Patent Reform 2017: Changes coming from the Judiciary, Legislative and Executive Branches

By Gene Quinn
February 12, 2017

Time for changeWhile calls for widespread patent reform are not as loud as they have been in previous years, 2017 is shaping up to be a year where we may still see significant change to U.S. patent laws. What will the changes to U.S. patent laws look like over the next year? The better question may be to first ask whether those anticipated changes will be coming from the judiciary, legislative or executive branch, all of which will take center stage at some point in 2017.

On January 31, 2017, the Intellectual Property Owners Association (IPO), announced the adoption of a resolution supporting legislation to amend 35 U.S.C. § 101. The IPO recommends a legislative solution that would both amend the current language of § 101, and which would add two new subsections to § 101. The IPO language would overrule substantial portions of Mayo v. Prometheus, and would do away with the abstract idea exception to patent eligibility. That IPO has taken a position on legislative language is quite important given the large corporations that make up the Association. AIPLA and the ABA have also had taskforces working on this issue and are supportive of a legislative fix. Additionally, Senator Chris Coons (D-DE) has written that he has concerns about the lack of clarity surrounding 101 jurisprudence and has suggested that it may be necessary for Congress to step in in end the confusion and provide businesses with certainty. Thus, the time could be now for a push to legislatively address the Supreme Court’s subjective 101 jurisprudence.

On January 30, 2017, President Trump signed an Executive Order to dramatically reduce the number of regulations promulgated by agencies. Under this Executive Order, whenever an agency promulgates a new regulation it must identify at least two existing regulations that will be repealed. Furthermore, the total incremental cost of all new regulations must be no greater than zero. While this applies to all agencies, it seems that patent regulations will be necessarily streamlined. For example, the Federal Circuit is expected to rule that the USPTO has improperly shifted the burden onto patent owners with respect to amending claims in post grant proceedings. Such a ruling would likely require fresh administrative regulations, which would not only change post grant procedures but which would also need to identify at least two existing regulations to be repealed. It could be a very interesting 2017 for the Patent Office.

Then on February 1, 2017, Congressman Bob Goodlatte (R-VA), who holds the Chairmanship of the House Judiciary Committee, unveiled his agenda for the 115th Congress. Not surprisingly, a portion of his agenda includes additional patent litigation reform in order to address what he characterizes as “truly frivolous lawsuits,” as well as reforms to keep America’s patent laws up to date and copyright reforms to help ensure “America’s global leadership in creativity and innovation continues.” Exactly what these patent litigation reforms will look like has yet to be detailed, but in the 114th Congress it was Goodlatte who introduced the Innovation Act, which was not viewed favorably by many innovators. See here, here, here, here and here.

Even if there are no new administrative regulations or legislative reforms, the Federal Circuit could be quite busy reviewing Patent Office interpretations of the Patent Act and their own regulations. For example, on January 11, 2017, the United States House of Representatives has already passed the Regulatory Accountability Act of 2017, which in part would modify the scope of judicial review for agency actions. If passed by the Senate and signed into law by President Trump, it will authorize courts reviewing agency actions to decide all relevant questions of law de novo, without giving deference to the agency’s interpretation. This would significantly open the door for the Federal Circuit to reconsider all of the Patent Office’s interpretations of the America Invents Act (AIA), particularly many issues associated with post grant proceedings that were previously believed to be settled, including the propriety of using the broadest reasonable interpretation (BRI), among many other thorny issues.

Then, at some point before the Supreme Court’s term ends in June 2017, we can expect a ruling in the TC Heartland case, which will decide whether 28 U.S.C. § 1400(b) is the sole and exclusive provision governing venue in patent infringement actions. See here and here. The statutes in question will be 28 U.S.C. § 1400(b) and 28 U.S.C. § 1391(c). Pursuant to § 1400(b), a “patent infringement may be brought in the judicial district where the defendant resides, or where the defendant has committed acts of infringement and has a regular and established place of business.” Pursuant to § 1391(c), a corporation is deemed to be a resident of “any judicial district in which such defendant is subject to the court’s personal jurisdiction…” The Federal Circuit has for 25 years operated under the belief that 1988 amendments by Congress “rendered the statutory definition of corporate residence found in § 1391 applicable to patent cases.” But in 1957 the Supreme Court specifically ruled that § 1400(b) was the sole and exclusive provision controlling venue in patent infringement cases. The Supreme Court taking this case suggests they are likely overrule the Federal Circuit and say that § 1400(b) is still the only provision controlling venue for patent cases. Regardless of how the Supreme Court decides TC Heartland, you can expect venue reform to return and heat up once the Supreme Court issues a ruling.

webinarPlease join me for a free webinar discussion of these topics on Thursday, February 16, 2017, at 12pm ET. I will be joined by Bart Eppenauer, former Microsoft Chief Patent Counsel and current Managing Partner at Shook, Hardy & Bacon, and Hans Sauer, Deputy General Counsel for Intellectual Property at the Biotechnology Innovation Organization (BIO). In addition to taking as many questions from the audience as possible, we will discuss:

  1. Possible statutory amendments to 35 U.S.C. 101, and their likelihood of succeeding.
  2. What administrative rulemaking at the USPTO will look like, and the importance of agencies losing Chevron.
  3. The prospects for venue reform and what the Supreme Court is likely to do in TC Heartland.
  4. The key players and constituencies that will shape patent law during the 115th Congress.

