Confessions of a Frustrated Patent Attorney: The Telephone Call

By Meredith Addy
October 1, 2017

One of the most enjoyable aspects of being a patent lawyer is talking to people about protecting their ideas.

I used to receive telephone calls, quite frequently, asking about the procedure for preparing and filing a patent application. I enjoyed providing callers with an overview, even though I knew from experience that most couldn’t afford to go through the patenting process with me.

But I kept the faith that most patent-worthy innovations did eventually find the support they needed to endure the patenting process and earn patent protection. You know: The good old days.

Today, I no longer receive these calls. There could be a few reasons why. One certainly could be that my practice has evolved over the years to concentrate more on contentious matters. I’ve spent less time on the front lines of patent prosecution as a result.

But I suspect the main reason is that inventors are giving up an expectation that patent protection is even worthwhile. And I get it. If I were to get a call these days, I could no longer paint a rosy picture for would-be patentees.

It used to be that such a caller would launch into an enthusiastic account of the development of an invention. Regardless of whether I thought it was patentable right away, it was usually an energetic, interesting, and fun conversation.

A conversation from the Good Old Days (c. 2011, and pre-AIA)

But these days, I fear the conversation would have a different tone. It might go more like this:

“Hi. Thanks for calling. I’d love to talk further with you. But first, let me lay out a few things for you to consider. Hang with me here.

“Without your disclosing to me anything confidential about your invention, does it implement software? It does? Shoot. Trying to secure a patent might not be the best road for you.

“Yes, yes, I understand. I know everything has software in it. But courts can’t be depended on to recognize these types of inventions any more. Even if you do receive a patent, you’ll have a hard time enforcing it.

“And, bear in mind, by applying for a patent in the first place, you’d be disclosing your valuable invention to your competitors. Maybe consider trade secret protection?

“Still interested? Are you sure? Ok, then hold on to your seat cushion, because you’re in for a bumpy ride.

“Here’s the process. …

[Here I describe the process of drafting, filing, examining, and possibly issuing a patent].

“Now, all that’s going to cost you about $25,000. It doesn’t sound like that much, I guess, in the grand scheme of things. And you may end up with a patent.

[Short pause—while the potential client reflects on whether to take out a home-equity loan or sell the second Subaru.]

“Really? You want to go on? Okay.

“You said you have identified infringers? Who are they, so I can run conflicts.? Oh, okay: Apple, Facebook, Twitter, Google … yeah, the usual suspects. Of course, we can clear all of those.

“And, you want to file in the Eastern District of Texas. Yes, that used to be a nice forum if you were a patentee. But there was a Supreme Court’s decision recently, in a case called TC Heartland. Know about that one? No? Well, the ruling means you probably cannot file in the Eastern District.

“With these defendants, you could file in the Northern District of California, but I wouldn’t recommend it. That’s the most patent unfriendly district in the country—I can’t imagine why. Let’s see, where are your business operations? Oh, Alabama? Ok, well, today, that’s a great place to file a patent litigation, at least against Apple.

“Please keep in mind, though, that once you file your lawsuit, it will probably be another two years before you can begin pursuing the infringers.

“Why? Well, first, you’ll have to survive a motion filed by an infringer to dismiss your case on the pleadings because your patent allegedly is abstract.

“Yes, abstract. Have you ever heard of Alice? No, not the book, but a similar genre. Another Supreme Court case. Alice Corp. v. CLS Bank, dealing with abstractness in patents. If your patent is found to be abstract, the claims consist of parts that are not eligible for patent protection.

“It works like this. A defendant files a motion analogizing your invention to something it is not. You know, like comparing the speed of the swing arm in a commercial dishwasher to an airplane propeller. Or like comparing a database sorting system to re-shelving books in the library. Or, comparing a novel computer RAM arrangement to a barista keeping track of coffee orders. Something fatuous and totally unrelated like that.

