Archive for the ‘Inventors’ Category
Uh-Oh! Just as we expected (and feared). Another big software patent strategist as PTO Director. This time, the former Google IP patent strategist, Michelle K Lee.
A founder and current board member of ChIPs (Chief IP Counsels), an organization dedicated to advancing the careers of women in patent-related fields.
Board Member of the “Asian Pacific Fund” dedicated to providing resources to the Asian community.
Manager of the Silicon Valley Branch of the PTO.
What does this all mean. It means “Money makes the world go around, world go around, world go around…In the most peculiar ways.”
Big software wants to kill the enforcement of software patents, with Google leading the charge. Michelle K. Lee was their advocate. Now the legislation is before Congress. The legislation will hurt independent inventors by making patent assertion next to impossible for those who are not blessed with the billions of dollars needed to launch software inventions. Who better to ram through the next BAD legislation than one of its chief proponents. Michelle K Lee. See where she stands in her own words http://googlepublicpolicy.blogspot.com/2009/03/patent-reform-needed-more-than-ever.html
Deja vu! When Big Software (aka IBM) wanted to ram through “patent reform” (first to file and a host of big business earmarks designed to weaken the patent system and tilt it further toward big business), Senator Patrick “IBM” Leahy nominated the patent strategist from IBM, David “IBM” Kappos to this same influential post. Why? To implement that dastardly legislation to put the screws to small inventors and make patents a big business bonanza not accessible to small inventors. The result was Kappos lobbying hard for patent reform with the promise that the PTO would get to keep its revenues. However, all the bad parts got through and the revenue part got limited by being subject to House Appropriations Committee oversight and yes, with sequestration and the need to look for money sources the promised end to fee diversion was set aside and diversion continues. Not to be sidetracked by ethical considerations, Kappos pushed on with the implementation starting with all the pro-big business aspects of patent reform, especially two big business specialties, both acronymed FTF, first Fast Track for Fatcats (big companies can pay to jump to the front of the line, underfunded little guys stay back and get screwed over) and First to File (big companies who have in-house patent attorneys, know the rules, and can file super fast will just be “constructively” deemed the real first inventor, even though they aren’t, rather than let the real inventor get the patent the way it used to be). So that big companies can better steal employee inventions, provisions were included to allow companies to file without having to even get the inventors’ signatures (that way if the employee objects, the employee is SOL). To raise the ante on enforcement so small guys can’t afford to enforce their patents, new burdensome reexamination and opposition proceedings were set up (to run up the costs of enforcement and delay recovery so inventors go broke if they try to assert a patent). But inventors are, by nature, inventive and they invented a way around this big business crap, and that was to aggregate their patents in one powerful entity that could go toe to toe in litigation with big business. So, big business set out on a publicity and lobbying campaign to call those aggregators “patent trolls”, “non-practicing entities”, “owners of bad patents”, “frivolous patentee”, “frivolous lawsuits”, “unfair litigation”, etc. Michelle K Lee, at Google, was a leading proponent of those labels and that strategy. Once the dastardly deed was done, well David “IBM” Kappos bailed before the inevitable bad fallout from patent reform hit and went to a lucrative law firm position. Was it the payoff for a bad deed well done? Small inventors (who have seen this revolving door game many times before) think they know the answer, big business will surely deny it.
So, round two, big business fights back with more money thrown at Congress to try to stop the patent aggregators, which truth be known is really to stop small inventors who have no other recourse due to prior patent “reform”. So who does the best White House money can buy and the best Congress money can buy put in now to head the PTO. Naturally, the leading proponent of anti-troll patent reform. So, now we will see the implementation of patent killing rules and laws to block this end run invented by small inventors to find some modicum of reward for their inventions that are being stolen by Google and other big software firms. Deja vu, round two.
One of the big complaints is that these patent-killing reforms will just result in sending to Asia the American jobs that might have been created were American inventors given a fair shake. I hope that appointing an Asian-American is just a coincidence, but one has to wonder if she will have the same sensitivity to the inventors in America as would other possible choices. She is, after all, a Board Member of the “Asian Pacific Fund” which has as its purpose “a need to increase the resources available to the Asian community.” We hope those resources do not include the inventions created by small American inventors and the ‘Asian community’ is the one that is a welcome part of the American community and not the one centered in Beijing, Seoul and Tokyo. Ms. Lee is from Silicon Valley, which is known as a hotbed of invention, so we can only hope here loyalties are with the startups and small inventors she represented occasionally at Fenwick & West rather than their big software clients like Google where she went before being pushed rapidly up the ladder at the PTO. I have serious doubts that she is being appointed for any other reason than to see to the implementation of anti-patent troll rules and regulations, but I wonder how strongly she will fight against jobflow to Asia. It is, I submit up to Ms. Lee to prove me and other skeptics to follow wrong. Until then, I am operating under the assumption that her motto will be a warning to small American inventors and patent aggregators “Whatcha gonna do when they come for you? Bad Boys, Bad Boys. Whatcha gonna do when they come for you?” Next move up to you Ms. Lee! From here in St. Louis in the “Show Me State”, I say show us where your loyalties lie! From the heartland of American, and the Gateway to the West, I say to you, I hope it is here in America, so it can remain the home of Yankee ingenuity! God Bless America, Keep it Strong, Resilient and Ever Creative. In the dreams of our inventors lie our nation’s hope for the future. Don’t let the dreams die! Michelle Lee, What Will You Be?
Bruce Burdick, Managing Attorney, The Burdick Law Firm, Alton, IL & St. Louis, MO
Owner, America Invents IP Blog
Licensed: IL, MO, TX & numerous state & Federal Courts
Registered Patent Attorney since 1974
Past President, Illinois Innovators & Inventors
Member, Inventors Association of St. Louis
Past Chairman, Midwest Inventors Conference 1999-2006
Member or Past Member, American Bar Assoc., Licensing Exec., American Intellectual Property Law Assoc., International Trademark Assoc.
