Maryland Intellectual Property Law Blog : Maryland Intellectual Property Lawyer & Attorney : Brian Wm. Higgins : Serving Baltimore, Columbia, Frederick

          Patent Office data show that the number of individuals in Maryland receiving at least one patent in 2010 that was not assigned to a company was at an eight year high. Overall innovation in Maryland, however, has declined, when measured by the number of U.S. patents and patent applications issued to Maryland inventors. On a per capita basis, the numbers look even worse, as patents issued per Maryland resident declined about 3% when comparing 2011 numbers to 2010 levels.  Moreover, Maryland ranks a lowly 37th when it comes to commercializing research and development, despite being at the top in terms of research and development spending per capita.

          Aiming to reverse those numbers and spur innovation among Maryland researchers, and also facilitate commercialization of inventions made by the state's research universities, Gov. Martin O'Malley and nine Maryland lawmakers recently introduced legislation to create a Maryland Innovation Initiative. Introduced January 20, 2012, as Senate Bill 239, the measure would, among other things, provide funding to help participants in the Initiative assess intellectual property issues.

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Senate Calendars Patent Reform Debate for February 28, 2011

       Today the U.S. Senate indicated that upon the conclusion of Morning Business on Monday, February 28, 2011, it will proceed to consider S. 23, the Patent Reform Act of 2011.  S.23 was reported out of the Judiciary Committee on February 3, 2011, with few changes from the version introduced on the Senate floor by Sen. Patrick Leahy (D-VT).

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    Patent reform is once again on the Senate Judiciary Committee's legislative agenda.  S.23--the Patent Reform Act of 2011--was introduced on the Senate floor by Committee Chairman Patrick Leahy (D-VT) on January 25, 2011.  The bill, which resembles previous reforms, is co-sponsored by eight: three Republicans, four Democrats, and one Independent.

     In his introductory remarks on the floor, Leahy suggested that failing to pass patent reform this year would allow China to dominate the world in innovation activity.  Quoting a Newsweek study published last year, he said that only "41 percent of Americans believe that the United States is staying ahead of China on innovation. A Thompson Reuters analysis has already predicted that China will outpace the United States in patent filings this year. China, in fact, has a specific plan not just to overtake the United States this year in patent applications, but to more than quadruple its patent filings over the next 5 years." Leahy also called for reforming the patent system to "stimulate the American economy" through innovation.  He quoted Thomas Freidman, who wrote "We might be able to stimulate our way back to stability, but we can only invent our way back to prosperity."

     Senatory Orrin Hatch (R-UT), also speaking on the Senate floor in support of S. 23, noted that patent reform was needed to address the backlog of 700,000 patent applications pending in the Patent Office.  He said that number "reflects the vibrant, innovative spirit that has made America a world-wide leader in science, engineering, and technology, but also represents dynamic economic growth waiting to be unleashed."

     The current version of patent reform looks like previous ones.  A quick summary of the major provisions is shown below:

Sec. 1: Short Title
Sec. 2: First Inventor to File
Sec. 3: Inventor's Oath or Declaration
Sec. 4: Damages
Sec. 5: Post-Grant Review Proceedings
Sec. 6: Patent Trial and Appeal Board
Sec. 7: Preissuance Submissions by Third Parties
Sec. 8: Venue
Sec. 9: Fee Setting Authority
Sec. 10: Supplemental Examination
Sec. 11: Residency of Federal Circuit Judges
Sec. 12: Micro Entity Defined
Sec. 13: Funding Agreements
Sec. 14: Tax Strategies Deemed Within the Prior Art
Sec. 15: Best Mode Requirement
Sec. 16: Technical Amendments
Sec. 17: Effective Date; Rule of Construction

     What will be the fate of S.23?  If history is any indication, the reform measure may go the way of previous legislative attempts and end up scuttled before it gets much traction.  But at least this Congress is starting the process early.  Below is a list of previous Congressional attempts to reform the Patent Act and the fate of each bill.

111th Congress: S. 515 (Patent Reform Act of 2009: Dead)
111th Congress: S. 610 (Patent Reform Act of 2009: Dead)
111th Congress: H.R. 1260 (Patent Reform Act of 2009: Dead)
110th Congress: S. 1145 (Patent Reform Act of 2007: Dead)
110th Congress: S. 3600 (Patent Reform Act of 2008: Dead)
110th Congress: H.R. 1908 (Patent Reform Act of 2007: Passed House)
109th Congress: S. 3818 (Patent Reform Act of 2006: Dead)
 

     As it has in the past, the Biotechnology Industry Organization (BIO) came out in support of S. 23, with BIO President and CEO Jim Greenwood noting the legislation's benefits to bio: "Innovation in biotechnology is based upon the strong and predictable protection of intellectual property provided by our nation’s patent system. Without strong and predictable patent protection, investors would shy away from investing hundreds of millions of dollars, over a decade or more, in high-risk biotechnology companies, and will simply put their money into projects or products that are less risky or offer a more immediate return but are of less value to society."  Other stakeholders, as they have in the past, will undoubtedly step forward for or against the legislation.

