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Mark Cuban is an Idiot, Patents Do NOT Impede Innovation


Written by Gene Quinn
President & Founder of IPWatchdog, Inc.
Patent Attorney, Reg. No. 44,294
Zies, Widerman & Malek
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Posted: March 7, 2013 @ 9:02 am
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I am in New York City this week taping the new patent bar review course, which is a part of our effort to bring the course current with the latest changes in the law and rules that will begin to be tested starting April 2, 2013. After a long day of lecturing and preparing materials and writing questions, I had dinner and found myself sipping a drink at Randolph’s, which is the bar attached to the Warwick Hotel, where I stay when in New York City. Unwinding from the day I decided to catch up on news – for me that means reading Politico or The Hill typically. I learned that Rand Paul engaged in a filibuster over drone strikes and Jeb Bush is on a book tour and folks are speculating about whether he will run for President in 2016. But I also learned that the self-appointed anti-patent billionaire idiot – Mark Cuban – was at it again. I quietly asked for the check and excused myself from an otherwise enjoyable evening of relaxation. Mark Cuban is an idiot!

Mark Cuban, the flamboyant owner of the Dallas Mavericks, has said some truly ridiculous things about patents. Recently, he complained to Tech Crunch about patent lawyers that “make too much money,” which is something that only a truly out of touch billionaire could rationalize. Really? A capitalist billionaire complaining about anyone making too much money ought to be a bridge too far for anyone. But Cuban doesn’t stop there, he talks about “dumbass patents,” and how patents on things that others later figure out ought to be invalidated. As if hindsight doesn’t make everything obvious in retrospect. Seriously, if he really holds these thoughts it has to be a complete accident that he managed to become a billionaire.

But this time it wasn’t that Mark Cuban made this idiotic and completely indefensible statement about the patent system that got me started. Nevertheless, he is still to blame. You see, Julie Samuels is the “Mark Cuban Chair to Eliminate Stupid Patents” at the Electronic Frontier Foundation. What a title! The Mark Cuban Chair to Eliminate Stupid Patents? And folks are actually supposed to take this seriously?

Nonetheless, Samuels authored an opinion piece in Politico explaining that the patent system is impeding innovation, taking the anti-patent mantra of her boss to a new level. It is one thing for Tech Crunch to report on anti-patent sentiments. This is their beat and they publish both sides of the isle. But when a mainstream political daily like Politico publishes an opinion piece leading into Congressional Hearings, someone needs to stand up and say NO!



But wait, there is more! Samuels even had the audacity to state that there is unanimous agreement in the technology industry that patents are impeding innovation. This statement is completely and utterly nonsense. Samuels either knows that there is no unanimity, or she should know. If she actually thinks there is unanimity she isn’t qualified to offer an opinion on the issue because she has only been speaking to those inside an echo chamber. So let me set the record as straight as I can — there is no unanimous agreement that patents impede innovation. To the contrary, all of the evidence contradicts Samuels, and there are a great number of companies and individuals who simply disagree with her factually erroneous assertions.

Frankly, I am getting tired of having to defend the patent system. Opinion authors, journalists and editors should be doing a better job at getting to the facts rather than pandering to the Silicon Valley tech-elite that want to dismantle the patent system. Especially since they want to dismantle the patent system because they are not innovators, but instead are copy-cats. They have their patents, they have their dominance, and they want Congress and the public to believe patents are evil and should be outlawed. What they want is to preserve their dominance, ensure their right to copy and weaken the patent system so that they are entitled to stay at the top of the industry despite their inability to innovate. True innovators know the patent system is critical. You don’t hear IBM yelling about a patent system run amuck. You don’t hear the innovative start-ups and small businesses complaining about the patent system, they know that the patent system is essential in order to provide incentive and ensure access to capital.

Those that do the complaining erroneously state that they speak on behalf of the entire industry. But I know they don’t speak for IBM, or Qualcomm or Tessera or the many other innovative companies that exist in the high-tech sector. They certainly don’t speak for the pharmaceutical industry that absolutely needs strong patents to survive, and they don’t talk for the biotechnology industry where start-ups and even large companies largely have little in the way of asset value outside their patent portfolios. And they absolutely don’t speak for the independent inventor who needs a patent system to protect their innovations from being ripped off by… well by those same Silicon Valley elite who so hate the patent system.

So what did Samuels say that has gotten so under my skin and is so provably erroneous? She wrote:

[W]e have a consensus in the tech community: The patent system has started to impede, rather than incentivize, innovation. The laundry list of what’s gone wrong is long, including a standard for patentable subject matter that makes no sense, notoriously vague and hard-to-understand claim language and — the troubling result — the rise of the patent trolls.

There is not at all a consensus in the tech community that the patent system is impeding innovation. On the contrary, the patent system incentivizes innovation, period! There is absolutely no logic behind the erroneous claim that the patent system impedes, rather than incetivizes, innovation. Who in their right mind would spend millions or hundreds of millions or in the case of pharmaceuticals and biotech innovations billions of dollars to invent and take to market their innovations if the day they get to market they can be ripped off? Do the people who make the claim that the patent system fails to incentivize know anything about basic economics? Apparently not. Have they ever heard of free-riders or sunk costs? Please, for the love of God, would you enroll in a basic Economics 101 class at your local community college?

The basic laws of economics are simply factually reality for those of us living in the real world. If you spend money to create you must recoup that investment before you make any profit. If others are allowed to copy you starting day one they have bypassed the development costs and are able to make a profit at a lower, perhaps much lower, selling point. In fact, they can make money at a selling point so low that the original creator couldn’t make money and couldn’t compete.



Let me say this VERY slowly… the original creator couldn’t compete and make money selling what they themselves developed while those who copied could make money. Why would anyone ever innovate? Why would anyone ever invest to invent anything? This is why great thinkers and leaders like President Abraham Lincoln called the patent system one of the greatest innovations of all time — because it “added the fuel of interest to the fire of genius.” Similarly, none other than George Washington, the Father of our nation, implored Congress to, with all due haste, pass a Patent Act. Washington did this in his first State of the Union Address. See Celebrating Presidents Who Advocated for the Patent System.

Samuels went on in her article to state:

The patent troll business model takes advantage of a legal system that makes it nearly impossible for parties targeted by lawsuits to fight back.

Again, the only problem with what she says is that is it flat wrong! It is not nearly impossible to fight back. Choices are made — conscious choices — to pay extortion-like settlements of $25,000 rather than mount any kind of defense. Samuels wants the reader to believe that patent litigation defense costs many millions of dollars. That is true on average, but for those who cave and pay extortion the fees are substantially less. So who is to blame? Aren’t those who complain about the system and say they will never settle and will fight to the death to blame for caving when they jump at that first, extortion-like settlement offer of $25,000?

Simply stated, if anyone is serious about fighting patent trolls contact me. If you want to take the fight to the patent trolls, to the bad actors, then do it. But the reality is the industry doesn’t want to take the fight to the bad actors and go to the mattresses. They want patent trolls to exist so they can parade around the halls of Congress demanding reform that will weaken that patent system altogether. There is a strange symbiosis between the so-called Silicon Valley elite and patent trolls.

Did you know that many of the so-called Silicon Valley elite play golf with patent trolls? Did you know that they go out to lunch and dine with patent trolls? Did you know that they are on first name basis? Many of the so-called Silicon Valley elite refer to those who they vilify in the halls of Congress as “my patent troll.” They believe that if they work together in a cordial way they will be able to get along better. Doesn’t sound like they are really all that upset about the phenomenon if you ask me, now does it?

It is true that there is a litigation abuse problem, as Chief Judge Rader of the Federal Circuit recently explained at the AUTM annual meeting in San Antonio, Texas. Rader explained:

Interestingly, that has been misdirected towards the patent system. Even earlier this afternoon I received an invitation from a House Committee to come and talk about abuse of the patent system. I’m not sure I’ll be able to attend, but if I could attend I’ll tell you exactly what I would say: There is nothing wrong with the patent system.

