Imports and Infringement

 This, of course, is my Res-Ipsa-nator, a robot from the year 20XX sent back through time for the purposes of...(I forgot where I was going with this.)

Safe to say, when this robot appears, I generally have a comment about "Misinformation", or how the non-patent world leads the pliable minds of inventors down dangerous primrose paths. A veritable rogues gallery of Free-software, econo-bloggers and general malcontents pour confusing information onto the sticky fly mat of the internet, and the Ipsanator cleans it up.

While I am not overly concerned with correcting the unformed, it becomes a problem when I have to sooth a client's nerves based on some reading of fluff on the internet. This usually happens in a huff of righteous indignation that I, or a colleague,  had somehow mislead them into spending their precious capital (and it is precious, and shouldn't be spent without reason) on pointless IP protection.

A while back, an inventor came to me with a rather interesting mechanical device. We discussed the pros and cons on manufacture, patentiabiltiy, and the like, and settled on a very conservative patent application that directed itself to the object (and not the underlying abstract methods - Thank you very much Mayo!).

Months go by and the client contacts me in a panic. "A friend told me that big companies can steal your idea, patent it in another country, and then sell it in the US. If so, why or why did I get a patent in the first place!!!" (the words "charlatan" were not uttered, but the subtext was there.)

A bit of hand-holding was in order.

This is not true. Not even close to being true. Not only is it not close to being true, it is light-years from being true.  Now, is it true that in the past, Charles Dickens once remarked that america was "A Pirate Nation" based on our propensity to pirate his works? Yes. Does that have any bearing on this topic, No.

First. The Paris Convention (PCT) provides you with 12 months to get in to WIPO and then another 30/32 months to get into each local jurisdiction. So, you are always going to have the earlier filing date anywhere worth filing.  So Evil Corp is never going to be able to "steal your patent" and "patent your patent".

Second, even if you don't take advantage of the PCT and just file in the U.S., nearly any other jurisdiction has a first to file system. You have already filed in the U.S., so you are the first to file anywhere. Your filing becomes anticipatory prior art to any subsequent stolen filing.

Third - assume that Evil Corp steals your patent and secretly manufactures the device in Moldavia (cause Moldavia sounds like a country full of secret factories). You can stop them at the port or border with an ITC proceeding. I am not going to go into depth on ITC, but smaller inventors would be well served to learn more about the alternative options that the ITC gives to shutting down importation of infringing products.

The most important lesson here, is that "Some guy on the internet" is never the best resource. This goes for me, I am "some guy" on the internet. However, I am "some guy" in real life too.

Have questions - drop a line.

Jordan Garner

The Case of the Missing Flying Machine...Patent

60 Minutes and the Atlantic , recently reported that the original copy of the patent awarded to the Wright Bros( for a "Flying Machine" ) is currently missing. As you can see below, the current format of patents has changed very little in the 106 years since the Wright Bros received their notice of allowance. 

In fact,  many of the issues surrounding the Wright Patent are relevant to conversations we are still having today.  

It took the patent office nearly 3 years to grant a patent on something so innovative as a FLYING MACHINE. While the concept of actual controlled flight was not a physical impossibility in 1903, it was clearly considered an engineering problem of supreme difficulty. Everyone who has seen the sepia-toned films of various failed flying machines ( here) could reasonably say that the below patent was "obvious". Yet, the patent office did believe that there was prior art that diminished the novelty and non-obviousness.  Any patent attorney or inventor can relate to the frustration of having the patent office take 3 years to issue a patent on truly innovative technology. 

Of greater importance to current state of Patent Opinion and Policy, is the fact that as soon as the Wright Bros got their patent, they engaged in a series of brutal and drawn out patent litigations against their competitors.  At the time, opponents of the Wright Bros claimed that enforcement of the patent monopoly was a hindrance to the development of aerial technology.  Furthermore, distinguished inventors such as Alexander Graham Bell (himself an avid patent-er) called for the reform of the patent system to limit the "abuse" of men like the Wrights. 

Sound familiar. 

Anti-software advocates like to stress their opposition to only a certain class of patents, arguing that mechanical and pharmaceutics don't need patent reform. They argue that the actions of software companies and non-practicing entities are somehow new. That the system was never designed to handle these sorts of "abuses." That technology can not progress unless they are unshackled from the rules. 

 However, the Wright Patent Wars serves as a lesson. In spite of all the dread supposedly to come to american aeronautical progress, American companies still lead the world in aviation. Additionally, the chief target of Wright's Patent wrath, the aviation company founded by Glen Curtis, is still in operation.  The Wrights and their company "The Wright Company", after the expiration of their monopolies, were passed by nimbler, more innovative companies. Eventually, Wright Company  merged,  2 decades after the Wright Patent Wars - into a  new company with their old rival Curtis. Together they formed a small aeronautics company. The Curtis-Wright Company doesn't dominate the international aerospace market. 

