750,000. That’s the patent applications piling up at the USPTO in 2010, a backlog so massive it was strangling American innovation — or so the headlines screamed.
Look, I’ve been kicking tires in Silicon Valley for two decades, watching startups bleed cash waiting for patent approvals that never come. And this “News, Notes & Announcements” roundup from back then? It’s a snapshot of an IP system wheezing under its own weight, from stressed-out patent lawyers to biotech schmoozefests and antitrust drama. But here’s the thing: who was actually cashing checks amid the chaos?
Patent Lawyers Under the Microscope: Inequitable Conduct Survey
Christian Mammen — UC Hastings scholar and IPWatchdog regular — fired off a survey to patent attorneys who’d prosecuted patents later hit with inequitable conduct claims. You know, those nasty allegations where prosecutors supposedly hid prior art or lied to examiners, tanking multimillion-dollar cases.
It’s a quick hit: http://www.surveymonkey.com/s/9HZSW3Y. Or peek at the PDF questions if you’re chicken. Why does this matter? Because inequitable conduct was the boogeyman back then — judges throwing out entire patents on a whiff of bad faith. Mammen’s digging into the human toll on lawyers, the ones catching hell in courtrooms.
And yeah, it’s voluntary. But in a world where one screw-up means malpractice suits raining down — who volunteers for that spotlight?
Short para: Cynical me wonders if this data ever sees daylight, or just gathers dust in academia.
Now, pivot to biotech. The Biotechnology Industry Organization — BIO to insiders — opened calls for their 2011 convention in DC. Sessions on business, science, policy. Due September 22, 2010. Graded on timeliness, novelty, speaker cred. Sound familiar?
These things are catnip for lobbyists and VCs. Educational value? Sure. But mostly a networking orgy where Big Pharma types swap war stories and line up funding. I’ve covered a dozen; they’re less about breakthroughs, more about who cuts the next check.
Is the Patent Backlog Really Killing Jobs?
Huffington Post jumps in: “Patent Backlog Is Clogging Job Growth.” Yahoo Finance interviews Pat Choate same week: “Innovation Crisis: Job Creation Stalled by Patent Backlog.”
The contents of these articles will not come as newsworthy to most within the industry, but what is particularly interesting is the fact that the popular press seems to be at least cluing into the story as one of importance.
That’s the money quote — popular press finally waking up. Hank Nothhaft (Tessera CEO) and ex-FedCir Chief Judge Michel dropped a NY Times op-ed. USPTO’s David Kappos preaching backlog fixes. Unemployment at 9.6%, tech jobs frozen because inventors can’t protect IP.
Expect midterms to light this fuse, then fizzle post-election. Politicians love the soundbite — “Clear the backlog!” — but fixing it means hiring examiners, streamlining rules. Nah, too boring. Fast-forward to today: AI patents exploding, same backlog ghost haunting OpenAI and pals. My unique spin? This 2010 mess mirrors the current genAI patent wars — Big Tech hoards approvals while startups wither. History doesn’t repeat, but it sure rhymes, and VCs are still the winners pocketing fees on the wait.
Pressure’s on, says the original post. Blog it, bug politicians. Sure. But 14 years later? Backlog’s trimmed some — Kappos-era hires helped — yet AI filings surged 30x. Who’s making bank? Law firms billing endless continuations.
Dense dive: Reverse payments case seals the edition. Second Circuit nixes en banc rehearing in In re Ciprofloxacin Antitrust Lit. April 2010 panel (Newman, Pooler, Parker) says pharma patent holders paying generics to stay out? Not antitrust violation, per Tamoxifen precedent.
They even begged for full-court review — Hatch-Waxman architects screaming it was never intended, plus sloppy 180-day exclusivity math. Denied September 7, 2010.
Pharma cheers: Settlements shield monopolies. Generics weep: Delayed cheap drugs. Antitrust hawks rage. Forbes piled on. Classic: Patent trolls? Nah. Brand-name giants buying time at consumer expense.
But wait — who profits? Settlement lawyers, duh. Billions in delayed generics mean fat patent royalties. Cynic’s view: Courts shielding the cash cow, innovation be damned.
One sentence: Echoes Big Tech’s today — pay-to-play IP deals everywhere.
Wrapping the roundup: BIO schmooze, lawyer stress test, backlog panic, antitrust dodge. 2010 felt urgent. Still does, as AI chews USPTO bandwidth.
My bold prediction? Without radical reform — AI examiners? Blockchain prior art? — we’ll hit 1 million backlog by 2030. Valley vets like me have seen cycles: hype, crash, repeat. Time to ask: Whose jobs are we saving? Inventors’ or bureaucrats’?
Why Does Reverse Payment Drama Still Matter for Tech?
Tech isn’t pharma, but parallels scream. Apple suing Samsung over patents? Settlements galore. Reverse payments by another name — pay rivals to chill. FTC’s watching, SCOTUS later ruled ‘em presumptively illegal (Actavis, 2013). But 2010 Second Circuit? Pro-patent fortress.
Lesson: Circuits split, Supreme Court cleans up. Today’s AI? Expect same — regional courts battle, Big Tech pays to play.
FAQ time.
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Frequently Asked Questions
What is inequitable conduct in patents?
It’s when patent prosecutors allegedly deceive the USPTO — hiding key prior art, faking declarations. Can kill the whole patent. Rare now post-Thaler, but scars linger.
How does USPTO patent backlog hurt job growth?
Delays protection 3+ years, startups can’t fundraise or license. Tech jobs stall — inventors flee overseas. 2010: 750K apps. Today: Similar woes with AI flood.
Are reverse patent payments antitrust violations?
Was debated in 2010. Second Circuit said no. SCOTUS later: Often yes, if sham. Pharma/tech still settles billions to block competition.
