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Posts Tagged ‘patent office’


Patent Office Uses Restriction Requirement to Limit Scope of Claims

Periodically, the PTO decides they need a more aggressive (more European) approach to restrictions.  This practice not only fails to follow the law but it is an attempt to use restriction practice to limit the applicant’s right to define their invention.  In other words, it is a backhanded way of limiting invention under 35 USC 101 or 35 USC 103.

According the MPEP 803,

There are two criteria for a proper requirement for restriction between patentably distinct inventions:

(A) The inventions must be independent (see MPEP § 802.01, § *>806.06<, § 808.01) or distinct as claimed (see MPEP § 806.05 – § *>806.05(j)<); and

(B) There *>would< be a serious burden on the examiner if restriction is >not< required (see MPEP § 803.02, **> § 808<, and § 808.02).

 The statutory basis for restriction requirements is 35 USC 121, which states

If two or more independent and distinct inventions are claimed in one application, the Director may require the application to be restricted to one of the inventions. If the other invention is made the subject of a divisional application which complies with the requirements of section 120 of this title it shall be entitled to the benefit of the filing date of the original application. A patent issuing on an application with respect to which a requirement for restriction under this section has been made, or on an application filed as a result of such a requirement, shall not be used as a reference either in the Patent and Trademark Office or in the courts against a divisional application or against the original application or any patent issued on either of them, if the divisional application is filed before the issuance of the patent on the other application. If a divisional application is directed solely to subject matter described and claimed in the original application as filed, the Director may dispense with signing and execution by the inventor. The validity of a patent shall not be questioned for failure of the Director to require the application to be restricted to one invention.

Why does the MPEP change “independent and distinct” to “independent or distinct?”  It appears the Patent Office’s is not following the law and attempting to make it easier to require a restriction.

The question the statute leaves unanswered is what is an independent and distinct invention.  According to the MPEP 802.1:

The term “independent” (i.e., **>unrelated<) means that there is no disclosed relationship between the two or more inventions claimed, that is, they are unconnected in design, operation, and effect.

According the MPEP 802.2 the term distinct means

Related inventions are distinct if the inventions as claimed are not connected in at least one of design, operation, or effect.

From the above it is clear that “distinct” casts the widest net.  I will note the MPEP suggests that the case law on point does not always use the above definition.  The important thing to remember is that we are talking about the inventions as claimed.  Thus, if any set of claims incorporates both inventions, they are clearly connected by design, operation or effect.

The Patent Office when issue a restriction requirement often asserts the combination/sub-combination rule to argue that two inventions in an application are distinct.  However, this rule is still based on how the combination/subcombination are claimed and requires the PTO show that it would be a serious burden if the restriction were not upheld.

Unfortunately, the PTO often ignores the “claimed” requirement for distinct inventions.  If the PTO is allowed to do this it arbitrarily limits what the applicant can claim as their invention.  Every invention is a combination of known elements (conservation of matter and energy) and when the PTO incorrectly limits which subcombinations the inventor can claim, they limit the right of the inventor to define what their invention is.  This has the same effect as limiting what the inventor can claim under 35 USC 101 or 35 USC 103.  From a practical point of view this arises when a subsequent Office Action rejects the claims based on certain prior art and the applicant then wants to modify their claims to incorporate the features of one of the subcombinations.  The PTO disallows this amendment by suggesting the applicant has not selected that subcombination.  This practice is wrong, illegal, denies the applicant of due process, and denies the applicant’s right to define their invention.

 

 
America Invents Act Will Not End Fee Diversion – Paul Ryan Thinks Stealing From Inventors is A-OK

According to the Wall Street Journal, “two powerful House Republicans, Rep. Hal Rogers (R., Ky.), chairman of the Appropriations Committee, and Rep. Paul Ryan (R., Wis.), chairman of the Budget Committee, called this week for changes in the legislation that would restrict the patent office’s ability to keep its own fees.”  Ending fee diversion was the only positive part of the America Invents (Not) Act, HR 1249, S. 23).  Representatives Rogers and Ryan should be condemned for this action.  Congress is in the position of trustee of the Patent Office funds and if Congress were subject to Sarbanes Oxley Mr. Ryan & Mr. Rogers would be in jail today along with the rest of Congress.  This makes the America Invents Act a complete farce.  Ending fee diversion was always a little bit is not red herring as the next Congress could always just change this law.

