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The Kauffman Foundation released an interesting report this month on the entrepreneurial activity in the United States.  Apparently, entrepreneurial activity in 2010 was the highest since 1996.  The link to the report is available here: [Link].  I found the interactive map and chart of entrepreneurial activity by state to be particularly interesting. 

Nevada, Georgia, California, Louisiana, and Colorado were noted as having the highest level of entrepreneurial activity.  Kudos to Mississippi, a perennial cellar dweller in so many other surveys, which had an entrepreneurial ranking near the top of the list.  You can access the chart here to see how your state ranks: [Link].

As far as major metropolitan areas are concerned, Los Angeles, Houston, and Atlanta took home the top three spots for entrepreneurial activity.

The Ninth Circuit continues to set the bar for its sister circuits in regard to the use of technology at oral argument.  The Ninth Circuit now has videos of some oral arguments available on its web site.  The Federal Circuit, while being the nation’s technology court, has not yet achieved that milestone.  Meanwhile, at least one circuit court (Tenth Circuit) requires filing a motion to the court in order to request a recording of an oral argument.

Here is a link to a video of a recent Ninth Circuit oral argument video concerning copyright issues: [Larry Montz v. Pilgrim Films & Television, Inc.].

The Ninth Circuit also has its own YouTube channel: http://www.youtube.com/user/9thcirc

The Senate Judiciary Committee has posted Federal Circuit nominee Jimmie V. Reyna’s answers to the committee’s written questions.  Mr. Reyna’s answers are available here: [Read].  Astonishingly, one of the committee members did finally ask a nominee a question related to intellectual property.

A Senate Judiciary Committee hearing for Federal Circuit nominee Edward DuMont, who was initially nominated on April 14, 2010, has yet to be set.

The Federal Circuit has published the oral argument schedule for April 2011 which includes the case of Association for Molecular Pathology v. United States Patent and Trademark Office.  The schedule reads as follows:

Panel B+:  Monday, April 4, 2011, 10:00 A.M., Courtroom 201

Panel B:  Monday, April 4, 2011, 10:00 A.M., Courtroom 201

When the Federal Circuit splits panels in this way, i.e., “B” and “B+,” it means that the make-up of the judges on the respective panels will be different.  This sometimes highlights a recusal by one of the judges from the “+” case.  But, it can be for other reasons as well. 

What is unique about the Association for Molecular Pathology case is that the ACLU filed a motion for the recusal of Chief Judge Rader back in June 2010. [ACLU Motion].  So, I suspect there will be much interest in whether Chief Judge Rader was on the original panel and did recuse himself.

Other possible reasons why the panel make-up might be different are that:

1) Judge O’Malley might have originally been on the panel but chose to recuse herself because her husband’s firm (Covington and Burling) has filed an amicus brief;

2)  Judge Moore might have originally been on the panel but chose to recuse herself because her husband’s firm (Latham and Watkins) might be involved in some way, such as an amicus brief;

3)  A senior judge opted to hear fewer cases that month and opted out of the additional case; or

4)  The court might be using a five judge panel, as it has recently done in the Rambus appeals.

Time will tell.

The Supreme Court heard oral argument in Board of Trustees of Leland Stanford Junior Univ. v. Roche Molecular Systems, Inc. this past week. 

You can listen to the oral argument here: [Listen].

The Federal Circuit opinion is available here: [Read].

The Supreme Court heard oral argument in Global Tech v. SEB this past week.  You can listen to the oral argument here: [Listen].

The Federal Circuit decision is available here: [Read].

One of the interesting cases that might be appealed to the Federal Circuit soon is Specialty House of Creation, Inc. v. Quapaw Tribe of Oklahoma, 10-CV-371-GKF-TLW (N. D. Okla. Jan. 27, 2011).  The case concerns whether an American Indian tribe can be sued for patent infringement if it has not consented to be sued.  The judge in the Quapaw case ruled in favor of the tribe and its assertion of lack of subject matter jurisdiction.