The patent system has a narrow focus. It is not a consumer affairs program. It is not a manufacturers guarantee compliance program. It’s not a competition program.  It has one objective, summarized well by the Constitution: promote the progress of science and the useful arts. It’s there to create more investment and more incentive for innovation and invention. The things that the patent system is criticized for is not its job.

Indeed, there is nothing wrong with the patent system. There is litigation abuse, and if district court judges would look behind the curtain to see the litigation blackmail that is going on and do something about it the problem would disappear. The problem isn’t that the courts don’t have the authority they need to stop abuse. The problem is they don’t use the authority they have to stop litigation shake-downs. This is NOT a patent system problem. It is a litigation problem. Those who claim the problem is associated with the patent system being broken are simply not being truthful. They have an agenda, which is to dismantle the patent system, and they are using old-fashioned litigation abuse that has nothing to do with the patent system as a rallying cry to do what they otherwise couldn’t ever hope to accomplish. They might as well be saying: “look at this shinny object…” They are diverting attention away from what is the real problem and pretending it is as a result of the patent system. Utter nonsense!



What about Samuels assertions that patent claims are hard to understand and vague. Well, patent claims have been hard to understand for hundreds of years. That is hardly something new, so it is utterly disingenuous to pretend that is a new phenomenon. Go back and look at patents from 10 years ago, 20 years ago, 50 years ago, 100 years ago and more and you will be left scratching your head and asking yourself… what in the name of all that is holy did that mean? It is a clever, charlatan’s trick to point to difficult to understand claims. It is the height of intellectual dishonesty to pretend that patent legalese is any different than any other legalese. I bet the rental agreement you signed was difficult to understand, and I know that if you even read the mortgage paperwork no one understood what was said there either. Legalese is thick, dense and virtually a different language. For crying out loud, much of it is in Latin! But is that new? Absolutely not.

Is patentable subject matter in disarray? Yes, but because courts are finding policy exceptions to patentable subject matter that are not anywhere within the Patent Act or the legislative history of the Patent Act. Funny how these folks love legislative history so much and look for the intent of Congress when it suits them, but when it is 100% against them they ignore it as if they are a Justice Scalia disciple. How intellectually dishonest.

Is there litigation abuse associated with the enforcement of patent rights? Yes. Does that have anything to do with the patent system? No. Is there unanimous agreement that patents impede innovation? Are you kidding me?!? Absolutely not!

Ask yourself this… if President George Washington, President Abraham Lincoln and Thomas Edison would disagree with an innovation related policy statement or position why would you even give the thought passing consideration? Those who want to dismantle the patent system might as well say that the most revered public figures in American experience were out of their mind and a part of the problem. Now if that doesn’t make you wonder I don’t know what will.

I’ll leave you with this… Did you know that Mark Twain (aka Samuel Clemens) was an inventor? Yes. In fact, he was the inventor on three granted U.S. patents. In 1871, he received his first patent for an adjustable strap that could be used to tighten shirts at the waist. Twain also received patents for a self-pasting scrapbook in 1873, and in 1885 for a history trivia game. Twain also wrote this about a patent system:

“[A] country without a patent office and good patent laws was just a crab that couldn’t travel anyway but sideways and backwards.”

So to those who think I am nothing more than a patent apologist, you are right. I prefer being factually correct and intellectually honest. The anti-patent zealots can have Mark Cuban and the Mark Cuban Chair for the Elimination of Stupid Patents. I am honored to hold the same lucid, deliberate and thoughtful opinions on the issue as other radicals like Washington, Lincoln, Edison and Twain.

Picking sides in this debate ought to be easy. Sadly, however, it isn’t. Now who is it that has the agenda?

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Posted in: Anti-patent Nonsense, Gene Quinn, IP News, IPWatchdog.com Articles, Patent Trolls, Patents

About the Author

is a Patent Attorney and the founder of the popular blog IPWatchdog.com, which has for three of the last four years (i.e., 2010, 2012 and 2103) been recognized as the top intellectual property blog by the American Bar Association. He is also a principal lecturer in the PLI Patent Bar Review Course. As an electrical engineer with a computer engineering focus his specialty is electronic and computer devices, Internet applications, software and business methods.

 

58 comments
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  1. Gene,

    First off, please do not stop fighting for the patent system. Sadly, too few commentators with a public platform side with the innovators and the small inventors in defense of the patent system. You’re the exception and you should be lauded for it.

    Second, kinda interesting that Mark Cuban rails against the patent system, yet he owns a sizable chunk of Vringo, a company which appears to have as its primary business model, the enforcement of its patent portfolio. I guess patents are ‘stupid’ unless Cuban is making money from them.

  2. Gene – The increasing mention of “patent trolls” in the media is part of a directed effort to pave the way for legislation that will enable corporations to more easily infringe the patents of independent inventors who license rather than produce their inventions. This is the ongoing effort of the same entities that were behind The America Invents Act. The legislation will be directed at “stopping the abuse of trolls,” but the real objective is to greatly weaken the intellectual property position of the independent inventor. This is an outrageous attack on the most uniquely American of concepts – that an individual, regardless of status or background, can come up with a valuable invention and own the intellectual property rights to it. If we do not take notice of this attack and start a significant fight against it, they could pull it off. – Randy Landreneau

  3. Timely post, Gene. It’s tragic that pieces like this still need to be written, but they do. The interests that are twisting the facts about what patents do and don’t provide, and how patent holders ought to act, will eventually do more harm to innovation than any so-called troll. I’m afraid that issue has become more about agenda than ignorance. Anti anti-patent voices need to be heard in the technology and finance communities, too.

  4. This is the greatest article I’ve read in quite a while. Sersiouly great views here. Perfect quote from Rader too…re-re-reading this later.
    Thanks for posting,
    -MB

  5. @Gene: The general public does not understand the patent system, and they are easily misinformed and led astray by the anti-patent people. You also need to cite the credible peer-reviewed studies/papers (I know there are several) at the end of these patent articles – for the civilians in the public that do not understand patent law and business. One cannot just say that “patents increase innovation” without citing these things. It isn’t “common sense” that patents work – most people are not patent lawyers or have this knowledge. People see the abuse of the patent system by people (and it does indeed happen unfortunately), and then they start to question the legitimacy of the patent system and whether it works or not – backing up the pro-patent argument would quell any hee-hawing coming from the anti-patent people.

  6. Oh man, I always thought Cuban was a bozo after I read this article of his from 2011:
    http://blogmaverick.com/2011/08/07/my-suggestion-on-patent-law/

    Because of the nonsense (in my opinion) of the above article, I aways despise seeing him on Shark Tank (even though otherwise I like the show). That latest article is even worse.

    I’d like to tell Cuban that I deal with lots of software start-ups, and their patent portfolio (which is a result of a lot of their R&D and hard work) is the only way they can get venture capital and also the only way to prevent knock-offs. It’s easy for Cuban to criticize when he is a billionare, but he has no conception of the current reality.

  7. Googooli-

    You say: ” You also need to cite the credible peer-reviewed studies/papers…” I understand what you are saying, but it is really a tragedy that peer-reviewed academic studies or papers are believed to be necessary in order to make a point that is self evident. I prefer to rely on history rather than thought experiments. I prefer to rely on facts, not pretend that a “study” is hard evidence. The past is the best indicator of what will happen in the future, so history is the model I prefer. I also prefer common sense, and basic Economics. No one ever can argue that basic Economics mandates everyone agreeing with the fact that people won’t invest if it will be stolen, and history backs up that logical statement.