“Then, based on the finite patent knowledge of the generalist district court, the court looks at your pleadings and agrees with the defendants. For whatever reason. Like, the court had a headache that day, or got up on the wrong side of bed and stubbed his toe. Or maybe thinks you are a troll. Whatever.

“So the court holds that the elements of your patent claim are not new and that when considered in combination the court did not find an “inventive concept.”

“No, whether there’s a patented “inventive concept” isn’t a factual issue. According to the Federal Circuit it’s something any generalist judge is capable of determining on the pleadings.”

“So the court holds your patent invalid. And, you think, well, okay: the judge got it wrong, but I can appeal.

“Whoops. The Federal Circuit is currently running at a 90%+ affirmance rate for cases appealed from a dismissal on the pleadings as abstract. So: patent killed.

[Lots of inventor explanation on how his invention is not abstract.]

“Yes, sure. I get it. Convinced it’s great? Okay. As long as you believe it will survive being compared to a barista’s methods for keeping track of coffee orders or maybe a dinosaur toy with a red dot for identification. Then you have to consider the alleged infringers’ next moves.

“Assuming you survive Alice, the defendants next will petition for inter partes review at the Patent Office’s Patent Trial and Appeal Board. It’s a fantastic new tribunal established by Congress basically to spray bullets and kill as many patents as possible. That’s what it does—destroys patents.

“And your opponent will then ask the district court to stay the infringement case pending determination of one or several IPRs filed at the Patent Office.

“Remember: These IPR procedures were developed as part of the America Invents Act, but not to promote Americans who invent, mind you. Instead, they allow the PTAB to take a “second look” at your patent. That’s patent-speak for spraying bullets.

“Each of your defendants will file a separate petition for IPR, explaining why they believe your patent is invalid. Of course, there’s no presumption that the Patent Office got their decision to grant the patent right the first time. So don’t look for any presumption of validity to help you there.

“And each of these little IPRs will cost you around $300,000.

[Muffled coughing, throat-clearing, a sniffle possibly. Even crying]

“Sorry, okay. Yes, are you okay? Still with me, here? Want me to continue?

“Sure, yes, I understand that you could possibly afford to go through the Patent Office and spend $25,000 to obtain the patent. But the patent you obtain would not have been tested. Patents that haven’t been PTAB tested aren’t really patents anymore. So to test it, the cost is $300,000. Per IPR. Oh, and plus your initial $25,000.

“This still within your budget? Then consider this. If your patent survives the IPR—or all of them—then you can go back to the district court to press on with your patent infringement litigation. But the statistics for surviving an IPR are grim. North of 90% of all patents subject to IPRs are killed entirely or have some claims invalidated. And, as with motions to dismiss, the Federal Circuit affirms over 90% of the PTAB’s decisions.

“But, let’s just assume your patent survives this PTAB test, too. Back at the district court, the same defendants that filed the IPRs will now pursue other invalidity defenses, but at least you can proceed with your infringement case in tandem.

“So, back to the viability of securing a patent on your invention. It may be terrific. It may be valid subject matter. It may be revolutionary. But the real issue here is can you afford the fees to file, the costs to confirm it at the PTAB, and the costs of bringing a successful infringement litigation.

“At this point, just the litigation will cost you about $2 million to get through a trial. We can discuss appeal after that. And, if you lose? The competitors continue to use the invention you originally disclosed to them in your patent application. For free.

“So, for full disclosure of your invention to your competitors as part of filing for a patent, this is what you get:

  1. A paper document that says U.S. Patent, and that provides a road map to your competitors on how to achieve your invention. Cost to you? $25,000.
  2. The right to file and pursue a patent infringement lawsuit. Cost to you? About $2 million all in. Out of the gate, maybe $400,000 in the first two years, due to the stay. And yes, it’s going to take a lot of your time.
  3. The amusing opportunity to try to persuade a disinterested court with no patent expertise, much less experience in your technology, to uphold your patent’s validity against some dumb analogy—say, comparing your invention to a coffee barista. Cost to you? About $50,000.
  4. The delightful opportunity to muscle up and defend multiple inter partes reviews at the Patent Trial and Appeal Board, which has a sign above the door out of Dante’s Inferno: “Lose all hope, ye who enter here.” Cost for this pleasure? $300,000. Each.
  5. The dubious right to appeal any adverse decision on eligibility from the district court or on validity from the PTAB to the Federal Circuit—a court that now affirms these types of decisions over 90% of the time. But what the hell: It’s only another $250,000, right?

