Some will undoubtedly view the Chief Judge’s basis in Ultramercial for distinguishing the ruling in CyberSource as being “slight of hand” and using “mirrors,” but it certainly illustrates the wide gulf of views between the various members on the Federal Circuit on the patent-eligibility question. I wouldn’t be surprised (and frankly it needs to happen) if both Ultramercial and CyberSource ended up before the en banc Federal Circuit. As I’ve noted previously, we’ve currently got what appear to be irreconcilable decisions in the Classen, Prometheus, and AMP cases in determining the patent-eligibility of certain medical (e.g., diagnostic) methods. With what appears to be similarly conflicting decisions in Ultramercial and CyberSource, the gauntlet has truly been thrown down. An en banc Federal Circuit needs to step in soon, or the conflagration that currently exists in the patent-eligibility “war” might soon consume us all.

The truth is that Google bought a great deal more than patents when it acquired Motorola, though there are doubtless some real gems in the Motorola portfolio. As a relative newcomer to the wireless arena, the search giant in one bold move got its hands on the unmatched innovation experience of the longest-lived mobile phone company on earth. The technical acumen and product experience of those thousands of mobile software and hardware engineers will prove hugely valuable to Google as it seeks to dominate the $250 billion global market in smartphones, especially if it decides to become a handset maker as Motorola had been.

For example, regarding Thomas Edison, Lemley’s primary case illustrating the so-called “myth of the sole inventor,” he alleges that “Sawyer and Man invented and patented the incandescent light bulb” (Lemley 2011, p26) and that “Edison did not invent the light bulb in any meaningful sense” (Lemley 2011, p25). We disprove Lemley’s assertions and present five key facts that Lemley omits: for example, although Lemley cites a Supreme Court case in 1895 as a source for the statement above, he neglects to inform us of the decision reported in that case; it affirmed a lower court’s 1889 decision in favor of Edison and finding the Sawyer & Man patent invalid. Furthermore, the Sawyer and Man lamps were not commercially viable, having only a few hours life, whereas Edison’s invention was the basis for a lamp with a hundred times longer useful lifetime: electric lighting became economic and it was Edison’s invention that unlocked the field after three decades of experimentation by others in incandescent lamps. There was no candidate for an invention simultaneous with Edison’s invention.

I’m not suggesting that those who write the patent bar examination questions are testing irrelevant stuff, but what types of questions would you ask if you were writing an exam question that tried to determine whether someone who wanted to be admitted to the club understood the rules well enough to become a member? You would likely ask questions about organization rules and procedures that fell into one of several categories: (1) those that are commonly misunderstood or unknown by current members; (2) those that are of extraordinary importance due to the magnitude of harm that could accompany a misunderstanding or mistake; or (3) those things that are particularly weird. So it isn’t at all surprising that counter-intuitive rules that are commonly misunderstood or misapplied make up a statistically relevant portion of the exam.

The search for innovative ideas has never been easy, but the advent of crowdsourcing technologies and powerful players willing to embrace new methodologies seems to be paying dividends. Rather than rely on traditional innovation that comes from one individual or a small group of individuals or those working for or with a single entity or as part of a joint venture, crowdsourcing technologies take problems to millions of people and capture the most creative solutions, allowing them to be pursued and developed. “Opening up the conversation and searching for solutions among a broad, but qualified, audience has allowed us to find unique, innovative ideas in a short period of time,” said Matthew Bishop, U.S. business editor and New York bureau chief for The Economist.

