NanoPundit -Where Society, Science and the Law get really, really small.

Miller & Barns a Fortune Go-To Firm

2009-02-13T10:08:00.003-05:00

Some self promotional news.

My firm, Miller & Barns, was just named as a "Go-To" law firm by in Fortune Magazine's "The Go- To Law Firms of the World's Leasing Companies."

Yeah, us. I'll provide a link when the 500 issue of Fortune magazine is published.

Never Ask a Luddite to Fix Something

2008-10-14T15:29:00.004-05:00

Professor Reynolds points to this and asks “IS THE PATENT SYSTEM stifling nanotechnology?”

Follow the link and you will find that the article is sourced from the ETC Group. My long time readers (heh) may remember that I consider the ETC Group Luddites and an anti-science group. ETC is known for such howlers as calling for a “mandatory moratorium on synthetic nanomaterials" Looking to the ETC Group for direction on nanotechnology is like looking to the American Communist Party for direction on free market economics.

Professor Reynolds is a libertarian scholar and knows the value of the market. In order to fund research and development one must obtain funding and that funding is based upon the ability to protect the R&D investment. The ETC Group and the “Innovation Partnership” have started an all from war on bio and nanotechnology. This is their strike against the value of the technology.

The patent system has a bunch of problems; the patent offices of the world are slow and have historically had trouble with new technology. The plastics industry and the electronics industry faced these challenges during their early phases; those seem to have been worked out to everyone’s benefit. The U.S. Patent system is the goose that continues to lay golden eggs why should we listen to Luddites to find solutions.

Some of my proposed solutions for fixing the patent system are here. Unfortunately, I came up with these without funding from “governments, industry and NGOs” that help ETC Group and the “Innovation Partnership.” The top three are:

First, identify new technologies early on and develop the infrastructure to rigorously examine patent applications in those areas.

Second, establish meaningful inter partes opposition in the Patent Office that allows the party challenging validity to be fully heard and does not precluding further argument in district court.

Third, establish a unique district court with jurisdiction over patent cases.

Nanotechnology and My Knees

2008-07-14T08:51:00.003-05:00

Cartilage has a pesky habit of not regenerating. Once it is gone, it is gone. Once it starts to go, the rate of degeneration only increases.

So a hearty well done to Thomas Webster at Brown University for his breakthrough on regrowing cartilage. Enhanced chondrocyte densities on carbon nanotube composites: The combined role of nanosurface roughness and electrical stimulation.

A conductive film of highly dispersed carbon nanotubes (CNT) in polycarbonate urethane (PCU) were injected into the knee and then electrically stimulated to increase the growth of chondrocytes (cartilage cells). The CNT/PCU film has improved electrical conductivity to allow low voltage stimulation and the nanoscale roughness provides a hydrophilic surface that improves adhesion of the cartilage cells to the surface.

So Dr. Webster, thanks. And when you are ready to start testing on humans give me a call.

Ohio Entrepreneurial Signature Programs

2008-04-14T10:21:00.003-05:00

If you are a budding nano-entrepreneur in the State of Ohio, I strongly suggest contacting one of the Ohio Third Frontier Entrepreneurial Signature Programs (ESP). The ESP's can provide business counseling and are a source of funds for Ohio companies and entrepreneurs.

The state is divided into regions and each region has different technical specialties based on existing institutions. Contact your local region and if your technology isn’t a specialty, they can direct you to the best region for you.

Northeast
The Northeast Ohio Technology Coalition (NorTech) serving Ashland, Ashtabula, Carroll, Crawford, Columbiana, Cuyahoga, Erie, Geauga, Holmes, Huron, Lake, Lorain, Mahoning, Medina, Portage, Richland, Stark, Summit, Trumbull, Tuscarawas, and Wayne counties.

Northwest
Regional Growth Partnership (RGP) serving Allen, Auglaize, Defiance, Fulton, Hancock, Hardin, Henry, Lucas, Mercer, Ottawa, Paulding, Putnam, Sandusky, Seneca, Van Wert, Williams, Wood and Wyandot counties.

Central
TechColumbus serving Delaware, Fairfield, Fayette, Franklin, Hocking, Knox, Licking, Logan, Madison, Marion, Morrow, Perry, Pickaway, Ross and Union counties.

