Post-Kappos – Rethinking USPTO Efficiency

Posted on April 18, 2013 by Eric Rogers

It’s no secret that when David Kappos took the reins of the USPTO in mid-2009, a major focus of his administration would be on reducing the backlog of outstanding patent applications significantly. Now that his departure as head of the USPTO is two and a half months cold, did he succeed?

This pre-Kappos article from IPWatchdog bemoaned the ever-rising time it took to hustle a patent application through the examination procedure. From the 1980s through the mid-1990s, the average utility patent took around 18 months to pass through the office. When Kappos was sworn in August 2009, this was notched up to just above 32 months, with over 800,000 applications awaiting a first office action from an examiner.

Seemingly overnight, the USPTO switched gears into examination overdrive mode. This PatentlyO post details how within two years, the backlog had dropped to just above 650,000. A recent paper, after some fancy statistical footwork, pegs the 2012 patent application acceptance rate at almost 90% after accounting for refilled continuing applications. Continue reading →

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Online Postings, Personal Info, IP & Privacy

Posted on September 10, 2012 by Brett Manchel

When people post a restaurant review on Yelp, an advertisement for an apartment or an old TV on Craigslist, or a hotel review on TripAdvisor, Yelp, Craigslist, and TripAdvisor all receive value from the posting. Their business models depend on receiving input from consumers, and through leveraging the power of the public and some nifty algorithms, these companies have built industry-spanning networks that are incredibly important to other consumers. If the company has succeeded, then it has earned the trust of the consumers it targets, and also the respect of the businesses which it reviews. Naturally, developing this sort of reputation requires some work, especially when the Internet allows anyone to say anything about anyone or anything. Thus, Yelp, Craigslist, and TripAdvisor had to develop their goodwill to the point where they have become more successful than competitors. (I use these three companies as an example, there are others.)

A prevalent problem online is that it is relatively simple to “scrape” content from user reviews and online postings and slap it up on a different website without permission. In a recent article on Corporate Counsel, the legal implications of this practice are discussed. The article mentions copyright and trademark law, and without directly stating, recognizes how difficult it can be to win such a suit against a party that is repurposing content without permission. Continue reading →

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Stay Tuned

Posted on August 30, 2012 by admin

School’s starting up, and we’re coming back strong!

-The META Team

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Why You Should Be Scared of TV

Posted on April 30, 2012 by Brett Manchel

Er, the future of TV, at least.

Yes. TV has a future, and it is coming fast. You should probably take a second to think about it, because this: Hulu Will Require Cable Subscription

Sure, Hulu is heavily comprised of content provided by BigCableCo, and we want Hulu to continue to survive and do what it does so that we can get our shows when and where we want. But how far are we willing to go? I most certainly cannot afford the extra cost of cable (and the extra time it takes to be glued to a TV screen, which I view as one of the few blessings of law school), and I think i would be an awful business decision to completely do away with a pure freemium model.

But that’s really a minor point. When Cable and Internet become ever so intertwined, we start giving up control of our privacy and freedom to use the Internet how we will, and get force-fed content based on the prerogatives and business dealings of the ISP/CableCo. That’s the very general neutrality argument. But there’s also something to be said about the fact that very, very few companies will be in control of your Content consumption. Perhaps some antitrust concerns there? I suppose if the government keeps its focus on Google, but somehow decided the mating of NBC/Universal and Comcast was just peachy, I’m not sure where their priorities are. It’s not the worst thing in the world to have Everything all bundled and shoved through the pipes all together, but with the way things are going, such schemes are edging further up the “worst things” list.

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“Hi, And You Are?” Living and working in the Age of ‘e-dentity’

Posted on April 29, 2012 by Hammad Khan

I came across a fascinating post a few days ago. The author, Remco Janssen, premised the post on a simple yet daunting question: “Who are you online?” Janssen explored the concept of one’s “digital identity.” The post got me thinking, naturally, about who I am online.

I read through Janssen’s article a few times to explore the questions posited in the post; however, I decided to explore my digital identity even further. I was particularly interested in exploring who I am online from a professional standpoint. Technically speaking, I am still a student; however, I recognize the necessity of carrying myself professionally, especially since reputation is highly relevant in any profession, my chosen field (law) being no exception.

Janssen suggests the professional aspect of one’s digital identity is “easy to understand.” This is so, for instance, because “[i]t says so on your Linkedin bio.” At first blush that made sense to me, but then I realized aside from Linkedin, which seems to me to be a passive online networking venue, I also engage in conversations with professionals more actively online on Twitter. So, is my professional online digital identity really that simple to decipher? Granted, I use Twitter for professional discussions, but I also express some personal (comedic, philosophical, political, mundane) views. “Personal” is another one of the three categories of one’s digital identities Janssen notes.