All the while, what do your competitors get? The roadmap of your invention, delivered right to their computer monitor from www.uspto.gov.   Now that’s “efficient infringement.”

“So for a mere $2,625,000 you can disclose your most important innovation to your competitors, and they can use it and make sure that you actually have no rights to it.

“Sound like a good deal? . . . . No, I’m sorry, I cannot take this case on contingency.

“Hello? Hello?

[Click. Beep, beep, beep, beeeeeeeeep … .]

The Author

Meredith Addy

Meredith Addy is an experienced intellectual property litigator who specializes in cases before the U.S. Court of Appeals for the Federal Circuit and at the USPTO’s Patent Trial and Appeal Board. She has served as first- or second-chair trial counsel in nearly 30 federal district court cases, and has handled more than 40 appeals to the Federal Circuit. Addy is a member of the Federal Circuit Bar Association’s board of directors, and she been a member of the Federal Circuit’s Advisory Council for more than a decade. Because of her knowledge of patent litigation and the Federal Circuit, she has testified before Congress on the state of the Federal Circuit and patent appeals. Recently, Law360 named her one of the Most Influential Women in IP Law. Reflecting her passion for protecting innovation, Addy created the blog Business De Novo, to generate conversations about the business of innovation and its importance to the economy. For more information, or to contact Meredith, please visit her firm profile page.

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 32 Comments comments. Join the discussion.

  1. Curious October 1, 2017 8:03 pm

    Loved it … you’ve immediately become my favorite non-fiction writer.

    I’ll make sure to send a link to this article to any potential clients that happen to stumble upon my contact information.

  2. Benny October 2, 2017 5:27 am

    First off, our attorneys don’t get phone calls from me. They get e-mails. Darn sight cheaper than having them bill me for the time on phone asking about my kids etc.

    Then there is this: “Patents that haven’t been PTAB tested aren’t really patents anymore. So to test it, the cost is $300,000”

    There is soooo much more to it than that. It costs the petitioner 300 grand too, and it isn’t going to happen if there is a cheaper option (most companies hire people who can do maths). What do you think is the more likely outcome? That the alleged infringer will spend 300 big ones to invalidate your patent, or offer to purchase it outright for 50K (and possibly sell it on for 100K), or take a license for a 2 buck royalty per product and go on to sell 15K units, passing the royalty payment to the end user? Looks like you have a fair chance to earn a small profit, a small chance to lose a lot of money, and a zero chance to strike gold.

    In our industry, I would guess there are about 15 design-arounds, 7 cross licenses, 5 royalty agreements, and 1 patent sale for each IPR filed.

  3. Eric Berend October 2, 2017 6:34 am

    As an independent inventor, whose father was also an inventor, I can justifiably point to my warnings in this same forum about this said outcome of a complete loss of faith in the U.S. patent system by inventors, in general.

    And, that this loss of faith was one of the most destructive aspects of the whole patent degradation efforts by ‘Big Tech’, ‘Big Banks’ and ‘Big Auto’.

    There was virtually NO response to my assertions – even in this distinctively patent-friendly forum. Apparently, even ‘sharp’ attorneys cannot much see beyond the ends of their noses (whether ‘made of wax’, or no) to discern the forest for the trees.

    Well, now many potential saplings otherwise known as inventions, that would have become groves in this ‘forest’; are now, not even being planted. To take on the famous words of noted environmentalist Rachel Carson, patent practitioners are now facing a Silent Spring.

    Inventors are not placed in society so as to have the power to redress the damages wrought in this domain. By definition and limits of human capability and endurance, we are committed to a different discipline. Those with the powers of change in this domain, collectively as a class, are the attorneys.