    I’ve written numerous articles that lay out historical fact after historical fact… undeniable truth after undeniable truth… and yet the patent haters still want to pretend that their emotional position that is not support by any facts is accurate.

    See:

    http://www.ipwatchdog.com/2012/12/06/forfeiting-the-future-over-irrational-fear-of-software-patents/id=30957/

    See also:

    http://www.ipwatchdog.com/2012/11/05/patent-rights-a-spark-or-hindrance-for-the-economy/id=29536/

    http://www.ipwatchdog.com/2012/08/02/the-good-steward-turning-federal-rd-into-economic-growth/id=27046/

    http://www.ipwatchdog.com/2010/09/10/wsj-suggests-slower-patent-process/id=12436/

    http://www.ipwatchdog.com/2010/06/01/was-thomas-edison-a-patent-troll/id=10829/

    http://www.ipwatchdog.com/2011/01/27/start-up-reality-no-patent-no-funding-no-business-no-jobs/id=14659/

    http://www.ipwatchdog.com/2012/04/11/ip-contributes-5-trillion-and-40-million-jobs-to-us-economy/id=24109/

    http://www.ipwatchdog.com/2010/12/30/going-grassroots-in-2011-fighting-the-assault-on-patent-rights/id=14018/

    http://www.ipwatchdog.com/2012/10/03/lies-damn-lies-and-media-hatred-of-patents-and-the-cafc/id=28389/

    This is just the tip of the iceberg. I can’t write every article being the same.

    Stay tuned for articles about the hypocrisy of Mark Cuban, which will interject further facts.

    -Gene

  8. Looking up more info on the article. Julie Samuels, who is “The Mark Cuban Chair to Eliminate Stupid Patents”, isn’t a patent attorney. She’s (yet another) journalism major who went to law school. What she actually knows about patent law could probably fit in a thimble. What she knows about actual technolgoy and science, how it works, etc, is likely orders of magnitude less than an iota.

    It always upsets me to see people with little technical or business qualifications be so arrogant.

    Link to her page at the EFF: https://www.eff.org/about/staff/julie-samuels

    However, this works it self out: her utterly ridiculously title quickly lets any sane person knows her “position” is an idiotic sham and front for Mark Cuban’s large ego.

  9. Gene,
    Justifiably, you say:
    “I prefer to rely on history rather than thought experiments. I prefer to rely on facts, not pretend that a “study” is hard evidence. The past is the best indicator of what will happen in the future, so history is the model I prefer.”

    I cannot agree more. However, we have a greater challenge when history is rewritten by those who mischaracterize, distort, or otherwise ignore historical facts to “demonstrate” that patents block downstream development. This revisionism has been going on for the last century and has produced certain myths and false “proofs” of the patent blocking/hold-up hypothesis. The number of scholarly sources that repeat the patent blocking allegation may now be so great that the allegation has become an entrenched and unchallenged “truth.” It is being taught in economics, business and law schools. In my opinion, it is the major source of misguided patent legislation and court opinions. The myths are originally perpetrated to serve agendas that have very little to do with innovation policy.

    In every instance so alleged, a further investigation of the real facts surrounding the subject patents reveals that no downstream development suppression occurred, and in some cases the opposite had occurred. The details of some examples that my colleague John Howells and I looked at are detailed in the following papers recently submitted for publication:

    The Myth of the Early Aviation Patent Hold-Up – How a U.S. Government Monopsony Commandeered Pioneer Airplane Patents. at http://bit.ly/Aircraft-Patent-Logjam-Myth .

    Inventing-around Edison’s incandescent lamp patent: evidence of patents’ role in stimulating downstream development. at http://bit.ly/Inventing-around-Edison .

    In each of these studies, we sought to collect, assemble and convey, a definitive and unassailable empirical evidentiary record including primary sources that cannot be characterized as “just another view” of the facts. Similarly, the economic historian George Selgin and his colleague John Turner have debunked patent blocking allegations regarding James Watt’s steam engine:

    Strong Steam, Weak Patents, or the Myth of Watt’s Innovation-Blocking Monopoly, Exploded at http://ssrn.com/abstract=1589712 .

    We have similar detailed analysis on other alleged patent blocking cases in the pipeline. Hopefully, these and future articles may change the misconceptions that fuel the patent blocking myths.

  10. And what do you suppose Cuban would do if anyone dared to name their professional team — regardless of the sport — The “Mavericks?” Or used his teams’ trademarks or trade dress?

    He’d sue them in a New York minute.

    So it’s O.K. to steal others intellectual property . . . but not his.

  11. To Ron Katznelson,

    I very impressed with the detail and quality of your two papers (linked to, in your post above).

    Several of the graphs/graphics could be used in alternative (non-text) ways to persuade the general public.

  12. Gene,

    Longtime reader and first time commenter and soon-to-be fellow Pierce alum and I must say, don’t let Mark Cuban get such a rise out of you, that is exactly what he wants. Besides, any article written by a person whose title is “The Mark Cuban Chair to Eliminate Stupid Patents” is a clear waste of time (how does Politico post that?).

    I enjoyed your blog post and your view on patent trolls as a litigation problem, and not a patent system problem. I would be interested on your take of the Saving High-Tech Innovators from Egregious Legal Disputes Act. Is this legislation going anywhere? What would it do in reality and is it legislation worth pursuing? Thanks.

  13. Hello Gene-

    Thank you for writing this article, especially when you are very busy trying to make things better for us all through up to date education on the latest trends in patent law, which are changing very rapidly right about now. If you don’t attempt to do it, who else do think will?

    It might seem like a rant to some, but certainly not here I can assure you. The old shell game of trying to blame outrageous litigation expenses on the US patent system is and always has been a total sham, or perhaps more accurately described as the worst type of Scam.

    The real facts are that patent litigation has only harmed legitimate inventors by less than 1/2 of one percent, and suddenly that is alarming and needs to be fixed by “sweeping patent reform legislation”? The reality is that the dominant entities that already have their IP covered would like it very much if they could just make newer entities go away, by using their billions in profits to *buy* new patent laws that suit their interests.

    By doing so though, they are attempting to put out the fire of innovation here in the US, just so that they can make even more billions in profit for a few more years, before they get replaced by better innovations by folks that still remember what it means to be truly creative.

    Like Bemused, I sincerely applaud your efforts to take a look behind the curtain, when the Great Wizard of Whatever is trying to tell us to pay no attention to that small man behind the curtain when it is drawn open unexpectantly, and he gets caught in the act of trying to mislead and dazzle others with his supposed brilliance.

    It is a lie, pure and simple, but unlike the Wizard of OZ fantasy movie it is painfully real to independents like myself and Ron, and not just a somewhat fanciful movie from about 60 years ago. Now that they have gotten the AIA passed to their satisfaction, you would think they would satisfied, but Wait! There is More!

    Stan~

  14. “What she [Sameuls] actually knows about patent law could probably fit in a thimble.”

    Tom,

    You’re being very generous to say she has that much knowledge. Unfortunately for us, SCOTUS’ collective knowledge of patent law and the technology it deals with would easily “fit in a thimble.” That SCOTUS now exerts patent law despotism over the Federal Circuit is excruciatingly painful and thoroughly outrageous. SCOTUS continues to drink the “Kool-Aid” of the anti-patent folk like Cuban, Samuels, Mark Lemley, and the media generally. Fortunately for us, the current Chief Judge of the Federal Circuit (Rader) is willng to fight for what is rightly his court’s “turf” that has been arrogantly usurped by SCOTUS.

  15. EG,

    I agree completely with your sentiments.

  16. Very curious that the supposedly Superior court seems to be getting things so badly wrong, to the detriment of literally millions of people that depend upon IP rights to be able to have a decent job. I suppose when you are tenured for life, it doesn’t matter to them at all, no matter what they choose to do. They probably think they are doing the *right* thing, even when they are very arguably wrong. Throwing away 200 years of successful patent law shouldn’t be so cavalierly dismissed out of hand, just so a few Supreme court Justices can make their Mark on US patent law, just before they retire into obscurity.

