Is the Supreme Court anti-patent?

By Gene Quinn
May 9, 2018

Supreme Court stormIs the Supreme Court anti-patent? This is a question that came up yesterday at the U.S Chamber of Commerce at the Innovation Policy and Intellectual Property conference co-sponsored by the Global Innovation Policy Center (GIPC) and the Center for Intellectual Property Understanding (CIPU).

I personally believe the Supreme Court is, by and large, philosophically opposed to patents in an unfair and biased way. Frankly, it is rather astonishing that there is not near universal agreement on this point. For example, witness the Court constantly referring to patents as a monopoly. Patents are not a monopoly, period. Anyone who disagrees is either oversimplifying a very complicated topic to the point of compromising truth, they are misusing a very specific economic term “monopoly”, or they are simply uninformed. Yet the Court mislabeled patents a monopoly. Why? The term is hardly one of endearment and is very telling in terms of how the Court is philosophically predisposed to view this property right derived from the Constitution.

Notwithstanding, it has been suggested to me that using rhetoric such as anti-patent in reference to the Supreme Court is not helpful in the policy debate, whether true or not, because it puts those urging pro-patent views on the defensive. If that is correct then it should be banned from our lexicon. But I still wonder how one can or should refer to Justices who repeatedly vote against the patent owner? Given that the Supreme Court does show rather clear hostility to patents, and philosophical opposition to core patent law fundamentals, and an incorrect association with monopolies, the short-hand characterization of anti-patent seems fair, if not perfectly accurate.


If you are a member of Congress and you claim to be Conservative, but you vote each and every time with Representative Nancy Pelosi (D-CA) or Senator Bernie Sanders (D-VT), at some point what you call yourself becomes moot. You are what you vote. Why that same logic doesn’t apply to Justices, or shy it is surprising that Justices May have a predilection, strikes me as odd. We characterize Justices as Conservative and Liberal, and on issues of Religious freedoms, Second Amendment, and States Rights, the Justices obviously have tendencies and preferences. Why then is it bizarre to contemplate the possibility that Justices might be philosophically opposed to patents?

In other words, if it walks like a duck and it quacks like a duck, odds are it is a duck.

Has political discourse gone so far in the direction of political correctness that we can’t state the obvious without risk of being offensive to the duck, or the duck’s supporters? We have jumped the shark if we are unable to legitimately call out bias and characterize it for what it really is.

But is the Supreme Court really anti-patent? If by anti-patent the question is whether they wake up each morning with the hope and desire of destroying the patent system, the answer is no, most certainly not. The Supreme Court cares little about patents, as evidenced by their reckless disregard for the complexity of the issues and how far reaching their decisions have been both for nascent technologies and the U.S. economy. But the Court’s patent decisions over the last 12 years have undeniably worked to destroy the patent system for inventors just the same as if they had intentionally and maliciously acted. So whether the rubble that lies in the wake of Supreme Court decision after Supreme Court decision was intentional or as the result of reckless disregard for the consequences of their actions, the devastation has been the same.

At a very early stage in my legal career, I was taught by my mentor that I should not attribute intent to what could be characterized by incompetence. “As it turns out, far more people are incompetent than are malicious,” he said. I sometimes forget that early lesson, and in a world where the Supreme Court is held out as practically infallible, it may be all the more shocking to think of the Court as just grossly incompetent and out of their depth. At least if they were acting with intent there would be reason involved, and hope that they could be convinced to ultimately do the right thing. But that ship seems to have sailed long ago. At least this configuration of Supreme Court Justices shows no appreciation for the Constitutional magnitude of intellectual property rights, the importance they play in the U.S. economy, and how the decisions of the past 12 years have dramatically disincentivized investment and thereby made innovating increasingly more difficult.

In what world does it make sense to question the patentability of software when we are at the dawn of the artificial intelligence revolution. Do you think the Court knows artificial intelligence is powered by software, not hardware? In what world does it make sense to question the patentability of medical diagnostics and personalized medicine, which promise to greatly extend life and eradicate disease and suffering? So hopelessly uncertain is the law with respect to diagnostics that most investors simply won’t touch startups in that space, which is why the Cleveland Clinic has abandoned medical diagnostics altogether.

Let that sink in. One of America’s premier research institutions — the Cleveland Clinic — is abandoning an area of innovation because of the Supreme Court.

Certainly, the Supreme Court is not pro-patent, and they are certainly showing no signs of being self-aware when it comes to the path of destruction they have cut through critical sectors of the American high-tech economy. But I guess that doesn’t make them anti-patent, or at least you can’t call them anti-patent because that is rude, or off putting, or offensive to those who hold the Court in high esteem.