Top IP Contributor 2012 & 2013, Avvo.com
[This editorial comment article may be reproduced provided due credit is given as to the source]
In it’s first major inter partes reexam decision on business method patent claims, the PTAB has a blockbuster. Remember the name SAP v Versata, as it will be perhaps the hottest topic this year in patent law unless and until the Federal Circuit and/or Suprem Court reviews and revises this monumental decision. It will change the way patent applications are drafted and prosecuted. A patent prosecution attorney who is not up to speed on this decision has a serious malpractice risk. The PTAB announced its presence by determining that the appropriate claim construction standard for post-grant review is the Broadest Reasonable Interpretation (BRI) as opposed to the standard of claim construction used in US District Court proceedings (Phillips v. AWH) and then held all of Versata’s claims unpatentable as directed to unpatentable subject matter. It’s a major turnaround of the case and victory for SAP, but sure to be appealed to the Federal Circuit. The PTAB has sure made its new presence known in a big way with this decision effectively gutting a $345 million infringement finding by declaring the claims invalid as too abstract.
This was one of 3 proceedings, as there are also pending a Federal Circuit case and an USDC-VA-E case.
Versata won a significant decision at the USDC-VA-ED of $345 million for infringement, and the Federal Circuit had affirmed on May 1, 2013. See nice report in easy to read language at http://www.reexamlink.com/2013/05/federal-circuit-appeal-decision-in-versata-software-v-sap/.
Bruce E Burdick, The Burdick Law Firm, Alton, IL
New tool available from Google Patents that not only helps locate prior art but also helps locate infringements.
Google has added to each patent overview in Google Patents (see for example 6,425,764 at http://goo.gl/f31nh) , a blue button labeled “Prior Art Finder”, which appears to be a search tool that searches Google Scholar, Google Patents, Google Web, Google Books and Google People databases to try to find references that use the words of the patent claims in the patent. By default this gives the top 10 references from all those sources. Very cool, right? It arguably does for free in seconds what an invalidity searcher would charge thousands of dollars to do in a few weeks. The Geeks who have noticed it so far have touted it as a new way to fight patent trolls by cheaply locating patent killing prior art. And, it will surely do that in some situations. Patent defense attorneys will certainly welcome this new tool, as they and their engineers can pour over this stuff and quickly locate significant prior art to use in invalidity arguments and/or invalidity opinions. Even though I do more plaintiff work, I also welcome it as it allows me to play devil’s advocate and locate those things I might expect my opponent to assert in arguments for invalidity. I also welcome it on an objective level as being an objective “truth finder”. This tool is arguably neutral as to whether what it finds in invalidating art, as it just apparently searches for things in a given time period that seem to be similar based on the words of the patent claims in question.
As a plaintiff’s attorney in infringement cases, I notice a neat and perhaps unintended capability of this “Prior Art Finder”. As the saying goes, “what infringes if later, anticipates if earlier”. The Prior Art Finder has user adjustable search fields for the beginning and ending date of the search it makes. Again referring to 6,425,764 (Lamson VRIT patent) when we click on the Prior Art Finder button we get the following screen http://goo.gl/eO4fO in which you will see on the left the heading “Custom Date Range” which can be adjusted. For example with 6,425,764 I know the priority date is the provisional filing date of 06/09/1997 rather than the non-provisional date 12/12/1997 listed. Apparently the Google programmers realized this sort of situation and made the date range fully adjustable. However, here’s the really neat twist for patent enforcers – if you make the starting date the issue date of the patent and leave the ending date blank or today, you get an infringement search since now the “Prior Art Finder” becomes a subsequent art finder. So in my example, doing that produces http://goo.gl/rn4qt a list of possible infringements. Note it can also be customized by clicking on one of the boxes at the top of the page, say Patents, to just list patents or to Scholar to just list scholarly articles, etc. As the attorney for 6,425,764, that is a great tool I will certainly use to advantage.
L2BL (lesson to be learned) What anticipates if earlier infringes if later.
Here is a key piece of practice advice for transitioning to FTI on 2013-03-16. How you handle your cases procedurally could make the difference between getting a patent and not getting a patent, or between infringing and not infringing.
If prior to effective date (2012-03-16) you are first to invent but second to file, you want to monitor for post 3-16 CIPs, as you would not want to abandon your app if there is one.
If prior to effective date, you were second to invent, but first to file, you want to file a CIP after 2013-03-16 and monitor for abandonment of the second to file application, as that would remove it an obstacle to patentability due to the prior inventor abandoning his right to that date of invention.
For a detailed explanation of this see the following article:
The Patentology blog published a nice article with a chart on grace periods in major countries.
Copy of Comments Sent Earlier Today 2011-11-08 to PTO:
On small inventor international rights and small business innovation fund, in response to USPTO invitation.
Mail Stop OPEA
1450, Alexandria, VA 22313–1450,
ATTN: Elizabeth Shaw.
I submit the following in response to your request for information for purposes of AIA mandated studies due 2011-11-08.
