Dictators, Property Rights and the PTAB: Why the AIA Must be Repealed

By Paul Morinville
November 27, 2016

EDITORIAL NOTE: This article was written and schedule for publication prior to the announced death of Cuban dictator Fidel Castro. Castro committed many unspeakable crimes against  the Cuban people during his reign, and confiscated much private property upon seizing power.

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Fidel CastroFor months people have questioned how the fortunes of inventors and startups may change as a result of who wins the presidency. Pundits have analyzed everything from lobbying money and political influence to grandparents and uncles to paint a picture of how each candidate might change the patent system. Now that Trump has won, the discussion has narrowed to whether Trump will keep patents weak or make patents great again. From the outside perspective, it is a curious exercise to say the least.

I recently attended the IAM Patent Policy conference where Trump and his transition team were the main course of discussion examining threads into his past, the people that surround him, and any other facets of Trump that could shed light on the likelihood the USPTO will be pro-inventor or pro-big tech.

But I have to ask… why are we even asking these questions? That question doesn’t get asked for other types of property rights. Property is property, right? Can you remember an election where people were asking if their deed would keep squatters out of their living room depending on who won the presidency? I don’t. It seems a preposterous question. After all, the deed on your house is a property right and everybody knows the government will back it up and eject the squatters. So why then do we, or should we, have to ask whether a Trump Administration will be in favor of strong patent rights? It all seems bizarre to say the least.

In America, we seem to understand the importance of property rights. They enable the flow of capital to improve property and that capitalization effect is directly related to the strength of property rights. In fact, one of the most telling signs that a third world country will remain a third world country is the strength and stability of its property rights. If property rights are weak, or if they change from weak to strong and back again at the whim of the dictator, or every time a dictator is killed, deposed or otherwise ousted, people cannot attract capital needed to improve their property and, well, nothing improves. If you cannot be sure you will own your property tomorrow why would you ever invest in it? Real property sitting unimproved and disintegrating is an unfortunately rationale choice in third world countries, as well as those ruled with dictatorial authority.

Even though patent rights are property rights in black letter law and hundreds of years of precedent, they no longer behave like property rights. Patent rights in America now behave like a third world property rights. Since the America Invents Act, patent rights are wagging the tail on a political dog becoming stronger or weaker depending on who is president and what favors are owed to those who helped that person along the way.

It is not realistically possible to remove all politics from the USPTO. They are an agency of the Executive Branch and the presidency is by its very nature a political office. In the end, examiners and PTAB judges are employees of the president. They have career paths and they obey those higher in the chain of command, a chain of command whose apex is the president. Politics unavoidably drives the president and therefore politics unavoidably drives the USPTO. That has been the case during substantial downturns, such as during the Obama Administration, and during good times for innovators, such as during the Reagan Administration when the patent system was seen as a way to encourage innovation so America could compete with Japan.

Since the patent office was created, the president has had control of it and many presidents have made patents harder or easier to obtain within certain boundaries. Only a small fraction of patents are ever commercially viable so granting patents has seldom been a significant political issue. No human endeavor, political or not, can ever be perfect and invariably some controversial patents have slipped through the USPTO. That human inefficiency made the job of invalidating patents a significant political issue.

Prior to the America Invents Act, the job of invalidating patents was handled by lifetime appointed Article III judges who do not have a career path and are not directly subjected to political pressure. This separation of power and the American construction of the federal courts brought mostly fair decisions on the validity of patents. For over 200 years, this system worked and created the most productive economy the world had ever seen. When the system seemed out of balance the solution in the 1980s was to create a specialized Article III court, the Federal Circuit. By doing so the integrity of property rights were maintained through a continued structure of checks and balances.

But the America Invents Act changed the property right system. It created PTAB procedures designed to invalidate patents in the USPTO, an agency of the president. The president, by and through the examiners and officials that work for the patent office, has always had the power to create a patent right, but now the same president, by and through administrative judges now also has the power to take the patent right away. This is akin to the dictatorial power of a third world country. Because of this concentration of power, the president controls the complete strength and validity of a property right. It is no secret that President Obama was closely aligned with Google, so it shouldn’t surprise anyone that those former Google executives throughout the Obama Administration adopted policies and views in synch with those of Google. Those Google friendly policies favored a few at the expense of virtually everyone else. But that is how the preferences of the president, and his allies, filtered through the patent system to the detriment of many.

The unfortunate reality is that this new power to grant and take a property right based on executive fiat undermines funding of new technologies and therefore undermines our job creation engine. A patent’s life spans the terms of at least three presidents, so every patent will be made stronger or weaker at least three times. A property right system will never be effective if the strength of the property right is a political dog’s wagging tail. How can anyone invest in any property right if nobody knows how strong that right will be in the future?