I don’t know what the Supreme Court is, and I don’t know how they should be characterized in order to get Members of Congress to understand the chaos and destruction they have brought to the patent system. But one thing is for sure, the Supreme Court is responsible for a majority of the problems facing the U.S. patent system today.

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 72 Comments comments. Join the discussion.

  1. B May 9, 2018 1:21 pm

    The correct answer: some are, some aren’t, but all are clueless and not clear on the whole separation of powers issue.

  2. angry dude May 9, 2018 1:40 pm

    scotus senile critters don’t know much and don’t give sh1t about patent law itself or constitution for that matter…

    they are pro-big corporations and anti-small business/startup/individual inventor

    Just look at their other decisions like Kelo or Citizens United

    Disgusting is the right word

  3. Software Inventor May 9, 2018 1:40 pm

    Regarding, “In what world does it make sense to question the patentability of software when we are at the dawn of the artificial intelligence revolution.”

    Please consider “software” is synonymous with “digitization” which is integral to virtually all technology innovation occurring today.

  4. Night Writer May 9, 2018 2:04 pm

    Does a bear sh*t in the woods?

  5. Anon2 May 9, 2018 2:04 pm

    Why throw Gorsuch under the bus (and Roberts for that matter)?

    When someone reaches a court as important as SCOTUS writes something as “right” as the dissent in Oil States is, I think the worst thing to do is to ignore that presence and the ideas so eloquently presented rather than drawing attention to them and voicing strong support for them.

    IMHO You have turned your back on a principle of justice, that it is better to let go 10 guilty of vice than to convict one innocent of virtue. You have lambasted 8, while knowingly and recklessly including one (and nominally two) who, in respect of Oil States at least, is innocent of the charge, exhibited virtue, and who deserve much better from you.

  6. Anon2 May 9, 2018 2:06 pm

    Sorry that should read, “one innocent and of virtue”

  7. Paul Cole May 9, 2018 2:12 pm

    At various stages in my career I have been deeply involved in pharmaceutical patenting, and am only too aware of the economics of new drug discovery and the enormous investment required.

    The pharmaceutical industry is perhaps the most reliant sector of industry on a well-working patent system. Discouragement of research in this sector in the short term may bring plaudits by making drugs less expensive. In the long term it will leave people needlessly ill or dead.

    As I have commented elsewhere, failure of the Supreme Court to take up the Ariosa v Sequenom case and straighten out the law is almost incomprehensible and a devastating failure of duty. The Federal Circuit decision was plainly wrong on its face, quantifiably by a factor of 1,000 to 1,000,000 and in reality by significantly more.

  8. B May 9, 2018 2:16 pm

    “Just look at their other decisions like Kelo or Citizens United

    Respectfully, you misunderstand what the C.U. decision stands for. C.U. puts average people on the same level as the rich by allowing people of modest income to pool their money and put out political messages the same as the millionaires and billionaires and Press. That is, C.U. benefitted the little guy, and you’ve been deceived by the popular b.s. spewed by the Press.

    As to Kelo – arguably the worst SCOTUS decision in the last 20 years – the irony there is the most “liberal” (i.e., pro-authoritarian) justices (joined by Anthony Kennedy) turned a public taking into a private taking while blowing through the fifth amendment taking clause.

    Turning to Cleveland Clinic (discussed above), the recent CC case (now waiting for cert.) is proof positive that Alice/Mayo is destructive. Further, when you get into the bones of the case, it reveals that the Alice/Mayo test is highly flawed.

    BTW, Gene – darn good piece here. Unfortunately, the SCOTUS will opt to watch industry burn rather than to admit mistake.

  9. B May 9, 2018 2:20 pm

    to Paul Cole,

    ” I have commented elsewhere, failure of the Supreme Court to take up the Ariosa v Sequenom case and straighten out the law is almost incomprehensible and a devastating failure of duty.

    Reyna certainly screwed to pooch on that one. Rather than address the underlying preemption issue, the CAFC merely said “Meh, our legal theory trumps reality.”

  10. Curious May 9, 2018 2:21 pm

    The Supreme Court, as a whole, is anti-patent. I’ve written this before, but judges have an inherent bias on monopolies, and many judges (inaccurately) believe that a patent confers a monopoly on the patented technology.

    Patents involve a trade off — between the detriment to society of having the patentee have a certain amount of control as to how technology is used versus the benefit of encouraging inventors to invent. No matter at what stage, a judge in the federal judiciary see the first part — some entity trying to prevent another entity from practicing the invention or trying to obtain damages (i.e., “rent”) for use of that technology. What these judges NEVER see is how patents accelerate the creation of technology. They don’t understand that certain technologies would never appear (or would only appear after a very long time) without patents.