When the government creates laws that do not apply to the government, just private citizens, this is the essences of tyranny.  Rep. Ryan who is suppose to be a fiscal conservative and watching out for taxpayer dollars, is advocating the theft of inventor fees.  If that is what the Tea Party and Paul Ryan consider being fiscally conservative, then it is clear that everyone in Washington believes that you have no right to the money you earn.

 

This intriguing question and its implications for US economic policy are tackled in the groundbreaking book Great Again, by Henry R. Nothhaft with David Kline.  They answer the above query with a series of questions:

Could a twenty-year-old college dropout, just back from six months in an ashram somewhere, attract funding for a capital-intensive venture based on the manufacture (yes, the manufacture) and sale of a $2,500 consumer product unlike any that had ever been bought by consumers before?  One whose potential uses were at best unknown, and possibly nonexistent?  And one for which the total current market size was exactly zero?

Not only could Apple not get funded today, it probably could not go public. Nor would Apple have received its first patent (USPN 4,136,359) in only 20 months.  The book asks “how many of today’s Apples are not getting a chance?”

The authors use the above example to make a broader point that theUSis failing economically and technologically because of the policies we are pursuing.  They show that all net new jobs created in theUSsince 1977 (and possibly longer) were created by startups like Apple.  All increases in real per capita income are due to new technologies and most revolutionary/disruptive technologies are created by startups and individual inventors.  So what are the policies that have undermined our economy, by undermining technology startups?

The book examines five areas:

1.Role of regulations.  The Authors show that our tax policies, Sarbanes Oxley and our indifferent (some might say arrogant) regulators’ application of well meaning regulations to startups is driving them either overseas or out of business.

2. Underfunding the patent office. This is costing theUS millions of jobs and billions in GDP.  According to the authors, each issued patent is worth 3-5 jobs on average, particularly patents issued to startups.

3. Manufacturing policies in the US.  Manufacturing is key, particularly in a world that does not respect property rights in inventions, to ensuring that theUS profits fromUS innovation and not other countries.  TheUS is also losing the global battle for human talent.

4. Battle for global talent. Our restrictive immigration policies are depriving theUS of talented entrepreneurs such as Andy Grove, founder of Intel.

5. Funding for research.  The book shows that our spending on basic science and engineering is not only declining as a percentage of GDP, but the system has become short-term oriented and bureaucratic.

While this book tackles complex issues, it is a quick easy read.  It is full of interviews from entrepreneurs, venture capitalists, and technologists who built America’s technology startups over the last three decades.  Great Again provides numerous real life examples to illustrate its points.

This pioneering book shows how the US can create jobs and increase per capita income.  The policy prescriptions are based on solid science.  Just cutting government spending (balancing the budget) will not cause theUSeconomy to grow vigorously, we need pro-growth policies.  The authors are some of the few people that understand what policies are needed for the US to be GREAT AGAIN.

Great Again: Revitalizing America’s Entrepreneurial Leadership, by Henry R. Nothhaft and David Kline

 
Non-Obviousness: A Case Study in Judicial Activism

The genesis of the non-obviousness standard (Inventive Step in Europe) was the Supreme Court’s decision in Hotchkiss v. Greenwood, 52 U.S. (11 How.) 248 (1851).  This case first articulated the idea that the improvement that was the subject of a patent had to be more than “the work of the skilful mechanic.”  The case involved making door and other knobs of all kinds of clay used in pottery, and of porcelain.[1]The invention according to the patent holder was:

This improvement consists in making said knobs of potter’s clay, such as is used in any species of pottery; also of porcelain; the operation is the same as in pottery, by moulding, turning, and burning and glazing; they may be plain in surface and color, or ornamented to any degree in both; the modes of fitting them for their application to doors, locks, furniture, and other uses, will be as various as the uses to which they may be applied, but chiefly predicated on one principle, that of having the cavity in which the screw or shank is inserted, by which they are fastened, largest at the bottom of its depth, in form of a dovetail, and a screw formed therein by pouring in metal in a fused state.[2]

The Supreme Court upon reviewing the case made the common error of pointing out that each of the elements in the invention were known.

