Well, that surely didn’t take long.
Gene Quinn, at IPWatchdog.com, points to a letter sent to President Obama (PDF) from over 130 manufacturing companies located in the United States urging the administration to shelve patent reform. In the letter, the parties clearly articulate their concerns about patent reform “proposals” that have been floated and the perceived consequences to manufacturing employment and competitiveness.
While there is some ambiguity out there about President Obama’s plans and priorities regarding patent reform (although, he did mention the awful “gold plated” scenario) – I think it is probably too early to read tea leaves.
Labor unions and traditional Democratic labor groups backed the campaign and election efforts in unprecedented ways and they will have a significant voice and influence at the negotiating table – a position that may have been somewhat discounted in the previous administration. Considering labor’s opposition to patent reform in 2007, President Obama’s “perceived” willingness to push patent reform should not be taken for granted by his high technology/software supporters.
It appears that the manufacturing letter may be the first salvo to remind President Obama of the strength of support he received from labor and the manufacturing sectors. I would predict that similar letters in support of patent reform will be forthcoming from the Coalition of Anti-Patent This and Coalition of Anti-Patent That. (Did that last sentence tip off my personal opinion of the matter?)
One question I do have – does anyone really think these letters are useful? My guess is that 5-10 letters written by constituents are more important to the vast majority of members of Congress than a form letter signed on by a couple hundred interested parties. But then again, I am a fan of “Mr. Smith Goes to Washington.”
Who will have the administration’s ear? My best guess – no one. In the face of the overwhelming challenges facing the country this year and the relatively low profile of patent reform, I would bet that patent reform is dead for serious consideration in the 111th Congress. If I am wrong – I’ll buy you a beer if you ask. Catch is – you have to come to Oklahoma City to collect.
Turning away from WAGs, Gene does an excellent job excerpting the manufacturers’ concerns and the jostling for position that the different patent reform stakeholders are engaged. Highlights include:
- “A recent study focusing on the impact of apportionment legislation estimates that this change alone would put at risk up to 298,000 manufacturing jobs and reduce R&D investment by up to $66 billion. This would be a negative outcome even when our economy is strong; at a time of economic crisis, it would be tragic.”
- “We feel strongly that the prosperity of a few companies within two industries should not come at the expense of a larger group of stakeholders.”
- “[T]here is no explosion in patent litigation. In 1993, lawsuits were 1.45% of patents granted. In 2007, lawsuits were 1.48% of patents granted. The number fluctuates from year to year, but it has never indicated a system out of control. (Source: USPTO Annual Reports, Federal Judicial Statistics)”
- “[T]here is no explosion in patent damage awards. Adjusting for inflation, the median annual patent damages award has actually dropped slightly over the last 13 years. In constant dollars, the median was $3.9 million from 1995 through 2000, and $3.8 million from 2001 through 2007. (Source: 2008 Patent Litigation Study, PriceWaterhouseCoopers.)”
- “It is crucial to remember that patent damages are imposed only after patent validity and infringement are determined on the merits. In other words, those paying damages have been found to have unlawfully used intellectual property belonging to someone else.”
- “It would be a terrible mistake to allow the increase in patent applications to become an excuse to undermine patent protections. Rather, Congress should take advantage of Americans’ growing desire to invent by ensuring that the U.S. Patent and Trademark Office (”USPTO”) has the resources and management to handle the increased number of applications in a thorough and timely manner.”
- “The legislation introduced in the 110th Congress dealt with patent issues on the back end rather than the front end, i.e., it attempted to deal with the symptoms of poor patent quality and growing pendency rather than addressing these issues directly. Many of the problems identified by legislative reform proponents as reasons for such reforms are best addressed instead by reforms of USPTO operations.”
A few other patent blogs have taken a stab at the proverbial crystal ball gazing as to President Obama’s intentions – Patent Baristas, Patently-O, and PatentHawk, for example. One, two, many, none, or all of us may be wrong/right.
