October 2, 2013
There is a natural order, and it must be defended. So, as part of a concerted campaign by the Obama administration, Congress and the courts, to reserve profiting from patents to corporations, the Federal Trade Commission (FTC) plans, using their subpoena power, to persecute "patent trolls": a deprecating term used to describe patent-holding companies which are not respected by the political establishment, as they nick their revenues from favored corporations. The FTC's investigation is intended to intimidate and drain the reserves of these patent-holding companies, so as to drive them out of business. Failing that, the FTC can apply further pressure by launching an antitrust enforcement effort.
Posted by Patent Hawk at 2:27 PM | The Patent System
September 11, 2013
Rule 11 Steamrolled
Republican plutocratic toads in the House Judiciary Committee are once again hopping to deny justice. As Public Citizen explains: "The deceptively named 'Lawsuit Abuse Reduction Act; (H.R. 2655) would slow litigation and increase its costs by encouraging additional legal maneuvers and requiring unnecessary court orders."
Posted by Patent Hawk at 9:40 PM | The Patent System
August 5, 2013
Apple of The Nation's Eye
For those of you laboring under the assumption that rule of law still breathes in this utterly corrupt nation, consider this. Samsung won an import ban on Apple products from the ITC, including the wildly popular iPhone and iPad. But that would crimp Apple's profits. So the Obama administration waved it away. "For my friends, anything. For my enemies, the law." ~ Peruvian politician Óscar Benevides
Posted by Patent Hawk at 3:33 PM | The Patent System
June 5, 2013
Open Season on Inventors
Political consensus by the powers that be has been achieved. It's open war on inventors. Any individual inventor who tries to enforce a legally granted patent is persona non grata before the courts. Said inventor will have to pay for defendant costs after being robbed of asserted patents. That is the fervent wish of Chief Judge Osama bin Rader of the Court of Appeals, Federal Circuit (CAFC).
Posted by Patent Hawk at 4:35 PM | The Patent System
June 4, 2013
Patent Police State
The gross incompetence of the USPTO in years past continues to come a cropper. 35 U.S.C. § 271 states "whoever without authority makes, uses, offers to sell, or sells any patented invention... infringes the patent." The natural capitalist response has been for companies to buy patents to assert against makers, sellers, and, at the extreme, users, to extort licenses. Perfectly legal. But big business has been in an uproar about ceaseless assertions. Now the President has stepped in to confront the law and put the plutocracy on firmer footing. Law & order only go so far. Fuck the law. And that's an order.
Posted by Patent Hawk at 8:18 PM | The Patent System
May 29, 2013
The USPTO supposedly grants patent rights based upon inventive merit, though historically that has sometimes been an impolite fiction. The chairs of the judiciary committees in Congress, Senator Patrick Leahy and Rep. Bob Goodlatte, would like to remove basic rights to trial that have been in place since the 19th century. These paid corporate hacks would repeal 35 USC § 145, which grants the right to trial against patent office abusive practices. The rationale, a logical non sequitur, is supposed abuse of patents by patent holders. Goodlatte: "Abusive patent litigation and specifically patent trolls have a significant impact on American competitiveness." Leahy: "Patent trolling activity casts a pall on the system because it hinders innovation." In short, Congressional abusers of basic fairness would like to let the patent office abuse patent applicants because they think that non-corporate patent holders abuse the patent system by practicing their basic rights of ownership.
Posted by Patent Hawk at 9:16 PM | The Patent System
September 2, 2012
"Patents have become another club to wield in court to pound your foes into submission," opines San Jose Mercury News columnist Chris O'Brien. It would have been an thoughtful statement in 1800, but it's a stale sentiment now. Yet O'Brien must pound the corporate tom-tom: that patents in the hands of inventors are "a drain" on the economy, "a tax." No such outcry met Apple's lopsided patent thrashing of Samsung, where a jury went tribal against a foreign conglomerate. "The Apple lawyers were better at presenting their case," said a juror in the Apple-Samsung matter. "I had an open mind but most of the time was on the Apple side." Denial of bias is exceedingly common, though a tad atypical in being so openly admitted in a single sentence.
Posted by Patent Hawk at 7:48 PM | The Patent System
January 27, 2012
Patent attorney Darin Gibby has penned a perspective crucial to anyone concerned about patents in this country: Why Has America Stopped Inventing? As introduction, though comprising the bulk of the book, Gibby covers some of the major patent battles in the earlier part of U.S. history, developing the vector that answers the question posed by the title.
Posted by Patent Hawk at 5:27 PM | The Patent System
November 17, 2011
Money oils the machinary of politics, and so it should come as no surprise that hundreds of millions of dollars were spent lobbying the corrupt politicians on Capitol Hill to pass the "America Invents Act," the greatest invention of which is the claim that there was any improvement to existing law. There wasn't. The law still allows Americans to patent inventions first created overseas, while disadvantaging small entity inventors. The First Street Research Group has done a remarkable job documenting the swirling cesspool more diplomatically known as U.S. democracy in action, as it pertains to the patent act. Check it out.
Posted by Patent Hawk at 10:33 PM | The Patent System
November 15, 2011
The Troll Toll
Corporate apologist PC World patronizes its techno-peon readership while appreciating those that butter its bread - its advertisers. "Patents are a touchy subject lately thanks to all the litigation going on over software patents. This is particularly true in the mobile arena, where companies including Apple and Microsoft have been especially enthusiastic in their use of patents as leverage over their competitors. Of course, it's one thing for a company with products to protect to begin asserting patents against others; it's quite another, however, for companies to buy and assert patents without producing any goods of their own." PC World considers intellectual property rights an alienable right - copasetic for corporations, insufferable for individuals. PC World's punch line is positively delusional, as well as statistical fiction: "'Patent troll' is the name typically given to firms in this latter category, and - according to a new study - they're depriving technology businesses of more than $80 billion per year, to the detriment of small inventors and society as a whole." Because mega-corporations are inherently sociopaths incarnate, they won't license or buy patents from small inventors, instead preferring to legally crush like them bugs after stealing their ideas if an inventor tries to enforce a patent, so inventors must sell their inventions to "trolls" to realize any return.
Posted by Patent Hawk at 10:48 PM | The Patent System
October 23, 2011
Federal judges travel around the world on all-expense paid trips by sponsors. CAFC Chief Judge Randall Rader: "This is not pleasure-tripping. I work very hard on these trips." Sponsors are often law firms, law schools, legal service providers, and universities.
Posted by Patent Hawk at 8:55 AM | The Patent System
October 10, 2011
In a recent speech, CAFC Chief Judge Randall R. Rader shows himself as rather brainless in his duplicity. He speaks of equal justice while assailing parties that he would readily show bias to. He claims to be inspired by juries, but would like to cut them out of the process. He worries about the cost of patent litigation, but his reform proposals would do little about it. He values "the individuality and independence of the judges" while making no mention of the travesty that his court has produced by rending rule of law into abject corruption by self-contradiction. The undercurrent to Rader's remarks are that he is all in favor of illicit bias.
Posted by Patent Hawk at 6:27 PM | The Patent System
October 5, 2011
That the USA is rife with corruption at every level is finally catching public attention. The so-called "Wall Street" protests are a widespread movement against the plutocracy. With an irony of namesake, the Wall Street Journal reports the realized knowledge of Emily Graham: "I'm basically sick of corporate greed. I'm frustrated that companies can pollute on a catastrophic level. They get all the tax breaks." They also get all the patent protection they need, at the expense of inventors. The Federal courts, from district court judges to the CAFC and Supreme Court, are thoroughly packed with incredibly corrupt judges who pervert the law, and decency, to serve corporate interests. The continuing conflicted contortions of CAFC case law bear stark witness to the depravity. New patent legislation just became law over the unanimous objections of universities, small businesses and individual inventors, at the behest of the largest corporations. As the rich get richer and the rest fall by the wayside, this country's prospects for the future also fall.
Posted by Patent Hawk at 8:35 PM | The Patent System
October 4, 2011
The codgers on the bench are far too comfortable indulging their biases and ignoring the blind lady of justice. In Mondis Technology. v. Chimei InnoLux, TXED Judge Ward found that a foreign company defendant's "corporate attitude... shows lack of respect," and thereby "warrants a strong enhancement" of royalty rate - doubling what it was. Judge Ward is simply typical, if less than circumspect in not feigning a disguise for his illicit disregard of basic legal principles.
Posted by Patent Hawk at 10:24 AM | The Patent System
September 23, 2011
The Federal district courts and CAFC (Corrupt Appeals for Corporations) are destroying small businesses with their bias to the largest corporations. A small business client just called with another matter. In the previous patent matter, unrelated to the new one, the district court disallowed evidence that would have demonstrated invalidity - an unjustified, rank display of corruption. Judges use cunning to cripple a case without appearing too overtly to crush it. The CAFC appeal affirmation was a sham. Damages were minimal, but the injunction was crippling. In the new matter, the same message was given my client as in the last case - "we won't give you a license. Our goal is to drive you out of business." This is the power of patents, abetted by an economically ignorant, corrupt judiciary. It's bad, it's nationwide.
Posted by Patent Hawk at 11:16 AM | The Patent System
September 17, 2011
As the rich get richer and the poor get poorer in this hypothetical land of opportunity, there is one constant: politicians dissemble. The America Invents Act floated into law as a pseudo-jobs-creation bill. It will do no such thing. PTO fees go up 15% immediately, which only has a telling negative effect on the inventors who actually create jobs (small companies). Under a government-mandated spending freeze that goes into effect October 1, the PTO cannot spend whatever bonus it may procure. And the new Act mandates programs that require more from the patent office at the appeals level, which means cutbacks for examiners, which means the examination backlog will further stack up. The administration once spoke of "millions" of new jobs being created by passage of the Act, recently pared to "200,000." The reality will be like the Iraq War, which was sold as paying for itself (by oil revenues) - the America Invents Act will hurt those who can least afford it, and will cost this country jobs.
Posted by Patent Hawk at 9:03 AM | The Patent System
September 8, 2011
The Déjà Vu Patent Act
The Senate passed H.R. 1249 unamended, sending the bill to President Obama's desk for signature. The law goes into effect the day it is signed by the President. Put a fork in it, it's done, save the self-congratulatory speeches. One small goosestep for prosecution turmoil, one big brassy leap for patent plutocracy. This is the biggest change in patent law since 1836, when patents began to be examined prior to grant. Complaints from business about junk patents spurred the 1836 Act.
Posted by Patent Hawk at 5:45 PM | The Patent System
September 6, 2011
Patent legislation pending - the Senate voted 93-5 for cloture - to put H.R. 1249 (the "America Invents Act") up for final consideration for passage. The next step is a bit of debate, then a merits vote. If the Senate approves without amendment, the House version goes to the President for signing, which he will. An amendment puts the bill back into play, and further delay. The Senate leadership of both parties favors passage without amendment.
Posted by Patent Hawk at 2:41 PM | The Patent System
August 14, 2011
Republican Representative Darrell Issa is a sharp cookie. For years he sponsored bills to educate the halfwits on the federal bench about patent law; ultimately unsuccessfully. As the New York Times reports, Issa has been more successful pulling pork into his district, with no repulsion to helping himself to some juicy slices in the process. Issa has avoided conflicts of interests between his extensive business holdings and his role as public servant by paying the concept little heed. Issa's gung-ho love of lucre and exploitation of the system certainly embodies the American way.
Posted by Patent Hawk at 8:22 PM | The Patent System
August 10, 2011
Article I, section 8, clause 8 of the U.S. Constitution exhorts "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." In 1787, inventors' "discoveries" were mechanical and chemical. Very few would have met the KSR v. Teleflex novelty requirement, which by court fiat removed incremental invention as patentable. Times change, as does the leading edge of technology. Now, the best way "to promote the progress..." is to eliminate patents altogether.
Posted by Patent Hawk at 4:30 PM | The Patent System
July 29, 2011
Rule of law is a tidy concept, but in practice, gets shaken like landfill in an earthquake - the consistency of jelly. The federal government is a monstrous jelly-meister. In the U.S. plutocracy, every citizen is a government mule. Corporations are special - tax breaks, bail outs, subsidies, and generous license to damage the environment, but not so special as to escape sanction whenever the government decides the business ecosystem is at risk. In the past decade, nothing has quite stirred the government's urge to jar the jelly of justice like patents. The courts simply steal patents from inventors when the invention is too valuable; it's just a mule's cargo, after all. When corporations own a portfolio that is too valuable, the U.S. Jelly Patrol (Justice Department) jells itself for antitrust. Right now, the jewels from the corpse of Nortel shimmer too brightly.
Posted by Patent Hawk at 6:27 PM | The Patent System
July 17, 2011
The ever-subversive Hal Wegner has been attacking the Leahy-Smith America Invents Act in his privately circulated newsletter. Today's missive from the malcontent laments the "anti-foreigner discrimination" of the bill - the failure "to legislatively overrule the requirement that Paris Convention priority under 35 USC § 119(a) requires that the foreign application comply with the best mode requirement."
Posted by Patent Hawk at 10:10 AM | The Patent System
June 24, 2011
in these difficult economic times, it's crucial to help the largest
corporations. They don't create jobs like small companies, nor do they pay
taxes, but that's what
peasants citizens are for. What
mega-corporations have is political power, because, unlike small businesses, if
corporations aren't coddled, they'll just move more of their jobs overseas.
The government can only print so much money before the bond market starts to
fret. Those spendthrift Europeans haven't exactly helped the mirage of
sovereign debt as a good thing. In the U.S., the big banks have been bailed out.
The largest corporations have been thoroughly subsidized. Yet the economy
remains tepid. We need something more. It's time to pitch inventors' patents in,
to help fuel the fire of mega-corporate profits, to bring the stock market roaring
back, and once again energize the illusion of prosperity.
Posted by Patent Hawk at 10:33 AM | The Patent System
April 20, 2011
America Invents But Congress Perverts
[The following crossed my desk, and is reprinted here as food for thought, and action. In other words, this opinion piece is not necessarily my opinion, for lack of extensive study on my part. But this is worth reading, and contacting your Congressman and Senator immediately if you concur.]
Congress may well be on the verge of passing a great threat to our patent system. You have seen the blogs and emails explaining how the America Invents Act (formerly the Patent Reform Act of 2011) will dismantle our carefully-balanced patent system, the system that has made America the innovation engine for the world. Other countries innovate at half our rate. The multinationals want to "harmonize" our laws with those unsuccessful systems for their own convenience. This bill imposes about $1 billion in costs by taking away options that domestic American businesses use, to save a comparatively trivial amount for the Patent Office and a small number of multinational corporations.
Posted by Patent Hawk at 8:10 PM | The Patent System
March 29, 2011
Hal Wegner on the prospects of the pending Patent Act: "There is now a widespread understanding that while there may be some amendments to various portions of the bill, in the end both the House and the Senate will find a suitable version to be enacted into law during the present Congress."
Posted by Patent Hawk at 10:07 PM | The Patent System
March 8, 2011
95-5, the Senate passed S.23, the America Invents Act. With a title like that, it might as well be called The Semi-Literate Senate Patent Act. Get your boots, here's the flow: "If we're going to win the global competition by out-innovating the rest of the world we need a patent system that works in the 21st century," crowed Senate Judiciary Committee Chairman Patrick Leahy (D., Vt.), who shepherded the bill through the Senate. The corporate Coalition for 21st Century Patent Reform collectively cheered.