 

The Author

Gene Quinn

Gene Quinn is a Patent Attorney and Editor and founder of IPWatchdog.com. Gene is also a principal lecturer in the PLI Patent Bar Review Course and an attorney with Widerman Malek. Gene’s specialty is in the area of strategic patent consulting, patent application drafting and patent prosecution. He consults with attorneys facing peculiar procedural issues at the Patent Office, advises investors and executives on patent law changes and pending litigation matters, and works with start-up businesses throughout the United States and around the world, primarily dealing with software and computer related innovations. is admitted to practice law in New Hampshire, is a Registered Patent Attorney and is also admitted to practice before the United States Court of Appeals for the Federal Circuit. CLICK HERE to send Gene a message.

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 62 Comments comments.

  1. angry dude February 12, 2017 6:21 pm

    Sick and tired of all of this.
    Done with US Patent system.
    I would go to China for fair and balanced patent system (not kidding here) but the problem is – I’m not Chinese.
    Just find me another planet.

  2. Inventor Woes February 12, 2017 8:52 pm

    What about the European Patent Office?

  3. Benny February 13, 2017 5:24 am

    Angry,
    You want to read a few Chinese patents before you call their system “fair and balanced”. They have a very low bar for novelty and inventiveness. You could get a Chinese patent for a product which had been patented in the US a decade before and was on sale in the shops. I have examples. You also wouldn’t get very far trying to enforce your Chinese patent in the US.
    Inventor – you stand a better chance of pulling a fast one on a US examiner than on a EPO character.

  4. Frank Lukasik February 13, 2017 6:45 am

    We adopted the European Patent when we adopted the First-To-Fi;le policy. Expiring Patents for non-payment of Maintenance Fees should also be changed. (Lucree v. US, Supreme Court,
    No. 14-1340)

  5. angry dude February 13, 2017 9:33 am

    Benny @3

    I can’t read any Chinese patents cause they are .. Chinese

    And they are for China and Chinese folks – not for US or US citizens

    All I want to say is that China apparently takes care to protect their startup ecosystem nowadays and US does not.

    And this is quite a shame.

  6. American Cowboy February 13, 2017 9:37 am

    Goodlatte agenda includes “reforms to keep America’s patent laws up to date”

    Up to date in the minds of Google?
    Up to date in the minds of Intellectual Ventures?

    Concerned citizens want to know.

  7. Benny February 13, 2017 9:52 am

    Angry,
    Try Google patents. You get to read them in Chinglish. Good enough to figure out that what passes for a claim at SIPO doesn’t always fit the definition of an invention in US law.
    Compare, for example, CN204640250 with US7080455. The Chinese version is a utility model, so is examined for novelty only, but I don’t see any novelty here. Is that your idea of a functioning patent system?

  8. angry dude February 13, 2017 11:18 am

    Benny @7

    At this point I lost any interest in patent system.
    It ate my money, tons of effort and time I could use doing something else.
    But what’s much worse – it fraudulently encouraged me to disclose something important (just before Ebay), promising “exclusive rights” which turned out to be a complete fake..

    Trade secrets from now on

    “Fool me once – shame on you, fool me twice – shame on me”

  9. staff February 13, 2017 12:39 pm

    ‘That IPO has taken a position on legislative language is quite important given the large corporations that make up the Association.’

    No doubt, the issues can be polarizing. On one hand we have large multinationals who are often more infringers (thieves) and on the other we have inventors and other small entities who rely heavily on their ability to protect their inventions from their large competitors. That’s why most every recent change in law has benefited infringers at the expense of small entities. All those ‘reforms’ have done is legalize theft so our large competitors can more easily rob and crush us. Don’t believe the Chinese style propaganda of thieves. Just because they call it ‘reform’ doesn’t mean it is.

    For our position and the changes we advocate (the rest of the truth) to truly reform the patent system, or to join our effort, please visit us at https://aminventorsforjustice.wordpress.com
    or, contact us at aifj@mail.com

  10. opponent of patent thieves February 13, 2017 2:29 pm

    Angry Dude, why was your patent application published? Did you file outside the US? If not, there was virtually no reason to let it get published.

  11. Eric Berend February 13, 2017 3:01 pm

    These Denizens of Dubious Daring, Plundering Pirates of our Properties have become addicted to many ‘bites at the apple’.

    But this applies not only in their approach to litigation and the influence wrought over wholesale, radical changes to jurisprudence performed in consequence; there are these many journeys to the legislature in the zeal for ever-greater demands for so-called “reforms”.

    Where now, is the time honored legal and ethical principle of allowing a person or party “one bite at the apple”? Apparently, inventors are no longer to be treated with the legal standing and rights granted all others – even alien persons in certain proceedings – in the halls and institutions of American jurisprudence.

    This presents as another way or channel of disruption to the inventor’s milieu: as much a detriment as for businesses or any endeavor for success. A new law to be enacted, every year? How can the inventor maintain reasonable concentration on invention development, if the ground is made to shift so frequently and abruptly beneath his or her feet?

    Strategically, I see this as yet one more aspect, of a deliberate campaign to ruin the entire tableau of U.S. Constitutional patent protection; in direct antithesis of the very reason for its establishment as part of the U.S.A. Those of you who are attorneys and possibly, legislators reading this, may not have had sufficient or valid reasons to believe what would otherwise seem as a plaint that could be criticized as being merely paranoid (rightly or not) – I assure you that it is not: I am quite serious.