    Probably very few will recall their points of order only about 2 years after they have retired. Congress obviously doesn’t know what they are doing, with Patrick Leahy as the Senate Judiciary Committee chairman? He got offered a different *job*, but turned it down to remain in the Judiciary branch, much to my regret.

  17. Ron-
    Very nicely done at a first glance, but it will probably take the weekend to get through all three peices this weekend. The bit about Watts is especially interesting because it happened so long ago, but your thesis about the evolution of aircraft technology is even more intriguing in my situation, since I have been involved in aircraft design and construction technology for several decades. Definitely all keepers to my hard drive as far as I am concerned.

    Thanks-
    Stan~

  18. Ron-
    Sorry about that, as I see that I shouldn’t be trying to save anything without your express permission until they are released it seems.

  19. FYI: Studies that show that patents increase innovation:

    http://www.pugatch-consilium.com/wp-content/uploads/2012/06/Pugatch-Consilium-Taking-Stock-Final-Report.pdf

    http://blogs.nature.com/news/2012/06/intellectual-property-spurs-innovation.html

  20. Oh Gene, I love when you make as hominem attacks against people who are clearly much smarter than you are!

  21. Justify the granting a patent issued in 2007 AD whose only deviation from the 100 BP description is literally “on a computer”.

    Justify the granting of a patent five times, for the same alleged invention. Ponder on why the first patent for this invention was granted more than fifty years after it was described in the literature. The subsequent patent grants were five to ten years after the immediate preceeding patent was issued. Also note that none if the patents refer to earlier patents, or that original description in the literature.

  22. You dishonestly replace Mark Cuban’s statement that he wants to get rid of *stupid* patents with a straw man argument that he wants to get rid of *all* patents. You admit yourself in this article that courts have wrongfully expanded the scope of what is patentable. I have seen articles on this same blog about parents that never should have been issued, such as one patent that would cover a stick. Patents ate supposed to allow a person having ordinary skills in the art to reproduce then or build off of them, but you defend the use of legalese in patents, which make them unintelligible to anyone but attorneys (it is intellectually dishonest of you to compare patents with mortgages, which do not exist for the same purpose, and which do not have the same requirements). You also claim that targets of infringement lawsuits make a “choice” to pay extortion-like settlements of $25,000 (your example), when you know (or would know) that defending even frivolous litigation would cost these entities well over 1-2 hundred thousand dollars, while non- practicing entities are paying their attorneys strictly on a contingency basis.

    Finally, I find your presumption that George Washington, Abraham Lincoln, et al. would agree with you to be quite presumptuous. Our forefathers knew that the rights a patent system would bestow are the anathema to a free market, and meant for that system to be severely limited and balanced against the good of the public, which is something that is not accomplished by the current system. Therefore, Mark Cuban is correct; we need to eliminate *stupid* patents!

  23. Gene:
    A few points I found interesting:

    1. Most commenters agree with you. Is that because you ‘moderate’ the critical ones, or do most people not bother reading your blog?

    2. Ad hominum attacks are usually the last resort of the propangandist. You are an ‘IP’ lawyer, certainly no one expects you to be anti-patent.

    3. Software patents have been the cause of the backlash. You don’t mention software in your post, but instead throw up strawman arguments with citings no one has any interest in discussing, because they are irrelevant to software patents.

    4. Your pro-patents arguments all come from pro-patent sources. Are there any IP lawyers anywhere who are against software patents? If so, a word or two from them might be worth reading, considering that they make a living in IP law.

  24. Justin-

    Do you know what the definition of ad hominem is? It would seem that you and any others (on Twitter for example) who claim I have made ad hominem attacks here either don’t understand the term or simply didn’t read the article past the title. Tragic how you and others feel justified in commenting on things you didn’t read and obviously don’t understand.

    For those who care to read and be informed, “ad hominem” is defined as follows by Merriam Webster:

    “(1) appealing to feelings or prejudices rather than intellect; (2) marked by or being an attack on an opponent’s character rather than by an answer to the contentions made.”

    Anyone who cares to read through the article will find that I did provide direct answers to the ludicrous positions of Mark Cuban and Julie Samuels. I back it up with fact and explanation.

    As for your comments about Washington, Lincoln et al, I notice that you don’t provide a single citation to back up your erroneous conclusions. Some might say you are appealing to feelings rather than intellect. I, on the other hand, provide citations. So you can suppose that the likes of Washington, Madison, Lincoln, Edison, Twain and many others believed in an extremely limited patent system, but that is simply false and even a cursory review of history and the relevant documents would demonstrate that.

    -Gene

  25. Albert-

    First, please see above with respect to the appropriate definition of “ad hominem” attacks. Please also note the proper spelling of the term.

    Second, no straw man arguments whatsoever. If Mark Cuban wants to eliminate stupid patents that is fine. He has the right to do that. What he doesn’t have the right to do is misrepresent the problem. I find it curious that you want to call me to task for over-stating and setting up a straw-man argument when I clearly do nothing of the sort. But Cuban does exactly what you allege of me and you have no problem whatsoever. Curious indeed.

    Third, the problem is with litigation NOT the patent system. I don’t know how else to say that. Perhaps you should read the article again, rather than stopping at the title or the first paragraph where I say Mark Cuban is an idiot.

    Fourth, in terms of software, I write about the topic a lot. Perhaps you should read up on it and educate yourself. You and Cuban seem to be of the belief that it is exceptionally easy to get software patents. The factual truth is quite different. You see, the mistake you and Cuban make is that the questionable patents issued 12 or more years ago are evidence that the Patent Office continues to hand out questionable patents. Perhaps you (and Cuban) should check your facts before making provably erroneous statements. Complaining about the problems that existed 12 to 15 years ago is hardly relevant. Talk about setting up a straw-man argument! The USPTO issued some bad patents 12 to 15 years ago so that means that the patent system today is bad. LOL. Get real.

    Finally, in terms of moderating those who disagree with me, I don’t do that. As long as comments fall within our guidelines they are posted without regard to whether I agree or not. Of course, you would know that if you did any kind of investigation. It seems, however, you prefer to jump to conclusions. Because those who commented above agree with me that means I have to weed out comments that disagree because EVERYONE shares your view. Is that it?

    -Gene

  26. If people can not understand legalese, it should be invalid. It is the big party, the party that wrote the text that should find a solution.
    If I am installing something on my computer, and in the middle of searching where do I have to click to make thinks work, I am confronted with a pile of text that only a few people can understand if they have enough time.
    Judges should reject that commitment because they know over 90% of people did not read the text. Company’s spend a lot to present their, sometimes complex, product while advertising for it. Can they not explain their licence in a clear way before people buy?

    If a programmer has no realistic way to know if he breaches a patent, the system did lose it’s contact with reality and can only be used in a way that looks a lot as some criminal activity.

  27. “Mark Cuban is an Idiot, Patents Do NOT Impede Innovation ”
    “Mark Cuban is an idiot!”
    Not an ‘attack on someones character’? Perhaps an insight into yours?

    Using examples of pharmaceutical patents is not a strawman argument, with regard to software patents?

    Don’t group me with Cuban. I’m not defending him. He may be a flawed character, but he’s not the only one with those opinions. Using such an example characterizes the ‘anti-patent’ group as ‘idiots’, which is another propaganda technique.

    The USPTO is still issuing bogus software patents, even now. I read ‘em. I’m a software engineer with 22 years experience. I am ‘skilled in the art’.
    What kind of ‘research’ would you have me do? Read all your posts?

    You are protecting your turf, just like the USPTO, the Federal Circuit, the IP law profession in general. This includes the paid corporate shills, I mean ‘journalists’.

