Blog Recommendations

I recently starting using Google's "blog recommender" tool in Google Reader and have found three very interesting blogs worth checking out:

Patent Troll Tracker: This blog rocks! Troll Tracker is an anonymous blogger, probably a patent lawyer, that reports over abusive patent claims and litigation. The posts are well cited with links to court docs. There is a current bounty out on the Tracker's identity. A powerfully patent attorney , and alleged Troll, Ray Niro is offering $5k to anyone who unearths his identity. I strongly recommend this blog,

Wa Patents: This is a local Seattle blog run by Mark Walters a patent attorney at Darby & Darby. The content is interesting, recent and especially relevant to patent geeks in Washington. I respect the authors knowledge and depth of treatment on local and nation patent issues even though I do not agree with his economic and political arguments. I recommend this blog especially to people with an interest in local patent issues.

Copyfight: This is a team blog with some impressive names in copyright law including Donna Wentworth of the Berkman Center and Wendy Seltzer of of Northeastern University School of Law. The articles are a bit on the academic side, but very well researched and cited. The only downside is that the authors seem to post in cycles and I can not tell which authors are still active or have gone elsewhere to blog.

One Laptop Per Child Sued, by Lagos Analysis Corporation, for Patent Infringement

One Laptop Per Child (OLPC) Association has been sued by a company based in Massachusetts: Lagos Analysis Corp. Lagos claims that OLPC reversed engineered its Shift2 keyboard driver source codes.

This seems like a terrible patent to me. Using the shift key to change characters has been around for a long time. Using a shift key for changing language setting and add marks for different languages appears at first glance as obvious and not novel. I look forward to seeing the actual complaint filed and the patent in question.

Press Coverage:

Virtualization (warning annoying popup)

TechWhack

Disclaimer: I bought a OLPC though the Give one Get one program. It is still in transit, I look forward to reviewing it soon. I strongly support the project philosophically.

Most Amazon "1-Click" claims invalid upon reexamination

Many of the broad claims in this patent were invalidated on October 9th 2007. Pat number 5,960,411. The USPTO went well beyond the original request to review claims 11, 14, 15, 16, 17, 21 and 22 and rejected claims 1-5 and 11-26. This is a powerful reexamination on obvious web processes. It looks like we need to update our Case law page. With private citizens, Public Patent Foundation and EFF all submitting requests for reexamination it beg the question it ask how tough is it to get a bad patent. Do we really want a system that where reexamination is only balance? I am curious to see if peer-to-patent will change this trend.

Full article:
http://igdmlgd.blogspot.com/2007/10/amazon-one-click-patent-rejected-by-us.html
Credit also to Boing Boing also for covering this story

Lewis and Clark Law Forum - Final Law Panel

Katherine Stranburg - Nonobviousness and Nerd Culture

A Research manager approach focusing on Socially Optimal Invention levels. This is an interesting piece that merges legal policy choices with economic models.

Brian's response: The models appear to be useful for providing different perspectives for evaluating the nonobvious patent requirements. Although there at least 10 separate assumptions that need to be made to make this model work. The number of assumptions needed to make the model work may prevent the models from being ultimately useful for making larger policy decisions. I really appreciated that the models include social cost of patents including restricted diffusion of the invention, and higher prices. And am curious to see the final draft of the paper

Joseph Miller - Are Erroneous Patent Denials Better than Erroneous Grants?

Supreme Court prefers false rejections over granting obvious patents while the Federal Circuit had been leaning to the opposite side
Favorite quote: "patent attorney spiritual nihilism"

Brian's response: His discussion on the cost of Grants and denils looks very interesting. I am curious to see how the draft paper changes with the R&D input stating that the standards change may have little real world impact on how R&D money is spent.



R. Polk Wagner - KRS, The Supreme Court and The Future of Patent Reform

The Technology Industry has dramatically increased there pursuits of patents per research dollar. It is getting tougher to get major legislative change through due to the corporate interest, which leaves judicial reform as the path of least resistance for reforming the patent system. Although reform through the courts is not the long term solution.

Brian's response: The paper uses statistics in a very useful way to empirically explore court findings.


Robert P. Merges - Commenter

"Reading ones own stuff (writings) make your brain light up like a Christmas tree" (paraphrased)

Robert argues that the patent law code will expand to look more like the copyright code. Specifically the legislative process will be used by cooperate interests to address case based issues expanding the code beyond its current limited focus and moving reform to the judicial as the code expands.

Side note for none patent geeks following the podcast or blog:
PHOSITA = Person having ordinary skills in the art, PHOSITA wiki defition

Final note, from Suzanne Scotchmer:

Nonobviousness: What is evidence?

• Market Environment
• Innovative Environment
• Competing Technologies
• Cost Considerations

Lewis and Clark Law Forum - Psychology panel

The psychology talks were a lot more accessible to a general audience I strongly recommend watching them online even if not a lawyer or patent buff. The psychology panel added the perspective of how innovation or creativity occurs to the legal issues involved.

There are definite discrepancies in the formulation of how a "person having ordinary skills in the art" is thought to invent by the court and how inventions are created. The most important part of the talk came in the Q & A, when we focused on whether economic incentives actually create innovation. The physiological data cited promoted the opposite thesis to the one promoted by the public policy arguments of the courts. The psychologist argued that paying for creativity resulted in less innovation and more mundane solutions to problems presented.



R. Keith Sawyer


Solutions:
Patent pools
Reward small sparks
Compulsory licensing (taken from Lessig)
Open Standards

Brian's Response: This was an excellent practical talk that focused on both creation and on what people think is creative. In the Q&A Keith focused on some of the broader issues regauring the legal fiction of how inventions are created and possible problems with the single inventor model. I will post a copy of his paper after LC publishes it.