But in the case before us, the knob is not new, nor the metallic shank and spindle, nor the dovetail form of the cavity in the knob, nor the means by which the metallic shank is securely fastened therein. All these were well known, and in common use, and the only thing new is the substitution of a knob of a different material from that heretofore used in connection with this arrangement.[3]

All inventions are combinations of known elements since conservation of matter and energy means that you cannot create something from nothing, for more information see KSR: Supreme Ignorance by Supreme Court.  As a result, this analysis by the Supreme Court is meaningless and sheds no light on whether the invention should have obtained a patent.

Based on this analysis the Supreme Court then reasons:

for unless more ingenuity and skill in applying the old method of fastening the shank and the knob were required in the application of it to the clay or porcelain knob than were possessed by an ordinary mechanic acquainted with the business, there was an absence of that degree of skill and ingenuity which constitute essential elements of every invention. In other words, the improvement is the work of the skillful mechanic, not that of the inventor.[4] (underlining added)

This ruling states the well known idea that for an invention to be patentable, it must be more than just the work of a skillful mechanic.  Today this is stated as the invention must have taken more than just the work of “one skilled in the art.”

There are a number of problems in the Supreme Court’s ruling in Hotchkiss v. Greenwood. First, where did the Supreme Court get the authority to add an additional requirement above novelty in order for an invention to obtain a patent?  The statute at the time did not contain any such additional requirement.  It was judicial activism to add a requirement not found in the statute.  Another error in the Supreme Court’s reasoning is the use of hindsight.  All inventions are obvious in hindsight and must be described in enough detail that they can be practiced by one skilled in the art (ordinary mechanic) to meet the requirement of the social contract of patents.[5] Another error in the case was the failure to recognize that copying by competitors of the invention or success of the invention tend to show that it was non-obvious.  Finally, the Supreme Court failed to understand the implications of the laws of physics as they apply to inventions, specifically that conservation of matter means all inventions are combinations of known elements.

Despite these errors, it is reasonable to ask did the Supreme Court’s judicial activism result in any lasting problems?  According to Gale R. Peterson, Cox Smith Matthews in their paper, “Obviousness / Non-Obviousness Of The Novel Invention: Hotchkiss v. Greenwood to KSR v. Teleflex 35 U.S.C. § 103 – 1851 to 2006.”[6]

The cases decided after Hotchkiss in 1851, both by the Supreme Court and the lower courts, were chaotic. There was no statute governing the additional hurdle an otherwise novel invention must cross before being deemed a patentable invention.[7]

The Supreme Court’s decision in Hotchkiss v. Greenwood resulted in an unworkable standard of patentability, because it was inherently subjective.  This increased the uncertainty whether an inventor would obtain a patent for their invention and increased the risk that their patent might be held invalid.  It also caused the standard of patentability to vary in different Circuits and the Patent Office.  Today this is widely understood to increase the cost of obtaining a patent and decrease the amount of resources invested in inventions.  The Supreme Court’s judicial activism in Hotchkiss v. Greenwood resulted in numerous problems that haunt us today.  Including the complete nonsense opined by the Supreme Court in the KSR v. Teleflex[8] decision, see KSR: Supreme Ignorance by Supreme Court.