    Some here, have taken my criticisms of lawyers in too general a sense, as if my screed were the ignorant ramblings of the more common opprobrium so often found in the general populace. Nothing could be further from the truth: I call out those specifically involved in the radical re-making of the U.S. patent industry.

    Again: by definition, capability, and resources, those who are responsible are not inventors and ARE attorneys – although certainly not ALL attorneys. But if, as an attorney, you realize that another attorney or group of attorneys are working to undermine and destroy the business model supporting the practice of law in your particular specialization: then, where does your motivation and professional responsibility lie?

    In the face of obviously harmful damage or destruction in your very own area of practice emphasis – should you, realizing this agenda, simply do nothing? Work to mitigate the harm to your practice? Dig in, and invest in principled opposition?

    Meanwhile, inventors are largely powerless to affect the debate where any meaningful decisions are made – we have been purposefully excluded from U.S. Congressional hearings in these matters for over seven years, at least; and the general public is increasingly convinced of the IP pirate’s narrative and smear campaign that we are mere “patent trolls”; while leading lights of academia build whole careers on our denigration.

    I do not pretend to know intrinsically how another person feels about being treated with virulent contempt and receiving literal death treats, for sacrificing years of their own life on genius works designed to improve life and human existence for everyone, even if some of that motivation should include one’s own JUST enrichment – but if the attorney class cannot even begin to understand why the more generally intelligent and capable inventors are outraged at them – then: the ‘game’ is over.

    Admit it, attorneys reading this comment section of this internet site: the other attorneys and corporate masters that benefit from IP piracy, exploited your general contempt for inventors; who have been far too often regarded – and treated – as ‘suckers’, or so-called ‘marks’ of a con man.

    Might as well move to Europe, or China.

  4. Benny October 2, 2017 6:56 am

    Eric,
    you ask “where does your motivation and professional responsibility lie?”. Not on the same azimuth, I would guess. Attorneys don’t earn a living by selling inventions or tech, and there is more to earned in prosecuting an IPR than in drafting a license agreement. Attorneys have to eat, too.
    “sacrificing years of their own life on genius works designed to improve life and human existence for everyone” .
    Come on, that represents a tiny minority of patent applications. For the most part, patented inventions are just the daily grind of engineers who can put two and two together and not fudge the decimal point.
    “Might as well move to Europe”.
    Please, go ahead. Invalidating an EPO patent is cheaper and easier than shooting down a US flagged one. (You don’t actually have to move to Europe to get an EU patent, by the way).

  5. Rohit Chhabra October 2, 2017 7:37 am

    “does it implement software? It does? Shoot. Trying to secure a patent might not be the best road for you.”

    Ms. Addy,
    No disrespect. But I don’t think you’ve been realistic or practical.You’re presuming that there’s not going to be any licensing agreement as if infringers love love to go to trial or IPR.
    Also, here in the bay area, VCs would throw money at just about anything that has a patent. Ask a startup how it feels to be funded.

    Must admire your story-telling skills though.

  6. JPM October 2, 2017 8:47 am

    Benny,

    The cost to the petitioner is not always 300K. There’s no fair chance to earn any profit. Some efficient infringers do IPRS with in-house counsel who are on the payroll. So for most, that 300K cost is a lot lower for them so there is less incentive to settle.

    The odds of selling a patent that is infringed these days is very low. Because patents have no enforcement value.

    The leverage is all with the efficient infringers now. Some infringers have started asking patent owners and inventors for free licenses in exchange for not killing the infringed patent in an IPR. That’s how one sided the IPR process is.

    The PTAB needs to be shut down it is a kangaroo court designed to destroy patents. It has no legitimate value for an inventor or other patent owner.

  7. Michael Zall October 2, 2017 8:49 am

    My favorite analogy’s:
    1. How much does it cost to get a patents?
    How much is a house?
    2. When they come to me with an invention on computer or apps they want to patent.
    I am like a surgeon, I select patients that have a chance of surviving…your invention will not survive the surgery.?