West Central
Dayton Development Coalition serving Champaign, Clarke, Darke, Greene, Miami, Montgomery, Preble and Shelby counties.

Southwest
Cincinnati USA Regional Chamber serving Butler, Brown, Clermont, Clinton, Hamilton, Highland and Warren counties.

Southeast
Ohio University - Voinovich Center serving Adams, Athens, Belmont, Coshocton, Gallia, Guernsey, Harrison, Jackson, Jefferson, Lawrence, Meigs, Monroe, Muskingham, Noble, Pike, Scioto, Vinton, and Washington counties.

Reporting from the 2008 Ohio Nanotechnology Summit.

2008-04-14T10:19:00.000-05:00

The 2008 Ohio Nanotechnology Summit ran from April 9th to 11th at Great Wolf lodge in Mason Ohio. The striking change between 2008 and 2005 is how far Ohio has come, with the Third Frontier project and the growth of the Ohio Department of Development.

Not only is Ohio’s investment improving but so is the quality of the Nanotechnology Summit. In 2005 the Summit was more of a meet and greet for graduate students presenting posters. in 2008 the Summit has grown up with general managers, business unit presidents and leaders of major technology institutions presenting.

Look for several posting over the next few days.

OHIO NANOTECHNOLOGY SUMMIT

2008-04-03T13:10:00.004-05:00

The 2008 Ohio Nanotechnology summit will be held on April 8th through 11th at Great Wolf Lodge in Mason, Ohio. Bring your swim suit and remember that swimsuits are one area where bigger is better.

Topics Include:

Experimental Methods and Modeling
Entrepreneurial Signature Program from the Ohio Department of Development and Pre-Seed Funds
Technology Transfer
Intellectual Property
An Emerging Technology Forum
Sensor Technology
Nano-Biotechnology

The speakers will include:

Mike Roco -- National Science Foundation

Elliott Liggett -- Lockheed Martin

John Chang -- GrafTech

Asis Banerjie -- Ovation Polymers

Wayne Earley -- PolymerOhio

Dr. Linda Horton -- Oak Ridge National LaboratoryDirector, Center for Nanophase Materials Sciences

Lance Criscuolo -- General Manager Zyvex Performance Materials
David Burton -- General Manager Pyrograf Products

Dr. Sharmila M. Mukhopadhyay -- Director, Center for Nanoscale Multifunctional Materials Wright State University

Carlos Gonzales --Deputy Division Chief, Physical and Chemical Properties Division

George Schatz -- Proffessor Northwestern University

Dr. Melanie Tomczak -- UES Inc.

Dr. Wolf Spendel -- Industry Liaison Miami University, Center for Nanotechnology

US Technological Dominance Threatened

2008-01-16T14:43:00.000-05:00

Professor Reynolds links to Global Advances Challenge U.S. Dominance in Science and quotes:

The United States remains the world leader in scientific and technological innovation, but its dominance is threatened by economic development elsewhere, particularly in Asia, the National Science Board said Tuesday in its biennial report on science and engineering.

The comment "The United States remains the world leader in scientific and technological innovation, but its dominance is threatened by economic development elsewhere, particularly in Asia" strikes me about the same as rich folks complaining that the middle and lower classes are catching up. The United States has been dominant in Science and Engineering since World War II. In the post-war period, Japan and West Germany started to close the gap. If you go back 20 years, to when I was an undergraduate, we saw the beginning of an influx of (mostly Chinese) foreign students. More recently, South Asians and Africans have come to the US for an education. This is far from a problem, the way I figure, the world is better off with more scientists and engineers.

A problem that I have never seen addressed in the media is that of newly minted PhDs wanting to stay in the US but forced out by immigration law. Years ago, I interviewed Masters and PhD students for R&D jobs for a Fortune 500 company. Many of the Chinese, South Asian and African students wanted to stay in the US permanently but had to return home when their student visas expired.

When Bad Thermodynamics Happens to Good People

2007-05-29T10:09:00.000-05:00

Instapundit links to another Perpetual Motion Machine hoax. The nano link here is tenuous so try to follow along. It seems someone was trying to cure cancer with nanotechnology, pie pans and household current and discovered that he could separate hydrogen from oxygen using a radio frequency field. He was experimenting on RF heating of cancerous tissue augmented by “Tiny bits of certain metal . . . injected into a cancer patient.”