Is there any logical reason for the additional requirement of non-obviousness for patents?  The definition of invention according to Free Dictionary online is “to produce or contrive (something previously unknown) by the use of ingenuity or imagination.”[9] While Merriam Webster (online) defines invention as “a device, contrivance, or process originated after study and experiment.”[10] I will ignore how and invention is created as a criteria and suggest the following definition, “to create something new” as a common sense definition.  This definition differentiates production or manufacturing from invention.  Production is creating something, but it is not creating something new it is creating something old.  If you argue that it is creating something new, then the word new has no meaning in the definition.  This definition does not do a good job of differentiating an invention from a new book or painting.  It might be argued that a new book is not creating something new, but it is not the same as other books.  So I believe this simple common sense definition has to be supplemented.  Specifically, I suggest that invention is “to create something new that has an objective result.”  By an objective result I mean that goal of an invention is an objective result that can be tested as opposed to a subjective result that is the result of a song being played or a book being read or a painting be viewed.  An objective result distinguishes an invention from a new artistic creation.

So how does this common sense definition of invention, “to create something new that has an objective result,” match up with the requirements of patent law (101, 102, 103, 112)?  This definition is generally consistent with section 35 USC 101, statutory subject matter.  It excludes scientific and mathematical discoveries since these are not creations.  Notably it clearly does not exclude software patents.  A software enabled invention is clearly a new creation and it has an objective result.  The same is true of business methods patents (for more on the nonsense associated with business method patent see – Bilski, Software Patents and Business Method Patents.  This definition is clearly consistent with section 102 – new equals novel.  Is this definition consistent with section 35 USC 103?  No this definition is not consistent with section 103.  There is nothing in the definition that suggests a standard above novelty or new.  The general reason given for section 103 is that we do not want trivial inventions that just change the size or the weight or some other trivial feature of an existing invention to obtain a patent.  If a change in size or weight or color does not make a difference in the objective result, it is not new and it is not an invention.  So I believe the definition of invention I have offered covers this issue and therefore there is no reason for an addition standard above novelty.  My suggested definition is neither consistent nor inconsistent with section 35 USC 112, since this section does not define what is an invention.  Section 112 defines the requirements an inventor must meet to obtain a patent for their invention.  Section 112 deals with the social contract between the inventor and society.  Overall the common sense definition I suggested for invention fits nicely with patent law, but there is absolutely no logic for a nonobviousness criteria for patents based on this definition.  The creation of the nonobviousness standard was judicial activism on the part of the Supreme Court without any statutory justification.  The standard has proven to be completely unworkable and completely subjective.  Only the CAFC’s jurisprudence before KSR provided any measure of a stability and logic to the section 103.  The nonobviousness standard has resulted in increase costs to inventors without any benefit.  It has increase the cost of ligation, helped technologies thieves to steal inventions, and decreased the amount invested in new technology.

I suggest the radical notion that logically the nonobviousness standard, 35 USC 103, should be repealed.  If it is not repealed then we should demand a statutory definition that is as objective as possible.  One objective solution would be to codify the CAFC’s teaching, suggestion, motivation (TSM) test.  I have proposed an alternative standard for 35 USC 103 that I believe is even more objective, clearer, and more consistent with reality than the TSM test – see Obviousness Flow Chart .  By adopting any of these solutions we will reduce the cost and uncertainty of obtaining a patent and litigating patents.  This will increase the value of issued patents and increase the investment in new technologies, which are the only way to increase real per capita income – see The Source of Economic Growth.

PS

As an interesting intellectual exercise I attempted to use ordinary definitions of novelty and obviousness to determine if the Supreme Court’s seminal decision in Graham v. Deere[11] had any basis in logic and was in anyway consistent with the statutory language.  The non-obviousness standard was added to U.S. patent law in the 1952 Patent Act.  The Courts’ job is to interpret the statute.  The key portion of the non-obviousness statute states:

A patent may not be obtained though the invention is not identically disclosed or described as set forth in section 102 of this title, if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains.  (underlining added)