The district court cited an earlier district court case concerning patent infringement, Home Bingo Network v. Multimedia Games, Inc., 2005 WL 2098056 (N.D.N.Y. Aug. 30, 2005), and a second circuit copyright case  Bassett v. Mashantucket Pequot Tribe, 204 F.3d 343, 357-58 (2nd Cir. 2000). 

Interestingly, the district  court cited  Kiowa Tribe of Okla. v. Manufacturing Tech., Inc., 523 U.S. 751, 754 (1998) for the proposition that “[a]s a matter of federal law, an Indian tribe is subject to suit only where Congress has authorized the suit or the tribe has waived its immunity.”  Id.    The oral argument at the Supreme Court was argued by Federal Circuit nominee Edward DuMont.  You can listen to that oral argument here: [Listen][Read].

Sovereign immunity from patent infringement is an economically powerful asset.  As Indian nations seek to provide good jobs for their tribe members, it will be interesting to see if any attempt is made to rely on this asset and how it might be done. 

You can read the Quapaw decision here: [Read].

The Senate Judiciary Committee conducted the confirmation hearing for Mr. Jimmie V. Reyna this past week. You can watch the video of the hearing below. Mr. Reyna is introduced at about the 30:30 minute mark along with other nominees. The questioning of Mr. Reyna begins at about the 52 minute mark.

Mr. Reyna is a specialist in international trade issues. Given this focus, he was asked specifically whether he would also be able to adjudicate whistle blower cases (the Federal Circuit has jurisdiction over federal whistle blower cases and has heard 219 cases in its history ruling only 3 times in favor of the whistle blower according to Senator Grassley).

Mr. Reyna was not asked any questions about patent law during the hearing.

View Confirmation Hearing

The Honorable Paul Michel, former Chief Judge of the Federal Circuit, testified before the House Subcommittee on Intellectual Property last Friday. You can watch the video of the hearing below. Chief Judge Michel makes his opening statement at about the 34 minute mark of the video with subsequent questioning by the subcommittee members.

For easy reference, he addresses the following issues at the following time marks:

Hiring/Experienced Examiners 44:55
Post Grant 49:15
Post Grant/Reexamination 56:36
First to File 59:34
Fee Diversion/Fairness 1:06:32
Post Grant 1:11:33
Job Creation/Billion Dollar Bolus 1:17:20
Electronics/Software — Biotech Division 1:20:30
First to File 1:26:54
Outsourcing/Hiring 1:41:30
Third Party Submission of Prior Art 1:48:42
Reduction of Funding to 2008 Level/Codifying Legal Decisions 1:51:35

The House Subcommittee on Intellectual Property, Competition, and the Internet will hold a hearing this Friday on  “Crossing the Finish Line on Patent Reform – What Can and Should be Done.”  I was pleased to see that the Honorable Paul Michel, former Chief Judge of the US Court of Appeals for the Federal Circuit will be testifying.  David Simon, the Chief Patent Counsel for Intel, and Carl Horton, the Chief Intellectual Property Counsel for General Electric, will also be testifying. 

The committee hearing is scheduled for 10:30 AM Eastern time/8:30 AM Mountain time.  More information is available at this link: [LINK].

In a recent non-patent case at the Federal Circuit that concerned the interpretation of government agency regulations, Chattler v. U.S., 2010-1066 (Fed. Cir. Jan. 10, 2011),  Judge Dyk had some pointed words for the Department of Justice [Listen].  In the end, however, the majority including Judge Dyk ruled in favor of the United States.

You can read the opinion here: [Read].

You can listen to the entire oral argument here: [Listen].

The PTO’s proposed new rules for Track I Expedited Examination were published in the Federal Register today.  You can view them here: [Link].

Comments are due by March 7, 2011.