    The USPTO is a money-making operation, to the tune of ~$700M last year.
    Because of the fee structure, bad patents make big money, but this is chump change compared to the legal fees, settlements, and awards paid in software patent cases, most of which involve bogus patents to begin with.

    You are a propagandist, and not a very good one. You are part of the problem, but you don’t see the problem, so you offer no solutions.

    P.S. This is the first time I read a post in your blog, but reading your responses has been most enlightening.

  28. I think it is just the usual patent bashing noise, but in this case apparently loosely organized it would seem. Somewhat laughable that they don’t seem to be even able to figure out how to use their spell checker before they post their messages? Somewhat common with IT types, as they have probably never picked up an actual dictionary in their whole life.

    Think About It Guys! If you want to be taken seriously, you need to at least get the spelling right!

  29. If I tried to submit a grant application with such careless language, it would almost certainly just slide off the end of the desk into the *round file*.

  30. Dirk-

    So you are saying that all areas of law are invalid, or is your problem with legalese limited to patent law?

    It seems like your issue is you do not want to engage in business appropriately. I hear this complaint a lot from folks in the software world, as if what they are doing is somehow so unique that the rules should be different for them. NEWSFLASH… if you chose to engage business in a reckless way that is your choice and not a problem with the patent system. Businesses all over the country of all different sorts have to consult with professionals on tax issues, legal issues, business issues. So if you don’t understand that law and you choose not to engage the services of a lawyer that is your choice (and problem).

    As far as your statement that the system or players are somehow engaging in criminal activity if a software programmer cannot understand the law, I understand your frustrations but that is entirely absurd.

    -Gene

  31. Albert-

    Are you for real, or are you joking?

    Cuban’s statements were about the patent system. Samuel’s statements were about the patent system. They make these broad, sweeping statements that are factually incorrect about all patents. Then their argument goes into specifics about software patents. So does the specific statements somehow make the generic statements any less inaccurate? No, of course not. Further, their specific statements aren’t grounded in fact either.

    You charged me with making ad hominem attacks, which I didn’t. I backed up everything I wrote.

    As for your allegation that the USPTO continues to issue bogus software patents, that is a lie. If you are reading current patents and you come to that conclusion it is because you don’t understand software, you don’t understand the law or your bias has so clouded your view that you are no longer objective.

    As for the USPTO being a money-making operation, that is absurd as well. Please get your facts straight. If you don’t want to read what I and others have published here that is your choice, but then why not go somewhere else and comment? Go somewhere that you can spew your brand of ideological nonsense that is not based in either fact or reality without being called out.

    As for me being a part of the problem — NOPE. I am part of the solution. It is people like you who choose to remain uninformed but still have an opinion that are the problem.

    As far as Mark Cuban being an idiot… he is either entirely uninformed, taking an absurd position for his own agenda or he is an idiot. You see, there is an old saying that has often been attributed to President Lincoln that goes like this: “Better to remain silent and be thought a fool than to speak out and remove all doubt.” Perhaps you and Mr. Cuban would benefit from taking that to heart.

    -Gene

  32. Dirk-

    On further reflection about your comment, what standard are you proposing? Is it the “Dirk Almighty” standard? If Dirk doesn’t understand it then it has to be invalid.

    Really. Are the laws supposed to be dumbed down so that those who choose to remain uninformed understand them? Seriously!

    -Gene

  33. Dirk- Just because you are not able to understand what is being said is not an excuse. Ignorance of the law is Not a valid defense.

    The law is written as it is for some very important reasons. It attempts to reduce or eliminate ambiguity, such that if or when you try to usurp my property rights, the law has been written such that there is no way for you to be able to weasel your way around my valid property rights.

    It gets even more complicated when the property rights are intellectual in nature, to be able to adequately describe the metes and bounds of what constitutes *my property* and Not what you think it should amount to. If you try to squat on my property, and later try to assert that it has become your property by eminent domain, that is a form of theft, and a very insidious one at that.

    Am I supposed to have to escort every infringer off of my property with threats of dire consequences if they refuse to leave? I think not. That is what laws and the police are for in a civilized society. In the case of IP law there aren’t even any police to govern theft and unfair practices.

    That sounds like a good recipe for anarchy to me, where anyone can take whatever they want without consequences of any sort, unless I try to take the law into my own hands and prevent it personally. (Litigation for patent infringement)

    Traditionally here in the US, the right to defend your home is taken very seriously, and several options to defend yourself and your family exist.

  34. Gene,

    You ignore every argument except my assertions regarding your ad hominem attacks and your insistence that you somehow know that Abraham Lincoln would agree with you. By saying that Cuban is an idiot you are attacking the person making the argument rather than the argument itself; this is an ad hominem attack. Additionally, you mis-characterize his argument as being against all patents while Cuban clearly states that he us against “stupid” patents, which of course is a straw man set up by you so that you may knock it down (you do that a lot).

    The fact if the matter is that the USPTO allows a large amount of stupid patents to go through, as illustrated by many of your own articles (see the patenting of a stick example I mentioned above). You even admit that the system has been expanded to include subject matter that should not be patentable, another example of “stupid” patents, falling squarely within the target of Cuban’s ire. If you really think that Abraham Lincoln, et al. would agree that one should be able to patent a stick then you are truly hopeless.

    For a real world example if the system’s utter failure to serve its purpose, one need look no further than the recent Apple v. Samsung litigation, where the parties spent hundreds of thousands of dollars to litigate patent infringement claims and, after a jury returned a $1 billion dollar verdict, the USPTO invalidated a number of patents that were at issue in the case. Most defendants, of course, do not have hundreds of thousands of dollars to defend against truly *stupid* patents, and that is why the system is broken.

    It is also interesting that you lambast me for not providing sources when I say that our forefathers investor that the rights granted through patents should be limited, and then you assert that anyone can see otherwise, without providing sources of your own.

    Congratulations, you wrote a divisive article that will garner a lot of comments, but you have absolutely failed to support your case, or even to make any argument against the true thrust of Cuban’s assertions, that there are too many patents out there that should never have been granted, and that these ridiculous patents are stifling innovation.

  35. Justin-

    If you think I only attacked Mark Cuban personally you obviously didn’t read the article. If you want to have a discussion about facts we can do that, but I’m not about to let you present your lies as if they are factual reality. I called Mark Cuban an idiot because it is descriptive. I then went on to explain why his positions and the positions of Ms. Samuels are incorrect.

    Your assertion that “the USPTO allows a large amount of stupid patents to go through” is factually incorrect. There are over 225,000 patents granted each year. Even if you can find 1,000 bad patents that means the USPTO has achieved 99.6% accuracy. Even you can find 5,000 bad patents that means they have achieved 97.8% accuracy. Even if you can find 10,000 bad patents that means they have achieved 95.6% accuracy.

    So how many bad patents do they issue? You want to make a factual assertion that is not based in reality, so give us a number and the examples that prove you are correct. While you are at it why not tell us about the many innovations that the USPTO should issue that they bury because the supervisors in the relevant Art Units refuse to issue patents.

    The real story at the USPTO with respect to software is that they refuse to issue patents that deserve to be issued, NOT that they issue bad patents.

    As far as your Apple v. Samsung argument, you actually prove my point. What you are saying is that the PATENT SYSTEM is to blame. What you complain about is a broken LITIGATION SYSTEM. So who is being honest, me or you? You complain about litigation and blame the patent system? That is absurd. If you have a litigation complaint then complain about litigation. What you are doing is about as smart as losing your keys in one room and looking in a different room because the lighting is better. Really. Listen to what you are saying yourself!

    In terms of supporting my case, I did a fine job. Plenty of insight into Economics 101, which neither you or anyone else has refuted. I also provided insight into the relationship between the so-called patent trolls and the companies they sue and the attorneys that bemoan their existence. You probably missed that and the other support though given your ideology.

