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About IPWatchdog.com

IPWatchdog.com was first launched in October of 1999, and since that time the site has been a trusted resource on intellectual property for over 3 million unique visitors who have come here for information and news.

The IPWatchdog Blog primarily provides insight and analysis to keep industry professionals informed on recent cases and the latest news relating to patents, trademarks, copyrights, technology and innovation. We pride ourselves on the fact that we do not have a typical blog. Virtually all of our posts are really articles that discuss issues that matter to attorneys and other professionals intimately involved in the intellectual property world. When you are looking for more than just the facts and would like some analysis and opinion the IPWatchdog Blog is for you.

About Gene Quinn

Eugene R. Quinn, Jr. President & Founder of IPWatchdog, Inc. US Patent Attorney (Reg. No. 44,294) B.S. in Electrical Engineering, Rutgers J.D., Franklin Pierce Law Center (FPLC) L.L.M. in Intellectual Property, FPLC Send me an e-mail

Gene is a US Patent Attorney, Law Professor and the founder of IPWatchdog.com. He is a principal lecturer in the top patent bar review course in the nation, which helps aspiring patent attorneys and patent agents prepare themselves to pass the patent bar exam. Gene’s particular specialty as a patent attorney is in the area of strategic patent consulting, patent application drafting, patent prosecution and technology licensing. He has worked with independent inventors and start-up businesses in a variety of different technology fields. Gene is also the inventor of a unique invention mining and patent drafting system, known as the Invent + Patent System, which enables the submission of detailed answers that form the basis of an extraordinarily detailed invention disclosure and which can be filed immediately as a provisional patent application, or subsequently reviewed, modified, edited and supplemented by a patent attorney or agent before being filed as a non-provisional patent application.

Gene is also known by many as “The IPWatchdog.” Gene started the widely popular intellectual property website IPWatchdog.com in 1999, and since that time the site has had millions of unique visitors. At least in part due to the notoriety he developed through IPWatchdog.com, Gene has been quoted in the Wall Street Journal, the New York Times, the LA Times, CNN Money and various other newspapers and magazines worldwide.

As of the end of Fiscal Year 2008 there are 1,208,076 patent applications still pending at the Patent Office, so it is no great mystery why it takes so long to get a patent examiner to respond in a substantive way to applications that are filed. The backlog continues to grow year after year after year, so there is really no reason to believe that things will change unless swift, strong and determined action is taken to implement rules and laws that are specifically aimed at solving the crisis facing the US patent system. Now is not the time for half-measures. If nothing is done soon the US patent system will slip into irrelevance because at some point it just doesn’t make sense to file a patent application on a technology with a limited life cycle when the Patent Office cannot recognize rights until after the life cycle has passed and the next generation of technologies is in use.

In an earlier post I suggested that patent examiners will examine patents based on the prior art that is submitted by the applicant. If no prior art is submitted by the applicant then the patent will be reviewed to make sure it meets the format and formalistic requirements, nothing more. If implemented that could significantly help get through the backlog, but I am not a fan of changing the rules in mid stream so there are at least 1.2 million applications that I would be reluctant to capture with such a new rule. Retroactivity is just offensive. Nevertheless, one thing that could significantly help right away would be if Congress would define what the duty of disclosure is that is owed by those substantively involved in the prosecution of a patent. Yes, the USPTO has Rule 56, which attempts to define the duty and obligation, but the United States Court of Appeals for the Federal Circuit does not feel that it is bound by the definition of the duty owed to the Patent Office, even though Rule 56 was set forth by the Patent Office. Apparently the judges on the Federal Circuit feel that they know better than the Patent Office. The trouble is this leads to patent attorneys being unwilling to say much of anything useful to an examiner for fear that what they say would open the door to a charge of inequitable conduct, which would render any patent and potentially any related patent unenforceable.

