Barack Obama's Patent Reform Initiatives

It’s not surprising that Barack Obama – a former law professor – would include detailed policy initiatives as part of his campaign strategy. The bulk of his newly released technology plan suggests his approach to ensure an “open government.” The current Democratic push for a ‘more transparent government’ is primarily a reaction to the current Bush administration’s reported closed door policy. Obama’s plan, however jumps into specifics such as using wiki and social networking technologies to open up the government process and engage the citizenry; release more government information in more accessible formats; open up government data to individuals and also open government channels to receive data from the population; and appoint a Chief Technology Officer (Cabinet level?) to treat these networking issues as opportunities rather than solely as a law enforcement threat or spy channel.

On the patent side, Obama is ready to move forward with patent reform – he particularly support’s his former colleague Doug Lichtman’s (coauthors Lemley & Sampat) suggestion of a “gold plated” patent. [Link].

Read the Obama patent reform statement:

Reform the Patent System: A system that produces timely, high-quality patents is essential for global competitiveness in the 21st century. By improving predictability and clarity in our patent system, we will help foster an environment that encourages innovation. Giving the Patent and Trademark Office (PTO) the resources to improve patent quality and opening up the patent process to citizen review will reduce the uncertainty and wasteful litigation that is currently a significant drag on innovation. With better informational resources, the Patent and Trademark Office could offer patent applicants who know they have significant inventions the option of a rigorous and public peer review that would produce a "gold-plated" patent much less vulnerable to court challenge. Where dubious patents are being asserted, the PTO could conduct low-cost, timely administrative proceedings to determine patent validity. As president, Barack Obama will ensure that our patent laws protect legitimate rights while not stifling innovation and collaboration.

Notes:

• Obama Tech Initiative
• Hat tip to Beth Noveck (Who clearly supports the Obama Campaign)
• As reported, Obama has proposed to eliminate tax shelter patents as well [Link].

Comments

[waiting for January 20, 2009]

Some of these proposals could be good, but the devil is in the details. I'm always nervous when someone who has never engaged in patent prosecution jumps into the patent reform arena with detailed proposals. The details will make a huge difference....

[EG]

Waiting for January 20, 2009 is right, the "devil is in the details" when it comes to reversing the disastrous trend in the PTO. We can only hope that the next administration (whoever they are) won't continue to use the PTO as a political patronage "dumping ground" for those without the appropriate patent background. That may be a vain hope, but we've go to keep our collective chins up that the future will be better.

[Elfin Magic]

Let's not forget that Obama already has tried reforming at least some of the Patent Act. He's a co-sponsor of S.681, introduced in February. Would change 102 to add a new category of invalidity, namely if
`the invention is designed to minimize, avoid, defer, or otherwise affect the liability for Federal, State, local, or foreign tax'. (Sec. 303)

http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=110_cong_bills&docid=f:s681is.txt.pdf

That one seems to be stagnating in committee.

[Anon]

Isn't the patent office already open to citizen review since you can get the prosecution history of practically any application? I don't know what he means by a rigorous and public peer review, but isn't the office already doing a pilot for just that? http://www.uspto.gov/main/faq/faq_peer.html
As for the PTO conducting proceedings to determine patent validity, a granted patent is presumed valid. The office is not allowed to comment on the validity of a granted patent. See 35 USC 282 and MPEP 1701. Besides, there is the re-exam process.

He never addresses the problem that many recognize as being the most important issue today; pendency.

[Elfin Magic]

D'oh, NOW I see that last link in Dennis' posting.

Never mind.

[GIdeon]

Step 8 in the process of figuring out that the United States is an economically doomed corporatocracy:

8 - recognizing that Democrat=Repulican, that the only differences between the parties are cosmetic and irrelevant to the course of the country, and that both parties are simply management teams that represent the same corporate interests.

Example - Hillary's top contributors . . .