    Put simply, they see the “bad” aspect of patents without ever seeing the “good” that comes from them. As a result, they are naturally inclined against patents because all they see is the bad.

    The problem to solved is how do we, as people who do see the “good” of patents, educate the judiciary on their benefits? This goes to a major problem I have with the judiciary — is that they are making judgments on the value of patents when its not their job. They aren’t fact finders but they still come up with BS such as ““[M]onopolization of those tools through the grant of a patent might tend to impede innovation more than it would tend to promote it.” While stated as a finding of fact, it is just a conclusory assertion untethered to any real findings. It is the job of Congress to holding hearings and make findings and value judgments — not the courts.

    Another problem I have with SCOTUS is their proclivity to ignore the statute. When KSR came out, I noticed that SCOTUS barely made mention of the actual language of the statute or attempted to tie their reasoning to the statute. Instead, they just pulled stuff out of thin air. The 101 jurisprudence is the same. Their judicial exceptions are also pulled out of thin air. In eBay, SCOTUS chose to ignore that the Patent Clause of the US Constitution states that inventors are to be given “exclusive right to their … discoveries.”

    In the end, one need only look at the the vast majority of decisions that have come out of the Supreme Court this century. In almost every instance, in which there was a decision that impacted rights of patentees, that impact was a negative impact.

  11. Curious May 9, 2018 2:36 pm

    C.U. benefitted the little guy, and you’ve been deceived by the popular b.s. spewed by the Press
    I’m not sure how you can say that with a straight face. Here is an article about the Koch brothers and their political activites: http://fortune.com/2017/01/29/koch-political-network-spending/

    Here is an interesting quote I dug up “The political network led by industrialists Charles and David Koch plans to spend about as much money as the entire national Republican Party spent in the last presidential election cycle.” You have a handful of people that are literally driving the campaigns. Advertising (and particularly negative advertising) works.
    If you can spend a lot more than your opponent, you have a much better chance of winning (all other things being equal). If a handful of people can dominate where that money is coming from, how is that good? Ultimately, it means that a great many candidates for public office are kowtowing to the ultra-rich donors. You don’t need your message to resonate with your constituents, you just need your message to resonate with a handful of the rich. This isn’t a democracy, it is a plutocracy.

    I have had some minor association with the political process. From what I’ve seen, the local parties will support those candidates with financial backing to the exclusion of those that do not. You can be a great candidate, but if you don’t have money, the local party doesn’t want you.

  12. B May 9, 2018 2:48 pm

    C.U. benefitted the little guy, and you’ve been deceived by the popular b.s. spewed by the Press

    I’m not sure how you can say that with a straight face. Here is an article about the Koch brothers and their political activites: http://fortune.com/2017/01/29/koch-political-network-spending/

    Oh, good God, don’t give me Koch Brothers boogie-man nonsense, read C.U. for yourself. Seriously – you just threw a pie in your own face by swallowing the misinformation spewed by the Press.

    Read C.U. for yourself, then respond using statements the SCOTUS actually made, rather than b.s. misinformation.

  13. Curious May 9, 2018 3:28 pm

    Seriously – you just threw a pie in your own face by swallowing the misinformation spewed by the Press
    Perhaps you could start by rebutting the actual points I made without resorting to conclusory assertions.
    swallowing the misinformation spewed by the Press.
    Where have I heard something like this before? Hmmm … I’m sure it’ll eventually come to me. Oh and BTW, my opinion of Citizen United was developed completely independently of the press.

    then respond using statements the SCOTUS actually made
    I don’t care what SCOTUS said. I only know the impact of Citizen United, which is to make my voice a LOT, LOT, LOT, LOT, LOT (did I say LOT?) smaller than the voice of a corporation that can afford to spend millions or tens of millions or hundreds of millions of dollars in terms of getting a particular candidate (or slate of candidates) elected. Oh, of course, the unlimited PACs cannot support a particular candidate or party. However, that limitation is incredibly easy to get around.

  14. B May 9, 2018 4:06 pm

    “I don’t care what SCOTUS said. I only know the impact of Citizen United, which is to make my voice a LOT, LOT, LOT, LOT, LOT (did I say LOT?) smaller than the voice of a corporation that can afford to spend millions”

    CU puts private citizens on par with the rich, and your characterization of the CU holding is total nonsense.

    Make your own opinion based on the SCOTUS actual opinion, rather than blindly adopt an opinion from some idiot.

  15. Anon May 9, 2018 4:48 pm

    B,

    Respectfully, your view is 180 off.

  16. B May 9, 2018 4:55 pm

    Respectfully, your view is 180 off.