  8. Eric Berend October 2, 2017 9:01 am

    @ 4., ‘Benny”:

    You sure do revel in deliberate obfuscation, don’t you?

    Come, now: for momentary arguments, you can usually scare up better than that.

    Since your attention span is so limited, let us review some FACTS, now, shall we?

    The vast majority (>99%) of judges and magistrates, before they achieve their positions of lofty power, are: What? Who? ATTORNEYS.

    EVERY ONE of the CAFC, SCOTUS and your local Federal Court; as well as 100% of the APJ at the PTAB were originally, attorneys. That means: Judges Dyk, Proust of the CAFC making rulings that bear such detachment from the facts, circumstances and jurisprudence of U.S. patent law; as well as various APJ who are now revealed as being heavily anti-patent with little regard for the details of cases they rule upon – except if the litigant is a former client while they were ‘just’ an attorney.

    The vast majority of U.S. legislators at the State or national level are ATTORNEYS (>98%), including ALL of those who worked to ensure passage of the U.S. America Invents Act of 2011.

    ALL of the lobbyists and their ‘handled’ legislators gerrymandering Congressional ‘hearings’ designed to justify the reasons for passage of an Act of the U.S. Legislature – in which NOT A SINGLE INVENTOR EVER APPEARED, are…ATTORNEYS.

    Sen. ‘Chuck’ Shumer is an attorney. Rep. Goodlatte is an attorney. Sen. Issa is an attorney.

    WHO was it at Intel, Inc. that created the derogatory smear term and PR tactic against inventors known as a so-called “patent troll”? An ATTORNEY.

    WHO is it at firms that actually practice the exploitation of demand notices and sham patents to harass companies, in the fewer specific situations that actually fit the ‘patent troll’ narrative? The so-called “true” ‘patent trolls’? ATTORNEYS.

    To your specious ‘point’, “attorneys have to eat, too”: but these ATTORNEYS that were essential to such wholesale rip-and-replace changes to U.S. patent law, went well beyond mere survival, didn’t they? They KNEW – and were well warned beforehand – that they were burning the house down.

    So, before you take a selected excerpt of roles limited to “attorneys have to eat, too”, acting as if you exist on a higher moral plane, counselor: try to pretend that these circumstances are NOT forged in a vacuum. After all, there is such egregious pretense, in most of your other IP pirate helper’s responses found in this forum.

    Here, your *non sequitur* response, pathetically inadequate even as an opposing argument, does NOTHING to address the concerted and planned actions of your fellow ATTORNEYS.

    In other words, your paltry attempt to obfuscate here merely refers to pawns on the metaphorical chessboard, and tries to present pretense that there aren’t empowered ATTORNEYS operating as the Queens and Rooks or true ‘movers and shakers’; in the U.S. patent domain.

  9. Eric Berend October 2, 2017 9:15 am

    @ 5., ‘Rohit Chhabra’:

    Here’s yet another carefully curated response: no word about the ‘WORD’ in SV that one better fall in line with the AlphaGoog cabal, or be slammed and shunned. Everyone who’s ANYONE in the whole Valley knows the score by now, with over 450+ lawsuits against Google alone for misappropriation of proprietary IP technologies.

    So for you to come on to a forum such as this, where these facts are know, and try to assert such an infringer-friendly view of this domain? It seems rather disingenuous.

    “You’re presuming that there’s not going to be any licensing agreement …”. Gee, with patent licensing down over 80% in just three years, why would anyone have any reason to think that? (note: sarcasm, for those who are too dense to preceive it here).

  10. Benny October 2, 2017 9:18 am

    Eric,
    You are off on a tangent here. I was trying to be impartial.
    Of course I am aware that attorneys – or any other professional, for that matter – are looking out for themselves before they look to the welfare of the client.
    As for the suggestion that I act as though I live on a higher moral plane than the attorneys you mention, well, yes, I do think so, but that is a pretty low bar.
    I do, however, take offence at your suggestion that my argument does not address the actions of my “fellow” attorneys. I am not a licensed attorney. I do have my name on a few patents. Your humble apology is accepted.

