The dot.com business model was built around new technologies and new ways of doing business. Fast-growing companies and their intellectual property were snapped up in mergers and acquisitions at a blistering pace in the boom. Now, many of the purchasers are hoping to shed excess weight.

In steps the newly formed “Venture Buyout” firm Garnett & Helfrich Capital:

Now a pair of Silicon Valley-based venture capitalists have opened an unusual $250 million fund intended to buy and rehabilitate such companies, which Terry Garnett, one of the two founders, calls “the orphaned and the unloved.” (NYTimes)

In many cases, the partners hope to bring original creators back to run the new companies.

“We’ve heard from a number of founders,” Mr. Garnett said, “who told us, ‘Gosh, we sold our business four years ago, and now our baby has been all screwed up and we want it back.’ ”

Garnett & Helfrich provide their own definition of terms:

Ven-ture Buy-out (ven’cher bi’out’) noun. The purchase of a technology business from a parent company, and the subsequent rebuilding of that business into an innovative and profitable enterprise. Involves risk of capital and substantial changes to the business to improve management and operations after acquisition.

NYTimes is reporting that a chloesterol lowering drug will be sold over-the-counter in the UK beginning this summer.

Starting in July, a low dosage of the drug Zocor will be sold over the counter to people at moderate risk of heart disease, a number that could reach 5 million to 10 million. That group includes all men older than 55, as well as men over 45 and women over 55 who smoke, are overweight, have a family history of heart disease or come from the Indian subcontinent, all groups that are at higher risk than the general population.

The US patent for Zocor (simvastatin) is expected to expire in 2006.

Update 5/17/04: US drug makers are working with the FDA to get OTC approval.

A decision is months away, but approval by the Food and Drug Administration could significantly affect the nation’s biggest public health problem, heart disease, and greatly expand sales in the top-selling drug category. (Article)

A little off topic: Survey results indicate that Attorneys have the third highest motor-vehicle accident rate of any occupation. The two groups with worse records are students and medical doctors. (Small Firm Business).

Autoliv’s patented restraint system may help us make it out alive.

Drive Safely.

Judicial fact finding is back in vogue this time via Google.

In the United States and abroad, judges are turning to search engines such as Google to check facts, to look up information about companies embroiled in litigation, and to challenge statistics presented by attorneys in court. Dozens of judges have penned opinions describing Google as a valuable–and sometimes crucial–source of knowledge. (Declan McCullagh at CNet News)

Under the Federal Rules of Evidence (Rule 201), this type of judicial notice of facts is only allowed when the accuracy of outside sources “cannot reasonably be questioned.”

Related Book: The Lawyer’s Guide to Fact Finding on the Internet) by Carole Levitt and Mark Rosch has an updated edition with lots of examples.

Written especially for legal professionals, this … edition is a complete, hands-on guide … for conducting efficient research on the Web. Learn the differences between legal research and fact-finding. Discover the distinction between the “visible” and “invisible” Web and how to find information in each. Learn the nuances of search engines in order to formulate strategies for locating the information you need. And read real-world war stories of how Internet data has benefited other legal professionals. (ernietheattorney)

Other: Illustrated patent case law.
(Thanks to Lori Patel, Law.com for the Link)

Thomas Hitter has published new note in the Federal Circuit Bar Journal suggesting that the Federal Circuit implement an ADR program.

The users at Tribe.net have started an interesting conversation for individuals with great ideas, but no money to pursue them.

Only a select few ex parte reexaminations are filed by patent owners. Often the technology at issue is of particular importance, and the owner hopes to ensure that the patent is valid before pursuing potential infringers.

3M recently filed for reexamination for several patents covering field flattening lenses used in wide screen television (TV) technology. (Nipper). This may be a reaction to the recent patent tussle between Fujitsu and Samsung.

George Graff and Adam Kraidin have written a concise article for the Washington Legal Foundation that neatly summarizes current law on submarine patents. Submarine patents use successive continuation applications to claim previously disclosed but unclaimed features of an invention many years after the filing of the original application. Ricoh v. Nashua (Fed. Cir. 1999).

Most recently, the Nevada District Court in Symbol Technologies v. Lemelson used a 7-factor test in finding Lemelson’s patents unenforceable.

