A patent: a time wasted or not

A comment from an inventor questioning whether or not to waste his time and money filing a patent (and disclosing his innovation), if he is going to get screwed by the PTO:

Personally I have been pausing in the wings before I submit several
patent applications, so that I am reasonably assured that it is
worth the time and effort to do so. It may very well be that I am
better off not filing anything at all, if the applications can be
construed as just revealing what I have invented, with very few
options if it costs too much to respond to the PTO, and thus very
little value conferred by doing so.

A great issue for the AIPLA, IPO, or ABA, if any of these groups actually
cared about everyone's interest in a healthy patent system.

If the Patent Reform efforts succeed, we are all just dog meat,
after all, and all of my efforts and my money spent trying to
acquire a US patent will be for naught. Somewhat frustrating, when
I sincerely believe that I have much to contribute in the alternative
energy field.

Also Christians come out against patent reform

A group of generally conservative Christians have written to Congress, opposing this year's patent reform bill:

- "To put the matter plainly, this bill is written to devalue patents" - "We cannot afford to jeopardize what is in effect America's balance sheet with an ill-advised, special-interest bill, particularly in the midst of a severe economic crisis." - "The proposed system [post-grant review] would expose patent holders to a perpetual threat of abusive, serial attacks, and, as a result, undermine the benefits of patent ownership for patent-holders and their financial backers." - "In effect, the bill invites an infringe-now-and-(maybe)-pay-later business strategy [the effect of apportioned damages], which destroys the "exclusive use" given to the patent ..."

(From Opposition Mounts to Patent Reform Act of 2009, Kevin L. Kearns, March 18, 2009) http://americaneconomicalert.org/view_art.asp?Prod_ID=3199 Dear Senators Reid and McConnell, Speaker Pelosi and Congressman Boehner: We are writing to ask you to strongly oppose the passage of The Patent Reform Act of 2009, S. 515 and HR. 1260, legislation sponsored by Senator Leahy and Rep. Conyers, respectively. These bills, under the mantle of "reform", will actually severely damage U.S. international competitiveness and threaten most American businesses - along with the jobs they create - by undermining America's historically strong intellectual property rights. This legislation will threaten America's smaller inventors, large and small domestic manufacturers, venture capitalists, agricultural entities, biotech and pharmaceutical firms, non-profit research consortia, and research universities, among others. Downgrading patent rights - which are fundamentally property rights - will seriously constrict innovation and the ability of domestic manufacturers to turn good ideas into products consumer want, and thus good jobs for working Americans. A series of U.S. Supreme Court and Federal Circuit decisions have already shifted the legal balance of power to favor patent users, tightening standards of patentability and narrowing patent rights and remedies. These judicial reforms eliminate any need for sweeping legislative changes to the patent system. Foreign interests, who for years have been trying to slow America's innovation engine through measures to weaken and devalue patent rights, are very happy with the proposed changes. In fact, commentary by patent experts in the Chinese and Indian press indicates they believe that intellectual property theft will be much easier under the proposed bill. Unfortunately, these foreign experts are correct in their assessment. Yongshun Chen, former Senior Judge and Deputy Director of the Intellectual Property Division of Beijing High People's Court China, said this about the patent bill: "This bill will give companies from developing countries more freedom and flexibility to challenge the relative U.S. patent for doing business in the U.S. and make it less costly to infringe.... The bill will weaken the rights of patentees greatly, increase their burden, and reduce the remedies for infringement" (Intellectual Property News, November 2007). This bill will lead to many additional American factories and jobs, even entire industries, being lost to overseas competitors. During this economic recession, more market uncertainty is the last thing that our economy needs. To put the matter plainly, this bill is written to devalue patents - to the detriment of almost every industrial, service, and financial sector of the economy. Certain high-tech companies who are pushing this bill want to make it cheaper and easier to infringe others' patents. But Congress should safeguard innovation as the backbone of our economy and reject this legislation. The patent system is rooted in the Constitution. Congress is charged with "securing for limited times to authors and inventors the exclusive right to their respective discoveries". The Founders understood that protection of intellectual property was vital to innovation and progress. James Madison wrote in the Federalist Papers, "The utility of this power will scarcely be questioned." Yet, today it is being threatened in the Congress. Small enterprises often drive innovation. About one-third of all patent applications are made by independent inventors, small companies, universities, and nonprofit research groups. Small businesses produce more patents per employee than larger businesses, and small-firm patents are more "innovative" and technologically important than large firm patents. Because small firms must work with others to commercialize and manufacture their innovations, they need strong patents to realize a return on investment. American manufacturers do about 65 percent of the R&D in this country and hold 60 percent of the patents. Over the last 40 years, we have witnessed a startling transformation of our economy. Whereas previously about two-thirds of a company's wealth was in physical assets, such as land, buildings, and machinery, now the opposite is true. The vast majority of a company's worth is in its intellectual property, not its physical assets. We cannot afford to jeopardize what is in effect America's balance sheet with an ill-advised, special-interest bill, particularly in the midst of a severe economic crisis. The legislation creates a new, expensive quasi-judicial system within the USPTO to challenge the validity of a patent throughout its entire life. The proposed system would expose patent holders to a perpetual threat of abusive, serial attacks, and, as a result, undermine the benefits of patent ownership for patent-holders and their financial backers. In addition, it would create even greater operational challenges within the USPTO. Incentives to seek patents would be weakened, and venture capitalists, who supply the life blood of the patent system with their investment monies, would face far higher risks when backing new ideas. The Leahy bill raises multiple barriers to independent innovation. The pending legislation would also make it harder for patent-holders to enforce their rights or win just compensation from those who steal their ideas. Under the bill, it would be harder to prove "willful" infringement, which serves as an important deterrent to deliberate theft. Perhaps, most significantly, the bill strikes at the very core of the patent system by changing the way infringement and resulting damages are treated. Instead of restoring the pre-infringement parity between the patent holder and the potential licensee, the bill calculates damages in an after-the-fact manner that lessens the value assigned to patents in most products. It throws out the window the venerable Georgia Pacific case and with its time-tested factors in determining a patent's value. In effect, the bill invites an infringe-now-and-(maybe)-pay-later business strategy, which destroys the "exclusive use" given to the patentee by the Constitution and the risk/reward ratio that has so successfully driven American innovation for over two centuries. According to a recent study, the proposed damages amendment would reduce the value of U.S. patents by as much as $85.3 billion; reduce R&D expenditures by up to $66 billion per year; and potentially cost the U.S. economy 298,000 manufacturing jobs. This bill is bad for American businesses; it is bad for American workers; it is bad for American inventors; it is bad for American research universities; thus it is bad for America. We ask that you oppose this legislation, protect the property rights enshrined in the Constitution, and preserve a patent system that for over 200 years has provided great technological advances, material progress, and a high standard of living for all Americans. Thank you for your serious consideration of our views. Sincerely, Kevin Kearns, US Business and Industry Council David Keane, American Conservative Union Rev. Lou Sheldon, Traditional Values Coalition Jim Backlin, Christian Coalition of America Susan Carleson, American Civil Rights Union Jim Martin, 60 Plus Association C. Preston Noell III, Tradition, Family. Property, Inc. Harry Valentine, Capitol Hill Prayer Alert Barrett Duke, Ethics and Religious Liberty Commission of the Southern Baptist Convention Gary Aldrich, CNP Action, Inc John Kwapisz, VA Coalition for Common Sense on Climate Change Phyllis Schlafly, Eagle Forum Morton Blackwell, Conservative Leadership PAC Frank Gaffney, Center for Security Policy Colin A. Hanna, Let Freedom Ring Ron Pearson, Council for America Jeffrey Gayner, Americans for Sovereignty Alex St. James, AARLC Organization Connie Marshner, American Family Business Institute Jim Backlin, Christian Coalition of America Carmen Mercer, Minuteman Civil Defense Corps. Mark de Bernardo, Council for Employment Law and Equality Laszlo Pasztor, National Federation of American Hungarians Kevin L. Kearns is President of The United States Business and Industry Council. Prior to joining USBIC in 1993, he was a Senior Fellow at the Manufacturing Policy Project, a Washington, DC think tank. For 13 years before that he was a U.S. Foreign Service Officer with overseas assignments in Germany, Korea, and Japan, where he witnessed firsthand the operation of highly cartelized, mercantilist economies.