LA Piper $356,100
Goldman Sachs $350,050
Morgan Stanley $323,550
Citigroup Inc $307,350
EMILY's List $211,642 (pro abortion group)
National Amusements Inc $193,850
JP Morgan Chase & Co

And here is Obama's top contributor list . . .

Goldman Sachs $369,078
Lehman Brothers $229,090
National Amusements Inc $220,950
JP Morgan Chase & Co $216,759
Sidley Austin LLP $203,325
Exelon Corp $194,750
Citigroup Inc

And here is Jewel e Onni's list:

Ernst & Young $255,200
Elliott Management $228,400
Credit Suisse Group $164,900
Merrill Lynch $151,000
Bear Stearns $147,691
Lehman Brothers $140,850
Citigroup Inc

Now when you look at those lists, you consider the corporate interests represented, and you see that Citigroup is spreading the wealth to both sides of the aisle, you may start to understand that . . .

Obama, Ruby, Mitt, Hillary . . .

are all the same and the Empire is failing.

Patents will be a minor concern when gas gets to 5 bucks a gallon and oil is at 150 a barrel. Peak Oil and the War for Resources in the Middle East - learn to say it with a smile.

[TJ]

We can only hope that the next administration (whoever they are) won't continue to use the PTO as a political patronage "dumping ground" for those without the appropriate patent background.

Please define "appropriate patent background". Would Michael Meurer or Jim Bessen (both law professors who have studied the patent system, and advocates for scaling it back), or Mark Lemley (among the most cited of IP law professors, who thinks that patent royalties are likely inflated), or experienced patent litigators at major firms specializing in defending tech companies, qualify? Or does "appropriate patent background" really mean "pro-patent owner" background?

[Michael L. Slonecker]

"Please define "appropriate patent background"."

Clearly, those who regularly spout the mantra "trolls" and "bad patents" do not have such a background. Otherwise they would quickly realize just how silly they sound.

[CaveMan]

I don't like politicians intermeddling in objective science (Al Gore and the Global Warming camp take note), since the politicization of science has been the source of misery for the masses throughout history.

To the extent that a perfect patent system should perfectly (objectively) protect advances in objective science, then the thought of politicians getting to close to the system for the wrong reasons makes me nervous and frankly a bit nauseated.

[CaveMan]

"too" close that is...

[CaveMan]

"too" close that is...

[real anonymous]

TJ, what this country needs (in my opinion) is USPTO leadership that understands patent examination and patent prosecution - that's the core of it - and that usually comes only with a registration number* and decades of experience. Except for a brief stint with Commissioner Dickinson, we haven't had that in 15 years.

(I spend most of my time now invalidating poor patents, so I don't see myself as pro-patent since there is so much junk, but I am pro-patent system, thinking we had at one time the best in the world.)

The litigation and royalty issues are for Congress, not USPTO leadership, to address. (Sometimes I think the USPTO leadership likes to contemplate policy and how to usurp Congressional responsibility because it is clueless as to how to work to fix the nitty-gritty in its own house so as to faithfully execute the laws.) If you only knew what percentage of patents (not applications) passed through the USPTO doors in 2007 with claims that were anticipated by the prior art, you would be striving *only* to get your own house in order, and not wandering into areas that certain high-minded folks with extra time like to delve into. The problems the USPTO faces are much more immediate... and the immediate problems aren't some sort of providential sign that now is the time to revamp the whole system... rather, they simply indicate that USPTO leadership has been doing almost *nothing* constructive for the last 15 years to address them, and the problems are now almost out of control.

*not the kind given you per 37 CFR 11.7(d)(3) merely because you were a lawyer hired by the USPTO and you were given "patent" responsibilities without having any qualifications.

[stepback]

What this country needs is "Election Reform" and "quality" candidates instead of the corporate serving trolls we now get. First, we should "harmonize" the two party system by moving to a parliamentary form of government. Second we should have multiple windows of review for politician performance. Third, we should ....