While many lawyers will want to immediately jump to the legislative history to interpret the statute, this is only appropriate if the statute is not clear on it face.  Based on the wording and the fact that section 103 was added later than the novelty requirement, logically 103 is intended to be an additional requirement above the novelty requirement.  According to Dictionary.com, novelty means “of a new kind; different from anything seen or known before: a novel idea.”  The nonobviousness requirement logically requires something more than an invention be novel.  In order to understand what nonobvious means, lets find out what obvious means.  Then anything that does not meet the definition of obvious is nonobvious.  According to Dictionary.com obvious means, “easily seen, recognized, or understood; open to view or knowledge; evident.”  It is axiomatic to patent law that whether an invention is nonobvious has to be determined at the time the invention was made, in other words before the invention was known.  How can an invention that has not been made be easily seen, recognized, or understood; open to view or knowledge; evident (obvious)?  Clearly, an invention that has not been made cannot be open to view and how can you have knowledge of something that does not exist.  Evident means, according to Dictionary.com, plain or clear to the sight or understanding, which cannot be true of something that does not exist.  Unfortunately, this line of examination does not lead to any useful results.  No wonder the 1952 Statute has not lead to meaningful clarification of what is patentable!


[1] Hotchkiss v. Greenwood, 52 U.S. (11 How.) 248, 249 (1851)

[2] Ibid 250-251

[3] Ibid 266

[4] Ibid 268

[5] 35 USC 112, first paragraph (Modern)

[6] Gale R. Peterson, Cox Smith Matthews, “Obviousness / Non-Obviousness Of The Novel Invention: Hotchkiss v. Greenwood to KSR v. Teleflex 35 U.S.C. § 103 – 1851 to 2006.” 11th Annual Advanced Patent Law Institute, October 26-27 2006.

[7] Ibid 3.

[8] KSR Int’l Co. v. Teleflex, Inc., 550 U.S. 398 (2007).

[9] http://www.thefreedictionary.com/inventor (6/16/10).

[10] http://www.merriam-webster.com/netdict/invention (6/16/10).

[11] Graham v. John Deere Co. of Kansas City, 86 S.Ct. 684 (1966)

 
Confusing the Property Right with the Implementation of the Property Right

Many  entrepreneurs, inventors, and economists complain about the Patent System and intellectual property rights.  However, when you examine their complaints they are often concerned about how the patent system is implemented as opposed to the concept of property rights for inventions – patents.  For instance, an extremely successful entrepreneur and angel investor I know complained that patents increase the uncertainty when investing in a start-up company.  Because of the long time that it takes patents to issue, he protested that it is difficult to know when a patent might suddenly issue, affecting the business plan of a start-up in which he has invested.   Other common complaints include that the patent system is expensive, time consuming, and difficulties in determining the boundaries of a patent. Some people go so far as to suggest that this shows that patents are not a true property right.  After all, they reason, it is easy to determine the boundaries of real property and obtaining title to real property (land) is a straight forward process.

Here, the complainers show that their ignorance of history.  Before title insurance buyers of real property paid an attorney a lot of money to determine if they would receive “good title” to land if they bought it from the seller.  This title opinion did not come with a guarantee and it was not cheap.  In addition, you would have to pay a surveyor to determine the boundaries of your real property.  The survey process was expensive and fraught with problems until the advent of modern technology, such as GPS.  Our ancestors fought each other tooth and nail over the boundaries to their land.  In fact, court battles over land are a great way to trace your ancestry, because these battles were so common.

While the critics are wrong in their comparison between real property and patents, they are correct that we need systems that reduce the cost and uncertainty of determining the boundaries of patents (inventions) and whether the owner has good title (102, 103 issues).  In short, we need the equivalent of title insurance for patents.  I believe that standards committees (e.g., IEEE 802.11 WiFi) are acting like title insurance companies.  They determine which patents are essential to practice the invention.  In effect, they determine the boundaries of patents with respect to the standard and to some extent determine if these patents have good title to an invention.  I also believe that NPEs (Non-Practicing Entities) also act like title insurance companies.  Of course, many of the critics of the patent system do not like NPEs either.

