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Unite to Fight Patent Reform Legislation


Written by Randy Landreneau
Posted: February 10, 2014 @ 10:18 am
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EDITORIAL NOTE: The following article has been posted as an online petition you may sign by visiting IndependentInventorsofAmerica.org. On Friday the United States Senate held additional hearings and seem poised to act relatively quickly on the Senate version of patent reform. For information about how to directly contact your U.S. Senators please see Senators of the 113th Congress.

Randy Landreneau

We represent independent inventors and small patent-based businesses across the country and we are against any patent legislation that includes provisions of the Innovation Act (H.R. 3309) and the many variations and additions under consideration in the Senate. This legislation will levy grave harm upon independent inventors and small patent-based businesses, as well as the investors we need to help commercialize new technologies and to protect our inventions.

The American patent system is a trade between an inventor and society. An inventor discloses an invention for all to see and build upon, and the government grants and protects for the inventor an exclusive right to the invention for a short period. The American patent system was intended to enable anyone, regardless of economic status, race or gender, to profit from the invention of something new and valuable. This system has worked as intended for over 200 years, fueling the creation of the greatest economy in the world.

The very nature of new and useful patented inventions causes disruption of the status quo. Thus, since the mid-1800’s, vested interests have sought to use patented inventions without having to deal with patent holders by repeatedly petitioning Congress to weaken patent protection. Despite these calls, Congress has resisted most efforts to weaken the patent system. That Congressional restraint has proven wise is evidenced by the level of commercialized innovation that has occurred in America through the patent system, which continues to drive our economy like no other nation.

Today, Congress is under another call to weaken patent protection. This time the alleged culprit is a so-called “patent troll” who, according to some reports, hijacks inventions and while providing no product and therefore no societal value, extorts billions of dollars from the economy. This story could not be further from the truth. The argument is based on highly questionable data. Some of the claims are that patents asserted by so-called “patent trolls” are much weaker than patents asserted by others, that these entities cause billions of dollars of unnecessary cost, and that the number of patent infringement lawsuits has risen dramatically due to the so-called “patent trolls.” All of these assertions are highly disputed.

The Government Accounting Office Report required by the America Invents Act finds that there is no “patent troll” problem. Data supporting the claim of billions of dollars of reported cost cannot be verified and actually represent primarily voluntary and court directed license agreements for valid patents. In addition, analysis of patent litigation shows that the number of patent suits relative to the number of patents issued today remains consistent over the 200 plus year history of the patent system with the exception of a short period prior to the Civil War when the rate was higher than it is today. The reports supporting this latest round of legislation are simply not valid.

Further, what is being characterized as a “patent troll”, and is the target of the proposed legislation, is really an investor. As individual inventors and small patent-based businesses, we need investors to practice and protect our inventions. A patent is sometimes the sole asset we can leverage to attract that investment. Damaging investors therefore damages inventors.

Provisions in current legislation under consideration in the Senate are harmful or fatal to individual inventors and small patent-based businesses. For example:

Loser Pays will significantly increase risk to the inventor for defending a patent. A patent infringement lawsuit is incredibly expensive. The typical independent inventor has very limited financial resources. Furthermore, most inventions have a limited market, often small enough that the increased risk of paying an opponent’s legal fees could make it economically unfeasible to protect the invention even if the funds were available. This provision could be fatal for a large percentage of inventions.

Fee Shifting “Joinder” allows investors and others to be personally liable for the legal fees of a defendant if the plaintiff does not prevail. Few investors will risk personal assets beyond what is directly invested in a business, so this provision will severely limit investment in new technologies. With no investment, this is fatal to most inventors, who are common people.

Elimination of Post Grant Review Estoppel – Under the current law, a Post Grant Review prohibits the petitioner from later arguing “any ground that the petitioner raised or reasonably could have raised during that post-grant review.” The proposed legislation strikes “or reasonably could have raised.” This will allow a defendant to bring multiple sequential Post Grant Reviews in an effort to defeat the patent holder by burning financial resources and time with effectively perpetual litigation. This provision could easily become fatal to most inventors.