HOW IBM INVENTED TROLLISM

Found in BUSINESSWEEK 17 MAR 1997: BIG BLUE IS OUT TO COLLAR SOFTWARE SCOFFLAWS by Ira Sager, Business Week, 17 March 1997, page 34 Big blue holds more software patents than any other company in the world. That's great for bragging rights, but it does little for the bottom line. Now, however, IBM sees money in that trove of intellectual property - and its efforts to collect are making software companies hoping mad. Note: might as well call this date the formal birth at IBM of trollism Lawyers for Big Blue are searching for software companies that it says should be paying royalties but aren't. Over the past several months, IBM has been quietly pursuing patent claims against such well-known software companies as Oracle, Computer Associates, Adobe Systems, Autodesk, Intuit and Informix. IBM is also pressing a software claim against computer maker Sequent Computer Systems. Note: a lesson well learned by many trolls to follow in the years to come. All thanks to IBM. So far, no lawsuits have been filed, but software companies aren't waiting. Several of them are launching a pre-emptive strike, hiring Silicon Valley's star litigator, Gary Reback, a partner at Wilson, Sonsini, Goodrich, Rosati. Two years ago, Reback took on Bill Gates. Representing a handful of Silicon Valley companies, he unsuccessfully tried to get the Justice Department to broaden an antitrust investigation of Microsoft. Now, Reback is hurling charges against IBM similar to those he leveled at Microsoft. "IBM shows up the same way someone might might demand protection money.", he says. Officials at the companies confirm that IBM has contacted them, but most refuse to talk publicly. Note: Peter D. - instead of "troll", you should have suggested "goodfellas" Collecting the patent royalties could add millions to IBM's net profits. In 1995 - the last year IBM released figures - the company took in $500 million from royalties on all patents Note: yet it cannot afford to pay for prior art searches for its patent applications software and hardware alike. Insiders say that senior managers Note: this include Kappos? believe that IBM could collect $1 billion a year from its patents. The software makers that have been contacted by IBM aren't yet willing to help Big Blue reach that goal. They maintain that lot of software patents - IBM's included - are too broad and never should have been issued. IBM's pursuit of royalties, they argue, is an abuse of a patent system that is too lax and does not require an applicant to really prove that the software application is unique. Note: of course, while complaining, these companies did nothing to help organize prior art resources and tools to donate to the PTO. IBM contends it's just trying to protect its intellectual property and get a fair return on the $5 billion yearly tab it runs up on research and development. "What Gary Reback is asking us to do is provide an R&D subsidy to our competitors, and we won't do that.", says Marshall Phelps, IBM's attorney in charge of intellectual property and licensing. Note: Phelps moved over to Microsoft, which is now flooding the PTO with its crappy patent applications, while his groomed successor is Kappos. Some companies are afraid that paying now will set a precedent, making it harder to say no later. "If we sign up with IBM today, then what happens in three or five years, when the patent agreement expires?", asks Oracle patent attorney Allen Wagner. With all the skirmishing that lies ahead, this dispute is still in Version 1.0.

