- PTO Funding Emergency: Andrew Noyes reports on an emergency funding bill for the PTO that would allow the agency to use surplus funds from its trademark budget to fund the growing shortfall on the patent side. Link. The current trademark budget surplus is estimated at $60 million. [Diane Bartz’s Reuters article on the same topic]
- John Duffy: Michael Orey of BusinessWeek has published an article recognizing the ongoing contributions of Professor Duffy: A Scholar-Activist Challenges U.S. Patent Law.
- Todd Dickinson: Joff Wild of IAM recently interviewed former PTO Director Todd Dickinson and posted the 9 minute video on YouTube. [Watch the Video][IAM Blog]. Dickinson walks through the three major priorities for the next director: Priority I: Reestablish the stakeholder relationship with the PTO; Priority II: Pendency & backlog (in the shadow of the financial shortfall); Priority III: Quality.
- False Marking: PUBPAT continues its campaign against false marking. Earlier, I reported on its false marking lawsuits against Cumberland (Sweet’N Low) and Iovate (Xenadrine). Last week, the nonprofit filed a false marking suit against McNeil (Tylenol) and filed an amici brief in Pequignot v. Solo Cup. In that brief, PUBPAT argues that damages should be based on “each falsely marked article.” The brief also spells out some of the harms of falsely marked products:
“The reason why companies mark and advertise their products as patented is because they expect doing so will provide them some benefit in the marketplace, such as by winning over consumers, building a superior brand associated with innovativeness, implying that their product has been reviewed and approved by the federal government, or implicitly threatening actual or potential competitors with allegations of patent infringement. Thus, when products are falsely marked or advertised as “patented” or with the numbers of expired, invalid, or inapplicable patents, such false marking provides these potential benefits to the false marker/advertiser without any commensurate justification and, as such, creates the potential to negatively impact the marketplace, the public interests, and the integrity of the patent system.”
- File Attachment: SoloAmiciBrief.pdf (1100 KB)
- File Attachment: PUBPAT v McNeil – Complaint.pdf (321 KB)
Samuel Palms for Director!
It is great that the Senate will save the PTO. However, the Senate should require the PTO to reform its current practice. Currently, there is too many managers in the PTO. When I say managers it includes (directors/SPEs/TQAS/WQAS/Subject Matter Experts/SPRE/OPLA…..).
Here is the problem, most of them are GS-15 or higher, which is at least $130,000 in salary. All these positions do not generate revenue (they don’t examine applications in anyway). Furthermore, micromanagement only hinders those who actually generate revenues (examiners).
The PTO created a new TC2400 in 2008 to add more management instead of reducing it (unbelievable). If this continues the $80 million, will not save any layoffs. And, if the layoffs is by seniority, then the Examiner who actually generates the revenue will be fired first, while the managers who don’t generate revenue continue to hold the positions.
The Senate should require the following:
1) DEMOTE some managers to Primary Examiners. Have a peer review, a confidential survey of examiners the manager is supervising and ask them about the manager’s effectiveness. Demote the lower ranked managers to primary. Reason for surveying examiners is because (1) the have to deal with the manager on a daily basis and (2) to avoid politics/favoritism.
2) Require those not demoted to have production/examining function component. For example, spend 40 hrs in bi-week examining and the other 40 hrs doing other duties. So, atleast they generate partial revenue.
Here is an estimate:
A) Assume you demote 10 managers per TC (each TC has more than 100 managers).
B) 10 X $130,000 (minimum salary for a manager) = $1,300,000 per TC.
C) With 9 TCs the number comes out to a whopping $11,700,000. Keep in mind this is low ball estimate.
These are modest measures and none of these employees are fired. Unlike, a private corporation where managers would have layed off in the first round of layoffs. It is nice to have management positions, but it is even nicer to have jobs.
References:
link to uspto.gov
link to apps.opm.gov TYPE IN 0576
JAOI:
Here is a quote form Wikipedia, because I am too busy to consult more “reliable” sources at the moment:
“an exclusive right is not necessarily absolute, as an easement may allow a certain level of public access to private land.”