Patent Term Adjustment – The proposed legislation will eliminate any patent term adjustment for a delay in patent issuance caused by the USPTO. For a patent that takes many years to prosecute, of which there are many, the enforceable life of the patent could be cut in half or worse. This is not fair to the inventor and could be highly damaging or fatal to a large number of patents. It will also discourage the patenting of inventions and encourage keeping inventions secret.

Enhanced Pleadings and Limiting Discovery – In an already expensive and complicated process, these two elements require the patent holder to spend more money up front and operate with less information than is needed. These weigh heavily against the patent holder’s ability to defend a patent and reduce the ability of the judge to manage the case effectively.

The purpose of the American patent system has been to promote innovation. The proposed legislation will have the opposite effect. In addition to the harm these changes will have on the groups mentioned, these changes represent a 180 degree shift from the ideals with which the American patent system and America itself were created. That vested interests could succeed in such an attempt is unthinkable.

For the good of America, we stand firmly against the proposed legislation and any future legislation that would weaken the American Patent System. We are for any legislation that fully funds the Patent and Trademark Office with all of the fees it generates so that patent quality can improve and application pendency time can decrease.

About the Author

Randy Landreneau is an inventor and product developer. He is President of Complete Product Development and a former President of the Tampa Bay Inventors Council.


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Posted in: Congress, Guest Contributors, IP News, IPWatchdog.com Articles, Patent Reform, Patents

59 comments
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  1. I am the founder of the Inventors Association of Canton(Ohio)
    I am writing begging you not to continue letting small indipendent inventors get screwed and thats just what this bill would continue doing.
    Thank you
    Frank C. fleischer

  2. Frank, right now is the time to call your senators. they are dangerously close to passing it and the only chance of avoiding this tragedy is if enough of us call.

  3. Why should anyone really care about some laws that make it little bit harder for Randy Landreneau to sue and threaten people with patents? Nobody I know has much pity for so-called “small inventors” as they seem to be far, far better off than most people in the country. For instance, how “small” is this guy Randy Landreneau?

  4. A Light Shines in Clearwater-

    Jealousy is unbecoming. Similarly unbecoming is head-in-the-sand commentary. Obviously you know very little about “small inventors.” Obviously you have an axe to grind with Mr. Landreneau, and if that is the case you can go elsewhere because I won’t allow IPWatchdog to be used for that purpose. I will, however, point out that Mr. Landreneau is not the only inventor who will be substantially and negatively impacted by the reforms Congress is now considering. All innovators or all sizes will be negatively impacted. Whether you choose to believe the truth is of no consequence and doesn’t change the truth.

    So what exactly is your beef? Why do you feel complete to pretend that independent inventors are far better off? How many independent inventors exactly do you know? Have you ever been to an independent inventor’s meeting and talked with those in attendance? Your comment wreaks of someone who hasn’t a clue.

    -Gene

  5. Patent reform bridging partisan divide?

    Not sure what kind of compromise this will bring about:

    See:

    http://washingtonexaminer.com/legal-expert-says-patent-reform-legislation-bridges-partisan-divide/article/feed/2117897?custom_click=rss&utm_campaign=Weekly+Standard+Story+Box&utm_source=weeklystandard.com&utm_medium=referral

  6. The bridge to 3rd World Countryhood.

    Maybe we can see how we are becoming like Russia from here.

  7. Thanks Randy.

    I called and e-mailed both of my state’s Senator’s offices today; and e-mailed two other Senators on the IP subcommittee and Mr. Goodlatte; earlier today.

    My fellow current (and future) independent inventors, if the value of your inventions matter to you, please take the time to do the same. It’ll only take 30 – 60 minutes or so.

    Our representatives need to hear from us small guys (and gals).

    This may be our last chance to save what we’ve all worked so hard to obtain.

    Don’t let the corporate giants get away with having Congress and the President do their dirty work for them.

  8. Right now in the Senate Judiciary, Leahy and his cohorts don’t want the litigation reforms (loser-pay, enhanced pleadings, limited discovery), and Cornyn’s camp really wants loser pay because they view it as a door to tort reform overall.