Robert Shapiro, the former Under Secretary of Commerce for Economic Affairs, also testified before the House Subcommittee on Intellectual Property last week.  His testimony was quite interesting.  It included some intriguing statistics such as: 

“Over the years 1995-2001, the development of new information technologies accounted for 28 percent of those productivity gains, capital investment in those technologies accounted for another 34 percent, research and development accounted for 10 percent, and changes in the organization of firms and worker training in response to these innovations accounted for another 10 percent. By applying this approach to data for more recent years, other researchers estimate that nearly 90 percent of U.S. economic growth from 2001 to 2003 can be attributed to increases in the stock of intangible assets.”

and

“Finally, research by the McKinsey Global Institute has documented the role of innovation in the value of large corporations. They found that in 1984, the book value of the 150 largest U.S. public companies – what their physical assets could be sold for on the open market – was equal to 75 percent of their market caps: Three-quarters of the value of large American companies was derived from its physical assets. By 2005, the book value of the 150 largest American companies was equal to just 36 percent of their market caps: Nearly two-thirds of their value is now based on their intangible assets, principally the value of the ideas protected by patent and copyrights.”

His written statement is available here: [Link].  If you agree with his conclusions, you might want to pass along some of these statistics to your local Congressperson or business journal editor.

Updated

David Kappos testified before the House Subcommitte on Intellectual Property last week in a hearing entitled “How an Improved U.S. Patent and Trademark Office Can Create Jobs.”  You can watch his testimony here.  The House had to stand in recess during the hearing in order to vote on the House floor.  So, the first video shows the first part of the hearing and the second video shows the second part.  Mr. Kappos’ written statement is available here: [Link].  

At about the 27 minute mark into the second video, Mr. Kappos comments that in a matter of days the PTO is going to publish new rules in the Federal Register for the PTO’s Track I examination program.  That program would guarantee a first office action within 3 months and a decision on patentability/grant within 12 months.  The fee would be $4,000 (with no small entity break, given the PTO’s current limitations on fee setting authority).

If you have difficulty viewing the clips below, you might try this link for the full video: [Link].

Video 1

Video 2

If you are currently dealing with patents that recite “if …then” claim limitations, you might find the oral argument in Sutton v. Nokia, 2010-1218 (Fed. Cir. Dec. 15, 2010) to be of interest.  The Federal Circuit only issued a Rule 36 opinion in the case; so, for background, the district court opinion in Sutton v. Nokia, 647 F.Supp.2d 737 (E.D. Texas 2009) is available here [Link].

 The claim language discussed in the oral argument is shown below.  Most of the oral argument focuses on whether the claim can logically satisfy both steps (1) and (2) or whether the claim fails for impossibility: 

(1) if the received packet has a predetermined header and the receiver is configured to receive unmodified messages, then processing the packet as a modified packet according to steps (2) to (8), otherwise sending the packet to a user’s application as an unmodified paging message,

(2) if the receiver is configured to receive only data information messages processing the packet according to steps (3) to (8),

(3) treating the packet as 7 bit characters and reconstituting any characters indicated by a predetermined flag,

(4) packing the 7 bit characters into 8 bit characters,

(5) checking a frame byte for type of packet and compression,

(6) decompressing the packet to data,

(7) validating the subchannel and if valid releasing security passing the data to an end user application, and

(8) if the message is a control message parsing and processing the control message.

Arguing contingent claim limitations requires a flair for formal logic, such as this statement by the patent owner’s counsel [Listen]:

That’s denying the antecedent fallacy, where you read into the contingent step that if the contingent is false then the negative of the consequent must be true.  You’re basically saying if the receiver is not configured as in step 2 then don’t do step (3) to (8).  And, that’s the logical fallacy that we pointed out in our briefing . . . . 

Another case mentioned during the oral argument is Cybersettle v. National Arbitration Forum, 2007-1092 (Fed. Cir. July 24, 2007).  That opinion is availble here for reference: [Link].  That non-precedential case makes the following statement about “if . . . then” claims without citation of any precedent:

It is of course true that method steps may be contingent. If the condition for performing a contingent step is not satisfied, the performance recited by the step need not be carried out in order for the claimed method to be performed.

Id. at page 7 of slip opinion.

You can listen to the entire oral argument in Sutton v. Nokia here: [Listen].

You can read the court’s opinion in Sutton v. Nokia here: [Read].