    I have been validly intelligence tested as being “Superior Gifted”. Experience in computer science and industry is not the only area in which I have made significant intellectual application; and while I will not discuss this other field, it suffices to say that, for instance, I was well acquainted with certain security issues decades before seeing news stories involving major companies belatedly admitting the loss of millions of their customers’ electronically stored sensitive information records; or, the illicit and (in my opinion) criminal ‘hacking’ of the computer operations of the 2016 Democratic Primary campaign of Sen. Sanders, in the Democratic National Committee’s zeal to avoid the possibility of a sharp confrontation at a brokered Convention in a fractious election Year.

    So, when I see such concerted and persistent action that amounts to running up the score on their opposition (which would be us, the independent inventors), even through a sea change in the administrative regime with such adroit and perfectly detailed direction, and such perfect benefit to their apparent sponsors, and little else to show for it but more harm to inventors’ property rights; then, I call foul.

    Again, you guys who live and work as immersed in the world of wonks, attorneys, legislative aides and courts are too used to being graced with a certain cordial respect even when operating as staunch opposition in particular issues, and as part of entitlement to presumption of particular “rules of the game”.

    Well, just ask the “Big Pharma” boys how that turned out, when they ‘got played’ doing “Big Tech’s” bidding AND losing much of their legislative influence, in that sour bargain of the AIA and the campaign to get it passed: just how that is ‘cordial’ congeniality working out, for you? The evidence is quite clear; it is merely the size of the harmful protagonist, that has too many of you enthralled. Can you all, not see the forest for the trees? The enemy conducts a brutal scorched-earth campaign that is literally burning the entire house down; yet, so many of you still pretend not to see the smoke across the ‘landscape’, nor to smell the reek of fires burning everywhere, here.

    Do you really think that these enormous changes wrought at all levels, and in all Branches of the U.S. government; merely serve to drum up more legal concerns and therefore all this tumult simply produces more “business as usual”, but perhaps with the ‘client mix’ changed? Do you all not see that this is destroying the larger part of very basis of the business and livelihood you have heretofore, been able to take for granted: in your collective inheritance as counsellors of the great, and now largely-former, provenance of U.S. Patent Law?

  12. angry dude February 13, 2017 3:18 pm

    opponent of patent thieves @10

    I presented my results at IEEE conference one week after filing regular US application (so f*** proud I was…)

    And yes, PCT app was also filed with EPO designation so that EPO provided their search for IDS – it would make my patent stronger… or so I was told…

    But what’s the difference now ?
    Once patent is granted it is public knowledge all over the world

    You can’t put genie back in a bottle

    I wish I could.. sigh…

  13. Benny February 13, 2017 3:38 pm

    Angry,
    Stands to reason if you didn’t get your patent it was either not novel or it was obvious, so it was out there already. Unless you got 101’ed.

  14. angry dude February 13, 2017 3:58 pm

    Benny @13

    wtf are you talking about ???

    I got my patent in 2006 after 1st office action (and examiner’s interview)

    And that’s all I got – a piece of sh1tty paper with autograph of some dude called dudas

  15. Inventor Woes February 13, 2017 10:06 pm

    Eric Berend: “I have been validly intelligence tested as being “Superior Gifted”.”

    Do you want a cookie? Do you feel entitled to something?

    I honestly don’t know what to say… does telling people you’re intelligent actually mean that you’re intelligent? Or does it say the opposite?

  16. Benny February 14, 2017 2:06 am

    Angry,
    If no-one is willing to pay you anything for your intellectual property rights, that might just be an indicator of their value. (If someone is willing to pay 300K to get them invalidated, that’s also a price sticker)
    Inventor at 15 – I was thinking along the same lines but didn’t know how to put it delicately. Thanks for speaking out loud.

  17. Inventor Woes February 14, 2017 4:49 am

    Benny,

    He kind of reminds me of Sheldon from the Big Bang Theory, except not funny or smart, just pretentious lol.

  18. Eric Berend February 14, 2017 9:01 am

    Columbus and the Egg. What is the very “fire of genius” of which former President Lincoln, once wrote?

    Given the obvious root “gen” at its core, we can readily observe that any perception or evaluation of intelligence considered as being “genius” necessarily involves an element of new creation. Such, unfortunately, is not the motivation nor attitude of certain particular participants in this online forum, popularly known as “trolls” – participants such as ‘Benny’ and ‘Inventor Woes’.

    There are no University degrees in inventing.

    The closest we as a species have come in applying some of the teaching of our academies, in any of our civilized societies, is to attempt to measure intelligence in some partially relevant way. Therefore, as the closest reference point to the credentials occasionally expected in such discourse, I pulled back ‘a bit’ of the curtain, with my mention of IQ measurement – just as Columbus did that day, when revealing to others ‘a bit’ of his ability to lead in discovery.

    When one is well suited to such a task at hand, one occasionally reveals one’s bona fides for the job. Nice example of non sequitur, ad hominem attack there, though. Not one word, in response to the cogent points raised in my comment.

    This is what you get, readers: observe, that creatures such as these cretins seldom add anything useful to the discussion. They are much as the barnacles stuck to the bottom of a boat: nothing but a drag on its progress and being mere stowaways along for the ride, without offering one iota of benefit or meaningful participation in the ongoing discussions and debates, seen here; instead, they offer little else, but disingenuous opprobrium dressed up as so much ethical preening in the guise of a cynical pretense of ‘realism’.

    Few readers who alight here, are unaware of this site’s raison d’etre, its essential policy positions or its staunch advocacy of inventor’s legitimate property rights, especially as manifested in U.S. Constitutional patent protections. There are other fora on the Internet that share your apparent preference of vicious derision for inventors, with participants who similarly, hide behind false names such as “MM” and “6”, posturing with presumed moral superiority as to the so-called, alleged ‘greatest evil in the world’: an inventor seeking to prevent theft of his society- and world-improving invention; a property right that – to be sure – antedates the establishment of the U.S.A. by centuries, in the English-speaking ‘Western’ world of which the essential roots of its jurisprudence arose.