While many believe that we just need to fix the PTAB by bringing it in line with how Article III courts invalidate patents, the internal processes of the PTAB and the employees making the decisions within those processes will always be under the management control of the president. By the very nature of the administrative branch of government, the USPTO cannot be nonpolitical and therefore PTAB’s cannot be fixed to be nonpolitical. PTAB’s will always be political. While the jury is still out as whether Trump will make patents weaker or make patents great again, we will always have to ask the same question in every presidential election: Which candidate will make patents stronger? Which will make them weaker?

We compete in a global economy and unfortunately, while we cripple our patent system, China is strengthening theirs. We will not only purchase goods made in China as we do now, but they will also be invented in China. The America Invents Act must be repealed.

The Author

Paul Morinville

Paul Morinville is Managing Director of US Inventor, Inc., which is an inventor organization working in Washington DC and around the US to advocate for strong patent protection for inventors and startups. Paul has been walking the halls of Congress knocking on doors and sitting down with hundreds of offices to explain the damage suffered by inventors due to patent reforms. Paul is an independent inventor with dozens of patents and pending patent applications in enterprise software. He is also CEO of OrgStructure, LLC, an early stage enterprise middleware provider in Northwest Indiana.

Warning & Disclaimer: The pages, articles and comments on IPWatchdog.com do not constitute legal advice, nor do they create any attorney-client relationship. The articles published express the personal opinion and views of the author and should not be attributed to the author’s employer, clients or the sponsors of IPWatchdog.com. Read more.

Discuss this

There are currently 61 Comments comments. Join the discussion.

  1. David November 27, 2016 12:44 pm

    Hate to be the bearer of bad news, but patents don’t behave like property rights because they aren’t property rights – they are public rights.

    This is the elephant in the room that everyon should be writing about.

  2. Anon November 27, 2016 2:35 pm

    David,

    Just because the courts have leaned that way, does not override the direct words of Congress on the matter.

    Your “elephant” is hiding in a mousehole.

  3. Paul Morinville November 27, 2016 3:13 pm

    The US Constitution defines a patent as nothing but an exclusive right. How is that different than a property right?

  4. David November 27, 2016 4:15 pm

    A US Court of Appeals has established that patents are public rights, not property rights, and the Surpreme Court has shown no interest in revisiting that designation.

    Burying your head in the sand doesn’t help the situation.

  5. Anon November 27, 2016 4:39 pm

    David,

    Neither does ignoring the plain words of Congress.

  6. David November 27, 2016 4:47 pm

    I don’t think you understand how the judicial system works.

  7. Paul Morinville November 27, 2016 5:27 pm

    David, can you answer the question at 3?

  8. angry dude November 27, 2016 5:33 pm

    What is a “public right” ?

    Public disclosure of a patented invention does not mean that a general “public” (large multinational corporations + Chinese in disguise ) can just reproduce it and give nothing to the original inventor
    This was the whole purpose of the US Patent System as envisioned by the Founding Fathers and enshrined in the US Constitution:
    a “quid pro quo” – public disclosure in exchange for a limited-time *negative* right to exclude others from making, selling etc (not a *positive* monopoly right to produce something without competition)

    This, along with other things like electoral college, is an ingenious invention in itself..

    The Founding Fathers were not stupid after all, but right now they are spinning in their graves watching what Obama and his friends in SillyCon Valley have done to 200-year old US Patent System

  9. David November 27, 2016 5:40 pm

    Paul – a major US court has taken into account the aforementioned and determined, in a precedential opinion, that a patent isn’t a property right but a public right. The Surpeme Court tacitly agrees.

    This determination has very significant consequences for the patent system. In the 1980s, J. Newman wrote Patlex to protect reexamination. But that opinion provided the intellectual foundation for IPR/CBM/PGR – a three headed monster she has been attempting to control ever since in one futile dissent after another.

    After MCM v HP, a bifurcated patent system is the natural and logical result.

  10. David November 27, 2016 5:47 pm

    @angry dude – very simply, a public right is a right that belongs to the executive and legislative branches. A public right can be resolved conclusively and exclusively by an administrative court – such as the PTAB.

    The judiciary has give the other two branches the green light to remove patent validity from the Article III courts.

    There is a very powerful lobby backed by big money tech and the patent academics aggressively pushing for this result.

  11. angry dude November 27, 2016 5:59 pm

    David @10

    Sorry to break it to you, but “big tech” lobby money in Wash DC is gone, GONE !!!
    (and if some idiots try to push more SV lobby dollars toward some DC politicians I expects to see some interesting court cases.. jail terms maybe)

    Don’t you get it, dude ?

    And patent “academics” like that intellectually dishonest dude Lemley from Stanford mean nothing, absolutely NOTHING, without the money fed to them by same “big tech” (in the form of “research” grants etc)

    Dude, you’d better wake up

  12. David November 27, 2016 6:08 pm

    Jail time is for hiring DC lobbyists? What?

