Today’s post comes from Guest Barista C. Lee Thomason, a registered patent attorney and senior litigator at Frost Brown Todd LLC, in Louisville, who keeps track on developments in patent litigation.
New “Amendment” to Patent Reform Act of 2005 will makes Inequitable Conduct determinations as simple as a three-ring circus.
Rep. Lamar Smith has pared back his proposed Patent Reform Act of 2005, including the provisions that take inequitable conduct out of the federal courts and put patentees to in administrative fora, while the litigation proceeds on other related issues.
Before this “Amendment in the Nature of A Substitute to H.R. 2795”, the proposed bill set some standards for an administrative investigation and determination to precede action in a court on the inequitable conduct defense. The amended bill deletes the timetables, the preliminary and final determinations, etc., and frees the Special Office to investigate however “the Director determines is appropriate.” Deleting the details suggests a lack of consensus on most of the ‘what and how’ aspects of the proposed non-judicial investigation. More importantly, such an unguided mandate makes it hard to compare whether a “Special Office” investigation or determination can work better, cheaper, or be more prompt and predictable than the way the issues now are handled by U.S. District Courts. After all, was not the promise of reducing the cost to litigate “state of mind” issues in patent cases, as set out in the NAS and FTC studies, one provoking cause of the call for such “reform” bills?
My previous post, on 22 July, compared the Patent Reform bill timetables (now-deleted) with actual times from pleading to decision in some recent court cases. There, I suggested that the Special Office proceeding would take 15 months plus the time for the actual investigation, which was no more expeditious than the timeframe for decision in those recent cases.
With no administrative timetable now proposed in §136(d)(3)B) – whatever “is appropriate” – my next avenue of inquiry is: what is the worst havoc that the “Amendment” allows an infringer to craft around a colorable claim of inequitable conduct. I think that the grandest fracas would be (1) a suit pleading invalidity, unenforceability and attempted monopolization, and (2) a “referral” per §136(c) of the alleged inequitable conduct for a Special Office investigation, and (3) if you time it right, a post-grant opposition proceeding per §321 of the proposed Reform bill. That three-ring circus should keep the patentee occupied, whilst the infringement continues, for a good long while!
The suit, and related discovery, will proceed at least in regard to Markman and infringement issues, plus the validity and antitrust counterclaims, and any unclean hands or patent misuse claims. Those continue, because the proposed bill only takes the inequitable conduct issue from the court. Simultaneously, the patentee fights the suit, and also, must defend the Special Office investigation. However, the infringer sits freely in the balcony observing that administrative inquest. Then, just to complete the triple-threat, the infringer or “A person” can request that the “patent be reconsidered” under §321. This administrative procedure confines itself to limited issues of “patentability,” and so, a well-advised infringer can have opposition and court proceedings going simultaneously. Who knows, whether the claims interpretation decision in the opposition, or that which comes after the Markman hearing, will best suit the infringer’s plans? As stated in §325(d)(4), the court’s claim interpretation is interlocutory and until that is “final and non-appealable” it cannot be binding in the opposition.
Double-teaming on “patentability” also provides a benefit, because that the opposition evaluates validity under a “preponderance of the evidence” standard, per §332(a). This provides a good dress-rehearsal, before the court requires the infringer/opposer to make a clear and convincing case of invalidity. Altogether, this lays the groundwork for the end-game of the Special Office proceeding, because unenforceability requires a finding that the uncited or misrepresented art “resulted in the issuance of, …one or more invalid claims” per §136(d)(1)(A) & (3)(B)(1). Even a “substantial question” finding might shake the patentee’s resolve to litigate. §325(a)1). If the infringer/opposer has art or a misrepresentation that may support invalidating a claim, then the circus could close with one grasping the ring of “unenforceability” back in court. Only a patent attorney, or Ph.D. in actuarial science, can enjoy calculating all of the risks, costs, and rewards involved in making this triple-play work to one’s advantage.