We in the patent bar and those who utilize the U.S. patent system are caught in the crosshairs between the Patent Office and the Federal Circuit. The Patent Office wants us to disclose only information that is material to examination, meaning that we disclose only those things that would make for a good rejection, which is what Rule 56 requires. The Federal Circuit, however, wants us to disclose everything that could possibly be used by an examiner to issue any rejection, good or bad. See e.g. Digital Control v. Charles Machine Works. Given that examiners weave together some rather illogical and almost impossible to believe rejections, particularly in a first office action, the patent bar is stuck disclosing mountains of information that is no doubt objectively not relevant or risk the Federal Circuit ruling that any patent obtained is unenforceable for inequitable conduct. Who among us has been willing to take that risk? No one will take that risk because it is ultimately the Federal Circuit who will speak last on the issue in the event a patent litigation is filed and inequitable conduct is alleged, as it ALWAYS is alleged by the defendant in a patent infringement litigation. Whether or not there are facts to support the allegation of inequitable conduct is of no consequence, it gets alleged every time and is the 800 pound gorilla sitting in the office of every patent attorney who drafts patent applications, prosecutes patent applications or litigates patents. Despite the fact that the Patent Office rule makes sense and the Federal Circuit rule is irrational, illogical and nonsensical, we follow the Federal Circuit view because they are the ones who will decide whether to make a patent we obtain for our clients worthless.

The trouble with allowing the Federal Circuit to drown out the Patent Office on the issue of what needs to be disclosed is that the Federal Circuit is mucking with the Patent Office docket. Would the Federal Circuit like it if the Patent Office issued rules that significantly affected the workflow and docket management of the Court? Of course not! So why then should the Federal Circuit make laws that do that same thing to the Patent Office? This is particularly ridiculous given that the patent system is on the brink of irrelevance and the Federal Circuit still says that those substantively involved in the prosecution of a patent application must disclose everything you know. This uses up client resources, it wastes Patent Office resources and it is the main contributing factor to the resistance most in the patent bar have with respect to many of the rules packages the Patent Office has tried to push through. Of course, the continuations package is an exception and that is just against the plain meaning of the Statute, but would you protest so much about the IDS rules or a sensible Examination Support Document if it meant that the patent process would work better, faster and you would not have to worry about inequitable conduct making the right you obtained worthless to the client? I think a lot of things would be different, and different in a positive way, if the Patent Office definition of the duty of candor were followed by the Federal Circuit.

So how do you get the Federal Circuit to follow the duty of candor rule announced in Rule 56? I am not foolish enough to think that persuasive arguments and the impending doom of the recession will matter at all. That is why Congress needs to step in immediately and codify Rule 56, or a variation of Rule 56 that would allow the patent bar and applicants to feel comfortable helping the Patent Office and patent examiners do their job while at the same time not running the unacceptable risk that inequitable conduct will be argued by every desparate defendant.

Hey… if there is inequitable conduct then the patent should be unenforceable. But the word “intent” needs to mean something in my opinion. The truth is that even the Judges on the Court recognize this has gotten out of hand. During the oral arguments in the USPTO appeal of the GSK and Tafas matter Attorney Toupin started quoting the Kingsdown case, which says that gross negligence cannot be construed as intent to deceive. Judge Rader asked Toupin if he had read any of the recent inequitable conduct cases of the Federal Circuit. Toupin said he had, but that since Kingsdown has not been overruled it must stand for something. If only that were the truth.

About the Author:

Gene Quinn is a patent attorney and the founder of IPWatchdog.com and is a member of the PLI Patent Bar Review faculty.

