Intellectual Property Protection

I’ve been appointed to the IEEE-USA Intellectual Property Committee (IPC) as the SSIT liaison. IEEE-USA is a U.S. specific portion of IEEE with a focus that includes legislative and legal issues — which of course tend to be jurisdiction/ nation-state specific. The IPC focuses on Intellectual Property (IP) issues and includes a number of patent lawyers and others who have expertise in this area. While “IP” includes copyright, trademarks, and even trade secret considerations, currently patents hold the focus for the group. The U.S. is considering revisions of its patent laws in the short term.

Rep Goodlatte HR3309 bill (approved by House, Senate approval is unlikely I’m told), S2049 put forward by Senators McCaskill & Rockefeller, and Senator Lehey’s S1720 bill are all topics of discussion within the group. (Specific US Congressional proposals can be found at the U.S. Library of Congress “Thomas” web site: http://thomas.loc.gov/home/thomas.php — entering HR3309 or S1720 will lead you to those specific bills and also related bills.)

Concerns related to HR3309 were raised in a letter signed by a 2000+ of patent holders expressing concern that it might reduce innovation and protection for individual inventors. A (long) paper by Mark Lemley,  “The Myth of the Solo Inventor” (which does not disparage the existence of individual inventors, but does challenge some of our assumptions about the theory of patents) is broader discussion of some of the issues in the IP world. Finally there is an analysis of “patent troll” activity at: https://www.deltasight.com/infographic-the-npe-minefield-patent-trolls/ that provides fuel for the discussion on “transparency”– who is actually behind a given patent — either at the time of filing, or after some transfers of ownership and the time of enforcement actions.

All in all there are lots of difficult issues here.
Clearly there are companies who are acquiring patents and resources to enforce or at least threaten action related to these. Such actions may be totally “on target” (reflecting true violations that would be upheld in court) or may be “sufficiently threatening” (to force a company to license/ pay-up) rather than face the expense of defending their action in court (even if they are likely to win.) Who pays the legal expenses is a consideration here as is the simple question of can you afford to defend/ pursue your position? A recent discussion with an independent New Hampshire inventor surfaced the observation that ‘it isn’t worth filing a patent if you don’t have resources to enforce it.”

There are tensions between corporations that hold patents, vs individuals with patentable ideas (employees, or independent.) There are inventions whose “time has come”, resulting in multiple related filings (the Telephone patent by Bell is the classic example, it was closely related to a filing by Elisha Grey.) Is a given “innovation” sufficiently different to justify a patent? What is patentable? — consider software, or the color and shape of a pill (a “design patent”), a process, or a human gene (recently rejected by the US Supreme court.)

In any case, being part of the IPC discussions will be informative, and I hope the group can be influential for the benefit of professionals and the public. I will try to provide feedback though the SSIT newsletter and occasionally the Blog, to keep folks informed.  And, as always, encourage your comments and perspective.

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