The Reform bill does try mildly to curb having a parallel suit and opposition. The court’s action on the validity issue can be stayed, if (and there are 4 ifs) the patentee requests a stay, if the infringement suit was filed “within” three months of issuance, if the “Director determines” the issues overlap, and determines a stay would not be “contrary to the interests of justice.” §325(d)(3). The purpose behind the “three months” is unknown (Note to self: calendar ANDA generic filing 91 days after patent grant!). Separately, the opposer has to present its opposition request not “later than 9 months after the grant of the patent.” §323.
To make maximum mischief for the patentee, in multiple fora, one needs to yank out the rug between 3 and 9 months after issuance. Then, the Reform bill enables the infringer/opposer to double-team on the validity issue with parallel discovery. In the opposition, depositions of those who gave affidavits accompanied the request are the only discovery allowed, as of right. §328. The determination made in the opposition can estop the opposer in the court case, subject to the big “Exception” in §336(a)(2) that “additional factual evidence …could not reasonably have been discovered” in the opposition. That exception often could apply, due to the opposition discovery being limited to depositions of those “submitting an affidavit” and, with “such depositions limited to cross-examination on matters relevant to the affidavit.” §328(a). “Gee, Judge (whine), all I got was ‘limited’ discovery over in that opposition.”
Many months later, anyone “dissatisfied” with the ruling in the opposition can appeal, §334, while the court case and the Special Office proceeding continue. Once the Special Office determines if there was inequitable conduct, then that issue goes back to court, and once it rules, then the main case (infringement, validity, misuse & antitrust) can be appealed.
With good timing, a determined and well-budgeted infringer/opposer can make the patentee suffer through the panoply of proceedings that the Reform bill permits, and in some respects, requires. We are to be assured, though, that this proposed “Reform” legislation serves to “improve” the system, to “reduce” costs and inefficiencies of litigation, and to “modernize” the Patent Office, all of which is funded by fees charged to inventors.
Well, as many of you know, we’ve been posting lightly this summer. Karlyn has been busy dealing with moving (twice!) and I’ve been caught up in lots of other projects. One of those projects started about five weeks ago — I decided to take up bicycling. Again. I used to bicycle regularly but that was over 18 years ago. Since then, I’ve spent most of my time sitting at a desk — or taking care of kids.
I’m sure you know how easy it is to do this. Everything seems to be more important. I have to take care of work all day. I take care of kids all evening and weekends. Then there’s the house, the car, the everything else… Somewhere along the line, I could never get to taking care of myself. I’ve always been last and last never comes.
The bottom line is that I bought a bicycle at my wife’s urging and started riding. I decided to try my hand at a 62-mile (metric century) charity ride for the Davis Phinney Foundation. It was described as suitable for the beginning rider so I figured I was all set. Unfortunately, the course was not quite as flat and easy as I thought. You can see the course elevation profile below.
To make a long story short, I rocketed down one of the larger hills and was surprised by a sharp left turn. In the turn, I hit loose gravel and my bike shot out from underneath me. I smacked into the pavement pretty hard resulting in a broken and dislocated shoulder and collarbone — along with severe bruising of my ribs and pelvis. The shoulder was broken into four pieces and I had to have emergency surgery to put everything back together. It will now be 4-6 weeks before I can drive and I’ll need about 6 months of rehab. It looks like I’ll have to try taking up bicycling next year.
For now, it seems that I will be posting a little less for a few weeks. I hope to be back stronger than even very soon. To give you something to look forward to, look for a new “Barista” being added to the Patent Baristas in the coming weeks. Stay tuned.
The biotech industry’s has been putting on pressure to let biotech companies owned by venture capitalists qualify for federal small-business grants. Through the SBIR program, 2.5 percent of the outside research and development budgets of 10 federal agencies is set aside for small businesses, defined by SBA as those with fewer than 500 employees.