- Overall, how important is international patent protection to small business? Answer/Comment: Small businesses usually start out with a small local focus, both in assessing their potential market and in sourcing new jobs. That is why small businesses create the majority of new jobs in America. They are not in a position to hire foreign workers or set up foreign factories. So, foreign IP rights, including patents, are normally not considered until the business gets big enough to start thinking globally, but by then foreign patent rights are usually lost. The US Government, and the United States Patent and Trademark Office in particular, do a horrible job at protecting small businesses from this short sightedness. When countries like China, India, Russia and Koreas openly steal intellectual property, millions of US manufacturing and technical jobs are going overseas every year. When the US Government puts an IBM patent strategist in charge of the United States Patent and Trademark Office it is clear why a study is being mandated, as there is every reason to think the US Government has not considered the interests of small business in enacting the Anti Inventor Act of 2011. You are well aware that prominent studies have found that all net new jobs in America are created by small businesses, the consequences of AIA will be devastating. (See, The Importance of Startups in Job Creation and Job Destruction, July 2010, by Tim Kane, Ewing Marion Kauffman Foundation; http://www.kauffman.org/uploadedFiles/firm_formation_importance_of_startups.pdf ) . Don’t lose sight of the fact that AIA was passed by the best Congress money can buy to make it easier for the large multinationals infringe small entity patents with impunity and that results in entrenched businesses being able to send jobs overseas that would have otherwise been created here. (See, Patent Reform is all About Making it Easier for Multinational Corporations to Steal Innovation and Offshore American Jobs, 4-12-11, by Neil Thomas, Silver Spring, MD; http://www.docs.piausa.org/NeilThomas/Patent%20Reform%20is%20All%20About%20Making%20it%20Easier%20for%20Multinational%20Corporations%20to%20Steal%20Inventions%20and%20Offshore%20American%20Jobs,%204-12-11.pdf. It has now become a ‘national security’ issue.
- At what point, if ever, in the growth of small companies does international patent protection become important? Answer/Comment: Small businesses usually start out with a small local focus, both in assessing their potential market and in sourcing new jobs. That is why small businesses create the majority of new jobs in America. They are not in a position to hire foreign workers or set up foreign factories. So, foreign IP rights, including patents, are normally not considered until the business gets big enough to start thinking globally, but by then foreign patent rights are usually lost. Also, as said in other comments you will received from small inventors, foreign rights become important at the outset, but are just not recognized as such as that time. So, they are important from the day that Congress enacts legislation and the USPTO writes regulations that hurts small businesses and assures they are cheated out of their foreign rights by David Kappos’s pals at IBM and other domestic foreign multinationals that the United States Patent and Trademark Office caters to most of, if not all, the time. Small startups are competing from ‘day one’ in a global market for survival with companies worldwide which have huge cost advantages, regulatory advantages and governments which protect them from competition (e.g. The Peoples Republic of China.) A senior Chinese judge understands what cowtowing by David Kappos and fellow IBM puppets in the Senate (e.g Sen. Patrick “IBM” Leahy) have caused to occur by lobbying on behalf of IBM for passage of the Anti Inventor Act [AIA], “…it will make the [US] patent less reliable, easier to be challenged and cheaper to be infringed…will give the companies from developing countries more freedom and flexibility to challenge the…US patent…and make it less costly to infringe. The bill…will weaken the patent protection…” (See, China Intellectual Property News, Nov. 7, 2007; quote from the former Senior Judge, IP Division of Beijing High People’s Court, about a previous version of the pending American Invents Act H R 1249; http://www.reformaia.org/sites/default/files/071107China%20Intellectual%20Property%20News_Certified%20(with%20Selectable%20Text).pdf). So foreign rights are always important to a small business since the rights must, by law be protected within a year of filing the US case or they will be lost, and yet the sycophants in Congress and in the Director’s offices pretend to be helping small inventors when small inventors know just the opposite to be true. You and they are out to cater to IBM and its ilk and not to small business, because you and they care about your Government job security not American job security. Is it treasonous? Probably. Is it deliberate? Certainly. Is it done knowingly with malice? Probably not. You and they are not that smart. However the pupeteers pulling your strings certainly know the score and know the harm they cause to America. One thing we know for sure, and product liability cases, EPA fines, corporate fraud convictions (remember Enron, remember Bernie Maddoff, remember Shearson Lehman, remember etc., etc.) is that short term corporate greed has no conscience or morality and cares nothing for the damage it does to America so long as profits are up today.
- What challenges, if any, interfere with the growth and competitiveness of small companies if international patent protection is not sought early in the innovation process? Answer/Comment: Simple, low cost foreign sourced goods will eat the heart out of the small business if there is no protection against foreign companies stealing the R&D and thereby lowering their cost and producing with slave labor. The result is that foreign invention thieves can make and sell the identical products across the street from the small business and do so at much lower prices, since they have lower costs and do not have to pay fair value for the inventions created at the risk of and by the time, labor and expertise of that small US business. The theft of intellectual property by countries like China, India and Russia and the enormous cost and expense of enforcement to protect IP, now made even more difficult by the Anti Inventor Act of 2011 simply makes that more difficult for small businesses. Again, your boss’s bosses at IBM, MS, Samsung, Sony, Toshiba, and Gary Locke’s great friends in China, whom he now serves as Ambassador, are happy you are killing American ingenuity with the Anti Inventor Act of 2011, and really don’t mind the special earmarks to Wilmer Hale law firm ($214M from Sec. 37) or the hoped for invalidation of the Data Treasury patents ith the introduction of “first-to-file” (FTF) it forces small companies to divert their attention and resources from research and development, finding customers, and growing their business to filing numerous, often wasteful patent applications both domestically and internationally. Under AIA small companies will now need to file multiple applications as their R&D progresses to protect a multitude of ideas, only a few of which will ultimately work. For a small company this will be a huge distraction and cost since seeking patent protection is an expensive and time-consuming activity. Passage of F-T-F was a huge disservice to America’s small businesses!
