After 1 hour and 40 minutes I had hardly covered one-third of my questions, and I think you will see that we had a very lively discussion about many things, including Judge Michel’s investigation of President Nixon during Watergate, his investigation of Members of Congress during Koreagate, judicial ethics, working for Arlen Spector when he was a District Attorney and then again as a Senator, patent reform, the Patent Office, where things seemed to go out of control for the US patent system and much more. We even talked about Bilski v. Kappos, KSR v. Teleflex and how the patent system is tilting against independent inventors, start-ups and universities.

The sequence of events of In re Swanson is well known. Judge James Cohn of the Southern District of Florida has now taken the Swanson approach one step further – in Flexiteek Americas v. PlasTEAK (Case No. 08-60996-civ-Cohn/Seltzer) he has withdrawn a permanent injunction on basis of an advisory action in a reexamination, which found the patent-in-suit to be invalid.

So now what does SCOTUS’ ruling in Bilski “really” mean to us “mere mortals”? First, we’ve got two “wild cards” to deal with as noted above: (1) Stevens has retired; and (2) what does Scalia’s refusal to join Parts II B-2 and C-2 of Kennedy’s opinion for the Court signify. Some aspects of “wild card” #2 are dealt with above, but as also noted, there are still some aspects which are unclear or at least ambiguous as to how this refusal by Scalia should be viewed. This lack of clarity/ambiguity will require some sorting out by the Federal Circuit, which may come as early as the reconsideration by the Federal Circuit of Prometheus, Classen, or even the appeal in AMP v. USPTO involving the gene patenting controversy. In AMP, District Court Judge Sweet’s invalidity ruling regarding the method claims for determining a pre-disposition to breast/ovarian cancer using the BRCA1 and BRCA2 genes relies at least in part upon the “M or T” test which, as noted above, SCOTUS unanimously relegated to “second class” status in Bilski as not the only test for patent-eligibility.

Those who are opposed to exclusive rights because it prevents innovation and provides no benefit to the public really should do their homework. They run about throwing this study from an agenda driven economist or that study from a disgruntled economist as if these fictitious mental exercises that ignore reality are evidence of some kind. At the same time they ridicule and pick apart the Studies that reach a contrary conclusion, and simply ignore facts. In this space we really don’t need to be doing any Studies. We just need to observe history. The numbers simply do not lie. Granting exclusive rights has resulted in 13 times the number of drugs to treat rare disease.

All in all I would characterize the mood of the PTO officials I spoke with as up-beat and the mood of the stakeholders in attendance was generally positive, but with reservations about the mechanics of Track 3. After the event I too would be upbeat if I were among the senior ranks at the USPTO. Those aspects that were viewed as negative or needing more work or clarification seemed few, were identified over and over again and should be addressable. That being the case it seems the majority of the proposal is acceptable and the community remains hungry for these types of creative initiatives, which sadly is all we have given that Congress continues to be AWOL on even relatively meaningless reforms, let alone reforms that could actually do some real good.

Earlier today the Wall Street Journal gave front page space to a story relating to the United States Patent and Trademark Office. Widely regarded as one of the “papers of record” in the United States, one might expect that the Wall Street Journal had brought its considerable clout to an important issue plaguing our time, such as an horribly under funded Patent Office that is holding innovation hostage, costing America perhaps millions of jobs. NO! Don’t get me wrong, every tabloid should have front page news story about pot, medical marijuana and have an image of a VW bus over the tag “the Canny Bus,” as the Journal did earlier today. Call me crazy, but I expected more from the Wall Street Journal.

The reality is that the term patent troll seems to be more in the eye of the beholder than anything else. So a patent troll is whoever is suing you because you must be correct and some evil wrong-doer is holding you hostage. Never mind that you are actually infringing and you are the real wrong-doer (i.e., tortfeasor). What is needed is a working definition for the term patent troll so that this nonsense can stop once and for all, and so the uninformed in the media can be spared the embarrassment of their own cluelessness. So lets take a look at some of the characteristics that will get you characterized as a patent troll and either confirm it as a useful indicator of a wrong-doer or as simply overblown and wholly inaccurate.

