OPENING
STATEMENTS
“Gold-Plated” Patent Finds Few Takers
Obama’s supporters float the idea of a premium quality patent.
—By Theodora Blanchfield
IP issues are hardly at the center
of the presidential campaign, but
they have at least gotten an airing.
At the tail end of the Democratic
National Convention, surrogates
from McCain’s campaign ventured
into enemy territory—the hotel where
Obama was staying, no less—to debate
IP policy. Batting for McCain was
Edward Reines, a partner at Weil, Got-shal & Manges and Ray Gifford, a partner at Denver-based Kamlet, Shepherd
& Reichert. Up for Obama were two
law professors: Arti Rai of Duke University and Christopher Sprigman of
the University of Virginia.
One of the more controversial proposals was an idea for a “gold-plated
patent,” put forward by the Obama
camp. It was initially proposed by
Mark Lemley, a Stanford law professor; Douglas Lichtman, a UCLA law
professor (and former colleague of
Obama at the University of Chicago);
and Bhaven Sampat, an economics
professor at Columbia, in an article
published in the libertarian Cato Insti-
tute’s Regulation. Such a patent would
be subject to more rigorous examination by the PTO and have a “stronger
presumption of validity,” according to
Lemley. “The benefit,” he says, “is that
the applications will get more scrutiny,
and the public will get more information about which patents may be
important.” Lemley says he expects
the golden patents also would be less
likely to be challenged in court.
But detractors see the idea as a gimmick. Steve Cherny, a patent attorney
with Kirkland & Ellis, says, “If it’s going
to cost more to get a gold-plated patent, it would make it hard for the individual inventor.” Also, he adds, how to
know which ideas are worth premium
treatment? “I’d hate to be a patent
prosecutor that chose the other one
and find out five years later that [the
patent] is worth something,” Cherny
says. Russ Krajec, a Denver patent
attorney, says that he doesn’t see why
any lawyers would advise their clients
to get the lower protection, leaving
matters much as before.
God Save the Queen—and Foreign Billings
This year, once again, Her Britannic and trademark attorneys.
Majesty announced the winners Keltie drew royal attention by
of the Queen’s Award for Enterprise more than doubling its overseas
in international trade, business from 2004 to
which bills itself as “the 2007, mostly by cultivating
most prestigious corporate contacts among foreign
accolade that a UK business law firms. Business from
can win.” It comes with the abroad now accounts for
kind of hoopla the Brit- nearly 70 percent of firm
ish do so well, including a revenue. Partner Sean
reception with the Queen Cummings says overseas
at Buckingham Palace. business has a helpful
The victors included tech- countercyclical benefit.
nology companies, food If the UK economy is in a
exporters—and also Keltie, Keltie partner Sean slowdown, foreign busi-a ten-year-old, seven-part- Cummings ness can fill the gap.
ner London firm of patent —Philippa Maister
A Dangerous
Hobby?
Not long ago, the biggest threat to
an IP blogger was sarcasm. But as the
medium has gained respect and influence, the stakes
have become
higher.
Consider Texas-based IP lawyer
Eric Albritton’s
libel suit against
Richard Frenkel
for writing on his
now-defunct Pat-
Dennis Crouch
ent Troll Tracker
blog that Albritton
had conspired with a court clerk to alter
court documents. Frenkel, now of counsel at Wilson Sonsini Goodrich & Rosati,
wrote the post anonymously when he
was an IP lawyer at Cisco Systems, Inc.
Both the Troll Tracker posting and
the libel suit set tongues wagging on
Patently-O, the popular blog of Dennis Crouch, an associate professor of
law at the University of Missouri. In
August, Crouch received a subpoena
from Albritton, requesting “all documents” pertaining to Albritton and his
libel action, including posts and reader
comments. That would mean revealing
the identities of anonymous posters and
e-mail correspondents. Crouch has indicated that he is ready to file a motion
to quash the subpoena if necessary.
Other IP bloggers are also facing
more pressure. For example, Gary Odom
of the Patent Hawk blog has received
more than one threat of libel action,
even though no one ultimately filed
suit. Shamnad Basheer, an Indian lawyer
who founded the SpicyIP blog, says that
his family has been threatened because
of his coverage of a drug industry suit.
In the U.S., dozens of states have shield
laws that let reporters protect confidential sources. But Fox Rothschild media
lawyer Robert Clothier says that state
laws are not uniform in how they view
bloggers. —Erik Sherman
