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Tuesday, September 30, 2008

Patent or Not a Patent?

Mental Floss has a great quiz set up to guess whether a described product is a rejected patent or a SkyMall product. Post your scores!

Monday, September 29, 2008

Patenting Patent Mapping?

Interesting note over on Slashdot regarding a recently published IBM patent application for "Methodologies and Analytics Tools for Identifying White Space Opportunities in a Given Industry". Basically it appears to be a method for carrying out the typical in-house patent portfolio management task of patent mapping, i.e., finding areas where no patents exist that may be exploited as keystone components for a particular industry. Although the author expresses the view that this seems counter to IBM's stated goal of increasing patent quality, it may simply be an expression of Big Blue's desire to become a more business services-oriented business.

Thursday, September 18, 2008

Patent Quality Doesn't Start at the PTO?

Interesting study done by Patently-O, showing that, while the number of citations in issued patents has dramatically increased over the past 35 years, the number of citations made by examiners has remained relatively static. What does that mean? Hard to say, but it would seem to indicate that shifting more of the searching onus onto inventors and their attorneys does not necessarily correlate with increased patent quality, which is the avowed goal of many intiatives currently supported by the PTO. Also noted is that the ratio of patent prior art to non-patent prior art has remained relatively constant even as the overall number of citations has increased.

Wednesday, September 17, 2008

Patent Exhaustion a Defense, Not a Cause of Action

Patent Prospector has a good summary of the recent ExcelStor v. Papst decision by the CAFC. Excelstor licensed technology from Papst and alleged that Papst failed to notify it of a concurrent license of the technology with another licensee. Rather than file a complaint against Papst for fraud or contract breach, Excelstor alleged as a cause of action patent exhaustion. The argument was that Papst had already fully exhausted its rights in the patented technology by previously licensing it, so the CAFC had jurisdiction of the appeal. The CAFC affirmed the District Court's decision that the federal courts lacked subject matter jurisdiction, holding:

ExcelStor's claims fail to meet either prong of the Christianson test. First, patent law does not create the cause of action in this case. In arguing that it does, ExcelStor's appeal fundamentally misunderstands the nature of the patent exhaustion doctrine. As the district court held, patent exhaustion is a defense to patent infringement, not a cause of action.

Friday, September 12, 2008

"Paralyzing uncertainty" not enough for Declaratory Judgment Action

Great summary over at Patent Baristas of the recent CAFC case, Prasco v. Medicis Pharmaceutical (07-1524). The court found that, after Prasco sent samples of its new product to Medicis, along with a demand for a covenant not to sue, Medicis's silence did not create the necessary set of circumstances articulated by the Supreme Court under Medimmune, namely, there was no "substantial controversy, between the parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment." By not responding to Prasco, Medicis did not create a case or controversy, despite Prasco's contention that Medicis's silence created "paralyzing uncertainty" from fear that Medicis will bring an infringement suit against it at some future date.

Study Says Intellectual Property System Should Die

This article over at TorrentFreak summarizes a recent study by "The Innovation Partnership", which, in turn, appears to operate under the auspices of the Center for Intellectual Property Policy at McGill University in Canada. The article concludes:

A recently released study has claims that the current ‘Intellectual Property’ situation in the world is not working well. Driven by a fear of losing out, and bolstered by an attitude that profit is the aim of IP, progress is hampered. Not only by the entertainment industry, also in biotechnology where medicines are sometimes restricted or withheld, causing deaths.

Calling this report a "study" attempts to convey a level of scientific inquiry that is unwarranted. As stated in the beginning of the report:

An international and interdisciplinary research team has convened for the last seven
years in an attempt to better understand the mechanisms of intellectual property in biotechnology innovation, and to suggest improvements to the role of intellectual property in that system. This report represents the research team’s core finding and recommendations.

This betrays a complete lack of understanding regarding the meaning of the term "research". What this report based itself on was the conclusions of a group of self-appointed experts from the International Export Group who sat around reading about and thinking about intellectual property fro six years, and then making up some recommendations. You or I could do the same thing, but it is not research and it is certainly not the basis for data-driven decision making.