The United States Patent and Trademark Office (USPTO) will be holding a public roundtable discussion on its proposed Enhanced Examination Timing Control Initiative, also known as “Three-Track,” currently under consideration by the USPTO. The purpose of the roundtable meeting is to solicit opinions from the public on the proposed initiative. The meeting will be held on Tuesday, July 20, 2010, from 1:30 p.m. to 5:30 p.m. at the USPTO headquarters in the Madison Building Auditorium, which is located at 600 Dulany Street, Alexandria, VA, 22314. The meeting will also be webcast.

The United States Patent and Trademark Office (USPTO) announced that the period for receiving public comments regarding the agency’s 2010-2015 draft Strategic Plan has been extended until August 2, 2010. The extension has been made to allow more time for the public to provide feedback to the agency about the plan.

In a recent decision, the Eastern District of Texas has clarified the proper role of functionality in claim construction for design patents. By statute, design patents must be directed to “ornamental designs for an article of manufacture.” As a result, courts have struggled with how and when functional aspects of a design should be considered when construing a patent claim.…

In this final installment of my interview with Nick Godici we learn just how close the Patent Office was to sending out 9,000 furlough notices (to all those on the patent side of the building) during the Summer of 2009 as a result of lack of funds. We also discuss the historic patent allowance rate versus the 42% rate the Patent Office got down to during the Q1 of 2009. Godici also humors me by answering the fun questions and we learn that he was the primary examiner on a somewhat famous (or infamous) patent relating to a bird trap and a cat feeder, and he goes off the board with an interesting selection for most famous fictional inventor.

I can’t tell you the reason why companies choose to be targets, but I think I have a compelling idea. Those companies that are the ones who complain about patent trolls are also the ones who continually are on Capitol Hill lobbying for patent reform, which in their mind is really only appropriate when it makes issued patents easy to challenge and much more difficult to get. These are the folks who built their corporate empires on patents, growing from small company to mega-giant company while building an enormous intellectual property portfolio heavily dominated with patents that gave them a competitive advantage. Now that they have their market dominant position they really don’t need the patents so much because they have their market power to insulate them from competition, so they want to make it harder for the next individual inventor, start-up tech business or small business to innovate, protect and grow up the corporate food chain.

The complaint seeks $3.8 billion in damages at a minimum, but no event less than a fair and full reasonable royalty, but also seeks tripled damages as a result of willful infringement, which would bring the total to $11.4 billion at a minimum. While willful infringement is quite hard to prove, if the facts actually are what is alleged it would seem as if the case is exceptional, which could lead to triple damages and attorneys fees as well. So when you add that all together and add pre-judgment and post-judgment interest, the total amount on the line could easily exceed $15 billion. And before you write this off as a patent troll trying to hold up a true innovator, which some of the uninformed in the popular press are doing already, read the rest of the article and take a look at the complaint. If the facts alleged even remotely resemble reality this could turn out to be an epic battle to which we will all want front row seats!

In this interview we talk about how two Presidents that are extremely different on so many fronts, Presidents Reagan and Obama, are pursuing quite similar strategies regarding the Patent Office. We also talk about the importance of good working relations between patent examiners and the patent bar, the enormous backlog of applications at the Patent Office, the Patent Office process for handling decisions and issuing guidance in situations such as the recent Supreme Court decision in Bilski v. Kappos and what it is like to be Commissioner for Patents and the Director of the Patent and Trademark Office.

Truth be told, it would be enough for Congress to just (1) stop siphoning off money from the USPTO through fee diversion; (2) grant the USPTO fee setting authority; and (3) stand out of the way. So my message to Congress would be this: put the pocketbook down, slowly step back and raise your hands over your head so we can see them!