As a byproduct of his experimentation, he discovered electrolysis of water. The cancer treatment is not an original idea and “water into fuel” is thermodynamic illiteracy. In fact, without thinking too hard, I would guess that adding the nanoparticles reduces the efficiency of the process because energy is used to heat the nanoparticles rather than disassociate the hydrogen from the oxygen. Bucket brigades at hydroelectric dams is a better idea for producing ‘free’ energy.

I’m a big fan of InstaPundit, as you can tell by my blog name, but man-oh-man does he need a basic understanding of thermodynamics. Using a bunch of energy to separate H from O and then recombining the H’s and O’s back into water and a little bit of energy isn’t going to run anything anywhere. In fact, this is so basic that it didn’t even make the cut for one of those Encyclopedia Brown books.

And for the double bonus irony he takes a shot at creationists in an adjacent post. I can disprove “Water into Fuel” in a lab without any problem. Disproving creationism is a little tougher.

Miller & Barns Website

2005-12-15T07:55:00.000-05:00

As a few of you know I am an attorney with Miller & Barns, a patent law firm specializing in nanotechnology, materials, chemistry and biochemistry.

Our new website is up at www.millerbarns.com and www.millerbarnes.com. Drop by and check it out.

Miller & Barns PLLC is a full service intellectual propery law firm. Miller & Barns specializes in chemicals, materials, biotechnology, pharmaceuticals, nanotechnology, and medical devices. We provide clients with assistance in preparation and prosecution of patent applications, portfolio management, clearance, validity and non-infringement opinions, licensing, foreign and domestic trademark prosecution, design around assistance and international patent litigation management. Our partners have a combination of inhouse and big firm experience that allows us to provide levels of service that are typically available only to large corporation with dedicated inhouse intellectual property counsel.

The First Nanotechie Anton van Leeuwenhoek

2005-12-15T07:53:00.000-05:00

I thought this was cool so I cut and pasted from http://www.foresight.org/nanodot/?p=2118

Looking through his handmade microscope in 1702, it was Anton van Leeuwenhoek who first described the workings of a nano machine. He observed the rapid contraction of a stalk tethering the cell body of a tiny protozoan, Vorticella convallaria, to the surface of a leaf. Little did van Leeuwenhoek imagine that more than 300 years later, the biological spring that drives Vorticella would set records for speed and power in the nano world of cellular engines. It might also power future generations of nano devices and materials, according to biological engineer Danielle Cook France and colleagues at MIT, the Whitehead Institute, the Marine Biological Laboratory, and the University of Illinois, Chicago. France presented her findings Sunday at the 45th Annual Meeting of the American Society for Cell Biology in San Francisco.

"The spring in the unicellular Vorticella is a contractile fiber bundle, called the spasmoneme, which runs the length of the stalk. At rest, the stalk is elongated like a stretched telephone cord. When it contracts, the spasmoneme winds back in a flash, forming a tight coil. To find out how fast and how hard Vorticella recoils, France and colleagues used modern microscopes and tools to measure the force and speed of the spring. This is one powerful engine, France reports. The spasmoneme's contraction is measured in nano-newtons of force and centimeters/second of speed in a biological world where the ruler markings are usually in tiny pico-newtons and micrometers/second. Gram for gram, the power of the spasmoneme engine outperforms human muscles and car engines. (Credit: Betterhumans)

NanoCarnival Year End Round Up

2005-11-29T09:52:00.000-05:00

In a blatant bid for traffic and another link on Instapundit, NanoPundit announces the first annual NanoCarnival Year End Round Up. Send links to your favorite, funniest or most important nano-story of the year. There will be a special category for major media stories that demonstrate scientific ignorance. Send a link to your entry to swbarns(at)millerbarns(d*t)com.

IEEE Nano Coming to OHIO

2005-11-18T11:04:00.000-05:00

IEEE-Nano2006 will be in Cincinnati, Ohio on July 16-20, 2006.

The deadline for abstracts if February 28th.

See you there.

Nobel Prize Winner and Homecoming Queen Richard Smalley Dead at Age 62

2005-11-16T11:28:00.000-05:00

If I have seen further . . . it is by standing upon the shoulders of giants.
--Sir Isaac Newton

Rice University Professor Richard Smalley is dead after a bout with cancer. Dr. Smalley, with Robert Curl and Sir Harold Kroto, won the Nobel Prize in 1996 for their work in discovering the class of chemicals known as fullerenes (C60).