    So, to the “Benny”s and “Inventor’s Woes”s of the world: why are you here?

    I can give a gentle hint to the dear readers: a nine-letter word that begins with “h” and ends with “y” – and, the Greeks were writing plays about this human behavior, some 3000 years ago.

    P.S. And just as a BTW: that pallid farce of a ‘sitcom’ that you see fit to make reference to, features a portrayal of intellectuals as ‘nerds’ that is so trivial and banal; as to illustrate only your own sentimental attraction for the more idiotic aspects of socialization. Also…”bonus” BTW: ‘Inventor Woes’ – if it took over two years before my making a passing mention of an IQ test result; then…what was that you were trying to imply, again?

  19. Benny February 14, 2017 9:13 am

    Eric,
    Give it a rest. This is a blog forum, we are all friends here, and there is no room for pomposity. Keep your replies brief and to the point or they won’t be read. We don’t have all day.
    The failings of the patent system cut both ways – denying rights to those who deserve them, and granting rights to those who don’t. The vast majority of articles and comments here address the first problem and tend to ignore the second – to the extent of identifying those who bring up the subject as “trolls”.

  20. angry dude February 14, 2017 9:23 am

    Benny @16

    Dude, you just don’t know what you are talking about, seriously

    NO ONE is willing to pay anything for patents nowadays UNLESS they absolutely have to

    As far as spending 300K money to invalidate my patent – that kind of expense will also be incurred on me too and I just don’t have that kind of money to experiment with today’s crooked PTO (that part comes BEFORE I can go to court to sue for patent infringement)
    Patent was written back in early 2000s so some claims are… well ….”abstract”
    although there is nothing abstract with the tech described – it can be done in either software or hardware (fpga or asic)

    Those crooks make new “laws” and then apply them retroactively – to existing rights granted in compliance with “old laws”
    They should try to do it to some other laws affecting general population – like real estate ownership laws or gun laws – they’ll be booted out immediately if not worse

  21. angry dude February 14, 2017 9:29 am

    Benny @19

    “…we are all friends here…”

    Hmm..

    a lot of times you sound like a willful patent infringer to me

    Let me guess… you do your business in Israel and use USPTO database as a free (as in beer) public library ?

  22. Benny February 14, 2017 9:34 am

    Angry,
    If I wanted to copy your IP I would try to buy you out for a song, just so that my posterior stays warm in the event – however unlikely – that your patent will end up in the hands of a PAE who will cause big trouble for me down the road. If my competitor is copying your IP I would also try to buy you out and hit said competitor over the head with it. We do conduct risk assessment when it comes to IP, and no-one here is currently looking for a new job.

  23. Benny February 14, 2017 9:38 am

    Angry @ 21,
    I do my business globally and use Google patents and Google scholar as a free public library. Our competitors do not take infringement lightly, and neither do we.

  24. angry dude February 14, 2017 10:14 am

    Benny @22

    “If my competitor is copying your IP I would also try to buy you out and hit said competitor over the head with it”

    Wrong answer, “F” grade for you, you are not qualified to be a CEO or corporate legal counsel in US, now sit down and listen:

    NO ONE buys IP (patents) from small entities nowadays to “hit competitor over the head” (whatever it means)

    There is illegal cartel formed of big multinational tech corps (mostly from SV) which band together to run any small IP holders out of existence – even though in order to do so they have to spend many times more money and resources than by simply licensing or buying said patent(s)

    I’m not paranoid – this is what we have today in US, I have proof.
    I did my own “experiments” in patent enforcement and corporate blackmailing a while ago – with some truly remarkable results fully confirming my statement

    Example: two big tech corps locked in multi-year mutual patent infringement litigation involving many patents on both sides.
    Small outside party writes a letter to one corp’s CEO proposing to sell or exclusively license his patent which both corporations infringe and they know it.
    A CEO gets on the phone immediately with other corp’s CEO (or they have lunch together) to discuss how to best get rid of that little guy with his pesky patent…
    They do some “mitigation” (costing them and their supplier chain many $$$ – say 1000 times more than the small patent holder asked for)
    Then they continue to sue each other for patent infringement as a usual casual business to eventually settle and cross-license
    This is the end of first lesson.
    You can go play now.

  25. Inventor Woes February 14, 2017 10:16 am

    Eric Berend: “I pulled back ‘a bit’ of the curtain, with my mention of IQ measurement – just as Columbus did that day, when revealing to others ‘a bit’ of his ability to lead in discovery.”

    Except if you pull back this curtain all the way you’ll get a surprise, as Dorothy did in the Wizard of Oz. Additionally, purple prose does not an intelligent person make.

    normal writing:
    she lay on her bed dreaming.

    purple prose:
    she lay upon her silken sheets in her ornately embellished robes of satin, her chest ascending and descending easily with every passing second, deep inside the caverns of her subconscious mind.

  26. Inventor Woes February 14, 2017 10:19 am

    Eric Berend,

    Furthermore, it is not an ad hominem when you “opened the door” and used your alleged “intelligence” as support for your argument. You placed it at issue. That is, if you understand how arguments in the legal system work.