    Respectfully – I am not UNLESS you can tell me why allowing average citizens to pool their money to make political statements is bad. Michael Moore made a political movie bashing a Republican – perfectly fine. At the same time, a bunch of average citizens made a movie bashing a Democrat and the FEC lost its mind.

    We will just need to agree to disagree. The rich should not have avenues of speech denied to the poor and middle-class, and I’m not changing my mind on the subject.

  17. Anon2 May 9, 2018 5:08 pm

    Anon@14

    Huh?

  18. Anon May 9, 2018 7:01 pm

    Anon2 (and B, in part),

    We are disagreeing on the takeaway from the Citizen’s United case.

    This is a case of how juristic persons may wield powers as if they were real people (even though they are not, and even though that same LACK of limitations that real people have sets up the end result of ALL juristic persons having an outsized ability to effect political ends).

    B has been sold a bill of goods that the juristic person of “groups of small people” are the real victors. But he turns a blind eye to the fact that such is but a smokescreen, and the real victors are the biggest juristic persons – the more “outsized” the effect, the more power. Do the “groups of small fries” gain power through the means of amplifying juristic person-power? Sure. No one is denying that. At the same time though, that “gain” becomes an even bigger RELATIVE loss. That’s just the nature of juristic persons and the “voice” so obtained being merely a “relative” multiplier.

    B thinks “individuals” (as ‘real people’) have been empowered – and THAT is 180 from reality.

  19. Anon May 9, 2018 7:07 pm

    In short: juristic personhood is NOT an equalizer to the rich; it is an enabler of them. For it is the rich (individual ‘real person’) that most knows – and leverages – the power of juristic persons (corporations being front and center one of the enabled juristic persons).

    And the bigger the Corp, the more (and louder) the “voice.”

  20. Anon May 9, 2018 7:38 pm

    (and I would also add that the Ends to which B would applaud are – and have been in many discussions – more aligned with my views than aligned against)

    Here, for example, I think that B aims for some “good” in a desired takeaway.

  21. Curious May 9, 2018 7:54 pm

    CU puts private citizens on par with the rich, and your characterization of the CU holding is total nonsense.
    In what alternative universe is this accurate? Seriously, could you please explain how that is possible.

    Make your own opinion based on the SCOTUS actual opinion, rather than blindly adopt an opinion from some idiot.
    What SCOTUS think they did and what resulted from the opinion are two different things. The long and the short of it is that a corporation can now donate millions of dollars into a PAC, and that PAC can use that money to influence elections. They cannot support a particular candidate or party, but those are EASY limitations to get around.

    I am not UNLESS you can tell me why allowing average citizens to pool their money to make political statements is bad
    That statement is a red herring. If I have 100,000 average citizens each donate $100 for a political statement and I have a corporation spend $10,000,000 on an opposite political statement, it means that that 1 corporation = 100,000 average citizens. As I said, CU made “my voice a LOT [lots of LOTs omitted] smaller.”

    You appear to have confused the intended impact of the decision (as to the plaintiffs) with the actual impact of the decision [to campaign finance as a whole]. The actual impact of the decision is that people with lots of money have a lot more speech than those without.

  22. JimmyN May 9, 2018 9:59 pm

    If the SCOTUS is calling patents a franchise right, does that mean that it is a contract between the government and the patent owner? If so, does that mean patent owners can sue the federal government for a breach of contract if they invalidate a claim?

    I went back through and look at my notices of allowance document and my actual granted patent and nowhere in the documents/contracts does it state that the government has a right to change the contract after granted/issued. Yes the government can change it mind during a 3 month period between notice of allowance and actual issue, but beyond that, nothing else. First part of the contract was the notice of allowance, I paid the fee for the patent/contract to be issued. Second part of the contract is I received the issued patent.

    Additionally, the cover of the patent/contract states:

    The Director of the United States Patent and Trademark Office has received an application for a patent for a new and useful invention. The title and description of the invention are enclosed. The requirement of law have been complied with, and it has been determined that a patent on the invention shall be granted under the law.

    Therefore, this United State Patent Grants to the person(s) having title to this patent the right to exclude others from making, using, offering for sale, or selling the invention throughout the USA or importing the invention into the USA, and if the invention is a process, the right to exclude others from using, offering for sale or selling throughout the USA or importing into the USA, products made by that process, for the term set forth in 35 USC 154(a)(2) or (c)(1), subject to the payment of maintenance fees as provided by 35 USC 41(b). See the Maintenance Fee notice on the inside of the cover.

    As a contract, it’s pretty straight forward. I applied with ALL laws and I am granted the right to exclude others for a set term of time as long as I pay the maintenance fees. A valid contract contains an intention to create a legal relations, an offer, an acceptance, and consideration…. All four elements are covered from the notice of allowance and the issue.