- What specific role does international patent protection play in the successful internationalization strategies (such as franchising, exporting, or foreign-direct-investment) of small businesses? Does this role differ by industry or sector? Answer/Comment: FIRST, Unfortunately, not much since the main offending countries only pay lip service to IP rights and the White House’s IP czar Victoria Espinel seems to be completely ineffective at doing her job. She has been able to do NOTHING to stop IP piracy by China, Russia and India. Instead she just publishes self-serving reports and flies around on boondoggle trips while these countries are engaged in “unfair trade practices,” protecting their domestic industries, manipulating their currency, and laughing at her. American businesses (and I don’t mean IBM, Intel, MICRON and GE which employ more people overseas than in the US and are thus no longer truly American companies) need some sort of protection from our Government and relief from corruption of Government by people like David IBM Kappos, Senator Patrick IBM Leahy, Representative Lamar DELL Smith and the ineffectual Victoria Espinel. However, AIA goes the other way and makes patent protection more difficult and more expensive for small businesses, not less. This is apparently the aim of the United States Patent and Trademark Office, as “Fast Track For Fat Cats” was immediately implemented, and 15% fee increases for small inventors were immediately implementd, but the fee reductions for micro-entities, the definition of which is spelled out in detail in the AIA itself, was put on hold indefinitely while David IBM Kappos deliberates on the matter. Is it any wonder small business thinks Kappos is strictly focused on Fat Cats and that all his discussion of small inventors is just self-serving CYA BS aimed at obfuscating the matter and misleading small business while he and his master at IBM and MS pick their pockets.
- How can the USPTO and other Federal agencies best support small businesses regarding international patents? (a)In obtaining international patent rights? Answer/Comment:Make all US Patents, on an opt-out basis, international patents, subsidizing to whatever substantial extent necessary for small entities, the international fees to make it affordable to small business and obtaining by treating auto-designation of all member countries at low cost for small entities. This would have the effect of allowing small businesses the advantages of the 30 month period under PCT. That would largely solve the current problem of lack of foreign protection for inventions that meet with success during that time period, which for software and high tech should be sufficient to determine market viability internationally. This would also work to the advantage of the big businesses to which you currently cater. This would help take us back to the founders’ intent that patents be both a reward for the inventor’s labor in creating the invention and an encouragement for him to give it to the public. SECOND Move to a registration system much like trademarks, where applications are given rapid novelty exam, and if novel passed to publication for opposition (say 60 days). 90% will not be opposed and will issue. 10% (an educated guess) would draw opposition, and notice would be provided prominently of the opposition so other opposers could cite their art, prior sales, uses, or other invalidation grounds, if they wanted. Examiners would quickly review the citations and issue a decision. Now we have certainty and something courts would respect and we have it within, probably, 6 months of filing. That is timely enough for software, even, and would eliminate the main complaint of big business, which is that they are getting blindsided by issuance of patents after long delay at the PTO. Create a requirement that the PTO, not any court, reviews infringement and invalidity issues, so that all such issues are referred to the patent examiners where they belong. It is ludicrous to have non-technical unqualified juries and judges evaluating such issues because it results in sloppy analysis and conflicting decisions based more on which advocate is arguing the case than on the merits. Patent examiners are just simply not going to be fooled by even the best advocate very often on technical and patent law issues, and if they are it will only be once or they can be replaced. I have been blogging about this simple solution for a decade. See http://burdlaw.com/references/PatentReform/PLEAS-Rev%2020110615.pdf This would help take us back to the founders’ intent that patents be both a reward for the inventor’s labor in creating the invention and an encouragement for him to give it to the public. I feel that First to File (FTF) implementation is designed by IBM and others of the “Coalition” to kill small business. Don’t even try to suggest otherwise to small inventors. We have seen it in action and seen who pushed the AIA with millions of dollars to Akin Gump and other lobbying firms and with pressure on pliant Congressmen in their districts. Those millions were not spent lobbying to help small business, they were spent to help entrenched big business stay on top and get free access to any disruptive new technology that might otherwise displace them from their lofty fat cat status. So, if you care about small business at all, you will suggest in your report to Congress that they repeal FTF and return to “First to Invent.” Of course, we know your game (and we don’t like it) so we are not holding our breadth as we small business advocates are not so naïve to expect you to change your spots. We know, and the evidenced shows, the PTO directorship is spotted with corruption by big business. Actions speak truer than words and we follow the money. That our new Chinese Ambassador, in his prior capacity as Secretary of Commerce, appointed the former patent strategist for IBM as the head of the United States Patent and Trademark Office is an action by the US Government that tells small business the game that is being played. Small businesses know they have been sold out and action such as that says more than words. No degree of lip service to small business can correct the actions taken. We know that “harmonization” begins with “harm” and we small businesses are the ones being harmed. In maintaining international patent rights? Answer/Comment Create a unified, simplified administrative procedure for maintaining US and foreign patent rights so that a small business simply pays one fee to the United States Patent and Trademark Office and that automatically takes care of the international fees. To accommodate the varying geographical scope of international patents, this could be done by the United States Patent and Trademark Office sending a single maintenance bill, perhaps on a yearly basis to spread it out and reduce sticker shock, that included both US and all PCT and foreign national maintenance fees. The key to helping small businesses is to SIMPLIFY so that small business can take the proper action without having to spend huge sums on specialists to advise what needs to be paid when. The United States Patent and Trademark Office could initially just subcontract this out on a competitive basis to one of the maintenance companies that already have programs in place, and which have done this for decades. It is not a hard thing to implement logistically, the problem is your big business bosses (both political and private) won’t let you do it because they want things complex and costly to squeeze out small pioneering inventors so they can steal key inventions with impunity. Again, knowing who is really setting United States Patent and Trademark Office policy (big multinational businesses like IBM), we do not expect much from you in this regard even though the solution is straightforward. Small business activists like me think you are just going through the motions with these “studies” and that the real purpose is to come up with arguments for pro-big business positions and new job killing impositions on small inventors such as those the United States Patent and Trademark Office lobbied for in the Anti Inventor Act of 2011. In enforcing international patent rights? Answer/Comment: FIRST–Create one single, simplified administrative procedure for enforcing US and foreign patent rights (see again my PLEAS proposal http://burdlaw.com/references/PatentReform/PLEAS-Rev%2020110615.pdf) instead of the endless, costly multitude of Ex parte reexam, Inter partes review, PGR, Sec. 18 Transitional Program, US judicial proceedings, ITC proceedings, customs registration, foreign patent suits (in forums where success rates are minimal at best), and bankruptcy (since that is what will happen to the small business if it tries to engage in international patent enforcement.) All these challenges greatly diminish the value of patents and discourage innovation. Hopefully someone at the United States Patent and Trademark Office has the nerve to issue a report that your Director does not like telling the truth rather than one that cowtows to IBM like you Director does. SECOND: Create and fund a Government agency to ‘prosecute’ alleged infringement of small entity held US patents. This would displace the so called “patent trolls” without leaving small entities without a remedy. One of the great tragedies of the patent system is that small patentees have no way of enforcing their patents due to the cost of enforcement, due to the laws and procedures enacted by the best Congress money can buy and its fat cat, big contributor, special interest-focused legislation.THIRD–Provide for injunctive relief. What kind of cruel joke is it to promise “exclusive rights” for limited times that are not exclusive if you are a small patentee without the resources to commercialize the invention yourself? Exclusivity is the leverage that forces big business to honor small dollar patents rather than just steal the invention knowing that the inventor cannot afford patent litigation. FOURTH–Make it a crime to infringe a patent. That way the US Attorney, which does have the expertise and funds to enforce laws, could collect on behalf of small inventors. The US could take a percentage of the recovery as partial reimbursement for its efforts and a fee could be required of the patentees to assure the desire for enforcement is real. FIFTH–Make the loser pay the winner’s fees and expenses in patent litigation, so that the small guy can get contingent fee representation, and so that infringer’s have a much bigger downside risk. This also has the effect of self-policing of infringement actions since the patentee would also pay the legal fees and expenses of a patent infringement defendant found not to infringe. That risk would really minimize the filing of frivolous “extortion” lawsuits that really just seek to harass sufficiently to get bunch of favorable settlements. SIXTH–Make penalties, including treble damages, the norm rather than the exception for infringement.