Posted by Patent Hawk at 11:09 PM | The Patent System
March 1, 2011
The Judge Dyk Shuffle
CAFC Judge Timothy B. Dyk spoke at Lewis & Clark Law School in Portland, Oregon this evening. His chosen topic was "The Commercial Impact of Complexity and Confusion in Patent Law," one of the things he never directly spoke to. His lapses were as insightful as the topics he covered. As Lowell George once observed about music, "it's not just the notes, it's the space between the notes."
Posted by Patent Hawk at 11:36 PM | The Patent System
February 22, 2011
Protection, Not Incentive
The world's greatest classical composer, Gustav Mahler, put his creative conscience cosmically: "One is nothing but an instrument on which the universe plays." Every artist breathes art: the creative outlet is merely the medium of an irresistible habit. Only the artless would not recognize this basic facet of human nature. Yet Professor Eric E. Johnson thinks he's popped the big bubble justifying IP: "The economic centerpiece in the conventional wisdom justifying intellectual property law is a longstanding blunder. There is no broad necessity of incentives for intellectual labor."
Posted by Patent Hawk at 6:25 PM | The Patent System
February 21, 2011
Cecil D. Quillen Jr. has an obsession about patent continuations and RCEs. Junior Q penned a paper on the topic back in 2002. Hal Wegner favorably reports on today's letter by Junior Q to the New York Times. Quillen: "Continuing applications claim inventions that are described in earlier filed parent applications, and thus, to a considerable extent, represent "rework" for the USPTO, since the inventions of the continuing applications were, or could have been, examined in the earlier parent applications."
Posted by Patent Hawk at 7:36 PM | The Patent System
January 22, 2011
Return of the Leech
Sen. Patrick "the Leech" Leahy plans to place his sucker on the wallets of the suckers who dread and drool over patent reform. The 2011 Patent Reform Act will be introduced Tuesday. "Patent reform is a commonsense, bipartisan effort to protect jobs and bolster the economy," Leahy effused. The bipartisan bit is the expectation that senators on both sides of the aisle can bolster themselves, and protect their jobs, by raking in dough from lobbyists on this year's model of the patented shtick of much heat and little light about patents. From all sides, expect the battle cry to be: "move the economy forward." PTO Director Kappos is already beating that drum. The little stickler is what blood type of patent reform might bring the batta-boom bolster, making any "reform" contentious beyond practical passage.
December 28, 2010
The Supreme Court has a busy docket of deciding patent law in 2011, with issues ranging from: patentability; invalidity burden of proof; prosecution laches; inequitable conduct; extraterritoriality; infringement (inducement, contempt); and several others. This continues the iron-clad trend of Congress abdicating its responsibility to fashion law to the courts, role-playing that extends to every facet of this nation's legal system. Expect the 2011 Congress to waft another "patent reform" bill, legislative flypaper solely intended to siphon contributions to its ultimate cause (reelection). In the finale, for the seventh year running, no passage. All the fireworks in the patent arena this coming year will again be shot by SCOTUS, with the obligatory sideshow, courtesy of the CAFC.
Posted by Patent Hawk at 11:22 AM | The Patent System
December 24, 2010
Over a third of district court patent decisions are overturned, at least in part, on appeal. That's a lot of mulligan stew. Claim construction, requiring a rather intricate reading of ingredients, seems particularly vexing to black-robed blokes. For years, patent-savvy Congressional Rep. Darrell Issa has pushed a bill to train district court judges in patent law. He finally succeeded. H.R. 628, establishing a limited pilot program, to test the apparently doubted hypothesis that education matters, is expected to be signed into law.
An 11th-hour confirmation in the lame duck 111th Congressional session: Northern District of Ohio Judge Kate O'Malley fills a vacant slot on the CAFC. Her honor is the only district court judge in U.S. history to be elevated to the Federal Circuit. The CAFC still has two vacancies.
Posted by Patent Hawk at 3:52 PM | The Patent System
July 14, 2010
Congress is a cesspool of corruption, offering its members a variety of tricks to feather their own nests, and pay back those cronies who help finance the con job commonly called democracy. One legislative sleight of hand is a rider bill, which is a bill attached to a different, typically unrelated bill, in a furtive attempt to pass the rider without attracting scrutiny. Rider bills nearly always cater to a special interest, and commonly involve a pork allocation to the patron. Sen. Patrick Leahy of Vermont, where IBM has roots, has failed at least five years running to get patent deform passed. This year's attempt is a sneak attack: a rider onto a small business loan funding bill. In the interest of compact passage, what was never a hit has been reduced to a tidbit.
November 28, 2009
CAFC Chief Judge Paul R. Michel, now 68, is retiring when the cherry blossoms next bloom in the nation's capitol. Having written 800 opinions, he is considering starting his own IP think tank. "Once I'm a retired judge, I can make a public nuisance out of myself. I think that's needed." Certainly the politicians threatening to trample this country's patent system could benefit from the wisdom on offer.
September 30, 2009
Advanced Software sued Federal Reserve banks and Fiserv in Federal district court for infringing process patents "for detecting fraudulent bank checks." The checks at issue were U.S. Treasury checks. 28 U.S.C. Section §1498(a), dating to 1910 and broadened as a World War I war powers act, limits patent infringement liability by the U.S. to compensation granted through the Court of Federal Claims. Otherwise, the government cocks a snoot at such a suit.
Posted by Patent Hawk at 10:43 PM | Case Law
July 9, 2009
In an echo of denouncing "irrational exuberance," the organization best known for harboring practicing pederasts has denounced vigorous patent protection. The dope with the hanging rope is none other than the Pope, who put out the hard word.
"On the part of rich countries there is excessive zeal for protecting knowledge through an unduly rigid assertion of the right to intellectual property, especially in the field of health care."
Bishops and priests on down the line twittered at the phrase "unduly rigid assertion." The jig is up. Time to rub the excessive off the zeal so as to give the Pope something less to squeal. About. And don't forget to tithe.
July 5, 2009
England's Statute of Monopolies, passed by Parliament in 1624, curtailed the crown's abuse in handing out monopolies, while codifying handing out monopolies, being only tangential to patents as we understand them. English letters of patent were monopolistic grants for inventing or importing new things, but also licensing business, as a means for restricting competition generally. In what became rogue colonies, the Americans were handing out their own monopolies.
July 2, 2009
On patent reform, the Senate shoots first and ask questions later. Judiciary Chairman Patrick Leahy hustled his cockamamie patent bill out of committee in April on a 15-4 vote. Now judiciary committee member Jeff Sessions is wondering what impact the proposed post-grant challenge process might have.
June 27, 2009
A contribution to the media obsession surrounding the death of the King of Pop: In 1993, Michael Jackson was granted patent 5,255,452 for a "Method and means for creating anti-gravity illusion." Specially designed shoes engaged with hitch members protruding through the stage, allowing the wearer to lean beyond their center of gravity. The illusion was used by Jackson in the music video for Smooth Criminal.
June 15, 2009
"It is in the sterilisation of failure, and not in the selection of successes for breeding, that the possibility of an improvement of the human stock lies." - H.G. Wells. Antithetical to rampant free-to-breed populist sentiment, government support for eugenics has no prospect. Fortunately, grasping short-sightedness offers hope. Wells' proactive stance is more easily achieved by impeding medical advances. To cull the defective in the population as young as possible, there may be no more effective measure than making genetic research uneconomic, to zero the return on investment for developing novel treatments. Not a moment too soon to take the side road to Wells' goal for a better human species. Outlaw gene patents.
May 18, 2009
First to Flunk
A first-to-file patent priority regime is rationally done using absolute novelty, that is, no grace period. That is not what Sen. Leahy has for Senate Bill 515, the currently proposed abomination posing as patent reform. Hal Wegner reports on the convolutions involved in Leahy's fantasy version of first-to-file.
May 17, 2009
The cabal misnamed as the Coalition for Patent Fairness advocates making patent enforcement more tortuous and expensive than it already is, as well as circumscribing patent holders' basic rights, such as transfer of ownership. IT shakers Microsoft, Intel, Hewlett-Packard, Micron and Cisco belong, and all share the distinction of being top ten patent gatherers in 2008. IBM, the top patent scooper, is the only one among IT corporate brethren who is not a member of the Coalition, and the only one which has raked in serious lucre for years through patent licensing. Microsoft, to its credit, has recently acquired the knack of cross-licensing.
May 15, 2009
View from the Bench
CAFC Chief Judge Michel spoke at an FTC venue last December, pouring cold water on those hot and heavy for patent "reform." Junk patents are nothing more than a gnat in the ointment. There is no litigation explosion. Hope for improvement from further post-grant review process is fantasy given turnover at the PTO. Excessive damages are a myth. Judge Michel swats statistically challenged academicians calculating otherwise. And patent trolls? Give it a rest, Judge Michel advises. Finally, as anyone with a lick of sense knows, patents are an intellectual property: "The essential element of property is it is alienable. You can sell it."
May 10, 2009
Ron Wilson at EDN, with no patents to his name, has what he terms "a modest proposal": "prohibit assignment, sale, or any other transfer of patent ownership," except inheritance.
May 4, 2009
The objection absurd, but patents as tradable commodities has raised some ruckus, even as the loudest howler monkeys are disingenuously self-serving. The flip side of that same fake coin is that patent holders, including inventors, should be required to commercialize their invention. In other words, patents and products should be synonymous. Another boil of similar ilk is that reinvention should obviate infringement. Herein, dispelling such nonsensical notions.
April 30, 2009
David Simon, Chief Patent Counsel at Intel, in testimony today before the House about pending patent legislation, comes off as a raving sociopath. Let's begin with his corporate arrogance, a pandemic disease among his Coalition brethren. "As one of America's leading innovators, Intel recognizes the critical importance of a strong and effective patent system that protects actual inventions and thereby provides an essential incentive for inventors... Too often, the patent law... is being used to extract unjustified payments from true innovators..." And who might the "true innovators" be?
"A strong and predictable patent system fosters the collaborative development and funding required to transform basic research into commercially viable technologies and stable, high-paying jobs. It is troubling to many small technology companies that, at a time of such grave economic uncertainty, Congress would seek to fundamentally alter the economic structure of our nation's patent system." - Bernard J. Cassidy of Tessera, telling the House Judiciary Committee what boneheads they are with their crappy patent bill, but in a politic way, of course.
April 29, 2009
Sen. Patrick Leahy (D-Vt), Senate Judiciary Chairman, attempts to sew a silk purse from a sow's ear with proposed patent legislation, disingenuously spinning in Business Week that it gives "ingenuity freer rein." "It has been more than 50 years since Congress significantly updated the patent system." In truth, Leahy wants to go backwards, before the 1946 Patent Act, when apportionment of damages was so wrecking the patent system that the Patent Commissioner at the time called it "one of the sorest spots in the enforcement of the law in the United States."
April 16, 2009
"Five years ago, a group of 15 corporate giants, which ironically had built their success on patents but now rely primarily on their market power and acquisitions for growth, wanted to weaken the U.S. Patent System and the protection it offered the new generation of innovators. These companies are trying to retain their position by pulling the economic ladder up behind themselves, and by forcing guaranteed access - on the cheap - to technology developed by others." - Dan Leckrone of the TPL Group, in the San Francisco Chronicle.
April 6, 2009
"Patent laws shouldn't pick winners and losers. Current law is not fair to IT, so something has to change... The current law is too easily abused to the detriment of high-tech. That has to change." - Silicon Valley MercuryNews. The patent laws must be slanted to favor corporations over inventors, just as financial shenanigans are socialized for the citizenry to pay, while banks too big to fail are subsidized, with the resulting profits privatized. Serve your country, fellow plebeians, so it can serve the rich.
April 2, 2009
Sen. Orin Hatch (R-UT), co-sponsor of the proposed Senate Patent Act, before walking out on the Executive Meeting of the Judiciary Committee meeting in a hissy fit: "My primary purpose for doing this bill was to improve patent quality and limit unnecessary and unproductive litigation costs. I do not believe the bill, in its current form, accomplishes those goals." Sen. Leahy (D-VT), Committee chair, attempted to cajole him from leaving, by sympathizing that he too would prefer gutting damages for patent infringement, which the watered-down version before the Committee lacked.
March 31, 2009
Pigs in a Poke
The phrase above refers to the clueless Congress passing patent laws without any sense of ramifications. Gene Quinn reports ringleaders in the Senate Judiciary Committee making progress on major revisions to their proposed patent reform bill. The damages provision now appears headed toward codification of the Georgia-Pacific factors, a big step forward in terms of sensibility.
The backward leap is in lowering the reeexamination threshold to "an interesting question," as contrasted to its present "substantial new question of patentability." The vagueness is ludicrous. As litigations are sometimes stayed pending reexam, and the patent office is glacially slow about reexams, particularly inter partes, this new reexam criteria could be a death knell for patents, a practical abdication of the presumption of validity that patents presently enjoy by statute, resulting in a purgatory of unenforceability, guilty with no chance to prove innocence.
March 27, 2009
No Respect Sausage
"To retain respect for sausages and laws, one must not watch them in the making." - credited to Otto von Bismark. Whatever the minutia marinade of the proposed patent sausage, it has little chance of sizzling itself into law. The noises you hear are sausage grinders, Sen. Patrick Leahy (D.-Vt.), and Sen. Arlen Specter (R.-Penns.), hawking money for mystery meat.
March 17, 2009
Presumption of Innovation
US patent rights have gone the way of "innocent until proven guilty" as our country plunges headfirst into a deep cavern of morally gray, with a permeating attitude of destruction over creation. The founding principal of making every attempt to protect intellectual property has degraded into making every attempt to control and limit that protection, while completely forgetting "to promote the progress of science and useful arts".
March 16, 2009
Matt Buchanan on Promote the Progress has a tidy analysis of Google's self-interest in patent reform. Matt makes two points: 1) as a youngster (a decade-old company), Google has no patent experience other than being sued. 2) Google already has monopoly power. Well put by Buchanan: "What can strong patent protection offer to Google, as a patent owner? Nothing more than spikes on the end of a giant club it already owns."
In case you haven't noticed from the last two entries, patents as a scourge is singing hot across the wires, the mainstream press replete with pleas from well-oiled machines that something must be done. In the months ahead, expect more of a focus on how gutting patents will "save jobs." Congress must act to get the patent stormtroopers back on their feet.
"Patents are not ordinary assets; they are options to litigate. While patent lawyers and other intermediaries benefit directly from the scope and scale of IT patents, that volume represents potential liability for companies that market useful products. Most patents belong to others, and the sheer volume obscures the patent landscape, limits the ability to evaluate patents and inevitably leads to inadvertent infringement." - lobbyist Ed Black of the Computer and Communications Industry Association, in the Silicon Valley Mercury News.
March 14, 2009
The cheesiest propaganda has a "gee-whiz, that ain't right" flavor. The rubes eat it up. So, whoever bothers to read the oxymoronic Christian Science Monitor is in for a treat. Correspondent James Turner gingerly spews gosh-darn hogwash, aided by an addled Daniel Ravicher, anti-patent kid wonder. "We have too many patents being granted," Danny sings. Apparently, Ravicher hasn't checked the allowance rate in a few years. Or maybe he has, but can't change his religion despite the facts.
March 10, 2009
The usual suspects headed to the Hill today to jaw in the Senate about patent reform, including representatives from corporations, lobbyists, and academic stuntman Mark Lemley. The patter was as expected. California Senator Dianne Feinstein put the writing on the wall about getting to a passable bill, especially over the highly contentious damages issue: "High tech seems to feel that they're going to get whatever they want out of this bill. I'm not going to vote for a bill unless there is reconciliation between the various interests."