[A]

I read this story on Obama's proposed open government initiatives today http://cairns.typepad.com/blog/2007/11/barack-obama-un.html

Very intriguing.

[patent leather]

"Where dubious patents are being asserted, the PTO could conduct low-cost, timely administrative proceedings to determine patent validity."

Isn't this called reexamination?

[EG]

To TJ and the others:

Sorry, let me define "appropriate patent background" further. As suggested by real anonymous, that means a registered patent attorney with some significant prep and pros experience. For example, someone with the experience of Todd Dickinson, the only person with "appropriate patent background" who has served in the Director spot (and who meets the qualifications of 35 USC 3) since 1993. Is that clear enough?

[bierbelly]

Further to "appropriate patent background", I've always thought that having a patent attorney (i.e. registered) from outside the office as Director would be an upgrade. However, it occurs to me that most, if not all of those who have attained a high enough station in life and the profession to qualify them for the position haven't prosecuted a patent in years.

[Pmilatty]

Excuse me for a minute while I try to digest the details of Baraq Hussein's patent plan.... There, I'm stuffed.

Finally, a candidate who's for timely, high-quality patents, and protecting legitimate rights while not stifling innovation and collaboration! You see, all of the other candidates are advocating untimely, low quality patents, and stifling innovation and collaboration.

[Mark J. Rosen]

"Where dubious patents are being asserted, the PTO could conduct low-cost, timely administrative proceedings to determine patent validity."

Isn't this called reexamination?

And perhaps a corollary:

"Where dubious patents are being applied for, the PTO could conduct low-cost, timely administrative proceedings to determine patent allowability."

Isn't this called examination?

Mark

[Truthiness Lover]

What a great statement by the Obama camp. Sounds like he is really for making the patent system better. What a joke.

I love the comment about the "gold-plated" patent. The truth of the matter is that to determine whether a patent really should be valid it takes a lot of time and work. No one is willing to spend that time until the patent covers technology that accounts for millions or billions of dollars. Whatever procedure is put in place will be somewhat flawed unless the patent is important enough to demand hundreds of thousands of dollar of research into its validity. We have a procedure for determining "gold-plated" patents already. It is called litigation.

The idea of peer review is a good one, but once there are a significant number of patents open to peer review the time interested parties can spend per patent (all without getting paid or having something riding on it) will be greatly reduced. Say goodbye to your gold-plating.

"Where dubious patents are being asserted, the PTO could conduct low-cost, timely administrative proceedings to determine patent validity." Don't we already have this? Rexamination?

This is a perfect example of why government is generally so screwed up. God is in the details and even learned candidates like Obama have a poor grasp of the details. Not to mention life time drunken Senators like Kennedy or "Mavericks" who highjack the Senate and act like big babies.

[Budge]

My suggestion for making everyone happy (if you like it, please send it to the USPTO. I have sent it too)

Bring back an ESD as an option, and enable Applicant to submit it by hiring a third party to prepare the entire document, and establish criteria by which Applicant could hire third party without Rule 56 issues to Applicant. For example, restrain communication between Applicant and third-party firm. Have third-party firm be certified. Etc.

The ESD could be used to expedite prosecution, become gold plated etc. Real issue with ESD was Rule 56, which increased cost/fees to point of being unreasonable.

[defector]

"Please define "appropriate patent background". Would Michael Meurer or Jim Bessen . . . qualify?"

"...As suggested by real anonymous, that means a registered patent attorney with some significant prep and pros experience. "

I respectfully disagree with both sentiments. First, Michael Meurer was my professor at SUNY Buffalo before he defected to Boston U. I had prosecution experience as an Examiner prior to attending law school, so I knew enough to be dangerous going in. Suffice it to say, Prof. Meurer is very smart and has a deep understanding of patent practices and policy concerns. I think if had significant leadership experience, he would make an excellent commissioner (director, asst Sec. whatever), although I don't agree with his stances on everything.