    It’s a good time to get out of patent law.

  13. John White November 27, 2016 6:41 pm

    Because the Courts have it wrong, doesn’t make it right. Otherwise a decision could never be overturned as wrong. A patent is a public grant recognizing a private property right. The applicant discloses their invention in exchange for a right to enforce that is limited in scope and time. If improvidentally granted the public grant may be altered or revoked. This makes perfect sense and is “just” if it is “apolitical”. Sadly, it is not at the moment; tech has won the day. As a result, the right, and the associated incentive for inventors to disclose and from which the public has greatly benefited, and as intended by the public grant, are being undermined.

  14. Night Writer November 27, 2016 6:54 pm

    @6 David: but, the SCOTUS could take this up again. Just because they haven’t yet, doesn’t mean they want in the coming years. Denial of cert is not a holding.

  15. angry dude November 27, 2016 6:56 pm

    David @12

    google “Jack Abramoff”, dude

    It’s a good time to get out of lobbying SillyCon interests in Wash DC

  16. David November 27, 2016 6:56 pm

    Night – agree. But three petitions were just denied without a single dissent from denial. Not a good sign.

    Nonetheless, once a full 9 return, we will likely see another petition.

  17. David November 27, 2016 6:58 pm

    Angry – if you legitimately think that the K St patent lobbyists are hurting for billable work you don’t know the business. At all.

  18. angry dude November 27, 2016 7:12 pm

    David @17

    I don’t know the ins and outs of “patent reform” lobbying “business”.. as it used to be

    But this “business model” is gone come January

    You still don’t get it ?

  19. JPM November 27, 2016 8:14 pm

    David, are you on Google’s payroll? Sounds like it. Inventor property rights have been absolutely destroyed by the PTAB. It needs to be shutdown it is a corrupt kangaroo court, bought and paid for by the infringer lobby.

  20. JPM November 27, 2016 8:19 pm

    Paul,

    Excellent article. I hope the Trump administration reads your article, and makes repealing the AIA a part of its drain the swamp initiative. The administration will hopefully understand the ramifications of the PTAB, how it is destroying patent values, and who bought and paid for the AIA and the PTAB.

    Efficient infringers are getting away with murder. Notice how patent values have absolutely dropped. If you speak to any of the top IP brokers (ie ICAP) or IP monetization firms that help inventors (ie Acacia) they will tell you that the PTAB has absolutely destroyed patent valuations.

  21. Curious November 27, 2016 9:35 pm

    politics unavoidably drives the president and therefore politics unavoidably drives the USPTO. That has been the case during substantial downturns, such as during the Obama Administration, and during good times for innovators, such as during the Reagan Administration
    Let’s be fair. The downtown started in the Bush administration with the appointing of Dudas — IMHO, the worse of them all. He was more (at least outwardly) anti-patent than even Lee (she had help from the AIA and the Courts — Dudas tried to muck things up on his own accord with his rule promulgation attempts). Kappos (first term of Obama administration) was a big improvement. However, Lee (second term of Obama administration) turned things back. Also, the AIA was written and passed by a Republican Congress — Obama signed it, but he didn’t draft it.

    Things aren’t as black/white, Republican/Democrat, pro/anti-patent as they seem when it comes to politics and patents.

  22. Curious November 27, 2016 9:38 pm

    Paul – a major US court has taken into account the aforementioned and determined, in a precedential opinion, that a patent isn’t a property right but a public right. The Surpeme Court tacitly agrees.
    Until the Supreme Court looks at the issue, they don’t tacitly agree to anything.

  23. David November 27, 2016 9:41 pm

    JPM – no; merely attempting to point out what the entire patent bar appears to have missed: a property right is not a public right, and vice versa. The courts know this; the legislative branch knows this; the USPTO knows this; its time that the patent bar comes to terms with this reality.

  24. Anon November 28, 2016 6:33 am

    the legislative branch knows this

    There, you are objectively incorrect.

  25. Eric Berend November 28, 2016 7:42 am

    A so-called “right” that can be harassed, invalidated by Article I bureaucrats at a whim, and subjected to endless ‘bites of the apple’ against its establishment; is but a mere illusion of that so-called “right”. There is a clear benefit to the U.S. when it protects promotion of new technological development in its economic markets. This benefit is not subordinate to the other public interest in the possibility that occasionally such grants of recognition of a particular claim of right as being patented, can be incorrect.

    The Patlex decision was one of the most torturous mistakes of the past 50 years in the Federal Appellate Courts, a legal monstrosity forged out of the motivation to protect patent re-examination, without establishing distinctions on a correct basis: that a “grant” of a legal “right”, is NOT said “right’, itself. At comment # 13., above, ‘John White’ has this stated this crucial distinction correctly.