Specifically, the NIH hands out about $600 million per year under the Small Business Innovation Research (SBIR) program, which is overseen by the Small Business Administration. Nine other agencies award another $1.4 billion combined.
The program has three phases. Phase I contracts are valued up to $100,000 (different at each agency) and are awarded for research efforts lasting approximately six months. Each project addresses a topic area identified in an agency solicitation. Phase I awards help determine the feasibility of a new technology. The required proposal to win a Phase I SBIR contract is kept short and simple to help encourage participation. It is limited to 25 pages and must comply with explicit, easy-to-follow instructions spelled out in the solicitation.
Phase II contracts are only awarded to successful Phase I contract winners and are valued up to $750,000 (again, different at each agency). Awards for Phase II contracts are based on Phase l results and the scientific and technical merit of the Phase II proposal. Besides the scientific quality of the Phase II proposal, the potential of the concept for commercial applications is given careful consideration.
Phase III involves private sector or federal agency funding (outside of the SBIR program) to commercialize the technology.
Now, the SBA will no longer give these grants to companies that are majority owned (51 percent) by venture capitalists. The way the rules are constructed, a venture capital firm can have up to 49 percent ownership in a venture awarded an SBIR grant. A venture group can have a majority stake in a biotech if the venture firm is 51 percent owned by individuals and has no more than 500 employees.
The irony of this whole thing is that the companies that are successful — and thus, able to attract venture capital — are then barred from getting additional SBIR grants. But problems came up in a gray area common for biotech start-ups: What happens when several venture capitalists have minority stakes, say 15 to 20 percent each, that collectively form a majority stake?
This has a lot of ramifications in the biotech world since many startup and emerging biotech firms rely on SBIR grants for seed money to fund early stage research. Apparently, most biotech companies raise between $5 million and $15 million in their first round of venture funding, an amount that usually results in venture capitalists owning more than half the company. They typically require $800 million and 10 to 15 years of research and risky clinical trials in many cases to market one product, according to BIO statistics.
Biotechnology Industry Organization (BIO) says this has resulted in a dumbing-down of the quality of science in grant applications from small biotechs. CEO James C. Greenwood wrote in an op-ed article in the July 13 Washington Times that many small biotech and other technology companies are “victims” of the SBA’s “new interpretation” of venture funding in applicants for SBIR grants.
Not all small biotechs agree this is a problem, though. On the flip-side, allowing venture-backed companies to get the SBA money naturally siphons off dollars that could have gone to emerging biotechnology companies without another source of revenue. If the purpose of the grants is to get companies to being venture-eligible, then restricting the money seems to make sense.
The SBA is currently reviewing written comments from dozens of companies, associations such as BIO and educational institutions, and from a series of hearings. The agency is due to report on any possible changes to grant eligibility rules by the end of the year.
At least two bills on the issue have been introduced in Congress. Rep. Sam Graves (R-Mo.) introduced the Save America’s Bio Technology Innovative Research Act of 2005, H.R. 2943, which would allow companies that get majority funding from venture capital to be eligible for SBA programs. Sen. Kit Bond (R-Mo.) has introduced similar legislation. The bills have at least four Democratic co-sponsors.
Welcome to the Dog Days of Summer and Blawg Review #19, hosted this week by the Patent Baristas. We’re always glad to have company over so grab a cup of joe and we’ll see what’s been going on around the blogosphere. As is typical here, it’s currently a balmy 98 degrees in beautiful Cincinnati, OH, with the humidity hovering somewhere near steam bath. Bear with us if we sometimes seem incoherent due to the heat.
On Fire
Ellen Podgor writes in the White Collar Crime Prof Blog about the frightening situation where light sentences are received by cooperating witnesses involved in the WorldCom case and harsh sentences are received by those who seek trial. Podgor makes several potent observations, including:
“The Bill of Rights provides everyone accused of a crime with the right to a jury trial. Are we punishing individuals who avail themselves of this right?”