The larger point is that the world moved on. The patents, documented for all time (although missing) serve as a official record of innovation at a glance, but only at a glance. Patents or not - innovation constantly moves on. 

In honor of Comic-con - a rebuttal to the End of IP

This week is Comic-con in New York.

Comic-con is awesome.

Comic-con could not be possible in a nation without a strong commitment to intellectual property protection. While people may differ on the benefits conferred by the Sonny Bono amendment (AKA the Mickey Mouse Protection Act), no one honestly argues that the characters in their favorite comics, video games and movies, should be free for anyone to pass off as their own.

That being said, the Anti-IP crowd (which is really an anti-software patent crowd), has yet to make the empirical case that nations without IP protection produce more intellectual property than nations that have weak or strong IP regimes. The Manga output of, say South Korea vs China, speaks to this.  The reasons are varied, and the subject of individual posts.

However, in honor of Comic-con, I present the following (terrible) Comic which demonstrates some of the problems that Anti-IP advocates face.

(all "YEA!" should be read as though spoken by the talking food of "Yo Gabba Gabba".)

jgarner@leasonellis.com

Columbus Day Inventions - App Inspiration

In my continuing quest to prove that Patent law is not simply a mechanism for destroying the aspirations of having a "Social Network" style movie made about your life, I decided to put together a bunch of Columbus Day themed Patents.

While you can look at these patents and see the clanking mechanical devices of a century past, I prefer to see them as a rich vein of design and functionality that can be easily ported to a App for fun and profit. 

Humm...maybe I should patent turning mechanical patents into Software Patents... 

If you get tired of looking at awesome patents from the last century, a magical time of steam and whatnot, feel free to read the 8 page take down of the IP profession in today's New York Times.

Each of these patents would work well as an App or a graphic novel, cum spoken word performance piece. Either way, the prior art is well documented and at least 100 years old.  Just because some jerk calls you up and threatens you with infringement based on a flimsy patent does not mean that all patents were / are bad.

Columbus Day Patents: 

(All of these devices work better in their original, century old form, than Apple Maps)

For All you Brooklyn-ites, Fixie rider, Kickstarting metal workers out there, I present Brooklyn Native Raymond Finkelson's level attachment compass for bicycles. 

Designed to let bicyclists of the early 20th century know their direction, and grade, this bit of vintage Brooklyn Tech can easily be made and adapted to the wider, flashier Iphone 5. Christopher Columbus would have loved to have a bicycle and a Fixie at that. Only the truest of hipsters could rock pants that skinny. 

Above - A instrument for taking Nautical Observations. US Patent 11,475 (found here). Lots of Iphone 5 Potential here. A bit of graphical and computing horsepower lets you tilt a 3d representation of the Earth for all your nautical observational needs. Columbus would have given several shinny beads to the natives who hooked him up with this sweet app, and small pox. 

Above - Graphic Solar Instrument. Remake this into a Grid-based Helvetian typeface, you are set. Patent found here. Nothing impresses the locals like telling them exactly when Sun will be eaten by Mountain. Also it is helpful when you need to know when happy hour starts.   

Jgarner@leasonellis.com 

www.leasonellis.com 

Off hiatus, and the End Of IP

I have been on hiatus from Claimed Elements for a little while (which is official-ese for "I had other more pressing things to do").  However, much like the leaves change, so does my desire to blog.

A lot of this change in desire has come from some recent developments in the "End all IP" Troika of economists, open source software mavens, and Pacific Rim Software Pirates.

Recently, a study produced by the St. Louis Fed ( Paper can be found here) makes a strenuous call for the abolition of patents.  In brief, the authors conclude that there is no benefit to innovation by adopting a patent system. Let me state 1) that the St. Louis Fed has better things to do than opine on Patent Law. 2) They really should have better things to do than opine on Patent Law (Like calling for an increase in marginal lending practices so as to allow people easier debt servicing (oh, you don't like it when Patent Lawyers go all "economist speak", well turnabout is fair play.")

Obviously, I disagree, and not just because I like getting a paycheck.  There is a major fallacy lurking at the heart of the study.

Comparison.

Now, I grant you that Patent law has gotten a bit out of hand (something I call the Locust Syndrome, but more on that another time), but there is absolutely no way to determine if a system with or without patents produces more innovation.

Why. Because we don't have a second, alternative reality Earth to use as a control.  The authors focus (as most anti-IP people do) on Software Patents.  The problem is that they can not point to another first world, industrialized nation with the infrastructure and educational system necessary to produce sophisticated software code. We can't say that in 1520, the rate of innovation was better or worse than the rate of innovation today. The circumstances of innovation and progress are the end result of  historical accidents, low hanging fruit, and economic factors.

