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USPTO Examiners Denying Patents At An Alarming Rate

The Patent Prospector: Looks like Stephen Albainy-Jenei over at PatentBaristas.com isn’t the only one enlisting the aid of guest authors to pad the size of their blog. The Patent Hawk recently invited a fellow sharp wit to examine the trend of decreased patent allowances by the USPTO and there’s plenty of evidence to support John M. DeBoer’s assertions that stinginess is the new name of the patent game. From DeBoer’s guest author post, Debunking In Re Keller, we learn more about the new-found examiners’ penurious behavior:

Thanks in large part to KSR, it has become harder to obtain a patent grant in recent years. It is one thing when an Examiner makes a ruling based on sound logic and reasoning to reject an applicant’s claims; that is their burden and their duty.  But it is quite another when a rejection is based on nothing more than a poor misapplication of the law, under the pretense of the MPEP. Of increasing related consequence is the misapplication of In re Keller 642 F.2d 413 USPQ 871 (CCPA 1981).

The assumption is that the examiners are applying the law incorrectly when rejecting patent applications and indeed, according to a chart at the author’s piece, that seems to be the case. DeBoer enlightens the gentle reader on this point:

The downward trend started pre-KSR, so it is clear that there are more factors at work than just a single Court opinion. Sure, post-KSR, it is obvious to combine the tine of a fork with a jack hammer to fix the Hubble telescope while performing a space walk because of common sense or that doing so leads to predictable results. Instead of sound reason and rational findings, rejections today under §103(a) sound a lot like “it would be obvious to combine the teachings of reference A and B because, as the Examiner, I conclude it would be obvious.” Is this really the clear articulation of reasons the Examiner is required to provide?

Hmm. I wonder what USPTO Chief, David Kappos, would have to say if he were asked about this disturbing trend in examiner decisions. Read DeBoer’s full piece via the above link and find out why some would say the rank and file employees who are charged with doing due diligence are being seen by spurned applicants as misinterpreting things to the detriment of valid patents.

The New York Times: It hasn’t been that long since the folks at mega-media giant Disney purchased Marvel Comics for the whopping sum of US $4 billion, but already questions of the intellectual property rights of such famous cartoon characters as Spider Man and the Incredible Hulk are beginning to surface.  Brooks Barnes and Michael Cieply report on the super-sized battle to profit from work by the artists behind the cartoons in their topical piece, A Supersized Custody Battle Over Marvel Superheroes. They write:

WHEN the Walt Disney Company agreed in August to pay $4 billion to acquire Marvel Entertainment, the comic book publisher and movie studio, it snared a company with a library that includes some of the world’s best-known superheroes, including Spider-Man, the X-Men, the Incredible Hulk and the Fantastic Four.

The heirs of Jack Kirby, the legendary artist who co-created numerous Marvel mainstays, were also intrigued by the deal. Mr. Kirby’s children had long harbored resentments about Marvel, believing they had been denied a share of the lush profits rolling out of the company’s superheroes franchises.

Kirby’s lawyers are doing their best to make sure his children profit from his artistic work but there is certainly the question of who owns the images he created when he was working for Marvel Comics as an employee.

Last September in a prelude to a lawsuit, Mr. Toberoff — using a provision in copyright law that, under certain conditions, gives authors or their heirs the right to regain ownership of a product after a given number of years — sent 45 notices of copyright termination to Marvel, Disney and other studios. The notices expressed the family’s intent to regain copyrights to some of Mr. Kirby’s creations as early as 2014. By Mr. Toberoff’s calculation, as much as 88 percent of Marvel’s film earnings have been what he calls “Kirby related.”

And with movies based on some of Kirby’s characters, such as the mega-hit Wolverine, a smash-hit that grossed some $373 million, there is plenty of loot at stake and all players are ready to fight to the bitter end.

In a separate, unrelated piece from The New York Times, we learn how one company’s life blood is being drained away under the auspices of righting a patent mistake. Andrew Pollack reports on Medicines Company and their unwelcome, but large, boner in Request to Extend Patent on Blood Drug Is Denied:

The United States Patent and Trademark Office on Friday again denied the company’s request to extend the life of the patent protecting its main drug, the blood thinner Angiomax.