    Leahy claims that PGR estoppel was a scribners error. I find that claiming a scribner’s error of a complete phrase that changes the entire meaning of a law is less than credible, but he is dead set on including it.

    Overall, the parties are deadlocked. Getting to your senator is critical right now. Those not on the judiciary are all ears and want to hear from inventors. I met with a couple of dozen staffers last week and almost all made time to talk even though I was not a constituent. They have all heard from the anti-patent people, but have not heard from inventors.

    There is an opportunity to turn the vote so that it won’t matter what comes out of the judiciary.

  9. The “loser pays” system works pretty well here in the UK. It can actually be seen as beneficial to small companies as it encourages parties to litigate only if they think they will win.

    A really bad aspect of the US system is that a small company can be dragged into a Court case, facing huge costs, even though the other side has a weak case. This can encourage the small company to take a license or settle, even if they have the better case, simply to avoid legal costs. This is less likely to happen if the loser pays.

  10. I have been fighting Maintenance Fees for years and filed a law suit in 2005, in the US Court of Claims. I lost because the Court would not consider the issues raised in my rebuttal. I am in the process of re-filing the Claim.
    I will also consider adding the other points like Publication and in particular First-To-File as being Unconstitutional. Will appreciate any help.

  11. It looks like the most recent Senate Bill S1720 may be somewhat of an improvement over HR3309 and S1612 in that the” loser pays” provision only applies to the recovering the cost of determining the parent entity of the assignee if such was not disclosed by the plaintiff.

  12. As an inventor who lives outside the USA, we have looked to you as the standard for protecting IP rights inside and outside your nation. A leaning reason is the way the rights of small NPEs, colloquially referred to as TROLLs in their roll as David, have their time, money and effort protected in constitutional law by the Founding Fathers against the giant Goliath which in response we have nick-named OGREs. One needs that advantage to recover ROI and there is nothing to prevent licensing for royalties if the latter wants to proceed to market, is there. It was obvious then as it is now that inventiveness would be helped and not hindered by that cause. Big Business has the purse-string and deep-pockets to lobby Congres to further their cause but the pretext is a smoke-screen that will stem the tide of innovation that helped the American economy grow to become the envy of the world. Stop the insanity before it is too late.

  13. Thanks.

  14. *Sigh*

    More patent “deform” dressed up and disguised by the corporate overlords trying to excuse their IP thieving behavior.

  15. “loser pays” ?

    How about pro se patent plaintiffs who by definition can’t pay their own legal fees, much less opponent’s legal fees ?

    Guess our congress critters and their corporate owners don’t want to see such plaintiffs in court anymore…

    btw, pro se litigation may be the only remaining choice for individual inventors, as “loser pays” provision will most definitely chill all contingency litigation

    so much for quid pro quo

  16. Dude, are you familiar with how in England loser pays interacts with contingency fees?

    When a top law firm announces to the infringer that it has taken David’s case on contingency, that makes an Impact on Goliath, who usually then settles.

    Earlier, when David first found Goliath infringing, he found a law firm to take the case on contingency, then took out insurance against the risk of losing.

    When the case is duly won, the law firm gets double fees, paid for by Goliath (who also pays the insurance premium). David gets his injunction. And damages (or an account of Goliath’s profits).

    What’s not to like about that? Perhaps that David first needs a solid case?

  17. I do understand the point of view that “loser pays” won’t be as bad. After all, many of the tech elite fight a war of attrition on purpose as a strategy knowing they can fund the fight even if they lose and by stringing things out they win frequently just because the other side has to give up.

    Having said that, whether there is a legitimate concern about the loser paying, because after all if the positions taken are objectively reasonable the loser won’t have to pay, I think it is virtually certain that small business and independent inventors will modify their behaviors and this will likely further drive innovation under ground and into trade secret.

    -Gene

  18. Let’s also not forget that in areas were there is the shifting of fees is is MUCH easier to obtain contingent fee representation.

    While I definitely see it from the side of the small player from a fear perspective, and I greatly wish we had hearings on whether this was a good idea in the first place (which never honestly happened) I think it is a HUGE mistake for the players pushing loser pay to believe they will at the end of the day come out better off. I think the large players who are used to pushing around smaller players will wind up paying gigantic fees for their version of litigation abuse, which we all know happens.