March 7, 2009
Serial patent infringers banded together years ago in a determined siege to bribe Congress to pass new legislation. Consider that the courts have been patents' pressure cooker in recent years, and those effects need a longer view before jumping into the deep end with more radical changes. The Innovation Alliance has compiled a helpful synopsis of rulings by the high courts since 2006, when the courts started reacting to political pressure from the well-heeled infringers being impinged upon.
March 4, 2009
Cacophony by Design
[While other blogs cover the entrails, allow me to get to the heart of the beast.] Congress comprises a cabal of sole proprietorships - Senators and Representatives. The base wage is not great; private practice pays better. Oh, but the perks - tremendous ego-satisfying attention tied to the illusion of power, and the ability to soak lobbyists and the rarely enthused electorate of funds for a lavish lifestyle, plus fuel for the engine to turn the crank for another round in the rigged game called "election."
Posted by Patent Hawk at 4:29 PM | The Patent System
March 3, 2009
Vital legislation was introduced today in Congress - in the Senate, sponsored by Senators Leahy, and Hatch, along with hangers-on for hand-outs Schumer, Crapo, Whitehouse, Risch, and Gillibrand: the "Patent Reform Act of 2009." The legislation is vital to keep funds flowing into the coffers of Senators and Representatives, who have a lifestyle to maintain to which they have become accustomed.
February 28, 2009
The Hatch-Waxman Act created an accelerated pathway to chemical generic drugs, by virtue of piggy-backing on previous testing done by the patent holder. Biologic drugs are a different scenario altogether. Made from living organisms, such as bacteria, not chemical formulation, biologics are extremely difficult to replicate precisely.
Posted by Patent Hawk at 8:49 PM | The Patent System
February 27, 2009
Congress is nothing more than a pack of whores who flash their wares as proposed legislation, to attract lobbyists pumping them with money to sway a bill this way or that. The past three years running, patent reform bills have wafted as a lure for lining pockets. Senate Judiciary Chair Patrick Leahy and his House counterpart John Conyers are going trolling again. The word on the street is that they will jointly introduce this year's patent reform spliff next week, entertaining offers to roll more green into it.
February 22, 2009
Not Circling the Wagons
Another year, another turn of the wheel, and the same patent political issues rear their ugly little heads. Senate Minority Whip Jon Kyl (R-Arizona) has his shtick of pocketing lobbyist money by promising to rape DataTreasury of patent protection for its digital bank check processing, known as "Check 21." This year's DOA bill has already been introduced (S3600). And that's but the start of it. The kibitzers aren't on vacation.
February 10, 2009
2009 Patent Reform
The Manufacturing Alliance on Patent Policy (MAPP), a coalition of over 130 non-pharmaceutical manufacturers, took a backhand slap at Sen. Patrick Leahy in a letter to President Obama Tuesday, warning that the proposed patent reforms in recent years would hurt manufacturers by weakening patent protection. Leahy has been the puppeted force behind the computer industry's ploy to punch patents, so infringement is not as costly, while raising the cost of enforcement by making patent litigation even more expensive than it already is.
February 7, 2009
The Coalition for 21st Century Patent Reform is working "to secure enactment of recommendations in the 2004 report of the National Academies of Science (NAS)." Disappointed with Congressional efforts the past few years, and the USPTO, the lobbyist is declaring victory in light of recent court cases. "The patent law changes that have occurred since 2004 suggest that the courts--not the legislature--should be entrusted with many of the patent reform topics that have been considered."
February 6, 2009
The Invisible Edge
It's refreshing to read a patent study that stands up and shouts sense. Mark Blaxill and Ralph Eckardt, in "The Innovation Imperative: Building America's Invisible Edge for the 21st Century" look to the past as a candle to light the way forward. They begin by quoting Mark Twain (pictured) in A Connecticut Yankee in King Arthur's Court, 1889: "The very first official thing I did in my administration--and it was on the very first day of it too--was to start a patent office; for I knew that a country without a good patent office and good patent laws was just a crab, and couldn't travel any way but sideways or backwards."
February 5, 2009
Publicity for Stupid
Trumpeting expressed ignorance is not usually a publicity-seeking modus operandi. But for two patent Paris Hiltons, it seemed just the ticket. Professional patent wrestlers Nathan Myhrvold of Intellectual Ventures and Stanford University Law Professor Mark Lemley are tag-teaming to battle the unknown: who is behind the "flood" of patent litigation in the past decade? Let me save you guys a lot of work. It's simple. Patent holders.
January 29, 2009
IEEE has issued its 2009 patent reform recommendations. First off, a better USPTO, but not expanding their rule-making authority. Clarify software as patentable. And then they get woolly. "Consider alternatives to patent protection." Where they lament patent pendency. "Address recoveries for infringement." Their "recoveries" position sounds like they know nothing about damages or the Georgia-Pacific factors.
January 28, 2009
The membership of the House and Senate Judiciary committees for the 111th Congress has been decided. What has also been decided is abolition of intellectual property subcommittees in both houses. That puts any patent reform agenda, and all its attendant issues, squarely before the full committee in each body. The abolition thus puts a learning curve on more members, particularly in the House: there are 29 in the House Judiciary Committee.
January 27, 2009
One could argue that everything needed would eventually be invented. No need for patent protection in a society content with its technology. Patents accelerate invention, by having an incentive to invent: an exclusivity grant. So whether an infringer copied a patent, or independently developed the technology, is moot. Other than copying as a first step is smarter than reinventing from scratch.Continue reading "Non-Copyists"
Cream of the Crop
For the third time, Rep. Darrell Issa (R-California) has reintroduced legislation for a pilot program to help educate district court judges about patent cases. Never mind that attorneys on both sides of a litigation are supposed to do that. The more experienced judges are well known. If a judge needs help, that road has been well paved, and brethren in other districts are a phone call or email away. Never mind that the only extant problem with district courts handling patent cases is in limiting choice of venue, a problem the CAFC introduced in TS Tech. Maybe the pilot program ought to be educating the higher courts about patent cases.
Posted by Patent Hawk at 3:02 PM | The Patent System
January 23, 2009
The Front Burner
Hal Wegner has expressed "reason for optimism that patents will not be put on a back burner by the new President." Reason for optimism would be just the opposite: that things would simmer down, on the back burner.
January 3, 2009
"Abstract software code is an idea without physical embodiment." So opined the Supreme Court in Microsoft v. AT&T, 2007. The high courts in recent years have done what they could to denigrate software as unpatentable, most recently in a stunningly incoherent ruling at the CAFC In re Bilski. This is the result of both scientific and economic ignorance by the courts, and political brainwash by computer software corporations in this country, including, incredibly, Microsoft and Apple. As emergent Asian nations race to overtake the U.S. in every technological arena, the heavy patent action here is cutting off our leading-edge nose to spite our face.
January 2, 2009
Rear View 2008
Patent reform fell off Congress' radar while the USPTO hit a nadir in bad management. The Supreme Court was mercifully mum, except for exhausting patents, while the CAFC went into the weeds on more than one occasion.
November 24, 2008
Reed Hundt, former elementary school principal, was FCC chairman in the Clinton administration. In 2006, he wrote a genuinely stupid opinion piece in Forbes disparaging the U.S. patent system, suggesting arbitrarily slashing patent grants by 90%, and other lunacy. Empirical proof, for the upteenth time, that a Yale graduate can be as smart as a chewed wad of gum stuck under a student's desk. Hundt is now helping President-elect Obama as a transition team leader. No indication that Hundt will have anything to do with patents. So maybe let's give the guy a break.
November 19, 2008
Kitchen Sink Solutions
The Chamber of Commerce has released a draft report outlining proposed solutions for problems that currently plague the USPTO. The report, aimed at providing recommendations to the incoming Administration, includes all of the usual suspects - all of them. Written by an impressive line-up of contributors, including former PTO executives, the report aspires to "stimulate a fresh dialogue on the best ways to improve the PTO's patent examining performance". But instead, it reiterates tired approaches, and contains so many suggestions, probably due to the large number of contributors - all with differing opinions, it is difficult to determine where to even begin this proposed conversation of change.
November 11, 2008
Patently-O's Professor Dennis Crouch reports, as a straight man for unintentional comedy, that Senior IP Counsel at SAS US, Tim Wilson, having constructed a hypothetical demand curve "using the powerful computing resources of SAS," figures that if patents cost as much as $50,000, there would be a "dramatic decrease" in patent filings.
November 7, 2008
Lame Blaming About Claiming
CAFC Judge Plager recently mused out loud about claim construction, most strikingly, his and the court's technical incompetence.
The fundamental problem with claim construction today is that too many claims are no longer describing hammers or machines or other physical objects--though we have had our share of interpretive trouble even with some simple things like what is a "board."
October 15, 2008
Donald Zuhn at Patent Docs wrote an excellent overview of the presidential candidates' stances on patents in his entry "Presidential "Debate" on U.S. Patent Policy." Patent Docs is one of my favorite patent blogs. Consistent solid reportage. Check it out.
Posted by Patent Hawk at 10:13 AM | The Patent System
October 3, 2008
What Goes Around...
Much sourness has been provoked in recent years, and legislation mooted, that would radically alter patent law. From one writer regarding the current public temper -
To put the matter very frankly, the attitude of many people in the country today with regard to patents is a petulant, irritated mood. The greatest danger which could result from any such upsurge of popular disapproval of patents because of associating them with an illegal, antisocial institution is that it might lead to an unwise, wholesale purge of the entire patent system. In view of the nature of the evidence which has been presented to the legislators, it is not unreasonable to fear that the Congress might move on to the subject of permanent reform in a petulant, angry mood.
September 24, 2008
Benjamin Henrion, initiator of the StopSoftwarePatents coalition effort, explains "The aim behind StopSoftwarePatents is to gather a worldwide coalition of businesses and civil society in order to get laws which clearly exempt software from patentable subject matter. This is the best solution for getting rid of 'patent trolls' and uncontrollable legal risks generated by software patents. The day the software industry forms a clear front against software patents will be the beginning of the end for the 'patent trolls'."
August 11, 2008
Walk This Way
According to NationalJournal.com, Senate Minority Whip Jon Kyl has his own vector for patent reform, divergent from the Leahy-Hatch cluster fun. Kyl reportedly spent months in meetings "with critics of the Leahy bill, including representatives from the pharmaceutical and life-sciences industries, small tech firms, and other companies whose business models depend on patent licenses. Noticeably absent from the talks were the major high-tech and media firms that belong to the Coalition for Patent Fairness and officials from the financial services sector who championed Leahy's bill."
Posted by Patent Hawk at 11:58 PM | The Patent System
In its Small Business section, The Wall Street Journal today used three anecdotes to survey the patent scene. The article "Caught in the Crossfire," stated "the clash:" "Big companies that pay for patent licenses and small companies that generate revenue by licensing patents are increasingly at odds."
August 10, 2008
Young James McDonough displayed inexperience in an interview in the Wall Street Journal. McDonough blamed patent trolls for the USPTO tightening examination, when it was media coverage of carping by patent-infringing computer technology corporations that provoked a PTO political response. To blame enforcers of their IP rights is like a bad omelet cook blaming chickens for laying eggs.
July 14, 2008
"I have to tell you that the innovation and the technology and the entrepreneurship of the world still lies in the United States of America. Every technological advance we've made in the 21st century and throughout the 20th has come from the United States of America." - John McCain, Republican presidential candidate
"The bigger the lie, the more the people will believe it." Joseph Goebbels, Hitler's propagandist, must be smiling up from Hell at academics Bessen and Meurer, who concocted rubbish figures about the value of U.S. patents. Mainstream media hack Gordon Crovtiz has taken the numbers as gospel. "Empirical research" he calls them. "Shocking findings." Crovitz preaches his new-found gospel in "Patent Gridlock Suppresses Innovation." Of course, it's in the Wall Street Journal, Rupert Murdoch's latest conquest.
June 30, 2008
Hal Wegner displays astonishing senility in a disjointed and practically schizophrenic review of pulp fiction by academics Bessen and Meurer (B&M). Wegner: "The U.S. patent system is not working. It stands accused on all sides of stifling innovation instead of nurturing it. Some critics say the system is fundamentally wrecked, others that it can be fixed."
June 20, 2008
Sauce For The Goose
Damien Geradin, Anne Layne-Farrar, and A. Jorge Padilla, in "Elves or Trolls? The Role of Non-Practicing Patent Owners in the Innovation Economy":
Clearly, patents in the hands of non-practicing entities can increase competition, lower downstream prices, and enhance consumer choice... Clearly, patents are a complex subject that cannot be portrayed as either all good or all bad; tradeoffs will always be involved. Without a better understanding of the many complicated effects of patents in high technology markets, we run the very real risk of misguided policy decisions.
It's much simpler than that.
June 17, 2008
Fact & Fiction
Democratic nominee for President Barack Obama:
I'm going to make... judgments not based on some fierce ideological pre-disposition, but based on what makes sense. I'm a big believer in evidence. I'm a big believer in fact... We've got offices like the patent office that are outdated to take advantage of new discoveries here in the United States.
June 2, 2008
To FTC Commissioner J. Thomas Rosch, patents are inherently anti-competitive. To what degree depends upon the situation. Rosch reserves special ire for patent holders of technology standards, but would limit damages for inventors to what it cost to obtain a patent.
May 18, 2008
Conflict and Cooperation
Culture and law intersect at the personal level. Everybody lives in the two worlds simultaneously. But lawyers often behave as if there is no world but law.
This was not a mistake made by the Founding Fathers of this nation. To be fair to us today, except for one day in September of 2001, we have not had much visceral experience with how conflicts between culture and law may result in violence. But the Founding Fathers lived much of their lives in such conflict. And their fathers had lived much of their lives in conflict (that between church and state).
May 11, 2008
Feathering the Nest for Inventors
Sensible patent reform should focus on feathering the nest for inventors in the United States. There is nothing more important to our long-term prospects within the global economy.
Posted by Michael Martin at 5:00 AM | The Patent System
May 10, 2008
Professors James Bessen and Michael J. Meuer (BM), who should be thoroughly discredited for their tripe, appear to have duped many people who should know better. What they demonstrate to the discerning is how little patent emperors have no clothes.
Posted by Patent Hawk at 11:37 PM | The Patent System
Broken and Unbroken
Referring to patents, the Economist thinks it "a pity" that a "rewrite" of "broken laws" is "back on the shelf." Wrong. The patent statutes are not what's broken, with one ghastly exception. It's the USPTO and the courts that are broken.
Posted by Patent Hawk at 12:04 AM | The Patent System
May 9, 2008
Dead, For Now
The Economist: "On May 5th the Senate removed the bipartisan Patent Reform Act from its calendar."
April 30, 2008
Paying for Garbage
The New York Times reports $4.3 million spent in the past 15 months lobbying at the wounded Patent Act. The anti-patent Coalition for Patent Fairness alone forked out $2.5 million, lining the pockets of Sen. Leahy & Sen. Hatch. Pro-patent rival Coalition for 21st Century Patent Reform spent $1.8 million.
April 29, 2008
How Patent Reform is like a Sombrero
With much of the intense pressure to put patent reform into law past, now is an opportune moment in time to step back and reflect on the bigger picture of patent law in the United States. What bigger picture is there to be seen? Our vision of the patent system, and of the need for its reform, can be understood better upon consideration of the sombrero.
