If you visit the Google bulk USPTO data site you will see that the data, volumes of it, is presented in zip format. Thus, the data will not likely be at all useful to individual users, but perhaps other commercial services will be able to finally access the data and create usable products. I say this because as good as Google is for many things it seems pretty clear to me that Google gets a project only so far before they lose interest, move on to whatever is next and leave an 80% solution behind. I have seen this over and over again with Google. As good and quick as Google Patents is, for example, it lacks easy to provide and fundamentally important features and is, therefore, not that useful.

With respect to Track I, of particular note is the fact that the Patent Office is considering limiting the number of claims in a prioritized application to four independent and thirty total claims. In addition, the USPTO is considering requiring early publication of prioritized applications so that applications would be published shortly after a request for prioritization is granted, or no later than eighteen months from the earliest filing date. While this will undoubtedly make those in the patent community nervous, I suggest holding off on reactionary judgment. Obviously, limiting the number of claims conjures up nightmare memories about the failed claims and continuations rules. The big problem there though was not the limitation of claims, it was the limitation of continuations. If the Patent Office wants smaller, bite-size patent applications I see no problem with that as long as continuation practice is not compromised. I see no reason to suggest continuation practice will be compromised, remembering full well that David Kappos famously opposed the rules by filing an affidavit in support of the AIPLA amicus brief to the District Court while then Vice President of IBM. Nevertheless, this bears watching.

The United States Patent and Trademark Office is seeking public comment on a major new patent examination initiative that would provide applicants greater control over the speed with which their applications are examined and promote greater efficiency in the patent examination process. This newly proposed Three-Track program aims to provide applicants with the ability to go faster or slower through the patent process, which will in turn hopefully reduce the pendency of those patent applications that are the most time sensitive. Under Track I applications will be expedited, under Track III they can be slowed at the applicants request.

A packed room of at least 200 individuals, including the newly retired Chief Judge Paul Michel, former USPTO Director Q. Todd Dickinson, former USPTO Director Bruce Lehman and others listened to Kappos give an impassioned speech about how innovation can create jobs, how the Patent Office is unfortunately continuing to hold jobs hostage due to a staggering backlog of pending patent applications and how American economic security depends upon development of a comprehensive national IP strategy. I have heard Kappos talk about the job creating power of innovation and the role the USPTO can and should play, but there was something different about his speech today.

On Friday, May 28, 2010, USPTO Director David Kappos gave five suggestions for practitioners on the Director’s Forum (i.e., the Kappos blog). It would be wonderful if such things could occur in the prosecution of every case, but unfortunately the Federal Circuit has effectively prevented that from happening and forced upon the USPTO and the practicing patent bar a game of hide the ball, which benefits no one. With Congress not stepping up to the plate any time soon to do anything useful for the patent system there may be only one hope left; namely to get the CAFC judges to examine patent applications, sitting by designation, so they can better understand the mess they have created.

In what is turning into a broken record, the Supreme Court once again did not issue a decision in Bilski v. Kappos. Perhaps we should be thankful that the Supreme Court is taking so long and treating it as the overwhelmingly important case we know it to be. On the other hand, perhaps we should be afraid that the Supreme Court is giving it so much scrutiny. Let’s face it, the Supreme Court has not done much over the last decade to evidence anything other than glib familiarity and vague understanding of patent law. I sure hope they break with that tradition in Bilski.

As I’ve said before, no one could rightly accuse me of being biased against patents. But, as I also pointed out in this article on Judge Rader’s dissent in Media Technologies Licensing, LLC v. The Upper Deck Company, I don’t believe every patent is “bullet proof,” or to use Judge Plager’s phrase, that some patents aren’t built on “quicksand.” In fact, I agree with Judge Plager’s dissent in the denial of rehearing en banc in Enzo Biochem, Inc. v. Applera Corp., issued May 26, 2010, which argues that the “definiteness” requirement in the second paragraph of 35 U.S.C § 112 needs more “teeth” than Federal Circuit precedent appears to give it.

On holidays I frequently try and find a patent or innovation angle and write something cheerful and in keeping with the theme of the day being celebrated. As I sat here trying to figure out what to do for Memorial Day, a day that in my opinion simply cannot be over celebrated, I wondered how I would tastefully weave a patent related theme into what is a very solemn day of remembrance and thanks for the many men and women who have served the United States of America, and particularly for those who gave the ultimate sacrifice. I thought about profiling a patent or two where they inventor was a member of the US Armed Services, but that didn’t seem to be enough. I thought maybe it would be interesting to profile the first patent assigned to say the United States Navy.

On Tuesday, May 25, 2010, Adam Albrett, a patent attorney (Reg. No. 50514) who lives in Fairfax, Virginia, was arrested and charged with making threats on the life of the President of the United States, Barack Obama. At that time an order of temporary detention was issued by US Magistrate Judge Thomas Rawles Jones, Jr., who ordered that Albrett be held in custody pending a detention hearing that was to be held on Thursday, May 27, 2010 at 1:30 pm. Instead of the detention hearing being held today it was deferred until Tuesday, June 1, 2010, at 2:00 pm. Albrett’s temporary detention was extended until that time.

While this patent statute of limitations is an extraordinarily long statute of limitations by legal standards there is another very important piece to the puzzle that needs to be appreciated by those who would choose not to pursue infringers; namely the doctrine of laches, which can prevent recovery against a defendant even if infringement is conclusively proven. So those who are patent owners don’t usually have to worry too much about the statute of limitations, but they should be mindful of the 6 year limitation period. Now one also needs to be mindful of estoppel, but don’t forget laches either. Laches and estoppel are both equitable remedies, which are related, but at least somewhat different.

After first “threatening,” then being “silent” for over three years, the patentee in Aspex Eyewear was barred by the defense of equitable estoppel from getting any relief for patent infringement. What’s even worse, after the initial “threat” of infringement the patentee in Aspex Eyewear created this ticking estoppel time bomb by failing to mention (in follow up exchanges) the two patents for which suit was filed, while mentioning three other patents which were not involved in the suit that was filed.

If you ever thought of starting a patent software company, I have some good news for you. Unlike the general software markets for, say, antivirus or mp3 software, the legal software market is just not very saturated. A lot of the existing software for patent lawyers is outdated, ridiculously expensive, and frankly, not that good. There is definitely room for…

Earlier today the United States Supreme Court denied Microsoft Corporation’s petition for writ of certiorari in Lucent Technologies, Inc. v. Gateway, Inc. et al, with Microsoft being among the “et al.” While the Federal Circuit affirmed the validity and infringement aspects of the underlying decision of the United States Federal District Court for the District of Southern California, the Court vacated and remanded the damages portion to the district court for further proceedings because the damages calculation lacked sufficient evidentiary support. Despite the Federal Circuit vacating and remanding of the damages award of $357.69 million Microsoft appealed to the Supreme Court, an appeal that will never happen with the denial of the petition for writ of certiorari.

After 6 months and 15 days we still wait for a decision in Bilski v. Kappos, perhaps the most anticipated Supreme Court patent decision of all time. So, once again, it seems as if the patent story of the day will be the one that never materialized. The difficulty the Supreme Court is facing is in all likelihood this: how do they kill the Bilski patent application as being unpatentable subject matter without also killing the US economy. A decision that is too broad not only could put an end to the pure business methods akin to the Bilski “invention,” but could also put an end to the patentability of software, business methods and medical innovations. Thus, it is hardly an overstatement to observe that the Bilski case, if decided improperly, could destroy an already fragile US economy and set back medical research decades.