from the business perspective when you are building a trademark or trademark portfolio it is really the good will that will define the value of the trademark. But like most things in life there is a double edge sword. There is positive good will and negative good will. Negative good will sounds silly I know, but it relates not to the absence of good will, but negative feelings. So, for example, BP is in the process of developing enormous negative good will as a result of the oil spill in the gulf of Mexico.

By far, most inventions are improvements upon other known devices or solutions. In fact, whenever I teach patent law courses I tell students that in their career as a patent attorney they are unlikely to ever come across a pioneering invention (i.e., first of its kind, revolutionary invention). Even the great Thomas Edison, the most prolific inventor in US history, rarely came up with pioneering inventions. What Edison really had a knack for was taking something that someone else had come up with and making it extraordinarily better. So the first lesson here is that inventors can and most frequently are those who improve upon the work of others. The second lesson is that those inventors who focus on improvements can be quite successful indeed!

Cumulative statistics released by the USPTO demonstrate steady growth in the number of requests for reexamination being filed generally (particularly inter partes) since the advent of third-party participation in 1999. Between January 1, 1999 and December 31, 2009 the USPTO Official Gazette noticed 5,594 requests for reexamination. Of these, 97 or 1.7% were requests for reexamination of design patents. Of these 97 reexaminations, 85 or 88% were ex parte and 12 or 12% were inter partes.

On May 17, 2010, Google, Inc. was sued in the United States Federal District Court for the District of Oregon by Vicki Van Valin and Neil Mertz; the allegations asserting violation of Oregon, Washington and US privacy statutes (18 USC 2511). The original complaint also seeks to certify a class action against Google, who has already admitted that it engaged in inappropriate collecting of private information from unsuspecting Internet users. Google characterizes the privacy violations as a “mistake,” but a recently published US patent application assigned to Google may suggest that there were those within Google who gave considerable consideration to such an invasion of privacy through the use of sniffer or snooping software.

Whenever the Supreme Court decides to issue the Bilski decision is for them to know and the rest of us to find out. In the meantime what I can say with great authority, as if I am peering at you from behind a counter and wearing a white apron and using the thickest Arabian accent I can conjure up, is this: No Bilski for you… at least not today!

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.