Patent Links and Articles To Read By The Fire

FireplaceWith the weather as cold as it’s been in DC lately, I’ve been spending a lot of time reading by the fire.  And what better way to use that time than to read about patents!  For those of you, like me, for whom that sounds like fun—here’s a few things I’ve run across lately that are worth your time.

First up, Mark Lemley, Kent Richardson, and Erik Oliver recently posted a paper to SSRN summarizing the results of a survey they conducted, asking about patent-related threats companies saw in 2015.  A key top-line finding is that 70% of threats did not result in litigation.  In other words, a significant portion of the costs of over-broad patents are never going to be seen in court.  They represent a silent tax on innovation.

Second, Profs. Michael Frakes and Melissa Wasserman, who have done excellent empirical work on the Patent Office over the past few years, have a policy proposal summarizing that empirical work.  Three basic proposals: (1) shift Patent Office funding away from issuance fees and into examination fees to reflect where costs are actually incurred and avoid incentives to grant patents purely to cover PTO costs, (2) provide an avenue to limit repeat filings, and (3) give examiners more time to examine—particularly more senior examiners who experience a severe reduction in allotted examination time.  I find their evidence convincing, and think that these policy proposals might help alleviate some of the problems in the front end issuance of invalid patents (with IPR helping on the back end.)

Third, the World Intellectual Property Organization (WIPO) released their annual Global IP Indicators report.  There’s a lot of data in here on IP and patents worldwide.  One interesting observation in the report—despite the “sky is falling” rhetoric about Alice and IPR, filings in the U.S. continue to increase.  What’s more, grant rates were actually higher in 2014-2016, after Alice, than in 2010-2012.  As I pointed out last year, the impacts of the Alice cases on patent examination have been relatively insignificant compared to the rhetoric surrounding them.

Finally, in a more historical vein, the Internet Archive has digitized and made available a number of case files related to intellectual property litigation in the 19th century.  Though sometimes hard to read due to many of the documents being handwritten, this is a fascinating resource on the history of IP.  (For those of you who are Gilbert & Sullivan fans, this includes the case file for D’Oyly Carte v. Clark – the lawsuit filed by D’Oyly Carte against Signor Brocolini himself.)

Joshua Landau

Joshua Landau is the Patent Counsel at the Computer & Communications Industry Association (CCIA), where he represents and advises the association regarding patent issues.  Mr. Landau joined CCIA from WilmerHale in 2017, where he represented clients in patent litigation, counseling, and prosecution, including trials in both district courts and before the PTAB.

Prior to his time at WilmerHale, Mr. Landau was a Legal Fellow on Senator Al Franken’s Judiciary staff, focusing on privacy and technology issues.  Mr. Landau received his J.D. from Georgetown University Law Center and his B.S.E.E. from the University of Michigan.  Before law school, he spent several years as an automotive engineer, during which time he co-invented technology leading to U.S. Patent No. 6,934,140.

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