I have done quite a bit of writing about the America Invents Act, but I have been a bit derelict in providing the sequel to America Invents: A Simple Guide to Patent Reform, Part 1. Part of the reason, if not the entirety of the reason, is that the major parts of the American Invents Act that remain are anything but simple. On this note I embark upon Part 2, which will seek to make sense of prior user rights, post-grant review, preissuance submission and patentability changes. This will leave inter partes review, supplemental examination and derivation proceedings for the finale — Part 3.

22% of social network patent applications are filed within one year of the youngest prior art cited against them. So speed of filing counts. If these applications had been filed a year earlier, then 22% of them would have avoided the youngest prior art cited against their independent claims. The applicants would have had correspondingly broader claims allowed. They would not have had to argue or amend around this prior art or abandon their applications altogether.

The reality is that science fact and science fiction are dictated based on currently accepted understandings, whether they be true or not. As impossible as something sounds, what we understand as science fact is always bounded by our understanding of our surroundings. As our knowledge expands what was formerly science fact frequently becomes science wrong, sometimes badly wrong. Does that mean that someday perpetual motion will be a reality? Who knows. I am not holding my breath or taking any bets, but there are a lot of highly intelligent people constantly trying to unlock the mysteries of the universe and with so many new discoveries it seems science continues to encroach upon the impossible. Just think about cloaking devices and a transporter a la Star Trek, which are already to some extent realities.

Accudial Pharmaceutical®, Inc. has acquired Stephen Key Design, LLC. This acquisition expands AccuDial’s patent portfolio to over fifty patents for weight based dosing and other extended content rotating labels (ECRL), which adds 75% more labeling space to a container. Yes, this is that same Stephen Key, known known to many inventors and entrepreneurs as the man behind Invent Right and the author of One Simple Idea: Turn Your Dreams Into a Licensing Goldmine.

Steve Jobs, the visionary founder and leader of Apple Computer Corporation, died Wednesday, October 5, 2011 at the age of 56 after an 8-year battle with a rare form of pancreatic cancer. Jobs, who is sometimes referred to as the father of personal computing, was the mastermind behind Apple’s Computers, iPods, iPhones, iMacs and iPad’s and is seen by many as a man who pioneered the personal computing industry and literally changed the way we live our lives every day. In celebration of his life and his accomplishments over the years, the following is a timeline of Jobs’ history, and the history of Apple, beginning in 1972 when he graduated from High School in Palo Alto, CA, and focusing on the major events in a memorable life.

If you actually read my article you will find that I simply don’t say the things they claim I say. The basic refrain of the Howells-Katznelson paper is that (1) I think Edison and the Wright brothers didn’t make inventive contributions, and (2) I diminish their contributions in service of my “radical” anti-patent agenda. With all due respect, I don’t see how anyone who read the whole paper could think I said any such thing. There is no question that Edison and the Wrights made useful contributions to the world. The point of my article is that they (and the many other iconic inventors I discuss) did not act alone. They made important but incremental contributions on the shoulders of many other inventors advancing the technology, and they often did so at about the same time as other, lesser-known inventors.

One thing that many individuals and professional inventors employed by corporations (i.e., “kept inventors”) have in common is that they frequently do not perceive what they have come up with as worth patenting. So many have the idea that a patent is something that gets awarded to breakthrough innovations, when in fact it is far more common to have a patent awarded to an improvement on an existing product. If you can improve upon something , there is already a market in existence for the underlying product and consumers will perceive your improvement as worth paying for then you very well may have a winning invention. Certainly, you are much farther along the path to success with that trifecta.

So here we are, many years later and IV’s philosophy seems to have changed. No longer is litigation a poor way to monetize patents, but rather IV sees itself as having a responsibility to litigate. The self-righteousness of IV’s claims is why they engender such distrust, even bordering on hatred. For so long they came in peace and now that they have the leverage they seem to be playing a different tune, and using patent litigation with greater frequency. They accumulated patents over time, sometimes getting as much as $50 million from companies like Google, eBay, Sony, Intel, Microsoft, Apple, Nokia and others, ostensibly for the purpose of obtaining a defensive patent position. Oh how the tables have turned.