I saw Dr. Smalley speak earlier this year and he seemed in perfect health. As a speaker he was as earnest as he was entertaining. As a scientist he was without peer and will be missed. The fact that he was elected Rice homecoming queen in 1996 also shows that he was probably a pretty good guy.

More on Drug Costs

2005-07-11T10:57:00.000-05:00

The problem of high cost drugs in the US will not be solved by FDA approval or tort reform. The problem is that the drugs are astronomically expensive to develop and the U.S. carries the development costs for the rest of the world.

Typically it costs over a billion dollars to produce the first pill sold; subsequent pills may be produced for pennies. The billion dollar cost is spread out over every pill that is sold during the life of the patent on the drug compound. You get what you pay for and if there is no profit for the pharmaceutical company their investors will find better uses for their money.

The Canadian Government limits its drug costs by buying in bulk with the threat of a (low cost) mandatory license of patents that protect the pharmaceutical company’s intellectual property rights if the price is too high. The reason a generic drug is cheaper than a branded drug is because the generics do not invest billions of dollars in research and development. Intellectual property rights (the patent system) were developed to protect and encourage R&D Investments, and benefit each of us.

The Canadian Drug Distribution system is not a free market system. It receives cut rate prices by threat of government action. When this happens in the U.S. we call it a 'taking' when it happens in China we call it piracy.

If the people of the United States want to have new drugs available for the cure of everything from viral infections and leukemia to impotence we need to realize that we will pay the development costs. Immense developments are on the horizon and now is not the time to hobble the U.S. pharmaceutical industry.

China is in the process of developing a legal system which respects the intellectual property rights of foreign nationals. Why is it unreasonable to expect Canada and Western Europe to do the same?

Why US Drugs are so Expensive

2005-07-11T09:19:00.000-05:00

The Chicago Tribune reports Brazil just transferred their drug costs to U.S. Citizens. And no, this has nothing to do with nanotechnology. In an action that has been watched by patent geeks for some time Brazil just shook down Abbott Laboratories for lower prices on Kaletra (Generic lopinavir) a protease inhibitor useful in fighting HIV, the virus that causes aids. Kaletra works for those with HIV that is resistant to other protease inhibitors and doesn’t require a complicated cocktail of anti-HIV drugs.

In the U.S. Kaletra costs about $7,000 per patient prior to this agreement Brazilians paid $2,562 a year for the same treatment. Brazil’s government has just strong armed into a lower price (Abbott isn’t saying what the new price is).

Abbott Laboratories’ Heather Mason, Vice President, Specialty Operations Pharmaceutical Products for Abbott Laboratories recognizes that prices have to cover " “It’s allowing us to make investments in future innovations — novel therapies, drugs with less side effects — and to bring those to market so patients have access to more and better medicine.” This quote is out of context and referred to an increase in the price of Norvir another protease inhibitor, but I am pretty sure she would say the same thing about the pricing of Kaletra.

Perhaps Ms. Mason should have added, “We had to raise prices to subsidize citizens of Brazil who refuse to pay their fare share for the development of life saving therapies.

Hing Sham, Ph.D. is one of the coinventors of Kaletra and a pretty smart guy. He could probably work on any project he wants to. I would guess that he works for Abbott because he has interesting projects and makes a pretty decent living. Abbott can pay Dr. Hing because they sell the drugs he invents.

Brazil doesn’t care if he quits and goes to work at the car wash. I care because I want him to invent the next life saving drug. Andrew Sullivan cares because he needs the next lifesaving drug:

It has been imprinted on an entire generation that Big Pharma is the source of all evil. But the only reason I'm writing this blog at all is because of Big Pharma. They're not angels in America. They're capitalists. But the profit motive has been the most progressive force in pioneering specific medical breakthroughs that we have yet found.

Brazil is as Mr. Sullivan says “pursuing policies that will consign many people with HIV to earlier deaths.”

Brazil is not a third world backwater, it has GDP of about $1.5 trillion (2004 estimate) and a per capital GDP of $8,100. Abbott already is subsidizing the cost of Kaletra in Africa. The Republic of Congo has a GDP of $2.3 billion and a per capita GDP of $800. The Congo also has an AIDS rate of about 5% (more than five times Brazil’s 0.7%). Brazil should be able to buy AIDS drugs without forcing the cost onto US citizens and without reducing Abbott’s ability to help those truly in need.