On Jury Geek, Clay Conrad notes the death of jury trials, writing that “We attorneys have gradually adapted to measures that reduce the viability or availability of jury trials – from acceptance of responsibility credits for those who plead guilty, to judges who require expensive, time consuming mediation prior to trial. As the jury trial gets rarer, and harder to attain, we adapt to our
environment.
“To mix culinary metaphors, we need to hop out of the pot before the jury is toast. Too often, we fail to recognize or object to procedures that raise the risk or cost of a jury trial.”
Adam Smith, Esq. (a/k/a Bruce MacEwen) asks “Where Is Your Firm’s Next Generation of Leaders Coming From?” in his article from Managing Partner magazine, which helps distill the roadmap:
Create a vision, walk the talk, face hard realities, breed cohesion, and celebrate wins.
Steamy Balkinization, a group blog highlighted as “an unanticipated consequence of
Jack Balkin” brings us a very worthwhile discussion of Substantive Due Process as it developed in the Dred Scott decision and its implications for modern jurisprudence, including the recent Kelo decision. Balkin notes that the closest analogy to the substantive due process argument in Dred Scott v. Sandford isn’t Roe v. Wade. It’s the dissenters’ position in Kelo v New London. He notes that powers, in relation to rights of person, are:
“…denied to the General Government; and the rights of private property have been guarded with equal care. Thus the rights of property are united with the rights of person, and placed on the same ground by the fifth amendment to the Constitution, which provides that no person shall be deprived of life, liberty, and property, without due process of law. And an act of Congress which deprives a citizen of the United States of his liberty or property, merely because he came himself or brought his property into a particular Territory of the United States, and who had committed no offence against the laws, could hardly be dignified with the name of due process of law.”
Colin Samuels of Infamy or Praise has a helpful post warning us that technology has been developed to determine when a caller is being abusive or is feigning attention, impolitely labeled the “Jerk-o-Meter“. [Note to Self: Do NOT let Significant Other get a hold of this!] Infamy or Praise ponders whether or not this device out of MIT could change the dynamics between what is deemed “zealous advocacy” and what is deemed “abusive conduct.” Could carefully scrutinized lawyers return to a more formal, principally written, professional practice if these new technologies become more developed and widespread?
The IP Counsel Blog by Todd Mayover has some thoughts on protecting next-generation therapeutics while avoiding inherent anticipation. As seen in Schering v. Geneva, 339 F.3d 1373 (Fed. Cir. 2003), the Federal Circuit held that a patent claim which structurally described a metabolite of loratadine (Claritin®) was inherently anticipated and invalid because the metabolite was formed in a patient’s body upon ingestion of loratadine.
In a post from this past week’s Illinois Trial Practice Weblog, Evan Schaeffer provides pointers on “how to start a deposition..” Being an IP attorney who drafts patents and writes opinions for a living, I found this glimpse of life on the other side (the parallel universe, so to speak) something I frankly had never thought about, but yes, something any attorney should know about but may have been too afraid to ask. Something like the old axiom from my professor days in that “there is no dumb question, only dumb answers.”
Three current and hot law student podcasts can be found at the following sites:
As always, the eccentric (and sometimes quirky) Yeoman Lawyer blawg shows us life on another side of lawyering with some interesting offerings for the week. For instance, how many lawyers are also farmers and how many lawyers stop to look at their cows on their way back from a deposition?
It might not be law-related, but Neil J. Squillante at Techno-lawyer blawg writes that “a Retina Specialist Has an Important Message for Diabetics — Get a Fluorescein Angiogram“…. With 3.1% of Americans suffering from diabetes, it’s a good bet that some Blawg Review readers (or their loved ones) are among those who suffer from diabetes. While this Post doesn’t concern the law, it could help save the sight of diabetics who read Blawg Review.