    The reason this articled doesn’t have over 100 comments is because even the most zealous patent haters can’t refute the truth of what I’ve asserted. You, of course, just choose to ignore the facts you can’t argue and try and complain about one problem while blaming something that isn’t the cause. You so so WITHOUT ANY FACTS. LOL.

    -Gene

  36. If I could hit “like” on Gene’s last comments, I would.

    I believe, the so-called ad-hominem “attacks” that the above commenters allege, should be understood in context. (1) gene’s arguments are backed up or otherwise wholly his opinions, (2) the “attacks” in the comments from other commenters….I think, are necessary.

    When people outside a very complex area of law (e.g. Samuels, Cuban, etc, and patent law), step into it boldly and start running their mouths about what little they understand, it is NECESSARY and RELEVANT to attack their points, AND their backgrounds.

    Samuel’s is parading around like she’s a scholar of patent law. She actively tweets and publishes articles in an area she is unqualified to comment on. This sort of journalism borders on yellow journalism and, I beleive, should be curtailed/challenged/etc as much as possible. Absolute non-sense, all of it.

    Great article Gene.

  37. Thanks for reading, and thanks for the comment.

    Cheers.

    -Gene

  38. CB- Some of us have been here for several years, Trying to talk some sense into various Senators’ propositions. We can use all the help we can get, if that rings a bell for you. Mostly the cows have already been let out the barn it would seem, but it might be possible to wrangle them back into the back forty if we do everything just right. So who is Justin, and why should I care who he is? The point is very definitely moot in this situation. They will probably continue to whine about this or that, but I really don’t tend to think that is my problem at all.

    I actually Invent new things, instead of complaining about how badly some think that the US patent system has become. Usually it just means that they are creatively challenged, which is really not my problem atl. They can either invent new things and make them real and attractive, or they really don’t have a valid voting right as far as I an concerned. The votes will come from a successful product, that many desire to acquire.

  39. There are some very experienced patent practitioners here who could slice and dice J six ways from Sunday, but perhaps they have better things to do with their time. For my own part, I managed to get my spring rates just right today, after doing load/power tests on a new type of wind turbine. Conversely, Justin is probably just staring at his moniter right about now and trying to figure out he got things so badly Wrong.

    Please contact me personally if you like, and I will try to explain the facts of inventing in perhaps more colorful terms.

    Stan~
    stand@olypen.com

  40. I doubt that Justin really cares Stan.

    More than just a small part of the problem is that the anti-patent folk don’t care enough to actually get the facts right in the first place.

    Now, back to work!

  41. Anon writes in reply in toto:
    “I doubt that Justin really cares Stan.

    More than just a small part of the problem is that the anti-patent folk don’t care enough to actually get the facts right in the first place.

    Now, back to work!”

    Sometimes I wish that I could just make them all away by waving a magic wand, but I don’t think it works quite that way. You are painfully correct as usual, and the dogs probably will not stop barking at the door just because I hope that they might. Be that as it may, it is folks like yourself and Blind Dogma that seem to indicate a possible light at the end of a very complicated and expensive tunnel.

    Now where was I when I got led astray by foolish conjectures? Oh yeah- The springs look just right, so hopefully the rotor should be able to survive and thrive in winds up to about 100MPH.

    Thanks for being here Anon. It seems as if the Kids need a bit of adult supervision once in a while, but perhaps it is not up to me to decide that they have put their socks on the wrong foot.

    Stan~

  42. “Forgive them Father, for they know not what they do.”

    Jesus Christ, circa Easter.

  43. Stan, seems like a timely quote at 42 – but what about those that, in fact, do know what they do, that are proceeding according to an agenda that recognizes that a change in law is being attempted, perhaps through a court of public opinion as opposed to being completed through a court of law or through normal legislative channels, and with misdirection, but a change nonetheless – would forgiveness for them be forthcoming as well?

  44. Gene-

    I don’t know how you can say with a straight face that the litigation system and not the USPTO’s granting of invalid patents is the problem in Apple v. Samsung. The USPTO granted a number of patents to Apple, including the infamous “Bounce Back” patent, which Apple filed in 2007 and which was issued in 2011. Apple went to court in the US in 2012 to enforce those patents against Samsung, and got a verdict of over $1 billion against Samsung. Finally, in October 2012, *5 years* after the patent was originally filed, the USPTO comes back and says, “hey, our bad, this is an invalid patent that never should have been issued in the first place.” How, exactly, is this the litigation system’s fault? Doesn’t Apple have the right to go to trial over patents that it thinks were validly issued by the USPTO? Shouldn’t our patent system protect against this sort of thing happening? It seems to me that by issuing a “stupid” patent, the system has cost everyone a lot of time and an extremely large amount of money.

    The reason no one is refuting your “economics 101″ lesson is because it is obviously not wrong. I totally agree that allowing one to recover costs invested in new invention is necessary in order to foster innovation. The point is that this has absolutely nothing to do with Mr. Cuban’s argument, that there are too many *stupid* patents out there.

    Someone like Mr. Cuban or myself says that the patent system is broken, or at least needs to be improved, and you mis-characterize that argument as being against all patents, everywhere, all the time. And then you talk about how ridiculous it is for anyone to think that there would be innovation without patents, when absolutely no one is arguing otherwise (I said before that you love tilting at windmills). YES, patents are a good thing and we need them to foster innovation. HOWEVER, many people, including me, believe that the system can and should be modified to better guard against issuing invalid patents.

    And yes, I will not be providing you with concrete numbers as to how many “bad” patents there are out there, since that would be impossible to determine. If it weren’t for the Apple v. Samsung litigation, we would never have known that Apple’s “Bounce Back” patent is bad, because it hadn’t been (and may never have been) challenged. Apple may, if it had chosen a different strategy, just been able to confront each and every Android phone manufacturer, demanded licensing fees for the patent, collected and moved on without anyone ever challenging the patent’s validity. My point is that it would be a lot more efficient if the USPTO could be relied upon to issue quality, valid patents in the first place, without parties having to resort to litigation before figuring out what can be enforced or not.

  45. Stan-

    I think I will skip the personal call. You sound a bit too self-righteous and pretentious for my taste, as well as a little too eager to “slice and dice,” rather than participate in intellectually stimulating discourse. You also completely mis-characterize my comments, since I am not anti-patent at all, I just think that the USPTO needs to do a much better job of improving the overall quality of patents it issues.

    Good luck with that magic wand.

  46. Jusin,
    In kind

    1) re this comment/paragraph:

    “I don’t know how you can say with a straight face that the litigation system and not the USPTO’s granting of invalid patents is the problem in Apple v. Samsung.”

    Justin, you have this beautiful notion that the USPTO can create a perfect system if it only tried harder. “Gee golly! If they just stopped issued “STUPID” patents this whole mess would go away!” You act like the USPTO is just lolly-gagging around and has been for years. In truth, the PTO is an AMAZING organization filled with, no-doubt, some of the best minds in teh world. The USPTO, the collective patent attorneys, judges, etc., all want a good patent system….and we’re all working towards it…It’s insulting for you to come in say “blah, look at this stupid patent! they issue STUPID patents…God, PTO, if you guys would just not issue STUPID patents we wouldn’t have such a problem.”

    Sersiouly, youre immature, you don’t know what youre talking about

    The USPTO is using their VERY BEST methods per the resources that are given to them. They are insanely efficient and given very little to work with.
    Patents have issued that can be misconstrued and used improperly in litigation. And you know what? That’s NEVER going to go away! It’s an artifact of the system and to sh*t on the PTO is asisine, arrogant, and foolish.