In Memoriam

2005-06-22T10:57:00.000-05:00

Howard Lovy’s Nanobot has gone off the air. It’s a loss for the nanocommunity. I hope he finds what he is looking for. Howard thanks for the effort and the inspiration.

Not Enough Ridicule

2005-06-22T10:41:00.000-05:00

USATODAY weighs in with an opinion piece by Kevin Maney “Scared of nano-pants? Hey, you may be onto something.” The hook is people getting naked in an Eddie Bower store to protest self-replicating nano clothing. I do believe this is a nano nutjob threefer: 1)nanoclothing, 2) naked protesters 3) self replication.

Wow where to begin: 1) the nanoclothing they are protesting is probably not made with nano-anything (its just Teflon); 2) NanoPundit rule number 1 is always ignore naked protesters; 3) “They've heard stories that it could self-replicate until it covers the Earth like a virulent kudzu” Self replicating pants? Are this people nuts?

Maney then goes on to contrast technologies that difficulty being accepted, natural gas, and those that were immediately accepted, dichloro-diphenyl-trichloroethane (DDT). Here is the gem, “In the 1940s, people labeled DDT the wonder pesticide. By the 1960s, Rachel Carlson published Silent Spring, alleging that DDT caused cancer and other environmental problems. The stuff was banned in the USA in 1973.”

**No mention that DDT saved millions of lives during the years of its widespread use.**

Now I’m not saying that nanotechnology is going to save millions of lives. But, it will almost certainly save some. Folks getting undressed in shopping malls are not what I would call rational actors and shouldn’t be steering an important debate on the costs and benefits of important new technologies. They should be ridiculed rather than treated as cute.

Foresight teams up with Battelle

2005-06-22T10:00:00.000-05:00

Foresight and Battelle team up with $250K from The Waitt Family Foundation to develop a “Technology Roadmap for Productive Nanosystems.” They have put together one heck of a team:

Ted Waitt, Chairman of Avalon Capital Group and The Waitt Family Foundation; Alex Kawczak, Vice President, Battelle; Dr. Charles M. Lieber, Professor, Department of Chemistry and Chemical Biology, Division of Engineering and Applied Sciences, Harvard University; Dr. William A. Haseltine, President, William A. Haseltine Foundation for Medical Sciences and the Arts; Dr. Mauro Ferrari, Professor of Biomedical Engineering and Internal Medicine, The Ohio State University; Dr. Paul Alivisatos, Chancellor's Professor of Chemistry and Materials Science, University of California, Berkeley, and Director, Materials Sciences Division, Lawrence Berkeley National Laboratory; Dr. J. Fraser Stoddart, Fred Kavli Chair in NanoSystems Sciences, University of California, Los Angeles, and Director, California NanoSystems Institute; Dr. John Randall, Chief Technology Officer, Zyvex; Dr. Jim Roberto, Chief Research Officer and Deputy Laboratory Director, Oak Ridge National Laboratory; Dr. Robert Hwang, Director, Center for Functional Nanomaterials, Brookhaven National Laboratory; and Steve Jurvetson, Managing Director, Draper Fisher Jurvetson.

If they need a NanoPundit (probably not necessary) or a patent lawyer (probably necessary) I am willing to volunteer.

The New Phone Book is Here*

2005-06-22T09:54:00.000-05:00

Just found out that Foresight has me listed on its resources page. I am so pleased. Lots of good links over at http://www.foresight.org/cms/resources/54

* By the way this is a reference to Steve Martin’s “The Jerk” he ad arrived because his name was listed in the new phone book. Of course that’s how the psycho picked him at random.

Monopoly Factory?

2005-06-05T21:54:00.000-05:00

INSTAPUNDIT is all atwitter about reforming the patent office with links to KAUS who links to The Washington Monthly article by Zachary Roth’s article “The Monopoly Factory.”

Most patent folks can quote Abraham Lincoln "The patent system added the fuel of interest to the fire of genius." Fewer can quote old Abe’s “That some should be rich, shows that others may become rich, and, hence, is just encouragement to industry and enterprise.” Kaus states “unjustified patent proliferation forces researchers and innovators to either challenge the patents in court or abandon their work.” Yes, but so does justified patent proliferation. The trick is to fuel the fires of genius and make legitimate inventors rich without flooding the system with improperly granted patents.