  19. Gene, it sounds like you have shifted your position a bit on loser-pays. You’re saying that it would make easier for the small inventor to get contingent representation? As you may recall, I was a David that was sued by a Goliath, and I agree with you that loser-pays would not have deterred them in their desire to crush my start-up. But even having personally had that unpleasant experience, my main concern would still be preserving the ability of the small inventor/start-up to enforce/protect their IP.

  20. Max,
    And how many “davids” like you desribe (individual inventors winning zillions from major tech corporation based only on the strength of their patents) you have in Europe ???
    My guess is close to none – that is why all inventors from Europe used to file in US as their first choice, hmm… maybe not anymore…
    To me European Patent Office with their rules, fees, annuities etc. is a legalized ripoff – no quid pro que at all

    Bottom line: fee shifting provision can only work if there is certainty or near certainty in patent cases: the right side wins the trial with at least 90-95% probability
    In patent cases tried in US the best you can have is 60-70% chance of winning (my very optimistic estimate) even if you are absolutely right
    You gotta be crazy to bet on chances like these being a small undercapitalized entity

  21. Ron-

    I’m not shifting my position. My position all along has been that it is a bad idea because the choice was made for it to happen without any discussion of the consequences. The only question was how would it take form, not whether it should take form. This is an issue that definitely needs to be extensively studied. There are pros and cons. I think there is no doubt that for many inventors and small businesses they will not want to take the risk. I think there are certainly going to be more attorneys willing to take cases on a contingency, but that doesn’t always mean that the patentee will be willing to take the risk, which would result in bankruptcy if they lose and have to pay.

    Like so many times when patent reform is being discussed Congress simply rushes forward without much if any real consideration of the merits. Actually, that seems to be the way legislation is done in all areas any more come to think of it.

    -Gene

  22. Dude, fact is that leading London law firms do push their contingency capabilities. I think that is because it is profitable to do so. Here something from the Wragge firm:

    http://www.wragge.com/analysis_7361.asp

    For David in England, succeeding against Goliath, have a look at Wikipedia on Mandy Haberman:

    http://en.wikipedia.org/wiki/Mandy_Haberman

  23. My understanding from those even more learned than myself, is that the Renaissance Movement and Industrial Revolution in Europe was helped not hindered by patent laws which evolved to empower the emerging middle class and the Guilds which championed that cause. http://en.wikipedia.org/wiki/History_of_patent_law Now why would we take the chance to re-invent the wheel when no one has proven that it is broken, or take the chance to roll back the clock and risk innovation being stiffled?

  24. Sure, but before we cross-over the Big Pond, maybe these cases got Goliath nervous and off lobbying, when David won their settlements, eh…

    http://en.wikipedia.org/wiki/NTP,_Inc.

    http://en.wikipedia.org/wiki/I4i

  25. Max,
    With all due respect to Mandy, this is low-tech
    And I work in high-tech, you know, stuff like wireless phones, digital communications, speech recognition etc.
    Try to enforce your patent in those areas against the likes of Apple, Google, Samsung, IBM, Microsoft etc etc
    Good luck with that and I wont’ sell you insurance policy and nobody will…

  26. I think loser pay will inhibit good suits. However, in some ways loser-pay may also be helpful to inventors as long as it is based on the reasonableness of the case and it goes both ways. Once an infringer asks the court to throw it out and the court doesn’t, it will be hard to argue that the case was unreasonable. The inventor may be off the hook at that point, but not the infringer. However, that little pizza shop infringing on some wireless patent and mistakenly thinks they can win by hiring their favorite local attorney to fight it out might just lose their business.

    The real problem is joining parties who have no control in the suit and only have a financial interest like inventors who sell and keep a tail, or investors who fund for a percentage. Both can lose their personal property and this will kill investment and patent sales.

    The second real problem is bonding. I have no idea what a multi-million dollar bond would cost, but I’m sure it’s measured in hundreds of thousands. That will eliminate enforcement of many patents.