As a previous member of the “publish or perish” set, I was intrigued with the “law review publishing experiment” post by Professor Stephen Bainbridge on his blawg site from this past week. In his post he states that “logically, of course, the most likely way blogging makes one’s name familiar to editors of law reviews is that one’s blog readership includes a fair number of such editors.” If you’re a law review editor you might want to see what he’s proposing. However, now that the law review folks are on notice as to the “experiment” has the experiment been doomed? Time will tell.
The Ambivalent Imbroglio writes an insightful post regarding that AP story which ran last week regarding 3L’s and the necessity, or lack thereof for that third year of law school, as this. This post, and associated links, is well worth several reads for the ABA types, law school profs and students as well. Also, be sure to check out the countdowns.
Hot & Bothered
Minor Wisdom’s Ray Ward takes up the issue of a judge that’s steamed at Wal-Mart’s counsel. Judge Pregerson of the Ninth Circuit publicly chastising counsel for the defendant, Wal-Mart, for what he considered to be harsh language toward the trial judge in Wal-Mart’s brief. Ward pulls out the passages that I think may have been the ones to draw the judge’s ire. Do you think it’s a good idea to accuse the judge of “glossing over” claims or of “sidestepping the obvious”? Warning: Read this to learn how to avoid similar mistakes.”
Dennis Crouch, over at the Patently-O: Patent Law Blog, has a nice update on Capon v. Eshhar v. Dudas (Fed. Cir. 2005) where the Federal Circuit held that a nucleotide sequence of claimed DNA not required to satisfy the written description requirement when the sequence is already known in the field. Important stuff for the Baristas.
At Going to the Mat, Matt Johnston asks will there be any more legal challenges to the McCain-Feingold Act. He feels that there should be since there are now two potential plaintiffs with standing to sue: Shrink Missouri and Buckley. The only question is, will they? Johnston presents three grounds for legal arguments for the invalidation of the Millionaire’s Amendment.
For those who think that any mention of sales is antithetical to how legal services are marketed, three words come to mind: get over it. And for the marketing mavens who would have you believe that corporate legal services are just another commodity to be sold, three different words come to mind: not so fast.
Selling the GC – Lesson #2: Pitching is still defense; a personal referral is the best offense.
Announcer: And now please welcome President Abraham Lincoln.
President Lincoln: Good morning. Just a second while I get this connection to work. Do I press this button here? Function-F7? No, that’s not right. Hmmm. Maybe I’ll have to reboot…
George Lenard over at George’s Employment Blawg writes about the current state of workers being underutilized and bored at work. Despite the barrage of reports that Americans are working themselves to death (Note: a 2000 report showed that American workers spent the equivalent of almost a full month more per year on the job than they did in 1967), the Washington Post (reg. required)reported that 55 percent of all U.S. employees are not engaged at work. The article goes on to point out that boredom increases job stress, while decreasing morale, job satisfaction, and even safety. This may have more to do with not finding a good work-life balance.
George recommends that both employers and employees should be looking for productive uses for such time. For professionals and other self-employed workers, structured marketing-related activities, including networking, are a productive boredom-beater. See his post “Bored out of a job?”
Overheated
The Health Care Blog is a blog that covers the health care industry and health regulatory/compliance issues along with other legal odds and ends. We found this site useful since many biotech inventions bring up various HIPAA questions. A recent post from Bob Coffield considers how West Virginia hospitals might respond to a multi-million gift offer from one or more of the many prominent West Virginia plaintiff’s lawyer. He writes:
I can see it now “___________ (add your favorite West Virginia medical malpractice lawyer) Tower” at ____________ (add your favorite West Virginia hospital).
Lawrence Taylor looks at The Road to Prohibition on his DUI Blog. He writes that the ultimate goals of Mothers Against Drunk Driving lay well beyond lowering DUI levels to .08%, .05% and ultimately to .01%. The ultimate goal is, simply, resurrecting the failed experiment of prohibition:
“The first step, of course, would be a gradual shift of focus away from drinking *and* driving to one of just drinking. And the logical starting point would be the more politically-acceptable target of underage drinking.”