Faulty Patents?
I agree with Roth when he recognizes that there are costs to issuing faulty patents:

No one knows how many mistaken patents the office issues each year. But the results of one patent office experiment suggest that, in some areas, as many as half of those issued may be faulty. Faulty patents may be doing immense damage to the economy. They not only allow patent-holding firms to gouge consumers with exorbitant prices, but they also inhibit innovation and research, put a drag on economic growth, and may even create an investment bubble.

However, it is simplistic to say that “raise the bar” and that will solve all issues. What everyone fails to recognize is that there are costs with raising the bar on the standards of patentability, new, useful and non-obvious. Raising the bar will increase costs and diminish the reward. Small time inventors and even fortune 500 companies are limited in what they can spend on patent expenses.

A few days ago INSTAPUNDIT posted Robert A. Heinlein comment “Advances which permit this norm to be exceeded- here and there, now and then- are the work of an extremely small minority. . . Whenever this tiny minority is kept from creating, or (as sometimes happens) is driven out of a society, the people then slip back into abject poverty. This is known as ‘bad luck.’ ” Inventors fall into this tiny minority and if they fail to see the benefits they move on to other endeavors and it is indeed our ‘bad luck.’

Smart inventors treat patents as assets and perform a cost benefit analysis before filing. Considerations include: what are the chances of obtaining a patent, how broad a technology will the patent cover, what will competitors learn that they can implement without infringing the patent, what was the cost of developing the technology. Patent office costs are a very small part of this equation. The probability of obtaining a patent is a very large factor, make it more difficult and fewer technologies will be revealed to the public in patent filings.

New Technology
Roth discusses the patent offices problems with business methods and biotechnology patents.

[T]he office created a new set of rules for reviewing “business method” patents—a relatively new category of patentable material, covering non-technical innovations, such as Amazon.com's “one-click” ordering system (the patent protects the idea, not the technology necessary to carry it out). The complexities of these patents were causing problems for many examiners, so the office instituted a “second-set-of-eyes” system, which simply required an additional examiner to review each application. Under the new system, the allowance rate for business method patents was quickly halved. That suggests patents in other complex fields, such as bio-technology, given without a “second set of eyes,” may have similarly higher error rates.

I think he misses a big issue. Problems arise more because business methods and biotechnology were new technologies and the patent office had no frame of reference for examining these technologies. The patent examiner looks at collections of prior art, mainly in the form of previously issued patents, to determine patentabilty. When a new technology hits the office, there is no collection of prior art to use to reject patent applications on the new technology. I expect that this is happening in the nanotechnology area now.
As a new technology develops it is initially classified with the closest existing technology, I think that biotechnology was initially examined by examiners who specialized in organic chemistry. As more applications and prior art are received examiners specialize in the new technology and a digest is created for the prior art. The Patent Office has just created a single digest for nanotechnology, look here for more. Within a few years of a new technology’s introduction the Patent Office is up to speed with well trained examiners and useful systems for determining patentability.

Roth discusses George Selden’s 1879 patent application on a rudimentary car powered by an internal combustion engine. This was a new technology at the time and the patent system did not have the infrastructure in place to rigorously examine Selden’s patent. The Patent Office currently has a number of examiners that specializes in automobiles and all of its components. These folks really know their stuff and have an amazing ability to find relevant prior art. When I was a young examiner I asked my primary examiner if he had seen a specific optical waveguide configuration. He had; he knew what drawer the reference was in; and he knew about how far down in the drawer the reference could be found.

Patsy, Who You Callin’ a Patsy?
Roth call the Office “not something to be feared but a patsy.” I work with examiners all the time and few of them could be called patsies. Roth supposes that the examiners as driven by ‘counts.’

While the weight of the workload gives examiners a passive incentive to rubber-stamp patents, the office's worker evaluation system gives them an active one. The size of an examiner's bonus is determined in part by the number of “counts” he amasses. Examiners gain one or more counts each time they open and close a new case. But when examiners reject patent requests, applicants typically adjust the claim and file a “continuation,” denying the examiner a count. So, an examiner concerned about his bonus has a strong incentive to approve the application. “There's a gaming of the system,” says Harold Wegner, a former examiner who now works as a patent attorney with the law firm Foley and Lardner. “You can get a stack of applications and just allow patents and get your [counts] that way.”

