Posts Tagged: "independent inventors"

In March of this year, a bipartisan group of senators asked Drew Hirshfeld, who is Performing the functions and duties of the Director of the U.S. Patent and Trademark Office (USPTO), to “publish a request for information on the current state of patent eligibility jurisprudence in the United States, evaluate the responses,” and provide the senators with a detailed summary of the findings in order to assist them as they consider appropriate legislative action. The letter gave a deadline of March 5, 2022 to submit a report on the topic. Now, a Federal Register Notice (FRN) scheduled to be published July 9 is requesting answers and input from stakeholders to 13 questions/topics to assist in that effort, according to a publicly posted draft of the FRN.

On May 20, the U.S. Court of Appeals for the Ninth Circuit affirmed the decision of the United States District Court for the District of Nevada, holding that requests for information by the United States Patent and Trademark Office (USPTO) to an individual are exempt from the Paperwork Reduction Act (PRA). Gilbert P. Hyatt is the named inventor on hundreds of inter-related patent applications that encompass over 100,000 claims. See Generally Hyatt v. U.S. Pat. & Trademark Off., 797 F.3d 1377 (Fed Cir. 2015). Both Hyatt and the American Association for Equitable Treatment (AAET) contend that patent applicants should not have to comply with certain USPTO rules because, they allege, the USPTO is violating the PRA.

Senate Majority Leader Chuck Schumer (D-NY) this week filed the United States Innovation and Competition Act of 2021 as a substitute amendment to the Endless Frontier Act, thereby bringing that bill together with a number of other bipartisan bills, including the Inventor Diversity for Economic Advancement (IDEA) Act, which passed out of the Senate Judiciary Committee last month. The IDEA Act is aimed at improving the U.S. Patent and Trademark Office’s (USPTO) demographic data-gathering efforts to better understand the rates at which women, people of color, and lower-income individuals are inventing and patenting. The Innovation and Competition act is primarily aimed at out-competing China in critical technology sectors.

Last week, the European Patent Office (EPO) announced six U.S. researchers as finalists for the European Inventor Award 2021. The EPO began the prestigious European Inventor Award in 2006 to honor individual and teams of inventors in five categories, i.e. Industry, Research, SMEs, Non-EPO countries and Lifetime achievement. The finalists and winners are selected by an independent jury of experts in the fields of business, politics, science, academia and research. In addition, a Popular Prize is awarded based on a public vote wherein the public selects a winner from among 15 finalists through online voting. U.S. researcher Gordana Vunjak-Novakovic was nominated for a lifetime achievement award for devoting her career to “developing an ex vivo tissue engineering technique for more precise tissue cultivation.” The remaining U.S. finalists were nominated in the “Non-EPO countries” category. In particular, Kim Lewis and Slava S. Epstein were nominated for their development of a device for separating and incubating single strains of bacteria in nature, Sumita Mitra was nominated for pioneering use of nanotechnology in dentistry, and Bo Pi and Yi He were nominated for developing the first fingerprint sensor capable of detecting both a fingerprint’s pattern and the presence of blood flow.

Starting a business is steeped with uncertainty, especially during a global pandemic. Small business owners are constantly running through the scenarios: Can I make payroll? Will I recoup my investment? Can I change my community for the better? There are plenty of systems at play that tell them, “No.” It’s too difficult to get a loan; the commercial real estate market is too competitive; advertising and marketing is too expensive. Even so, there’s one system that sings a resounding, “Yes!” That’s America’s intellectual property system.

Throughout February, we have recognized some of the earliest Black women inventors, beginning with Martha Jones in 1868 and her patent directed to a corn husker, ending with Sarah Boone’s 1892 patent for the Ironing Board. Black women have continued to play an important role in driving innovation during the twentieth century and through today.

Martha Jones of Amelia County, Virginia, is believed by many to be the first black woman to receive a United States patent. Her application for an “Improvement to the Corn Husker, Sheller” was granted U.S. patent No. 77,494 in 1868. Jones claimed her invention could husk, shell, cut up, and separate husks from corn in one operation, representing a significant step forward in the automation of agricultural processes.

Inventor advocacy group US Inventor has filed an amicus brief in support of a petition to the U.S. Supreme Court asking the justices to clarify “[w]hether the Federal Circuit’s “heavy presumption” line of cases or its “holistic” line should govern claim construction. The petition was filed in December by Akeva, LLC, owner of a portfolio of athletic footwear patents, and is an appeal from a July 2020 nonprecedential Federal Circuit decision, Akeva, LLC v. Nike, Inc. In that case, the Federal Circuit upheld a district court’s grant of summary judgment of noninfringement to a number of defendants—including Asics, Nike, adidas America, Inc., New Balance Athletic Shoe, Inc., and Puma North America, Inc.—finding in part that the district court had “correctly construed the claim term ‘rear sole secured’ to exclude conventional fixed rear soles.”

