Posts Tagged: "Patent Reform"

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!

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 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.

What follows are pieces of Director Kappos’ remarks at the session prior to taking questions and answers. While it is probably unfair to call these remarks prepared remarks, it was clear that he referred to his notes as he provided detailed information and statistics. He also seemed to be reading what he said when he spoke about the ACLU case against Myriad Genetics, but who can blame him given the USPTO was a nominal party to the case and it will be appealed to the Federal Circuit. It is also worth mentioning that during the Q&A there were a few interesting things that came up, chief among them was Kappos’ explanation of the long odds facing a small entity claiming to be the first to invent but who filed the patent application second. Kappos likened the odds of such a Junior Party prevailing to the odds of being bitten by a Grizzly Bear and a Polar Bear on the same day. He then went on to say that you have to go back to FY 2007 to find a prevailing small entity Junior Party in an interference.

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…

A group of Nevada patent owners and experts announced the formation Thursday of a coalition to oppose legislation aimed at changing U.S. patent laws in a fashion that will have a strongly negative impact on patents, innovation, and job creation generally and particularly in Nevada.

Louis Foreman sent the letter reproduced below to Senator Patrick Leahy (D-VT), who is Chair of the Senate Judiciary Committee. As his letter explains, Foreman supports patent reform because “leaving the current system alone is not an opinion, nor does it benefit anyone.” Foreman believes the patent reform pending is a “significant improvement” because, among other things, it will lower fees for micro-entities and lead to because it will “ultimately result in a stronger patent making it easier for independent inventors and small businesses to attract start-up capital.

There were probably about 40 people in the room, and the event was broadcast live over the Internet. Kappos took a number of questions and seemed very engaged. It is a breath of fresh air for the USPTO to be listening to the inventor community in a substantive way like this. But it goes beyond just listening. The USPTO proposal with respect to essentially extending the life of a provisional patent application to 24 months, which was announced officially last week, was the result of a suggestion Kappos received at a round-table event in California. So not only is the USPTO listening, they are taking what the hear into consideration. What a novel, yet profound concept.

In my conversation with Dr. Michelson he explained to me that while he benefited greatly from the patent system he would have benefited even more if the system worked better. At this point Dr. Michelson “does not have a dog in the fight,” as he explained, because with the exception of a few lingering applications his patent portfolio has been fully acquired and he stands to gain no additional revenues. Nevertheless, Dr. Michelson, the quintessential successful American inventor, would like to see the US patent system improve for the benefit of all independent inventors, the American economy and to promote real job growth. He has some excellent ideas, I agree with his positions on almost every front, and it is with his approval that I put my conversation with him on the record.

One of the proposals in the pending patent reform legislation is a change from first to invent to a first to file system. The trouble is that an interference proceeding, the proceeding that would take place to determine who is entitled to receive the patent between the alleged first to invent and the first to file, costs about $600,000. Not many independent inventors or small businesses are going to be able to foot that bill for sure. Nevertheless, I thought it might be good to take a look at this thing called an interference proceeding, which if patent reform is successful would become a relic of US patent law.

Whatever your opinion of the business model, it is impossible to ignore the fact that Cheryl Milone has turned Article One Partners a major player in the patent research field. Article One is attracting big name members to the Board of Directors, they have started a patent quality review blog and Milone was recently invited to the White House to participate in a round-table event, which she talks about in our conversation. So, without further ado, here is my conversation with Cheryl Milone. We talk patent reform, reexamination, patent litigation, improved patent search and IT databases, claim construction and more.

There is absolutely no reason why we cannot change from a first to invent system to a first inventor to file system that would still retain a real and substantial grace period and still retain the right for patent applicants to swear behind references to demonstrate an earlier date of invention, at least with respect to pieces of prior art that are not the progeny of earlier filed patent applications. So the currently proposed revisions to 102 need to be amended prior to passage of S. 515. It should define the term “disclosure,” do away with “otherwise available” under proposed 102(a) and retain the grace period relative to third party actions.

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.