I, too,  agree that the patent system takes too long to issue patents.  However, the problem is not with the concept of a patent system but with a government that has failed to fully fund the Patent Office.  In the last two decades, about billion dollars in user fees have been diverted from the Patent Office to Congressional pet projects.  In the US, the Patent Office has always been funded by user fees, which are the fees that inventors pay to the Patent Office when they file for a patent.  However, when an inventor writes a check to the Patent Office the money is deposited directly to the general treasury account of the federal government.  Congress then appropriates these fees back to the Patent Office.  When Congress diverts (steals) a billion dollars of user fees from the Patent Office, it is not surprising that the Patent Office will take longer to determine issues of patentability,  increasing uncertainty for start-ups.  If Congress was subject to Sarbanes Oxley, they would all be thrown in jail for this diversion of fees.  In my opinion, the patent process has also become too formalistic and complicated.

These complaints that I have cataloged here are not about patents per se, but with the implementation of the patent system.  I agree that the present patent system is overly cumbersome, too formalistic, too expensive, and takes too long.  As an aside, I will point out that the critics of patents (IP) complain about their complexity but raise just a peep about a tax system that is over 10,000 pages and a new securities law that is over 1400 pages.  There appears to be a disconnect in their thinking.

Some of the solutions to the problems with our patent system will occur if the free market is allowed to create solutions like title insurance for patents.  Fully funding the Patent Office will solve many of the other problems, such as the lengthy pendency times.  Patents are completely consistent with Locke’s formulation of property.  Patents like real property rights are  fundamental to economic progress and human rights.

 
Judge Michel – Economy Recovery Requires Strong Patent System

Judge Paul Michel has an excellent article in JPTOS.  Judge Michel first explains that the economy and a well functioning patent system are connect.

The primary engine of American recovery and resurgence will therefore have to be an improved patent system. Without that, both short term recovery and long-term prosperity will be stunted. By “system”, I mean primarily the Patent and Trademark Office, and the Federal courts, which along with the International Trade Commission provide the only mechanisms to monetize patent value.

Next he points out one of my main complaints about the patent publication requirements – we are giving away our technology

Because most applications must by law be published at 18 months, others, including foreign competitors, can pirate inventions for years before the patents issue, for until then patent owners have no rights.

Michel then discusses the damaging effects of fee diversion from the patent office.

In addition, the Congress must guarantee the PTO will keep all fees. Since 1992, Congress diverted over 900 million dollars in patent fees to other uses. ‘This fiscal year Congress, once again, will not allow the office to keep all the fees it expects to collect; an estimated $150-250 million will go elsewhere. Permanently ending such “fee diversion” is necessary to reviving the PTO. If Congress continues diverting fees to other purposes, raising fee levels will have little effect. In addition, is it fair that fees provided by private patent applicants finance other government activities?

Finally, he suggests PTO satellite office, which has been a hot button of mine.

What else? Let the PTO open satellite offices, in places like Detroit, and Houston, and hire unemployed engineers who are already experienced IP professionals. But again, Congressional authorization is needed. Under current law, most employees must work in Alexandria, Virginia. Congress also controls the pay structure for examiners. The General Schedule that sets pay for civil servants should not apply to the scientists and engineers in the patent office. Industry would willingly pay higher fees to enable the PTO to pay more competitive salaries to highly-skilled examiners. Congress should raise these pay levels.

 
Director Kappos Pushes “First to File”

Director of the Patent Office, David Kappos, provided the following explanation for why we should convert from a “first to invent” to a “first to file” system at the BIO International Convention.

“Kappos’ explanation of the long odds facing a small entity claiming to be the first to invent but who filed the patent application second.  Kappos likened the odds of such a Junior Party prevailing to the odds of being bitten by a Grizzly Bear and a Polar Bear on the same day.  He then went on to say that you have to go back to FY 2007 to find a prevailing small entity Junior Party in an interference.  As Kappos explained, those who think first to invent is a benefit for small entities are living a lie, which is certainly true, but many will not like to hear that truth.”