Posted by Michael Martin at 1:19 PM | The Patent System
April 28, 2008
Congress Daily reported last Thursday that "more than 20 high-tech and financial services industry executives, as well as corporate patent counsels," met "with Sen. Orrin Hatch, R-Utah... to discuss controversial components of a bill that would overhaul the U.S. patent system." Proponents for eviscerating patent enforcement are relentless and unbounded financially in effecting the corruption of corruptible. While 2008 may pass with further damage to the U.S. patent regime limited to case law conniptions, 2009 is likely to bring again the beast to savage the integrity of this nation's patent system. A glimmer of hope flickers that 2009 brings a change of USPTO management that returns a semblance of sanity to the agency, and thus a counterbalance to the inexorable grind for deformation.
April 25, 2008
In an otherwise less than remarkable non-precedential decision by the CAFC, Circuit Judge Richard Linn took the opportunity in a concurring opinion to express "disappointment" and "concern" over the current state of the patent system, suggesting that "the circumstances that led up to this appeal may be more symptomatic of certain failures of the patent system than merely reflective of the peculiar facts of this case". You don't say.
Posted by Mr. Platinum at 12:23 PM | The Patent System
April 24, 2008
Lincoln's Famous WordsOn February 11, 1859, Abraham Lincoln gave a lecture to the inhabitants of Jacksonville, Illinois on the topic of discoveries and inventions. His most famous words from this lecture are the last few that were recorded:
"Next came the Patent laws. These began in England in 1624;* and, in this country, with the adoption of our constitution. Before then, any man might instantly use what another had invented; so that the inventor had no special advantage from his own invention. The patent system changed this; secured to the inventor, for a limited time, the exclusive use of his invention; and thereby added the fuel of interest to the fire of genius, in the discovery and production of new and useful things."
April 21, 2008
Here we go again. "There should be greater penalties in respect of patent holders who make unjustified threats of legal proceedings. "Patent trolls" should not be allowed to flourish and to hold public and private investors in research and development to ransom." - Australian academic Matthew Rimmer
Posted by Patent Hawk at 12:09 AM | The Patent System
April 18, 2008
Abandoning His Post
John Whealan, former solicitor of the USPTO, has been soliciting PTO-favorable legislation for the past year, "assisting" Sen. Leahy in bungling patent reform. In a signal of defeat for the bill, S. 1145, Whealan, who has been on leave from the PTO, is abandoning his temporary post with the Senate May 1. Self-absorbed, Leahy has called his efforts a waste of "thousands of hours."
April 13, 2008
Dulling the Edge
The International Federation of Professional & Technical Engineers, damning S. 1145:
It would threaten our nation's competitive edge in a number of significant ways - including allowing foreign based companies to challenge the U.S. patents of American manufacturers... Patent reform must not undermine our manufacturing base by diminishing the returns for those whose creativity and ingenuity has been one of the key ingredients to America's economic strength.
Posted by Patent Hawk at 12:09 AM | The Patent System
April 12, 2008
Sen. Patrick Leahy appears left holding a sack of shat - S. 1145, the Patent Putrefaction Act. Referring to the lobbyists who have bought him, Leahy lamented, "we have been working on these reforms for years." Leahy called the thwarted bill "a missed opportunity." The real missed opportunity is that such pathetic and corrupt legislation actually received sustained attention from lawmakers, when there is real work to be done in improving the patent system.
April 10, 2008
Quid Pro Quo
Senate Republicans are threatening inaction if nominations for appellate court judges are not acted on, the pace of which has been described as "glacial." Numerous judicial nominations languish under the jaundiced eye of Senate Judiciary Committee Chair Sen. Patrick Leahy, D-Vt. Sen. Arlen Spector,R-Pa., who yesterday pulled his support for Leahy's Putrid Patent Act, suggested that GOP senators retaliate by blocking the bill, S.1145, a specter that Leahy acknowledged. And a fine idea indeed.
Posted by Patent Hawk at 1:37 PM | The Patent System
At the behest of the big banker boys, Sen. Jeff Sessions, R-Ala. sponsored an amendment to the Putrid Patent Act, exempting banks from paying damages for infringing patents covering the mandated "Check 21" check imaging law. Sessions has now dropped support for the provision over constitutional legality concerns. Some things money can't buy, though the banking lobby certainly tried to buy this.
April 9, 2008
Like a rat leaving a sinking ship, Sen. Arlen Specter, R-Pa., has pulled his support for S. 1145 over damages apportionment. According to Congressional Quarterly, sponsor Sen. Patrick Leahy, Senate Judiciary Committee chair, "reserved the Senate television studio for a news conference two days in a row this week, only to cancel both times." Leary had previously acknowledged the vote count problematic, though he had been hoping to get it to the floor. Leahy and cosponsor Sen. Orrin Hatch are still haggling over the inequitable conduct provision. Hatch's support for the bill is contingent on changes being made.
Posted by Patent Hawk at 2:02 PM | The Patent System
April 8, 2008
The Coalition for Patent Fairness has just rented Congressional heavy hitters Trent Lott, R-Miss, John Breaux, D-La, and former House Minority Leader Richard Gephardt, D-Mo, as a cluster contingent to shove the Patent Deform Act to ramming speed. As one wag mused: "If patent reform is going anywhere this year, it will happen either this week or next week. The CPF has been saying it's very confident that the bill will pass. If this is the case, why hire three of the most expensive lobbyists in Washington for a 1-2 week job?"
April 7, 2008
S. 1145, the Patent Reform Act, languishes in a Senate cubbyhole, awaiting an airing on the floor. While its boosters croon its debut imminent, it may not even make it to the floor this session, as time runs short, and more important issues press (e.g., the housing and banking crises). Regardless, the bill is quite unlikely to get through Congress this year, and most certainly won't be signed into law without major revision.
Posted by Patent Hawk at 5:18 PM | The Patent System
April 5, 2008
Carlos Gutierrez, Secretary of Commerce, "the voice of business in government," wrote a letter to the Senate, praising to the skies "Applicant Quality Submission" (AQS), a scheme to force patent applicants to scour the prior art before filing a patent application, as part of S.1145, the pending Senate patent bill. The clamor for AQS by the patent bar is deafening in its silence.
April 4, 2008
Hillary's Short Take
During a Pennsylvania campaign stop, Hillary Clinton spoke as if opposed to the pending Patent Reform Act. Asked by a local inventor, Clinton reportedly said she opposes anything in the bill that would hurt manufacturers, noting that New York manufacturers oppose the bill. Simple as that.
Posted by Patent Hawk at 1:34 AM | The Patent System
April 3, 2008
Weak Patent Protection Costs Jobs
Labor unions represent congealed opposition to the Patent Deform Act, currently moldering in the Senate. Christopher Rugaber of the Associated Press:
Spurred by concern about overseas piracy of U.S. goods, unions have stepped up their opposition to patent reform legislation pending in the Senate. The AFL-CIO and... a group of seven unions that includes the Teamsters, argued... recently that proposed reforms to the patent system would make it easier for competitors in China and India to counterfeit U.S. products and send more U.S jobs overseas.
Posted by Patent Hawk at 2:21 PM | The Patent System
April 1, 2008
The Coalition for Patent Fairness hosted a media briefing conference call this morning to discuss the Patent Reform Act (S.1145), and its place on the agenda of Congress, which reconvenes next week. The briefing was brief in content, but not duration. The "insights" given were known in advance, and the predications predictable, with the Coalition a bit cagey in not wanting to show its hand.
Time for a Change
I read it on the World Wide Web; it must be true. The patent system is broke. Patents are being bought by fake companies who are not even doing what the patent is for. Then, these fakes, make what they call shell companies, like seashells, nobody home, with no real business but patent monkey business, sue companies that make the products we all love. These shells, scum of the earth, are acting like trolls. They are patent trolls. Wow. I like the sound of that.
March 24, 2008
The trolls of patent policy are academics. Over-credentialed chowderheads. Charts and graphs depicting meaningless statistics, the meaning sucked out by being out of proper context. Jumping to conclusions like frogs on hot sand, all the while paying lip service to the complexity of reality. Jamming what fits into a theoretical construct, leaving as offal inconvenient contrary facts.
Posted by Patent Hawk at 8:41 PM | The Patent System
March 20, 2008
For the Corporations
For most firms, the headache of a patent lawsuit is greater than the benefit of the patents they get and can use against other people... The patent system can't work unless it provides an incentive to innovators. It managed to do that for the average firm in 1984 and for pharmaceutical companies in 1999.
Posted by Patent Hawk at 7:28 PM | The Patent System
March 19, 2008
Mr. Shun-Kuo Su of Taiwan gives an across-the-puddle perspective in Forbes of U.S. patent deform in the making:
[T]he bill would eliminate patent-holders' protection against frivolous lawsuits... These and other changes in the proposed legislation would cause inventors' costs to skyrocket. Patent values would erode as their legal stature fall into question. Such a coordinated attack on American patents would be devastating to inventors--and to consumers who rely on their products.
Posted by Patent Hawk at 4:06 PM | The Patent System
March 18, 2008
When failure = success? Patents stimulate new ventures.
"If I had a world of my own, everything would be nonsense. Nothing would be what it is because everything would be what it isn't. And contrary-wise; what it is it wouldn't be, and what it wouldn't be, it would. You see?" - Alice in Wonderland
The PatentlyO posts from Bessen and Meurer are taking a trip to crazy-town. Their post today on "patent failure" focuses on the impact that the patent system has had on publicly traded companies.
Nortel Phones It In
Toronto-based Nortel Networks, known to hammer competitors with patent litigation suits, spent $560,000 lobbying for patent legislation in 2007; a Canadian company paying for the U.S. to foul its patent regime; guess they figure patents are a zero-sum game to them.
Posted by Patent Hawk at 1:21 AM | Patents In Business
March 17, 2008
USPTO statistics show reexamination to be an effective tool for bringing questionable patent claims to dock: 64% of claims are amended, 10% cancelled; 26% emerge unscathed. S. 1145 eliminates inter partes reexamination (Sec. 5), substituting a terminal one-year open season. Patents are often not enforced in their first year; prior art may take years to surface; the rules of validity change through time (e.g. Obzilla). The post-grant opposition section is exemplary of how ill-considered the 2007 Patent Act is; how little understanding by sponsor Sen. Leahy in drafting the legislation, who appears to be acting as a lapdog for certain special interests in trying to foul one of the primary parts of this country's economic engine.
Posted by Patent Hawk at 12:39 PM | The Patent System
March 16, 2008
Patent holders have been hit hard the past couple of years. Declaratory judgment motions may now be filed at the drop of a hat, obliterating licensing negotiation without first suing, thus rendering litigation de rigueur. Obzilla is still wrecking havoc in combo-Tokyo, whilst Thomas Jefferson spins in his grave. Willfulness isn't just willful anymore, it's "objectively reckless": a drunken rampage of infringement is required, or we was just boys being boys, ya' know. Now, the obscenely ironically-named Coalition for Patent Fairness (CPF) is howling at the moon about nearly completing its purchase of our rent-to-own Congress.
March 14, 2008
Patents, Property, and Corporations: a Historical and Economic Reminder
Economists Bessen and Meurer have published a book, Patent Failure, detailing the results of their study of the economic benefits of the patent system. In their own words, a central theme in the conclusions from their study is that "patents often fail to perform effectively as property rights." One legitimate answer to this claim is, "So what? Patents aren't exactly property rights anyway." But what are patents then? The purpose of this post is to explain how historically and economically patents can also be analogized to corporations. Thus, the criticisms that Bessen and Meurer make against the patent system tell only part of the story.
Posted by Michael Martin at 2:03 PM | The Patent System
March 13, 2008
James Bessen and Michael Meurer take a swing at the U.S. patent system in their new book, Patent Failure: "Innovators have grown frustrated with the failings of the American patent system." The book is fiction, based on fallacious premises and sophistic analyses.
Posted by Patent Hawk at 11:23 PM | The Patent System
Nobody puts patents in a corner!
"Many of life's failures are people who did not realize how close they were to success when they gave up." -Thomas Edison
As regular readers know, the author is aware of imperfections in the current patent system in the United States. In that regard, he was very pleased to read about what looks like some good work done by a couple of economists on the patent system. In particular, these economists have studied and offered many insights into the ways in which the patent system is not functioning perfectly as a system of property rights.
Posted by Michael Martin at 8:12 AM | The Patent System
March 12, 2008
Inequitable Conduct Policy
Former USPTO Commissioner Harry Manbeck, now with Rothwell, Figg, Ernst & Manbeck, has written the Senate Judiciary Committee with a wise perspective on one ill-considered decimation proposed in the folly codified as S. 1145: "I believe that it would be a mistake to eviscerate the [inequitable conduct] doctrine as it now stands."
Posted by Patent Hawk at 2:51 PM | The Patent System
Down & Outed
Rick Frenkel had a juvenile impulse to blog anonymously. The juvenility was not so much anonymity per se, it was blogging as he did - trying to out others while staying masked. The inevitable occurred - Frenkel pissed off attorneys, including the legendary Ray Niro, who put a bounty out for Frenkel's identity after Niro took umbrage. Frenkel outed himself just before being outed. Niro wasn't the only one displeased.
March 10, 2008
Reaction to Reaction
Last week, in reaction to the 2007 Patent Deform Act being stalled, the Coalition for Patent Fairness (CPF) signaled false compromise. Now, defenders of patent sensibility react. From the Coalition for 21st Century Patent Reform -
"This proposed language from the Coalition for Patent Fairness does nothing to move patent reform closer to adoption. CPF's proposed damages language is merely a restatement of the "prior art subtraction" language that the Senate Judiciary Committee report has already recognized as deficient. As with the earlier language, it would result in a wholesale reduction in the value of damages awarded to inventors whose patents are infringed. This language would give a green light to would-be copyists, especially those in low labor cost countries, who will quickly realize that that they can knock off patented American technology with little or no fear of retribution. The end result of this proposal is that the incentive for innovation is dramatically reduced at the cost of thousands of American jobs and the loss of our leadership in life saving research and ingenuity."
Posted by Patent Hawk at 9:54 PM | The Patent System
March 9, 2008
The Coalition for Patent Fairness and Financial Services Roundtable last week wrote Senators Leahy, Hatch, and Specter, tweaking a smidge their insistence on damages apportionment as a sure means to clog the courts, maximize litigation cost, and eviscerate patent enforcement. Modification to current language in the Senate bill for damages apportionment is copasetic, as long as "the law makes clear the inventor must prove the inclusion of the invention in a product is what predominantly causes consumers to purchase the product." In other words, a plaintiff would have to prove that the product is purchased for its infringing value.
Posted by Patent Hawk at 12:17 PM | The Patent System
March 4, 2008
Bang for Bucks
Senators Leahy & Hatch keep pounding their old tom-toms for the Patent Deform Act, but it's just to pacify their patrons; the dancers have moved to another tune.
A Patent Prospector confidential source reports:
The latest from Washington is that (Senate Majority leader) Reid has said the bill won't come to the floor before April. The consensus is that if it doesn't pass then, it's lost in the election meat grinder. Leahy has said he won't bring up patent reform again next year, although that may be a hammer to get people to compromise because Reid doesn't want to devote floor time to anything that's not going to sail through. The lobbyists tell me that if Leahy had the 60 votes to break a filibuster, he would have brought it to the floor by now.
March 3, 2008
End Software Patents
A fantasy propaganda site called End Software Patents (ESP) seeks an end to what doesn't exist: software patents.Continue reading "End Software Patents"
February 29, 2008
If passed in its existing form, the bill masquerading under the euphemism "Patent Reform Act" will stifle growth and prosperity for the average U.S. citizen. It will slow down investment, reduce jobs and threaten economic recovery at a time we need it most. This misguided special-interest legislation still pending in the portals of the Senate must be stopped.