The Constitution does not grant Congress the power to grant to authors and inventors “only an absolute exclusive right.” It just says, “the exclusive right.”
It seems to me that you are reading limitations into the clause that are not present. Granting the exclusive right, subject to a compulsory license under certain circumstances, is equivalent to granting someone title to land and then granting someone else an easement over it.
There is an example that demonstrates that the exclusive right granted by a patent is not absolute. For example, the government gets to use your patented invention without your permission if it relates to certain types of technology. So there is an example of compulsory license for you, and it has been around for a long, long, long, long time. In view of that, I think that it is well established that Congress does grant the exclusive right subject to a compulsory license in certain circumstances, and did so long before Ebay.
To sum up, I think that it is your position that “the exclusive right” must mean “only the absolute exclusive right.” So I’m sorry, but I don’t think that you are right about that.
IANYL. TINLA. I will copy this reply to the other thread for continuity.
Dennis,
Thanks. Whatever the settings are now, I again have access to the comments during my trip into the office.
Things are working again – And 20 recent comments – great.
Dear broje,
Here is a link to my response to your last comment regarding the exclusive Right and compulsory licensing:
link to patentlyo.com
“Would you agree with me that this language does not encompass “compulsory licensing”?, i.e., that any reasonable interpretation of this language would exclude “compulsory licensing”?”
Dennis,
Would you also be able to check into the situation that the comments do not show up on my handheld? I have a Verizon Q. Not sure if other handheld users have a similar issue.
Thanks.
I’m working on the comments – Sorry for the problems.
I would also guess the (useless) glyphs are part of the problem.
My whole thing is messed up. The first few letters of every name shows up in glyphs, the formatting is out of wack, and I don’t see any comment numbers. This new system is not backwards compatible with IE 6.
“Still I see no pseudonyms in the “Recent Comments” column, only “on” and the title of the thread.”
Why are the pseudonyms (monikers) missing, Dennis? I found them helpful.
Here are more excerpts to the neat article/link Mr. curious found:
link to nytimes.com
We should be taking advantage. Now is when we should be stapling a green card to the diploma of any foreign student who earns an advanced degree at any U.S. university, and we should be ending all H-1B visa restrictions on knowledge workers who want to come here. They would invent many more jobs than they would supplant. The world’s best brains are on sale. Let’s buy more!
Barrett argues that we should also use this crisis to: 1) require every state to benchmark their education standards against the best in the world, not the state next door; 2) double the budgets for basic scientific research at the National Science Foundation, the Department of Energy and the National Institute of Standards and Technology; 3) lower the corporate tax rate; 4) revamp Sarbanes-Oxley so that it is easier to start a small business; 5) find a cost-effective way to extend health care to every American.
We need to do all we can now to get more brains connected to more capital to spawn more new companies faster. As Jeff Immelt, the chief of General Electric, put it in a speech on Friday, this moment is “an opportunity to turn financial adversity into national advantage, to launch innovations of lasting value to our country.”
Sometimes, I worry, though, that what oil money is to Russia, our ability to print money is to America. Look at the billions we just printed to bail out two dinosaurs: General Motors and Chrysler.
Lately, there has been way too much talk about minting dollars and too little about minting our next Thomas Edison, Bob Noyce, Steve Jobs, Bill Gates, Vint Cerf, Jerry Yang, Marc Andreessen, Sergey Brin, Bill Joy and Larry Page. Adding to that list is the only stimulus that matters. Otherwise, we’re just Russia with a printing press.
Still I see no pseudonyms in the “Recent Comments” column, only “on” and the title of the thread.
I’ll guess that the software is taking the psuednoym from the comment to put it in the comment body i.e., “Just an ordinary inventor(TM) said”.
These comments are from this thread:
link to patentlyo.com
They are repeated here because they may have been overlooked.
broje said in reply to Just an ordinary inventor(TM)…
“Would you agree with me that this language does not encompass “compulsory licensing”?, i.e., that any reasonable interpretation of this language would exclude “compulsory licensing”?”
No.
“… do you know of anything in the Constitution that would explicitly conflict with Congress enacting legislation that granted patents (with “the exclusive right”) only to certain classes of inventors?”