    2) the “bounce back” patent

    You keep using the Apple/Samsung litigation to evidence your points. This is idiotic. First of all, this is a pop patent case. . . the en vogue patent issue to talk about because it affects consumers. This sort of patent case is quite common and overall not that intersting. To keep going back leads me to beleive you likely know very little of other patent cases (and yes, you can take that as a ad hominem attack).

    The bounce back patent was fully examined on its merits by the PTO. A typical patent prosecutor has, lets say, under 100 hours to write a patent. (Which is a gross overestimate, patents are usualyl written and prosecuted in far less time.) Now, a USTPO Examiner has even less time to spend with the patent, and has a FAR greater work load than the Prosecuting Attorney. Not to mention, the Examiner likely has less legal training. All said and done, a patent being prosecuted has probably, lets say 150 hours spent on it, between the atty and the examiner.

    Now most patents are worthless…never get licensed, never get sold, never get practiced. But every once in a while….one goes to litigation.

    Once it hits litigation, the patent document that took, on the high end, 150 hours to create by two people (the atty and PTO examiner) will be VERY highly scrutinzed by typically a team of VERY intelligent, VERY well paid, VERY motivated litigators on both sides of the battle.

    A 150hr patent document, will be hit with thousands of man-hours of scrutinzation. The PTO, in their reexam, benefits from all this new information. Not to mention, even on reexams of patents that are not litigated, the PTO can still has more time and money to spend analyzing a patent because reexams can get pricey.

    In sum, if the patent that took 150 hrs to create by two pretty sharp people, but gets torn in two under intense litigation pressure, or by intense USPTO reexam pressure,…then to you…it’s all of a sudden a STUPID PATENT.

    So dumb. You, cuban, and that silly girl over at the EFF sound like children who don’t know what their talking about. (again, yup, that was ad hominem if you like).

    SO what’s your genius solution. Better examination? Good one! None of us have never thought of that before….how pray-tell? I know! pay the Examiners more money and give them legal training? Nope, no money for that. Go to Congress and ask for more money for better USTPO legal training. I’m sure they’ll be estatic about it.

    But let’s just assume that there IS enough money and time for enhanced examination of ALL patents (which again, there isn’t). In that situation, its STILL a bad idea, because its a COMPLETE waste of government resources. WHY? Because most patents are infact worthless!

    Very few make it to litigation. Right now we HAVE the very best system, given our resources.

    What you, Cuban, etc…think is a “new” issue is NOT.

    It’s journalism making it seem new.

    We’re all doing very fine without you guys crying all the time. Now go back to reading USA Today, or whereever you read about Apple v. Samsung.

  47. Fair enough Justin, as I was a bit angry when I wrote it. I still think you have things seriously distorted though, as demonstrated by CB and other posts.

  48. CB-

    I know I shouldn’t reply since you are obviously intent on name-calling and deriding everyone who does not agree with you, but I do not think it is too bad of a thing to allow myself the occasional lapse in judgment. The mere fact that you so staunchly defend a system that produces patents you yourself believe to be mostly “worthless” would suggest that you are either trolling or mentally disabled, but I will address your points anyway.

    I did not say anywhere that anyone is capable of creating a “perfect system”. What I did say is that the quality of patents being issued by the USPTO are, in my opinion and in the opinion of many others very low. You argue that *most* patents are *worthless*; I do not agree, but I think there are way too many patents that are issued when they should not have been. I am also well aware this is not a new issue, and I never said that it is; I just think it is stupid to be content with the status quo just because the issue has been around for awhile. I also think that the issue is becoming much more of a problem than it was previously.

    As for my Apple v. Samsung issue being “idiotic,” I do not really know how to address that except to say that you seem to have some sort of inner rage over that case just because it bandied about in the forums of public opinion; perhaps a psychiatrist could help you with what is obviously an inability to manage your anger.

    I merely use Apple v. Samsung as a perfect example of what people like Mr. Cuban and myself are complaining about. Here you have a pretty ridiculous patent that was so obviously covered by prior art it is baffling that the USPTO ever even considered issuing it. This utterly stupid patent leads to a huge court case, costing the involved parties hundreds of thousands of dollars each and tying up a number of people (attorneys, judges, jurors, etc.). The case yields judgment of over $1 billion dollars, based largely on this non-innovative patent, and the parties involved will be dealing with the appeals, expenses and fallout for years and years to come.

    Wouldn’t it be a LOT more efficient if the system was better designed to catch these types of patents before they issue? Do you REALLY think that this sort of thing is helpful for innovation?

    What would have happened if Apple had sued a different company, maybe one that does NOT have the resources to defend against a patent infringement suit, especially one brought by a company like Apple, let alone to hire attorneys to pick apart a patent for reexamination? This utterly ridiculous patent would still be on the books, stifling innovation and allowing Apple to collect fees from, or obtain injunctions against, companies that are trying to bring innovative technology to the market. Did you know that the average smartphone is covered by over 200,000 patents? Does this sound like it is helping innovation to you, or does it sound really stupid?

    Just because the USPTO has limited resources, and though you might think it is doing really well with these limited resources (I do not), my argument is that the system could be changed to address some fundamental inefficiencies. For instance, I fully agree with Gene when he argues that the USPTO should be allowed to handle its own budget, since Congress is constantly ransacking the USPTO’s revenues for other purposes; this would give the USPTO a much greater pool of resources to deal with. I also think that certain classes of inventions, namely software, should not be patentable, which would eliminate a huge load on the USPTO and also would eliminate what many see as the source of the majority of these “stupid” patents. Additionally, there are plenty of other things that could be done, such as calls to the public to submit examples of prior art when patents are being evaluated, or streamlining the re-examination process so that patents be evaluated BEFORE parties have to spend hundreds of thousands of dollars in litigation.

    Instead of just saying, “it will never be perfect,” “our system is the best you can do,” and “anyone who disagrees with me is a stupid poo-poo head,” maybe actually coming up with reasonable ways to improve what is obviously a flawed system would be a better use of your time.

    If you are in either New York City or the Denver metro area, I may be able to refer you to a good psychiatrist to handle those anger management issues of yours.

  49. Stan-

    I understand that you think I am wrong; that is fine. I don’t see the need of people like Gene or CB to resort to name-calling and so ruthlessly deride anyone who happens to disagree with them, but then again I am not so full of myself to believe that I am the only one who is allowed a valid opinion on anything. I think I explain myself well enough to my (perhaps ill-advised) response to CB above, so I will refrain from reiterating myself except to repeat that an average smartphone these days is covered by over *200,000* patents. I can guarantee that a large number of those patents are “stupid” patents, in that they are not inventive either because they are simply obvious to a person having ordinary skill in the art, or because they are covered by prior art (maybe even both).

    I think this is a problem; I think it is inefficient and I think that it stifles innovation; I think it is a problem with the patent system (not with the litigation system), and I and think that it needs to be addressed. A lot of others think the same thing, including a lot of inventors and innovative companies in the technology world (though nowhere near a unanimity, as Gene points out). The fact that we think this does not make us idiots, nor does it make us anti-patent, anti-inventor, uneducated about the patent system or about economics (or in general), communist, evil or any of those other things that haters like Gene and CB like to include in their rants.

    I am an attorney and an engineer. I rely on intellectual property to make a living, and I have clients that rely specifically on patents to make money (and, by extension to pay me). I am well educated in the patent system and it is still my opinion that pieces of it are broken and need to be fixed.

  50. Anon-

    Good point about my #42 quote. Perhaps the forgiven part should be reconsidered if they actually supposedly know what they are doing.

  51. Justin-

    NOW who is using invective to support their position? Suggesting that CB needs some help is about the most ultimate slap in the face that you could possibly send. Be aware that I agree with just about every word that he wrote, so your suggestion back-fires and blows up in your face in a pyrotechnic sense. I think it is very safe to say that you have irrevocably drawn various lines in the sand, but what if the tide comes in and just washes them away like a sand castle that was constructed below the mean high tide line?