  27. Thank you Randy for all your efforts to help stop another wrong action against inventors! I’m proud to have you as an inventor in the Tampa Bay Inventors Council! People please act now and tell your government to stop this bill from becoming yet another oppressive law against the creative individuals who make the country great!

  28. Dude, at # 26, you remind me of the “no true Scotsman” story. Ms Haberman Story just Shows that it can be done, in Europe, by one determined individual.

    Now here:

    http://www.dw.de/germanys-ipcom-sues-apple-for-patent-violation-demands-record-damages/a-17423744

    is a tale of a PAE/NPE having a pop at the telecoms giants here in Europe. Behind IPCom is a patent attorney, very cute. IPCom has been at it for come years now, with much success.

    Is IPCom high enough tech for you?

  29. IPCom ?
    They bought a bunch of cellular standard essestial patents from Bosch a while ago
    Standard essential patents come with RAND pledge for patent owner – a promise “to be nice” to infringers
    We’ll see how much money they can extract from Apple – my guess it will be orders of magnitude less than what they are asking for….
    This is not the right example, Max, try an individual inventor of HIGH-TECH patent(s), not a well-financed IP-holding conglomerate
    Someone like Townshend in US extracting his dues from the industry for 56K modem in late 90s – a very high-tech invention at the time

  30. Paul,
    Sorry, but you just don’t get it, dude
    “loser pays” is a catastropic provision in the current environment where at best you have 60-70% chance of winning your patent case, and it goes on and on, trial, then appeal not to mention reexams and other nice things .
    Let’s face it: patent trial in US is a crap shoot
    Until this is fixed there can be no “loser pays” provision: it will kill off all undercapitalized patent plaintiffs – inventors, small tech startups, universities etc.
    Only giant tech behemots will be fighting war of attrition in patent courts
    And this is pretty much what they want

  31. Dude, how about Andreas Pavel:

    http://en.wikipedia.org/wiki/Andreas_Pavel

    I know he lost in the UK but it was a very close-run Thing. And see, from Wikipedia, it seems he did alright in the end. Since then, patent litigation in England has changed out of all recognition, to the benefit of David and not Goliath.

    Laughing, I leave you with this:

    http://en.wikipedia.org/wiki/No_true_Scotsman

  32. Even bad or seemingly “invalid” patents can be valuable as a litigation threat – it costs enormous amounts of time and money for a targeted company to go through the legal process of dealing with the asserted patent and litigants, even if it’s practically a sure thing for the target in my experience – patent litigation is still hit or miss nowadays and targets just don’t want to deal with the enormous risk, hassle and headaches involved (unless your a big company like Sony or Dow with deep pockets for example). “Bad” or even “not optimal” patents along with a patent thicket (having patents that have claims that cover the competitor’s product, and its method of using and making) can act as a “daisy cutter” in a way in clearing the competition out for a company that uses an aggressive weaponized patent strategy. This strategy can wreak havoc on a competitor – just like a scorched earth tactic that is extremely effective in dealing with competitor’s that don’t want to capitulate.

  33. Sounds very much like a case for anti-trust/anti-competition which is also goes against he grain of competition laws. > http://en.wikipedia.org/wiki/Competition_law

  34. Angry dude. I started my comment with I’m against it, and I am. And I believe I “get it.” I think the difference of opinion we have is the degree of damage.

    I am not convinced that just loser-pay on its own is lethal (or catastrophic as you put it) if it is based on the reasonableness of the suit filed and the defenses made, and it goes both ways. It appears to me that it could very well backfire on the big corporations who are bribing Congress for this anti-inventor legislation. In addition, there already is loser-pay in the law. Judges just have not used it much, but it looks like they will going forward with or without passage of this round of anti-patent legislation. Big companies litigate unreasonably at a much higher rate in an effort to drive individual inventors and their contingency firms, who would much rather settle, into capitulation.

    The most lethal part of loser pay is enjoining parties who only receive payment from the suit and have no decision making authority. This will totally wipe out investors in patents, and that will cause the patent system to fail for individual inventors.

    The second most lethal part is bonding. This will eliminate patent protection for the vast majority of patents becasue the cost will become prohibitive.