The rest of the story on the Microsoft espionage lawsuit

We are frequently (almost always justifiably) outraged about IBM's antics in the patent procurement and/quality debate. While they don't make your rants nearly as often, I place Microsoft in almost the same company as IBM. An interesting case was reported last week based on a lawsuit filed by Microsoft against an ex-employee (who they fired) who had filed a patent infringement suit against a number of Microsoft customers, alleging he had violated his duty to Microsoft by downloading confidential Microsoft documents while a Microsoft employee that he then used in his lawsuits against their customers. Well, as Paul Harvey used to say, here's "the rest of the story". As is almost always the case, when IBM or Microsoft say anything about patents or patent-related litigation, one should receive it with a somewhat jaundiced eye. A useful note: a candidate to be the next PTO Director, Dave Kappos, is a head patent lawyer at IBM. From the Seattle PI, Feb.2, 2009 here is Miki Mullor's reply to the Microsoft lawsuit against him. His statement does not substantively address Microsoft's allegation that he stole Microsoft's confidential and proprietary information for use against the computer manufacturers:

I am the inventor of U.S. Patent No. 6,411,941 relating to software anti-piracy technology, and Ancora is my company. I applied for my patent in 1998. In 2002, the patent issued from the United States Patent and Trademark Office. In 2003, I approached Microsoft and had several talks with a Microsoft lawyer and employees of Microsoft's AntiPiracy group about my invention and the benefits Microsoft could realize by using it. Microsoft declined and said they had no interest in my invention. We ceased business operations at Ancora in 2005, and Microsoft was the first company to extend me an employment offer. I accepted. When I joined Microsoft, I notified them in writing of Ancora and my patent in both my resume and in my employment agreement. In its complaint against me, Microsoft withheld the portions of these key documents that show this. At the same time I was employed at Microsoft, but unknown to me, Microsoft was developing what is now known as "OEM Activation." OEM Activation is installed on computers made by HP, Dell, Toshiba and others ... to prevent piracy of Microsoft's Windows Vista software installed on those computers. This work was being done in a different department at Microsoft. OEM Activation is a blatant copy of my invention. In June 2008, my company Ancora filed a patent infringement lawsuit against HP, Dell and Toshiba in the federal court in Los Angeles. Microsoft fired me for trying to protect my own invention --- an invention I told them about before they ever hired me. Recently, Microsoft filed a retaliation suit against me personally in Seattle. Microsoft accuses me of lying, deceit, fraud and misappropriation. These are shameful, dishonest attacks on my character by Microsoft - the company that stole my idea in the first place. Their attacks are untrue, and they hurt me and my family. Microsoft basically admits stealing my idea in the complaint they filed because they are asking for a license to my patent. Microsoft would only need a license to my patent if they were infringing it in the first place. My patent case in Los Angeles has been going on for several months now with substantial progress. Clearly, Microsoft and the PC OEMs realized that they have no defense on the merits of the patent case.

A way to add to an idea - Continuation in Part

This tactic has a simple advantageous goals:

1. To add to a previously filed application, without risking a prior art infringement (102e).

2. To enable a partially new entity (new inventor) to file an application based on a prior application by a partially different entity, and not to risk infringement of parent application (paragraph 102e) see US Patent Laws.

Here's all you ever wanted to know about provisional patent applications:

Provisional Patent Application is a part of §111 of US Patent Law. When you are not ready to have a patent attorney process your invention data into an application, but you are pressed by other factors to get some kind of legal footing, then the provisional filing is your option. A provisional application is a simple, inexpensive patent application ($110 for a small entity as of today) that will not be examined. Claim language in a provisional application is NOT required by USPTO, but it is recommended by other offices -a precautionary measure in case of an unforeseen litigation. The greatest advantage in filing a provisional is the right to claim an invention's priority date, and the status of a PATENT PENDING.

Notable paragraphs of the US Patent Law

These paragraphs are most often cited by the USPTO examiners, and patent agents struggling with pushing inventions through the institution's paper jam: US Patent Act Title 35 of the United States Code §100, Definitions: Process means process, art and method, and includes a new use of a known process, machine, manufacture, composition of matter, or material. §101, Patentable inventions: Any new and useful process, machine, manufacture, composition of matter, or any new and useful improvement thereof, may obtain a patent therefore… §102, Novelty: 1. Not previously known, used, patented, printed, publicly used, sold. 2. Invention was not patented, used, printed one year prior to date of application. §103, Non-Obviousness: 1. Not patentable if at time of prior art invention, the subject matter as a whole would have been obvious to a person of ordinary skill in the art. §111, Application: 1. Specification: 2. Drawing: §112, Specification: Written description: manner and process of making and using invention – full, clear, concise and exact so as to ENABLE a person skilled in the art to make and use the same. Claims: One or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention – independent, dependent or multiple dependent form. Claims may be MEANS or STEPS for performing a specified functions, and may not be enabling (but supported by spec). §271, Infringement: Making, using, offering, selling any patented invention infringes the patent. NOT if it is changed by subsequent processes.