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]]> http://www.patentfools.com/2008/12/13/patent-reform-codify-pto-rule-56/feed/ http://www.patentfools.com/2008/11/24/tilting-at-windmills-patent-troll-style/ http://www.patentfools.com/2008/11/24/tilting-at-windmills-patent-troll-style/#comments Tue, 25 Nov 2008 00:21:08 +0000 Gene Quinn http://www.patentfools.com/?p=22 RPX Corporation is a new start-up company that is attempting to pull together resources to acquire patents in an ill-defined attempt to thwart patent trolls.  It seems that RPX wants to build a defensive portfolio of patents, but this is not calculated to prevent patent trolls from doing anything that could potentially be useful.  If you take a look at the RPX website you will see that as of today they have over 150 patents and more than 60 applications in their defensive portfolio and they have spent $40 million.  That does not seem like a worthwhile investment, particularly when a defensive patent portfolio is not going to be doing anything to stop patent trolls.  A defensive patent portfolio is only useful when one is being sued by a firm that is doing something that could potentially be infringing upon patents held by the accused infringer.  The accused infringer sues the patent owner and says while I might be infringing you, you are infringing me.  The trouble with patent trolls is that they do not do anything other than acquire patents and enforce them.  They are not engaging in any particular activities that could ever be considered to be infringing, so what good is a defensive patent portfolio?  Exactly no good at all!

More and more schemes that will be completely unsuccessful at dealing with the perceived problem of patent trolls are being hatched. In an article titled Reexamination Would Stop Patent Trolls, which I wrote on IPWatchdog.com the other day, I criticized the just announced plan of Article One Partners, who will pay individuals for prior art they come up with if they believe the prior art could be used to invalid patent claims. The trouble with what Article One Partners wants to do is that it has been tried before and failed. Offering a bounty for invalidating prior art seems like a great idea but it has never turned into the accumulation of prior art references that would be truly useful. This is no doubt due to the subjective nature of the promise to pay a bounty. If Article One Partners forms an opinion that patents are invalid, those submitting the prior art can earn up to U.S. $50,000, with $1,000,000 available to Article One Partners to pay for prior art that is submitted. But who wants to spend the kind of time doing the research necessary with nothing other than a nebulous promise with subjective criteria? That is why in the article I concluded that reexaminations are the way to go if companies are really interested in stopping patent trolls.

According to USPTO statistics, 9.2% of requests for ex parte reexamination result in all claims being canceled and 59% of the time certificates issue with at least some claims being changed. Even more dramatic, 74% of requests for inter partes reexamination result in all claims being canceled and 14% of the time certificates issue with at least some claims being changed.  The answer to dealing with patent trolls is to go after them with reexaminations, not to try and build a useless defensive patent portfolio.  At least Article One Partners is trying to address the problem by giving incentive to individuals to find prior art and disclose the prior art.  I just don’t think the way they are going about it is going to work, but they are following the right path.  If Article One Partners really wants to succeed rather than waiting for people to give them prior art they would identify some bad patents, or bad patent owners, and go straight after those patents by funding the research necessary to uncover the prior art that would sink them.

My opinion is that these companies that complain about patent trolls don’t really want them to go away. Patent trolls are extremely valuable to these big tech companies because they are an identifiable and unsympathetic villain. They can be paraded about as evil and help these large tech companies pursue legislative reforms that would cripple other industries but which would eliminate the patent troll problem. Of course, the goal is not to eliminate the patent troll problem, it is to make the patent system weaker, have fewer patents granted that cover less ground and make it all much more expensive. You see, the goal is to make it difficult if not impossible for small companies and start-ups to obtain patents, thereby ensuring the market dominance of the mega-tech companies. Brilliant really, and if it didn’t mean that pharma companies and companies that actually build real products would be devastated mega-tech would have already achieved their agenda.

Let me be perfectly clear. Patents will continue to be applied for to attempt to cover software. I foresee no fewer applications, but it is clear that each application will require far greater detail and much more attorney time. So the Bilski decision will do nothing for patent attorneys other than create more opportunity for revenue. Bilski will turn into something of a full employment act for patent attorneys and agents who work in this space. But just because the decision will be good for business, at least the patent attorney business, doesn’t mean that it is a good or wise decision. The decision was unnecessary and violates any norms of conservative judicial philosophy and instead supplants restraint for activism, which is unwise in my opinion. All the Bilski decision will do is make it more costly for entrepreneurs and small businesses to protect the assets they create, thereby helping those who have achieved market dominance to maintain that market dominance.

