Posts Tagged ‘patent reform’

Patent Reform: If You’re Not Angry, You’re Not Breathing

Sunday, 11 September, 2011 05:17 Written by Aaron Thalwitzer 0 Comments

Aaron Thalwitzer

After nearly10 years of finagling, patent reform legislation is on its way to the President, who will sign it (Obama does not veto; see here). This gives me a perfect opportunity to wax poetic on all manner of patent issues, issues which coulda and shoulda been addressed in the bill, but weren’t, at least not how I woulda liked. As my colleague, patent attorney Mark Malek, recently wrote in an all-too-true article, the bill is not what it could have been, especially since it diverts USPTO revenue away from the USPTO. But this is death by a thousand cuts.

As IP expert Christopher Sprigman said, “Congress has lost any capacity to piece together these private interests into a public-welfare-promoting change to the patent system. It’s really not about optimization anymore, it’s about which faction is going to win out.” The last minute wrangling in the legislature added the equivalent of pork to the bill for everyone from patent trolls to giant tech firms to lawyers from the Eastern District of Texas! But don’t worry, big pharma wasn’t left out.

In a specific provision that hit home for me, Wall Street jumped into the fray, fight over over a patent on debit card swipe fees, which have apparently cost the financial industry over $400 million. Boo hoo. I wonder if that’s why SunTrust told me they’re going to start charging me $5 per month for the privilege of using a debit card (needless to say, I’m no longer with SunTrust – I’m a principled man). Business method patents like this have been a problem for a while, and the bill doesn’t help everyone, just the banks (thanks, Chuck Schumer!).

The bill did not change patent troll hallmark of taking an existing technology and adding “over the internet”, or “on a smartphone” to get a new patent. Pharmaceutical patents are different than most others: a drug patent requires only the chemical compound in the drug. That’s it! A chemical compound either is or isn’t. There’s no gray area, no need for never-ending patent searches and no point to being a patent troll. Needless to say, drug companies was tight patent law and harsh infringement damages. Our current patent regime protects drug patents very well. Obviously, it does not promote the public welfare, at least compared to the rest of the world. We’re the only country that gives out drug patents without regulating drug prices. But you already knew that, since you pay $200 a month for that medicine that’s keeping you alive. Big Pharma is still a big winner here, maybe the biggest – but that’s been the case for a while, and that’s enough illustrations of terribleness.

Who are the winners? Patent lawyers, undoubtedly. See Mark’s article for why. Who else? Patent litigators, for sure. Trolls are still out there; the bill did not shine light on them, and they most certainly have not been turned to stone. The bill should have created different systems for different techs. Drugs are different from mousetraps, and mousetraps are different from debit card fees. We need different standards. Patents are necessarily complicated, and the law must reflect that, not ignore it. See here for the Obama administration’s PR vision of what could have been. I wonder what the spin will be now that it mostly failed.

Patent Reform Bill Passes the Senate an on its way to the President

Friday, 09 September, 2011 09:14 Written by Mark Malek 2 Comments

By: Mark R. Malek

The United States Senate has now passed the American Invents Act by a vote of 89 to 9.  See Gene Quinn’s recent article on IPWatchdog.com for some great insight on how the vote went.  I do agree with Gene that this version of the patent reform bill is not a great one.  My biggest gripe is that the bill continues to divert fees away from the patent office.

There was a point during this process when I thought that fee diversion was finally over.  I wrote an article back in February when PTO Director David Kappos announced President Obama’s 2012 budget.  The great news during that announcement was that the budget provided $2.71 Billion for the PTO.  It is not a coincidence that the PTO was budgeted to raise $2.71 Billion in fees this year.  In other words, the PTO was pulling its own weight as far as the federal budget was concerned.  Tax payers did not feel any burden by the PTO.  As we all know, any thought that the PTO could keep the fees that it generated in order to enhance its efficiency was over quickly when the folks that we trust to run our country could not agree on a budget, and almost shut down the entire country.  Here’s my other article about that disaster, and about how the brilliance of DC cost the PTO a big cut in funding.  Aaron Thalwitzer also wrote a great article about how the budget crisis screwed some of the PTO improvements.

I just don’t get it.  What exactly has this patent reform accomplished?  I keep hearing that this will create jobs, but the only jobs that I can almost guarantee will be created is going to be for patent attorneys!  With the first to file system that is imminent, I plan on getting even busier with new patent filings.  Gone are the days when the inventor can give the market a quick test before filing.   Gone is the time to try to tweak your invention prior to filing the patent application.  Now is the time to file early and file often.

Let me ask this other question of Congress – how is it that innovation will grow and patents will get issued quicker if you have stripped the Patent Office of the funding it needs to hire more Examiners and enhance their technology?  If the fundamental problem of lengthy patent pendency remains, then how are more jobs going to be created?  Seriously, these folks just find a catch phrase and stick with it.  “Patent Reform with create jobs” is the most ridiculous one that I have heard to date.

 

Director Kappos Issues Statement as House Considers Patent Reform

Wednesday, 22 June, 2011 11:57 Written by Mark Malek 3 Comments

By: Mark R. Malek

In a press release dated today, USPTO Director David Kappos congratulated members of congress for ushering the America Invents Act onto the floor for consideration by the full House.  My colleague, Scott Nyman, has written several articles about the America Invents Act (see articles here, here, here, here, here, here, here, and finally, here.  As you can tell, the American Invents Act is something that is slightly important to us, and we have been following it closely.  Much of what will come with patent reform will have a direct impact on inventors and various strategies for obtaining patent protection for your inventions (not your ideas).