    Here, we see “David”, the temporary resident ‘Big Tech Infringer’ sycophant appearing here, to assert his masters’ whims. Whims which insist that inventors, many of whom who have been de facto economic heroes of U.S. history, are suddenly to be regarded as charlatans and frauds.

    Whims which insist that the public interest in the fruits of the inventor’s labors, must be treated in a limited fashion; yet, the public interest in invalidation of improperly granted patents which favors their theft of said property, is asserted as being unlimited.

    The public interest in “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,…” is apparently so feeble and limited, that it must become micromanaged under the rubric of “but wait! We who insist upon YOUR compliance with opaque, byzantine and secret procedures of patent examination practiced with blatant incompetence; MUST BE SURE THAT IT’S PERFECT through INFINITE recourse at YOUR expense and harm – and NEVER MIND that this PRIOR RESTRAINT SANCTION essentially destroys the original public interest in its benefits”.

    The inventor is required to strive for arbitrary, wholly unwarranted and un-Constitutional performance, according to a ‘black box’ obfuscated process adjudicated by a ‘Star Chamber’ secret tribunal, bearing blatant influence peddling and cronyism which is protected from even the most mild criticisms.

    If this dictator’s paradise is what is supposed to pass for U.S. jurisprudence these days, then “bring back the Redcoats” – they had some 800 years of sage experience in such power abuses; and were far better at such administration: for inventors in America today, the Revolution is finished, useless, over with. Meet the new aristocrats!

  26. Anon2 November 28, 2016 9:30 am

    Eric@25

    Your post will likely go over the heads of most readers, and simply bounce off the Statist sentiments of those who do not know they are implicit collectivists.

    Quite interestingly dense and complex… but is it not expected that IP should now bear the brunt of the current collectivist assault? Private property, so called monopolies, securities, employment, banking, housing, health, education… the battles in these areas have been proceeding swimmingly for the collectivists for a century … tech and IP however, it’s just begun, and really, it is not surprising that the focus has shifted here now.

  27. step back November 28, 2016 9:43 am

    Eric @25 well said,

    Yes. Inventors are second class citizens, not entitled to property rights or equal protection under the law.

    All citizens are equal in this Brave New American World. But some are less equal than others. That applies to the inventor class as well as to a few others.

  28. Stuart Fox November 28, 2016 10:32 am

    Yes – Property is property and shouldn’t be trespassed or infringed –
    Can a Turkey plastic wishbone invention be infringement protected by Copyright ? > Yes again >
    http://www.luckybreakwishbone.com/ourstory.php > US Inventor Ken Ahroni – making it in America – won $1.7 million in a copyright infringement case against Sears and Young and Rubicam …… could it happen again ?
    Stuart Fox

  29. David November 28, 2016 10:36 am

    Eric – I don’t understand the need to shoot the messenger. I never said that the designation of patents as public rights is a good thing. I also agree that Patlex was a horrific opinion – it neither accurately reflects the Surpreme Court’s public rights jurisprudence nor makes logical sense. It was a politics-from-the-bench decision with unbelievably far ranging legal consequences for the patent system as well as separation of powers, and will likely define Newman’s legacy when she finally retires.

    Nonetheless, I continue to see article after article proclaiming that “patents are property rights! Patents are property rights!” They aren’t. They are public rights, and if the patent bar wants to do something about that, (1) it has to accept is as law per the CAFC and the 3x cert denials (and start acknowledging it) and (2) understand what it means from a legal perspective.

    Patent rights are no longer judicial rights. They are legislative rights.

  30. R Thomas Payne November 28, 2016 1:18 pm

    Paul:

    I agree wholeheartedly, Excellent Article! I hope the Trump administration, and specifically the Vice President-elect, reads your article, and makes repealing the AIA a major part of its drain the swamp initiative in order to reverse the technology drain from the United States to our economic competitors around the world.

    As you know, I am actively perusing Presidential appointment to be the next Under Secretary of Commerce for Intellectual Property and Director of the United States Patent and Trademark Office. If confirmed, I will do everything possible, with your assistance and the assistance of hundreds, if not thousands of intellectual property professionals and innovators, to restore the United States intellectual property system to its rightful place in recognition of the tremendous contribution by the United States Patent and Trademark Office to the economic success of this country from inception (Thomas Jefferson) to present. I hope that the Trump administration will understand the ramifications of the PTAB, how the PTAB has destroyed patent values, and who bought and paid for the AIA and the PTAB. The Trump administration must reverse this blatant attempt to reduce the United States to a Third World economy rather than issuing patents covering Intellectual Property invented by our United States innovators to “Make America Great Again”!