The America Invents Act, which just recently passed by the Congress and sent to the White House for President Obama’s signature, is the most significant patent reform legislation in decades, and it promises to change virtually all of patent practice as we know it over the next 18 months. Some pieces of the legislation will go into effect almost immediately,…

The canonical story of the lone genius inventor is largely a myth. Edison didn’t invent the light bulb; he found a bamboo fiber that worked better as a filament in the light bulb developed by Sawyer and Man, who in turn built on lighting work done by others. Bell filed for his telephone patent on the very same day as an independent inventor, Elisha Gray; the case ultimately went to the U.S. Supreme Court, which filled an entire volume of U.S. Reports resolving the question of whether Bell could have a patent despite the fact that he hadn’t actually gotten the invention to work at the time he filed. The Wright Brothers were the first to fly at Kitty Hawk, but their plane didn’t work very well, and was quickly surpassed by aircraft built by Glenn Curtis and others – planes that the Wrights delayed by over a decade with patent lawsuits.

So the point is that there is the language of the bill, and then there is what we were told was in the bill, which actually isn’t what is in the bill if you are reading the plain meaning. In the coming days President Obama will sign the bill and then the Courts will embark on the long journey to decipher the text and tell us what it means. All the while the USPTO will be proposing and then enacting new rules. Patent law, practice and procedure is in a state of flux to say the least.

It looks like my prediction on Tuesday that the Senate would pass H.R. 1249, the America Invents Act, prior to President Obama’s much anticipated jobs and economy speech that begins at 7:00pm ET today, Thursday, September 8, 2011. The Senate voted to pass H.R. 1249 and send the House version of the America Invents Act to the White House for President Obama’s signature by a vote of 89 to 9. The Coburn Amendment, which would have once and for all put an end to fee diversion, was unsuccessful, being tabled by a vote of 50 to 48.

People have been arguing about the Internet since Al Gore invented it (sorry, I just couldn’t resist). One would think this issue would have been well settled by now but it’s not. The courts are starting to move toward some sort of congruency but there is still a very decided split in the decisions. And, as with oh-so-many issues in intellectual property, there is a litany of case law on the subject and not one bright line rule. It all boils down to what we consider a “use in commerce” and if we can call that “use” a source of confusion in the consumer. Briefly, in order to make a claim of trademark infringement stick, you have to show the defendant used your mark in commerce and you have to show that that use likely confused the purchasing public as to which company was actually selling that service or those goods. Since a metatag isn’t technically visible on the web page, federal courts haven’t agreed whether a metatag is “used or displayed in the sale or advertising of a service rendered in commerce or “placed in any manner” on a good transported in commerce”. See Lanham Act 15 U.S.C. 1127 .

The president says that’s the fault of recalcitrant Republicans in Congress. Republicans in Congress say it’s the fault of a president who is hostile to business. But the real reason we are not putting people back to work three long years into the recession is that Washington is afflicted with a totally-bipartisan cluelessness about how to create jobs.

“The ePetitions program is an instrumental part of the USPTO’s continuing efforts to expand its eCommerce capabilities and augment its ability to provide new tools and services to patent practitioners,” said Commissioner for Patents Robert Stoll. “Online filing of these specific ePetitions offers an important time saving advantage to petitioners as these submitted petitions are auto-processed and decided immediately upon receipt by the USPTO.”

The United States Senate voted 93 to 5 earlier this evening to end debate on patent reform, which should set up a vote on H.R. 1249 in the coming days. Debate on patent reform is now over in the Senate. In the coming days the Senate will vote on and almost certainly pass H.R. 1249, sending it to the White House for the signature of President Obama. The Obama Administration has lobbied hard for this patent reform and although they are not getting everything they wanted, most notably an end to the practice of fee diversion, President Obama’s signature is guaranteed.

Kickstarter is becoming more popular given the press it has received from the New York Times, CNN and NPR, but are they successful at raising money for people? According to Kickstarter just over 10,000 projects have been started and a little less than half have been fully funded and have gone forward. Of particular interest to those seeking funding is that Kickstarter takes no ownership interest in any underlying intellectual property rights associated with the projects, it is free to post a project, and the fees collected if a project is successful are under 10% (i.e., Kickstarter collects a 5% fee from the project’s funding total if and only if a project is successfully funded and credit card processing fees generally take up another 3-5%).