The Apple vs. Samsung Verdict Actually Demonstrates that Patents Do Promote Product Innovation

In the time that the Apple vs. Samsung patent fight has been underway, we have been inundated with an untold number of articles on how Apple is stifling innovation in the SmartPhone world.  (Haven’t seen these:  just do a Google search for “Apple stif . . .” you don’t have to type any more than this–the search auto-completes itself.) I often take a contrarian view from that stated by most “expert” commentators–be they members of the press or actual patent professionals, and the Apple v. Samsung verdict is no exception:  I think the result actually demonstrates that the patent system is working just fine in this instance, thank you very much.  But how can this be when Samsung got hit with more than a BILLION US DOLLAR jury verdict last week?!?  Doesn’t the fact that Samsung could not make a product without infringing Apple’s multitude of patents mean that Samsung is effectively prevented from competing with Apple in the Smartphone market? Not necessarily, as is shown by this great post from The Verge entitled:  ”How Android has evolved while steering clear of Apple’s designs”.  What is most interesting to me about this article is how we see that while making Continue Reading →

It’s Time for Your R & D Team to Stop Inventing and Start Innovating

In a recent post on his 15 Inno blog, Open Innovation guru Stefan Lindegaard presented the ostensibly nonsensical hypothesis:  R & D leaders are often a “threat” to innovation.  Stefan’s post resulted from an interaction he had with a senior R & D person at a mid-sized tech company, who apparently adhered to the outdated notion that he and his scientists and engineers know more about the company’s business than anyone else could possibly even try to know.  As a result, this R & D leader believes that they cannot maximize (or even create) value for their organization by looking outside the confines of their existing R & D infrastructure to solve the company’s pressing business problems. Reading this, R & D professionals might likely think:  “What’s this guy smoking?  How can R & D be a threat to innovation?!  We’re the reason this company has any innovation at all.  We’re scientists!  Inventors!  Innovators!”  But, unless their companies are consistently experiencing year over year growth coming solely from sales of innovative new products and technology or cost reductions resulting from process innovations, such protestations prove Stefan’s point:  many R & D leaders kill their organization’s ability to innovate due to Continue Reading →

We’re Measuring the Wrong Things: Inventiveness and Patents Do Not Equal Innovation

Few things infuriate me more than supposed experts who make statements along the lines of “patents are critical to innovation.”  I have avoided stating my views widely in this forum because I didn’t want to get into a contest of one upmanship with my patent lawyer peers.  However, in the last couple of weeks, several pieces of information have hit my radar screen that make this seem like the right time to go public with my views. Let my position be very clear:  we create a false dichotomy when saying “innovation is not possible without patents.”  The issue is much more complex and nuanced than this:  in a particular instance, patents may be critical to innovation, but they might also be only slightly important or–likely in the majority of situations–they might be wholly irrelevant to innovation.  (I talk more about this in this recent interview in Innovation Management Magazine.) Unfortunately, where you stand also depends on where you sit, and sitting behind a desk writing or examining patents may color your belief that patents are the cure for America’s innovation ills.  (The cynic would likely note that relying on a patent practitioner or the Commissioner of the US Patent Office Continue Reading →

Contrarian Viewpoint: Patents Likely Matter Little to US Innovation and Job Creation

Many experts insist that innovation cannot succeed without patents, and that the delays in the US Patent Office stifle innovation.  This viewpoint is like to become more widely believed by the public as US Patent Office Director Stephen Kappos sees a way to improve the dismal operations of the Patent Office by equating patents as job creation tools, which necessarily requires patents to be asserted as critical for innovation to occur. I believe it is highly misleading, and even harmful in many cases, to say that patents are the end-all be-all to innovation.  I also think that fixing the Patent Office–which will invariably mean that more people will see value in obtaining patents to support their business idea–should be viewed more as a job creation engine for patent attorneys and those who support them (including Patent Office employees), as opposed to creating jobs that can help improve the dismal employment figures the US is experiencing today. No doubt, it is true that patents are necessary to create value from many innovations, and that jobs can then result when the patent owner is able to build a business around the idea (assuming the company and its employees are actually present in Continue Reading →

Innovation is Sprouting in US Patent Office: A Plea for Flexibility from Patent Practitioners and Interested Parties to Allow the Necessary Changes

Anyone who has practiced IP law for a few years can attest to the transformations happening in the US Patent Office over the last year.  In my opinion, Director Kappos is more than a breathe of fresh air over his predecessors, he actually knows what he is doing!  Also, regardless of what one may think of President Obama’s other policies and actions, one cannot question that his leadership is resulting in real attempts at innovation in the arguably previously moribund Patent Office. As a experienced patent practitioner, the last several years have been very demoralizing.  I actually made the decision to stop working as a patent prosecutor because, quite simply, I became weary trying to educate junior examiners about the deeply nuanced intricacies of patent law.  Worse was trying to explain to clients why their patent application covering an important commercial innovation could not get approved in the Kafkaesque environment of the circa 2000′s US Patent Office or why their competitors were seemingly able to get ridiculously broad patents covering the prior art. From my vantage point as a 15+ year patent professional, it is clear that the absence of experienced leadership in the Patent Office in recent years served Continue Reading →

Patent Applicants: Get Your Attorney on the Phone to the Examiner–NOW!!!