Posted by Patent Hawk at 10:35 PM | The Patent System
February 23, 2008
Follow the Money
If you wonder why, for the Patent Reform Act, Senator Leahy is so hot to trot, it's that he got paid and bought. Of the $2.4 million packed into Leahy's political piggy bank in the past five years, $3/4 million came from "lawyers and lobbyists;" not surprising, given that Leahy is Senate Judiciary Committee chairman. Second place in pork placement was the computer-related sector, approaching $1/2 million. Third place is under $200,000. Heavyweights in digital technologies, including communications companies, which are totally digital too, are the pushers for so-called "patent reform."
February 21, 2008
A View from Tel Aviv
Bernard Frieder is a consultant to technology companies in Israel, miffed at the U.S. Congress for threatening to wreck the U.S. patent system with its Patent Reform Act of 2007.
Because inventors, research organizations and startup ventures around the world rely on US patents to protect the output of their labor, changing the US patent system has global repercussions.
George Margolin of the Professional Inventors Alliance had a graphic response to last week's editorial in the Washington Times by Senators Leahy, touting S. 1145, the Senate bill to deform the U.S. patent system. "All inventors strongly disagree with [Leahy], but he wouldn't know that because he has allowed few, if any, real inventors speak before his committee," Margolin conjectured.
February 19, 2008
The U.S. Patent Reform Act of 2007 is a gift, a most welcome change, if you are an Indian generic drug maker. The view from Mumbai:
The immediate impact of the law change will be to ease challenges on drug patents and also lower legal costs in such challenges.
Posted by Patent Hawk at 9:29 PM | The Patent System
CAFC on Patent Reform
Chief Judge Michel of the U.S. Court of Appeals, Federal Circuit (CAFC), addressing the Association of Corporate Patent Counsel on January 28, 2008, backhandedly took Congress to task for being duped by asinine academics, essentially rumor mongers, jumping to conclusions, ignorant of facts. Noting selective Congressional committee reportage, Michel hints that the fix was in.
February 17, 2008
Economist Robert Shapiro and health care policy maven Aparna Mathur rip into provisions of the Patent Reform Act currently swirling the bowl in the Senate. In a study published by the Biotechnology Industry Organization, the authors project the repercussions of damages apportionment, post-grant opposition, and lowering the bar for inequitable conduct.
Posted by Patent Hawk at 1:51 PM | The Patent System
February 15, 2008
Good Old Bozos
Senators Leahy and Hatch, in a Washington Times editorial, cry wolf about the need for patent reform, dishing out fallacious logic and rummy rumor posing as fact. "Meaningful patent reform is crucial to America's ability to maintain its competitive edge in the world," they toot, without evidentiary basis or rational reasoning matching perceived problem to proposed solution.
February 14, 2008
Keith Perine in the Congressional Quarterly spied the stall in the Senate version of the Patent Reform Act.
The Senate is not expected to take up a measure to overhaul patent laws until April at the earliest, as agreement on the complex legislation remains elusive. Senate Judiciary Chairman Patrick J. Leahy, a Vermont Democrat who sponsored the legislation (S 1145), acknowledged Wednesday that it likely won't be on the floor until after a two-week March recess. So far .... there have not been substantive negotiations over complex provisions - particularly a section dealing with damages awards in patent infringement lawsuits - since the Judiciary panel approved the bill last July... Lobbyists have predicted that the committee-approved bill does not have a filibuster-proof majority of 60 votes.
Posted by Patent Hawk at 9:05 PM | The Patent System
Money is a lubricant and a salve. Banks apply the salve to others to ease their own pain: potent wads in political lobbying and campaign contributions. With the housing market in deep kimchee, the banking industry is pushing proposals to shift the risk of mangled mortgages to the Federal Housing Administration; considered far-fetched a few months ago, now more a matter of when than whether. Then there's this pesky patent holder, DataTreasury, that practically patented "Check 21," the federal law for digitally archiving checks.
February 12, 2008
The Coalition for 21st Century Patent Reform, whose motto is "patents matter," made no small matter of making money matter in lobbying for patent legislation: paying law firm Akin Gump $1.2 million in 2007 to grease the skids.
February 7, 2008
Carnac The Magnificent
As prescient as he is scrupulous, Grand Patent Poobah Jon Dudas predicted patent reform passage: "I'm optimistic that we'll have patent reform because what we see is that there are very real answers. We're an innovation economy. We think that the model works, but can be improved [to arrive at] a positive bill that can benefit everyone."
Posted by Patent Hawk at 7:32 PM | The Patent System
The Financial Times posted an opinion piece by Patti Waldmeir that surmised Congress just contemplating patents is just about right.
At such a time of uncertainty, inertia may be the better part of valour: Congress has wasted years not solving the patent problem; it is hard to see why lawmakers should rush things now, when the only problems left to resolve are the really hard ones.
The Patent Union
An brotherhood of unions forge opposition to patent tomfoolery in the Senate -
[P]rovisions contained in S. 1145, the Patent Reform Act of 2007, that we believe could undermine the competitiveness of U.S. industry and put our members' jobs at risk.
February 5, 2008
Patent Office on Patent Reform
USPTO management posted on its internal agency website a position statement concerning changes in pending patent law. The patent office strongly opposes damages apportionment, while supporting the new post-grant opposition regime.
Lack of Consensus
Senate Judiciary Committee Chairman Patrick Leahy recently released a Senate status summation on S. 1145, the Patent Reform Act of 2007. It shows a diversity of comprehension, misunderstanding, and uncertainty by various senators. Meanwhile, the White House chips in.
February 4, 2008
800 Pound Gorilla
As part of its effort to dominate the high technology sector, Microsoft is seeking to fundamentally transform the treatment for those entities that infringe on the intellectual property of other innovators by minimizing the damages the victim could receive and to ensure that the potential for harassment would extended dramatically by allowing for virtually endless attacks on patent validity.
Posted by Patent Hawk at 2:46 PM | The Patent System
February 3, 2008
The Electronic Frontier Foundation is a self-appointed busybody for relieving owners of their intellectual property whenever possible. Their Patent Busting Project aims at "illegitimate" computer-related patents. EFF modus operandus is filing reexamination requests on "particularly egregious patents;" namely, those where the owner raises an enforcement stink, and EFF thinks it has dug some decent prior art.
Posted by Patent Hawk at 3:21 PM | The Patent System
February 2, 2008
In A Hurry
Two former patent office commissioners show themselves as shoddy analysts in their capacity as toads for the corporate special interest group Coalition for 21st Century Patent Reform. But in doing so, they prove the hoary adage that every once in a while, even a blind pig finds an acorn.
January 31, 2008
From a study prepared for the Biotechnology Industry Organization (BIO):
There is a lack of evidence that justifies overhauling the patent system in a way that could potentially disrupt the incentives of industries that rely on patents to innovate... The empirical data which is being used to justify the need for overhaul either has serious methodological limitations or is non-existent... It cannot be said, with any degree of certainty, that there is or is not a problem with patent quality, patent thickets, litigation abuses, or any other potential impediments to innovation and successful commercialization... There is no basis to believe that the proliferation of patents is hindering research.
Implementing overhaul measures aimed at weakening patent rights and enforcement mechanisms is dangerous because innovation often depends on strong patent rights and enforcement mechanisms. The danger to innovation increases when overhaul is implemented without methodologically sound empirical data.
January 29, 2008
Outside Looking In
Gernot Pehnelt wonders in the DesMoinesRegister why the U.S. Congress is hell-bent to deform the patent regime.
The American system is regarded as the strongest protector of patent rights in the world. Unfortunately, the U.S. Congress is considering "reforming" the system... Proposed changes could have potentially devastating consequences to research-based industries, especially the pharmaceutical industry... The patent-reform bill would reduce incentives to perform research and development, threaten jobs at home and abroad and damage trans-Atlantic trade relationships, which have brought wealth and vital goods to the United States and Europe.
By passing the Patent Reform Act of 2007, Congress would replace many of the best aspects of the U.S. patent system with the worst aspects of the European system.
Posted by Patent Hawk at 6:22 PM | The Patent System
January 27, 2008
In the Christian Science Monitor, Alexander Poltorak, CEO of General Patent Corporation, reminds Congress of the fundamental nature of patents, and reminds us of the craven corruption of our elected officials in sucking up to a narrow but well-moneyed special interest.
A self-proclaimed goal of the Patent Reform Act is to decrease patent litigation. But lawmakers have forgotten that a patent does not even give an inventor the right to practice the patented invention – only the right to exclude others from practicing it.
Posted by Patent Hawk at 8:50 PM | The Patent System
January 24, 2008
Short of white smoke emanating from the Dirksen Senate Office Building, widespread predictions are spreading around Washington, D.C. that Senator Leahy now has slightly more than the 60 votes needed for cloture - the procedural vote to permit rapid Senate passage of Leahy, S. 1145 patent reform legislation. Everyone expects that if cloture succeeds, there will be some changes made in the bill (presumably already agreed upon behind closed doors). Swift House passage of the revised Senate version is expected in press reports.
January 23, 2008
On the Agenda?
Nevada Sen. Harry Reid, majority leader, jaw-jawed his Senate colleagues yesterday. After remarks about the economy swirling the rim, native American health care, spying on other countries, and building more weapons, Reid sandwiched "patent reform and an energy package" in the same paragraph, because they go together like a fish needs a bicycle.
On patent reform, we must carefully strike the right balance with a bill that promotes rather than blocks innovation from enterprising entrepreneurs.
Posted by Patent Hawk at 12:39 PM | The Patent System
January 22, 2008
Biomedical Patent Management is begging the Supreme Court to waive patent sovereign immunity in the cause of fairness. But fairness matters not a whit when pitting the state's self-interest against anything else. The state looks after itself; citizens are just cows to be milked. Patent infringement impunity is entitled under sovereign immunity.
January 18, 2008
Let us praise CEO Jean-Pierre Garnier and IP VP Sherry Knowles of GlaxoSmithKline for carrying the torch as they scorch Senate Judiciary Committee bigwigs who have flipped their wigs to sashay with a toupee because of what they forgot to say; to aver the stead of not giving the PTO its head in capricious rulemaking.
Posted by Patent Hawk at 10:08 PM | The Patent System
January 17, 2008
2007 may have passed, but the Patent Reform Act thankfully didn't. Passed in the House last session 220-175, it never made it to floor of the Senate in the 110th session. But it's not dead: key senators on the Senate Judiciary Committee remain committed to passage.
January 10, 2008
Green Over Patents
Bruce Springsteen once wrote: "Poor man wanna be rich; rich man wanna be king; and a king ain't satisfied 'tll he rules everything." In their raw lust for hegemony, creating "a new category of reportable transaction" for tax-related patents, the IRS resembles Springsteen's rich man.
January 4, 2008
Former Chinese Senior Judge Yongshun Cheng mocks the scurrying of the puffy white baboons in the large rotunda building in the U.S. capitol. Judge Cheng figures that the patent reform proposals before Congress "will weaken the right of patentees greatly, increase their burden, and reduce the remedies for infringement; friendlier to the infringers than to the patentees in general as it will make the patent less reliable, easier to be challenged and cheaper to be infringed."
January 3, 2008
The National Association of Patent Practitioners (NAPP) has written Senate leaders to set them straight about proposed patent legislation: "the problem is that essentially all of the major proposals in the current bill would weaken patents."
December 31, 2007
Rear View 2007
2007 was a raucous year for patents. The high courts and patent office shuffled the deck chairs like madmen. Patents sleazed and slimed in the hallowed halls of the whores of Congress. Business as usual as a few patents went big bang for the buck, while others crashed on the shoals of a new artificial reef called KSR.
December 29, 2007
Packing Heat, Not Light
Sen. Patrick Leahy [D-VT] and Sen. Orrin Hatch [R-UT] were kissing each other's ass on the Senate floor December 18. The comity is affecting, but these guys are dangerous goons, given to impulsive action: "urgent need to modernize our patent laws," they quiver. The real urgent need is not to screw inventors into the ground to pacify serial patent infringers.
December 23, 2007
Proposed Patent Reform and the Market for Ideas
Back in September, Dennis Crouch published a good summary of the patent reform legislation. In an earlier post, I described how the Internet, by reducing the transaction costs associated with identifying valid patented technology, is facilitating an emerging market for ideas. Patent reform legislation obviously has the potential to either promote or destroy this emerging market. Here are a few thoughts on how the specific proposals for patent reform would affect the emerging market for ideas.
December 8, 2007
Patent Blog Troll
Anti-patent blogger Patent Troll Tracker (PTT), notoriously anonymous, has generated a lot of heat and little light in his spat with hugely successful patent litigator Ray Niro. PTT flatters himself that Niro put a $5,000 bounty out to identify him. Niro nails PTT with "I view these people [anonymous bloggers] as know-nothings, afraid to reveal their identity." Niro's missed opportunity was coining the term "patent blog troll," for patent bloggers who aren't patent practitioners. What special level of hell would Dante have reserved for the anonymous patent blog troll?
December 4, 2007
The United States' best known racketeering syndicate turns its green eye of jealousy towards patents: the IRS wants to know of any transactions under the aegis of a tax-related patent. As David Boundy at Cantor Fitzgerald wondered: "20%-off-sales at Sears of dishwashers covered by patents could become transactions that have to be reported to the IRS. Has the entire executive branch taken leave of its senses?" Who said there was ever any sense to take leave of?
December 3, 2007
Patent rube Viet D. Dinh in the right-wing American Spectator sucks corporate fumes for air as he goes gung ho for the sorriest patent legislation since 1793.
An example of the litigation abuse engendered by the current system is the rise of "patent trolls," speculators who acquire and sue bona fide patentees but neither contribute to or otherwise expand the marketplace of ideas nor increase or improve consumers' choices. These speculators profit at the direct expense of consumers and risk-taking inventors and investors.
Wrong. Many inventors must rely upon patent enforcement firms, as they do not have the resources to practice their inventions, and infringing corporations more often than not refuse to negotiate patent licenses, relying upon their overwhelming financial resources to crush inventors in legal costs. Besides, patents are a commodity (that's why they are called "intellectual property"), subject to free trade; only a fascist would want it otherwise.
November 27, 2007
Coase, the Internet, and a Market for Ideas
The Internet is changing the economic costs and benefits of many activities in our society. The economics of innovation are changing too. The result could be the emergence, for the first time in history, of an efficient market for ideas.
November 20, 2007
Taxing Patent Reform
Another bullet dodged as the Patent Reform Act of 2007 crumbles to dust; three years' running of the Senate failing to do something really stupid about patents; the House, being ever slightly more craven to special interests, had no trouble wallowing to the lowest common denominator of patent idiocy. Post-grant opposition and damages apportionment were the Senate's statutory showstoppers. So, not this calendar year, it seems, but expression of commitment for patent reform simmers in the Senate before the 110th Congress checks out. What's getting a real head of steam is scratching out tax patents.
November 15, 2007
In facilely reasoned tones, Cisco general counsel Mark Chandler pleads in the San Francisco Chronicle for indulgence to pass sorry legislation gutting patent enforcement. Simple logic, and history, defy the stance of those serial infringers who would denigrate patents and rig the system to their advantage.
November 14, 2007
Barack Obama, a former law professor, still a first-term senator, and now a reputedly charismatic but greenhorn presidential candidate, supports patent extravagance and band-aids: gold-plated patents, and a new post-grant opposition proceeding by the PTO. The more robust idea of an overall better examination regime via turfing out the clowns now running the show either hasn't occurred to him, or isn't splashy enough.
November 13, 2007
The patent police state known as the USA is enshrined in the Constitution: sovereign immunity. The 11th amendment immunizes those sanctioned by the State from infringement accountability. Example: the University of California is an 800-pound patent gorilla that can't be touched, but gets all the bananas it wants.