    Efficient infringers are getting away with the equivalent of criminal murder. Notice how patent values have absolutely tanked. Top IP brokers (i.e. ICAP) and/or IP monetization firms that facilitates inventors (i.e. Acacia) obtaining further funding for their innovations unequivocally state that the PTAB has absolutely destroyed patent valuations.

    I believe that I am the best-qualified person to lead the United States Patent and Trademark Office during these trying times. I began my career as a drafted Army private, being selected for, attending and eventually graduating from the United States Military Academy and developing tremendous leadership skills during my time in both the regular and the reserve components of the Army, as both an infantry combat branch officer and a Jag officer.

    I have actual industrial experience with General Motors, while I was a full-time student at the University Of Dayton School Of Law in Dayton Ohio, working 50-60 hours per week. As the Patent Counsel for the Deere lawn and garden business, I gained considerable Intellectual Property Counsel experience, including high-level negotiations in Japan. As the Patent Counsel for GE Motors, GE Transportation Systems, including participating in billion-dollar transactions in South America, Europe and Asia (two reports away from Jack Welch), and later at the Corporate Research and Development facility in Niskayuna New York. I increased my intellectual property expertise training younger patient professionals. As a partner, specializing in intellectual property, in a major Connecticut law firm, I significantly grew my understanding and respect for Intellectual Property. As the Chief Patent Counsel for my primary client, Cuno Inc., I continued my IP education while developing Cuno’s superior patent portfolio. According to my understanding, the patent portfolio that I supervised and built was a major factor in the purchase price of $1.9 billion when 3M purchased Cuno in 2006.

    When my West Point classmate, Senator Jack Reed of Rhode Island, inquired concerning my interest in becoming the Under Secretary of Commerce for Intellectual Property and Director of the United States Patent and Trademark Office in the event that David Kappos should resign, I agreed. In preparation therefore, I became an examiner at the United States Patent and Trademark Office.

    You may ask why I would become an examiner. At West Point, we learned that, as leaders, we needed to have actual experience performing the tasks that those that we led performed on a daily basis. Basically, the nuts and bolts of the United States Patent and Trademark Office is its examiners and I, due to my West Point training, believed it to be of supreme importance that I experience firsthand what the 8000+ patent examiners did on a daily basis and that is what I did. During that time, I learned, through actual experience, what really occurred at the examiner level and was thus prepared to be able to separate misinformation from fact communicated to the Director, by the USPTO bureaucracy.

    I recently ran for Congress and that was a humbling yet enlightening experience like no other. If nothing else, I learned to respectfully, ask for people’s votes to be their Congressperson. Now, I am respectfully requesting that you provide the equivalent of a vote for me to be the next Under Secretary of Commerce for Intellectual Property and Director of the United States Patent and Trademark Office directly to the Trump transition team.

    As the Under Secretary, I would consult with all respected IP professionals and corporate and individual innovators, on each and every major decision and also look to you for guidance at all levels, but especially at the level of exercising the Director’s discretion in narrowing the PTO’s interpretation of various court decisions relative to §101, unpatentable, subject matter, rejections.

    Thank you so much for your kind attention to this “poor West Virginia hillbilly boy” and I hope that you will support my appointment and confirmation and, once confirmed, assist me toward our mutually agreed-upon goals to reform the USPTO.

    GREAT THANKS FOR YOUR KIND CONSIDERATION!

    Kindest regards and best wishes for your continued success and happiness,

    Tom
    R Thomas Payne
    USMA1971@aol.com
    202-999-9051

  31. EG November 28, 2016 3:17 pm

    David,

    How can patents be “public rights” in view of 35 USC 261? As others have said, patents are not “public rights,” but are instead “personal property” per 35 USC 261-as such, patents can be assigned (transferred), devised, inherited, etc., just like any other “personal property.” The fact that the courts refuse to acknowledge what Congress has already expressly enacted (and reflecting over 200 years of legal precedent going back to when our Constitution was enacted) does not make it correct, but instead an embarrassing example of judicial fiat, not the rule of law.

  32. Anon November 28, 2016 3:17 pm

    A bizarre statement: “Patent rights are no longer judicial rights. They are legislative rights.

    As noted, the legislature has objectively stated that patents are personal property and it is the courts that have attempted to designate otherwise.

    Courts doing so simply lack authority of law under our Constituion and any such attempt is ultra vires.

  33. David November 28, 2016 3:29 pm

    Patents are public rights.

    Patlex v Mossinghoff (cert denied)
    Joy Tech v Manbeck
    MCM v HP (cert denied)
    Cooper v Lee (cert denied)
    Cooper v Square (cert denied)

    Article III involvement 100% discretionary per this designation.

    Roberts, Thomas, Alito, Kennedy had a chance to intervene.

    They declined. The patent bar must live with the new normal.