I took a course from Hal Wegner while in law school. He knows a lot about patents, and probably as much about the Japanese patent system as anyone in America. But he doesn’t know how to game the system as a patent examiner at the United States Patent Office. The well accepted method of bumping up your counts is not to allow a patent application; one count for one application is for pikers. Allowed applications are also randomly reviewed by quality control so there may be some repercussions to allowing applications. Rejections and new applications are the way to go. No one up the chain will dun you for issuing a rejection.

The trick is to issue a restriction requirement, essentially say the application includes more than one patentable invention and force the inventor to elect a single invention. That leads to new applications being filed on the non-elected inventions and these typically come to the same examiner. Then you beat them about the head and neck with prior art and issue a final rejection on the second action. At this point the inventor has the choice of appealing the rejection (which is expensive and very time consuming) or filing a Continuation.

The fact of the matter is that it is about s much work to follow this route as it is to just do the work. Patent examiners also have pride in their work. The name of the examiner goes on the face of the patent. Examiners are also protective of what gets issued in their technology area. In my years in and out of the patent office I have come up against more cold hearted SOB’s than patsies.

The Biggest Problem
The biggest problem with the U.S. patent system is not the examiners or any incentive to issue patents, it is the god-like status that issued patents have. Under U.S. law a patent is presumed valid and “[T]he burden of establishing invalidity of a patent or any claim thereof shall rest on the party asserting such invalidity.”

This is a heavy burden indeed. A typical patent lawsuit costs in excess of one million dollars but an unrecognized cost is that you cannot bring an invalidity or noninfringement action unless there is a “case or controversy.” There must be both (1) an explicit threat or other action by the patentee, which creates a reasonable apprehension on the part of the declaratory judgment plaintiff that it will face an infringement suit, and (2) present activity which could constitute infringement or concrete steps taken with the intent to conduct such activity." This is legalese for “your fat has to be in the fire before you have the right to spend a million bucks attempting to prove invalidity or noninfringement.”

Another issue that one faces in proving invalidity or noninfringement is that the case can be tried to a jury and typically before a court that sees one or two patent suits a year (the Southern District of New York and Eastern District of Virginia are two exceptions). So you have a judge that sees few patent cases and a jury that has seen none. Neither understand the technology and, therefore; they often defer to the decision made by the examiner in a few hours, possibly without the best prior art or the best arguments for invalidity available.

Look to European Law
Patent litigation is one area where the Europeans have us beat, hands down. In Germany, a nullity action to determine the validity of a patent is heard in the German Patent Office, with an appeal to the Federal Patent Court in Munich (the location of the German Patent Office) and the first non-patent specific court that considers validity is the German Supreme Court (and they do hear patent validity cases).

U.S. law has recently stated to allow the Patent Office to hear inter partes patent reexaminations. The procedure is rarely used because unsuccessful reexamination makes it almost impossible to invalidate the patent in later litigation because estoppel prevents the rehearing of the same issue. No one I know uses the current inter partes reexamination and I cannot think of a situation in which I would be interested in using this. Using the European nullity action as a model would be a huge improvement.

Solutions

First, identify new technologies early on and develop the infrastructure to rigorously examine patent applications in those areas.

Second, establish meaningful inter partes opposition in the Patent Office that allows the party challenging validity to be fully heard and does not precluding further argument in district court.

Third, establish a unique district court with jurisdiction over patent cases.

And don't even get me started on juries for patent cases, I don't thnk it should be an option but that pesky Constitution keeps getiing in the way. I would guess D.A.'s have similar issues.

More on NanoLitigation

2005-05-05T11:16:00.000-05:00

More information on the Nano-Proprietary v. Cannon litigation relating to Surace Conduction Electron Emitter Display (“SED”).

Here is the Complaint.
Here is the License. Scroll down for the text of the license

Go here for a discussion.

More on Abraxane

2005-04-12T11:49:00.000-05:00

NanoPundit’s one and only Instapundit link was related to Abraxane, the instalanche accounts for about half of my traffic to date. Business Week provides an update on Patrick Soon-Shiong’s quest to bring Abraxane to market.