    So if it is considered as a contract, does that also mean that I can take legal action against anyone filing an IPR for interfering with an existing contract (between myself and the patent office)? Maybe the decision by the SCOTUS means we need to think outside the box…

  23. Mr. V May 10, 2018 12:02 am

    I believe it’s the latter; patents are far beyond the scope of SCOTUS’s competency both legally and technologically speaking. I have always been a proponent of Europe’s UPC model but I’m afraid it just makes too much damn sense to be adopted here in the states. At least the new Director Iancu seems to be getting right to work in cleaning up the PTO but to Gene’s point, SCOTUS has created far more uncertainty than PTO under the former regime and will continue to do so for the foreseeable future I’m afraid…

  24. EG May 10, 2018 7:05 am

    “Is the Supreme Court Anti-Patent?”

    Hey Gene,

    Virulently so, in my opinion. For the past decade or a so, I haven’t seen the Royal Nine meddle in and muck up patent law like this since the 1970’s. The formation in 1980 of the Federal Circuit was a not so subtle shot across their bow by Congress to stay out of patent law jurisprudence. For slightly over 2 decades they “got the memo,” and stayed out of patent law jurisprudence. With the exception of Gorsuch, and possibly Roberts, I wish the Imperious Seven would crawl back in their hole, and never again venture into our “nook of the law.” Jurisdiction stripping of them to hear any appeal involving patent law is in order.

  25. Anon 111 May 10, 2018 7:12 am

    On the SCOTUS problem (I agree with Gene here) my only take is that no Judge whatsoever should be able to make decision about patent cases unless he has an advanced technological or scientific degree ( Ph.D. MSc, or an Engeeniring degree). Practically. this means taking such cases from SCOTUS altogether and forming a judicial body composed of Judges having high competence in science and technology and a law degree which will have the training to handle such technically complex issues.
    Personally, I am not surprised at all about the SCOTUS bias against patent holders. With all due respect to the USA, I have sadly been watching for several decades the consistent deterioration of the US as a superpopwer. From loss of supremacy in space research and technology, to a berserk Money printing and inflation National Debt. So now the SCOTUS careless and half-witted destruction of the American Patent system is no big surprise to me.

  26. anon 111 May 10, 2018 7:15 am

    inflating National Debt.

  27. Disenfranchised Patent Owner May 10, 2018 7:19 am

    If you think SCOTUS makes bad decisions, CAFC’s use of Rule 36 is even worse.

  28. Dinesh Kumar Anchal May 10, 2018 7:22 am

    In my view court neither biased not anti. it moves on fact & figure. Our interpretation is that it should work as per filling agency. But Subject matter experts opinion/s is/are too inculcate in decision before it is declared. In reality some unnecessary & unrealistic fact & experiments are mentioned by Innovator as covering wider area. it makes difficult to work for other to move ahead. It is order of day as intentions are having profit must be in their sphere.

  29. Anon2 May 10, 2018 8:28 am

    Anon@19

    There are two main issues to my mind (as one who has not delved deeply).

    1. Unconstitutionality of laws which violate everyone’s right of free speech.

    2. Whether the constitution applies to fictitious persons, do collectives, fake people, associations, organizations, gaggles, crowds, mobs, as such have rights protected by the constitution.

    I side with you generally regarding 2 and for my part take it as an the error to equate “rights” as anything other than Individual Rights and protections of the Constitution as extending independently to any entity, as such, other than individuals.

    As for 1., perhaps citizens united should not have been recognized as having standing or capable of bringing a constitutional challenge, at least not on the basis of the argument that ITs rights, rather than the rights of individual members, have been violated and the law should be struck down.

    No person should be gagged in the free market of ideas, but no collective, group demographic or “crowd”, should be considered a person.

  30. Anon2 May 10, 2018 8:33 am

    Re. 25

    Not perfectly clear, I take it as error to claim that protections of the Constitution extend independently to any entity, as such, other than individuals

    I presume the law would have prevented real individuals from exercising their individual Rights of free speech, Bill Gates for example, and thus rightly was struck down.

    and embarrassing typo above … Gene lambasted all 9 judges,,, not 8… need more coffee before I chitter away here.

  31. Valuationguy May 10, 2018 9:22 am

    I’m certainly not going to defend the SCOTUS on its patent rulings over the years….but I place most (70%) of the blame on the destruction of patent value on the CONGRESS. Yes…the SCOTUS is poor at upholding the letter and intent of the framers of the Constitution….but in many ways, the SCOTUS generally follows the changing will of the ‘people’ as reflected by the laws Congress passes. Whether you blame those on the SCOTUS who view the Constitution as a living document…subject to changing interpretation (rather than a signed contract between parties with expectations set at the time of signing….but subject to change via the amendment process)…..UNLESS the Congress was pushing bad policy, the SCOTUS wouldn’t even be an issue imo.