Sure. There are certain classes of people that are specifically protected. I don’t think Congress could choose to grant patents: to whites but not blacks; to men but not women; to Christians but not Jews; to people who were born to married couples but not to people born out of wedlock; etc. The Constitution was specifically amended to prevent that kind of discrimination.
I do think that Congress can discriminate between practicing inventors and non-practicing inventors, simply because Congress is not specifically prohibited from doing so.
The Constitution empowers Congress to grant patents, but does not require Congress to do so. Therefore, Congress can choose not to grant patents to anyone.
The Constitution enumerates certain classes of people with regard to which Congress cannot discriminate. Therefore, Congress can choose to grant patents to some people but not others, so long as the distinction is not drawn along the lines of those enumerated classes of people.
It follows that Congress can choose to grant patents with certain ones of the available remedies available to some patentees but not others.
Reply Jun 25, 2009 at 02:55 PM
* * * * *
Just an ordinary inventor(TM) said to broje:
Dear broje,
Re: “The Constitution empowers Congress to grant patents, but it does not require Congress to do so. Therefore, Congress can choose not to grant patents …”
Yes, I agree.
Re: “I do think that Congress can discriminate between practicing inventors and non-practicing inventors, SIMPLY BECAUSE CONGRESS IS NOT SPECIFICALLY PROHIBITED FROM DOING SO.” (Emphasis added).
Sorry, but I am perplexed and I am constrained to disagree. There are myriad things our Constitution did not specifically prohibit Congress from doing — that doesn’t mean Congress can do those myriad things.
I’m glad we can agree that the plain unambiguous meaning of the patent clause in the Constitution gives discretion to Congress whether or not to grant to inventors “the exclusive Right” to their inventions.
However, your notion, inter alia, that — Congress can discriminate between an inventor working for himself or an inventor working for someone else, or practicing inventors and non-practicing inventors — simply because, for example (as I understand your argument), since the Constitution and its amendments prohibit racial, gender or religious discrimination, but the Constitution doesn’t specifically prohibit discriminating between an inventor working for himself or an inventor working for someone else, and it doesn’t specifically prohibit discriminating between practicing inventors and non-practicing inventors — with all due respect, this argument to me seems to be facially flawed and absurd to say the least.
Is that your argument? Did I understand it correctly?
Be that as it may, I asked you:
“Would you agree with me that this [patent clause] language does not encompass ‘compulsory licensing’?, i.e., that any reasonable interpretation of this language would exclude ‘compulsory licensing?’”
And you said — No.
But, I see the clear meaning of our Constitution’s patent clause thusly:
It cedes discretion to Congress whether or not to grant “the exclusive Right” to an inventor for his invention. It does not give Congress (or the Courts or anyone else) the right to force an inventor to license his invention if he has been granted “the exclusive Right” under the Constitution’s patent clause.
Why, pray tell, would you think discrimination between, for example, an inventor working for himself or an inventor working for someone else, or discrimination between practicing inventors and non-practicing inventors, has any basis whatsoever in the Constitution or equity or in any of the Patent Laws that have heretofore been legislated by Congress?
I haven’t thought about and have no opinion about whether or not Congress could lawfully legislate different Patent Laws for different classes of inventors.
Certainly Cisco and its cohorts in their bullyshit cartel for “patent fairness” would try to do so if they thought they could possibly get away with it. However, I don’t think their collective intelligence is bright enough to come up with such an innovative plan in the first place — they do business “the old-fashioned way” if you catch my drift.
And I’d bet the upper class would like to see Congress legislate different laws for them to abide by compared to laws for the lower class.
In Alice’s Wonderland maybe such discrimination would be possible, but in America, under our Constitution, attempts at such discrimination would be folly.
Here’s the skinny of our Constitution’s patent clause in regard to Congress’s discretion and the question of discrimination:
Congress is specifically instructed in the body of the Constitution to grant “the exclusive Right” if, and only if, Congress elects to utilize this particular power, that power that is afforded to it in the Constitution’s patent clause.
You also say that:
“It follows that Congress can choose to grant patents with certain ones of the available remedies available to some patentees but not others.”