November 9, 2007
Opposition to Opposition
The United States currently has a sufficient open-ended post-grant opposition process in the form of inter partes re-examination. So, does the proposed statutory reform for a different protocol make sense? Dale Carlson in the National Law Journal: "The recent experience of three Asian countries that have implemented, and subsequently abolished, patent opposition systems signals a resounding 'No.'"
November 8, 2007
Thirty-one venture capitalists wrote Senators Leahy and Specter, opposing major portions of the Patent Reform Act of 2007: damages apportionment; open-ended open-season post-grant challenge; and lowering the standard for inequitable conduct.
Posted by Patent Hawk at 10:12 AM | The Patent System
November 6, 2007
The clock runs low on the Senate shoveling the shyst numbered S. 1145. Heavy heels dug in on both sides, a bridge between nowhere in sight. "Damages apportionment" rightfully is the big stalemate. As in the past two years, statutory patent deformation withers on the vine of irreconcilable contention.
Posted by Patent Hawk at 12:06 PM | The Patent System
November 5, 2007
High-tech Goliaths who routinely flaunt the law by abusing their market power are consistently rebuked for regarding themselves as being "above the law" - and justifiably so. The Patent Reform Act now up for vote in the U.S. Senate is but the latest blatant example of how Goliaths are wielding their power to smother innovation. Indeed, the Goliaths seek a major overhaul of our patent system that would pave the way for them to roll over competitors by misappropriating their intellectual property.
Posted by Patent Hawk at 9:40 AM | The Patent System
October 30, 2007
Economist Pat Choate has produced a research paper for the U.S. Business and Industry Council (USBIC), examining "the arguments in favor of patent “reform” that are being spread by the Coalition for Patent Fairness (CPF), the organization representing Big Tech corporations on the issue." USBIC President Kevin Kearns asks the large-issue questions:
These Big Tech multinationals were themselves start-ups with a few patents and a few dreams not that long ago, and do not need to alter the U.S. patent system to conform to their business model at the expense of other models. Simply put, do some of the most profitable corporations in America need to add marginally to their bottom lines by undermining the patent protections that a full range of other companies depend upon for their livelihood – not to mention their employees? Having made it to the top, should they be permitted to deny the next generation of small technology innovators the opportunity to climb the American ladder of success?
October 27, 2007
Twenty months ago in your role as the Solicitor for the United States Patent and Trademark Office you addressed the Bar Association of the District of Columbia; you spoke against a statutory elimination of excessive continuations applications because of an Agency "bubble" problem, while asserting that the Congress would clearly support repeal of multiple continuing applications – that your former Agency is now eliminating through rulemaking you helped craft in your former role.
October 26, 2007
Beyond Black Thursday
Hal Wegner on the bigger picture:
The Continuation Rules are the current focus of attention absorbing the attention of the patent community - will "Black Thursday" actually transpire next week, November 1st, when the Continuation Rules are scheduled to take effect? Will there be a preliminary injunction to block implementation? What, ultimately, will the Federal Circuit say about all this?
October 24, 2007
The Innovation Alliance squared off with the Coalition for Patent Fairness today. Chorused together, the sound is a keening for change, but not the slop that sits on top of S. 1145, the Senate companion to H.R. 1908.
Posted by Patent Hawk at 11:51 AM | The Patent System
Hockey Helmets and Patent Markets
What do patent owners have in common with hockey players?
October 23, 2007
Bruce Sewell, Intel general counsel, wailed in Washington Monday about "people who buy up patents for the purpose of litigating them. We're not talking about individual inventors who sue for patent infringement. We're talking about patent speculators who warehouse patents and use those patents to go after successful companies."
October 13, 2007
The Patent Reform Act of 2007 carries an effective presumption of patent agency incompetence by offering a post-grant opposition challenge, a more hellish version of the current reexamination action that works just fine. An innocent inventor with a newly minted patent faces a corporation hell-bent on taking the patent out of the picture, so the corporation files a post-grant opposition, a process that ties up the patent for five years or more while costing the inventor up to a half million dollars to defend his patent grant; not a cheery prospect many inventors could afford.
October 12, 2007
In a woe-is-us shuck-and-jive press release, the same folks that'd have you think ethanol from corn is a good idea want the Patent Reform Act of 2007 to pass as a means of eviscerating patent enforcement. "American Corn Growers Association (ACGA)... does not oppose new technology such as GMOs, but we must... level the playing field for small farmers." Leveling the playing field means getting the same subsidy for infringing intellectual property that corn farmers receive for growing their crops in the first place; looking to Uncle Sam for another hand-out. That's why it's called "free enterprise."
October 2, 2007
Steve Perlman is a Silicon Valley computer maven, who helped colorize the Macintosh back in 1986, and invented WebTV. In the British online publication The Register, whose byline is "Biting the hand that feeds IT," Perlman extols the reality of the Patent Deform Act of 2007: "This is isn't pharm versus high-tech. This is people who need patents versus people who don't need patents." That includes those in the Coalition for Patent Fairness, a corporate lynch mob who'd rather be free to steal IP than have license to protect it.
September 12, 2007
Seems as if Rep. Howard Berman pulled out all the stops to get H.R. 1908 passed. Berman reportedly nudged the opposition with gentle persuasion: "This is very important, and you have other stuff in front of me." Democracy at work. Read the full report from Lawrence Ebert at IPBiz.
Posted by Patent Hawk at 8:34 AM | The Patent System
September 8, 2007
Watch the Gobblers
With the House having dumped its patent load, aka passed H.R. 1908, eyes roll to the Senate, to watch how S. 1145 fares, the Senate counterpart. Hal Wegner prognosticates in emphatic italics: "It is absolutely certain that H.R. 1908 as passed by the House will never be finally enacted into law without significant amendments. Passage of a differently worded bill in the Senate as S. 1145 or some future or amended bill would then lead to a Conference or other means for creation of a common bill."
Posted by Patent Hawk at 5:44 PM | The Patent System
September 7, 2007
Through A Goose
The House approved H.R. 1908, 220-175. Rep. Howard Berman, D-California, a lead sponsor, honked: "The moment is ripe to move the patent system forward to meet the challenges of the 21st century. Serious flaws have to be fixed for our system to remain robust now and long into the future."
On the Floor
H.R. 1908 is scheduled to be wheeled on the floor for all to view and comment; one hour of debate allotted. Here is a fresh legislative bulletin listing last-minute tweaks.
Posted by Patent Hawk at 11:29 AM | The Patent System
September 6, 2007
In a statement of administration policy, the White House calls the apportionment of damages portion of H.R. 1908 "unwarranted and risks reducing the rewards from innovation." Otherwise, niggling concerns aside, it's pretty much along for the ride.
Posted by Patent Hawk at 3:30 PM | The Patent System
The House vote on H.R. 1908, the Patent Reform Act of 2007, is scheduled for Friday, but rumors are flying that the Democratic leadership will pull the bill because of voiced opposition by organized labor. Trepidation is palpable.
Posted by Patent Hawk at 11:29 AM | The Patent System
September 4, 2007
The Washington Post summarizes the polarity between serially infringing computer companies and patented-up big pharma towards the Patent Reform Act of 2007. The House is expected to take up the patent cudgel this Friday, while the Senate lolls. The Congressional Budget Office thinks the cost impact on the government of the Act would be "negligible," and that's as far as they care to peruse. Meanwhile, James Malackowski, CEO of patent broker Ocean Tomo, reminds what's at stake.
September 2, 2007
In the Know
If there is any single interest group sincerely interested in a quality patent regime for its own sake, as point of professional pride, it is patent examiners. POPA, the examiners' professional organization, is firmly against the Patent Deform Act of 2007.
What is most significant is that no one in Congress thought to ask POPA, as the statutory sausage had been stuffed by bribes from geek boys in the computer biz who just want to get on with da bidness of intellectual property theft, and paying no mind, or tab, for doing so.
August 31, 2007
The Patent Reform Act of 2007 is all but defunct. Yesterday, leading House Republicans wrote Nancy Pelosi, House Majority Leader, and solicitously requested to knock it off. It's all over but the lobbying.
Posted by Patent Hawk at 2:00 PM | The Patent System
August 27, 2007
In a letter to Sen. Harry Reid, Senate Majority Leader:
IEEE-USA, which represents the interests of more than 215,000 engineers, scientists and allied professionals in the U.S., opposes the Patent Reform Act of 2007 (S. 1145). We believe that much of the legislation is a disincentive to inventiveness, and stifles new businesses and job growth by threatening the financial rewards available to innovators in U.S. industry. Passage of the current patent reform bill language would only serve to relax the very laws designed to protect American innovators and prevent infringement of their ideas.
The bipartisan money-grubbing-from-IT-corporate-lobbyists legislation commonly known as the Patent Reform Act of 2007 is "hitting resistance," according to the Wall Street Journal, "because of concerns the U.S. might be exposed to greater foreign competition." It seems that some members of Congress have been reading The Patent Prospector, and more ought to.
August 24, 2007
Bifurcate the Patent System?
Patent Hawk and I both believe in the value of the patent system for the United States. More specifically, I don't think it absurd to suggest that the phenomenal industrial growth we've seen in the United States since the 19th century has been due in part to the incentives created by the patent system. Where Patent Hawk and I may disagree, however, is on the question of whether uniformly stronger patents are good for our economy. In particular, I believe that the recent Supreme Court cases and PTO rulemaking cutting back at the scope of patent protection may be beneficial for some high-growth markets in our economy.
August 20, 2007
David Vandagriff of Helius figures that the major players in the push for "patent reform" realize a net gain if patent enforcement is gutted: "None of the major backers of the current patent reform legislation have any real stake in improving the patent system. Microsoft, Intel and Cisco don't owe any of their success to the patent system. Each of these companies grew large without relying on patents to do so. While they may currently have patent portfolios, these companies have created and maintained those portfolios for defensive purposes."
August 19, 2007
Patent bill jeopardizes life sciences innovation
Sidney Taurel of Eli Lilly writes in the Indianapolis Star: "The Patent Reform Act of 2007 would greatly limit the damages many inventors could receive when their patents are violated, and create a new administrative process for attacking patents via the U.S. Patent and Trademark Office - without court protection."
August 17, 2007
Worldwide Patent Picture
The World Intellectual Property Organization (WIPO) has released its 2007 edition of worldwide patent activity, with built-in pendency: the report covers 2005 and earlier. The upshot - "Trends in patent activity are a reflection of the transition currently occurring in worldwide industrial activity. Very high growth rates in the use of the patent system can be observed in North East Asian countries, particularly the Republic of Korea and China."
Posted by Patent Hawk at 9:23 PM | The Patent System
August 4, 2007
This Pendulum Swing
Once upon a time, erstwhile inventive companies grew fat, smug, and arrogant. Though a few created revenue streams from patents, all were constantly pestered with infringement assertions. Mega-corporations banded together, finding common cause in pouring money into poisoning the patent well - trying to gut patent enforcement, make the so-called "sport of kings" an even higher-stakes "spoils of the mighty."
July 31, 2007
For the Hoopleheads
The number of patent cases and the size of damages and settlements in the United States in just the past few years have been staggering. Without desperately needed reform, our patent system will continue to be a burden on our courts and our nation's top employers — putting at risk innovative technologies, our nation's economic growth and good-paying jobs.
Even the U.S. Supreme Court has recognized these problems. The justices themselves widely criticized the current system. Chief Justice John Roberts called it "worse than meaningless."
With so much at stake, Congress should stand on the side of innovation and working families and pass the Patent Reform Act.
- Mr. Ted Clark, senior Vice President at Hewlett-Packard, in the Houston Chronicle
The KSR Trend
KSR is taking a mounting toll on patents and patent applications. To soon for hard statistics, but the trend is palpable. The Wall Street Journal today notes the killing fields that courts are becoming in patent litigations. The patent office has become an obviousness connoisseur, savoring the many ways of snuffing applications like wind-blown candles, based on KSR-provided attack angles.
Posted by Patent Hawk at 1:26 AM | Litigation
July 28, 2007
Some patent infotainment in today's Wall Street Journal letter page, as David Vandagriff of Helius gets his licks in on Bruce Sewell, Intel patent clown, for being such a corporate slut. On the same page, James McKeown writes like he has a head on his shoulders, until he suggests "eliminating the District Court in the Eastern District of Texas, which has made a booming cottage industry out of encouraging patent infringement litigation."
Posted by Patent Hawk at 1:37 AM | The Patent System
July 26, 2007
Laboring over Patent Reform
The AFL-CIO, taking the manufacturing industries view, writes a letter to the Hill on the Patent Reform Act of 2007, hitting the high points of what's wrong with the bill.
Posted by Patent Hawk at 8:12 AM | The Patent System
July 23, 2007
Silk Purse from a Sow's Ear
The Patent Reform Act of 2007 is hopefully too wretched and controversial to become law, but it has laid out a trough for the swine known collectively as the Congress of the United States. As one onlooker observed, "The controversy certainly is a good income stream for the politicians." Invitations are flowing to interested parties to attend breakfasts and receptions at $1,000 on up, for the chance to hobnob for a moment with an esteemed Senator or Congressperson, mouthing patent-reform-this or patent-reform-that to a pair of deaf ears attached to a fattening piggy bank.
Posted by Patent Hawk at 2:44 PM | The Patent System
Manufacturers in foreign countries, particularly export engines China and India, are savoring the prospect of the Patent Reform Act of 2007 becoming law, particularly provision for cheap post-grant assault, as it entangles patent holders with invalidity challenges at no risk and at lower cost than litigation. The Economic Times gives Indian drug companies a heads-up that "patent reform is beneficial to Indian companies, as they are usually not patent holders, and are often excluded from the US market by the threat from weak patents."
Posted by Patent Hawk at 2:09 PM | The Patent System
July 20, 2007
Is the House getting it right on patent reform?
July 18, 2007
Moving towards passage, the full House Judiciary Committee unanimously tossed the Patent Reform Act of 2007 to the House floor earlier today, while the Senate debates the legislation today, with upshot tomorrow.
A number of computer technology companies, ongoing targets for infringement suits, coalesced into lobbying groups, including the Coalition for Patent Fairness and Business Software Alliance; hankering to elude patent enforcement, they are delighted with the bill's progress. "Today's successful mark-up demonstrates Congress’ seriousness in dealing with the overwhelming need for balanced and comprehensive reform," tooted Jonathan Yarowsky, counsel to the Coalition for Patent Fairness.
Other companies that rely upon patents for their business model, including cell phone innovation gnome Qualcomm, and major pharmaceutical & biotechnology companies, are askance. Kevin Kearns, president of the U.S. Business and Industry Council, ostensibly on behalf of the manufacturing sector and small companies, tore into the haste of passing the Act, calling it "a rush project... that could cripple American innovation."
Posted by Patent Hawk at 2:26 PM | The Patent System
July 15, 2007
In Over His Head
"Today, over all, patents don’t work." Today's New York Times patent dribble is by word jockey Michael Fitzgerald, who knows nothing about patents, but helps pay the mortgage by penning an article reporting research by other guys who know nothing about patents. The fly in the ointment of the article is confusing statistics with reality: there is no "over all" to patents "working".
July 13, 2007
The Patent Prospector was forwarded a perspective on restricting venue for patent litigation in yesterday's markup of the Senate version of the Patent Destruction Bill of 2007.