  27. Benny February 14, 2017 10:26 am

    Angry,
    I’m not SV. That’s not how it works in my business. If my competitor is infringing your patent, I’ll buy it from you for 25K and sell a license to my competitor for 100K, or use it cross license, or just watch him waste his R&D budget invalidating it. Not selling? No ROI for you? Sit back and watch your patent expire.

  28. angry dude February 14, 2017 10:33 am

    Benny @27

    “I’m not SV” – it shows.. you have no clue about how “big tech” works
    25 K ? I spent more on patent prosecution
    Thanks but no thanks
    not that desperate to cash out, just angry as hell

  29. Benny February 14, 2017 10:36 am

    Angry; 25K > 0K.
    There is life (and IP) beyond “big tech”. The comparison is irrelevant.

  30. angry dude February 14, 2017 10:48 am

    Benny @29

    “There is life (and IP) beyond “big tech””

    small tech ? it’s called “crap”

    like “Shark Tank” “entrepreneurs” peddling their crap nobody needs ?

    thanks but no thanks

    not interested

  31. Benny February 14, 2017 10:57 am

    Angry, we are in a dismissive mood today.
    It is possible that you already own an example of the “crap” we manufacture, and if not, it is even more probable that you wish you could afford the lifestyle that would give you reason to buy one.

  32. Inventor Woes February 14, 2017 2:02 pm

    Benny,

    It appears as though angry perceives that he was “burned” in the past and now he’s on a rampage. He believes it was a legitimate injustice, when in all reality it could be a perceived injustice (i.e. like you said perhaps his invention wasn’t worth anything to society).

  33. Eric Berend February 15, 2017 3:12 pm

    @ 27, ‘Inventor Woes”:

    “purple prose”? Non sequitur: merely, more ad hominem. Is that the best you can do?

    So much energy and “ink” spilled in personal opprobrium; yet, not even one word written about “more than one bite at the apple”? Nor, the hoodwinking of the “Big Pharma” interests? Nor, the most essential ‘big picture’ point of all: that these are the manifestations of a massive conspiracy? You are aware, are you not, that the U.S. has laws on its books formally describing conspiracy, in both the civil and criminal parts?

    So: you want to criticize me: answer the damn point – stop playing at shooting the messenger.

    And, regarding your allegation of “Furthermore, it is not an ad hominem when you “opened the door” …”: excuse me? Are you seriously asserting that an ad hominem attack about my citation of personal intelligence evaluation, is of any relevance whatsoever, to the assertions raised, there?

    As to the further careless quip about “…if you pull back this curtain all the way you’ll get a surprise…”: REALLY? Do you truly think it threatens me, to go for the ego show of intelligence rating comparisons? I am well aware that is not the purpose of this forum; yet, you attempt to besmirch me with such an odious implication, that this is my motivation there?

    Your rhetorical well must truly be running dry, to resort to such specious sophistry.

    Desist from this nonsense; or, if you must try again, then: AGAIN – answer the points raised.

    There is not, as yet, even one relevant response from either of you “accomplished logicians”, to any of the valid points described in my first comment in this vein (#11). And, if you don’t want an “IQ version” of a p*ssing contest, then don’t insult my intelligence; nor those of the many other readers and commentators that consider this to be a worthwhile site; by dancing foppishly around the cogent issues explicated there.

  34. Benny February 15, 2017 3:53 pm

    Eric,
    The problem isn’t wth the content of your argument, it’s with the style of your prose. You sound like a 19th century monarch. It grates on the ear.

  35. Inventor Woes February 15, 2017 11:45 pm

    Eric Berend fashions himself as some sort of Tyrion Lannister character. I think we should refer to him as King of the Andals and the First Men, Lord of the Seven Kingdoms, and Protector of the Realm.

  36. Mike February 17, 2017 2:20 pm

    Angry,
    You have to stop blaming the world and take responsibility for how you can work within it. If your ability to make money or invent things can be destroyed by the failure to monetize one invention, what does that say about you as an inventor or a business person?

    No business successfully makes it big because of one invention. It takes knowing what to do with the invention. Having a patent and being able to protect that idea is very much in the distance compared to having the ability to either manufacture and sell or sell the rights to use your patent. But again, come up with something else. No patent system or company can stop you from being successful, only you can. And blaming others is a good way to stay in that situation.

  37. Inventor Woes February 18, 2017 9:12 am

    Mike,

    I think it’s the entitlement culture we live in today. Perhaps angry dude is a millenial?

  38. Anon February 18, 2017 11:57 am

    IW,

    Your post above that states:

    It appears as though angry perceives that he was “burned” in the past and now he’s on a rampage. He believes it was a legitimate injustice, when in all reality it could be a perceived injustice

    may be all well and true.

    However, your mindless tr0lling with the likes of “ (i.e. like you said perhaps his invention wasn’t worth anything to society). from that same comment of your comment at 37 do nothing to advance the conversation.

    You neither add to why your snideness may be appropriate (i.e., back up any point to which angry dude may be incorrect with), nor address any issue that angry dude may be correct about; even if, or despite, his raw emotion.

    At the very least, his raw emotion is real. Your posts? Well, I have to doubt their veracity as the only thing you seem interested in is being a tr0ll.

    I am NOT saying that you cannot be snide (snideness does have a place, and can be a powerful t001 – if wielded well) – nor am I saying that you have to be on the side of that poster – take for example, Mike’s comment at 36. Mike lectures angry – but adds substantive comments that advance the conversation.

  39. Mike February 18, 2017 1:30 pm

    Inventor Woes,

    Well I’m a millenial, haha. But maybe. I’ve seen the same attitude in older people too. If you give up when faced with adversity, how else are you supposed to maintain your sanity for many years after except by blaming everything but yourself? Otherwise you’d feel really depressed and terrible about yourself.