There are two problems with this “practical” answer: 1) the first person to file is not the inventor logically or morally, and 2) the unintended consequences of a first to file system.  A system that is supposedly practical but is not just will not succeed in spurring innovation.  The real answer is to reduce the burdens associated with interferences, not to trash the morally and logically correct answer – first to invent.

A first to file system will result in many poorly thought out patent applications increasing the PTO’s workload and increasing the number of Continuations-In-Part (CIPs).  The confusion created by this system of filing early and then following up with corrected applications will result in litigation being more expensive and less certain.  In addition, this system will further bias the patent system in favor of large entities.  Large entities will use a first to file system to flood the PTO with patents to overwhelm small entities and individual inventors in the race to the patent office.  Small entities and individual inventors will never be able to compete financially in this race to the PTO.  According to the SBA, most emerging technologies are created by small entities not large entities.  As a result, we need to make sure that our patent system is friendly for small entities if we want it to encourage innovation.

The result of the first to file system along with the publication system in the rest of the world has been to create a patent system for large entities.  The number of filings by small entities in these countries is trivial compared to the number of patent filings by small entities and individual inventor in the U.S.  There is no evidence that first to file system has spurred innovation in those countries that have this system.  So the “truth” here is that the first to file system is not designed to spur innovation – it is a further attempt to bias the patent system in favor of large corporations.

 

 This post is the Introduction to my book, which should be available on Amazon.com in December of 2009.

This book started as a project based on my observations.  I deal with technology start-up entrepreneurs everyday as a patent attorney.  I noticed a difference between the sort of projects my clients were undertaking since the technology downturn of 2000-2001 and the 90s.  Clients, in the 90s, would come into my office with plans to build businesses that were disruptive or revolutionary.  The technologies underlying these companies held the potential to completely redefine a market.  Some of these of these ideas would increase the available bandwidth by 10x for minimal costs or allow data searches that were 10-100x faster than existing technologies.  It was extremely exciting talking with these entrepreneurs.  Their energy was infectious and the potential implications of their work was mesmerizing.  The technology downturn of 2000-2001 forced a reevaluation of these aggressive business plans.  I expected that after a couple years of the technology market taking a breath, I would again be working with companies trying to change the world. 

 

The Obama administration has released a white paper outlining a strategy to encourage innovation and thereby stimulate the economy, entitled “A Strategy for American Innovation: Driving Towards Sustainable Growth and Quality Jobs. ”  According to President Obama, “The United States led the world’s economies in the 20th century because we led the world in innovation.”  The first step in solving a problem is identifying the cause and the Obama administration has nailed it on the head.

 
Innovation – Wake-Up Call

There are number of indications that the U.S. is losing its technological edge.  In the second quarter of 2008, there were no public offerings of Silicon Valley venture capital-backed companies, a phenomenon not seen since 1978.  U.S. venture capital firms are investing more of their funds overseas.  Many U.S. trained, foreign national, scientists and engineers are leaving the U.S. and returning to their home countries.  In 2001 (the most recent year for which data are available), US industry spent more on tort litigation than on research.[1]

 

President Obama has prioritized reducing patent application pendency times.  What are your top three suggestions to achieve this goal?  Here are my mine.

One: Change the way examiners are evaluated.  According to my understanding, productivity count or points are a major part of an examiner’s performance review.  The examiner gains points for reviewing a new case, when an applicant files a RCE (Request for Continued Examination) and if the case is allowed or abandoned, among other activities.  This system encourages “churning” where an examiner will force the applicant to file a RCE in order to obtain an allowance to increase their points.

 

Given a Voice on Patent Reform by AIPR,

Inventors Send a Clear Message

Researchers, Engineers and Patent Professionals Fear that

Weaker Patents Will Make America Less Competitive

New York, NY, June 4, 2009 – A non-profit organization, American Innovators for Patent Reform (AIPR), has been formed to give a voice to American innovators – inventors, scientists, engineers, researchers, small companies, investors, patent owners and intellectual property service providers – in the ongoing debate on patent reform.

 

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