Posts Tagged: "patent policy"

This week on IPWatchdog Unleashed, I speak with Dana Colarulli, who is a partner at ACG Advocacy—one of the premiere intellectual property lobby firms in Washington, DC. During our conversation we delve into the intricate world of patent policy and politics, discussing laws, the dynamic environment at the USPTO. Dana shares his extensive experience and insights on high-growth technology businesses. We address critical topics such as the recent shake-ups at the USPTO, the controversial “patent tax” proposal, how despite the fact that the USPTO is user-fee funded it is being swept up in broader Trump Administration efforts to downsize the federal government, what the word “innovation” really means, how businesses use intellectual property assets, the importance of predictable IP assets, the challenges of effective patent valuation, international collaboration and education to support small and medium size enterprises (SMEs), and much more.

This week on IPWatchdog Unleashed, I had the pleasure of speaking with Daren Tang, Director General of the World Intellectual Property Organization (WIPO). Our conversation spanned a range of topics, from the future of intellectual property (IP), to how intellectual property has been a force for helping humanity, to WIPO’s strategic initiatives and the burgeoning impact of artificial intelligence (AI). A central theme of our conversation was Tang’s fervent advocacy for intellectual property as a catalyst for global innovation and betterment of the human condition.

In this week’s episode of IPWatchdog Unleashed, we dive into the intricacies of patent enforcement with Scott McKeown, a partner with Wolf Greenfield and author of PatentsPostGrant.com. McKeown, who has a reputation as one of America’s top practitioners at the Patent Trial and Appeal Board (PTAB), shares insights into the continually evolving landscape of patents, patent litigation, PTAB challenges and regulatory upheaval at the United States Patent and Trademark Office (USPTO). We specifically discuss the biggest issues facing the USPTO generally, and the PTAB specifically, namely, the increase in discretionary denials under the Trump Administration, the fact that across all aspects of government it seems we are governing by memorandum, how what we are seeing at the USPTO now is a snap back from the past several years but can’t be expected to last forever, the demise of the patent examiners union, and more.

In this week’s edition of IPWatchdog Unleashed, I spoke with with Clint Mehall, a partner with Davidson Kappel, LLC, and John Rogitz, who is managing attorney for Rogitz & Associates. Both are prominent voices in the patent world, and they also serve on our ad hoc IPWatchdog Advisory Committee. Our conversation focuses on 35 U.S.C. 101, and in particular, what a recent memo from the Office means for patent eligibility rejections.

Patrick Kilbride argues for a system where novel work is protected by law, honoring the American founders’ vision that property rights should be tied to labor. Kilbride asserts, “Innovation is just an economic activity. What sets it apart is its complexity, requiring time, resources, and the right environment to flourish.” He stressed the global necessity for environments that support innovation, highlighting the shared human instinct to create and solve problems. He also explained that if an individual creates something demonstrably new, they deserve ownership and protection, reinforcing the essential role of strong IP laws in the economy.

Meanwhile, all patents— good, bad, revolutionary, and stupid— have eroded to the point where continued use of the U.S. patent system must be questioned. Despite the statute saying that patents are to be treated as property rights, the Supreme Court has ruled that patents are merely government franchises that can be stripped at any point in time during the life of the patent regardless of how much time or money has been invested by the patent owner. It simply cannot make any sense for all patents to become increasingly worthless simply because of the victimization of large multinational corporations who are incapable of crafting a strategy that solves the nuisance litigation problem that does not destroy the entire system.

Qualcomm was not refusing to abide by its agreed to promises to license SEPs as required by the SSOs, as alleged by the FTC. Instead, Qualcomm wasn’t interested in licensing competing chip makers who wanted to used Qualcomm’s technology so they could make their own chips incorporating Qualcomm’s patented technology. Licensing competing manufacturers of chips is not what the IP policies of the SSOs require. What is required is that patent owners of SEPs not discriminate against applicants desiring to utilize the license for the purpose of implementing the technology. But that isn’t what a competing manufacture would be doing. A competing manufacturer would be creating the chip that enables, not implementing the technology into an end product. In fact, as Qualcomm pointed out, industry practice of SSOs is to require licensing only fully compliant end-user devices, and not components.