Secondly, every prosecutor I know is very opinionated (and that is putting it lightly) regarding how to fix the PTO and I am no exception. However, I don't believe it is necessary to have prosecution experience to have a deep understanding of PTO failures and opportunities to turn it around. All it really takes is a true leader that can humbly learn from past failures, surround themselves with smart career-minded people willing to speak truth to power (i.e., not political hack "yes men" that Dudas apparently surrounds himself with) and kick some serious a-s-s. You don't get leadership experience from prosecuting patents. You also don't get it by contributing money or effort to some presidential campaign.

[Anonymous]

""Where dubious patents are being asserted, the PTO could conduct low-cost, timely administrative proceedings to determine patent validity."

Isn't this called reexamination?"

I always get a kick out of comments on this board. The critical piece that is always left out is the litigation piece. Is reexam cheap? Sure - if you ignore the fact that the parties have already spent 600K in litigation fees before the reexam petition is ready, filed, and accepted. And traditionally, our favorite troll forum shopping district does not give litigation stays.

[Anonymous]

""Where dubious patents are being asserted, the PTO could conduct low-cost, timely administrative proceedings to determine patent validity."

Isn't this called reexamination?"

I always get a kick out of comments on this board. The critical piece that is always left out is the litigation piece. Is reexam cheap? Sure - if you ignore the fact that the parties have already spent 600K in litigation fees before the reexam petition is ready, filed, and accepted. And traditionally, our favorite troll forum shopping district does not give litigation stays.

[real anonymous]

"true leader that can humbly learn from past failures"

With that I agree, and to the extent he could come in without a preconceived agenda, even someone lacking in pre-qualifications might make a very good leader. But unfortunately I haven't seen much in the way of either humility or desire for learning in political appointees running the USPTO. To quote a phrase:

"The USPTO is certain that these rules will make the patent process more effective and efficient and we appreciate your cooperation."

Humility? Is their something they might not know and need to learn?

I like what Learned Hand said in his Spirit of Liberty address (something the current administration could learn much from):

"What then is the spirit of liberty? I cannot define it; I can only tell you my own faith. The spirit of liberty is the spirit which is not too sure that it is right; the spirit of liberty is the spirit which seeks to understand the mind of other men and women; the spirit of liberty is the spirit which weighs their interests alongside its own without bias...." (it gets more profound subsequently)

That said, it would be difficult for anyone to put themselves in an examiner's or patent prosecutor's place without walking a mile in their moccasins.

[Paul F. Morgan]

Re the comments "Isn't this called reexamination?"
in response to "Where dubious patents are being asserted, the PTO could conduct low-cost, TIMELY administrative proceedings to determine patent validity."

Where do you find "timely" met in the present reexamination system? A genuinely effective USPTO reexamination system would have to be "timely" enough to be completed between the time surprise troll suits are startd and the first, seoond, or third million dollars in unavoidable pre-discovery, discovery and trial preparation costs, or at least before the confused jury trial is over. Until recently, many reexaminations have been allowed by the PTO to drag on for years. Recently it was reported that not one single INTER partes interference has ever even yet made it to a FINAL Board decision!

[EG]

Defector,

I'm not suggesting that all who have significant experience in the prep and pros world would be good for the Director spot, or that others with different but comparable experience wouldn't be very good Directors. (For example, someone who previously was an examiner might be very good for the Director spot.) Your Prof. Meurer may even be the exception to the rule as to IP law professors having a grip on the reality of real world prep and pros. (And I do find benefit from the input of IP law professors, especially those who have some real world experience.)