A couple of couple of weeks ago, I wrote a detailed post about how the US Patent Office seems to be in a deal-making mood.   Today, Dennis Crouch of Patently-O posted data that demonstrates that in the last  weeks, the Patent Office has issued more patents than in any 2 week period in history!   We don’t know how long this will last.  I highly recommend that anyone who has been waiting for a patent to issue get the patent examiner on the phone as soon as possible to see how the case can be passed to allowance.   Not all patent applications will be allowable, of course, but many will be, as shown by the actual data and anecodotal information from patent bloggers like Dennis Crouch and myself.  CARPE DIEM! Tweet This Buzz This Delicious Digg This Reddit Stumble This

Have a Pending US Patent Application? There’s Never Been a Better Time to Make a Deal with the Patent Office

The US Patent Office is in a deal-making mood.  Really.  Ever since Director Kappos told his examiners last Fall that “patent quality does not equal rejection,” I have heard many stories about how patent applications that appeared to be stuck in the limbo 0f serial rejections are now being allowed.  Those of us who talk about such things online are in agreement that we may be operating in an unprecedented favorable environment of patent allowances.   The data bear out this anecdotal evidence:  patent issuances are up 35%  this year over last year. My sense of what is happening, which has been confirmed by other experienced patent folks to whom I have spoken, the perspective of the Patent Office has changed.  The consensus is the U.S. patenting process is much less adversarial today.  In recent years, examiners were effectively told by the Patent Office administration that “there needs to be a reason to allow an application.”  This has now changed to “there needs to be a reason not to allow an application.”  This is a subtle, but critical, difference.  In the former viewpoint, the gate for allowance is closed and needs to be opened prior to letting the applicant pass through.  Continue Reading →

Guest Poster David Boundy: A Detailed Examination of What the Proposed First to File Legislation Means to Business

(Editorial Note:  Last week, I posted my thoughts on the proposed changes to the US patent laws from a first to invent to a first to file system.  In response to my post, I received an exceedingly detailed and substantive comment from David Boundy, Vice President, Ass’t Gen’l Counsel, Intellectual Property at Cantor, Fitzgerald.  (David wanted me to say that this post his personal view, and does not reflect the views of Cantor, Fitzgerald.)  David’s viewpoint on what the proposed legislation will mean to business deserves a forum, and he has graciously allowed me to post his comment in total on the IP Asset Maximizer Blog.  Anyone who works with business to generate patent assets should be concerned about the proposed changes.) About guest poster David Boundy:   David Boundy has spent over a decade on Wall Street, first in several of New York’s most prominent law firms, now as in-house counsel at one of Wall Street’s largest investment banks.   In several years of his career, David as one single lawyer moved more money around based on patents than the entire federal judiciary combined.   David believes that litigation costs and damages should be irrelevant to the current patent reform debate; what matters Continue Reading →

A Closer Look at the Patent Office’s New Conversation about Adoption of a “First to File” Rule and a Proposal for a Win-Win for the Patent Office and Inventors

(Editorial Note:  Regular readers of the IP Asset Maximizer Blog might find this post an departure from the usual topics discussed on this blog.  In the almost 2 years I have been blogging, I have consciously avoided talking about specific aspects of patent law, both in the form of case law, patent reform efforts and the US Patent Office itself because I believe there are many great blogs that do a great job that frequently discuss these topics and that I can likely add little to the already substantive discussions occurring elsewhere.  However, given the great significance of the so-called “first to invent” system to the interests of individual and corporate inventors alike, I felt it appropriate to weigh in on the conversation.  Put simply, any changes in the first to invent rule must clearly flesh out and respond to the resulting effects to businesses of all sizes, as well as unintended consequences that might occur to the operations of the US Patent Office.  I think my business-focused approach to this topic may provide a perspective not seen on the other blogs discussing this topic.  I welcome your comments.) The new Patent Office Administration has hit the ground running.  In Continue Reading →

The US Patent Office’s Impending Financial Crisis and What Sort of Disruptive Innovations Might be Seen as a Result

My postings have been light for the past few weeks because of the Holidays. I plan on re-posting regular content after the New Year. Nonetheless, I couldn’t help posting something this week during my vacation after coming across this wonderful analysis of recent patent issuances post-KSR from Matt Buchanan of the Promote the Progress website and blog. Matt’s analysis of PTO issuances over the past several years shows that KSR definitely had an effect on the number of patents issued in the last year. What is obvious from Matt’s 2008 issuance data is the fact that the PTO experienced a significant decline in revenue over the past year due to the reduction in issue fees paid by successful patentees. Moreover, this revenue decline will certainly be felt over the next 10 plus years as a result of a reduction in maintenance fees that would have been paid for these issued patents. When coupled with the current economic crisis and the need for the U.S. government to fund agencies and projects that are arguably much more critical to the health of the national economy, there is no doubt that the PTO will be faced with a significant revenue shortfall in the Continue Reading →