Perfect 10, Inc., the former publisher of Perfect 10 Magazine, is back at it with Google over whether Google’s display of certain images of scantily clad women infringes the copyrights owned by Perfect 10. Perfect 10 created and sold pictures of nude models through a now defunct print magazine, and now creates and sells pictures through a password-protected subscription website. Simultaneous actions are pending in both United States and Canada, each with recent rulings over the last two weeks, with a ruling in Canada on July 18, 2010, and a ruling on Google’s motion for summary judgment in the United States District Court for the Central District of California on July 26, 2010.

Earlier this week Apple, Inc. had three patent application publish on what most would consider strange, overbroad and/or dubious inventions. The patents largely follow the same formula, the drawings are remarkably similar, and all relate back to provisional patents filed at the end of January 2009. Many will ridicule these patent applications, and given that obviousness is now about common sense thanks to the Supreme Court’s decision in KSR v. Teleflex I think rightly so. I find it hard to believe that there would not be prior art located that dates back to before January 2009 that will present massive difficulties for Apple.

What do you think of when you hear the term “expert?”  What makes one an expert in your mind? How does one become truly recognized as an expert in their field?  It is not easy to be considered an Expert, otherwise we’d all be experts.  However with time, practice and persistence, one can grow into a truly recognized expert within…

On July 19, 2010, I was granted back stage pass of sorts, for a behind-the-scenes look at the United States Patent and Trademark Office. I had, initially requested an interview with Director David Kappos and was given an affirmative response, but then I floated the idea of a three-part series to commemorate the first anniversary of David Kappos leaving the private sector to take the helm at the USPTO. Rather than just do an interview, I suggested something different. I thought it might be particularly interesting to profile a day in the life of David Kappos, much like the President allows certain journalists to do by giving them access to the White House for a day, with an associated tour and interview. Peter Pappas, the Chief Communications Officer and Senior Advisor to Kappos, liked the idea and agreed to work with me to get it scheduled.

AbsolutelyNew, Inc., a next generation consumer products company that develops and launches the best ideas from independent inventors, has added former Director of the United States Patent and Trademark Office (USPTO) Jon Dudas to its Advisory Board. Jon will help AbsolutelyNew advance its successful strategy of harnessing the great ideas of independent inventors.

In this installment we start out talking about Judge Michel’s work for Senator Arlen Specter and how today there seems to be a slow and steady decline in the checks and balances intended to be a part of the federal system. This lead us into talking about the Founding Fathers and how they viewed intellectual property, and patent in particular, as critically important. We discussed how the Patent Office used to be held in such esteem by the Founding Fathers and many generations, and how that seems to be a relic of the past. We also discussed how Judge Michel would like to become a public nuisance and troublemaker as he attempts to proselytize for the patent system and a more responsible federal government.

This morning the United States Patent and Trademark Office published Interim Guidance for Determining Subject Matter Eligibility for Process Claims in View of Bilski v. Kappos. The Interim Bilski Guidance is effective July 27, 2010, and applies to all applications filed before, on or after the effective date. Most noteworthy is that the Patent Office is encouraging examiners to issue 101 rejection in only “extreme cases” and allow patentability to be decided by sections 102, 103 and 112.

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.