Posted by Patent Hawk at 7:42 PM | The Patent System
[T]here are powerful forces, especially in the electronics industry, that would dramatically change, if not destroy, the patent system that has served us so well for over 200 years. [Proposed in the legislation is] a new review process, allowing for challenges to patents that have already been granted. The leverage this would give to large companies with an array of lawyers is evident. Small inventors will be harassed and bogged down until they eventually surrender to deep-pocketed opponents.
[T]he legislation being foisted upon us... has nothing to do with fixing the system. It has everything to do with weakening the rights of the small inventor, using problems at the Patent Office as a screen to mask this power play.
Why is this happening? The electronics industry does not want to pay royalties. That's really the bottom line.
Posted by Patent Hawk at 7:25 PM | The Patent System
July 12, 2007
Bruce Sewell, senior VP and general counsel of Intel, assumes the missionary position in the Wall Street Journal: "The number of questionable, loosely defined patents is rising." Try that on anyone knowing the examination rigor now applied at the USPTO, and see the response: "what planet did you drop in from?" Is Sewell a shill, knowingly peddling patent propaganda, or just ignorant?
Posted by Patent Hawk at 12:03 PM | The Patent System
July 4, 2007
Strong, balanced patents are an American innovation
"Abusive patent litigation and low patent quality are stifling innovation. One questionable patent can restrict innovation and competition. Why innovate or take the entrepreneurial risk of making products if it just increases the risk of costly litigation?"
Posted by Patent Hawk at 2:25 AM | The Patent System
June 21, 2007
Rushed & Wrong
Kevin Kearns at the Washington Times tells us what he really thinks about the proposed Patent Reform Act of 2007: "patent nonsense [that] has suddenly become a rush project in the Senate and House committees of jurisdiction."
Posted by Patent Hawk at 11:42 AM | The Patent System
June 20, 2007
Smelling blood in the water, sharks circle the wounded whale known as the Patent Reform Act of 2007, S. 1145 and H.R. 1908. Over 200 organizations write Judiciary committee chairmen and leading committee members of both houses to exclaim the need to erase major proposed changes to current patent law.
June 18, 2007
For all the pontificating he is doing, hyperactive CAFC Chief Judge Michel might want to consider blogging.
Posted by Patent Hawk at 12:07 AM | The Patent System
June 13, 2007
A couple of nails showed up near the coffin of the Patent Reform Act of 2007, placed by CAFC Chief Judge Paul Michel, who is turning into quite the patent mover and shaker (last month's letter). Michel's keyboard begs to type the adjective "stupid" in describing the proposed revision to § 284 on damages, something Michel himself parlays with but a tad more reserve.
Posted by Patent Hawk at 4:15 PM | Damages
June 11, 2007
A majority of the Republicans on the Senate Judiciary Committee - Coburn, Grassley, Kyle, Sessions and Brownback, wrote Senate Judiciary Chairman Leahy and ranking committee Republican Arlen Specter, observing that last week's hearings rendered obvious that the Patent Reform Act of 2007 is badly done.
Posted by Patent Hawk at 5:25 PM | The Patent System
June 10, 2007
WSJ on Patents
Pro-get-on-with-the-business organ The Wall Street Journal made bird noises about patents Saturday: hooting at the ITC injunction against Qualcomm, and squawking about patent battles.
Posted by Patent Hawk at 12:06 AM | The Patent System
June 6, 2007
Not Its Time
Single-mindedness was not on the agenda. Legislation in the making, and only the sausage maker beams and winks knowingly as too many patent chefs stir the gumbo. The thankful result of today's Senate hearing is watching the Patent Reform Act of 2007 appear the statutory tub of lard that it is.
Posted by Patent Hawk at 8:22 PM | The Patent System
May 23, 2007
On May 3rd, Chief Judge Paul Michel at the Court of Appeals for the Federal Circuit (CAFC) wrote Senators Leahy & Hatch on two issues in the Patent Reform Act of 2007, specifically, interlocutory appeals, and apportioning damages; bad ideas, pens Michel.
Posted by Patent Hawk at 12:54 PM | The Patent System
May 17, 2007
Between the Lines
John Sullivan, General Counsel of the U.S. Department of Commerce (DOC), has penned a note of support for its child, the patent office, and sent it off to those good folks on the Hill considering patent reform.
Posted by Patent Hawk at 12:22 PM | The Patent System
May 15, 2007
Urging A Rethink
A group of 111, the Innovation Alliance, oriented towards biotechnology companies, but representing a variety of viewpoints, voices concern to Congress that significant portions of the Patent Reform Act of 2007 are wrong-headed.
Posted by Patent Hawk at 5:00 PM | The Patent System
May 14, 2007
The Dynamics of Obviousness
The Supreme Court ruling in KSR v. Teleflex unleashed wide-ranging dynamics: diminishing the value of patent portfolios, helping and hurting start-up companies, and promoting generic drugs.
Posted by Patent Hawk at 10:30 PM | The Patent System
May 11, 2007
Belying its own legislative heritage, the bipartisan Patent Reform Act of 2007 grossly complicates patent infringement compensation, moving from the current reasonable royalty to an outrageous conjecture for a damages award "applied only to that economic value properly attributable to the patent’s specific contribution over the prior art." This economist throws his head back in laughter at this little obscenity of insensibility, reminiscing about the scalding apportionment suffered over 60 years ago.
Posted by Patent Hawk at 12:01 AM | Damages
May 7, 2007
Keeping the Software Down
In spite of the Supreme Court broadly opining in 1980 that "anything under the sun made by man is patentable," the SCOTUS ruling in Microsoft v. AT&T on April 30 was designed, from a patent standpoint, to maintain relegation of software as a second-class technology.
Posted by Patent Hawk at 8:31 PM | Case Law
April 28, 2007
The Patentability Bar & Recourse
Hal Wegner figures the problem with junk patents is not that they are occasionally granted, which is inevitable, or that the bar of patentability is too low (it isn't), but that the adjudication of patents is an expensive crap shoot. The crap shoot owes to the lack of a dedicated patent court. Barring judicial reform, Hal contemplates post-grant review as a reasonable stop-gap.
Posted by Patent Hawk at 8:13 PM | The Patent System
April 27, 2007
Sausage in the Making
Hal Wegner reports on yesterday's patent reform hearing: Before an overflow hearing room on an internationally available web broadcast, Chairman Howard Berman of the House Judiciary Subcommittee relevant to patents hosted a most informative and candid hearing yesterday afternoon joined by roughly ten of his committee colleagues, including Rep. Dan Issa, undoubtedly the most patent-interested member of Congress in some time (and like Abraham Lincoln an inventor-user of the patent system).
Posted by Patent Hawk at 12:08 PM | The Patent System
April 19, 2007
Patent Reform Act of 2007
A unified, bipartisan Patent Reform Act of 2007 emerged from both the House & Senate yesterday. Much of it is an improvement, but a bit of it is an abortion of sensibility.
April 17, 2007
Patent Reform Principles
Numerous vested interests vie to skew statutory patent reform, many aimed at advancing parochial self-interest, all the while advertising the guise of equity. But, if equity and practicality were the goals, what principles should guide patent reform to realize the Constitutional mandate, and what are the implications of those guiding principles?
Posted by Patent Hawk at 1:28 AM | The Patent System
April 15, 2007
In IP Law 360, patent prosecutor Scott Harris of Fish & Richardson hammers against the U.S. harmonizing its patent laws with other countries, especially against enhancing the certainty of patent enforcement and minimizing litigation cost.
United States patent law has a goal of protecting the inventor and the invention - no matter how much that protection will complicate the patent system.
Posted by Patent Hawk at 12:32 AM | The Patent System
April 4, 2007
The appeals court SanDisk ruling regarding declaratory judgment has a least one commenter consternated. David Fox of Fulbright & Jaworski whines in IP Law 360: "SanDisk is likely to have a very strong adverse impact on small technology companies and universities that may not have the means to defend their patents in declaratory judgment actions. The decision will likely result in the inability of of such patentees to license patents, especially to large companies. This could have a profoundly negative effect on the development of technology in the United States." If there's a kernel of truth in Fox's Chicken Little declaration, it's good news disguised as bad news.
Posted by Patent Hawk at 12:09 AM | Patents In Business
March 29, 2007
Merck sued Hi-Tech Pharmacal for patent infringement. Hi-Tech replied: patent expired. Merck said it had an extension, and the district court agreed. So Hi-Tech appealed (CAFC 2006-1401). The CAFC ruled:
[As to] whether a patent term extension under the Hatch-Waxman Act, 35 U.S.C. § 156, may be applied to a patent subject to a terminal disclaimer under 35 U.S.C. § 253, filed to overcome an obviousness-type double-patenting rejection[: b]ecause the language of § 156 is unambiguous and fulfills a purpose unrelated to and not in conflict with that of § 253, we hold that a Hatch-Waxman term extension may be so applied.
Posted by Patent Hawk at 11:23 AM | The Patent System
March 28, 2007
IBM IP suit David Kappos mealymouths patent reformist sentiments, hard-pedaling statutory patent reform with soft-core reasoning. BusinessWeek's latest pro-corporate missive: It's Time for Patent Reform. Computer technology anti-patent sycophants at least may eat this up.
Posted by Patent Hawk at 12:37 AM | The Patent System
February 19, 2007
Bernard Bilski helped the USPTO set up an appeals court review of statutory subject matter - 35 U.S.C. §101. Bilski claimed a method of economizing in managing risk; more simply, simply a method of doing business. Self-admittedly, the claims aren't tied to any physical structure, don't recite a transformation of matter, nor even of computer data. The patent appeals board rejected Bilski's claims as unpatentable. A case with considerable intrigue, it raises the question of whether the patent office is attacking its pendancy problem by attempting to scotch business method patents.
Posted by Patent Hawk at 5:13 PM | § 101
February 14, 2007
In case you missed it, Kevin Noonan's blog post yesterday "Science Fiction in The New York Times," about Michael Crichton's NYT op-ed folly, is highly recommended. Related is H.R. 977, intended to stop genetic patents; coverage by Stephen Albainy-Jenei at Patent Baristas.
Posted by Patent Hawk at 2:24 PM | The Patent System
February 12, 2007
Patent Reference is a new site that aims to be a smorgasbord patent reference. The site is currently in beta, and it shows. Hopefully the user interface will mature.
Posted by Patent Hawk at 12:14 AM | The Patent System
February 8, 2007
Patent Reform (Again)
In a retread of the Patent Reform Act of 2005, the U.S. Congress House Judiciary Committee is holding a hearing on patent reform next Thursday (Feb. 15). Though basically a revisiting, the differences between now and 2005 is that Democrats are now in charge, and something may get passed.
Posted by Patent Hawk at 10:38 PM | The Patent System
January 30, 2007
The Patent Troll Myth
Emory law student James F. McDonough III has written an excellently researched paper on patent licensing companies, titled "The Myth of the Patent Troll: An Alternative View of the Function of Patent Dealers in an Idea Economy."
Posted by Patent Hawk at 1:18 AM | The Patent System
January 7, 2007
Bioprospecting is back in the news, with maca as the spearhead (pun intended). Maca is supposed to boost stamina, particularly sexually. Why would anyone be interested in such a thing?
Posted by Patent Hawk at 3:50 PM | The Patent System
January 6, 2007
IncreMentalAdvantage offers seminars on different aspects of the patent game, including litigation and overall patent strategies, IP valuation & patent monetization. The seminars are geared towards corporate IP counsel; fitting, as law firm attorneys benefit from understanding that perspective, as well as the conferences offering networking potential for prospective clients and service providers.
Posted by Patent Hawk at 12:28 AM | The Patent System
January 1, 2007
Injunctive relief, extraterritoriality, claim construction review, patent monetization, prosecution ways and means, and getting drugged are patent events and trends to watch for in 2007.
Posted by Patent Hawk at 1:07 PM | The Patent System
December 2, 2006
The Coalition for Patent Fairness
My email box on Thursday had two quite contrasting emails: one from The Coalition for Patent Fairness, a corporate lobbyist group for self-interested "patent reform;" and, in harsh rebuttal, Ron Riley of The Professional Inventors Alliance.
Posted by Patent Hawk at 5:58 PM | The Patent System
November 3, 2006
The Media Trap
Paul McDougall of Information Week gets the Bad Patent Article of the Week award. Congratulations Paul! Paul titled his little ditty, "How To Avoid The Patent Trap," but of course the article isn't about that; it's a hodgepodge of Paul's confusion, carping, misinformation, and miscellaneous tidbits, with, admittedly, a couple worthy paragraphs. Let's get bitchy...
Posted by Patent Hawk at 4:30 PM | The Patent System
October 2, 2006
Rocket Docket Bill Passes House
H.R. 5418, for a pilot project of throwing spare change at federal district courts to streamline patent litigation, passed by voice vote in the House today.
Posted by Patent Hawk at 3:20 PM | The Patent System
September 13, 2006
Rocket Docket Stuck on the Launch Pad
After revisions following a July markup, Rep. Issa's rocket docket patent bill passed the House Judiciary Committee unanimously Wednesday. But it's unlikely to become law this year, because the Senate companion bill, shepherded by Sen. Orrin Hatch, is a sleeping sheep.
Posted by Patent Hawk at 10:46 PM | The Patent System
August 21, 2006
Sailing Towards Patent Reform
The strongest push for patent reform came from large computer technology companies; as serial patent infringers, troubled at continually facing the prospect of injunctions granted by the CAFC nearly automatic like a dog. The solution worth bribing for - get Congress to pass a new law gutting patent enforcement. Then came the Supreme Court in eBay v. MercExchange, "case law" being the accurate euphemism, which took the wind out of the sails for legislative patent reform.
August 9, 2006
Protecting its Own
By the power of the XI Amendment to the Constitution, the United States indemnifies its states. Protected by the Constitution, a state may infringe a patent without practical remedy afforded the patent holder, the Federal Appeals Court affirmed today (05-1440).
Posted by Patent Hawk at 11:57 AM | Case Law
August 5, 2006
Senate Patent Gutting Bill
Anne Broache of CNET News.com waxes optimistic by reporting that "the U.S. patent system could be inching closer to an overhaul long desired by the technology industry," but otherwise gives a good synopsis of the dead-on-arrival Hatch-Leahy bill, which seeks to eviscerate patent enforcement. Could be a good calling card to solicit campaign contributions, but thank goodness these corporate toads' efforts are for naught, at least this year.
Posted by Patent Hawk at 11:18 AM | The Patent System
July 15, 2006
Tax Patent Hearing
At the House Ways & Means Select Revenue Subcommittee hearings Thursday over tax patents, USPTO mouthpiece, General Counsel James "The Mouse That Roared" Toupin said, in essence, "not our problem."
Posted by Patent Hawk at 12:00 AM | The Patent System
July 12, 2006
PTO Web Chat Snafu
Today's intra-patent office news: "Because of technical difficulties with our software program, today's web chat on telecommuting programs with Under Secretary Dudas was suspended." Over 300 people had logged in for today's chat.
Posted by Patent Hawk at 7:24 PM | The Patent Office
July 11, 2006
The House Ways & Means Select Revenue Subcommittee is holding hearings Thursday into patents claiming tax processes. The worry is whether such patents contribute to tax avoidance (as in: duh), and whether it could make the IRS's job of blocking tax shelters more difficult.
Posted by Patent Hawk at 10:19 PM | The Patent System
May 28, 2006
Patent Crisis of the 1830s
David French, an Ottawa patent attorney for Milton, Geller, has written a fascinating paper on the U.S. Patent Crisis of the 1830s, historical continuity, and parallels to today's patent reform issues.
