Archive for the ‘Patent Reform’ Category

Since 2001, Gerry Elman has been a founding member of the World Technology Network (the “WTN”). Annually since then, the WTN has produced a summit conference and awards gala, the World Technology Summit and Awards, at venues ranging from London, to San Francisco, to New York City.

This year’s World Technology Summit and Awards took place in New York City on November 30 and December 1 at the Time & Life Building at Rockefeller Center.

On December 1,  the roundtable on IMAGINED WORLDS / PLAUSIBLE FUTURES: How Sci-Fi Legends Dream for Us, featured

• Paul Levinson, Author; Former President of Science Fiction Writers of America; and Professor of Communication and Media Studies at Fordham University
• Stanley Schmidt, Author; Editor of Analog Science Fiction & Fact magazine
• David Hartwell, Three-time Winner of the Hugo Award; Administrator of the Philip K. Dick Award

It was moderated by Dr. Moira Gunn, Host of Tech Nation and BioTech Nation on National Public Radio’s 24-hour program stream.   [Click here to watch a short video clip from the event]   [Click here for a video on FORA.tv of the full roundtable, payment required]

Said Gerry Elman,

“I am delighted that WTN founder Jim Clark acted on my suggestion to include such a roundtable in this year’s Summit, and that Elman Technology Law has been afforded the opportunity to sponsor this event.  It is exciting to acknowledge that many of the technological advances we are living with were first envisioned by authors writing in the genre of science fiction.  By reading science fiction, we stretch our minds towards a vision of the future that we, as technologists, then help to engender.”

Indeed, at a previous World Technology Summit, science fiction legend Sir Arthur C. Clarke was interviewed via a satellite link from his home in Sri Lanka, fitting–in that he had first proposed satellite communications in 1945.

Gerry asserts that an unsung prophet of biotechnology is Damon Knight, who in 1953 wrote a story called Natural State in which rural agricultural biotechnologists (the “muckfeet”) are at war against city folk whose lives are based on electromechanical technology.   In the story, the muckfeet communicate via genetically engineered vines with a nervous system that provides telephony, and transport themselves via genetically engineered big birds.  They win the war with the urbanites by splicing genes into a microbe to get it to gobble up copper, thereby destroying the technological infrastructure by which the city people communicate.

Gerry notes that, at the same time that James Watson and Francis Crick were sussing out the double-helix structure of DNA, Damon Knight conceived for that story the concept of splicing genes to create a biological chimera.  Later, Stanley Cohen and Herbert Boyer were to develop a tool to realize that dream, the technique of recombinant DNA, that was patented due to the watchful eye of patent attorney Bertram Rowland (whose recent passing we sadly note), working with Niels Reimers of the Stanford University technology transfer office.  Gerry observes wryly that Damon Knight’s story was not among the “prior art” cited during the prosecution of the Cohen-Boyer patents.

Damon Knight went on to found an organization of authors then called Science Fiction Writers of America (“SWFA”) and now known as Science Fiction and Fantasy Writers of America.  More recently, Roundtable panelist Paul Levinson served as president of SWFA.  Coincidentally many scenes of Levinson’s sci-fi novels are set in midtown Manhattan, close to the venue of the Summit conference.

Gerry observes that the war between biotechnologists and information technologists envisioned by Damon Knight in Natural State has an eerily familiar echo in the present debate over “patent reform.” Many major information technology companies have been lobbying Congress to defang U.S. patent law, while most biotechnology companies are striving to resist such a statutory change.  For further information on this, subscribe to Elman’s Patent Reform News by sending Gerry  an email addressed to info@elman.com, and visit the website of American Innovators for Patent Reform.

As to the vulnerability of our technological infrastructure highlighted by Knight’s story, Gerry urges us also to heed the cautionary message in Richard Clarke’s recent book Cyber War.

Workshop on May 26 to Explore the Intersection of Patent Policy and Competition Policy and its Implications for Promoting Innovation

WASHINGTON – The Department of Justice, the Federal Trade Commission (FTC), and the Department of Commerce’s United States Patent and Trademark Office (USPTO) announced today that they will hold a joint public workshop on the intersection of patent policy and competition policy and its implications for promoting innovation. Assistant Attorney General for the department’s Antitrust Division Christine Varney, Under Secretary of Commerce for Intellectual Property and Director of the USPTO David J. Kappos, and U.S. Chief Technology Officer Aneesh Chopra will give opening remarks at the morning session of the workshop. FTC Commissioner Edith Ramirez will open the afternoon session.

