5 Questions With IPWatchdog’s Gene Quinn

Editor’s note: We conducted this interview with IPWatchdog’s Gene Quinn in November. The article below appears in the January 2010 print edition of Inventors Digest. Last week, Invention Submission Corp., doing business as InventHelp, sued Quinn, alleging he and his wife Renee have repeatedly posted false, misleading and defamatory statements about InventHelp on the IPWatchdog blog. The lawsuit claims Quinn’s posts have harmed InventHelp’s business and seeks $75,000 in damages. Click here to read the complaint. Quinn denies any wrongdoing. Inventors Digest will be following events as they develop. – Mike Drummond, editor.

gene_100Gene Quinn is a patent attorney and president and founder of IPWatchdog.com, a respected blog devoted to intellectual property issues. IPWatchdog celebrated its 10th anniversary in 2009, and IPWatchdog.com is now among the most heavily trafficked IP-related sites on the Web. Gene is unafraid to speak his mind, even if it means ruffling some feathers. Last fall, he publicly quit his board position at the United Inventors Association.

He was upset the UIA leadership allowed invention-submission company InventHelp to send a membership offer on the association’s behalf. Many, including Gene, regard InventHelp as an enemy of inventors. He still supports the overall mission of the UIA and has since made peace with its leadership. But should the UIA – or anyone in the inventor community commit what he considers bad behavior – you can bet Gene won’t hesitate to weigh in.

ID: You were there when the U.S. Supreme Court heard oral arguments in the Bilski case, which involves the patentability of business methods. What’s at stake here for inventors?

GQ: This is an excellent question because it is easy for the legal minutia to cloud what really is an extremely important matter for anyone who innovates.

At the most basic level what is at stake is whether the United States will continue to have a broad view of patentability. Will we continue to not prejudge innovation prior to ever asking whether it is new and unique enough to deserve a patent? There are many who would simply like to see business methods and software be declared unpatentable on a threshold inquiry, but that would seriously compromise technology advances.

Today inventions that have an electronic component also can be described as methods, to wit software. If the Court says ‘no’ to business methods and software, that will mean that many innovations in substantive technology fields are not patentable.

That is why many medical companies filed briefs at the Supreme Court. It is a great irony that the Bilski Federal Circuit decision causes more problems for biotechnology, medical devices and diagnostic methods than for software.

If we have to tie software to a machine to make it patentable you can easily do that because software has to run on something, whether a computer, PDA, cell phone or whatever. A diagnostic method, however, may not be machine-dependent.

In Bilski there was a financial diagnostic, if you will, at issue. Look, decipher, act. If medical diagnostic methods are not patentable, how can we ever hope to find treatments? You cannot treat what you cannot identify. A ban on such diagnostic methods would severely impact innovation into new medical devices and treatments. So there is a lot at stake for innovators and a lot at stake for the public.

ID: The U.S. Patent and Trademark Office is pushing to change from its longstanding first-to-invent patent policy to a first-to-file system. You once opposed first-to-file, but changed your position. What gives?

GQ: This has been brewing for many months. I have listened to so many people on both sides, and the truth is that in the overwhelming number of cases the first to invent is the first to file.

According to the PTO in 2007, out of some 485,000 patent applications filed, only seven were determined to fit into the first-inventor, second-to-file category. Factually we already have a first-to-file system, so what is the harm, particularly if there are benefits?

Knowing how large corporations act, I can say with great certainty that they will not be any quicker to file. Large corporations simply cannot innovate, which is why they acquire smaller innovative companies.

A first-to-file rule will force independent inventors and small businesses to do things differently and in fact do what they should be doing now anyway. I think it will give those who have the ability to react the incentive to do what they should have been doing and prevent the scammers from convincing unsophisticated inventors they don’t need to apply for a patent or that applying can wait for years.

There are ways to mine innovations and protect them in a cost-effective way, while generating more potential assets for the same or less cost. Small businesses and entrepreneurs will fair very well. I am convinced of that.

ID: Going into 2010, what do you see as the biggest intellectual property issue facing independent inventors?

GQ: The biggest issue without a doubt is funding. For too long the Patent Office has been an impediment and granted patents very slowly, if at all. Independent inventors need to have at least something patented to prove the technology is new and can be protected.

Without a patent there is no funding and there is no licensing deal. We all need to make sure we keep the feet of the USPTO squarely on the fire so that it will speed up this process, particularly for independent inventors.

I think USPTO Director David Kappos understands this and is trying to come up with solutions so that independent inventors can get a patent, any patent, quickly. So rather than lamenting that the system is not perfect or how bad it is  or that gimmicks need to be relied upon, independent inventors need to embrace such gestures and take full advantage of them to get even a narrow patent granted. They can then circle back to expand the scope and wait however long it takes to get the full protection deserved.

ID: You seem to give the new USPTO regime favorable marks overall. What do you think are the biggest differences between the USPTO under David Kappos vs. the USPTO under predecessor Jon Dudas?

GQ: I do think the new regime is off to a very good start and I think it is clearly because Kappos and those he has surrounded himself with are career patent people.

Dudas was a politician and not a patent guy prior to his role at the USPTO. I think he wanted to make things better, but without experience to know the process or industry needs, he focused on the wrong issues and that caused patent pendency to skyrocket, the backlog to grow and the percentage of patents issued to decrease.

Kappos, on the other hand, is a patent attorney, started with IBM on a very low level and worked his way to the top. He has seen patents specifically and IP generally from many vantage points.

Yes, IBM is a big tech company and its interests are not always or even frequently aligned with independent inventors or small businesses. But IBM has always been patent savvy, filed an extraordinary number of patent applications and is always the top patent holder in terms of numbers.

This shows extreme dedication to the system and an understanding of how important a big, strong patent portfolio is. Clearly, patents are far more important to the little guy than a big, established corporation, so having someone calling the shots who is patent friendly makes all the difference.

That is, of course, as long as the needs of the independents are considered, which I think they are, at least for now.

ID: Congratulations. IPWatchdog celebrated its 10th year in 2009. The traffic you now generate to your site is impressive. What’s your secret?

GQ: Thanks. It has been a fun and rewarding experience. It started as a labor of love, and still is on many levels.

The secret is that there is no secret. Like everything else in life, the harder you work the luckier you get. It is not unlike what inventors do to succeed. Hard work, dedication, commitment to excellence and enjoying what you do so you do more of it.

I was lucky to some extent, I suppose. I realized the Internet was going to be a big thing back in the late ‘90s and got online. That has helped with some key search engine metrics, but just little by little building has been the key.

You can’t do everything all at once. You have to prioritize and get from point A to point B and then have your eye on point C. You need short-term goals, intermediate goals and long-term goals. You also can’t expect to arrive at point C and give up when you don’t get there.

Persistence is critical, as well as adapting to new realities that may require slightly altered paths.  My advice to others: Just be yourself, plan and have fun. Don’t try and please anyone other than yourself.

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