1. The overall delay between the filing of the application and the issuance of the claims;
2. The initial delay in presenting the claims to the patent office for the first time;
3. Lemelson’s original disclosures were made public in the 1960s, and the original patents based on those disclosures had expired by the early 1980s;
4. Before the asserted claims were filed, numerous articles and patents describing machine vision and bar code scanning had been published, and commercial products had been developed and marketed;
5. Lemelson was aware of the developments in the machine vision and bar code fields, but still delayed the issuance of patents asserting his claims;
6. Lemelson systematically extended the pendency of his applications by sitting on his rights, and sequentially filing one application at a time, so that he could maintain their pendency while waiting for viable commercial systems to be designed and marketed; and
7. Finally, after others had successfully developed and commercially exploited the technology, Lemelson drafted and prosecuted hundreds of new claims in the late 1980s and 1990s specifically worded to cover those commercial systems.

In addition, the Symbol court noted that widespread use of Lemelson’s technology prior to the suit “created adverse intervening private and public rights.”

The confirmation process for Jon Dudas as head of the USPTO appears to be continuing smoothly. Rep. Henry Hyde recently introduced his nomination on the House floor.

Dudas is a former staffer for Hyde and was Deputy General Counsel of the House Judiciary Committee. Perhaps most importantly, Dudas was just a few classes ahead of me at The Law School.

Updated information here.

Michael Madison, a professor at Pittsburgh, has provided some good advice for any scientist or engineer hoping to move into the field of patent law:

I have two standard responses: One is: run, don’t walk, away from “law school prep courses.” (How to read cases, outline courses, take exams.) They’re worse than useless. They’re useless and expensive. Two is: Read Shakespeare. Or if not Shakespeare, then read Melville. Dickinson. Ellison. Baldwin. Morrison. Borges. Milosz. Pick a major literary figure–any gender, any genre, any era–and read that person’s works. Be literate, in every sense of that word.

My neighbor, Dr. Quentin Young has a letter in today’s Chicago Tribune concerning medicine prices:

We need to negotiate with pharmaceutical firms, demanding that they provide much greater value for their products. Much of their research is wasted on products that are designed to restart the patent clock.

And then they waste funds on intensive marketing to convince physicians and the public that these more expensive products should be purchased when they are often no better than existing, but less profitable, generic products.

Quentin has been an activist for a national health care system and is now the National coordinator of Physicians for a National Health Program

Tim Uy at Stanford emailed about his newest venture — onCloud8. You can download patents and applications for 88 cents a pop.

I don’t know how Tim obtains the raw patents data. Those who are planning to download from the USPTO in quantity should beware. I have a friend who set up a perl script to download about 300,000 patents — the USPTO eventually blocked his IP addresses. They have a policy against excessive downloading.

These databases are intended for use by the general public. Due to limitations of equipment and bandwidth, they are not intended to be a source for bulk downloads of USPTO data. Bulk data may be purchased from USPTO at cost (see the USPTO Products and Services Catalog). Individuals, companies, IP addresses, or blocks of IP addresses who, in effect, deny service to the general public by generating unusually high numbers (1000 or more) of daily database accesses (searches, pages, or hits), whether generated manually or in an automated fashion, may be denied access to these servers without notice.

“At cost” may be a bit shocking. For example, 2004 patent application data for 2004 has a cost of $37,800. (Pricelist)

Update: Tim is a graduate student in applied physics, and his data is not coming from the USPTO site. If you have specific requests, he may be able to work with you. email Tim.

One of my old professors, Jack Goldsmith, has joined the Justice Department’s new Intellectual Property Task Force headed by David Israelite. The task force will reexamine how the DOJ handles IP issues and develop a set of recommendations.

According to Mr. Israelite,

The Attorney General is committed to vigorous enforcement of the law and the protection of intellectual property rights, and those priorities will guide the task force as it seeks to strengthen and improve the Justice Department’s efforts in the intellectual property arena.

This cartoon expresses the Patent Office Professional Association’s (POPA) view of patent examiner morale. Although POPA agrees that funding is an issue, they have a simple solution:

Give the examiners more time and you will get better quality. Let me repeat- Give the examiners more time and you will get better quality.

(POPA News).

Richard Gilbert has a new article in the Stanford Tech Law Review discussing patent pooling and antitrust.

There is no simple prescription to determine when a patent pooling arrangement is anticompetitive. . . . Antitrust evaluations should begin with a study of the competitive relationships of the patents involved in the pool. Unfortunately, this is not a simple task. . . . If the pool combines many patents, each of which can block the use of a technology, a challenge to the pool is not likely to affect prices unless all of the blocking patents are shown to be invalid or not infringed.

JuNelle Harris Co-EIC of STLR emailed that they are seeking contributions for their “Perspectives” section:

STLR Perspectives features concise, readable analyses of cutting-edge technology law and policy issues. High quality, law-focused work by scholars, students, practitioners, and advocates is welcomed. Submissions should be no more than 15 pages in length, double-spaced and including footnotes, and will be considered on a rolling basis.