Tuesday, February 23, 2010

Inventors Eye is for and about America ’s independent and small entity inventor community [?]

An announcement from the USPTO on Inventors Eye: Inventors Eye is for and about America ’s independent and small entity inventor community.

From the first post on Inventors Eye:

Patent Reform:
Good for Independent Inventors and Small Businesses
An Open Letter to the Independent Inventor and Small Business Communities from Under Secretary of Commerce and USPTO Director David Kappos

[The article is undated (ironic for anything about the patent office) but appears in the inaugural Feb. 2010 issue.]

Meanwhile, at the IAM Ranch, on 12 Feb. 2010:

David Kappos has made a big show of reaching out to America's inventors while at the same time he is using precious USPTO resources promoting IBM's and members of the Coalition for Patent Piracy and Fairness Patent Deform agenda.

It is also notable that David Kappos is promoting small entity inventors giving up 50% of their inventions and the investment they have made in order to get timely consideration of the other half. What a deal, with friends like David Kappos who needs enemies?

One of the reasons that the patent backlog and the system is gummed up is massive filings of minor incremental inventions by companies like IBM and Microsoft yet there is no mention of those companies giving up any of their inventions, regardless of how inane they may be.

It seems that we have the best management which big corporate money can buy at the USPTO.

Ronald J. Riley,

I am speaking only on my own behalf.

Curiously, Joff Wild at IAM does not appear to have commented on this inconsistency.


On February 24, the IPWatchdog.com Blog did comment on Inventors Eye. What is most interesting is the first comment to the post which comment was made by David Boundy:

Read the bill, Gene. Your understanding of it isn’t accurate, let alone your analysis of the consequences.

Your statement “what is left is a change to the current law where the first person to invent may obtain a patent even if they are the second to file” is simply not true. (Again, just to make clear to you what the dispute isn’t, I agree with you, that the 0.01% ain’t worth the candle, and not worth the prominence that either you or Kappos give it.)

What does make a huge difference are the two categories where both of you only tenuously acknowledge the existence, and both refuse to acknowledge the costs:

(a) the 3-10% where there is only one application (not two competing applications in the 0.01% class), and the prior art arises from a publication, use or offer for sale by a third party within the grace period year; and

(b) the 25% or so of applications that are not filed at all today and that should not be filed because the invention is found to be worthless within the grace period year, and are not filed under current law, but that will be filed at great expense, under S.515.

I am told that investors have already pulled funding from companies, and small businesses are already being strangled in the crib, because of the mere pendency of S.515. The market is already telling us this bill is bad for small businesses and startups. It’d be a really astonishing exhibit of bad lawyering for a mere attorney to force a business judgment over the business folks’.

and the reply:

Your analysis of the consequences is, in my opinion, flat out wrong.

You can keep talking about a grace period if you like, but the reality is those who rely on the grace period are being extremely reckless. You know as well as I do that an inventor cannot possibly know if others are engaging in activities that would render a patent impossible under 102(b). Acting like there is an absolute 12 month grace period is ridiculous. There is no absolute 12 months grace period under 102(b). An inventor must file within 12 months of an invention being offered for sale or used publicly, and third party activities unknown and unknowable to the inventor can and do frequently cause problems. In my own patent application where I was the inventor I relied on a 12 month grace period which entitled me to no patent whatsoever. My personal experience is not unique, it happens all the time.

You are acting like there is no way to protect an invention through a provisional patent application for a reasonable cost. That is likewise misplaced and inaccurate.

Those who choose to see S.515 as a road block will be blocked. Those that choose to see it as an opportunity will succeed and easily surpass those who view it as a roadblock.

Finally, what is astonishing bad lawyering is not my CORRECT legal analysis, but running around crying that the sky is falling when it most clearly is not falling. Individuals and business are more than welcome to continue to make reckless, careless and bad business judgments if they want. I on the other hand will continue to provide good counsel to my clients and keep them from unknowingly harming themselves and pretending that 102(b) provides an absolute grace period.

IPBiz query: did Gene Quinn actually deny the truth of what David Boundy said?


Post a Comment

<< Home