  35. Paul
    The is already Rule 11 at court’s disposal.
    The purpose of “loser pays” provision of the current bill is to codify into law an impossibility of any access to courts for patent infringement issues for small undercapitalized patent plaintiffs. Period.

    Will you or any reasonable person risk family bankrupcy if something goes wrong (can be anything from incorrect claim interpretation by the judge to illiterate jury – a 30% chance – very optimistically) even if you can win zillions ?
    are you a gambler ?

  36. It’s like I have been saying for years: (A) Independent Inventors (Micro Entities) go back to The
    Constitution Patent Law; (B) Corporations be covered by all European Law changes since Maintenance Fees were attached, e.g. Publication, First-To-File, etc.

  37. I know that this administration wants to be more like Europe I do not want to be more like Europe. the patent laws have worked for over 200 years and I would like to keep it the same. These changes will only help patent attorney and big businesses with deep pockets.

  38. Angry Dude. I agree with you. It’s not good.

    I think we are both talking about Rule 11 as the loser-pay that exists now. My understanding of current law under Rule 11 is that if you want the losing plaintiff to pay you have to prove the suit was brought frivolously. I’m not sure that works the same way if you want the losing defendant to pay and would love to hear if Rule 11 works both ways.

    What the proposed law does is change it such that the loser has to prove their actions were not frivolous, but it does not define the loser as the plaintiff, so it affects both sides. Again, correct me if I am wrong.

    If you add the other provisions (joinder and bonding), then loser pay is fatal to inventors without question. I think we both agree on that.

    The answer to your question is yes. I will risk it all to defend my intellectual property. I already have and will continue. They will stop me when I’m six feet under.

  39. Paul,
    The losing defendant in civil lawsuit has to pay by definition (well, maybe not anymore…at least in patent cases)

  40. Angry Dude, I don’t think they pay the plaintiff’s legal fees. I thought that was what we were discussing.

  41. I tried to get Mitt Romney to take up the fight for Independent Inventors. I am going to start working on Ted Cruz and Jeb Bush to start their Presidential campaigns for changing the Patent Laws.

  42. Frank, Go to Rand Paul too. I spoke with his staffer last week and he was very amenable to understanding what a patent is (an investment grade asset), and to what a patent troll is (an investor). I think he could sway and I think that most of the tea party republicans could sway. The old guard republicans seem entrenched because they view patent reform as a step toward tort reform overall. Democrats in tech regions like CA could also sway, but most seemed entrenched in Leahy’s patent reform proposal.

  43. Rand Paul is currently suing Obama on constitutional grounds.
    The current patent bill under consideration is an obvious and brutal violation of the spirit and letter
    of the United States Constitution, Article I, Section 8, Clause 8.
    Is there a possibility of filing a class-action lawsuit if they indeed enact the bill and it gets signed by Obama ?
    The interested parties here are not just independent inventors, but a lot of other entities: research universities,
    bio-tech companies, big pharma, technology start-ups relying on patent protection etc.

  44. That’s a really good question. We own the Constitution and it is what constitutes the government. If they break it, the government ceases to exist – or at least that is what Jefferson said. The right to a patent is clearly in it. Congress can pass laws to promote the progress. Perhaps this law goes opposite to that and could be fought. However, the exclusive right is also in the Constitution and the Supreme Court completely threw it away. I suspect that nothing in the Constitution is really taken seriously anymore. We need to elect politicians who respect the Constitution.

    I can tell you this. I met with Leahy’s senior person working on this law last week. She told me that Leahy will not budge on removing post-grant estoppal because he promised it during the AIA. I explained how it is fatal to inventors and she completely dismissed it and told me it was simply a scribner’s error. I understand it to be a hard fought battle with the so-called “scribner’s error” to be the end result of the compromise. It is also disingenuous to tell us that any phrase with such a profound meaning to a law is simply a mistake. The real reason is the promise Leahy made. He ensured that case count would go up after the AIA so he could use it to complete his promise. Nobody in politics makes a promise without getting something in return. I’d like to know to who the promise was made and what is being given back in return.