The question may arise – what if the result of crowdsourcing is less than the proverbial “smoking gun,” can it place the App Developers at a disadvantage in court? Case law indicates that the answer is no. Last year, in a patent litigation brought by Personal Audio LLC, the plaintiff attempted to argue that their patent was valid based on crowdsourced research and to seek discovery on this basis. Personal Audio lost on both counts, with federal Judge Miriam Cedarbaum concluding, “eliminating a negative doesn’t show validity” and commenting on the patent owner’s approach with the statement “that’s what I call desperation.” Transcript of Oral Argument and Decision at 12-13 and 14, Personal Audio LLC v. Sirius XM Radio, Inc. et al, No. M8-85 (S.D.N.Y. Nov. 2, 2010).

Upon hearing Rader make such a bold statement the first thought that ran through my mind was — Really? Did he just say that? I have heard from others for some time that Rader has been heard to say these or similar things relating to obviousness, but I just discounted them as one would discount the output of a game of telephone. After something gets stated, shared and restated there is typically little of the same message remaining. That had to be why Rader was reported to have said such curious things about obviousness and the impact of KSR. But then I was sitting right there listening to Chief Judge Rader say something that is provably incorrect. I’ll bite. I’ll take that challenge.

Companies accused of patent infringement are increasingly looking at patent reexamination at the Patent Office as an attractive avenue for challenging the patent’s validity. Reexamination offers a number of well-known advantages as a forum for such validity challenges over District Court, among them the absence of a presumption of validity and a lower burden of proof. Less well-known, however, is the potential for reexamination to eliminate an accused infringer’s liability for past damages – even if the PTO confirms the validity of a patent in reexamination, the accused infringer might be entitled to “intervening rights,” effectively eliminating past damages, if the patent owner amends its claims to distinguish its invention over the prior art. This possibility of “intervening rights” received a big boost last week with the CAFC’s decision in Marine Polymer Techs. v. HemCon, finding that such rights may be created even without an amendment of the claims if the patent owner presents arguments in reexamination that “effectively amend” the claims.

So what does this AIA “mumbo jumbo” mean in plain English? Well, to me and especially to others who have previously opined on this provision of the AIA, it means you not only don’t blow “novelty” in the U.S. by “publishing” the subject matter of your claimed invention (although you’ll blow “absolute novelty” elsewhere, including Europe, unless you do what I suggest below), but you can essentially “foul the nest” of others that follow after your “published” date. Even better, when you “publish” the subject matter of your claimed invention, you also put a non-patent application “date stake” in the ground as to what you have “published” that is resistant to subsequent intervening “prior art” of third parties when you do file your U.S. application (within a year of that “published” date).

If (B) gives a blanket exclusion to subject matter, which cannot be used as prior art after a disclosure by an inventor, that would lead to nearly ridiculous results. Imagine for example that an inventor discloses a specific embodiment of a coffee cup and then subsequently another who did not derive independently comes up with and discloses a coffee cup with a lid. If (B) does more than relate to a personal grace-period the subsequent disclosure could not be used against the first to publish inventor as prior art because it relates to the same “subject matter.” That would mean that the inventor could incorporate the cup and the lid into his/her patent application and obtain claims. You might be tempted to say that is impossible, but if the cup with the lid is not prior art then under what rationale could an examiner issue a good rejection? This would lead to results that turn the patent system upside down, and was clear evidence to me that those arguing that 102(b)(1)(B) excluded out subsequent independently disclosed inventions was fanciful at best.

During his contemporaneous, unscripted speech, Chief Judge Randall Rader made several remarks about the access to justice that raised some eyebrows. On Friday we were told that we need to tolerate the injustice of certain rules that might lead to an unfair result, but then on Saturday morning during the Judges’ panel we were told that rules of thumb couldn’t and shouldn’t apply to the law of damages. Rader on one hand was saying that certainty and relatively bright line rules are necessary to control the process of litigation, but then on the other hand saying that a flexible, case-by-case approach needs to be what we pursue. In short, it seems to me that Judge Rader wants to have his cake and eat it too! I dissented in person, and I dissent here and now.

There is much to write about the event, but I will start my week long coverage with an overview of the event. As the week progresses I will delve into some interesting substantive discussions that took place over this Intellectual Property weekend in the Granite State, including: (1) Chief Judge Rader tell me during the Judges’ panel: “You aren’t making any sense…”; (2) Chief Judge Rader daring anyone to come up with proof that the Supreme Court’s decision in KSR did anything to change previous Federal Circuit case law on obviousness (I’ll take that challenge!); and (3) Jon Dudas, the former Under Secretary of Commerce for Intellectual Property, succinctly (and correctly) explaining that the funding of the United States Patent and Trademark Office is similar in ways to a Ponzi scheme.