Why a GPS device that insults is not so patentable:

In the previous post I looked at the paragraph 101 patentability of the aesthetic patent invention: United States Patent Application 20080172175 Funny/humorous/abusive GPS system or navigation system Whatever its 101-"ness", does it have 102 problems based on a radio car talk show, as pointed out by patenting expert: Even if it does satisfy 101, it isn't novel. The Bob & Tom radio show has a comedy bit called The Nagigator" that appears on their album "Sideshow" that was released in November, 2004. The idea in the bit is replacing the nice navigation lady with the voice of your wife, telling you how stupid you are. Putting aside the obvious problems with this published application, what this gentleman in the '175 describes has already been disclosed on the radio nationwide at least three years before he filed his application.

On the patentability of GPS systems that insult

According to the spirit of our patent law, all of the arts should be patentable, including music and books. I believe aesthetic effects are useful manufactures to satisfy 101. Case in point. The following utility patent application, the novelty is purely aesthetic.

United States Patent Application 20080172175 Funny/humorous/abusive GPS system or navigation system Abstract My invention is an added feature to the existing GPS systems or navigation systems. It can also be a stand alone GPS system as well. Currently the navigation systems politely give you directions to your desired destination. My invention will be an extra feature in voice generated directions or audio system, which if added to the existing GPS systems can be turned on or off at will. Depending on the mood of the driver or the passengers, this new feature will add a little spice in driving especially to new destinations. The system will behave like a normal human being and will be little unforgiving in case the driver has trouble following voice generated directions. The voice generated directions will be spiced up by adding funny phrases like "YOU SILLY" OR "YOU DUMMY" OR "YOU STUPID" etc. It will purely add a lot of fun and laughter in the vehicle for the driver and the passengers and driving can be a fun experience. In ABUSIVE GPS SYSTEM, meant only for adults, any kind of language or four-letter words or phrases can be programmed in the system. This will also add a lot of spice to the driving of vehicles.

Harvard spinout licenses "black silicon" patents

by Dylan McGrath, EE Times, (10/13/2008 3:09 PM EDT) SAN FRANCISO - Startup SiOnyx Inc. has licensed a portfolio of shallow junction photonics patents from Harvard University in exchange for an unspecified equity stake and downstream royalties. The patents cover a laser implant technique said to alter alters the photonic properties of semiconductors. This technology, known as "black silicon," was discovered by Harvard's Eric Mazur, a professor of physics and applied physics. Mazur co-founded SiOnyx (Beverly, Mass.) in 2006. According to a joint statement issued by SiOnyx and Harvard's Office of Technology Development Monday (Oct. 13), black silicon is a material that absorbs nearly twice the visible light of regular silicon and detects infrared light that is normally invisible to silicon based devices. This capability that allows for performance enhancements in applications ranging from simple light detection to advanced digital imaging and solar energy, according to the statement. SiOnyx said it is is producing devices for scalable platform for hyper-spectral imaging. The SiOnyx implant is compatible with established semiconductor manufacturing processes and introduces no new material, according to the company. SiOnyx has a patented process that employs femtosecond laser processing of the target material resulting in an extremely thin (300nm) photoconduction layer applicable to both biased (detection) and photovoltaic (power generation) applications, the company said. "Black silicon addresses the fundamental pain point in all photonics systems, the sensitivity to light," said Stephen Saylor, SiOnyx president and CEO. "By demonstrating that the black silicon process cost effectively scales within the established semiconductor device manufacturing infrastructure, SiOnyx is poised to transform the $10B+ light detection, imaging and photovoltaic markets by offering device manufactures a path to smaller, lighter and more efficient photonic systems." SiOnyx recently raised $11 million in funding from Harris & Harris, Polaris Venture Partners and RedShift Ventures. Copyright © 2008 TechInsights, a Division of United Business Media LLC All rights reserved

Examiner's hard drive crash costs him his job

Also in the September issue of the PTO Examiners' Union's newsletter: Examiner fired after computer crashes When managers in Technology Center 2700 offered next to no catastrophic time after the hard drive crashed and burned for a probationary examiner who was producing at 100 percent, the examiner's production unsurprisingly suffered and the USPTO fired him because he had "not progressed at the expected rate". Maybe the examiner could have progressed at the expected rate with a crashed hard drive if the examiner was working from a beach in Hawaii. Any patent reform that does not start with an overhaul of PTO management is corrupt patent reform.

COPYRIGHT TERM EXTENSION VIOLATE "PROGRESS" IN THE CONSTITUTION, OR DOESN'T IT?

Law professor Maria Pollack, whom I have criticized in the past for not understanding, science, engineering or patent law, HAS written an interesting article on how aspects of copyright law violate the "progress" clause of the Constitution. Her paper is titled "What is Congress supposed to promote? Defining 'progress' in Article I, Section 8, Clause 8, of the United States Constitution", and appeared recently in the Nebraska Law Review. Her conclusion:

This Article uses linguistic evidence to disprove a long standing assumption about the Progress Clause, which gives Congress "the 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". The word "progress" is not a reference to the Enlightenment Idea of Progress and, thus, an anachronistic bias incapable of cabining Congress. The word "progress" means "spread". Congress does not have the power to create any intellectual property regime it thinks will increase the Gross National Product, campaign donations from holders of large copyright portfolios, or world harmonization. Any right to exclude others from use of writings and discoveries must promote the spread of knowledge and technology. This clarification of the constitutional language warrants court overthrow of both the circumvention limitations in the Digital Millenium Copyright Act and the twenty year subsidy provided copyright holders by the Copyright Term Extension Act.