  34. angry dude November 28, 2016 3:37 pm

    David @29
    “It was a politics-from-the-bench decision with unbelievably far ranging legal consequences for the patent system as well as separation of powers, and will likely define Newman’s legacy when she finally retires”

    Dude, do you seriously think that all this legal mess created by scotus and cafc over the last 10 years will stand for any prolonged time ?
    After current dudes on those courts retire or die the next batch comes in and spits on their predecessors decisions, and rightly so
    just like Trump spits on Obama’s “legacy”
    looking forward to this

  35. Gene Quinn November 28, 2016 4:22 pm

    David-

    Patents are not public rights. Only someone who is completely ignorant would every write such utter nonsense. Patents are a property right and property rights are not public rights. Please inform yourself before you make further foolish, and utterly ignorant statements here.

    -Gene

  36. David November 28, 2016 4:41 pm

    This place is the twilight zone. It’s not me saying it. It’s the CAFC – in precedential, published orders.

    Ignorance allows for the reckless aggrandizement of power. Inform yourselves.

  37. Night Writer November 28, 2016 5:04 pm

    @36: David: I think that patents right now are being treated as public rights, but I think this is an area of contention and the SCOTUS and Congress have not yet acted. Denial of certs are not holdings. Moreover, I think many people feel that the SCOTUS has gone off the rails and that much of their patent jurisprudence is going to be overturned.

    For myself, I think what is going on is simple to understand. The federal courts tried to deal with all the patent cases and couldn’t.

    So, for the SCOTUS, the question is do you want all this in the federal courts or in the patent office. (Do not forget that Roberts is in charge of the federal courts.) I think that is what it is all about. Who is going to do all that work? I think the SCOTUS wants it to be the USPTO.

  38. Night Writer November 28, 2016 5:16 pm

    To my mind—I think this is a practical issue–the issue is what solution to the problem is possible that is different from the IPRs, CBMs, and PGRs. Imagine if you will that Congress said that a driver’s license was a not a public right, but a property right. The federal judiciary would be flooded with cases on driver’s licenses.

    I think this issue comes down to a practical issue that the scale is larger than the federal courts can handle so they want to put it off to the USPTO. (It is true that this has been done in a very anti-patent manner and that there are other forces at work.)

    But, big picture is that this is a practical problem. And if we don’t want patents treated as public rights then we need to propose a practical solution that doesn’t mean that the federal courts are going to have to take all this work the PTO is doing. This is essentially the same problem that the APA tries to solve.

  39. David November 28, 2016 5:29 pm

    Night – good post.

    The solution is easy.

    (1) harmonize the relevant legal standards;

    (2) make PTAB judges Art III with lifetime tenure with salary guarantee.

    (3) re-classify patent validity as a private right.

    The big money lobbyists of course will never support this. Article I APJs that answer to the executive can and will be swayed by political influence. That political influence is purchased via campaign contributions at the congressional level.

    Once upon a time, the patent troll bit SV hard, and it is now pushing back in a very serious way that everyone should be paying attention to.

  40. Edward Heller November 28, 2016 6:01 pm

    I see my little effort to overturn Patlex has born fruit. Good article Paul; and thanks for your support in our petition to the Supreme Court in MCM Portfolio LLC v. HP.

    In our efforts to repeal IPRs, we need to consider the central justification for putting patent validity into the PTO: so-called, administrative expertise. This is the central reason for the creation of administrative agencies in the first place: to put complicated question of policy into expert hands — particularly where decisions are made as a matter of discretion.

    But, where patent examiners are required to have the appropriate scientific education in the particular art and some expertise in examining applications in that art, there is nothing similar required of the PTAB members judging a particular case. All they are required to have is a scientific or engineering degree, and expertise in patent law. But they are not required to know anything at all about the technical subjects before them. And so, they cannot add to the skill of an Article III judge anything but a scientific background, which the judge can get using court-appointed experts where necessary. So there is no agency expertise that one gets from the PTAB that one does not get in an Article III court.

    In contrast, an Article III judge brings overall general expertise in the law to bear on a patent case that a member of the PTAB can never achieve. Thus the overall legal skill level of an Article III judges can generally be expected to be greater than the overall legal skill level of a patent APJ.

    But the most important factor to a patent owner is complete neutrality. This can never be expected out of a political organization. Even patent applicants, denied a patent by the PTAB, are entitled to their day in court where an Article III judge may order a patent to be issued. It is amazing that we can allow an issued patent to be revoked by political organization without ever having a right to a day in court.

    I have pointed this out before, and I wish to point it out again, one of the reasons for our revolt against King George, as set forth in the Declaration of Independence. was his having the right to hire and fire judges at will, and his right to set their salaries. To the Colonies, such judges were not the judges of common-law and were not the kind of judges due process required.

    Stripping property owners of their rights by judges who subject to political will is truly alien to English and American culture and law. To many of us, the AIA is unconstitutional to the extent of IPRs; but the Supreme Court has decided not to hear our appeals. We truly need a repeal.