To paraphrase Neal Stephenson "in the early 21st century, America only did three things well, make movies, make music and write the best code."

The author's have not provided an example of a country that is producing superior, or more innovative software compared to what is developed by companies taking advantage of the U.S. Patent system.  The reason is obvious, in an fully integrated world, it is impossible to tell what effect the Patent system has on developments country A vs country B. Without a control group, we are merely grabbing at strawmen to explain why our version of reality is the right one.

So lets all take off our sandwich boards and calm down.

Jordan Garner (Jgarner@leasonellis.com)
www.leasonellis.com

Res Ipsa Loquiterminator

Res Ipsa Loquiterminator:
         
         French for "I have been replaced by a computer" is a phrase that you are going to hear more and more in law firms. Not really, since I can't imagine anyone at a law firm using such a sweet portmanteau. (Credit given to my good friend M.Cabrera Esq. for coining the term)


Regardless, what you will hear is younger associates griping about how they are unable to make their hours in light of the rapid adoption of Predictive Coding in document production.  If you want to know why computers are going to start eating your lunch, you can check here.  


For those with an aversion to clicking on the Wall Street Journal, it basically summarizes two recent civil cases where predictive coding (that is, computer sorting of documents for discovery based on relevancy of content) were allowed.  Importantly, these permissions were given over the objection of opposing counsel. So the gates are wide open to our new robot masters. 


Super, what does this mean for budding IP attorneys?  Well, document discovery in IP litigation (especially in the pharma area ) was/is pointlessly time consuming. While it will probably still be necessary for some IP specialists (read: doc reviewers with a scientific background) to review large reams of data, it is likely that the time of the 4 and 5 room discovery teams is coming to a close. This means even less demand for specific practice area qualifications (the Maw grinds slow and exceedingly fine) .  While this won't happen over night, it most likely will happen in the next few years. 


I am reminded of a document review in which I participated, where most of my time was spent sifting through bills of sales looking to see if the technology in question was "on sale" prior to the 1 year date.  Most of the documents I was looking at were internal order forms.  I quickly realized these were pointless, even though they had some of the "core" keywords plastered all over them.  


I imagine that predictive coding will allow case managers to make broad sweeps of this type of relevant (but not really relevant) data prior to bumping things up a step in the food chain.


It occurs to me that another place where Cybercoders (wouldn't that make a great Kids TV show...no) could come in handy is the new Inter-Partes Procedures instituted in the AIA. Limited discovery is now allowed.  Normally, this "limited" discovery would be limited by the cost and time involved.  However, with the use of Cybercoders, you could access huge amounts of data for minimal cost. I would wager that more and more Re-Exams are going to employ predictive coding as part of there opening gambits.  


Where I think human IP-based doc coders will still have the edge is searching for "best mode".  It is incredibly difficult for a computer to determine if a lab notebook or result table is disclosing the best mode for carrying out the disclosure.  Furthermore, IP coders are probably still going to be tasked with searching for deficiencies of enablement, or documents that purport to show that the invention failed to clear a statutory bar.  


Unfortunately for Human IP Coders,  Congress Passed the AIA with a specific section that minimizes the importance of both "Best Mode" and "Enabling Disclosures" in invalidating a patent.  Never fear, when tireless thinking machines drop the ball, Congress can recover that fumble and spike it on your career.  

Success Against Scammers

In a previous post , I discussed how to not get taken in by Trademark scammers. Well, I am happy to announce that Leason Ellis has taken the fight to the con-men and put at least one of them out of business.  In the consent decree, USA Trademark Enterprises ( a notorious scammer that preyed upon unsuspecting trademark applicants) agreed that:

Defendants warrant and represent that they made substantial sales and shipments of the Catalogue in the United States, including New York State, and have made good faith disclosure to Leason Ellis of financial records concerning such sales;

Defendants warrant and represent that, within fourteen (14) days of the Settlement Agreement separately entered into between Plaintiff and Defendants (the “Settlement Agreement”), they shall permanently discontinue marketing, selling, offering for sale, and distributing the Catalogue in the United States per the terms of the Settlement Agreement;

Defendants warrant and represent that, within fourteen (14) days of the Settlement Agreement, they shall never again conduct business in the United States in the field of trademarks or, more generally, in the field of intellectual property; and

USA Trademarks and its owners, officers, stockholders, employees, agents, servants, affiliates, subsidiaries, attorneys, and all other persons in active concert and participation with it, including Timea Csikos and Andras Nemeth, shall abide by the terms of this Consent Judgment.

I am quite proud of the work my firm has done in putting these scam artists out of business. Congratulations are in order.  You can read more about it here.