Posts Tagged: "Capitol Hill"

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.

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.

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!

It is truly sad that massive anti-patent hysteria can be whipped up simply based on a single sentence in the Abstract of a patent. For crying out loud people, the Abstract is hardly considered to be a part of the patent application and has absolutely nothing to do with the exclusive rights granted. The claims are what defines the exclusive right, nothing else! But we will never get the anti-patent types to ever read a claim because there are just too difficult to understand and there are way too many details in the claim. WAKE UP! That is the point! The more details in the claim the more narrow the rights!

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.

On Wednesday, May 5, 2010, David Kappos testified in front of the United States House of Representatives Committee on the Judiciary. See Hearing Page and Kappos Prepared Remarks. Many issues were covered during the hearing, but there were a couple matters that jump out as quite important. Most significantly, it seems that once again the Senate patent reform bill may be running into some difficulty in the House of Representatives. Some in the House of Representatives seem interested in slowing down regarding the substantive changes embodied in the Senate bill, but seem willing to consider legislation less grandiose and focused solely on giving the Patent Office fee setting authority and perhaps the ability to retain its fees. This, however, lead to a heated exchange that has been misreported in some outlets, so lets set the record straight.

Intent to deceive was admitted, if you can believe that, but as it turns out the prior art withheld, a prior sale, was not invalidating and would not have lead to an appropriate rejection by the Patent Office. Nevertheless, the prior sale of an earlier version of the invention in question was the closest prior art and the Federal Circuit, per Judge Prost, explained that materiality does not require that the the withheld prior art lead to a good rejection. So Judge Prost applied the Patent Office law relative to materiality as it existed prior to the 1992 revision of 37 CFR 1.56.

Senate Judiciary Committee Chairman Patrick Leahy (D-VT) recently came to agreement with Committee Ranking Republican Jeff Sessions (R-AL) on changes to the Patent Reform Act of 2009 (S. 515), winning Senator Sessions’ support for passage and making it extremely likely that patent reform will happen this year, and likely very soon. An individual involved in the ongoing patent reform debate…

Notwithstanding the above, I am conflicted in my feelings. It seems that one of the deals included in the Health Care Bill, provisions aimed at biotechnology, are unquestionably good. This is not the type of deal where residents of Nebraska get the rest of us to pay for them, or where seniors in Florida get to keep prescription coverage courtesy of the federal government while seniors everywhere else lose. The provisions favorable to the biotech community will spur innovation, lead to new cures and undoubtedly prolong life. If only Congress could have passed these provisions and scrapped the rest.

The UIA sent a letter to Senator Leahy and Congressman John Conyers. The UIA hopes what is most newsworthy about the letter is their appreciation of Kappos’ outreach to the independent inventor community. First to file may dominate the news though. Did you know that the mean cost of an interference through the completion of the preliminary motions phase is a whopping $417,130. The mean total cost of the entire interference is $656,306. What independent inventors can afford that?

Patent reform could be of sufficiently low political importance that Democrats and Republicans can get something done. If health care dies the Democrats will need to pass something desperately, perhaps many things, to show they actually accomplished something. Therefore, if health care dies I predict patent reform passes. If health care passes I predict patent reform will die, as the Congress and government slip into heightened posturing in advance of the 2010 elections.

Invention promotion firms, sometimes referred to as invention promotion companies, have been widely criticized in numerous circles, including political circles in Washington, DC, for many years.  The American Inventors Protection Act (AIPA) was enacted into law in 1999 and by its very name sought to address head on the problems faced by so many inventors.  In truth, the title of…

It is that time of the year when everyone has made or is making resolutions for the new year, most of which will undoubtedly be broken within a few days or weeks, particularly those promises to lose weight, exercise more or find more time for unwinding and better managing stress. All are things I hope to do in the new…

On December 21, 2009, I embarked upon identifying the top 10 patent stories of the decade, which ends as we usher in the new year.  The Top 10 Part 1 identified what I thought were in the bottom half of the top 10, and while any top 10 list is sure to be at least somewhat controversial, it seems as…

Christmas is coming early for inventors, innovative companies, patent attorneys and anyone in the technology/innovation industry that relies upon patent protection. Faced with a growing backlog and long patent pendency periods in a difficult fiscal environment, the United States Patent and Trademark Office (USPTO) is reaching out to former patent examiners, inviting them to return to the agency.  According to…