Begin forwarded message:
From: Scott Moskowitz <scott@bluespike.com>
Date: June 25, 2009 9:53:30 AM EDT
To: ron@catbird.com
Cc: David Farber <dave@farber.net>
Subject: [IP] Re: Is This Foreshadowing of American Innovation? [Respectfully, some clarification]
Mr. Lachman:
As a pro se inventor, I wanted to point out some of the issues you may have misinterpreted. Generally, I am in agreement with your overall point[s] and wish more people would look more closely at these issues. Our Patent Office is perhaps the most equitable of all industrial policies & those who believe there are bad patents have plenty of avenues to challenge such notions.
The press has been very good at illustrating copyright and trademark: very poor at patents. Fact is, under current law, almost all patent filings will be published to the benefit of society *whether or not* the inventor ever gets issued a patent. The patent publication including the claims are part of the public notice without *any* protection for the inventor. And, the applicant, not the public, pays for this filing.
As for bad patents, I've read, seen and heard plenty of bad books, music, movies, brand names, etc.
Begin forwarded message:
From: Ronald Lachman <ron@catbird.com>
Date: June 24, 2009 12:28:38 PM EDT
To: dave@farber.net
Subject: Re: [IP] Is This Foreshadowing of American Innovation?
There was a case last year (Bilsky) that essentially disallows software patents.
> The case case is "Bilski" and does not "disallow software patents". See :: http://www.cafc.uscourts.gov/dailylog.html the case number is 2007-1130 (Serial No. 08/833,892 - this is the patent application number). http://www.cafc.uscourts.gov/opinions/07-1130.pdf is the 132 page ruling.
> Without being legalistic or providing any legal advice, the ruling sets up a "test" for whether a "method" or "process" claim (there are other claim forms, btw, that have nothing to do with the ruling but have seeped into device claims at the Board of Appeals and Interferences level at the Patent Office) is patentable subject matter. Namely, whether the method "transforms" something that can be represented by a physical thing &/or (depending on the case and the claim) whether the method is done by a "particular machine" (no definition is provided with regards to that terminology - my machine is most likely particular enough to be different from the machine you read this e-mail on).
> The Supreme Court has agreed to hear Bilski to determine if the en banc Federal Circuit ruling is at odds with existing law. The famous "trilogy" of cases in this regard are known as: Flook-Benson-Diehr. Even Morse's famous innovation[s] in communications are implicated here if you consider broader issues in the trilogy.
> The Europeans, with whom the US Congress want to harmonize our Patent Act, has actually gone forward and determined that software is patentable http://eupat.ffii.org. As an inventor, I see no reason to harmonize "invention" until someone is able to *predict* success. Innovation is truly 99% perspiration.
Although software patents have certainly been abused, a significant percentage of the patent office's work (and fees) were the result of computer software related patents. A good portion of American innovation and patents in recent decades have revolved around concepts that are no longer allowable for patenting. Patent holders and inventors (like myself) are therefore not able to patent software related patents, and not paying renewal fees.
> This again depends on your interpretation and your willingness to pay maintenance. The USPTO, as you are aware, suffers from fee diversion to others activities by the Congress that are not specific to the Office. For many years there was alleged pressure to reject patents in contrast with historical norms. What we have now may be the result of successful discouragement of patent filing. A shame when that results in less disclosure by the "Inventors" the Founders spoke of in the Constitution. Patents are an interesting form of free _expression_ when you consider the other form of "employment" mentioned in Article 1: "Writers".
Although investment in innovation may be down somewhat, I am under the impression that it is legal precedent that is causing most of the patent office's budget shortfall. Its worth a real discussion in the IP list, because this legal precedent is making real software and algorithmic innovation difficult to patent (RSA type patent would probably have a struggle today). My group of companies is struggling to get some truly innovative things patented (ECC / new erasure codes and the like) and its just a different world this year working with the new patent guidelines that require a more "tangible" invention than algorithms and software.
> Agreed, as I am an inventor of innovations which ironically assist those who need trademark, copyright or similar IP protection and yet expect the value in protecting that IP with patented innovations to be paid by someone else. Still, the reporting on what is patentable or even what is a "patent" contributes to the mis & dis-information that the press is unable or unwilling to correct.
> Too the folks who are for reform of the Patent Act (Patent Reform Act of 2009 being the latest incarnation), in some cases feel very differently about what should be patentable. Ironic, that. Patent Law Blog (Patently-O): Ex Parte Bilski: On the Briefs: (http://www.patentlyo.com/patent/2008/04/ex-parte-bilski.html)
--- Different, but somewhat related topic:
Today's regulatory environment is not only more difficult for inventors, but the process of raising money is made more difficult by regulations as well. The unintended consequences of the Sarbanes Oxley act of 2002 has effectively put a $500k a year regulatory compliance tax on small public companies. Most small public companies are (were?) technology companies, and the window for taking companies public is closed at least partly because of the costly required compliance. Fewer successful executives want to serve on boards, particularly for public companies, because of the personal liability imposed by the 21st century trend in regulations that is generally less friendly to technology capitalists.
> Absolutely agree with you. It is mind-boggling how diluted the term "small business" has come to be. And how effective lobbying and influence have made it more economically difficult for true innovators to start and raise capital to realize their American Dream.
> Write your representatives in the House and Senate.
> Sincerely,
> Scott Moskowitz
On Jun 24, 2009, at 10:25 AM, David Farber wrote:
Begin forwarded message:From: bnmeeks@verizon.netDate: June 24, 2009 10:29:24 AM EDTTo: dave@farber.netSubject: Is This Foreshadowing of American Innovation?Since we've been discussing patents in the last couple of days, I thought the following short article about the PTO needing more money because its revenue stream, derived from the filing of patents and trademarks, has fallen off so dramatically. What does this mean (if anything) for American innovation?
From Congress Daily
http://www.nationaljournal.com/congressdaily/cda_20090624_3058.php (If this link is unreachable because subscription is needed, I apologize in advance):
by Andrew NoyesThe Patent and Trademark Office is asking Congress to help stabilize the agency, which is facing a substantial decrease in the number of patent applications filed, Acting Director John Doll told employees in a Tuesday memo. The agency, which is funded through fees collected from its users, this week suspended overtime pay for patent examiners and this year instituted a hiring freeze. All of this has been done with an eye toward avoiding furloughs.
"We're now putting forward a number of different options to bridge any possible gaps, and we'll also be soliciting ideas from members of Congress," Doll wrote, acknowledging that in the recession, fee collection could continue to decline. With the support of Commerce Secretary Locke, the PTO is seeking additional cost reduction measures that would save an additional $20 million in FY09, he said.
[snip]