    And Angry Dude is probably right about some of what he says…it’s just that we could all talk for days about the problems in the world and the bad things that have happened to us…that’s part of living in this world…it just wouldn’t move us any closer to our goals, obviously.

  40. Mike February 18, 2017 1:39 pm

    Anon,

    Thank you for approving of my lecture.

    I’ve definitely done my share of blaming others and I still do sometimes but then I find a way to work around it and avoid those people/situations going forward.

    The IP world is just crazy (not necessarily in a bad way). Just literally crazy the way it has resulted in such large amounts of money changing hands…for example, Facebook recently losing a judgment and having to cough up $500 million over the Occulus Rift?

    But my takeaway from that is that if Facebook can afford to lose $500 million and still go on without risk of failure, there is a lot of money out there.

    There are obscene amounts of money out there. And it shouldn’t be the sole goal in the life to get it, but there is a lot of it and some of it has your name on it if you’ll just get out of your own way and go collect it.

  41. Anon February 18, 2017 6:17 pm

    Yore welcome Mike – your advice is sage (and it does not matter than you are a millennial with advice like that – that advice is timeless).

  42. angry dude February 18, 2017 6:19 pm

    Mike,

    whoever you are you just don’t know what you are talking about. you are clueless. period.

    There are clear signs of massive criminal conspiracy to wipe out US patent system as it used to be for 200 years and served this country very very well.

    The beneficiaries of this are top 0.001 percent of population (big tech ceos, corp lawyers and folks positioned like them)

    The rest of population are clear losers – they may see cheaper products in the short term, but won’t see many breakthrough inventions in the longer term.

    And btw, the whole oculus verdict is bs – tea leaf reading for signs of “non-literal copying”

    in the good old days they would look at patents on both sides with clear inventorship, priority dates and assignment of rights

    now its just some crazy and unpredictable sh1t and I don’t like it – there is nothing good about it regardless of what you say and I believe most people here share my views and not yours

  43. Mike February 18, 2017 6:33 pm

    Anon,
    Thank you.

    Angry Dude,
    You obviously didn’t understand my point.

    I’m not debating the intricacies of the patent system. I clearly admitted repeatedly that it has flaws.

    What I also said, repeatedly (because you’re so stuck on blaming the patent system?) Is that it still doesn’t prevent you from becoming rich.

    For example, there are many things like clothing brands that make hundreds of millions+ with an unpatentable product.

    And, did Apple, Microsoft, Google, AT&T, Wells Fargo, etc. do well because of their patents? No. Those came later. They created better products or services and sold more of them. Hello.

    Mark Cuban hates the patent system too. But he’s still rich and successful in business.

    See my point? It may be messed up but it sounds like you’ve blamed your personal business failures exclusively on the patent system.

    If that is not the case, and you are simply debating the patent system, then I apologize.

    But above it seemed like you were saying the patent system screwed you in 2006 because you disclosed your invention and Ebay copied it or something along those lines.

    It’s amazing that companies like Facebook, Instagram, Snapchat, Uber, GoPro, Chipotle, ShakeShack, etc etc etc can launch in the past 20 years and do so well with such a debilitating patent system!

  44. Mike February 18, 2017 6:45 pm

    Angry,

    *sorry Chipotle was founded 23 years ago.

    And, if it’s just the recent patent changes that you are so opposed to, how did those screw you in 2006 when they didn’t exist? Let me guess the old laws were also bad too even though you just praised them for being better?

    And, why don’t you just get into real estate or something like hundreds of thousands of other “little guys” who make millions.

    Point being, being pre-occupied with the patent laws has probably slowed down or prevented a lot more people from getting rich than it has ever made people rich.

    You may know a lot about the patent system, but if you think winning the patent games is the key factor in an entrepreneur’s success or failure, you don’t know the first thing about business and entrepreneurship.

  45. angry dude February 18, 2017 7:01 pm

    Mike,

    like I said, you are clueless

    I am science/tech type (BSEE, MS, PhD) and absolutely not a sales/business type

    I can’t imagine going on e.g. “shark tank” peddling some crap they peddle to cuban and the rest of sharks (and most of the times getting real money for that worthless crap no one needs) – I would be red in the face if I had to do something like that in front of the world

    I like to come up with new useful unobvious and (highly) technical ideas and results (not consumer products, not ecommerce or business methods) and be paid for my mental efforts, especially if they are recognized as outstanding by some peers and USPTO alike

    I don’t think we understand each other but US Patent system was established by The Founding Fathers to protect folks like me and not like you (business/sales/PR types)

  46. angry dude February 18, 2017 7:22 pm

    “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*”

    What can be unclear here ? How is this possible that all 3 branches of US government completely turned the meaning of that sentence upside down over the last 10 years?

    The only hope is that new Scotus member will read US Constitution for what it is , and not like some tweets coming from SV boardrooms and mainstream media.

    Interestingly, those cowards only misinterpreted the portion which applies to only tiny percentage of the general US population
    I suggest they start creatively misinterpret the Second Amendment and see what happens to them next…

  47. Gene Quinn February 18, 2017 8:43 pm

    Mike-

    You say: “Mark Cuban hates the patent system too. But he’s still rich and successful in business.”