What do you think? I would love to hear your thoughts/comments.
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Considering how complex intellectual property law can be, it is understandable that many people – including authors, journalists, biz and tech bloggers, tweeple, etc. – confuse the terms and oftentimes speak/write of “patenting a book” or “copywriting a new gadget”. I also receive a large number of requests asking for advice on how to “copyright an idea” – so, I thought it would be helpful to lay out a short and concise explanation of each area of intellectual property law.
First, what do I mean by the term “intellectual property”? According to Tech Terms Online:
“Intellectual property refers to the ownership of intangible and non-physical goods. … Since intellectual property is intangible, it is more difficult to protect than other types of property.”
While this is a fairly reasonable definition, I prefer to use a more shorthand version: “Intellectual property is something that is created by the mind.” Typically, we think of ideas as being created by the mind – but intellectual property does not protect bare ideas: rather, it is the expression or symbolic power/recognizability of the ideas that are protected.
Thus, it is the design of the rocket that is patented, not the idea of a rocket. It is the painting of the lake that is copyrighted, not the idea of a lake. And it is the consumer recognizable logo that is trademarked, not the idea of a logo. Intellectual property protects how we express and identify ideas in concrete ways – not the idea itself.
In particular:
- Patents: protect functional expressions of an idea – not the idea itself. A machines, method/process, manufacture, compositions of matter, and improvements of any of these items can be patented. Thus, I can patent a design for the nozzle on a rocket, or the method of making the rocket, or the method of making the rocket fuel, or the metal in which the rocket fuel is stored, or a new way of transporting the rocket fuel to the rocket. But I cannot patent the broad “idea” of a rocket.
- Copyrights: protect the specific creative expression of an idea through any medium of artistic/creative expression – i.e., paintings, photographs, sculpture, writings, software, etc. A copyright protects your painting of a haystack, but it would not prohibit another painter from expressing their artistry or viewpoint by also painting a haystack. Likewise, while Ian Fleming was able to receive a copyright on his particular expression of the idea of a secret agent (i.e., a debonair English secret agent), he could not prevent Rich Wilkes from receiving a copyright on his expression of the idea of a secret agent (i.e., a tattooed bald extreme athlete turned reluctant secret agent).
- Trademarks: protect any symbol that indicates the source or origin of the goods or services to which it is affixed. While a trademark can be extremely valuable to its owner, the ultimate purpose of a trademark is to protect consumers – that is, the function of a trademark is to inform the consumer where the goods or services originate. The consumer, knowing the origin of the goods, can make purchasing decisions based on prior knowledge, reputation or marketing.
While each category is distinct, a product (or components/aspects of a product) may fall into one or more of the categories. For example, software can be protected by both patents and copyrights. The copyright would protect the artistic expression of the idea – i.e., the code itself – while the patent would protect the functional expression of the idea – e.g., using a single click to purchase a book online. Likewise, it is likely that the software company will use a trademark to indicate who made the software.
An additional example would be a logo for a company. The logo may serve as a trademark indicating that all products affixed with the logo are from the same source. The creative and artistic aspects of the logo may also be protected by a copyright.
The complexity of intellectual property protection increases exponentially during the life cycle of innovation, research, product development, etc. A single product may contain, for example, more than one patentable feature, one or more creative or artistic expressions that may be protected by copyright, and one or more trademarks indicating the source of the product. All of these points of intellectual property provide an opportunity for protection and/or an opportunity for infringement of a third party’s intellectual property.
So – while it is simple and straightforward (well, mostly) to differentiate between the different aspects of intellectual property, it is a more difficult process to implement a strategic path forward and determine which type(s) of intellectual property protection are appropriate/desirable.
I am sure that PHOSITA readers will quibble, argue and debate me to death on the above-referenced “short hand” guides to intellectual property. Drop your thoughts/short hand (keep it clean) into the comments.
(Photograph by Halima Ahkdar, used under Creative Commons license.)