    As a side note, not three minutes after Leahy’s aid told me that Leahy would not budge on the PRG estoppal, she asked me to go to the Republicans and argue in favor of Leahy’s law. I didn’t.

  45. Angry dude & Paul-

    I understand what you are saying about the Constitution, but unfortunately the AIA and any patent reform legislation now being considered will not be declared unconstitutional. The Constitution grants Congress certain powers, but does not mandate that Congress utilize those powers. Article 1, Section 8, clause 8 says:

    “The Congress shall have power to… promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries…”

    While it would be extraordinarily ignorant for Congress to do away with patents they unfortunately could. This is not a mandatory provision.

    While I agree that the Constitution is unfortunately ignored today in many regards, there is no winning argument here that can be made that the patent laws are unconstitutional. I think effort needs to be placed where they will be potentially successful. Further, mounting a campaign to challenge the constitutionality of the AIA or current patent reform legislation will drive a wedge through those resisting and fighting against the bill.

    -Gene

  46. Paul M,

    The right to a patent is not clearly in the constitution.

    The delegation of power to a particular branch of the government, for that branch to have power to set the laws under which a right to a patent may be perfected is what is in the constitution.

    There is a difference.

    Yes, the constitutional language does yield parameters that any laws so passed by Congress must respect. That much is true. I would also agree with you that any interpretations of the Supreme Court are also bound by those same parameters (the legal bounds of eBay, for example, are not free to apply just any common law interpretation of equity that disregards the constitutional parameters regarding patents).

    That being said, I remain noncommittal at this point as to effects of loser-pays and constitutional implications of such a system.

  47. How does the law reconcile this? A patent is presumed valid in black letter law. It can only be invalidated by clear and convincing evidence with the burden of proof on the party seeking to invalidate the patent. Yet, a post issuance procedure can be started with “more likely than not” level of evidence and then the burden shifts to the patent holder to re-validate the patent through the administrative branch of government (not the courts)?

    I can’t find a way for my mind to say both ways are legit if a patent is presumed valid and there is a separation of government.

  48. Even though the Constitution does not mandate patents, it certainly encourages them and should be persuasive to Constituationally grounded legislators. Having said that, I have been underwhelmed by the actions of my congressmen here in Constitution-loving Utah on this issue. Rep. Chaffetz co-sponsored the Goodlatte bill in the House. Sen. Hatch sponsored companion bill S.1612 in the Senate, which was even worse than Leahy’s bill S. 1720. I’ve tried to bring up the issue with “tea party” leader Sen. Lee, but haven’t gotten through so far. His office said that he hadn’t looked at the bills yet when a called a few weeks ago. Last night I got in the queue at his “tele-town hall” to ask the question, but it was clear that the call screeners were looking for more “red meat” types of questions. So I left a voice message at the end. I also reached out to Jenny Beth Martin of the Tea Party Patriots, to no effect. It’s been pretty discouraging so far.

  49. I’ve stopped by Lee’s office several times and could not get anyone to talk to me. I’m not a constituent so I have little sway. However, most other Senator’s have at least allowed an aide to speak with us. We’ve got about 80% of the non-profit inventors groups signed up on this petition and that helps to open doors. We’re going to DC again next week. You could come with us or, if you like, you can ask Lee to talk to the Independent Inventors of America organization, and we can make the case. If you want more info email me at paul@morinville.net.

  50. Paul @47—

    With respect to inter partes review, for example, the AIA says this, which is now in 35 U.S.C. 316(e):

    “In an inter partes review instituted under this chapter, the petitioner shall have the burden of proving a proposition of unpatentability by a preponderance of the evidence.”

    This means that there is no presumption of validity of the patent in a post grant challenge. You are putting your finger on something that is troubling indeed. If the estoppel provisions are essentially removed and made only to apply to what prior art is specifically raised those facing patent litigation would be foolish not to file for inter partes review given how much easier it is to defeat patent claims.

    These “reforms” do nothing other than chip away at the value of a patent.

    -Gene

  51. Gene,

    Me thinks you jump the shark too soon on constitutional action.