In his press release today, Director Kappos warned Congress that the USPTO would need access to all of its fees “in order to carry out the mandates of the legislation effectively and perform its core mission to support America’s inventors.”  Kappos is right on.  I have been catching a lot of heat for being so supportive of Kappos.  I have been hearing a lot of folks gripe that he is pro-big business and anti-small inventor.  I think that is not the case at all.  The idea of allowing the USPTO to keep the funds that it generates is geared towards transforming the Patent Office into a more effective and efficient agency.  It will allow the pendency times of patent applications to be decreased by allowing the USPTO to increase the number of examiners, provide enhanced training and improve the infrastructure at the Patent Office.

Of course, these measures help the entire patent system, but they are especially helpful to the small inventor that is likely relying on his/her patent application to be allowed so that they can show investors that they have carved out a specific part of the market.  Believe me – big business is not waiting on the sidelines to launch their technologies.  Truly, the last thing that the USPTO needs is some excuse to increase “government oversight.”  I have said it before and I’ll say it again – why mess with an organization that has consistently operated in the black?  Why skim money from such an agency just to support other agencies that operate in the red?  It just doesn’t make sense to me.  I can only hope that Congress takes the warnings of Director Kappos seriously.

 

Zies Widerman & Malek Attorney Cited By U.S. Senate During Patent Reform Debate

Thursday, 03 March, 2011 01:14 Written by Mark Malek 1 Comment

By: Mark R. Malek

During one of my routine calls to the managing attorney of Zies Widerman & Malek DC Area Office (Gene Quinn) I found out something that gave me great pride.  It was funny, because I kind of had to pry it out of Gene.  He is not the type that will lead off a conversation with “guess what awesome thing happened to me today…”  We were having our typical discussion – going over some strategies for various clients.  At the end of our conversation about business, we turned to checking in on each other – how’s the family, what’s going on with you, etc.

Gene Quinn

At the end of that, he gave me the ol’ “by the way, did you read my article in IPWatchdog.com over the weekend?”  Of course I did.  Gene is one of the best sources of intellectual property news out there.  His article that published on Sunday was about the new patent reform bill that is currently before the senate.  As our readers know from the various articles posted by Scott Nyman, (see articles here, here, and here), patent reform is (again) on the move.  There is a real shot of it passing this time…unlike the several patent reform bills that we have seen in the past.

Senator Jon Kyl

Anyway, on Tuesday, March 1, 2011, during debate over the patent reform bill, from the floor of the U.S. Senate, Senator Jon Kyl (R-AZ) repeatedly referenced Gene’s article. Senator Kyl was largely reading from the article at points and explained that he wanted to submit the article into the record because it raised many good points about the patent reform bill.  To see Senator Kyl’s remarks about first to file are available here (starting at 1:38:31).

Big ups to Gene for being recognized by the U.S. Senate for putting such great content up on IPWatchdog.com.  I was lucky enough to have Gene as my intellectual property professor in law school, have been fortunate enough to have kept in touch with him over the years, and am thankful that he agreed to run our operation in the DC Area.  Keep reading for more news on patent reform.  Also, we would really like to have your thoughts on patent reform.

The Passing of a Great Inventor

Thursday, 19 August, 2010 15:00 Written by Mark Malek 3 Comments

Gravatar Iconby Mark Malek

This is a departure from my typical article, but very important to the Intellectual Property Community nonetheless.  I received some news late last night that deeply saddened me.  A great inventor, Dr. Shalaby W. Shalaby, who happens to be my Godfather, passed away on Wednesday August 18, 2010.  Dr. Shalaby was a great man, and you would be hard pressed to find someone who could possibly say otherwise.  In fact, you would be hard pressed to find someone who can remember a time when he was not smiling.

Dr. Shalaby W. Shalaby

In the early 90’s, Dr. Shalaby founded Poly-Med, a privately owned company, in Anderson County, South Carolina.  Thereafter, a new research and development laboratory facility was opened in April, 1995 at the Center for Applied Technology in Pendleton, SC.  Poly-Med describes their core mission as “applying scientific and engineering principles toward developing proprietary polymers analytical testing and fiber spinning services.” 

Dr. Shalaby is the named inventor on more patents than you can imagine, and built a business based on research, development, and licensing of Poly-Med’s intellectual property.  Take a look at the number of patents that are listed on Poly-Med’s website.  As indicated, Poly-Med holds many US and Foreign patents.  Poly-Med did not stop at the patent phase.  They developed their products, gave them names, and secured trademarks on those names.  Take a look at the number of trademarks that are listed on Poly-Med’s website.    

Dr. Shalaby and Poly-Med are a great example of the value of intellectual property and the need for patent reform, a reduction in the backlog of patent applications, and the economic impact that intellectual property can have on the economy.  When viewing the intellectual property that Poly-Med was responsible for, I begin to ask myself some economic type of questions.  How many people did Poly-Med employ?  What was the economic trickledown effect of the intellectual property that was developed by Poly-Med?  How many technologies were developed using Poly-Med technologies as a springboard? 

We can go on and on about the success of Poly-Med and how intellectual property played a big role, but the real point of this short article is to pay tribute to a great man, a great friend, and a great inventor.  Dr. Shalaby has left quite a legacy and will be missed by many.  He is survived by his wife, Dr. Joanne Shalaby, his four sons, and ten grandchildren.

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