Posted by Patent Hawk at 1:45 PM | The Patent System
May 23, 2006
Rocket Docket Bill
H.R. 5418 arrived late last week, aimed at improving patent jurisprudence at the trial court level.
Posted by Patent Hawk at 12:40 AM | The Patent System
May 10, 2006
Andis Kaulins has declared "A Constitutional Chaos" over granting patents for high-tech inventions. "Software patents... are garbage." The patent office is "clueless," as is the entire U.S. legal community, including Congress and the courts.
May 6, 2006
Trolls, Toads & Rats
Some weekend rambling about patent trolls, toads and rats, beginning with patent troll James Fergason, aiming to help other patent trolls. Way to go James.
April 2, 2006
Both Sides Now
Lorraine Woellert stirs a patent gumbo in her March 31 BusinessWeek "news analysis" of eBay v. MercExchange. "Patent trolls don't get much sympathy -- except maybe from the Supreme Court." Is Lorraine suggesting the heresy that lack of sympathy for patent trolls is misplaced? That patent trolls deserve the same legal rights as any patent owner?
Posted by Patent Hawk at 12:01 AM | The Patent System
March 22, 2006
Founding Father Foolishness
Law professor Adam Mossoff has written an excellent, well-researched paper: "Who Cares What Thomas Jefferson Thought About Patents: Reevaluating the Patent "Privilege" in Historical Context" (available here).
Posted by Patent Hawk at 1:19 AM | The Patent System
March 13, 2006
Mercury is the planet closest to our sun; very hot. Hotheads from Mercury immigrated here, settling in hot and sunny San Jose, California, and started their own news organ: The Mercury News. Having been on Earth for a while now, the hotheads are starting to form opinions, often not very good ones.
Posted by Patent Hawk at 9:53 AM | The Patent System
March 11, 2006
"[P]atents don't stimulate innovation; they stifle it. The notion of "intellectual property rights" is spurious. The principle of property is needed for physical objects because they are finite; hence property rights prevent conflicts over the use of things. But ideas can be reproduced infinitely and used simultaneously without conflict. Hence, as Thomas Jefferson realized, "Inventions then cannot, in nature, be a subject of property."" [from The Free Liberal, March 9, 2006]
Posted by Patent Hawk at 12:30 AM | The Patent System
March 2, 2006
The Blame Game
Awakened from my slumbers reporting settlements between patent-laden computer companies and a Supreme Court ruling that patents by themselves weren't so great as to grant market power, I find blogging attorneys bit by Wall Street Journal venom.
Posted by Patent Hawk at 10:32 AM | The Patent System
February 25, 2006
Patent Trolls Feed on Technology
It must be true. I saw it on TV. CBS News got the skinny on how the patent system is broken, resulting in patent trolls pillaging companies with their patents on "technology ideas." Say it ain't so.
Posted by Patent Hawk at 12:07 AM | The Patent System
February 22, 2006
Patent Office Blows Patent Reform Raspberry
Patent Commissioner John Doll's viewpoint on the need for Congress to pass patent reform legislation: no thanks, we've got it under control. To patent applicants, Doll says: "do some work for us."
February 14, 2006
The Fountain of Junk Patents
Got a call from a U.K. solicitor (attorney) for a prior art search. Any art up to the day before the patent filing date would invalid the patent. By comparison, what we quaintly regard as prior art is a statutory sham designed to create junk patents, particularly in rapid-development industries such as software. The U.S. patent emperor is scantily clad, and Congress is the tailor.
Posted by Patent Hawk at 12:05 AM | The Patent System
February 13, 2006
Jackson Lenford of Right to Create bemoans that the USPTO is the only U.S. government agency to make a profit, and will be allowed in FY2007 to keep what it earns. "If... the USPTO relies only on funding from patent applicants, it is beholden to no one but patent holders, and becomes the poster-child example of regulatory capture." The only capture in this is a mind like a steel trap.
Posted by Patent Hawk at 1:47 PM | The Patent System
February 6, 2006
U.S. Patent Court
Rep. Darrell Issa (R-Ca) is mulling a patent trial court for the United States. Britain established its Patent County Court in 1988, and Japan set up its Intellectual Property High Court in April 2005. The European Commission is contemplating a continent-wide patent court system. Should the U.S. follow suit?
January 6, 2006
Patent Reform Coming Together?
Divergent legislative styles in the U.S. House & Senate may dim the prospect of patent reform legislation passage in 2006.
Posted by Patent Hawk at 12:07 AM | The Patent System
December 21, 2005
BeavisWeek seems dedicated to publishing absurd opinions about patents. This week's scatological blunder, "Cutting Through the Patent Thicket", is by Greg Blonder, who claims to have grown up with patents, but still doesn't seem to understand them.
December 16, 2005
Ivory Tower Patent Reform
Three law professors have proposed a bifurcated quality patent examination system: vetted and niggardly.
December 4, 2005
Patent Ignorance Pending
The L.A. Times had, as one of its unsigned Sunday editorials, "Patent Sanity Pending". Let's pick apart the foolish presumptions therein.
December 3, 2005
The prospect of passage of the Patent Reform Act of 2005 will soon expire with the year-end congressional recess, but the impetus for patent reform won't. One driving force is the myth that the current patent system retards innovation by granting bad patents. The issue to address is not an imbalance between promoting innovation and protecting the rights of patent holders, it's in strengthening patent validity by reducing uncertainty.
November 11, 2005
The Patent Reform Act of 2005 proposes provisions that would change the granting of patents from the so-called first-to-invent system to a first-to-file system. The first-to-file provisions of the Act violate Article I, Section 8, Clause 8 of the United States Constitution, which limits Congress to granting patents only to "Inventors". A system enacted by Congress for granting patents to anyone other than a good faith inventor would be unconstitutional.
September 16, 2005
Patent Reform Under Attack
The Patent Reform Act of 2005 took flak in Congressional hearings on Thursday.
Posted by Patent Hawk at 12:07 AM | The Patent System
September 6, 2005
Courts are forced to interpret a law only because a law requires interpretation. In effect, the judiciary necessarily acts as a legislature when the legislature abdicates. Case in point: 35 U.S.C. §271(a).
Posted by Patent Hawk at 2:01 PM | The Patent System
August 31, 2005
Don't Fear Software Patents
Above is the title of an editorial in the August 30, 2005 Wall Street Journal by Bruce Lehman, former Commissioner of the Patent Office.
Posted by Patent Hawk at 12:26 PM | The Patent System
August 29, 2005
Trolls on the Hill
Webster's defines a troll from its origin in 1616 as "a dwarf or giant in Scandinavian folklore inhabiting caves or hills". Take a gander at Rep. Chris Cannon, a legislator on Capitol Hill.
The press is the fourth estate, one of the essential pillars of democracy in keeping the public informed. Let's check in on how the fourth estate is being tended in Salt Lake City.
August 24, 2005
What Patent Crisis?
At Progress & Freedom Foundation's (PFF) annual conference yesterday, Nathan Myhrvold, formerly chief technologist at Microsoft, now leading the charge at Intellectual Ventures, called off the dogs of patent reform.
Posted by Patent Hawk at 1:09 PM | The Patent System
August 1, 2005
The Patent Reform Act of 2005 may die a quiet death. Here's a well-written news update by Shawn Bullard of The Professional Inventors Alliance USA, published in the U.S. Newswire (reprinted with permission).
Posted by Patent Hawk at 4:58 PM | The Patent System
July 22, 2005
Unloading the Dice
How issues are framed determines the measures that Congress considers in legislation. Step one for political lobbyists is framing the issue, so as to ease the real task - swallowing the biased proposal for change. Biasing framing the issue leads to a connect-the-dots to the desired change (desired by the lobbyist's client). What a crooked game with loaded dice.
Posted by Patent Hawk at 12:02 AM | The Patent System
July 20, 2005
Oh Say Can You See
A Library of Congress report, titled Patent Reform: Innovation Issues, well researched and written by Wendy Schacht and John Thomas, is crucial reading for anyone interested in the U.S. patent system and reform thereof.
July 8, 2005
U.S. News & Jackass Report
U.S. News & World Report is an exemplary case study in American news periodicals, particularly its descent from being one of America's few respected "hard" news journals in the 1960's into something else entirely: "People" for business people, by the end of the 1970's. Of course, circulation and popular taste dictate success; hence the change in "tone". Decades later, the slide continues; at least some things are predictable.
Posted by Patent Hawk at 10:10 AM | Prosecution
May 15, 2005
The Constitutionality of Robbing The Patent Office
"The Congress shall have Power... To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;"
- U.S. Constitution, Article 1, Section 8, Clause 8
Posted by Patent Hawk at 2:23 PM | The Patent System
May 13, 2005
Did A Mid-90's PTO Hangover Incite Patent Reform A Decade Hence?
The evidence is anecdotal. Patent examination may have been particularly slack in the early to mid-1990s, which perhaps resulted in a rash of flimsy patent enforcement cases in the past several years that have incited catcalls for patent reform to remedy the granting of weak patents. But that stalking-horse is already back in the barn.
Posted by Patent Hawk at 12:02 AM | The Patent Office
May 10, 2005
A New Film Experience in Surreal-O-Vision
Microsoft U.K. is sponsoring a film festival on intellectual property theft, offering a £2,000 prize for the best film raising awareness on this very sexy topic.
Posted by Patent Hawk at 12:00 AM | The Patent System
May 9, 2005
A Modest Suggestion
The prospect of corporate-sponsored patent law mangling is weighing heavily on those who care about a fair patenting regime.
Posted by Patent Hawk at 1:43 PM | The Patent System
The Pith of Patents
With regard to patents, the Jedi mind-shit seems to have worked - there is widespread misunderstanding about the very nature of patents, gullible minds warped, the truth obscured by the propaganda of serial patent poachers - that is, frequent corporate patent infringers, who coined and cry "patent troll".
Posted by Patent Hawk at 12:01 AM | The Patent System
May 2, 2005
Patent Economics: Part 6 - The Importance of Patents
Before the 1500's, an average human's prospect for prosperity was stagnant. Beginning around 1820, the pulse of economic development quickened, with the Industrial Revolution in England coming into full stride. What changed?
Posted by Patent Hawk at 10:00 PM | The Patent System
April 28, 2005
Behind The Catcalls For Reform - Post-Grant Opposition
Corporate crusaders for patent reform seem to have political momentum for post-grant patent opposition through a so-called "administrative procedure", separate from infringement litigation. The obvious motivations are for infringers to short-circuit the infringement litigation process, become the plaintiff, and save themselves money, all at the expense of the patent holder. As an ace hole-card, it also weakens the commodity market for patents. Most significantly and insidiously, it corrupts the patent system.
Posted by Patent Hawk at 12:21 AM | The Patent System
April 27, 2005
Behind The Catcalls For Reform - Granting Junk Patents
There are two supportive bases for patent reform: 1) a presumption of junk patents - that is, that many granted patents are invalid in light of the prior art; 2) the cost of enforcement - actually, from the so-called corporate reformers' viewpoint, the cost of defense. In this installment, disabusing the notion that the patent office grinds out junk.
Posted by Patent Hawk at 12:02 AM | The Patent System
April 24, 2005
Patent Economics: Part 5 - Theories
There are several different interrelated theories about patents. Some consider a patent as a natural right, to be able to own and profit from one's invention. In securing a property right, a patent solves the inventor's dilemma, providing a commercial platform for promoting technological innovation, even though some see patents as an obstacle to innovation. Certainly a patent is a business tool, as it offers potential for profit through licensing, and the prospect of a defensive shield against patent assertion by others (countersuit).
Posted by Patent Hawk at 12:02 AM | The Patent System
April 17, 2005
Patent Economics: Part 4 - Incentives
There are at least four incentives that justify a system of granting patents. These incentives are: (1) an incentive to invent; (2) an incentive to disclose; (3) an incentive to commercialize, and (4) an incentive to workaround. The core argument in justifying a patent system is that these incentives would be lessened or lacking without patents.
Posted by Patent Hawk at 11:11 AM | The Patent System
April 15, 2005
Patent Economics: Part 3 - The Inventor's Dilemma
Given that substitution inherently limits the monopoly power of patents (as explained in part 2 of this series), here we consider how patents provide economic benefit to a patent owner and society. Consider the counterfactual case of invention in a society that does not offer a patent grant. An inventor without access to patent protection faces the inventor's dilemma.
April 8, 2005
Patent Economics: Part 2 - Substitution
A monopoly can only be sustained if there is no substitute for a good. For example, for a consumer wanting to rid its household of mice, in a competitive market, mouse traps are cheaper than keeping a cat. But a monopolistic mouse trap maker could charge only up to the point where it was cheaper to have a cat, or whatever else works as a substitute for a mouse trap. So, a monopolist's exclusionary power only extends as far as the limited availability of substitutes for the good over which the monopolist has control. The more substitutes that are available, the more competitive a market becomes. Substitution is a key aspect in considering patents as a monopoly.
Posted by Patent Hawk at 12:03 AM | The Patent System
April 6, 2005
Patent Economics: Part 1 - Market Monopoly
This begins a series on the economics of patents. This first installment explains the economics of market monopoly, to be contrasted with patent economics in succeeding installments.
A patent is widely considered a monopoly, and though it smacks of truth, the reality is not so simple. Monopolies are generally ill-favored, as, at least in theory, they raise prices above what would naturally occur in a competitive market. Anti-patent ravers stake their rationale against patents as representing monopoly power that unduly costs society. A further contention, espoused most fervently nowadays by anti-software patent advocates, is that patents have the perverse effect of retarding innovation, rather than actually encouraging it. With some grounding in economics, specifically market monopoly, and an understanding of the economic nature of patents, one sees the "evil patent monopoly" viewpoint as gross overstatement.
Posted by Patent Hawk at 10:38 AM | The Patent System
April 1, 2005
There is a constant stream of diversion in the press - diversion from the real to news. Diversion in the form of creating the bad and howling at it, because good is not news.
The patent system is broken. Software and business methods patents are bad. Patent trolls are raping legitimate businesses. Do you smell someone cutting a self-serving diversionary stinker? If not, read on.
Posted by Patent Hawk at 10:23 AM | The Patent System
March 25, 2005
PubPat Spits at Microsoft
The Public Patent Foundation (PubPat), self-proclaimed patent Chicken Little, is blowing the whistle on Microsoft for 6,101,499, titled "Method and computer program product for automatically generating an Internet Protocol (IP) address", a patent granted in August 2000 that's still slumbering.
Posted by Patent Hawk at 12:01 AM | The Patent System
March 22, 2005
D.C. Patent Troll Hoedown
Patent trolls and their detractors, often the same thing, convened en masse last week in our nation's capitol to lament their own existence. The original patent troll spotter, Peter Detkin, did a fancy lexicographical dance. Only one opinion was not heard: that the U.S. patent system is thriving. Thriving, except for/because of (you decide): patent trolls.
First, a history quiz question: who was the world's most prolific patent troll?
March 15, 2005
Who are the patent trolls?
The oddest thing about the patent game is casting moral aspersion about exercising one's legal rights.
The basic rules are simple: a patent is an alienable right of monopoly, a tradable commodity of the most flexible sort. But, the way the game is played, holding a patent is like owning an oil patch - it takes capital investment to drill for the gusher. Often the capital investment can be quite substantial, to the tune of a few million in litigation fees.
March 14, 2005
Whence The Patent Prospector
It's a little hard to imagine an attorney who wouldn't enjoy a soapbox, at least once in a while. That's what The Patent Prospector is intended to be, an open forum, for those who don't want to constantly blog, but occasionally chime in.
Posted by Patent Hawk at 9:29 PM | The Patent System