- What role should the Federal Government play in assisting small businesses to defray the costs of filing, maintaining, and enforcing international patent protection?Answer/Comment: As noted above, an option to have the US Attorney enforce the patent should be made available so small dollar patents can be enforced, which is now not the case.FIRST–As noted above, create a highly simplified ‘one-file’ system where a small business can file once in the US that automatically takes effect world-wide. The current multi-filing, multi-rule system places a disproportionate burden on small businesses and inventors that diverts badly needed funds from R&D to patent filings. This squeezes small business and startups financially, so the risk of failure becomes much greater. That is, I submit the precise purpose of the Anti-Inventor Act of 2011, namely to raise the costs for small business so small business gets priced out of the patent system and it becomes what big business really wants, strictly a rich man’s game. That is not what the founders intended. They wanted patents to go not to the well connected but rather to the well deserving, the original and first true inventor. The US needs to get back the spirit and purpose of the original patent act that, up until September 16th of this year served America so well, despite the special monied interests lobbying so hard to distort and destroy it. SECOND–Create an agency that enforces patents held by small-entity US nationals for them. THIRD–Provide incentives for small-entity US nationals to “practice” their inventions in the US.
- In order to help small businesses pay for the costs of filing, maintaining, and enforcing international patent applications, how effective would it be to establish a revolving fund loan program to make loans to small businesses to defray the costs of such applications, maintenance, and enforcement and related technical assistance? Answer/Comment:This would be extremely helpful, almost without exception. Moreover, there is really no downside to it, other than some big business might be overtaken by a startup with a disruptive (breakthrough) new invention, such as many we have recently witnessed in computer and smartphone technology.
- Under what specific circumstances, if at all, would such a fund be effective at helping small businesses?Answer/Comment: FIRST–If it were a streamlined, simplified, or even automatic process. The less paperwork, the better. SECOND–If the amount of funding was meaningful. THIRD–If the timing was right. For example, one clear situation where it would be perhaps most effective is when infringement is relatively clear but the dollar volume is too low to interest contingent fee attorneys to take the case. If the Government loaned the patentee the cost of legal fees, this would allow private attorneys to pursue the matter, and would eliminate the need for Government attorneys to take the action directly.
- If such a fund would be effective, should the fund be maintained by the Federal Government, and if so, through what mechanism?Answer/Comment: The fund should be administered by the Independent Inventor Assistance Office (IIAO) of the United States Patent and Trademark Office which is already set up to provide assistance, but which currently has no loans to offer. There is no need to create a new agency, provided the IIAO is insulated from political pressure such as having the the loan fund overseen by true small entity inventors or scientists recognized for their objectivity.
- What criteria should be used to decide upon recipients of funding? Answer/Comment: FIRST–Being a small entity (500 employees or less) should be a threshold criteria. SECOND–The loan should be proportional to the appraised value of any particular patent; the more potentially valuable, the bigger the loan. An independent appraiser panel could be assembled to perform this function, or it might be automated such is currently done by Pantros IP and its Patent Index Factor Report.
- Could the private sector be meaningfully involved in maintaining and implementing such a fund?Answer/Comment:FIRST–Could and should. Small inventor representatives like me think it vital to make absolutely sure that the politicians and big corporations are in NO way involved in disbursements by such a fund. It is practically, if not actually, a law of nature that big corporations want to destroy small inventors and are anathema to small patent owners. SECOND–Part of any award to a small inventor successfully enforcing a patent by use of the fund should be a royalty interest of the fund and that should be over and above what is determined to be a reasonable royalty.THIRD–Invite ‘co-investment’ by proven private venture capitalists provided they do not control the invention or the fund. Venture capitalists could help ‘leverage’ such a fund. THIRD–Recognize that big businesses like IBM and Microsoft pay too little in PTO fees in proportion to their size and financial resources and the revenues received in patent royalties. The solution is to increase PTO fees on patents that generate royalties, especially for large corporations, to help finance this fund.