Half-Baked
In Wake up and smell the trade mark opposition, Jeremy Phillips, on the IPKat Blog, writes about how the Ethiopian government is trying to prevent coffee giant Starbucks from registering the words “Ethiopian coffee” as a trade mark. The IPKat wonders if there’s something missing from this tale. Coffee is grown in Ethiopia and has been almost since the dawn of humanity. If “Ethiopian coffee” is used for coffee from Ethiopia, it’s unregistrable as a trade mark because it’s totally descriptive; if it’s used for coffee from anywhere else, it’s unregistrable because it’s deceptive.
In a related note, the Dead Programmer’s Cafe shows how the Starbucks logo itself has made some interesting changes over the years to become less racy. Apparently, some consumers found the suggestive split tail of their topless siren too lurid and a simplified logo was introduced, hiding the siren’s breasts under waves of hair, and that in turn was cropped and enlarged so the split in the siren’s tail would no longer show. She eventual lost her belly button, too. I guess it drove customers wild.
Tom and Ray over at Car Talk have a brand-spanking-new Car Talk Auto Advisor. Basically, you tell the Advisor about your driving habits, your automotive likes and dislikes… and it’ll tell you what new cars you should consider. Apparently, we should be driving a Peugeot 505. Speaking of cars, the Baristas are considering getting Patent Barista emblems for our cars from Your Emblem.
SPF 50
Dukes of Hazard gets burnt – Blawgers at PHOSITA have posted a piece on how a debacle behind the scenes of this movie, which has been less publicized by the studio, has cost the studio millions in $$ and left them burnt. In their post regarding the Dukes of Hazard movie, Phosita blawgers note that this movie was actually based on a never-seen movie called “Moonrunners.” In the end, the copyright holder obtained $17.5 million for the rights to a movie that nobody has seen. Get those Daisy Dukes cheap while you still can!
In a second post for this past week, PHOSITA also discusses “the business of patents” and with this post, adds some numbers and insightful commentary to what a business this truly is. “Part of the mystery of intellectual property (IP) lies in its intangible nature. After all, when a person gets a patent, all they have to show off are a few papers. However, businesses are increasingly recognizing the value that these few papers can hold.” From licensing revenues, to royalties, to gaming the patent system in the U.S. and in foreign countries, this post is worth a read for anyone that handles any type of IP matters.
The Conglomerate’s guest-blogger Joshua Wright discusses the “Economics of Payola” in a thoughtful post from this past week. In this post, he describes payments for product distribution ranging from arrangements in grocery stores to payola in the music industry. In his post, Joshua writes that “competition for product distribution is crucial to a variety of industries: slotting allowances for grocery store shelf space, payments for inclusion in mutual fund “supermarkets,” and for listing preference in search engine results. Despite the widespread use of payments for distribution in markets, payola can lay claim to the most colorful history of regulation and controversy.’ In one example, we have NY AG Eliot Spitzer’s investigation of Sony BMG Music Entertainment resulted in an agreement prohibiting Sony BMG (others may follow) from making payments in exchange for radio airplay. I found this post to be quite interesting since these are things I have wondered about since I encounter them everyday and I keep wondering why that radio station I listen to keeps playing the same songs over and over again.
In a series of posts from this past week, The Mommy Blawger discusses rights of mothers to breast feed in public. When will our breast-obsessed nation get over itself and allow mothers to feed their children in public. Must we all jet to Europe so that we can nourish our babies every 2-4 hours? Besides the emotional issues here, Mommy Blawger does a nice job discussing the more legal maneuverings involved with this debate. Don’t people have more important things to devote their time to than to harassing women for breastfeeding their children? In her post she states that “what many people do not know is that breastfeeding in public is legal in every state. A mother does not need to “cover up” or go somewhere more private. More than half of states have laws specifically protecting this right, but even in those that do not, it is still legal to breastfeed in public.”
