Wednesday, April 9, 2014


The usual rule of thumb in a high-tech case is for the parties to pick a neutral who is intimately familiar with the technology involved.  Makes perfect sense.  Or does it?

The case could be about pharmaceuticals, computers, medical devices, communications or anything else where the logical view is that the neutral(s) would know the manufacturers systems, models, specifications, processes and so on.

On the other hand, anyone so knowledgeable would no doubt have picked up some biases and prejudices about those very aspects; "this company's products are terrible"; "this product is great"; "nobody likes their execs", etc.

We all know that undisclosed conflicts of interest can be grounds for overturning an award.  But couldn’t an argument be made that prior knowledge about industry specifics is nearly the same as doing private research, also not allowed.

It seems to me that someone who is broadly familiar with science and engineering in general and having extensive business practice and ADR experience, could approach the case with an open mind and thus be even better qualified to hear a high tech case.

Saturday, April 5, 2014


As an independent inventor, I’m in that class of inventors who have little to no effective representation in Congress.  The big boys - corporations, pharmaceutical manufacturers, universities and the like have the money to influence Congress to bend to their will.  As a result, there have been a succession of bills introduced that make life even more difficult for us.

The most recent was the America Invents Act (AIA), enthusiastically pushed by its sponsors, spoken against by the few legislators who are supporters of independent inventors, but eventually passed.  By the way, as is usually the case in such matters, knowledgeable independent inventors are never invited to testify on these pending laws.

One of the law’s notable features was the elimination of one of the most important features of the American patent system, "First to Invent".  In that scheme, in effect since 1790 and enshrined in our Constitution Article 1, Section 8, the first person to invent something is the one who gets the monopoly protection of a patent.  That seems eminently logical and “right”.

However, some corporations pushed to change the system, to First to File; that is, the first person to race to the patent office gets the patent.  If that seems to put the independent inventor at a disadvantage, you’d be right.

Imagine yourself working in your garage on your invention, and after expending much time and money, you finally got it to work, and decided that now was the time to file for a patent.  Meanwhile, MegaCorp with unlimited resources of money and personnel completed their proof-of-concept development months before you.  They apply and get the patent, even though they started work long after you did.

That was the AIA.  Now, in an attempt to address and abuse from organizations called Non-Operating Entities (NOE), but also called Patent Trolls, a new law is working its way through Congress.  Again, independent inventors are not being called on to share their views.

Patent trolls are accused of being abusive defenders of patent rights.  They will acquire patent rights and then vigorously defend them against individual companies and even whole industries; not because their own operating businesses are being affected by infringement, but because they know that the defendants often would rather settle than fight an extensive and expensive lawsuit.

The problem for independent inventors is that licensing our patents to a troll is one of the few ways for us to monetize our patents.  Manufacturing and marketing it ourselves costs a lot of money, something most independent inventors don'r have a lot of.  If the legislation removes that option, then only the richest inventors, or those who are successful in licensing it to an established manufacturer will succeed.

Again though, we have no say in the matter.