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U.S. Patent & Trademark Office (PTO) records show that for the one year period ending December 31, 2010, the agency granted 2,462 patents naming at least one Maryland resident, a 24% increase over the number of patents issued to Maryland inventors in 2009 (1,988), and a 27% increase over 2008 (1,942). Because patents generally take three years to issue after they are filed, the sharp increase in patents issued in 2010 may represent an increase in innovation in 2007.

PTO records show that for the one year period ending December 31, 2010, the PTO published 3,249 patent applications naming at least one Maryland resident, a 2% increase in the number of patent applications published to Maryland inventors in 2009 (3,171) and 2008 (3,187).

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• IP Forum Webinar Announcement: "DELAWARE: Epicenter for U.S. IP Dispute Resolution"
  
       This from a soon-to-be released announcement from my law firm, Blank Rome:  "Join a knowledgeable team from Blank Rome on April 30, 2008 for an in-depth look at the Top 5 Things You Need Know when litigating a patent case in the U.S. District of Delaware Court. Learn why today’s most significant IP matters are being litigated in this jurisdiction from a panel of experts who know how Delaware’s unique rules and procedures work.  J.C. Boggs, Keeto Sabharwal, Steve Caponi, Charles Wolfe, Dale Dubé and Vincent Poppiti will examine several key cases and lead an interactive discussion over the web.  Date: April 30, 2008; time: 1030 to 1200 EDST US."   
  
  
• Rockville, MD-based Nabi Biopharmaceuticals announced on April 3, 2008, that it had settled a patent lawsuit it had filed against Ohio-based Roxane Laboratories over its drug product PhosLo(r). According to a Nabi statement, Nabi had filed the lawsuit on September 27, 2005, under the Hatch-Waxman Act in response to a Paragraph IV Certification letter submitted by Roxane to Nabi concerning Roxane's filing of an Abbreviated New Drug Application (ANDA) with the U.S. Food and Drug Administration to market a generic version of PhosLo GelCaps.  Nabi sold its PhosLo drug product to Fresenius USA Manufacturing, Inc. in 2006. 
  
  
• The Baltimore Business Journal announced Wednesday that Sarah Djamshidi, a University of Maryland business development official, was named Executive Director of the Chesapeake Innovation Center, which is an Annapolis-based incubator that assists startups developing homeland security technologies.
  
  
• Conference announcement: "Copyright Monopoly: Playing the Innovation Game"

     This from the Center for Intellectual Property, University of Maryland University College (UMUC):  "Since 2001, the Center for Intellectual Property (CIP) has provided premier conferences focusing on the intersection of copyright, technological innovation, and higher education. In its Eighth Annual Symposium, the CIP continues its tradition of convening a rich conversation on copyright policy that includes voices from higher education, business and industry, law, policy, government, and nonprofit sectors, and that also spans the spectrum of opinion and perspective."  8th Annual Symposium, May 28-30, 2008, in Metro Washington, D.C.

• Kevin O'Keefe at LEXBLOG provided a State of the AmLaw 200 blogosphere, March 2008, a few weeks ago, in which he noted that over 25% of the AmLaw 200 law firms (53) now have blogs. The Maryland Intellectual Property Law Blog (a "non law firm branded" blog) is counted among the total. According to Kevin's statistics, there were only 39 blogs being published by the AmLaw 200 in August 2007.

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     With so much talk about climate change, it's good to see that Congress, including a few notable Presidential candidates, is pursuing meaningful technology-based legislation that tackles at least some of the complex issues associated with global warming. In January of this year, Senator Joe Lieberman introduced S.280, the Climate Stewardship and Innovation Act of 2007, which was quickly co-sponsored by 11 Senators, including Presidential candidates Hillary Clinton, Barack Obama, and John McCain.  The bill was referred to the Committee on Environment and Public Works, which held a hearing in July.

     Of particular interest is Section 318 of the Act, entitled "Patent Study," which calls for the Director of the Patent and Trademark Office, in consultation with representatives of interested parties in the private sector, to conduct a study to determine the extent to which changes to the United States patent system are necessary to increase the flow of climate change-related technologies. The Study is suppose to address:

(1) the balance between the protection of the inventor and the disclosure of information;

(2) the role of patents in innovation within the covered sectors;

(3) the extent to which patents facilitate increased investments in climate change research and development;

(4) the international deployment of United States developed climate change related technologies on the United States patent system;

(5) ways to leverage databases as innovation tools;

(6) best practices for collaborative standard setting; and

(7) any other issues the Director deems appropriate.

     It's not clear what is meant by "increas[ing] the flow of climate change-related technologies," but the language suggests that one goal of the Study is to find ways to make obtaining patents less of a burden and faster to get, which would, presumably, encourage innovation (or at least not stymie innovation).  To get a sense of the number of climate change-related patents already issued, I did a quick search of the PTO on-line database for patents issued with the term "global warming" and came up with the following trend:

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