    I am not formally trained in patent law, as I hope you can appreciate, but I do happen to know the difference between wooden nickels and real ones. The only conclusion I can reasonably come to is that your clients would like to see the value of US patents reduced quite significantly, which I could never agree to even slightly. I suppose you think their desires are admirable and valid, but the vast majority of other inventors and patent practitioners would tend to strenuously disagree.

    I would submit that the US patent system isn’t broken or flawed at all, but that your clients and thus yourself are seriously deranged in your view of it. You and your clients seemingly got what they *wanted* with the passage of the AIA, and now you want even more? Well guess what Justin- there are many here who cannot or will not agree to that. Meanwhile you seem to have seriously burned your bridges in that regard, so your opinions will be very seriously questioned probably for the rest of your career. I hope you have made lots of money already, as evolution would seem to be a factor in your possible extinction, and maybe even the *clients* that you represent.

  52. Stan-

    So do you agree with CB that most patents are worthless, and also your own assertion that the patent system is “not broken or flawed at all?” How do you reconcile those two positions?

    The “ultimate slap in the face” is an actual slap in the face, what is exactly what anyone would do to CB I if he spoke to then in person the way he spoke to me on here. Funny that you have no problem with his name calling and acting like an Internet tough guy, but act so indignant when I tell him I think he needs therapy (he does).

    Exactly why would my clients, who make a living off patents, want patents to be weakened? You make no sense and, as you point out, you are not even educated in patent law (nor, I suspect, in any type of intellectual property law or policy). I am, and I say to you that the system needs fixing. Most innovating, practicing companies agree with me, whereas most non-practicing entities and patent prosecutors like Gene do not. Again, you assume that anyone who doesn’t agree with you that everything is hunky-dory must be anti-patent and again you are completely wrong.

  53. Justin,

    ,dear justin. You fool. Let me use small words so you understand better.

    1) Worthless does not mean “not novel”, it means having no value. The USPTO does not give two sh*ts whether a patent has value or not. They care about 35 USC 101, 102 (well, post-AIA 102), 103, and 112. If it passes those (in addition to other smaller reqs), it gets granted.

    2) Whether they “system is flawed” or not has to do with whether said statutes are being followed well enough, etc.

    Most patents are indeed worthless: they are never practiced, never licensed, never sold. They are prosecuted, granted, run for 20 years and then fade into obscurity. (i.e. worthless. the money spend to get them is never recovered. You want some insane level of examination on mostly worthless patents? Super duper.

    Only once in a while does a patent become contentious.

    But lo and behold, you and other schmucks, act like it’s the Fourth Reich and WWIII is about to happen in the patent world.

    The two points (that 1: most patents are worthless, and 2: the patent system is not “BROKEN”) are can easily be reconciled because they have nothing to do with one another, if anything they are complimentary. You equated worthlessness with “STUPID PATENTS”…which doesn’t surprise me in the least.

    Good job, you get a A plus in sucking at patents.

  54. Strike the mean remarks above, I get flared up and post, I apologize. I take back the churlish remarks. On the merits though, I hold my points.

  55. CB-

    You have done very well in honing your condescending attitude. I’m sure it is annoying as hell to those who actually have to interact with you on a day-to-day basis.

    I don’t equate making it harder to patent inventions that are already covered by prior art with “some insane level of examination.” You say that the system is fine as long as it follows the law, but the law says patents shouldn’t issue if they are covered by prior art, and they do, and they cost people a lot of money and stifle innovation. The law also offers no way to ensure that this doesn’t happen; inventors are supposed to disclose prior art but they do not, and yet it is impossible to hold anyone accountable for this unless you can clearly prove a bad faith effort (nearly impossible). Meanwhile, courts must presume that a patent issued by the USPTO is valid, when there is really no mechanism in place to ensure that these issued patents are, in fact, valid (you yourself say that the USPTO lacks the resources to adequately ensure this).

    Of course, your contention that the system is fine so long that it follows the law is erroneous, as the system exists only to foster innovation and so, if a set of patent regulations actually stifle innovation the system is not fine even if it conforms to the aforementioned laws.

    Thank you for using small words though, I really appreciate it.

  56. Justin-

    It seems to me as if we are all interested in valuable Intellectual Property Rights here, or perhaps we are not? I presume since you said that you are a patent attorney, that you swore an oath to first do no harm, and to keep your clients’ interests first and foremost in any of your endeavors. I don’t expect that this type of conjecture would result in any response, but I thought it might be worth a try.

    How can you advocate for reduced patent rights, and still maintain that you are advancing your clients’ best interests? I don’t quite get that part somehow.

  57. Justin,

    The anti-software comment sticks out like a sore thumb. It makes it hard for me to trust anything else you have to say.

  58. Justin,

    There are many other facets of your posts that also make me question your veracity.

    For example, the phrase : “ I can guarantee that a large number of those patents are “stupid” patents, in that they are not inventive either because they are simply obvious to a person having ordinary skill in the art, or because they are covered by prior art (maybe even both).” has two flags for me.

    1) Here you go again “guaranteeing” something that Gene has addressed (and that you refused to pick up the ball). Please do not ‘guarantee’ anything that you are not willing to actually deliver upon.

    2) The “maybe even both” comment paints you as an examiner with a 102/103 combination type rejection ( yes, I note that you are an engineer and attorney). However, that type of rejection is a lazy (IMHO) examination tool, not having any true basis in fact and law. If you are not inventive in light of prior art, you either fail under 102 or you fail under 103, but never truly under both. The word in 103 you do not seem to grasp is “notwithstanding.”

    Finally, your posts are replete with “mantra” style thoughts that lack actual substance.

    To wit, your tendency to label in black hat/white hat categories such as “Most innovating, practicing companies agree with me, whereas most non-practicing entities and patent prosecutors like Gene do not.” and “ actually stifle innovation” are completely unsupported by reality.

    While Stan may lack formal training, I do not. Further, I do not lack real world experience which you evidently do lack. You say that you are an engineer. I think, rather, you have an engineering degree. There is a world of difference, and that difference is evident in your blind acceptance of the mantra’s you repeat.

    You also say that you are an attorney, but I tend to doubt that you have been a practicing attorney representing real world clients to any substantial degree. You continue to be confused about how legal rights work, as evidenced by the comment “when there is really no mechanism in place to ensure that these issued patents are, in fact, valid ,” and you continue to think that “perfection” is the answer.

    You lack any sense of proportion and instead view the mere presence of litigation as evidence that the system is “broken.” (the fact that litigation actually affects far less than 2% of all patents seems to have no meaning to you – but it should). You spout nonsense like the strawman of”assume that anyone who doesn’t agree with you that everything is hunky-dory must be anti-patent ” when no one has indicated such – except for you implicitly with your desire for a (more) perfect system (and this ties into your directly anti-patent statement regarding software, which has NO defense, if you understood that art field at all).

    The real world is grey – not black and white. The real world must deal with cost trade-offs (a subject rarely taught in engineering school). And while it is often unfortunate that invective finds its way into debates on patent law, it is unfortunate for reasons perhaps different than the ones you are thinking of: it is unfortunate because it takes the focus off of the objectively incorrect views being posted.

    This may sound like invective, but it is not. Rather, it is advice meant with sincerity and hope for you and your future: grow up. Think about the mantras you have been fed. Appreciate the real world and what patents really are as a legal construct. Use the engineering skills, not in a vacuum, but in conjunction with an appreciation of what the patent system was meant to do (and realize that “promote” is not constrained to the view of “improvement,” but rather, widening the fountainhead of man’s knowledge and yes, that includes patents for things that are “less” than the current state of art. This jump in understanding will evidence a subtle, but important maturity of both the engineer and attorney in you that is absent now.