Certain innovations—known as enabling technologies—provide the foundation for progress across a range of industries. Enabling technologies include mobile wireless, the laser, CT scanners, the microprocessor, artificial intelligence, and freight containerization. Such technologies drive wealth creation throughout the economy. However, the difficulties associated with monetizing this type of IP, which I explore in this article, mean that private enterprise tends to underinvest in new enabling technologies. Public policy needs to be more supportive, and firms need to be willing to support more blue-sky projects. As a nation, we are harvesting the fruits of old enabling technologies without investing sufficiently in new ones. We are eating our seed corn.

Assuming America wants paradigm-shifting, truly disruptive innovation we need to recognize the need to incentivize the risk-takers and those that provide the capital to those risk-takers who dare to challenge the status quo. This means policies, laws and rules that foster innovative activities from smaller entities who are most likely to innovate. With an eye toward policies, laws, rules and actions that would most benefit innovators, their endeavors more attractive to investors and more feasible to pursue, the U.S. should adopt policies, laws, rules and actions including…

The myopia associated with chasing quarterly earnings isn’t the only short-sighted predilection giant tech companies display. Affirmatively weakening the patent system in order to avoid upstart competitors who are lean, full of ideas, and willing to take risks to succeed is not just myopic, it is plain stupid. Sure, copying the work of others today may make business sense when trying to beat or meet earnings expectations, but expecting others to continue to invest, innovate and take risks when what they produce is simply copied is naïve to the extreme.

Conservative leaders wrote the White House applauding this initiative, based on the property rights implications of IP expropriation. These conservative leaders note that China is hardly the only country that steals American IP, and such IP theft imposes significant costs to our economy, impairs American competitiveness and compromises our innovative future… The letter reads in part: “The 301 investigation represents a good first step toward asserting rules-based accountability and recommitting to an American IP-based competition policy. However, trade enforcement is only one pillar of an American economic competitiveness plan.”

In the absence of a discernable IP policy, America achieved leadership through laws and courts that supported inventors, and commerce, and that encouraged risk-taking. But the world is now flatter than we could have imagined. If America hopes to remain at the innovation forefront, it needs to rely not only on the ingenuity of its inventors and creators, but on the leadership and vision of government and businesses… Despite the incredible success of several Internet companies — and, some believe, because of it — U.S. IP dominance is in quantifiable decline. Compounding the problem is China, which is now able and willing to fill the void. It has been widely reported that China is a better place than the U.S. and most other nations to obtain patent injunctions and receive a fair hearing in court. Despite this, many U.S. businesses and consumers, impatient with IP rights and cavalier about the impact of IP theft, have come to act with much same attitude the Chinese did before they learned better.

Unfortunately, there’s every indication that today’s event at Brookings will feature more of the same kind of misguided rhetoric on perceived issues with the patent system which don’t truly exist. The evidence for this starts with the moderator for the day’s final roundtable discussion, titled Realigning Incentives to Increase Patent Quality. The moderator for this discussion will be Tim Lee, senior reporter of tech policy for Ars Technica. Lee has written in the past on the effects of “ridiculous patent litigation” and has given space to viewpoints which want to limit patentability in certain sectors, such as in business methods. Lee has also been very critical of appellate court decisions in patent cases in recent years to the point that assertions he’s made on case law regarding the patentability of software inventions border on the ridiculously absurd. This individual, who has a clearly anti-patent viewpoint, will be controlling the discussion during the final panel roundtable on patent policy.

Patent Monetization is a wake. The Patent System failed US tech companies. Licensing is dead. Patent values are zero – perhaps even negative…. The Silicon Valley elites have patent strangled start-ups and hire away their talent. There is no respect for patents at all. Zero. Nada. Ironic in view of the past creation of Silicon Valley where patents were, once upon a time, the driver of value accretion. Not anymore. Data is the new “oil” in them thar hills. If you have and can secure and sell data, you’ve got it made. Gee, sure hope you do not rely on patents to protect any of what you do to collect, secure and sell that data!