- In order to help small businesses pay for the costs of filing, maintaining, and enforcing international patent applications, how effective would it be to establish a grant program to defray the costs of filing applications, paying maintenance fees, and conducting enforcement and to provide related technical assistance? Answer/Comment: Very effective. Grants should be given for prosecution costs, loans for enforcement. If the enforcement succeeds the defendant, rather than the patentee should be made to repay the loan, as the defendant will have been found to be the cause of the loan being given. Small inventors and businesses typically desperately need capital. Since the patent process and the value of patents are subject to so much uncertainty, the current system is a huge deterrent to innovation. Under what circumstances, if at all, would such a program be effective at helping small businesses? Answer/Comment: FIRST–If the amount of money was really meaningful;SECOND–If the criteria were meaningful. This needs to be BOTH merit based and needs based, unlike the extremely low income criteria being used in the PTO’s new ‘pro bono’ program.THIRD–This should not simply be welfare to poor people, but rather a program to give money to inventive and creative people, so make it effective and meaningful and have it based more on merit and less on means.
- If such a grant program would be effective, should the program be maintained by the Federal Government, and if so, through what mechanism? What type of grant program, covering what specific costs, would be most effective? Answer/Comment: FIRST–As noted above, the Independent Inventor Assistance Program Office at the United States Patent and Trademark Office is suggested as the best place to impartially determine the merit, and means testing is relatively simple in comparison and could likely be computerized. SECOND–Such a grant program should be guided or administered by a non-politicized committee or board run by successful, true small-entity inventors.THIRD–Please make it self-sustaining with grants being made on a profit sharing basis with small inventors so that if a patent is successful, the fund shares in the profits and thus perpetuates itself to fund other entrepreneurs. FOURTH–Please give the fund the discretion to fund any costs that would make the invention an economic reality; much the way ‘venture capitalists do.
- What criteria should be used to decide upon recipients of grants? Answer/Comment: FIRST–Make the ‘grants’ an investment, not just a gift. SECOND–Breakthrough inventions and inventions which have large economic and/or social value should have priority, as they are likely to create the most new jobs. THIRD–A grant condition should be that recipients ‘practice’ their invention in America, not overseas, so as to create employment and economic growth here. Otherwise, what is the point?
- Could the private sector be meaningfully involved in maintaining and implementing such a program? Answer/Comment: FIRST–Could and should! It should be managed (grant decisions made) by credible, honest and successful small inventors and businesses who have “walked the walk.” SECOND–This could be done by appointments to a board of independent inventors who decide the merits of grantee requests. THIRD–Academics should not be in control of the fund, as it will then be subjected to cronyism and parochialism among academics.
- If the Federal Government is limited to providing either (i) A revolving fund loan program or (ii) a grant program described above, but not both, which of these options would be more effective in accomplishing the outcome of helping small businesses pay for the costs of filing, maintaining, and enforcing international patent applications? Answer/Comment: FIRST–I support a revolving loan, with forgiveness if the invention does not succeed but with a share in profits if the invention does succeed, so that the fund is self-sustaining. SECOND–If a grant program is chosen, despite my recommendation, a well-run grant program should operate on a profit sharing basis so the fund has a good chance of being largely self-sustaining and since does not make sense to punish the unsuccessful and does make sense to share in successes. The fund might even be highly profitable monetarily, as well as socially beneficial in promoting progress, and might grow in size and eventually offer assistance to small inventors in other areas, such as payment of attorney fees for prosecution of meritorious applications.
- Are there circumstances under which the Federal Government should not consider establishing any of these programs? Answer/Comment: Yes, FIRST–If it’s administered by the Director or other big business pawn. SECOND–If it’s going to be under-funded, as if the amounts of funding are inconsequential the results will be inconsequential and will render the future establishment of such fund even on a well-financed basis. THIRD–If it’s going to get politicized so that the best Congress money can buy decides which special interest will receive the funds as an “earmark”, as then the results will just be diversion of the money to undeserving political fat cats rather than meritorious inventors. FOURTH–If it’s going to be run by people who don’t know what they are doing, such as the technically unsophisticated members of the best Congress special interest money can buy, as the results will be waste of funds and disappointing results and that will hurt the chances of re-establishment of the fund on a more competent basis later.
Bruce E. Burdick
It now appears that “Microentity fees” were just a gimmick concept of Sen. IBM Leahy to mislead his colleagues into thinking there was something in this bill favoring individual inventors. Now that the bill has passed, those statutorily required Microentity fee reductions which the law said were to be effective immediately upon passage have been instead delayed for “a year or two” for review and regulatory rulemaking. You can be fairly sure that means they will now be killed or minimized, which is apparently part of why IBM Kappos was given power to “adjust” fees. You see, IBM Kappos has raised essentially all PTO fees 15% so small business can help pay for transitioning to a rich man’s game and has postponed the implementation of microentity fees while he “studies” how to implement them, even though no study is needed at all. All that is needed is to read the statute and to divide small entity fees by 2. So, the most logical conclusion is that they are being delayed to try to kill them because they don’t favor IBM. This seems all the more clear since such delay does not apply to fee increases for small inventors, which are already in place, or to the “fast tracks for big cats” (prioritized exam) program which IBM wanted implemented immediately so it could bypass all the small guys and move to the front of the line and which therefore was enacted immediately. Those will be limited to the first 10,000 to request and pay for such priority, and it appears IBM and other big businesses are well on their way to seeing that those 10,000 are used up by them quickly so none will be available for small businesses. IBM Kappos says he may open up a few more for small businesses (translated for small businesses like IBM, GE, Samsung, Toshiba, etc, since truly small business can’t afford them.)