    The problem as I see it is that the Congress no longer represents the “PEOPLE” of the U.S. Instead it represents ‘CORPORATE INTERESTS’ and ‘LOBBYISTS’ because of the misguided view that corporations have the SAME rights a PEOPLE. While I agree they should have some similar rights (be able to sign contracts, own property, etc.), corporations should NOT be able to influence elections as this concentrates too much power into the hands of the few (those who own/run corporations…who themselves are insulated or isolated from the workers/shareholders/voters who might disagree with corporate management/owners views). Allowing corporations to participate (provide funding or support) in elections skews the entire principal of democracy by skewing the critical “one citizen, one vote” dynamic.

    While this circles back to settled decision that corporations have the same rights as people….first decided by the SCOTUS in 1818 and built on until the feckless Citizens United decision in 2010…my view is that the SCOTUS (and Congress) is just applying the well-known adage that money = economic power = good for U.S. interests….and corporate interests generate more power/money than individual interests. (Yes…there are many exceptions to this rule…but the trend is there when individuals rights go up against corporate rights. This is in part why the entire liberal wing voted against Citizen United, a 5-4 decision where Kennedy was again the critical swing vote.)

  32. Raymond Van Dyke May 10, 2018 9:51 am

    The ruminations about Citizens United and such are interesting but moot. The current problems of the patent system are many and manifest:

    1. the small inventor community has no voice. Years ago the small inventor community had the power to stymie any sneaky bills that corporations tried to slip through. With the decade-long lead up to the AIA, with pharma and tech duking it out, the small inventor community sat back – and got complacent. Now they have no concerted voice, and we have a corporate patent system.

    2. the message has been lost. Corporations and lobbyists, particularly tech, have been very effective at labeling patentees as undeserving trolls, and this tarnishes the whole patent system. Gone are the notions of entrepreneurship and building a better mousetrap – innovators are now deemed extortionists. This is a public relations problem. Director Iancu is leading the charge to change this tune and fix the egregious errors in the AIA. I fear, however, that this will take many years – with corporations countering the effort. Perhaps some public shaming of anti-patent nonsense?

    3. the Supreme Court Justices are people too. They hear the errant nonsense in the press about trolls and think the patent system is out of control – and the briefs they read say this too. Also, the bad cases that make it to them have unfortunately resulted in bad law – thanks to the corporations that fund the push of these cases up. Retired Justice Stevens was very anti-patent. Breyer is skeptical. The others are wary. Gorsuch is great so far. Remember that none of them have technical degrees, and only a few have experience with IP, e.g., Ginsburg with copyright. The Court will unlikely be of any help in the near future.

    4. Congress is the answer. Despite the incredible odds, against the lobbyists and special interests, Congress has to come together to defend and strengthen the patent system. As with the Justices, the message must change and the small inventor community and IP organizations must lead the charge. This is a very non-political issue, which could actually help in this divisive climate.

    My two cents. There are many, many other issues and nuances.

    Ray

  33. Peter Corcoran May 10, 2018 11:21 am

    SCOTUS lives in a bubble. It’s all some intellectual exercise for them. They don’t have to live with their decisions. It’s easy to disenfranchise an industry when it doesn’t affect you.

  34. Scott May 10, 2018 11:51 am

    Gene,

    I’d like to address one points about your above article that I believe is incorrect.

    You say:

    “Patents are not a monopoly, period. Anyone who disagrees is either oversimplifying a very complicated topic to the point of compromising truth, they are misusing a very specific economic term “monopoly,” or they are simply uninformed.”

    With regard to misuse of a very specific economic term and being uninformed, I’d like to point to at least two sets of economists who use the term “monopoly” to describe patent, and IP rights, in general. From Boldrin and Levine, in their book “Against Intellectual Monopoly,”: “Intellectual property is one type of government-enforced monopoly.” p. 5 (http://levine.sscnet.ucla.edu/general/intellectual/against.htm). Further, Alex Tabarrok, an economist at George Mason, has similarly used this language to describe IP rights. (See https://theeconreview.com/2018/03/13/the-tabarrok-curve-a-call-for-patent-reform-in-the-us/). Specifically, he addressed software patent rights in his book “Launching the Innovation Renaissance,” where he argues that the over-granting of software patents in recent history has stymied the growth of innovation and economic development. These works also raise a major issue with your rather flippant exclamation that “In what world does it make sense to question the patentability of software when we are at the dawn of the artificial intelligence revolution.” Rather, both books would argue that AI technology would develop even better in a system with fewer, more limited patent rights. I point these two sources out because they are experts in economics and are highly informed on the subject matter — yet, they refer to the distribution of IP rights as being the distribution of monopoly power.