    Yes, and despite Cuban saying that he does not like the patent system he invests in companies that do have patents. So on the issue of patents Cuban hasn’t always been entirely true to what he preaches others should do. See:

    http://www.ipwatchdog.com/2016/08/05/mark-cuban-backed-luminaid-receives-patent/id=70236/

    You say: “being pre-occupied with the patent laws has probably slowed down or prevented a lot more people from getting rich than it has ever made people rich.”

    Extremely ignorant comment that shows no knowledge of the subject matter and an utter lack of appreciation for basic economics, not to mention history.

    You say: “if you think winning the patent games is the key factor in an entrepreneur’s success or failure, you don’t know the first thing about business and entrepreneurship.”

    Again, an extraordinarily shallow view of the world. Sure, if you are an entrepreneur in a field where there is no innovation you don’t need a patent. But if you are an entrepreneur in an innovative field and you don’t have patents you either (1) will fail; or (2) you will eventually have to acquire large patent porfolios to appease investors. Again, if you had any sense of history or knowledge of innovative businesses or the innovation industry or a modicum of familiarity on the topic of high tech entrepreneurship you wouldn’t be saying such silly things.

    -Gene

  48. Mike February 18, 2017 9:17 pm

    Gene,

    So we’ve gotten to the bottom of it Gene.

    You want to be paid just to invent things.

    Your words:

    “I am science/tech type (BSEE, MS, PhD) and absolutely not a sales/business type […]

    I like to come up with new useful unobvious and (highly) technical ideas and results (not consumer products, not ecommerce or business methods) and be paid for my mental efforts, especially if they are recognized as outstanding by some peers and USPTO alike”

    So you want to be paid for your “mental efforts” even if they have no commercial application and no business effort of your own?

    Who exactly is going to be paying you?

    And if another company is able to monetize your invention, you need to ENFORCE your patent.

    That’s the whole point you amateur.

    And the AIA didn’t change that.

    You have no one to blame but yourself Gene.

    You refuse to sell your own invention and you fail to enforce it, and then you complain.

    Odds are, your inventions maybe aren’t so good.

    Sorry Gene. May be harsh, but when you can’t blaming everyone else and asking for an unreasonable thing (people just to pay you for your “mental efforts” regardless of how valuable they are) you bring it on yourself.

    I will not respond again, because at this point you have proven to be unwilling to confront your own contradictary position: being opposed to yet reliant on the business world.

    Hopefully you figure it out someday and stop expecting the world to give you a handout for nothing in return.

  49. Mike February 18, 2017 9:19 pm

    Keep*

  50. Inventor Woes February 18, 2017 9:37 pm

    angry,

    “I like to come up with new useful unobvious and (highly) technical ideas and results (not consumer products, not ecommerce or business methods) and be paid for my mental efforts, especially if they are recognized as outstanding by some peers and USPTO alike”

    Yeah that’s the real crux of it. I mean wouldn’t we all like to be paid for our mental efforts. If we got paid for our mental efforts we would be millionaires for all the netflix and porn that people watch. By pay what do you mean? Recognition in the field or money? Einstein didn’t make much money but had plenty of recognition. What do you want?

  51. FRANK LUKASIK February 18, 2017 10:18 pm

    As I mentioned earlier, Corporate lobbying, led by Google’s Patent Counsel, took the Patent system away from the Independent Inventor with their European patent system, First-To-File. Like the European Patents, earlier filing results in less complete applications and more Continuation-In-Parts, which makes more work for Corporate Patent Attorneys..

  52. angry dude February 18, 2017 11:04 pm

    Mike @48

    Like Gene told you already – you are 100% clueless, dude

    If you were exposed just a little bit to the patent world you would know that patent valuations are bottoming out (at least 5 times less than they used to be back in 2006 – not even adjusted for inflation), patent enforcement via contingency legal representation is all gone – and this is the only way to enforce patents against big multinationals
    heck, before you can even start thinking about enforcing your patent you have to have a disposable sum of 300K to 500K just in case – for possible IPRs – and no one will loan you this money regardless of the quality of your patent – too much uncertainty with today’s crooked PTO

    Just go away – you have nothing to contribute to this already sad discussion

  53. Mike February 18, 2017 11:06 pm

    Oops, I meant to address my post to Angry Dude, sorry Gene I thought you were the same people.

  54. Mike February 18, 2017 11:10 pm

    Good luck whining and fighting the patent system Angry Dude. Good luck trying to make money in a system that according to you is too difficult to make money in.

    I’m sure there is some deeper root to your anger, and I hope you get over so you don’t die a wrinkly old Angry Dude still angry.

  55. angry dude February 18, 2017 11:22 pm

    Mike @54

    dude, you are totally clueless

    you don’t even understand why I’m so angry

    I am angry because I was cheated into publicly disclosing something new and useful enough that I could monetize it by keeping it a trade secret (although on much smaller scale but it would be me monetizing it and not some multinationals)

    but we, inventors, are not stupid

    “fool me once – shame on you, fool me twice – shame on me”

  56. Anon February 19, 2017 9:11 am

    angry dude,

    You are fixated on your anger and are ignoring sage advice within Mike’s comments.

    Gene,

    Mike’s comments are NOT as you took them to be, and are not an indicator that we should not be vigilant as to the warping of patent law.

    Far from it.

    If you look at angry dude’s “throwing the baby out with the bathwater” type of responses in relation to what Mike is actually saying, you can see that angry dude’s comments only reinforce the message (a positive one) that Mike is trying to share.

    It is alright to be angry.

    In fact, in some instances, not being angry may indeed be a sign of being clueless.

    But that does not mean that one let’s that anger override all reason and mental capacities (including adaptability to business conditions of the real world).