San Rafael, CA (July 19, 2011): CALIFORNIA INVENTOR SUES US GOV FOR $100M+ FOR USE OF INVENTION ON PTSD TREATMENT METHOD
Over 20 years ago, Dr. Ralph Lamson, a psychologist from San Rafael, CA was hiking in the Muir Woods when he experienced another episode of acrophobia (fear of heights) and mentioned to his friend that perhaps virtual reality simulations would be a way to help treat it. The friend said it sounded like “Virtual Therapy”. Some time later, Dr Lamson saw notice of a trade show where VR equipment was on display. Donning the head mounted display for a simulated elevator ride, Lamson once again experienced his fear of heights, but this time in virtual reality, and he found that the more he used it the less scared he became. As a psychologist, he had a “Eureka moment” and instantly knew this confirmed his earlier thoughts while hiking and in about a half-hour he used VR to treat himself right there at the trade show. Now, thinking he was on to something, he went to work in early 1993 to test the theory which he termed “Virtual Therapy” and found in his first large scale test that he was able to cure over 90% (38 out of 40) patients, most in one 90 minute session. Previously, a 60% cure rate in about 10 one hour face-to-face “prolonged exposure therapy” sessions was considered the optimum treatment. Lamson published an article and was in 1994 awarded a Cybertechnology Journal “application of the year” award, predicting it would have widespread application to many other phobias, stress disorders and mental conditions. He began getting phone calls, letters, and visitors from the military wanting to learn more about his invention for possible military applications, which he took to mean psy-ops of some sort. Fast forward ten years to 2004, when Dr. Rizzo at USC’s Institute of Creative Technologies (“USC-ICT”), who knew of Dr. Lamson’s pioneering work with virtual reality immersion therapy or VRIT, began adapting this treatment for PTSD, taking the video game “Full Spectrum Warrior”, and with Dept. of Defense funding developed “Virtual Iraq“, a program (see http://ict.usc.edu/projects/ptsd/) of virtual reality immersion therapy (VRIT) for the treatment of post-traumatic stress disorder (“PTSD”). In Virtual Iraq soldiers recreate traumatic experiences under controlled virtual reality conditions in order to help get over them. It works so well that Dr. Rizzo and others working under DOD funding, grants and contracts have received hundreds of millions of dollars in support of this program. In fact, Virtual Reality Immersion Therapy or VRIT has become the preferred treatment for PTSD and has the potential to save American taxpayers over a billion dollars as America tries to cure more than 300,000 PTSD sufferers. VRIT is quicker and more effective, so it lessens the chance of suicide or criminal behavior by sufferers of PTSD and other anxiety disorders. But, the reality is that this was invented by Dr. Lamson. Lamson says the Government stole his invention and that jobs have been lost in California and shipped out-of-state as a result, and he has hundreds of publications and videos to back up his story, including a patent (6,425,764) and book “Virtual Therapy” http://www.amazon.com/dp/B005BCOFXU published in 1997, two years before the US Army funded the creation of the USC program in 1999. http://en.wikipedia.org/wiki/Institute_for_Creative_Technologies . It is that patent and the invention it defines that is the basis of his lawsuit. After years of requesting compensation from the Government, Lamson has recently filed suit against Uncle Sam for more than $100 million for unauthorized use of his invention.
The Wikipedia article at http://en.wikipedia.org/wiki/Virtual_reality_therapy describes this technology and Dr. Lamson’s status as the pioneer in the field. Does theft of US jobs, say in southern California, concern you? Does theft of intellectual property interest you? Would you be concerned if it was the U.S. Government itself that was ‘taking’ intellectual property (inventions) and using these without permission of the inventor and without any payment whatsoever, let alone payment of ‘just compensation’ as required by the 5th Amendment of the US Constitution? Is there a relationship between the Congressional passage of patent reform and theft of patents from small businesses and independent inventors? Dr. Lamson knows the answer because it happened to him! His Government stole his invention, one which might have resulted in hundreds of San Francisco area jobs and sent those jobs to Belgium, Canada, Georgia, Florida, Maryland, Hawaii, Washington state, and to military bases and VA hospitals world-wide. And, he was not paid a dime!
How does this relate to current patent legislation? Well, even though he was first to invent Lamson was second to file. A Gov’t funded contractor filed first. With enactment 2011-09-16 of HR1249, the law will be “reformed” to where the first to invent will no longer get the patent as has been the case since the first US Patent law in 1790. Instead, Congress passed and the President signed legislation switching to a system where any inventor who is first to get to the Patent Office with an application gets the patent, not the true first inventor. This means that anyone (especially BIG Government or a BIG corporation) who learns about an invention that someone else discovered can pretend to “discover” it themselves, have their eagerly awaiting patent attorneys rush to file and obtain a patent and use that patent to stop the even the true inventor. The independent inventor cannot afford the cost to move that quickly or to file on each possible wrinkle of his invention and will be out-of-luck. If the pretender is a BIG company (Microsoft, IBM, GE, etc.) or worse yet (but just as likely if not more likely) a foreign company, the jobs that the independent inventor would have had to create here, being too small to start overseas, to make his business grow will (hear the sucking sound) go overseas as that is where Big Business has its production now. And since the invention is, like Lamson’s, something better, it will displace existing American businesses and jobs. The economy will further erode as more jobs disappear overseas, and once these new industries set up shop overseas the factories are there not here and the jobs will never return.
As Dr. Lamson points out, “If so-called ‘patent reform’ was law in 1997 when my patent was filed, I would have lost a lifetime of work with no recourse.” Congress wants to “streamline” the patent process by making it easier for government, corporations, and others to steal from inventors. “The Department of Defense (“DOD”), Office of Naval Research (“ONR”), Army, Air Force agencies and divisions, Defense Centers of Excellence, Naval Postgraduate School Monterrey, US Department of Veterans Administration, Department of Health and Human Services, multiple VA hospitals and TRICARE, as well as several Government contractors and grantees are all infringing my patent”, Dr. Lamson notes. “If patent reform was the law, I would just have to watch and cry. But that’s not what the Constitution says in the Fifth Amendment. It says
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
“The theft of my invention by my Government without due process for public use without just compensation began years ago when officers from the Naval Postgraduate School, Monterrey visited me in San Rafael to pick my brain about my invention. They wanted to find out about this ‘remarkable new technology’ (Scott Pelley’s description of VRIT for PTSD on the CBS Evening New), my virtual reality psychotherapy discovery, the secrets of my VRIT treatments, and anything else they could steal concerning my VRIT. And I trusted my Government because they said I could and because they said it was really important for the military to know about it for ‘military reasons.’ That was sure a mistake. Don’t you make the mistake of trusting them on Patent Reform, either” says Lamson.