On a side note: Understanding what people perceive to be creative, based on word choice, could be a very important what explaining an invention to a jury.

(no image available at this time)
Colleen Seifert Now Why Didn't I Think of That?

Colleen added some interesting points on how the court views innovation and invention verses how cognitive research views the same issues.



Steven Smith

Steven Smith did a great job of explaining and showing examples of how prior knowledge corrupts individuals ability to look at things from a neutral perspective.







Note on formate change: Being an Information Science professional and Law Student I will only be posting play by play on the legal talks. I will be posting general impressions on the nonlegal talks that include multiple speakers.

Lewis and Clark Law Forum - Suzanne Scotchmer

Suzanne Scotchmer - Nonobviousness, Option, and the Scarcity of Ideas
Overview:
Obvious = ideas come rapidly
Nonobvious = where ideas are scarce, or a long wait between ideas

Solutions: private incentives to create should be based on how much you speed up progress or should be granted only to "Scarce" ideas.

Brian's response: This idea helps limit patents in fast moving field like software. Another option would be to limit the length of patents in fast moving field. If it would come about naturally in 5 months why should we grant a 20 year patent.

Lewis and Clark Law Forum - Rochelle C. Dreyfuss

Rochelle C. Dreyfuss - Commenter on first panel.

Other incentives to invent: sharing norms, reputaion ...

Solutions: patent rights are not a reward for inventors.

Highlights: if a patent is denied for a worthy invention the public wins the public gets the invention for free (Brian: this is a rare case and happens so rarely that it does not discourage invention)

Amazing Quote: “cognitive issues only arise when real cognition is going on”

Brian's response: Great commentary, Rochelle was willing to go head to head with the article writers on some of there assumptions and focused on the true reasons for patents getting inventions to the public.

Lewis and Clark Law Forum - Rebecca S. Eisenberg

Rebecca S. Eisenberg – Pharma's Nonobvious Problem

Overview: There are lots of problems relating to patents regarding pharmaceuticals. Many of the compounds are substantial similar to other patents making prior art review a questionable standard for patents.


Highlights: The problem is that the pharmaceutical industry has a lot of obvious patents. There is an incentive to wait to release innovation until a competing drug is about to lose protection.

Brian's response: dizzying array of issues related to pharmaceutical patents, I look forward to reading the final article. This talk was very interesting but a bit scattered.

Interesting note(I learned a new term): Evergreen patent = pharmaceutical company tactics to extend patent protections. (Patently Abusive).

Lewis and Clark Law Forum - John Duffy

John Duffy – Racing, Timing and the Patenting Standard

Timing considerations should be more important.

Prior art? How prior

Why was it not invented earlier? it was lost, if no one invented it in the last 30 years was it really obvious?

Highlight: nice overview of Anderson's-Black Rock 404 F.2d 450, 1968 and discussion of United States v. Adam 383 U.S. 39, 1966

Solution: distinguish between prior art (recent) and prior, prior, prior art (old)

Brian's response: if there is no need then time extends, the prior v. prior prior prior art distinction could help a lot for fast moving industries like software.

Lewis and Clark Law Forum - Gregory Mandel

Gregory Mandel – Nonobvious standard is too low and too high...
1. What is the quantum of innovation necessary to satisfy section 103?
2. What is the baseline for a person of ordinary skill?
3. What are the time and resource limits for finding something obvious?

Solutions: substitutive probability standards

Highlights: Curse of Knowledge – once someone has knowledge they are not able to view things from a their former ignorant perspective.

Brian's response: These are line drawing problems, I am not sure probability adds definition, but it is an interesting idea.

Random word count: Patent troll = 3

Reviewing the Nonobviousness standard in Patents at Lewis and Clark School of Law

FFIP is taking a road Trip to attend Lewis and Clark's 2007 Fall Forum. This year's forum is on the nonobviousness requirement. This requirement is unique to patent law. It is the legal principle that reserves patent protection to technologically significant inventions; technologically trivial inventions, even if useful and new, are not patentable.

The recent Supreme Court decision in KSR v. Teleflex, raised the bar for nonobviousness.
The full text of the KSR v. Teleflex case can be found at ALTLAW.org : http://www.altlaw.org/v1/cases/183370

Speakers this year include:
Gregory Mandel Temple Law
John Duffy George Washington University Law
Rebecca Eisenberg University of Michigan Law
Rochelle Dreyfuss NYU Law
Suzanne Scotchmer University of California, Berkeley

Aside: Suzanne wrote an interesting paper on DRM and Antitrust it can be found here. http://socrates.berkeley.edu/~scotch/w11532.pdf The Antitrust conclusions are interesting although I do not think the motives for hacking are understood enough to make some of the formulas work in the practical world. Hacking is not a cost benefit analysis equation where cost saved by pirating is balanced with cost of time spent hacking. The motives for hacking are often fun, learning, prestige or even ethics.)

Scott Stern Kellogg Graduate School of Management
Vincenzo Denicolo University of Bologna (Italy)
Michael Katz UC Berkeley
Kevin Rivette Chairman of the USPTO Public Patent Advisory Committee.
Keith Sawyer University of St. Louis
Colleen Seifert University of Michigan
Steven Smith University of Wisconsin
Janet Davidson Lewis & Clark
Mark Blaxill, Senior Partner & Managing Director, Boston Consulting Group
Ian Harvey, Chairman, Intellectual Property Institute (UK)
Damon Matteo, Vice President for Intellectual Capital Management, Xerox PARC
Andy Culbert, Associate General Counsel, Microsoft
Katherine Strandberg DePaul
R. Polk Wagner Penn Law
Robert Merges UC Berkeley
Lisa LeSage Lewis & Clark
Joe Miller Lewis & Clark