It is fascinating, then, to see how the three categories of one’s digital identity blend together to form an “e-dentity.” Some of the professionals I network with on Twitter, I am also connected with them on Linkedin. Of course, there are posts I would never share on Linkedin that I have no problem sharing on Twitter. I view the former site as strictly professional, while the latter, to me, is more a mixture of personal and professional. I keep certain posts off Linkedin not to be elusive, but because it simply does not feel right for me to share that information in that particular setting. Just like I wouldn’t say certain things in front of my parents for concern about appropriateness (personal), I don’t share certain posts on Linkedin (professional).

Ultimately, who I am online is a mixture of what I choose to share, where I choose to share it, and with whom I share it. So, tell me, who am I online?

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“Context Shopping” and Legal Ethics

Posted on April 19, 2012 by Hammad Khan

“Context Shopping” is the concept whereby electronic data about consumers is gathered online to provide for a preference-based experience to end consumers. As Kevin O’ Keefe notes in his post, this is an emerging utility buttressed by the ubiquity of mobile technology, particularly smartphone usage and cloud computing. The concept of context shopping will undoubtedly reach the legal profession–eventually. (Mr. O’ Keefe posits some ideas as to how context shopping might appear in the practice of law.)

Although this context shopping for legal services appears to be a step in the direction to keep up the legal profession with the rapidly-changing technological times, there are ethical concerns that come to mind. In particular, I wonder how a system that provides a vast amount of information about a particular legal issue an attorney needs to research, for instance, squares with counsel’s duty to work diligently for a client. At first blush it may appear that because so much information is available, thorough treatment of client cases necessarily follows; however, I am concerned because the concept of context shopping is based on information gathered from various sources. My concern is that this may compromise the quality of work produced thereby compromising the quality of legal services offered. In his post, Mr. O’ Keefe suggests data filtering to ensure reliability of the gathered data. Certainly, this is a pragmatic and necessary safeguard. It follows, then, that such filtering must retain neutrality so that we do not find ourselves in a situation where certain information is masked or diminished more than other information. This could potentially weaken the integrity of context shopping experience in the legal context.

Another concern is the incentive people have for contributing data to essentially a large pool of information from which customer-based information can be distilled so as to offer customers the opportunity to make the most appropriate selection of legal counsel for their needs. This concept sounds sensible in theory, but what of the customer who might only have a cursory idea of his or her legal needs? How will such a system benefit such a customer? If the profession moves in that direction, would some customers find it more difficult to access our legal system?

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Culture and Disruption

Posted on April 16, 2012 by Brett Manchel

This is a great article: Why a small startup was able to build Instagram, while a company like Eastman Kodak, was not?

Culture is the catalyst for disruption. So even though Google or Facebook or Apple could have made Instagram, is it really a bad thing that they didn’t?

Whether you use Instragram, or even like it, you can’t deny its impact, which was just valued at $1 billion (at least by Facebook, but so long as some one is willing to pay that amount, that’s what it’ll be worth). I don’t exactly see what Instagram “disrupts” but I do see the point of the article about how it was created by a 12 person company in less than a year, instead of by a tech giant, and that is significant. Why didn’t Facebook just diversify if it wanted to further capture the mobile photo market? Sometime’s its easier to just spend the billion dollars, maybe. But that is why we have disruption – even the biggest, coolest companies cannot do everything. There’s always room to improve in the margins, and that is apparently what Instagram was able to do. What it supposed to get this big? Who knows…but it did, and that’s what matters. The point about the role of disruption versus diversification is widely applicable, not just to all sorts of industries, but to society more generally as well, and there can be analogies made to law, in particular.

As industry (and technology) advances, law needs to keep up. It’s not just clear in the context of outdated privacy laws or copyright laws based only on the conception of printed material, but all over. Continue reading →

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Augmented Legality: How Today’s Emerging Technologies Will Shape Your Career Tomorrow

Posted on March 29, 2012 by Brett Manchel

UPDATE: Augmented Legality will be live-tweeted via @BeyondClause8. Follow, ask questions, join the conversation! #METAlaw

How can you use your tech savvy to make yourself more marketable to law firms? What does your knowledge of social media mean for your clients? And how is the law itself handling all these developments, anyway? Some answers are obvious, but technology has permeated law in more ways than you might think. On Tuesday April 3, at 7 PM in Room 472 of the MSU College of Law, noted social media and augmented reality law expert Brian Wassom answers these questions and more.