PHARMACEUTICAL AD FOR ER-DYSFUNCTION FALSELY CLAIMS A PATENT

The August 25th San Francisco Chronicle, page A5, had an ad (one in many other newspapers, I suspect), from the BostonMedicalGroup.com for their proprietary process for treating performance dysfunction for those men for which the new pills don't work. One sentence caught my eye: "The secret to Boston Medical Group's success lies in The BMG Method, a proprietary treatment process for Urecktyle Dysfunction that recently received a U.S. patent. The group is the only physician network known to have acquired such a patent, ..." But what is the patent number? The ad doesn't mention it, I couldn't find it on the BMG Web site, nor could I find any patent assigned to Boston Medical Group, or two of its doctors mentioned in the ad - Barry Buffman and Alan Sperber. I am always suspicious of small companies touting patents in medical ads, because the existence of the patent means little medically, and it is all the more suspicious when it is so hard to find the actual patent.

PROCTER AND GAMBLE SUES IRS TO RECLAIM ITS PATENT DONATION DEDUCTION

Speaking of which, Reuters reports that Procter & Gamble is suing the IRS, asking to have $435 million in patent donations reinstated. The news is from http://www.reuters.com/article/americasIpoNews/idUSN1952932320080919 In 2005, the IRS audited P&G's tax returns for 2001 through 2005, with the IRS in 2008 sending P&G a letter asking for extra taxes and interest, which P&G paid upfront without agreeing with the IRS assertions. Now P&G is suing to protest the extra taxes, which it wants back. From the article: "P&G said the IRS asked for more money after looking into tax credits the company claimed for technology donated to colleges and universities, as well as artwork donated to the Cincinnati Art Museum and the National Underground Railroad Freedom Center. The IRS also denied certain credits related to spending on patent work and research, among other items."

NEW PATENT INVESTMENT FUND BUYS $30 MILLION IN PATENTS

ANTI-TR-LL COMPANIES CREATE A TR-LL FUND TO BUY PATENTS Patent startup gains high profile backing - RPX already purchased $30 million in patents Rick Merritt (09/17/2008 12:52 PM EDT) URL: http://www.eetimes.com/showArticle.jhtml?articleID=210602186 SAN JOSE, Calif. - A startup that claims it has a better approach for helping high tech companies deal with the rising costs of patent litigation and licensing has gained backing from two large venture capitalists. RPX Corp. announced it has received an undisclosed amount of equity investments from Kleiner Perkins Caufield & Byers and Charles River Ventures. The startup is one of a growing number of companies sprouting up to address the problem of trolls, also known as non-practicing entities whose sole business is in acquiring and asserting patents, typically against large product companies. As many as 20 percent of the estimated 1,500 patent lawsuits filed in the first half of the year came from such companies, according to John Amster, co-chief executive of RPX. Intellectual Ventures (Bellevue, Wash.), launched by former Intel and Microsoft executives in 2000, is said to be among the first and largest of the group of companies formed in part to address the troll issue. Investors in the company are reported to include Intel, Microsoft, Nokia and Sony. In June another startup, Allied Security Trust, came out of stealth mode to describe its plan to buy, license and sell patents for its corporate investors including Cisco Systems, Ericsson, Google, Hewlett-Packard and Verizon. At that time, industry observers predicted it would be the first of many such collaborations. A report in the Wall Street Journal suggested Intellectual Ventures is itself becoming troublesome for some large companies because it is demanding increasingly high licensing fees for a growing treasure trove of patents it has acquired. The article said RPX will try to carve out a business as an alternative, setting fixed fees for companies to license its patents. John Amster, one of two former Intellectual Ventures executives that formed RPX, said he will not detail the company's business model or customers until October. However he did say RPX will acquire patents in a broad range of technology and e-commerce areas, especially when the patents are being asserted or involved in litigation. "That's the area of most pain for companies," said Amster, who left his position as general manager of strategic acquisitions and licensing at Intellectual Ventures to form RPX. RPX will not assert patents against other companies, but generate revenues from licensing and selling the patents it buys, Amster said. The startup does not expect to seek other direct equity investments either from venture capitalists or high tech companies. The model of a "patent-buying cooperative" set by Allied does not optimally align the interests of potential customers, something RPX will address, Amster said. The startup also aims to help companies reduce personnel time and costs spent defending patent suits. Amster quoted figures from a 2005 survey by the American Intellectual Property Law Association survey which estimated litigation costs were approximately $4.5 million per case, not including the costs of any settlement. RPX aims to buy as much as $100 million in patents and patent applications in 2008. To date it has spent $30 million acquiring about 100 U.S. patents and 50 patent applications including a portfolio that applies to mobile communications and Internet search and another on RFID and distribution of goods. "They have important implications for existing and emerging applications that could create problems for a wide range of companies," Amster said. The startup has been building its staff, hiring Paul Saraceni, an associate general counsel for intellectual property strategy at Yahoo as the startup's Chief IP Officer. Joe Chernesky, president of IPotential (San Mateo, Calif.), a patent consulting and brokering firm said RPX could do well, in part due to its founders' backgrounds at Intellectual Ventures. "This is one that I think will be interesting to watch," Chernesky said. Chernesky was less bullish on Allied which he said has struggled to purchase patents in the face of stiff competition from Intellectual Ventures. "Intellectual Ventures has a huge presence and they have been buying everything up," he said. "They can have an offer on the table within three weeks, and Allied didn't have the procedures in place to do that," he added. Brian Hinman, former chief executive at Allied, said Intellectual Ventures was "a very aggressive competitor," but he said he expects Allied to be successful. In his 18 months at Allied, Hinman said the company grew its staff and tapped into multiple sources of patents. "Some strategic patent portfolios were purchased," said Hinman. "When I joined in March 2007, there was nothing in place except a few companies, a concept and a strategy," he added. "The execution was left to me." Hinman joined Verizon, an Allied member, in August of 2008 as vice president of intellectual property