  11. Paul Morinville October 2, 2017 9:23 am

    Rohit Chhabra @5. “here in the bay area, VCs would throw money at just about anything that has a patent.” You must be in China’s Bay Area.

  12. Vladimir Tsirkin October 2, 2017 9:24 am

    Great article. Even though it rather belongs to genre of satire than non-fiction, the sad truth is that the absolute majority of individual inventors simply cannot afford patent protection due to the reasons discussed. What puzzles me the most is that in our times of computer-driven progress, software inventions – the driving force behind that progress – more often than not are deemed to be not patentable.

  13. Benny October 2, 2017 9:26 am

    Eric at 9,
    “with patent licensing down over 80% in just three years…”
    I’m curious to know how accurate that figure is. To take a single example, if you wanted to know how many patents were licensed to, or by, our company, you would have no way of knowing short of hacking into my computer. This is not public information.

  14. Dave Savage October 2, 2017 10:55 am

    Meredith,
    This is another worthwhile article from the IPWatchdog team to share with the inventors who contact me.

    I would have others who get inventor calls to also refer them to articles by Jackie Hutter, in her blog IPAssetMaximizrblog.com In particular this article http://ipassetmaximizerblog.com/who-needs-patent/

  15. Invention Rights October 2, 2017 11:39 am

    Grateful to have another member of the patent bar join the bucket brigade. While a few of your unscrupulous colleagues set fire to the house, the majority are content to watch it burn. They will bleed the entrepreneur’s funds for life – application, reexam, cease & desist, litigation, IPR. At the end the patents are annihilated, the technology is fully transerred to the big corp infringer, the business is destroyed, and the attorneys and PTO are engorged.

    Can we get a few more attorneys to grab a bucket as the author has done? Or are they content to leave their grandchildren who follow their career path a smoldering ash heap of “public rights” to transact?

  16. Perkins October 2, 2017 12:40 pm

    Ms. Addy,

    This is a wonderful article that should be required reading for anybody who has an invention and wants to get a patent. The comments too, which somewhat scattered, do present some alternative viewpoints and cynical commentary. I don’t agree with all of them but they should be at least considered by someone contemplating starting that now greatly extended and dangerous journey to obtain their rights as guaranteed by the Constitution. As my very first patent attorney asked me “how much justice can you afford.”

  17. Concerned Reader October 2, 2017 2:34 pm

    I would like to fact check the following statement: “North of 90% of all patents subject to IPRs are killed entirely or have some claims invalidated.” I could make up facts too, but it wouldn’t get us anywhere. While it might make for interesting clickbait, this is simply a false statement.

  18. Meredith Martin Addy October 2, 2017 6:04 pm

    Thank you all for your comments. I enjoyed everyone’s opinions. Please note that this is a satire, although most satires are born of truth.

    Keep up the good fight!
    Mimi

  19. Gene Quinn October 2, 2017 6:33 pm

    Many thanks Mimi! I think the article is outstanding. It is a satire, but what makes it painfully funny is how closely it touches home. We will keep up the fight. Things can only get better, right?

  20. Gene Quinn October 2, 2017 6:34 pm

    Concerned Reader-

    You are more than welcome to check the facts, which will show that OVER 90% of patents have claims invalidated. No need to make facts up. I know the PTAB and USPTO don’t like this reality, but it is the truth.

    http://www.ipwatchdog.com/2017/06/14/90-percent-patents-challenged-ptab-defective/id=84343/

    -Gene

  21. The Time Is Now To Act October 3, 2017 12:24 am

    Meredith,

    Thanks for this post!

    Your line item delineation of a typical (starter) lit budget is important. Beyond satire, many benefit from reading for example, typical costs for an Alice motion.(actual fees vary based on individual matter of course but still)

    I used to come to Gene’s blog to read from the ‘trade’ but I am aware Gene’s blog is reaching a much wider audience; not just the ‘trade’.