    Further, I’d like to point to what two of the founding fathers — Thomas Jefferson and James Madison — said with respect to patents. Thomas Jefferson said:

    “Monopolies may be allowed to persons for their own productions in literature and their own inventions in the arts for a term not exceeding —— years but for no longer term and no other purpose.” (See https://www.monticello.org/site/research-and-collections/patents)

    James Madison used similar language in describing patents as monopolies:

    “But grants of this sort can be justified in very peculiar cases only, if at all; the danger being very great that the good resulting from the operation of the monopoly, will be overbalanced by the evil effect of the precedent; and it being not impossible that the monopoly itself, in its original operation, may produce more evil than good.”

    None of this is to disagree with where SCOTUS stands on patents and IP in general (which I would argue is much more nuanced than you give them credit for), but it is something I wanted to bring up because you seemingly base many of your arguments on this point.

  35. Kevin May 10, 2018 12:31 pm

    It is clear to many that the personal and political views of the Supreme Court justices play a significant role in their decisions. So, what I don’t understand is why the election of Supreme Court justices is not done similar to other important policymakers such as the President or members of the Congress. Or, why not impose terms limits on them. If we have term limits for the President and the members of Congress, why not on the Justices. I honestly see no logic behind the unlimited term. It seems to me that Supreme Court Justices are not accountable to the public, whereas the President and the members of Congress are. It simply doesn’t make sense. This calls for a petition to be sent to the White House or Congress, isn’t it?

  36. Night Writer May 10, 2018 12:52 pm

    @28 Dinesh Kumar Anchal in my view court neither biased not anti

    Look. About three years before Alice, I predicted that the SCOTUS would come up with a 101 case that would allow the district courts and CAFC to invalidate any claim they felt like invalidating. Guess what? They did exactly what I predicted they would do.

    Guess what? It is not hard to predict what the SCOTUS is going to do. You know why? They are behind the big international corporations just as they were with anti-trust law.

    One reason I predict the outcomes of cases (I said we would lose Oil States) is to show that I understand the courts and that what they are doing is governed by policy and not law or the Constitution.

  37. Bob Taylor May 10, 2018 12:58 pm

    I agree with Gene that it is not particularly useful to characterize the Court simply as “anti-patent,” but it is critical to call attention to the apparent disconnect between the purposes and consequences of our patent system and the real world of economics. Far too little of this relationship makes its way into the Court’s thinking. We know this because the large number of unanimous decisions tells us that the Court views the patent system from a lofty perch and as an academic exercise instead of a foundational building block of the technological primacy that our country has enjoyed for decades. Few of the cases that make their way to the Court are so cut and dried as to command the agreement of all nine justices. (The dissent in Oil States was a welcome exception to the usual unanimity of recent years). The broad sweep of the Court’s Section 101 jurisprudence, for example, has destroyed or at least diminished the value of dozens of companies that depended upon secure patent protection to justify the expenditure of time and resources to develop products. The unanimous decision in Myriad swept away more that 20 years of economic development built around the belief that isolating and defining the sequence of a human gene was patentable. The Prometheus decision diminished the incentive of researchers to continue working on finding cures for diseases and led to the truly dreadful decision in Ariosa v. Sequenom.

    There is, in addition to the lack of concern over the economic impact of its decisions, a notable tendency to find against the patent owner whenever the case could go either way. Anyone familiar with Judge Moore’s decision in TC Heartland could readily come the conclusion that she was correct. It is hard to argue that Supreme Court’s 8-0 decision does not reflect either a strong bias against patent owners or bias against the Federal Circuit. Even more telling was the intellectually dishonest opinion of the Supreme Court in Lexmark v. Impression Products. In rejecting a carefully crafted and lengthy opinion of Judge Taranto that addressed the entire history of the patent exhaustion doctrine, the unanimous decision of the Supreme Court misread the Court’s own precedents and relied upon the ancient proscription against restraints on alienation, citing Lord Coke’s 17th Century treatise.

    In my view, our country deserves better than it is getting from our Supreme Court.

  38. Eric Berend May 10, 2018 2:03 pm

    “That the government of the Corporations, by the Corporations and of the Corporations, shall not perish from this Earth…”

  39. CW5 May 10, 2018 3:21 pm

    The real question is not whether the Supreme Court is anti-patent, it is WHY the Supreme Court is anti-patent.

    Is it because our Overlords in silicon valley are anti-patent?

    Is it because the Court does not understand how our patent system works to stimulate innovation?

    Is it because the Court incorrectly believes patents are a type of monopoly?

    Is it because some on the Court occupy the far left politically, and private property rights like patents are the antithesis of Socialism?