What is the harm in allowing software patents? Isn’t the problem that patent offices, particularly the United States Patent Office, are increasingly doing a poor job of finding relevant prior art and weeding out what is new and non-obvious from what is old and obvious? If prosecution were more meaningful, what is the harm in granting software patents? I see none because there is none. We should not tolerate intellectual dishonesty because it is expedient. The trouble is that patents are being granted on “inventions” that are not new or which are obvious. The problem is not that software presents an inherent evil.

As far as I am concerned saying that software is not patentable subject matter is akin to saying that a car battery is not patentable subject matter. No one could seriously argue that a new and non-obvious car battery would not be patentable subject matter. In fact, that is exactly what many researchers are trying to find right now, albeit not the same type of car battery that we are used to inserting under the hood. You see, the car itself is just a bunch of pieces of metal that sit there fastened together to create a tangible shell that has taken on an identifiable structure. The car has lots of potential, but without some kind of fuel it doesn’t even have potential energy. It merely has potential to move from place to place under appropriate conditions. Hardly something that is useful in any real world sense of the word.

Lets assume that our hypothetical car is loaded with fuel, wired up appropriately and we can even give it an XM radio receiver for good measure. None of that will do anything other than make the vehicle more expensive. There is still no potential or use for the vehicle. What transforms this otherwise magnificent machine (or Ford F150 as the case may be) into something special is the battery. It is the battery that allows the vehicle to start and to play the XM radio receiver, which is particularly important when you are trying to listen to Mik & Mike in the morning on ESPN Radio. So it is the battery that brings everything together.

Of course, there are other components of the car that are required to create the magic, so lets not get to far off with the illustration. But hopefully you can see where I am going with this. A computer is just a bunch of metal, plastic, wires and various other parts that has the potential to do something, but which never will do anything, without software to create the spark. The computer itself is merely a means to operate software, and this point really cannot be challenged in any serious, logical and honest way. Who wants a computer without software? Exactly no one! So why then does our patent system require us to act like it is the computer that is the revolutionary aspect? I just do not see the mileage in ignoring truth and living by some fiction that is thrust upon us.

http://ipwatchdog.com/2010/12/20/intellectual-ventures-independence-day-take-ii/id=13876/

http://ipwatchdog.com/2010/12/14/patent-trolls-innovation-vampires-suck-life-out-of-economy/id=13797/

To give you a flavor, here is the general overview of how McCain and Obama would handle technology and innovation as president:

The overall orientation of John McCain’s innovation policy agenda is to focus on proposals for creating a favorable environment for private sector innovation through a clear and less burdensome tax code, limited government regulation, and a strong trade, immigration, and competitiveness agenda. McCain places more emphasis on spurring research and development (R&D) through the tax code than on spurring R&D through public expenditures. In other words, McCain’s policy seeks to foster an environment for private sector investment in R&D and innovation.

Barack Obama’s approach to technology and innovation policy engages the government as an active partner alongside industry in setting a national technology and innovation agenda. More than McCain, Obama would substantially increase government funding for science and technology R&D, including doubling the current level of federal R&D funding for basic research and targeting additional funding towards specific initiatives, such as $150B for clean energy programs and $50B for health information technology. Whereas a McCain Administration would seek to leverage existing federal agencies tasked with innovation activity, such as the Manufacturing Extension Program (MEP) within the Department of Commerce, and resist creating new bureaucracies, an Obama Administration would be more willing to reevaluate the current federal innovation infrastructure and reorganize it as necessary, such as through the creation of a new Advanced Manufacturing Fund.

McCain, believing that innovation is fueled primarily by risk capital, skilled workers, incentives for entrepreneurs, a light regulatory framework, and open access to markets, would place most emphasis for innovation on the marketplace, and be less focused than Obama on having government take a very active role in proactively establishing and aggressively funding a national innovation and R&D agenda. Obama’s policies recognize the private sector as the central source of economic growth and prosperity and appreciate the need to create a favorable regulatory, tax, and investment climate for it, but also affirm that government can play a proactive and constructive role in helping the private sector commercialize its innovations.