A very Bilski (non-technological, non-patentable) patent claims

A patent that issued in 2000 that has a nice set of "non-technological" claims. Ignoring the 102 and 103 (the US patent law paragraphs requiring novelty and non-obviousness) problems this patent has, it is a good example of how general might processes be to be patentable, since they claims can be done purely by humans. By the way, the following patent is completely utterly idiotic from a 102 and 103 point of view, since the state of Massachusetts, in conjunction with church bingos, were doing much of the claimed steps in the early 1990s). I highlighted or italicized idiocy. United States Patent 6,102,395 Method for conducting a lottery game Filed: May 1998 Abstract In a method for conducting a lottery game having a plurality of ticket sets, a master party sells the ticket sets to organizations. Each organization sells tickets from ticket sets to customers. Each ticket has hidden indicia which, when revealed, may entitle a customer to instant winnings paid by the organization that sold the ticket and/or may entitle the customer to eligibility for a sweepstakes prize. The sweepstakes prize is funded by the master party from proceeds of ticket set sales to organizations. Claims I claim: 1. A method for conducting a lottery game having a plurality of ticket sets, wherein each ticket set has a plurality of tickets and wherein each ticket, when opened, reveals hidden indicia, some of which (non-patent language, vague) will entitle a customer to instant winnings and/or eligibility for a sweepstakes prize, comprising the steps of: a) selling, by a master party for proceeds, a ticket set to each of at least two organizations; b) allowing each organization to issue individual tickets, from the ticket set sold to that organization from the master party, to customers, and allowing each organization to redeem awards for instant winnings on a ticket issued by that organization; and c) retaining by the master party a portion of the proceeds from selling ticket sets to organizations as a pool from which to finance the sweepstakes prize, thereby allowing said master party to exclusively redeem awards for a sweepstakes prize on a ticket issued by an organization by awarding at least a portion of the pool. 2. The method according to claim 1 wherein at least one organization sells, prior to issuing, tickets to customers. 3. The method according to claim 1 further including the step of receiving directly from customers those tickets which make the customers eligible for the sweepstakes prize. 4. The method according to claim 1 further including the step of determining a winner of the sweepstakes prize from the tickets received and providing to the winner an award from the proceedings. 5. The method according to claim 1 further including providing to the organizations a flair explaining the game rules. 6. The method according to claim 5 further including providing to the organizations a poster for displaying the sweepstakes prize and a last date for receipt of sweepstakes tickets at a drawing location. 7. The method according to claim 1 including providing to the organizations means for transmitting the sweepstakes entry to a drawing location. 8. The method according to claim 7 wherein the means for transmitting is comprised of a mailing envelope and an entry form for transmitting the qualifying ticket and the name and address of the customer holding that qualifying ticket. 9. The method according to claim 1 wherein the organization may be any one from a group comprised of a charitable organization, a club and a tavern. 10. The method according to claim 1 wherein the master party may be any one from the group comprised of a distributor, end user or manufacturer.