    I have the benefit of having each of degrees in law, business and engineering. I also have the benefit of using each of those degrees “in the real world.” Far too often – apparently on both sides of the patent issues (pro- and anti-patent; albeit more so on the anti-patent side) , someone with a foot in one area deems themselves “expert enough” to advocate as if they understand the other areas.

    What is galling in such situations is – as here – when that person refuses to recognize when someone else is trying to help them with sage advice.

    Anger can be a good and powerful motivator.
    Being consumed and warped by anger is almost never a good thing.

    In an nutshell, Mike’s advice comes down to (I apologize Mike if I am misstating):
    know the difference
    recognize the difference
    act in accordance with the difference

  57. Inventor Woes February 19, 2017 9:24 am

    Good advice Anon and Mike. I fear that angry dude might go on a shooting spree or something.

  58. Mike February 19, 2017 12:32 pm

    Thanks for the kind words Anon.

    Yes you’re right. I was just trying to say that we’ve all had bad breaks in life and business but there are basically 2 types of people I guess: those who let it make them by using it as fuel and a learning experience and keep going and find a way to win, and those who let it debilitate them and get stuck in resentment.

    But like he said Angry isn’t going to “let them fool him again” so maybe he hasn’t given up. Hope he succeeds.

    Thanks IW

  59. Mike February 19, 2017 12:43 pm

    A quick example:

    I once had tens of thousands of garments manufactured in Pakistan and later China.

    Both times, the quality control was so bad that I couldn’t sell 1/4 of the items.

    Did I blame the manufacturers? Yes a little for not doing what they promised. But ultimately the blame is obviously on me for being naive and not doing my homework. I should have gone to their factories and not trusted them so readily but I was young and inexperienced.

    I have dozens more stories like that. All with other people at fault but ultimately my fault for CHOOSING to work with them and not being smarter.

    But guess what…each failure was another log on the fire.

    And eventually you’re so motivated and you feel like you deserve to succeed because of all the work you’ve put in and the hits you’ve taken. And your know-how is 100x what it was pre-failures.

    And you realize. ..those failures guaranteed your future success.

    As long as you try again.

  60. Eric Berend February 19, 2017 2:31 pm

    No, no, no, no,no-no-no. Just: NO.

    Inventive concepts are unique. Some of these are so seminal, as to be peerless in their functional “tool” role.

    The business-only-slightly-different-from-usual types like “Mike”, here above, may seem pragmatic and even perhaps somewhat reasonable; but they are willing to run roughshod over principle, to do it. I do not think these are derogatory comments; merely misplaced – there is some intent to add to this discussion in a meaningful way, there.

    The U.S. Declaration of Independence and Constitution are documents that propose to carry out the classic founding principles of “life, liberty and the pursuit of happiness”. In accordance with this imperative, Article 1, Section 8, Clause 8 is established “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”; as is well known, in this particular forum.

    It is not just about ‘not dwelling on anger’ or the setbacks or failures of life or business – this is a valuable principle: “eyes on the prize”; if ‘prize’ is accorded to be wealth or success in a general sense.

    There is another principle of mutual benefit, in the exchange manifested in the disclosure of an inventor’s invention to the public domain for the opportunity of a presumed industrial ‘head start’.

    Furthermore, there is a part found in the larger principle of Liberty, itself, that says a person is allowed to pursue any endeavor according to their own talents and ‘pursuit of happiness’, and not to have their earned property subject to theft by others.

    Inventors with inventions for which there are no equivalents or substitutes, have NO alternative; when it comes to the replication of opportunity: these each, are NOT merely the same as ‘any other’ business opportunity. Some of these bear irreproducible functions, capabilities or industrial roles.

    And, besides: who says you or the ‘3,000 tyrants one mile away’ (i.e., the “mob”) is supposed to be able to have arbitrary claim upon what is my property, anyway?

    So: is your principle of business pragmatism towards opportunities in such a ubiquitous manner, really more important or well founded, than the other principles involved, here? Are you not: letting the ‘perfect’ of your preferred focus, outweigh the ‘good’ of the other, cogent principles inherent in the invention process?

  61. Mike February 19, 2017 4:04 pm

    Eric,

    Well said and I’m not opposed to anything you’ve said.

    I applaud and agree with the hope that an inventor of something truly useful and novel ought to be able to own and protect that invention for a certain time.

    Again, my comments were clearly never against that and were not in regard to the patent system and everything you said. That is another topic.

    The only thing my comments were directed to was Angry’s terrible attitude and blaming the patent office because he disclosed his invention and believes it was stolen from him.

    There is a balance here…where an inventor should be able to protect his invention but also be reasonable in admitting that he doesn’t deserve to be paid for it unless it produces money for himself or someone else. And that’s what Angry seems to expect.

    As others have said, being a great inventor and making money with it are not naturally associated with one another, unless you’re an employee being paid to invent things.

    So again, for the 10th time, my argument was never against the importance of someone being able to patent and protect their invention.

    It was against the idea that that alone somehow means you should be paid with no further effort of your own. And against crying about it for years afterward if you aren’t.

  62. angry dude February 19, 2017 4:09 pm

    “And, why don’t you just get into real estate or something like hundreds of thousands of other “little guys” who make millions”

    So that was “sage” advice from Mike ????

    Dude, your “sage” advice rivals the one from my 7 year old daughter:
    “Daddy, why do you always say we can’t afford this, we can’t afford that – just go to the bank and get the money, that’s where the money is, right ?”

    I’m done talking to you – complete waste of my intelligence