  41. Edward Heller November 28, 2016 6:07 pm

    @Tom Payne, interesting background, indeed. I would not oppose you.

    All, Is Phil Johnson yet committed to repealing IPRs, or just tweaking them. If the latter, he would seem to be quite insensitive to the fundamental due process need for an independent judiciary before one’s rights are stripped.

  42. angry dude November 28, 2016 6:23 pm

    David @39

    How bout killing PTAB and doing proper examination in the first place instead – like allowing at least a week to examine a high-tech patent by a group of PTO examiners with proper scientific credentials?

    The fact that some outfit can issue (sell) some “rights” to people and then invalidate like 80 percent of them is complete bs

    “Once upon a time, the patent troll bit SV hard”

    Ha-Ha-ha-Ha

    Poor poor SillyCon valley dudes pumping up ridiculous worthless companies nobody in the world needs (more than half of all SV companies) and thinking so high of themselves as “innovators”

    Just how hard they’ve been hit ?

    Can you give us any names or it’s just a SV myth?

    Names pleeeeeeeaaaase ?

  43. David November 28, 2016 6:43 pm

    Google for one is less than pleased with some of the payments it has made in the past.

    Your proposed partial solution of improving patent quality at the pre grant stage is a very good one.

  44. angry dude November 28, 2016 7:06 pm

    David @43

    Google can easily license or buy any patent they deem valid and important to their business but they still practice efficient infringement…
    Why ? Because they can…

    May I remind you that they had so called patent Palooza action some time ago and the max price they paid was a litlte over 200K a patent – hardly an impressive figure for SV – that’s an annual salary of a decent (but not extrodinary) software engineer

    This is after buying Motorola junk patent portfolio at 600K something a piece – totaling 12.5 B (that’s Billions)

    Google is one of the most hypocritical companies on this planet

    don’t be evil, yeah

  45. Night Writer November 29, 2016 6:27 am

    @40 Edward. That is a good post. None of the 101 witch thought in it.

  46. Night Writer November 29, 2016 6:43 am

    Just one quick dose of reality: 1) The U.S. has the biggest and most sophisticated software industry by about a factor of 10. 2) Google grew-up because of patents. 3) The software industry was not started on, but has thrived and grown and continued to dominate the world with patents.

    That is reality. Reality is that patents haven’t cause much trouble and have produced unbelievably great results. Reality is those that are trying to weaken the patent system like Google are doing so to protect their monopolies.

  47. Anon November 29, 2016 6:48 am

    Once you place Mr. Heller outside the bounds of his anti-business method, anti-software stances, he tends to start acting like a rational person.

  48. Night Writer November 29, 2016 7:38 am

    https://en.wikipedia.org/wiki/J%C3%BCrgen_Schmidhuber

    This is one of the people saying that information processing is a science. This really shatters the Benson nonsense and the witch law nonsense.

  49. Anon2 November 29, 2016 12:48 pm

    Night Writer@48

    “saying that information processing is a science”

    If this fellow said this he would be committing an error.

    Science generally is the study of reality, which may focus on specific parts of it (e.g. biology, fluid dynamics, astronomy), and which activity has as its purpose knowledge of said reality. “Information processing” is activity carried out by a machine or sufficiently complex system. Such things in reality which actually process “information” are not “sciences”, but as all things in reality may be subject of study, surely there can be a science OF “information processing” and/or “processing systems”.

    If this person claims “information processing” IS a science he is committing a huge logical error.

  50. Night Writer November 29, 2016 1:10 pm

    Anon2: I don’t think so. For one, the natural world has all sorts of animals and plants that perform information processing, so it is a study of the natural world.

    Moreover, just carrying that forward to artificial information processing (by man), is typical of science.

    Information processing and representation is necessarily physically based. (Unless you believe as many of the justices that information processing occurs in the spirit world.)

  51. Anon2 November 29, 2016 1:56 pm

    Night Writer @ 50

    Did you even read my post?

    Plants are not “a science”… but science can study plants…
    Information processing (an action occurring in nature) is not “a science”… but science can study it.

    Things in reality studied by science are not themselves “science”… this is obvious.

  52. Night Writer November 29, 2016 2:39 pm

    @51: OK. The study of information processing is a science. You knew that is what I meant.

  53. Anon2 November 29, 2016 4:38 pm

    @52

    So how does realizing that information processing systems can be studied and subject to scientific investigation :

    “really shatters the Benson nonsense and the witch law nonsense.”

  54. Night Writer November 29, 2016 10:46 pm

    @53 Anon2: for lots of reasons. You tell me what Benson holds and then justify one of its holding related to information processing.