Augmented Legality: How Today’s Emerging Technologies Will Shape Your Career Tomorrow

The Media, Entertainment, Technology & the Arts Law Society and the Career Services Office welcome Brian Wassom, partner at Honigman Miller Schwartz and Cohen, on Tuesday April 3 at 7:00pm in Room 472. Mr. Wassom will speak about legal issues surrounding augmented reality, social media, and other new technologies, and highlight some of the issues the upcoming generation of lawyers will encounter and the skills needed to handle those issues. This discussion will also cover the future of legal practice, and what law students and new grads can bring to firms as they look for jobs. Dinner is provided.

Mr. Wassom also has a highly informative and interesting blog at www.Wassom.com and tweets @bdwassom

Questions for Mr. Wassom or thoughts on the event? Leave a comment – or better yet, join in when we live tweet from @BeyondClause8! #METAlaw

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Federal Circuit to Re-review the Patentability of DNA

Posted on March 26, 2012 by Dustin Lee

Today the Supreme Court granted the petition for a writ of certiorari in AMP v. Myriad, then vacated and remanded to the Federal Circuit in light of the last week’s Mayo v. Prometheus decision. This isn’t too surprising, and is probably the best result to get an clear, early interpretation of Prometheus. The questions presented are:

1.  Are human genes patentable?

2.  Did the court of appeals err in adopting a new and inflexible rule, contrary to normal standing rules and this Court’s decision in MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118 (2007), that petitioners who have been indisputably deterred by Myriad’s “active enforcement” of its patent rights nonetheless lack standing to challenge those patents absent evidence that they have been personally and directly threatened with an infringement action

For the first question, some have suggested that the CAFC will invalidate Myriad’s patent claims as “laws of nature,” based on the CAFC’s “formalistic distinctions between process and composition claims.” I would hope that the Court revisits the necessity, or at least its justification for rejection, of this distinction since it may dramatically change the rule. Prometheus dealt with the patentability of a process as a law of nature, whereas the issue in Myriad is whether DNA is patentable subject matter, presumably as a composition of matter. I think there is a clear difference between the patentability of a process and the product of the process. Maybe there are nuances that are beyond me, but I don’t think DNA embodies a law of nature in the same way that the process in Prometheus does. DNA is a complex chemical molecule to store genetic information. Yes, there are chemical bonds that embody laws of nature, but by itself, DNA is static. Transcription, translation, replication, etc. certainly involve DNA and are arguably laws of nature, but the molecules are only a tangible component used in the natural process. If this is the correct perspective, it will be interesting to see how the CAFC applies the Supreme Court’s “apply it” rule from a case about a method to Myriad’s claim for a composition of matter. Otherwise, many engineered products based on natural things may be unpatentable. Either way, there is a good chance the Supreme Court will hear this issue again soon.

As a somewhat related question, would an early 1900′s patent on a shaped airfoil for powered flight be invalid because of Bernoulli’s Equation in light of Prometheus?

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In Defense of Mayo

Posted on March 21, 2012 by Reid Baldwin

No, I am not going to promote the stuff we spread on sandwiches, although I do like that. Yesterday, the Supreme Court published its decision in Mayo v. Prometheus. Within hours, bloggers began to publish scathing criticisms of the reasoning, mostly accusing the court of conflating 35 USC 101 (patentable subject matter) with 35 USC 102 and 103 (novelty and non-obviousness). While there is plenty of language in the opinion that supports that accusation, there is another way to interpret the opinion.

My take-away from this opinion is that there is a distinction between the subject matter of the claim and what the inventor invented. The Court prefers to apply section 101 analyses to the later which requires a process of identifying the inventor’s actual contribution to human knowledge. The procedure used here was to distill the “inventive concept” from the claim language by removing “insignificant” claim limitations.

The criticism about conflating sections 102 and 103 into the 101 analysis comes mostly from the language the court uses for concluding that the administering and measuring steps are insignificant. These steps are repeatedly described as “well-understood, routine, conventional activity, previously engaged in by those in the field.” Admittedly, this language does hint at a novelty issue. However, I see this language as setting a very different standard for “significance” than the standard section 102 sets for novelty. For example, something that was published in an obscure magazine read mostly by people from a different field would fail to satisfy section 102, but could not be described as routine, conventional activity in the field. To be “insignificant,” the step must be so common that the inventor could not credibly believe himself to be the originator.
Continue reading →

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