The workshop will be held on May 26, 2010, at the USPTO’s campus at 600 Dulany Street, Madison Building Auditorium, Alexandria, Va. The general public and press are invited to attend and view the proceedings. Seating will be on a first-come, first-served basis.

[GJE Note]: Since I served in the federal Antitrust Division for six years and am fervently committed to promoting innovation, I’m gonna accept this invitation to hightail it down to Alexandria for the “festivities.”

In recent years, federal agencies and the courts have recognized that patents and competition share the overall purpose of promoting innovation and enhancing consumer welfare. Timely, high-quality patents promote investment in innovation. The competitive drive of a dynamic marketplace fosters the introduction of new and improved products and processes. By contrast, delay, uncertainty, and poor patent quality can create barriers to innovation. Additionally, where standards for violating antitrust law are unclear, or where the threshold for antitrust violations is set too low or too high, innovation can be stifled. The workshop will address ways in which careful calibration and balancing of patent policy and competition policy can best promote incentives to innovate.

“Since innovation is the only sustainable source of America’s competitive advantage, the relationship between intellectual property, which captures the value of innovation, and competition policy, which maintains a dynamic marketplace for innovation, is of paramount importance,” noted Under Secretary of Commerce David Kappos. “This conference is designed to explore the relationship between competition policy and intellectual property policy and how it fosters innovation.”

“We will benefit from working together with our PTO and FTC colleagues to ensure that the United States is using patent and competition policy that maximizes the potential for innovation, which is the primary driving force of economic growth in the 21st century,” said Assistant Attorney General Christine Varney.

FTC Chairman Jon Leibowitz agreed. “The FTC appreciates this opportunity to work with the DOJ and the USPTO to explore a balance of patent and competition policy that most benefits consumers, by spurring more innovative products and lower prices.”

The first morning panel of experts will examine how challenges posed by the patent backlog affect the competitive strategies of patent applicants and innovators. The second morning panel will examine the impact of the Supreme Court’s 2006 opinion in eBay Inc. v. MercExchange L.L.C. on permanent injunctions for patent infringement in district courts and at the U.S. International Trade Commission (USITC). The afternoon panel will evaluate the role of patents in connection with industry standards and the impact such standards have on competition. The workshop will conclude with reflections on the panel discussions by the chief economists of the department’s Antitrust Division, the FTC, and the USPTO.

The schedule for the workshop is as follows:

WELCOMING REMARKS

9:00 a.m.-9:30 a.m.

David Kappos, Under Secretary of Commerce for Intellectual Property and Director of the U.S. Patent and Trademark Office

Christine Varney, Assistant Attorney General, Antitrust Division, Department of Justice

Aneesh Chopra, U.S. Chief Technology Officer, Executive Office of the President

PANEL 1: The Patent Application Backlog: The Competitive Challenges for Innovators

9:30 a.m.-11:00 a.m.

Panelists

John F. Duffy, Oswald Symister Colclough Research Professor of Law,

The George Washington University Law School

Josh Makower, M.D., Founder & CEO, ExploraMed Development LLC

Michael Meurer, Professor of Law, Boston University School of Law

Richard T. Ogawa, Esq., Ogawa P.C.

Scott Stern, Joseph and Carole Levy Professor, Kellogg School of Management, Northwestern University and Visiting Professor, MIT Sloan School of Management

Break

11:00 a.m.-11:15 a.m.

PANEL 2: Permanent Injunctions in the District Courts and ITC: Effects on Competition and Innovation

11:15 a.m.-12:45 p.m.

Panelists

Bernard J. Cassidy, Executive Vice President and General Counsel, Tessera Technologies Inc.

Colleen Chien, Assistant Professor of Law, Santa Clara Law

Alice A. Kipel, Partner, Steptoe & Johnson LLP

Christine McDaniel, Economic Adviser to Chairman Shara L. Aranoff,

U.S. International Trade Commission

William Barr, former General Counsel, Verizon Communications Inc.

Emily Ward, Vice President and Deputy General Counsel, eBay Inc. (invited)

Lunch Break

12:45 a.m.-2:15 p.m.

Introductory Remarks

2:15 a.m.-2:30 p.m.

Edith Ramirez, Commissioner, Federal Trade Commission

PANEL 3: Standard Setting, Patent Rights, and Competition Policy

2:30 p.m.-4:00 p.m.

Panelists

Mark Chandler, Senior Vice President & General Counsel, Cisco Systems Inc.