Fairly typical of what you would expect no doubt, as a Republican McCain favors creation of an environment in which industry can thrive, and as a Democrat Obama favors more government involvement in leading the charge to foster new technologies and innovation.  Aside from the Bay-Dole Act, which gave Universities the right to keep the patent rights for the inventions they create, I don’t think that the government ought to be to involved.  Funding is one thing, but more than that is not something I want to see personally.  Creating an environment for innovation and technology sounds good, but sorting out the candidates based on general statements about what they would do to spur technology and innovation is going to be somewhat difficult.  After all, you are not likely to hear one of the candidates say technology and innovation is good and the other say that it is bad.  Both seem to understand that it is something that will lead to a better America.

To the extent you are going to be a one-issue technology/innovation voter you are probably going to have to dig a little deeper, and it may well wind up being taxes that makes the decision for you.  Barack Obama and his campaign can continue to dump on McCain for saying that the economy is fundamentally strong, and explain that he is out of touch with Americans for saying such a thing.  So I guess that would have to mean that Obama thinks the economy is fundamentally not strong, or perhaps even weak.  I don’t see it that way personally, but lets assume the economy is not strong and perhaps even fundamentally weak.  How then is it possible that raising taxes on corporations is going to make an economy better off?

So as to not get to far afield let me return to the ITIF report.  Aside from from mentioning the big ticket tax policy items that the popular media had covered, the report points out that Obama supports making the current R&D tax credit permanent without expansion, but McCain would make the R&D tax credit permanent, and extend it beyond the current level by calculating a company’s R&D tax credit as an amount equal to 10 percent of the wages that the company spends on R&D in the United States.  So if you can get past the fact that a Republican just wants to cut taxes more you see that what McCain would do is not only make the R&D credit permanent but would also incentivise the additional hiring of high paid skilled workers, something that I think our economy could really use.

At the end of the day whether McCain or Obama would be better for innovation is debatable I suppose.  Now if I could only look into a crystal ball and see who President McCain or President Obama would appoint to be the next Director of the Patent Office… that would make things a whole lot clearer!

In an interesting article, Heise Online reports that SUEPO believes the supervisors of the EPO are not interested in high-quality legal protection of commercial rights that would actually strengthen European industry, science and innovation.  The staff of the EPO apparently does not trust upper level management and morale throughout the EPO is extremely low, and in the past has even protested to try and get more time for examiners to do their jobs.

The problems identified by SUEPO regarding the EPO sound eerily similar to problems that are plaguing the US Patent Office.  For example, the Government Accounting Office called out the US Patent Office in a report issued in September 2007, taking the PTO to task for their inability to retain examiners and unrealistic production goals.  Furthermore, morale at the USPTO is exceptionally low; so low that certain examining groups have simply decided to refuse to issue any patents any more.  And the qualifications of upper level USPTO management has been questioned because the political appointees running the Patent & Trademark Office have absolutely no experience in the patent industry and simply do not understand what is required to draft, file and prosecute a patent application.

The problems facing the patent systems of the world are staggering, and real political leadership is going to be necessary to solve this problem.  Of course, calling it a problem is really misleading.  The so-called problem is one of great success.  Because innovation is more and more becoming the driving force of the world economy patent offices around the globe are experiencing tremendous growth in the number of patent applications, and as innovation marches forward the technology represented in these applications is becoming more and more complex.  Unfortunately, rather than giving examiners time to really examine applications they are given arbitrary amounts of time per application.

As reported by the BBC, Alison Brimelow, the head of the European Patent Office, says that delays in Europe of up to 10 years have left somewhere between five and ten million inventions queuing for approval!  And I thought that the backlog of about one million applications at the USPTO was ridiculous.  No wonder SUEPO is protesting!

I really don’t know anything about SUEPO.  For all I know they are an organization that I wouldn’t agree with about anything normally, but I have to say that I admire that they are standing up to take some action to highlight the problems of the EPO.  I wish some of the career US Patent Office employees would stand up and say enough is enough, but if US patent attorneys are afraid of speaking out for fear of retribution then I can’t really blame career USPTO officials from saying something that may cost them their jobs.  But maybe some of those who have left the Office and gone into private practice, or those who have retired, can stand up and draw some attention to the USPTO crisis.  Something needs to be done and soon!