Dr. Lamson describes the theft of his invention. “The Navy began its own VRIT program almost immediately after learning how I did mine. Sure, the Navy now denies theft of my invention but evidence even in the public domain is overwhelming and demonstrates otherwise. For example they asked me to submit an SBIR (small business innovation & research) funding request but denied my request and instead wrote up their own funding request for their own program to do essentially what I had requested and described. They sent the manager of that program to attend my seminar to learn more from me. They then funded Georgia Tech and Emory University in Atlanta (Sam Nunn, head of the Senate Armed Services Committee was from Georgia). Georgia Tech even tried to hire me to teach my secrets and, when I turned them down, hurried up to file their own patent application to beat me by a few months.” Meanwhile, Lamson was trying to perfect his invention, figure out the medical reasons why it worked so much better than other methods, and find funding to commercialize his invention. Lamson laments “I was really disappointed to learn that no legitimate venture capitalist was interested in my work. I felt that since I had originated the idea I knew best how to make it work so it could realize its maximum benefit. I was repeatedly told by venture capitalists that they were not going to invest their money because the Government was spending millions of dollars funding at least 5 competing programs after having stolen my invention.” So you see, had Big Business dominated James Madison (and the founders who created the US patent system) like it does our current Congress; had patent reform and it’s “first to file” system been the law at that time, Lamson would have been sunk, because he was second to file. “But, under our current patent system,” notes Lamson, “as has been the case for US inventors continuously for over 220 years since 1790, I was able to prove to the US Patent & Trademark Office that I was actually the true and first inventor and I got the patent, thus effectively invalidating the prior-filed patent by the Government’s invention thieves.” David Pressman, Lamson’s San Francisco patent attorney did this by a sophisticated, but relatively inexpensive device that is familiar to most patent attorneys called a Rule 131 Affidavit, in which he submitted incontrovertible evidence proving Lamson’s earlier invention. Due to the arduous task of overcoming that prior filing it took five long years for Lamson to get his patent. Once he got the patent, he started looking for contingent fee lawyers to go after these invention pirates who were infringing his now issued patent. But, there was not yet enough money in it and the Government, with its limitless resources, would be the main Defendant. It took him seven years to locate an attorney willing to take on the Government.
Bruce Burdick, Lamson’s patent trial attorney, notes “Yes, you guessed it, Rule 131 will be abolished by the ‘America Invents Act’ so true inventors like Lamson can’t do that to BIG business or BIG government any more. But patent reform was NOT the law in 1997, so Dr. Lamson, the true inventor, got the patent in 2002 and after years of requesting the Government to pay just compensation, we filed suit in July 2011. That suit could not have occurred under first-to-file, but rather the Ga. Tech and Emory Univ. and Government invention thieves would have been deemed the “inventor” and he would have become the infringer. So you see, his story shows the folly of this new patent bill in very real terms in a very real situation.” Burdick also notes “By the way, Dr. Lamson’s Senators, Barbara Boxer and Diane Feinstein were both leading opponents of First to File, arguing to the bitter end in favor of Amendments http://www.govtrack.us/congress/vote.xpd?vote=s2011-31 seeking to delete it from S23, the corresponding Senate bill and Senator Boxer was one of only 5 voting against the entire bill. http://www.govtrack.us/congress/vote.xpd?vote=s2011-35 . His representative, Lynn Woolsey, also voted against patent reform. http://www.govtrack.us/congress/vote.xpd?vote=h2011-491. Dr Lamson is proud of their effort on behalf of inventors like him. We now hope the US Court of Claims sees the truth and awards him the compensation he is due for this invention that is improving the lives of so many thousands of sufferers of PTSD and other psychological disorders. In America, great inventors should not be treated like this, especially by their own Government, or they will just stop inventing. It is an outrage.”
“Lest you think the Government acts fairly with inventors,” Burdick notes, “Dr. Lamson tried filing an Administrative Complaint of Patent Infringement in accordance with DFARS 227.7004 with the ONR (Office of Naval Research, which serves as Intellectual Property Counsel for the Navy) but that was denied. Since the denial looked bogus, Dr Lamson checked further. By FOIA request, he has recently learned that the Navy has turned down all (yes ALL, every single one) of such complaints for at least the last 15 years. The Government issues these patents and then does not even honor them. It’s really infuriating to inventors like Dr/ Lamson. His own Government has left him with no other choice but to file suit against them, so June 10, 2011 we filed suit in the US Ct. of Fed. Claims (USCFC), so his story is a matter of public record, and he will get his day in Court.” His Complaint to DOD is posted online at http://www.burdlaw.com/references/20101020%20Administrative%20Claim%20-%20final.pdf and his court Complaint at http://burdlaw.com/references/PX20110610%20Complaint.pdf . If you read those Complaints you will see many of the same facts he has described above.
As Dr. Lamson notes in closing, “The US Government says it is stimulating the economy to create jobs. Just the opposite. The last remaining corner of hope for arresting a downward spiral is inventing to achieve a competitive edge for the economy and for personal livelihood. The military is not only waging war abroad but silently destroying the US economy from within. It is insidious. And now the best Congress money can buy is about to kill the patent system for inventors like me. I want to create a business, hire people and cure people and improve their lives. My Government is stopping me by stealing from me my life’s work. Wonder why America’s economy is in decline? Who’s watching? Who’s reporting? “
Dr Lamson can be reached by email at firstname.lastname@example.org or phone at (415) 209-4269. His attorney, Bruce Burdick, can be reached by email at email@example.com or phone at (618) 462-3450.