Patrick Gallagher, Director, National Institute of Standards & Technology,

Department of Commerce

Brian Kahin, Senior Fellow, Computer & Communications Industry Association

Anne Layne-Farrar, Director, LECG

Amy A. Marasco, General Manager, Standards Strategy, Microsoft Corp.

A. Douglas Melamed, Senior Vice President & General Counsel, Intel Corp.

Break

4:00 p.m.-4:15 p.m.

Wrap-Up Discussion

4:15 p.m.-5:15 p.m.

Carl Shapiro, Deputy Assistant Attorney General for Economic Analysis, Antitrust Division,

Department of Justice

Joseph Farrell, Director, Bureau of Economics, Federal Trade Commission

Stuart Graham, Chief Economist, U.S. Patent and Trademark Office

After reading Mike Masnick’s story in TechDirt complaining about the bad effect on the economy of Toyota patents on hybrids, I posted some Comments responding to it on their site. Here is what I’ve said so far:

57. In a dynamic economic system, patents are a good thing
by TechLaw_Elman (profile) – Jul 9th, 2009 @ 10:39pm

It seems to me that Mike Masnick is misled by the 18th Century European approach to economics (The Wealth of Nations by Adam Smith) vhich views the economy statically as a vehicle to allocate among members of the population goods and services available at any one time. But when one looks at the economy as a dynamic system that brings into existence over time better and more efficient products and services, the fallacy is exposed. Indeed the Founding Fathers of our Country took a dynamic view of the innovation economy and wrote into the Constitution Article 1, sec. 8, clause 8. In the following century, Abraham Lincoln, himself a patentee, said: “The patent system . . . secured to the inventor, for a limited time, the exclusive use of his invention; and thereby added the fuel of interest to the fire of genius, in the discovery and production of new and useful things.” Second Lecture on Discoveries and Inventions, Jacksonville, Illinois, February 11, 1859.

Consider the originator of such a product. Why take the risk to invest in an innovation unless the originator can reasonably expect a reward that outweighs the risk?

Consider the subsequent adopter of the innovation. If he could reap the rewards of marketing the improved product in an established market without sharing the burden and risk of the originator, then his expected reward is greater than the originator’s. In such an economy, everyone would be incentivized to play “after you Alphonse,” and one would expect a lower rate of innovation than in an economy supported by a viable patent system.

For a more comprehensive demonstration of this proposition, accompanied by evidence a viable patent system encourages innovation, read The Invisible Edge by Blaxill & Eckardt (March 2009)

And follow me on Twitter @TechLaw_Elman

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So what is the alternative?
by John Doe – Jul 8th, 2009 @ 12:16pm

Far be it for a company to actually compete on product quality/performance/price. Instead, they compete in the courts. It is a sad state of affairs with no end in sight.

58.Re: So what is the alternative?

by TechLaw_Elman (profile) – Jul 9th, 2009 @ 11:06pm

Methinks thou puttest the cart before the horse.

My view is that strong patents make strong economies.

See one writer’s take on poet laureate Robert Frost’s immortal words “good fences make good neighbors,”

If you know and respect the boundaries of my land (real property) you’ll keep off the grass voluntarily and I’ll have no need to sue you for trespassing. If, for your own convenience, you choose to cut across my lawn to shorten your path between your home and work, I’ll ask you to desist. If you are honorable, you will do so. But if (heaven forbid) you’re dishonorable, I may need to avail myself of the judicial system. Society encourages resolving our dispute that way rather than my using a shotgun to make you look like Fearless Fosdick.

To operate the “levers” of the legal system, I’d need to get a lawyer. But that expedient would be necessitated by your choice to disregard my rights and trample the grass.

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by Duane – Jul 8th, 2009 @ 1:15pm

It’s not creative or innovative unless they build off your work and better it. In which case, it’s both.

Also, the real problem is that people are patenting everything but breathing air, and the patents are so broad that anything you do is violating their patents. Don’t kid yourself, no company today’s wants to compete on innovation and creativity if they don’t have to. Lawsuits are cheaper.

59.Re: Re: “Lawsuits are cheaper” ?

by TechLaw_Elman (profile) – Jul 9th, 2009 @ 11:13pm

Duane:

Gee, I dunno about that. These days, as reported by the survey conducted biennially by the American Intellectual Property Law Ass’n, it may cost millions of dollars to take a typical high-tech patent lawsuit through the numerous stages of a court battle.

As I say in another comment in this overall thread, if you act honorably and respect my right to the invention as defined by the claims of the patent, I won’t have to sue to keep you off my property.

For further discussion, see ya on Twitter. @TechLaw_Elman