Elections looms closer and the USPTO is doomed

It doesn't matter who gets elected as president, the major problems at the Patent Office (IT management, labor relations management, quality control) will continue to get worse. The problem with McCain and Obama is that they don't have much experience or knowledge in technology, and neither do their VPs, and neither do many of their economic advisors (just as Carly wrecked HP). McCain most likely will continue the Bush legacy of tolerating incompetent management and using the PTO as a political tool, while Obama (distracted with other things) will allow Leahy to sell the PTO to the highest bidder (and Obama has too many Lemley/Moore-like academics advising him). In the end, neither candidate really cares about reinvigorating American's economy (with all their campaign trail bickering about silly and irrelevant issues - I mean, this country had to waste two days of its life watching grown(?) men argue about lipstick on a pig [which is animal abuse]). This campaign is basically about who is least unqualified - real encouraging, huh? To understand my skepticism, consider my comments on some comments Hal Wegner of Foley and Lardner recently made: "Professor Arti K. Rai, a leading patent spokesperson for her fellow Harvard classmate Barrack Obama, has argued for a need for change at the Federal Circuit, and particularly for the elevation of trial judges to the bench. She has also argued for the appointment of an Under Secretary knowledgeable about the patent system." Interesting, but why not appoint a patent practitioner to the CAFC? For example, one of the biggest crimes against patent applicants is the CAFC repeatedly ruling that patent specifications must be as long as possible, with endless patent claims to cover every possible infringement. "Don't specify it - can't claim it. Don't claim it - can't assert it." The crime? The CAFC creates this policy while the PTO is trying to create the policy of having patent specifications as short as possible, with as few claims as possible, so they can mismanagement their way out of their mismanaged pendency problem. The two policies together are insane, and cause great uncertainty in the minds of patent applicants as to how to invest their patenting dollars. "President McCain is Pledged to Spend Money on the PTO to Meet its Objectives: A surrogate for Senator McCain pooh poohed the criticism of the PTO leadership by noting that this criticism applied to previous administrations as well." Sure, previous PTO administrations were criticizable (Bruce Lehman being the second worst PTO Director in decades [such a ranking completely ignores the non-entity resume-stuffer Rogan].) But the last six years under legislative aide Dudas - the lies, the hostility, the failed policy initiatives - has severely damaged PTO operational capabilities. Such pooh poohing completely ignores two massive GAO studies documenting multiple automation and labor management problems at the PTO. Anyone who pooh poohs problems with PTO management has a pooh pooh head. Both candidates must pledge, at a minimum, NO MORE LEGISLATIVE AIDES AS PTO DIRECTOR. "Per his surrogates, Senator McCain is committed to spending as much money as needed for the PTO to achieve its goals." McCain's commitment is an insult to inventors and the public, because without a competent and professional management at the PTO, "spending as much money as possible" is a recipe for worsening conditions at the PTO. The PTO is suffering massive engineering management problems, which have to be addressed first before any other reform (most of which depend on the existence of a competent management). Wall Street, which can spend "as much money as possible" is collapsing as we speak. Why? Massive management problems in financial institutions. As have two large government corporations which can and have "spent as much money as possible" - Fannie and Freddie (though they spent too much of their money bribing politicians). Throw tons of money at incompetent PTO management - a sure guarantee of the similar collapse of the PTO. "Federal Circuit Defended: In marked contrast to Professor Rai's criticisms of the Federal Circuit, Edward Reines on behalf of Senator McCain staunchly defended the current composition of the Federal Circuit bench." Again, Edward Reines belongs to that part of the patent bar which holds the public in contempt in the sense that the concerns of the public (either inventors seeking patents, or the public who benefits from patents) are irrelevant. Reines believes in a sort of imperial CAFC, kowtowed to by lawyers, where the CAFC (and the Supreme Court) keep on issuing decisions that drive up the costs of patent prosecution, and that reinforces a stare decisis based on vagueness and contradiction of science and engineering. That's all fine to Reines - doesn't affect him or his clients. Given some of the nonsense science in CAFC oral questions and written decisions in cases like Nuijten, Microsoft/ATT, Bilski, Comiskey - yes, the CAFC needs some tuning of its competence in handling science and engineering issues (such as allowing a few scientists and engineers as clerks). "Chief Judge weighs in at Harvard with his own observations: As part of the previously referenced Harvard appearance last week, the Chief Judge remarked: 'When, I ask, did we ever before see patent policy discussed publicly by presidential campaign advisors?' ..." Well, Judge Michel, both candidates and their supporters keep on endlessly chattering the mantra of "We need new technologies to lead the economy forward", without realizing that a key component in that process is the identification and protection of the best new technologies with patents. One of the worst effects of the low quality of issued patents is that it makes it harder for the investing public to quickly identify new inventions worthy of financial investment. A completely mismanaged patent office thus weakens the nation's economy, and thus the nation's national security. Too bad the CAFC doesn't give that much of damn about incompetent PTO management. ... 'Next, we may see potential Federal Circuit nominees being touted or trashed in the media in advance of any vacancies.'" Well Judge Michel, given some of the problems your colleagues have in understanding the basics of science and engineering, I think you should be less contemptuous about scrutiny being applied to CAFC candidates. Indeed Judge Michel, how often do CAFC judges talk, not to lawyers, but to scientists and engineers? For that matter, how often do the CAFC judges talk to patent applicants and inventors, who are extremely affected by CAFC decisions? I doubt very often, which is irresponsible given the increasing role science and engineering is playing in CAFC decisions (such as anything to do with 35 USC 101 and 103). Any CAFC judge who does not believe that propagating signals are physical and useful needs to be trashed in the media. Shanna Winters; retired chemical executive -- Candidates to be Dudas' Successor: This writer is unaware of any candidates openly seeking the position of Under Secretary other than Shanna Winters. There has so far been no public discussion concerning her suitability for the position, and no comment released from Professor Rai or any other member of the Obama campaign. Hal wrote this paragraph to piss me off :-) Fine, Hal, here is some public discussion on Shanana Winters - she is another professionally unqualified legislative aide whose appointment as PTO Director or Deputy Director will be a violation of the law. For the two biggest problems at the PTO, well documented in lengthy GAO reports - that of examiner management and information systems management - Shanana Winters has no experience or competence whatsoever. Additionally, anyone remember hearing her speak anywhere in the last ten years outside of the Beltway, or read anything non-trivial about patent law written by her? NO NO NO. Is she urging the Congressmen she works for to investigate reports that PTO SPEs are ordering examiners to reject everything? NO NO NO. I can (and will) take the Peterlint complaint and pretty much just swap names to have a complaint in the ready (even better, this time around we don't have to argue about standing because the judge gave it to us under the APA in the Peterlint lawsuit). My colleagues in the lawsuit and I have committed to refiling a lawsuit against any legislative aide so appointed, and this time around I EXPECT more co-defendants and more financial support. My goal is to raise at least $50,000 to fight any such appointments. Inventors, examiners and the public deserve, nay are owed, competent PTO management. A former President of the intellectual property arm of a major Midwestern chemical company, recently retired, has been mentioned as a possible successor on the Republican side. Several other names on both sides have been privately circulated and are worthy of consideration. As long as they are not legislative aides. Myself, I prefer someone with a lot of experience in IT management as the next PTO director, but sadly, anyone with the competence makes ten times what the PTO salary is. The innovation America needs to regrow the country is not going to come out of mismanaged companies begging Congress for loans (the auto industry, much of the financial industry), or big companies who can buy policy (your Microsofts, energy companies, the Gramm family's Enrons and UBSes) to compensate for the lack of much real innovation, etc. It is going to come from the smaller, nimbler, innovative companies and start-ups, who right now are getting screwed big time by the worsening conditions at the Patent Office with longer pendencies and expensive idiotic Office Actions. Right now, neither candidate is saying anything that is good for such people. Too busy telling lies.

