Realistically, I understand full well that it is unlikely that Congress will bother themselves with reform efforts that are sensible, at least at the moment. It is also unlikely that innovators will be adequately represented in any reform efforts once they do arise. It seems that the power structure in Washington, D.C. believes that the term “innovator” and “big business” are synonymous, which surely they are not. It is also unlikely the Senate will move beyond the legislation Senator Leahy wants so badly but can’t seem to move. Thus, if we really want sensible reform that actually raises up the Patent Office and guarantees the value of patents for innovators we need to be ever vigilant.

If you are going to go down the path of blogging for profit or for notoriety you need to have a well developed sense of what your market is interested in when you set out to write. Copying others isn’t likely a winning strategy, but identifying what you like, what you can provide and what you want to do are all essential. Then you need to think about the reader. You know the mantra — know your audience. It is certainly helpful to write what interests you because, in my view, that which you are interested in and passionate about makes for great reading, but it is also important to give readers what they want otherwise you won’t build an audience, or you will lose the audience you do have.

Trade secrets are a very important part of any intellectual property portfolio. It is not at all an overstatement to say that virtually every business has trade secrets worth protection, regardless of whether the business is run as a sole proprietorship, a small business or Fortune 500 company. This is true because any business information that is valuable as a result of being kept secret qualifies for treatment as a trade secret. Nevertheless, it may be better to say that every business has assets that could and should be protected as trade secrets, but the truth is that many companies, even large companies, fail to do so properly.

The United States Patent and Trademark Office has recently launched an online forum titled Discuss the MPEP, which as the title suggests will allow interested individuals to discuss sections of the MPEP. The goal of this discussion forum is to provide the editors of the MPEP with information useful when considering re-writing the MPEP. The goal for versions of the MPEP to come is to create a document hat will enable both practitioners and examiners to find information quickly, get accurate and complete guidance, and ensure that all patent applications comply with the laws and regulations governing the patent system.

This announcement signals a major shift in the way would-be patent attorneys and patent agents will be tested, bringing the exam forward to test the latest developments in rules and laws. It can be reasonably anticipated that the patent bar exam will become a moving target as the Kappos Administration continues to move forward with initiative after initiative and rules package after rules package. Those preparing to take the exam need to be mindful of the need to stay current and not rely upon outdated study guides, reference materials and old questions when studying for the exam.

The latest edition of Fortune magazine has John Roberts, Chief Justice of the United States Supreme Court, on the cover proclaiming the Roberts Court to be the most pro-business court we have ever seen. So how can it be that the Roberts Court, which has shown hostility toward innovators and contempt for patents that is unusual, is considered pro-business? On top of that, the Roberts Court seems poised to strike at the very heart of the patent right granted by the United States federal government; namely the presumption of validity. That sure doesn’t sound very pro-business to me.

I believe it is time for the PTO to jump aboard the ship of the future and use document and data search techniques now being employed in the litigation and national security arenas. Many tools (software approaches) exist that multiply effort and get smarter with each go around. I believe these tools should have a place at the PTO. Search techniques that build on what others have done and that search not just publications, but file histories as well, would give examiners a leg up when trying to assess patentability and truly understand what references can and should be cited to demonstrate. Machine translation of foreign language art would also be very useful. The abstracts just do not provide enough for an Examiner to go on for foreign references. And, in many areas, foreign art is the best.

In early September of 2010, I was given my new favorite toy, an Apple iPad, as a gift. I originally used the iPad to read books, play games and to surf the Internet. However, I have discovered that the iPad is a fantastic business tool as well. Whenever I am away from my office, I take my iPad with me. With the right applications, the iPad has virtually replaced my laptop.

In looking at the cases filed at the Federal Circuit during 2010, 42% of the docket for the CAFC were patent cases. At the moment, the three judges who are patent attorneys on the Federal Circuit are all on active status, and by that I mean are not on senior status. Judges Newman and Lourie, however, currently qualify to move to senior status or retire, and in a matter of a few years Judge Linn could elect senior status, or to retire, as well. Thus, moving forward in the not too distant future there could be a time when none of the judges active on the Federal Circuit would be patent attorneys by training and experience. This, in my opinion, would not be at all wise.

As the open source movement grows Microsoft, which is always the 800 pound gorilla in the room, may consider bringing patent infringement suits. It seems that is the worry of at least one open source group who claims that it is particularly troubling that Microsoft, along with a group of tech companies that includes Apple, is seeking to purchase the Novell patent portfolio. According to the Open Source Initiative, the Microsoft coalition seeking to purchase the Novell patent portfolio has “no incentive to support open source as a competitive alternative to proprietary software.”

It takes time to prepare a detailed written disclosure that will support any number of claims, and there is just no way to rush it. Inventors and entrepreneurs intuitively know this, but they get lured into believing that what they get for $1,400 is just as good as what they would get if they paid $8,000, which is unrealistic of course. You cannot fall for what you want to hear when you deep down know it makes no sense. If you aren’t convinced ask yourself this: when you were in school and you had to write a paper for a grade, was the resulting paper better if you spent more time or less time working on the project? The reality is the more time you have to spend the better the work product.

At the end of December, we learned that Microsoft had petitioned the PTO Director to order reexamination of the ‘449, and this morning that petition has been released to the public. It shows that Microsoft’s chances at the Patent Office are not so long after all, that Microsoft’s argument for reexamination are stronger than many thought. The concerns about the “clear and convincing” standard being abandoned by the Supreme Court may not be justified – there is a real prospect that the Microsoft-i4i dispute could be resolved in the reexamination, without the need for the Supreme Court to reassess the burden of proof standard for accused infringers.

The fact that the outsourcing of patent searches and the preparation of patent applications violates U.S. law only makes perfect sense, particularly when you factor into consideration the requirements of 35 U.S.C. 181 (re: national security) and 35 U.S.C. 184 (re: foreign filing licenses). By openly and willingly tolerating the outsourcing of preparation work of patent applications the clear intention of 35 U.S.C. 181 is subverted. What good does a secrecy order make if the the information relative to the invention has already been sent overseas?

While the Federal Circuit ruled that Microsoft did infringe and the patent claim in question (claim 19 of U.S. Patent No. 5,490,216) was valid, it was Microsoft who was the big winner here. The damages awarded by the jury to Uniloc were $388 million, which was set aside by the district court, a ruling that the Federal Circuit affirmed. The Federal Circuit also agreed there was no willful infringement. So while Uniloc has won at least something from Microsoft as a result of its infringement of a valid patent claim, it seems like it will be far less than the $388 million, particularly given the Federal Circuit threw out the 25 percent rule and said the entire market value rule was not applicable in this case.

On November 30th, 2010, the Editors of the ABA Journal had announced the selection of the top 100 best law blogs by lawyers, for lawyers. Readers were then given one full month to vote for their favorite blogs. Each individual could vote for more than one blog in any category, but could only vote once per blog. Now the voting has ended and the ABA Journal has announced the winners of the Fourth Annual ABA Journal Blawg 100, which recognizes the best legal blogs for 2010. So without further ado, here are the overall results of the 2010 ABA Journal Blawg 100 contest!