Williams poses: Try to combine Joni Mitchell’s Big Yellow Taxi song with Chuck Berry’s Nadine and see if you can come up with a Ninth Circuit opinion on trademark protection in Yellow Cab v. Yellow Cab. They both want to use the same name, and prevent each other from using it. But, when you say “Yellow Cab” do you think of either of these companies or just a taxi?
“It’s getting hot in herre (so take off all your clothes)”…Nelly.
And in a final commentary to one of the Barista’s favorite blog sites (as opposed to blawg sites), our review could not be complete with kudos to Go Fug Yourself. In the Baristas world of law and science, this is pure cotton candy but also pure enjoyment for us. Fuggers Heather and Jessica present Freaky Fug Friday: Salma Hayek.
Really Cool We can’t leave without noting Lance Armstrong’s triumphant farewell to cycling in Paris with his seventh consecutive Tour de France victory. After following Team Discovery‘s 22 day, 2,241-mile trek across France, we got to see Armstrong finish first with a time of 86.15.02 — at an average speed of 25.882 mph! Lance, we’re gonna miss ya.
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Thanks for dropping by and visiting our place. We’ll meet at your place next time.
Blawg Review has information about next week’s host, and instructions how to get your blawg posts reviewed in upcoming issues.
Over the summer, whenever you’d think you’d have beaucoup time on your hands, I tend to be busier than ever with taking care of kids and my home and getting to all those things I put off during the school year. So, a lot of little “detail” action items tend to build up on my desk. This includes getting around to mentioning some of the blog sites that I find or become aware of.
One of those is the Patent Prospector, a blog “intended to be informed and practical information, opinion, and sassy entertainment about patents, especially aspects relating to the life cycle of patents.” The site, by Gary Odom and others of Patent Hawk LLC, has a good assortment of helpful posts that tend to be useful for people in the IP field. Noteworthy is that the site is an open forum weblog for patent practitioners where contributions are welcomed.
Their latest item has a nice update on how Ross Perot has become a principal in a $200 million private equity fund set up to buy companies with undervalued patent portfolios in such areas as semiconductors, biotech, nanotechnology and software.
We went to see a movie with the kids this weekend as we tried to get in family fun before the school treadmill starts up again. We went to the super-mega-multi-plex where they had a gaggle of movies playing, including a big fat ONE MOVIE that was rated G and OK to take the kids — we saw “March of the Penguins” by Director Luc Jacquet.
For some inexplicable reason, Hollywood can’t make a decent G movie. Many movies are made that could have been a decent G-rated movie yet instead they are made PG-rated where for no discernible reason, they contain off-color remarks or foul language which seems to have been inserted solely for the purposes of gaining a PG rating. If you’ve ever been forced to sit through Stuart Little, you know what I mean. But, I digress.
Anyway, Jacquet follows nine months in the lives of emperor penguins, from the time they march off on their annual trek 70 miles to a breeding ground to lay one enormous egg to their return to the sea. Amazingly, we don’t know how they find their way, as changes in the ice shelf force them to find new routes each year.
The female lays the egg, transfers it delicately to the male and then walks 140 miles roundtrip (to the open sea and back) to gather food it can give the chick that hatches. Meanwhile, the male stands around and holds the egg between its feet and a belly of dense feathers, incubating it to keep it off the ice and basically fasting up to four months amid blizzards.
The story of these amazing penguins and the extreme levels of self-sacrifice they endure for their chicks is fascinating and incredibly moving. It does have a bit of a slow pace at times — my three year old fell asleep. But overall, I would give it two thumbs up for a superb job of telling this tale. The cinematography is breathtaking in capturing the mood of the Antarctic.
Besides the story itself, the movie shows Herculean efforts by the film-makers. I would like to have had more of the story of the making of the film. It must have been some extraordinary circumstances to spend a year in 80-below temperatures. You can’t believe you’re able to watch all the moments they’ve captured.