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A warm welcome to our new home on the web. As many of you might have figured out, PHOSITA (and her writers at Dunlap Codding) have been a bit busy with various activities and projects these past many months.
Ok – who are we kidding, 2008 has been a very quiet and slow year for PHOSITA. Well, all of that is coming to an end!
As 2008 draws to a close, 2009 is gearing up to be a barnburner of a year for PHOSITA. A new firm name. New PHOSITA authors. Same old PHOSITA attitude and character.
As we announced yesterday, Dunlap Codding has a new managing director – Nicholas D. Rouse – and we “institutionalized” our firm name to honor the two individuals who led us with integrity and passion the past 50 years.
What else is going on in Oklahoma City, Washington, DC (and Austin in near future)? In order to find out – stay tuned.
We wish all of our friends, colleagues and supporters a joyous holiday season and a New Year filled with laughter and health.
See you in 2009!
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“Nick is the perfect person to lead the firm as we expand,” said fellow shareholder Douglas J. Sorocco. “Not only does he have the respect of all our lawyers and staff for his keen and precise legal mind, but he is held in high esteem for his steady and consistent demeanor. Nick’s dedication to excellence in client service makes him an excellent ombudsman on behalf of our firm.”
Nick graduated from the University of Oklahoma in 1987 with a B.S. in Petroleum Engineering, and received his Juris Doctor from the University of Oklahoma in 1990. He is a member and immediate past president of the Intellectual Property Law Section of the Oklahoma Bar Association. Mr. Rouse was admitted to the Oklahoma Bar in 1990 and became registered to practice before the United States Patent and Trademark Office in 1992.
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“However, although MedImmune lowers the bar for declaratory judgment jurisdiction, a substantial controversy is still required. In the post-MedImmune authorities relied on by[Plaintiff], a patentee has either demonstrated a preparedness to litigate against the prospective declaratory judgment plaintiff, accused the prospective declaratory judgment plaintiff of infringement, affirmatively asserted its rights to license fees, or engaged in some combination of all three. For example, in Micron Technology, Inc. v. MOSAID Technologies, Inc., 518 F.3d 897 (Fed. Cir. 2008), …
Under these circumstances, the Federal Circuit found that the record demonstrated a “substantial controversy” between the parties under the MedImmune standard.” (Emphasis added).
The instant case is distinguishable because [Defendant] has not demonstrated an intent to litigate against [Plaintiff], has not accused [Plaintiff] of infringement, and has not demanded licensing fees. There is no evidence that [Defendant] has pursued litigation against [Plaintiff].
Considering all the circumstances, the Court finds there is no substantial controversy regarding the … Patent supporting declaratory judgment jurisdiction. Specifically, [Defendant] has not yet established any position on whether [Plaintiff] infringes the ‘356 Patent. [Defendant]’s letter to Plaintiff was a means of gathering information regarding potential infringement, not an assertion of an already determined legal interest adverse to [Plaintiff]. Therefore, because the parties have not established positions of adverse legal interests, there is no substantial controversy regarding the ‘356 patent. Accordingly, this Court does not have subject matter jurisdiction over Counts II and III of [Plaintiff]’s Complaint.
A copy of the decision in PDF format can be found by clicking the link (Dismissal Order (26 KB)).
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It is summer down here in Phosita-land and we are taking a break from all things blogging.
We will be back shortly with new info, new tutorials and some exciting announcements.
Enjoy your summer break – and don’t hate us for the sunshine!
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you know it has to be good.
This time it is the Patent Prospector blasting away at the “over-credentialed chowderheads” who have been huffing and puffing about the havoc patents are inflicting on the economy and innovation.
Lots of good quotes (a couple of which are a bit too risque for PHOSITA), but my favorite:
Jamming what fits into a theoretical construct, leaving as offal inconvenient contrary facts.
Use of “offal” and Alfred E. Neuman in a patent blog post - I am in awe.
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