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]]> http://www.patentfools.com/2008/09/13/patent-demonstration-and-workforce-strike/feed/ http://www.patentfools.com/2008/09/08/obama-plan-would-hurt-innovation/ http://www.patentfools.com/2008/09/08/obama-plan-would-hurt-innovation/#comments Tue, 09 Sep 2008 03:09:49 +0000 Gene Quinn http://www.patentfools.com/?p=14 Every once in a while I have to just scratch my head and wonder about those who are supporting Barack Obama for President.  So often it seems that those in the media who are allegedly supporting him make the case against voting for him.  With allies like this there almost isn’t any need for opponents  to question Obama about anything.  But the real scary thing is that these alleged Obama supporters don’t even seem to appreciate that they are making the case against Obama.

Case in point is an opinion piece titled McCain’s Convenient Untruth, which was written by Sebastian Mallaby and published in the Washington Post on today.  It seems that Mr. Mallaby takes issue with McCain’s economic plan, but openly acknowledges that the Obama plan will strike at the heart of innovation and potentially ruin the economy.  How in the name of all that is right in the world could it be a wise move to knowingly harm innovation?  Newsflash… our economy is dependent upon innovation and the path to success as a nation is to build upon new technologies and create new industries to fuel the economy.  At a time when our Patent Office seems hell-bent on giving fewer and weaker rights we can hardly stand for the creation of new hurdles that will only make innovation more difficult.

Lest you think I am kidding, here is what Mallaby wrote today in the Post:

Under Obama’s plan, top earners would pay a marginal federal tax rate of maybe 46.5 percent (that includes the Medicare tax and Obama’s proposed hike in Social Security taxes), considerably more than the 37.9 percent they would pay under McCain. There’s no doubt that Obama’s higher tax rates would mean weaker incentives to work, take risks and innovate; and stronger incentives to waste time and effort on avoiding the tax man.

But those bad effects must be weighed against a good one: Higher tax rates mean a lower budget deficit. According to the Tax Policy Center, over the course of a decade Obama’s plan would result in a national debt $1.2 trillion smaller than you would get under McCain’s plan. Less government borrowing ultimately means lower interest rates and more private investment. This positive effect may well outweigh the blow to growth and jobs from weaker work incentives.

So in other words under the Obama economic plan the marginal federal tax rate would be nearly 10% higher than under the McCain plan and this would doubtlessly take away incentives to innovate and would lead to wasting time and creating more incentive to manipulate the system to avoid taxes?  How could that be considered to be a positive thing by anyone?  And all of this is in the name of offsetting the national debt?  Give me a break!  Anyone who has followed any political promises knows that promises to offset the national debt are never real and are uttered without the ability to even keep a straight face.  The science of economics on the national level is no science at all, it is black magic, where numbers are manipulated to create whatever reality will get the purveyor of the numbers elected.  Economic projections that relate to the debt are worse than business plan estimates because at least business plan estimates need to pass muster under the review of investors!

So because the positive effect of crippling taxes “may” outweigh the significant, clear and doubtless harm to innovation we should roll those dice and give it a whirl anyway?  Why don’t we just all pony up $100, give it to Uncle Sam who can then take a trip to Vegas and put it all down on Black on the roulette table.  Now that sounds like a more viable economic plan to me!

Whether or not the Obama plan will lead to harmful effects on innovation is debatable, and while I have my own opinions those can keep for another day.  The important question to ask, however, is how could anyone come to the conclusion that Obama’s economic plan would doubtlessly do harm to innovation and still believe that his plan is one that should be implemented?  This demonstrates a complete lack of understanding of our current economic realities, and demonstrates blissful ignorance with respect to the role that techonological advancements will play in the next boon.