I hope you will now agree that it follows that your conjecture is facially unconstitutional, minimally, for sure, in regard to grant of “the exclusive Right”, because, any lesser interpretation is akin to compulsory licensing, and that interpretation was precluded given the specific, carefully chosen, language the Framers laid down as the Law of the Land.
(Please note: I edited my repeated comment slightly and added to it.)
Dear curious,
I have to go out now, but I’ll read the rest of Mr. Tom Friedman’s article later. I see he finally came around to my way of thinking. Bravo.
Cisco and its dummy-down-patent cohorts in the cartel for Patent Fairness can go suck on bullyshit for what they have done and are trying to do to our Patent System.
According to Tom Friedman:
“the country that uses this crisis to make its population smarter and more innovative — and endows its people with more tools and basic research to invent new goods and services — is the one that will not just survive but thrive down the road.
We might be able to stimulate our way back to stability, but we can only invent our way back to prosperity. We need everyone at every level to get smarter.
I still believe that America, with its unrivaled freedoms, venture capital industry, research universities and openness to new immigrants has the best assets to be taking advantage of this moment — to out-innovate our competition. But we should be pressing these advantages to the max right now.”
link to nytimes.com
The six year maximum recovery allowed for pre-suit [back] damages is obviously not a statute of limitations or a statute of repose because it does not place any time limit at all on when a patent suit can be brought, or how long it can be delayed, irrespecitive of how long the infringement has been going on. It even allows patent suits to be brought for up to six years after the patent has already expired [to recover at least part of the back damages]. [Hence, the unusual importance of laches and/or non-marking in patent litigation to reduce back damages.]
I would guess that the primary reason for marking is to provide notice, a necessary requirement for full-bore 287 damages. Other benefits are almost certainly tangential. Marking may serve an actual deterrent in fields with a number of small firms not having the resources to do an infringement analysis, such as software.
The intent to deceive is obviously a key in patent marking cases, particularly when you are talking about patents that were valid but have expired. I once received a leather briefcase as a gift that was a reproduction of a case that was patented back in the 1930’s or so. The stamp in the leather included the original trademark and patent number, which was of course long since expired. I don’t think many people were mislead by the patent number, nor was there any intent to deceive.
I guess the question is–who are you trying to deceive with an expired patent number? Certainly no manufacturer is going to be deterred by an expired patent–in fact, I would think that the opposite is possible, as you are essentially telling competitors that at least some part of the marked product is the public domain.
You mean you changed it back to its original form. I didn’t have the nerve the post it without editing it first. Are you my evil twin?
And you, Sir, are the fertilizer.
– fixed it for you broje
“Somewhere there is a rich idi0t farm.”
And you, Sir, spread the fertilizer.
Reasonableness should be the key in patent marking. This recent rash of cases seems like pure and expensive harassment to me. Particularly in the case of expired patents, who cares? Such markings should not be a deterrent to would-be competitors because in two minutes time they can get on line and find out if the patent is so in force. Manufacturers have enough compliance issues in this regulatory environment in which we live without saddling them with the responsibility of constantly monitoring the status of their patents and hassling them with $1,000 potential fines per cup (in the case of Solo). Enough with the litigious crap for goodness sake. So, to summarize, the threshold of deceptiveness to prove false marking should be very high. As for the “patents pending” issue, pending patents have no enforceable effect, so are really not a deterrent. So, again, who cares?
No statute of limitations…what do you think the limit on reaching 6 years back is?
“the fact that patent infringement is, strangely, one of the few [if any] torts with no statute of limitation or repose”
I don’t think that’s altogether correct. I can’t remember the case, but I’m fairly sure SCOTUS has held that once a patent term expires, the patentee’s right to sue for infringement is cut off. Of course, that’s a pretty long effective statute of limitations, but it’s not unprecedented in the law. By way of comparison, in many states, there is a 15-20 year statute of limitations for bringing an action in ejectment (think adverse possession). Otherwise I agree with your post.
PUBPAT “The reason why companies mark and advertise their products as patented is because they expect doing so will provide them some benefit in the marketplace, such as by winning over consumers, building a superior brand associated with innovativeness, implying that their product has been reviewed and approved by the federal government, or implicitly threatening actual or potential competitors with allegations of patent infringement.”