How God supports patent reform, or patents in general

From NBC's Michael Levine: As questions have been raised over how thoroughly Sen. John McCain's presidential campaign vetted Alaska Gov. Sarah Palin for the V.P. slot, it seems the McCain campaign was unaware of a video -- available online -- in which Palin talks about God's role in U.S. military action overseas, according to a political operative familiar with the situation. The video, first reported by the liberal blog HuffingtonPost.com, is from a June Palin speech to the graduating class of commission students at Palin's former church in Wasilla, Alaska. While describing her family, Palin told students about her oldest son, 19-year-old Track, who is set to be deployed to Iraq this month with the U.S. Army. She urged students to pray "that our leaders -- that our national leaders -- are sending [soldiers] out on a task that is from God." She added, "That's what we have to make sure that we are praying for: that there is a plan and that that plan is God's plan." (note: legitimate question then - is there patent reform in God's plan? And after Georgie Bush's hearing from God to invade Iraq, I am scared of this talk.) "It's pretty uncomfortable stuff," said the political operative, after watching the video online. "It's bad. It's really bad. It's going to be interesting to see how this plays out." The seven-minute speech is posted on the Web site of Palin's former church, the Wasilla Assembly of God. But, the political operative said, the McCain campaign seems to have had no knowledge of it when Palin was announced as McCain's running mate on Friday. For fans of the Daily Show: The most recent Republican hypocrisies were best pointed out by Jon Stewart on The Daily Show last week, with clips of Karl Rove flip-flopping on whether someone who was once mayor of a city as small as Richmond and governor of a state the size of Virginia is qualified to be Vice President (on August 10, Rove said that a possible Democrat nominee, Tim Keane, was not qualified; last week Rove said Sarah Palin, former mayor of tiny Wasilla, Alaska and current governor of Alaska, was qualified); of Bill O.Reilly on whether a teenage girl's pregnancy is the fault of her parents (it is, when the parents are the parents of Britney Spears' sister Jamie Lynn, but it's not when the parents are Governor Sarah and 'First Dude' Todd Palin); of the prostitute-hiring Dick Morris on whether certain attacks on a female candidate are sexist (last year Morris said Hillary Clinton shouldn't complain about sexist attacks, because she needed to show she could play with 'the boys'; but last week Morris complained about sexist attacks on Sarah Palin); and a clip of Sarah Palin herself, from last March, saying that women candidates should not 'whine' about sexism

Obama may be worse for patent policy than MacCain

Unfortunately, Senator Obama is addressing the problem of patent reform, but in a negative way. Senator Obama, along with Senators Hatch and Leahy, were the primary sponsors of the Senate version of the Patent Reform Act that just went down to defeat in the Senate. So, if Obama is elected President, he will definitely sign this awful piece of legislation into law. Practitioners whom I know have contacted Senator McCain, and they tell me that he is willing to listen to reason. Exactly what that means, I do not know.

Why the horse-shaped house is a problem patent

In a recent post, I mentioned a patent on a horse-shaped house (U.S. patent 5,564,239). Here is a very thorough analysis from a reader: The patent for a horse shaped sculpture may also be a good example of a weak patent examination process in action. The first cited patent - from 1882 - really sets forth the entire concept of an animal shaped building. Including stating "The building may be of the form of any other animal than an elephant, as that of a fish, fowl, & etc." That description pretty clearly includes a horse, and anyone looking at the patent - or the actual buildings that resulted, would surely realize that the building could be shaped like a horse, or a cow, or any other animal. Isn't it obvious to surround a building (of any sort) with a garden and/or a moat, and/or a fence? Lets see - gardens have surrounded buildings for centuries, and we've all seen castles from 500 years ago which are surrounded by water (and even have gardens in some cases - and even bridges over the moats). Is it novel to make the outline of the garden, or the moat, octagonal? Wouldn't that be an obvious extension, of say, a pentagonal or hexagonal shape? In fact if I wanted to spend an hour or so I bet I can find an octagonal moat surrounding a building. And thus with the prior art you have the '239 patent. But it is an amusing patent. I remember visiting Lucy the Elephant - built from Lafferty's 1882 design in Margate NJ. It was a decrepit relic when I was young, but has since been restored. See the story at: http://www.lucytheelephant.org/ The web site includes historical descriptions of other similar structures, how they were used for amusement purposes, etc. By the way -- Lucy the Elephant is surrounded by a rectangular fence, with an opening. Is it really an invention to make the fence octagonal instead of rectangular, rhetorically speaking?