pass rate of 53.1%.