    So, consider discussing a more in depth series w Gene which exposes more details on the lever points in lit many of us know to exist and exactly why and how infringers systematically can put a patent holder over a barrel; even when completely in the wrong.

    Not asking you to put the keys to the kingdom on the table but, when you and your colleagues speak of costs and budgets and economic impact it bears weight.

    And, the 101 barista argument? Not satire. That’s for real..

  22. Richard Brunner October 3, 2017 8:58 am

    The founders intended the system to protect us from infringement in any way, shape, or form, and dire consequences for anyone who infringes without the inventor involved. This is simply institutionalized theft. It’s amazing that patent attorneys aren’t lined up and fighting mad about the destruction of their practice and the spoiled fruits of their labor. DTS!

  23. Benny October 3, 2017 9:25 am

    Richard,
    Patent drafting and prosecution – total invoices 20K.
    Patent drafting, prosecution, RCE, appeal, litigation, IPR, appeal – total invoices 500K.
    Still amazed patent attorneys aren’t lined up to destroy their own livelihood? So why are applicants still filing?, Because the first one who stops clapping is the first to fall, which is why the applause goes on for so long communist party meetings.

  24. angry dude October 3, 2017 10:03 am

    Benny,

    You are full of sh1t and you know it

  25. William C. Spence October 5, 2017 8:18 pm

    Mimi,

    Good job. Very entertaining and true (and sad). But you left out the part where the multiple infringers band together in a joint-defense group and file serial petitions to institute IPRs, slightly tweaking the arguments in each successive petition (based on the failures of the previous petitioners). And still, at least here in Chicago, our judges seem to think it is perfectly fair to stay the litigation EVEN prior to institution and EVEN when the later petions rely on the same prior art reference as the earlier petitions that failed to be instituted. Big corporations have been given a “get out of jail free card.” Hopefully the Supreme Court will take the opportunity to reverse this trend by declaring IPRs to be unconstitutional. At least inventors still have hope (even though most everything else has been taken from them).

  26. angry dude October 6, 2017 2:34 pm

    @William C. Spence

    “At least inventors still have hope”

    No, dude

    Inventors like myself (educated ones) started to lose hope back in 2006 (Ebay) and by now that hope is long gone and forgotten
    And when hope is lost everything else will just follow – it just takes time
    The Roman Empire didn’t fall overnight either

  27. angry dude October 7, 2017 10:16 pm

    Eric Berend @8

    “The first thing we do, let’s kill all the lawyers”

    But now I would just give them enough rope to hang themselves

    Do they think they can destroy IP and still make a living on it ?

  28. bob October 7, 2017 11:33 pm

    Greetings Meredith

    I’m the guy that stopped calling. I like your article, but I don’t believe you have identified the root cause as to why I’ve stopped calling. The piece was magnificently written, and it touched on a lot of powerful topics that I agree with, but I don’t believe you’ve taken the proper gaze or stance. As you mention, your time is occupied with bigger and better things these days.

    First, I’d like you to attend one of my corporate austerity meetings and some of my mandatory trainings in our CRM tool. If I ever ask anyone a question that they don’t understand or offer a disruptive solution, I’m immediately enrolled of thousands of man-hours of sexual harassment training, how to not take bribe training, and whatever else the privileged in the room were caught for that became our policy (yet still not theirs). If I continue with a disruptive invention, innovation, or solution, and make it as far as a peer review, my peers are educated 300dB beyond their utility and have a list of “can’t, won’t and don’t do’s “ that far exceeds whatever meanderings they muster as dialogue, question or response. The common discussion involves a 4 hour presentation from me, a prior art discussion, a competitive analysis, a full business case with tier one and two customers onboarded an outlined, a full matrix and spreadsheet on lifetime net revenue……while the cadre of fools assembled as peers should be wearing drool cups and helmets. When I pause for a question and try to engage the audience on technical, business, or accounting merits, I get complaints on the font or the background of the slides presented. These same fools have patented so called inventions that have been around for a hundred years. It’s become a matter of privilege and lexicography. Invention, innovation, business, goals, trajectories, etc don’t have a damned thing to do with it. “A flexible conductor”. Dang, the cables on my Millermatic are 50 years old, they are flexible conductors, and I’ve logged 10K hours as assurance of this. But tie it in with some good lawyering, slap the examiners around a bit as being green….and “whoop there it is” a utility patent on a flexible conductor.