For similar reasons, many companies file excessive patent *applications* simply to (1) state that they have a “portfolio” and (2) give them an excuse to put “patent pending” on their products. It’s nothing more than crotch stuffing for these companies. Most consumers don’t care whether something is patented or “patent pending”. It’s all the same to them. “Patent pending”, for them, means simply that the paperwork is being “processed.”
I’d also add that a surprising number of “executive” types also are unable to tell the difference. Where do companies find these people? I don’t know. Somewhere there is a rich idi0t farm.
Is there another person out there who shares the same curious spelling of my name or is someone trying to infringe upon my persona?
Sean “Duffy” Combs rhetoric is fabulous. Here is some of P. Diddy’s lyrical magic.
“Duffy isn’t aligned with any industry camp” – Riight. He represented Goldman $achs specifically on cases that “challenge established doctrine.” Sounds like special-interest tinkering to me.
Was a law clerk for Scalia – I hear they pay $200k bonuses nowadays, but only those firms that represent Goldman.
“Federal Circuit hand-picked Duffy to argue for broadly patenting business methods” – which makes no sense giving Diddy’s anti-patent history (KSR).
“Duffy isn’t aligned with any industry camp” – Right. From one card counter to another, I smell a BLUFFY, and it always starts with DUFFY.
Ah, Professor Duffy – wish I had you for patents instead of torts.
Mike, yes, from the standpoint of infringers, the marking statute, 35 USC 287, is an important partial defense in some cases against the fact that patent infringement is, strangely, one of the few [if any] torts with no statute of limitation or repose and six years of back damages [pre-suit]recovery with no prior actual notice, even against innocent, surprised, defendents.
But on the issue here of marking intent and/or motivation to mark, the false marking statute and the marking statutes have to be looked at in combination from the viewpoint of the patent owner.
Dennis, re your above post on Prof. John Duffy, as I recall reading somewhere, he had filed an amicus brief in In re Bilski broadely supporting patentability of business methods in general? If so, could you provide a hot link to it in your next post? It might become far more important now that the Supremes did take cert.
Thanks, Paul
Paul – While I agree that there is a heavy penalty for not marking is that the marking substitutes ACTUAL notice to a would-be infringer. For the infringer, that’s an even BIGGER penalty. So it should be a bit of a trade off: if you want the benefit of constructive notice, then you are the one responsible for using marking responsibly. And, I don’t think a specific intent with a high burden should be necessary. If you’re going to mark, then you’re the one responsible for doing so with your valid patents.
Now there are probably borderline cases: e.g., what happens when you have left over packaging, molding, etc.
The false marking statute, 35 USC 292, needs to be read in context with the marking statute, 35 USC 287,which heavily punishes NOT marking patented products by significantly reducing potential infringement damages recoveries.
Furthermore the 35 USC 292 requirement of: “for the purpose of deceiving the public” is, or ought to be, a very specific [if not quasi-criminal] intent requirement with a high burden of proof. Most “falso marking” is mere oversight or negligence, especially as to expired patents.
Furthermore, if as argued above in these cases, that to “provide them some benefit in the marketplace” was actually sufficient for this intent, the fact that the product HAD been patented would make marking with expired patents be logically truthful for that purpose! And potential competitors for the making the same product are actually ASSISTED by expired patent markings!
Also in today’s Wall St. Journal:
“There is nothing wrong with business-method patents. Inventions can be realized in steel or in the mind” link to bit.ly Greg Blonder of AT&T
I don’t know the merits of the latest suit, but with respect to expiration, how long is too long. If a product has a five-year lifec-cycle, we are are not updating the box on a monthly basis to add or substract patents that issue.
With respect to validity, I can only speak for myself when I say that neither I nor my employers believe any of the patents we have included in marking or asserted were invalid.
Finally, how many inapplicable patents are too many. If you have a list of 60 patents covering a product and it turns out that one does not happen to cover the particular configuration being sold, would that be false marking? Does intent come in at all?
Comments are closed.