    An issued patent is personal property bought and paid for by the inventor on the basis of more than just mere money (sweat and tears also). When a government agency steps in after it has once relinquished jurisdiction in order to double-jeopardy-wise strip away that personal property without full due process of law (i.e. that accorded in federal district court) … well maybe you get the wake in the waters that this shark is swimming towards: ;-)

    http://en.wikipedia.org/wiki/Equal_Protection_Clause#Application_to_federal_government

  52. Gene,

    There is some (small) rationale for a patent in review to not have the presumption of validity. As I understand the logic, such an item’s intrinsic right to be even considered a patent removes the veil of the presumption.

    But even as I may grant this slender reed of legal logic, there still exists a problem. The Office, as an executive agency (with mere Article I court authority) must make some inital determination to take (and I emphasize that word) personal property, evaluate that property, and grant the motion for post-grant review before that patent enters the world of lessened validity.

    It is this initial determination of whether to grant the review or not that is the point at which a taking is made. It is that precise point that an existing property right can be extinguished by the mere whim of an executive agency article I judge. And this decision is not appealable to any Article III judge – as far as I know. Whether or not a patent survives the post grant review process, a person’s property has suffered a taking. That loss of status as presumed valid is a valuable property right. These post grant reviews that do not feature a voluntary surrender of that right have a major (at least one) problem.

    Some may even argue the constitutionality of this taking (and the due process problems that come with how the power is wielded), but even if the due process is somehow alleviated, how would the government begin to estimate the value to pay a patent holder for the taking?

  53. step back,

    Your post seems to swim well with mine.

  54. Anon-

    When a government entity can take your real property and give it to another who they believe will make greater economic use of the land we really no longer have a limited concept of eminent domain or rational takings law. So while I philosophically agree with the thought process that leads you down the takings path, the Supreme Court has so thoroughly trashed the Constitution on takings that there is absolutely no chance that the erosion of patent rights would ever be viewed as a taking.

    Like you I also understand the theory behind no presumption of validity, but like most disingenuous arguments it falls apart after the first level. On the trademark side of the building we have a set of diminishing rights afforded the challenger over time. Easier to challenge in opposition, more difficult but still easy to challenge in a cancellation proceeding (although more expensive) but then after 5 years a trademark can reach incontestable status if only the applicant asks. It is virtually impossible to challenge a trademark that has achieved incontestable status. I see no reason why patents should not go through the same process. Given that trademarks can last forever and patents can last only 20 years at most, it would seem to make sense to accelerate the time a patent could obtain incontestable status to 2 or 3 years after issue. If the patent has not been challenged then it should only be capable of being challenged for inequitable conduct in obtaining the patent.

    Of course, such a pro inventor piece of legislation hasn’t any chance in this current climate.

    -Gene

  55. Sadly, I concur Gene.

  56. Anon,

    Yes we swim as parallel eels in the night.
    Unseen.
    Unheard.
    Wagging our tails for our own amusement.

    (I don’t always drink. But when I do, I drink Doh-Kool Aid. Stay thirsty my friends. –from the least interesting man in the world. A punk-funny TV ad for those not in tune with such things.)

  57. Gene,

    I think the point of my post at 52 differentiates “but like most disingenuous arguments it falls apart after the first level

    After the first level, the argument gains steam and becomes more coherent. It is at the first level that careful scrutiny reveals problems. The problem is lack of scrutiny at that level and an assumption that nothing is untoward, based on the later levels ‘authenticity.’

    We should shine the spotlight on where the logic is weakest, as that is where the chain can most easily be broken.

  58. Every political campaign speech includes something about helping the small business owner and the legal hurdles that make it difficult if not impossible for any start-up business:. The fact is, that is exactly what these changes do; present additional challenges for the small business owner and those of us trying to introduce new technology to the market and be fairly compensated. Please Washington, don’t place unnecessary challenges and financial hurdles in our way.. and take away the spirit under which this Country was founded.

  59. I will repeat it again, the Patent System has been changed since 1980 (Maintenance Fees, Publication, First-To-File), thus adopting the International Patent Laws and helping Corporations. Independent Inventors (Micro Entities) should be exempt from these changes and protected by the US Constitution.