If you want private investment to enter the economy you should focus on policies that do not cripple innovation.  Why not try a policy or two that actually promotes innovation?  I say give small businesses and start-ups that develop technology significant tax breaks.  As new, exciting and perhaps revolutionary technologies are developed that will pave the road to economic success for everyone.  It will lead to the creation of new jobs and the birth of new industries, so rather than handing out tax breaks to those who disproportionately do not pay the majority of the taxes why not set policies in motion that will actually benefit those who are at the bottom of the tax bracket with better and more plentiful jobs?  Have we learned nothing from the old proverb about teaching a man to fish rather than giving him a fish?

While the United States is destined for a historical election one way or another, those in the patent community can’t help but notice that for quite some time now the United States Patent Office has been run by appointed officials who simply do not have the experience necessary to deal with a patent system that is in crisis.  Those who are familiar with my writing on this topic know I have been very critical of appointed PTO management having had absolutely no experience in the patent field or with innovation, technology or science.  It is indeed extremely ironic that the focus of the US Presidential campaign has been on experience and/or lack thereof.  Anyone in the patent industry can tell you just how bad it has been to have upper management without relevant experience.

I really don’t want to get into a debate about which candidate will be better for America, although I certainly do have my own strong views on the subject.  But regardless of who wins the election it is going to be imperative that the next Under Secretary for Intellectual Property (a.k.a. the Director of the Patent & Trademark Office) have relevant experience in the patent and/or innovation fields.  If we get another Director who has no experience I fear what will become of a patent system that is already in decline thanks to the over 1,000,000 pending patent applications waiting review.

Not only will it be important to pick a Director with experience, but we also need Deputies with experience as well.  We cannot take more policital appointments to upper level management.  Recent history demonstrates what happens when Patent Office leaders simply do not understand the realities associated with regulating an extremely complex industry.  After all, the United States Supreme Court has acknowledged that a patent is one of the most complex documents that can be drafted in all areas of law.  Patent laws are complicated and complex and regulating an industry without having any ability to appreciate the consequences and what the reactions will be within the industry leads to more gaming of the system, less efficiency and a dysfunctional patent system.

Regardless of whether taxes are raised or lowered on businesses, it simply cannot be argued that small businesses and universities drive innovation.  Strong patents attract investment and investment can and frequently does lead to innovation.  Science for the sake of science leads to discoveries, and a strong patent system that provides real protection and meaningful exclusive rights spurs economic growth.  So while the American public tries to figure out where McCain and Obama stand on the economy I am hear to tell you that where they stand on the economy is far less important than who they will appoint as Director of the Patent & Trademark Office.

Lets face it, the next President, whoever it is, is going to preside over tremendous economic growth despite whatever policies are supported.  The US dollar is gaining strength and historical patterns suggest this will likely continue for 5 to 7 years.  Oil is down and since commodities are priced in US dollars that helps as well.  Russia returning to cold-war tactics brings uncertainty and that means investment in the dollar will be attractive.  The credit crisis will be resolved within the next 24 months and home prices will finally have bottomed and start rising again.  So say what you want about voting on the economy, but our economy is fundamentally sound and there is absolutely no room to dispute that.  We have faced a war on terror which is costing us billions, enormous natural disasters, a credit crisis and record high oil prices and the economy STILL has not sunk into recession, at least yet.  How could that be true in spite of all the financial burdens we have faced over the last 8 years if the fundamentals were not sound?

The facts are clear.  Our economy is on the verge of busting out into a prolonged growth period.  Dark days are ahead, but the light at the end of the tunnel can be seen.  The only thing that will hold us back is our own stupidity, and perhaps a really bad appointment for the position of Director of the USPTO.  Patents spur investment, investment leads to more jobs, more jobs lead to a growing economy and prosperity.

To paraphrase Bruce Springsteen, who just so happened to grow up in my hometown of Freehold, NJ, the manufacturing jobs are going and the are not coming back.  This means we need to make a concerted effort to grow high-tech jobs, which just so happen to be high paying jobs.  And rather than concern ourselves about whether the McCain plan or the Obama plan would be better, lets ask the singularly important question… who will you appoint to lead the Patent Office?