    So we’ve made it as far as the peer review. If you want traverse, take it. By the way, most of my peers are from Germany, where the act on employee inventions entitles them to huge payouts. If I make it as far as a patent, I might get $500 after taxes, vigs, accounting mishaps, oopsies, and whatever else my foreign located accounting department can structure around the theft to make it sound nice at the corporate level.

    So what normally happens after the peer review is that everyone tells me that I’m completely stupid, malfeasant, and whatever else they can throw as chaff…..and just as soon as I slow my pace they go ahead and steal the work, take my name off of it, put theirs on and reap huge payola. Yes, welcome to globalization. Was much nicer when we were on top I agree.

    And for this, when the immortals get their patent, as you say millions of dollars later, it is promptly stolen by our competitors in third world countries that don’t bother abiding by “rules” and “codes” and “rights”. Same companies that are funded by my board of directors.

    Back when I grew up, I did a lot of work on various “alley projects”. Cars, engines, motorcycles….most anything that would run. In the back alleys we had a policy on most any trick that would glean a competitive advantage in perhaps a backroad drag race, an invention I might call it. The policy went something like this “if you do somethin’ and you don’t want nobody to know, don’t tell nobody”. Forgive the local vernacular, the south side of Chicago did have its way with words. I know you would cast doubt all over that policy…….but I’d ask that you widen your gaze a bit. If this is the competitive landscape, and what I’m telling you is the new world order in terms of corporate structure, peers, experts…..maybe sharing ain’t caring…..maybe I’ll just stick my invention under a rock and wait for the right opportunity to license and or sell it to someone else.

    So hey, sorry I don’t call. But I have lots of stuff to do. I’m surrounded by “engineers” that can’t identify a wire nut or use a screwdriver without a trip to the ER. People that couldn’t design their way out of a wet paper bag with a sharp knife, a saw, and a dozen related youtube videos. These morons can’t bias a BJT and they are somehow entitled to waste millions attempting to design integrated circuits with tens of thousands of them.

    Also, the last time I did call, I found that my assigned counselor had no comprehension or understanding of what I was telling him. He messed up the claims so badly that I had to rewrite them and hold his hand through the process. File for a CIP here….contest this 103 rejection based on this work, these merits, etc. And he was paid, yes….those millions you speak of for a “hakuna matata” MO. If this is “the new representation”, again, I’ll just go back to the rock method and ‘not tell nobody’. Now to kick it back, perhaps you should be calling me. All that whacky stuff that you describe in tried and true language needs to be understood. I can help you with that.

    Yours truly,
    Mere mortal, PE

  29. Benny October 8, 2017 1:36 pm

    Bob does take the long way round, but he is darn right about abou the big boys getting patents for decade old tech by wrapping it up in fancy language and prefacing it with terms that get it mis-classified and routed to clueless examiners. I’ve seen that go down in real time.

  30. René de Torbal October 14, 2017 2:20 am

    I sometimes write US patent appications for $4500. My clients will have to pay $780 filing fees themselves. So initial costs should be affordable. But I think I will advise against filing a software patent at this moment.

  31. Gene Quinn October 14, 2017 12:03 pm

    Software is patented every week. If the invention is real then it can be described to satisfy Alice and the Patent Office. The problem is with legacy applications and issued patents where not enough time was put into describing the technology in the patent application. There is no such thing as a cheap software patent, and that has been (or should have been) true for many years now. Realistically through filing it will cost $12,000 to $20,000 plus filing fees and drawings.

  32. Ken Clements October 21, 2017 4:27 pm

    Painful, but real.

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