Check out the movie (whether you have kids or not).
I’ve been hoping to see some let up on the “patent troll” whiney tantrums we’ve been seeing of late. Geez, even the BBC News, which should know better, took up the issue and re-printed old arguments that keep showing up like a bad penny.
One BBC article quotes FTC commissioner Mozelle Thompson saying some companies use patents “in an anti-competitive way, sometimes to prevent other products from getting to market, to prevent people from sharing ideas and to prevent the kind of innovation that the patent system is really trying to spur on.” Note to Mozelle: “Get over it.” Companies don’t have an obligation to give things away just because you want it and don’t want to pay for it. It’s a dog-eat-dog world out there.
A recent Tech Dirtposting by Mike (NOTE: I don’t know who Mike is, I couldn’t find any info other than Tech Dirt offers some sort of corporate intelligence insert your oxymoron joke here>), took offence with the former Patent Office director, James Rogan, indicating he is off-base in saying there’s nothing wrong with companies patenting something and then refusing to do anything with it.
Tech Dirt feels that this is contrary to the original purpose of the patent system, that is, To promote the Progress of Science and useful Arts [U.S. Constitution, Art. I, Section 8]. Tech Dirt believes that patenting something and “then not doing anything with it other than suing companies who actually do innovate completely goes against the purpose of the patent system.” Really?
As we’ve written before, many people who complain about patents are only concerned about the impact they may be feeling at a particular moment. It’s selfish greed, really. This always comes up whenever someone wants to make a product and the rights holder won’t give them permission or whenever a patent holder asserts some rights against another. But those are the perks given by the system, the right to exclude others. Our great Founding Fathers looked beyond the immediate gratification we hold dear today and saw that the real value of the patent system is the investment over the long run.
The key part of the Constitutional clause is the phrase “securing for limited times” of patent rights. Although 20 years may seem like a lifetime to many (including my 8-year-old daughter with an incredibly short patience threshold), the true value comes over centuries of discoveries, the many lifetimes of hard work, all published for everyone to study and research. Yes, one may be blocked from development of certain technologies for 20 years but once the term has lapsed, the benefits run for all of eternity.
That seems like a pretty good bargain for the public as well as businesses that can take this freed knowledge and leap-frog ahead in promoting the useful arts. Without it, we’d still be using slate & chalk.
A new (to me) blog I noticed recently is the IP Counsel Blog by Todd Mayover. It’s labeled as “discussing issues that concern the practice of in-house intellectual property attorneys.” Mayover is an in-house intellectual property attorney for a medical device manufacturing company in Fort Lauderdale, Florida. The site is well-done and has some good tips for practitioners. I recommend you check it out.
He recently had an interesting post on how intellectual property rights are often intertwined with the regulatory clearance process by the Food and Drug Administration (FDA) before they are brought to market — a lengthy and complicated application process.
Mayover makes an excellent point that intellectual property attorneys should be called upon to identify proprietary information embedded within filings that may be disclosed to the FDA. This is not just for ensuring proper submission of key invention details to the USPTO for patent purposes but equally so that documents containing proprietary information may be reviewed by IP attorneys in order to have an opportunity to redact proprietary information, such as trade secrets, trademarks and information described in unpublished patent applications, before the FDA makes the materials available to the public.
Editor-in-Chief Barista Stephen Jenei is a patent attorney and Owner of Jenei LLC. When not serving up patent chat over a steaming cup of java, he's handling a diverse intellectual property practice in the biotechnology, pharmaceutical and chemical fields. More info @ Jenei LLC
In a post from this past week’s 
Dukes of Hazard gets burnt – Blawgers at 
We can’t leave without noting 
We went to see a movie with the kids this weekend as we tried to get in family fun before the school treadmill starts up again. We went to the super-mega-multi-plex where they had a gaggle of movies playing, including a big fat ONE MOVIE that was rated G and OK to take the kids — we saw “