Business Week Online provides the backstory of American Pharmaceutical Partners (APPX ) ten year struggle to bring Abraxane to market. Abraxane is essentially Taxol which is reduced to nanosize and bonded to albumin (a protein found in egg whites). The process avoids the use of solvents which cause adverse reactions in cancer patients and limits dosage.

The story sounds like it could be a made for TV movie with twists and turns including:
strike suits from investors (no word if Bill Lerach was involved)
attacks by short-sellers
fraud accusations

APP stock almost doubled when the FDA approved Abraxane and analysts expect revenues to increase 50%, to $609 million, this year and profits to double, to $120 million.

Helping cancer victims and making big bucks, isn’t that what high technology is all about.

Nano Fabrication

2005-04-12T11:37:00.000-05:00

Bent nanotubes, yes it’s a big deal. Follow the link for a cool picture.

Researchers at UCSD have made carbon nanotubes bent in sharp predetermined angles, a technical advance that could lead to use of the long, thin cylinders of carbon as tiny springs, tips for atomic force microscopes, smaller electrical connectors in integrated circuits, and in many other nanotechnology applications. In a paper published in the April 7, 2005, issue of the Journal of Physical Chemistry B, Sungho Jin, a professor of materials science at UCSD’s Jacobs School of Engineering, reported a technique to create bent nanotubes by manipulating the electric field during their growth and adjusting other conditions.

Joseph AuBuchon, a graduate student in Jin’s group, exploited the strong alignment of nanotube growth with the direction of electric field lines. After growing an aligned array of straight nanotubes, AuBuchon switched the orientation of electric field lines 90 degrees to make L-shaped tubes. He then made more orientation changes to make zigzags.

The simple fact is that nobody knows what uses these may have. The list of possible uses includes cantilevers for atomic force microscopes, and compliant nanocircuit interconnects. The importance of this work is that it adds another technique to the, small but growing, nanofabrication toolkit. Mankind took hundreds of years to learn how to manipulate iron. The first person to learn to bend iron did not contemplate the horseshoe, the bearing or the internal combustion engine but understanding the technique enabled all of them.

NanoOpto Closes Series C

2005-04-12T09:47:00.000-05:00

NanoOpto closes series $12M C funding with a cool mil from Itochu Corporation. This is the latest in $43.5 million in funding with $3.3 million in August2004. Other Series C investors include: leader First Analysis, and previous investors Morgenthaler Ventures, Gotham Ventures, New England Ventures, Harris & Harris Group, and U.S. Trust.

Nano Litigation?

2005-04-12T09:36:00.000-05:00

Nano-Proprietary files Declaratory Judgment Action against Cannon. Whether this related to nanotechnology cannot be determined by the press release but this may be the first big time nanotech lawsuit

Nano-Proprietary is seeking a declaratory judgment that new SED color television products, scheduled to be manufactured by Canon and/or Toshiba beginning in August 2005, are not covered under a 1999 patent license agreement between Canon and Nano-Proprietary. Nano-Proprietary alleges that Canon is improperly using Nano-Proprietary's patented technology to produce surface conductor electron emitter display screens (SED) for a new generation of flat screen color televisions.

Nano-Proprietary also asserts that a joint venture formed by Canon and Toshiba Corporation to produce the SED display screens, SED, Inc., is not a licensed subsidiary under the 1999 agreement and that Canon is improperly transferring its license rights under Nano-Proprietary's patents to the joint venture and Toshiba. Nano-Proprietary also alleges that Canon's representation to the industry that it is licensed violates federal false advertising statutes.

The Nano-Proprietary portfolio includes 3 US Patents and 13 published US Patent Applications. Marc Eller, Chairman and CEO of Nano-Proprietary refers to this as "a very strong and pervasive patent portfolio that applies to several multibillion dollar industries, of which this is one." As I have noted before it is difficult to determine the true size of a patent portfolio because patents may be licensed in or assigned without showing up in the Patent Office database.

Nano-Proprietary, Inc. is a holding company consisting of two wholly owned operating subsidiaries. Applied Nanotech Inc. is a premier research and commercialization organization dedicated to developing applications for nanotechnology with an extremely strong position in the field of electron emission applications from carbon film/nanotubes. Electronic Billboard Technology, Inc. (EBT) possesses technology related to electronic digitized sign technology. Neither Applied Nanotech nor Electronic Billboard Technology is listed as assignee of any U.S. patents.