Eleven amicus briefs were docketed during the last two business days of 2020 in United States v. Arthrex, Inc., et al., which is scheduled for oral argument on March 1, 2021. Several of the briefs were filed by independent inventors, who implored the Court to acknowledge the stories of entrepreneurs and small inventors who have been adversely impacted by the Patent Trial and Appeal Board (PTAB), in part because Administrative Patent Judges (APJs) are presently unaccountable.

Recently, the U.S. Patent and Trademark Office (USPTO) published a Request for Comments on Discretion To Institute Trials Before the Patent Trial and Appeal Board (PTAB), seeking “focused public comments, on appropriate considerations for instituting America Invents Act (AIA) trials.” Comments are due on November 19. US Inventor provides a streamlined tool for submitting comments here. This is a big deal for inventors. We desperately need help. We simply cannot participate in the patent system until the PTAB is regulated to provide predictability with respect to the validity of our issued patents. Director Iancu has made a valiant effort to restore balance, but it has failed thus far. As it stands, we cannot use our issued patents because it is utterly impossible to predict whether or not they survive the PTAB – no matter how carefully we follow the existing laws and procedures.

In August, Apple, Google, Cisco and Intel filed a lawsuit against the U.S. Patent and Trademark Office (USPTO) in the Northern District of California challenging the Patent Trial and Appeal Board’s (PTAB’s) adoption of the NHK-Fintiv discretionary denial framework as procedurally invalid under the Administrative Procedures Act (APA), and arguing that the PTAB’s application of them violates the America Invents Act (AIA). Shortly after, a number of “Small Business Inventors” (US Inventor; 360 Heros, Inc.; Larry Golden; World Source Enterprises, LLC; Dareltech LLC; Tinnus Enterprises, LLC; Clearplay, Inc.; and E-Watch, Inc.) filed a Notice of Motion and Motion to Intervene and related Complaint in the case. Now, US Inventor has filed its reply brief, in which it contends that “AIA trial reviews have stifled innovation, crushed inventor morale, and created a lopsided process whose use alone (irrespective of individual merits) can destroy innovative businesses”. The organization is asking the court to enter a temporary restraining order and preliminary injunction in order to preserve “the one lifeline giving any hope of escaping this ongoing catastrophe for American innovation and fair competition.”

Survival bias permeates today’s tech world, especially the Silicon Valley, in the celebration of failure as a sine qua non for success, almost as a virtue, a badge of honor. Praise, acclaim and visibility are given to companies that were started in a garage and are now multi-million-dollar public corporations. As if starting from a garage is some sort of a predictor of future success. Unfortunately, we often forget about the many more companies that started from a garage and are still in a garage, or do not exist anymore. The celebration of those “who made it” and how they made it (often praising their multiple failures) does not take into account those who failed and did not make it.

Higher education is undergoing a seismic transformation as a result of a once-in-a-century pandemic. Administrators and faculty around the world are quickly overhauling how they provide instruction to students while trying to keep them on the path to graduation. With change in the academic space already underway, now is the time for colleges and universities to reinvent their innovation ecosystems and implement the intellectual property (IP) education methods and policies that students need to thrive in our knowledge economy.

Not too long ago, independent inventor Josh Malone finally received a settlement for willful infringement of his patents. He won in court and at the Patent Trial and Appeal Board (PTAB), and from what I’ve read, I know it was a long, hard fight, and the cost to litigate was in the tens of millions of dollars. But, he did it, and his product Bunch O Balloons continues to be a number-one hit summer toy. Licensing his invention to one of the fastest growing toy companies in the world (ZURU) clearly had its advantages for Malone. But what about the rest of us independent inventors? For the last decade or so, the patent system has not been in favor of the independent inventor. But has it ever been? I don’t think so.

In his address to the Intellectual Property Owners Virtual Annual Meeting yesterday, USPTO Director Andrei Iancu said that, despite sharp declines in filings and renewals, COVID-19 seems to have spurred innovation in some areas. “Small and micro entity patent filings are at a historic high, with more than 112,000 filed during the first 11 months of fiscal year 2020,” Iancu said. In an August interview with IPWatchdog Founder and CEO Gene Quinn, Iancu discussed one of the COVID-19 relief programs the Office has instituted to support small inventors during the pandemic. A pilot that offers free prioritization of COVID-19 related patent applications has been working well, Iancu told Quinn, and is expressly geared to assisting smaller entities.