  55. Anon2 November 30, 2016 7:51 am

    NW

    With respect, nothing “new” needs to be established to recognize the flaws of Benson, moreover, the fact that “information processing” can be studied by science is obvious and always has been to anyone who knows anything about science and information processing systems, the latter having been around for over half a century.

    I do not endeavor to justify anything of Benson, I merely question any new significance to what this fellow is saying to any proper analysis of the reality and patent law.

  56. Night Writer November 30, 2016 8:02 am

    @55 Anon2: The significance is that it illustrates that information processing has all the characteristics of any other area of inventions. There is no basis to treat it differently. The conservation of information is often said to be the most important law of physics. This guy is just another person saying the same thing.

    What Benson and Alice do is generate some abstraction in the head of the fact finder and then accuse the invention of being that abstraction. That is witch law. Stevens, in fact, clearly believed that his own information processing occurred in the spirit world.

    What basis is there for Benson to say that information processing is something called “math” that should not be eligible for patentability or some attempt at capturing natural laws (whatever those are).

  57. Anon2 November 30, 2016 8:52 am

    NW@56

    I have similar distaste for Benson, and in that we are agreed.

    I merely noted the error in holding “information processing” IS a science.

    Ironically, you recognize Benson’s holding “that information processing is something called “math” ” is erroneous. It is precisely the same type of error.

  58. Adrian Pelkus November 30, 2016 5:57 pm

    Great article Paul.
    Brilliant comments and rebuttals.
    Deep subjects for follow on debates.

    Meanwhile lets make repealing AIA a topic at Trumps table next month.
    I’ll work to inform inventors to follow this site and send their suggestions directly to his website. Where or to who else should we ask inventors to write and ask for the repeal? Thanks!

  59. Night Writer December 1, 2016 7:10 am

    @57: Anon2, or they are nothing alike. Mine was a misstatement. Theirs is an intentional misrepresentation made for their anti-patent judicial activism purposes, or they have minds straight from medieval times. You can be a bit pedantic.

  60. nocompressorfreon-freeACinventor December 7, 2016 4:41 pm

    The article is right on the mark. Take a look around – everything American has been under attack, for quite some time, by enemies foreign and domestic. As I see it, it all began with the changes in NAFTA. The writer above that asserted patents as a public right, is of the similar mind to those who believe the second amendment only gives the executive branch the “right” to bear arms, etc. The second amendment grants nothing – inalienable rights cannot be granted by government. Amendment II is a prohibition on government. However, government can grant civil rights, which can be taken away, which is how I view patents – its en exclusive property right with an expiration date. On the flipside, I understand how large entities that make huge investments in technologies, could be caused to cry like little babies when an inventor comes along with something that obsoletes their investment, e.g., a new alkylation catalyst destroys the capex investment of prior art – but, that’s just how the system works. Just because you don’t like the Electoral College, don’t whine about it, go somewhere else. Destroying the patent system isn’t the answer, unless you’re a Collectivist commie who wants to tell others what to do all the time. You might seem to “win” for a while, but the world you will control won’t be worth having, you’ll be the master of a bunch of ninkompoops. We need men of integrity in the judiciary to step up and restore the patent system already, and let us get back to work with our improvements. The PTAB at present, hinders progress in the useful arts, I know quite a few inventors who won’t even waste their time with the PTO anymore. I lose, you lose, society loses. What a waste.

  61. Edward Heller December 7, 2016 6:11 pm

    nocompressor@60, check http://www.ipwatchdog.com/2016/12/05/patent-infringer-lobby-trump-patent-reform/id=74869/#comment-2731546 at post 22 where I go through a list of reforms that generally undo much of what has been done to us since NAFTA in patent law, taking away specific advantages of the US patent system, making it both less robust and agnostic as to where the R&D that created the patent was conducted.

    US engineers and programmers today exist in a world where their jobs can go anywhere in their world because there is no disadvantage in doing so in terms of the patent law. How can we expect American youth to spend the dollars it takes to get educated when they have to compete against the entire world and its low wages?

    We used to have a system where Americans had significant patent law advantages over foreign invention, so much so that managers would think twice before relocating R&D jobs abroad. Americans had a grace period, foreigners did not. Our prior invention was prior art, theirs was not. In a contest among rival inventors, they had their filing date, we had our date of reduction to practice.

    With NAFTA and the WTO, we gave up some of these advantages. With the AIA, we abandoned ship.

    It is time for all of us to get mad at what has been done to us by these treaties — where America’s advantages have been negotiated away, and for what?

    The new administration gives us hope that we can still save the US patent system.

    Just as a thought item, what if we suspended the “privilege” of non US citizens for filing or obtaining patents in the US, unless they could show that the invention was made in the US or that the patentee had definite plans to manufacture here. R&D and manufacturing would stay put, and, I suspect, a lot of new such jobs would flow into the US. This is an example of reform that might actually advance the useful Arts in the United States.

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