But without a thorough understanding of the background and problems that have plagued the PTO in the prep and pros world, it's very hard for such a person to have real understanding and "empathy" for what is needed, as well as to know which people to bring in to make the necessary changes. Believe me, I've tried to be open-minded when folks like Lehman, Rogan and Dudas with no real real patent backgrounds were brought in. But what I'm seeing is that if you don't have certain patent credentials, such as "real" prep and pros experience, you wind up with people in PTO management who propose and try to implement "fixes" that are unrealistic, show no understanding of the examination process, and unduly antagonize the patent bar, applicants, and now even the examining corps. In my over 30 years of patent attorney experience, plus an additional 7 summers working at an IP firm (including 4 summers of searching the old-fashioned way in the shoes), I've never seen so antagonistic a relationship between the PTO hierarchy and the patent bar, applicants, and now even the examining corps.

And yes, even that "ideal" person with "significant" prep and pros experience needs managerial saavy to make the fixes happen as the Director of the PTO. Witness the GAO report on the serious problem of examiner retention which the current PTO management "white-washes" or mischaracterizes for its own political purposes. Given what I've seen so far from those without significant prep and pros experience as Directors of the PTO, I'm now very skeptical about appointing yet another one to the Director spot, and having any hope that things will be better.

[Kenny G.]

Promise them the moon, get elected and then blame Congress.

[Chicagoan]

I agree - it's essentially reexamination.

This is the same Barack Obama who helped deliver us Todd Stroger? (A non-patent related snark that those suffering in Cook County Illinois will understand...)

[Steve]

More virtually worthless, no-details pabulum for the masses...

[deep staffer]

Run on a platform that big government doesn't work . . get elected . . . then prove it. Old joke about republicans. Since the repubs, at this *juncture,* have no credibility on shrinking government, I, for one, am ready for the trains to run on time.

[Michael L. Slonecker]

Insightful, creative, intriguing, exciting, spellbinding, etc.

Oh, wait a minute. I thought this was a thread about "Dancing with the Stars", and Edyta in particular.

Sorry for the confusion.

[Erin-Michael Gill]

Not so sure about practioners leading the the Office.

Just posted a long reply: http://emgill.blogspot.com/

Cheers,
Erin-Michael

[bierbelly]

Dennis,

Just thought you might want to start a new topic on a revolutionary finding made by the PTO. In the current OA that I'm answering, the Examiner has indicated that the phrase "about 13 cm" can be interpreted (for 102) to include 20 cm.

[bierbelly]

Erin-Michael,

I've heard that Dupont has some really great patent attorneys working there. Perhaps one of them would be more suitable?

[Erin-Michael Gill]

Bierbelly -

You definitely heard right, truly world class.

As for their suitability? That was my point. The hypothetical I discussed was not to comment on or compare individuals specifically. My point was that we should look at fit and function clearly, systematically, and broadly. Absent the real job requirements and an individuals actual background, I do not think that generalizations (i.e. patent practitioners generally better than...) are constructive.

[bierbelly]

You definitely heard right, truly world class.

One I can think of in particular. ;^)

TWS

[Erin-Michael Gill]

Oh my goodness... that was a surprise.

Good to hear from you.

:)
EMG

[real anonymous]

Mitt Romney promises to appoint experienced patent practitioner as Director if elected:

http://www.pli.edu/patentcenter/blog.asp?view=plink&id=175

[Jeff Spangler]

Obama is not ready for political prime time and suffers from the academic geekitis of a law prof who's never really practiced law, much less IP law. Maybe in another three or four Presidential election cycles, he will have some of the gravitas required to lead a country which is not nearly ready to elect him today or next year.

[MaxDrei]

Bierbelly, no idea why you christen as "revolutionary" the objection that "about 13" includes "20" within its ambit. Long overdue in my opinion. If the 13cm dimension is defining, for example, the wavelength of electromagnetic radiation, (which runs from 10 to the plus mega x to ten to the minus mega x), why shouldn't 20 cm lie within the ambit of "about 13cm"? It all depends on context. And has the USA still not got used to the routine squeeze argument deployed by EPO Examiners "I say that your "about 13" includes 20. Tell me why it doesn't" If it really is absurd that "about 13" includes 20, in your particular context, you will have no problem to overcome the objection. Go to it.