Medicines has been trying since 2001 to undo an error, when it narrowly missed a 60-day deadline for requesting the patent extension. Because the patent office would not accept the late application, the patent has been scheduled to expire next Tuesday, rather than in late 2014.

But wait! A transfusion of much-needed legal help might be on the way: 

On Tuesday, however, a federal judge ordered the patent office to reconsider its rejection of the extension, suggesting the agency had been too strict in interpreting the law regarding the 60-day deadline. The judge, Claude M. Hilton of the United States District Court in Alexandria, Va., also told the patent office to keep the patent in force while it conducted its reconsideration.

In a cold twist of fate, the federal judge’s order was rapidly sent to the morgue:

By Friday, however, the patent office had already concluded its review, telling the company that it would stick with its previous decisions and would not accept the company’s application.

The decision, and especially how rapidly it was made, stunned and infuriated the company.

“Now I’m at war; this is very disconcerting,” Clive A. Meanwell, the company’s chief executive, said late Friday. “It’s not even polite, you know what I mean?” he said.

If you want the rest of the story, just click on the link to Pollack’s complete story and read away. 

Advertising Age: Judy Shapiro, senior VP at Paltalk who has previously held senior marketing positions at Comodo, Computer Associates, Lucent Technologies, AT&T and Bell Labs, offers up her thoughts on how copyrights are creating huge stumbling blocks for creatives instead of enabling them to innovate and produce novel works in her timely post entitled Is Copyright the Buggy Whip of the Digital Age?

Have copyright laws outlived their usefulness in the digital age?

That was the question I harbored as I joined some of the most prestigious copyright lawyers last week for a conference sponsored by the CCC (Copyright Clearance Center) called “The Collision of Ideas 2010.” I fully acknowledge that my understanding of copyright law is basic at best, so I wanted to attend because as a marketer I honestly don’t how to apply best practices when it comes to copyright issues in the digital world. How do I know, for instance, that when I contract for a small project via a freelance site they are not giving me copyrighted material? Or, what content can I reuse on a site as reproducible content versus what content is protected? But mostly I was anxious to understand how the copyright system can possibly reconcile people’s instinctive desire to share content with digital technology and content creators’ right to get fair compensation. I walked in wondering whether copyright laws are the buggy whips of the digital age.

Ouch! Copyrights likened to the buggy whips of old that became obsolete as technology passed them by? In a later instance, one panelist at the conference laid down the bad news in bleak terms:

Mr. Griffin, the founder of OneHouse, whose company is developing a new model of music and entertainment delivery, probably made the most impassioned argument that content must flow freely (double entendre intended) given its capacity to improve the human condition. He likened the current copyright model to an “old vine we cling to,” unsuited for today’s digital world. His solution is to pay content creators based on an “actuarial” model where groups can share revenue collectively.

Will copyright laws be bypassed in the every-quickening race to dominate digital media space, or will IP rights be modified quickly and efficiently to match the break-neck speeds of service and product development in the Internet Age? Stay tuned to find out, oh constant reader!

ArsTechnica.com: Lastly, but by no means leastly, check out Chris Foreman’s piece on how HTC is calling Apple’s bluff on the whole smartphone patent war, HTC: we’re ready for a big fight with Apple. Here’s a snippet to warm things up a bit:

Apple both publicly and privately warned smartphone makers that it wouldn’t tolerate its intellectual property being infringed upon, and the company made its first move against Taiwan-based HTC earlier this month with a federal lawsuit and a complaint to the International Trade Commission. HTC says it doesn’t plan to give up without a fight.

“HTC disagrees with Apple’s actions and will fully defend itself,” HTC Corporation CEO Peter Chou said in a statement. “HTC strongly advocates intellectual property protection and will continue to respect other innovators and their technologies as we have always done, but we will continue to embrace competition through our own innovation as a healthy way for consumers to get the best mobile experience possible.”

Game on, boys, and may the company with the deepest legal pockets win!

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