    Perhaps all of the above?

  40. Disenfranchised Patent Owner May 10, 2018 3:24 pm

    Night Writer @ 34… This is prima facie BIAS!

    “I understand the courts and that what they are doing is governed by policy…”

    What CAFC is doing (SCOTUS, too) is driven more by politics than policy.

    The PTAB already invalidate any patents and claims that they feel like invalidating (i.e., most of them) and the CAFC routinely affirms and hides behind Rule 36.

    Consider that 7 of 12 active CAFC judges are Obama appointees, and an eighth was appointed by Clinton. Which of those lefty judges is going to bite the hand that fed them with a lifetime appointment, particularly if one party involved is represented by Perkins Coie or some other totally Democratic firm?

    Google ALWAYS wins.

    “You didn’t build that!” is way too similar to “You didn’t invent that!”

    Eric Berend @ 35 is also spot on.

  41. Disenfranchised Patent Owner May 10, 2018 3:27 pm

    And CWS @ 36 is asking the right questions…

  42. B May 10, 2018 4:52 pm

    To DPO

    “Consider that 7 of 12 active CAFC judges are Obama appointees, and an eighth was appointed by Clinton. Which of those lefty judges is going to bite the hand that fed them with a lifetime appointment, particularly if one party involved is represented by Perkins Coie or some other totally Democratic firm?”

    Look, I think that some of the Obama appointees are the worst scourge on the CAFC, and in particular I mean Reyna, Hughes and Taranto, but I don’t see their judicial faults on 101 as being an issue of politics. They are merely judges that believe (or at one time believed) that Alice/Mayo gave them super-human powers to just KNOW what man-man things are abstract and what man-made things are well-known, routine and conventional. What surprises me, however, is the cognitive dissonance of Judges like Reyna who still insist 101 has nothing to do with evidence (see Aatrix dissent) when his McRO v. Bandai decision was totally based on evidence (or lack thereof).

    Also – Perkins Coie – they’re not a Democrat firm any more than Gibson Dunn is a Republican firm. It comes down to personal relationships between individual attorneys and politicians.

  43. Disenfranchised Patent Owner May 10, 2018 4:57 pm

    Sure… This is from a fairly reliable source (like, Wikipedia):

    “Perkins Coie is counsel of record for the Democratic National Committee, Democratic Leadership Council, the Democratic Senatorial Campaign Committee, and the Democratic Congressional Campaign Committee. Other political clients include nearly all Democratic members of the United States Congress. It has also represented several presidential campaigns, including those of John Kerry,[2] Barack Obama,[3] and Hillary Clinton.[2] The group’s Political Law practice was for many years headed by Robert Bauer and is now chaired by Marc Elias.[4]”

  44. B May 10, 2018 5:03 pm

    To Anon

    “B thinks “individuals” (as ‘real people’) have been empowered – and THAT is 180 from reality.”

    As I said, we’ll just have to agree to disagree. I mean, its not as if money was never an issue in politics before CU. Also, Hillary Clinton spent $1.4 billion on her last presidential campaign all the time screaming about how bad the CU decision is. Imagine individual people pooling their resources to make a political statement without having to bow down to individual candidates, the political parties and the multitude of PACs. What right does the government have to shut down such free speech?

  45. B May 10, 2018 5:13 pm

    To DPO

    ““Perkins Coie is counsel of record for the Democratic National Committee, Democratic Leadership Council, the Democratic Senatorial Campaign Committee, and the Democratic Congressional Campaign Committee.”

    And I guarantee you that each client was acquired based on personal relationships. That said, I will concede that PC is counsel of record for the DNC . . . as well as Microsoft, Starbucks, Amazon, Google, Facebook and Twitter.

    Hmmmmmmmm.

    Okay, PC would represent Stalin if he were alive. You’re right; I was wrong.

  46. Tim May 10, 2018 6:05 pm

    I only need to look at how a 12-man jury “unanimously” shutdown Google, AOL, Target and Gannett on every count. Google took the vase, “Vringo vs IP Internet” to the Appeals Court and judges Mayer and Wallace tossed the 12-man court verdict from Judge Jackson’s Norfolk Court. The only qualified judge in computer technology highly dissented, but these two wouldn’t budge! Later, Atty David Buies took the case to the Supreme Court. But for some strange reason, the court wouldn’t hear the case. A dirty system is what we saw at the Appeals Ct and all the way up!

  47. CW5 May 10, 2018 6:05 pm

    Everything has become highly politicized in our country over the past 10 years or so, and we are being naive to think that the patent system somehow escaped that trend.

    People on the left side of the political spectrum have a bias against private property rights, particularly patent rights. It is no coincidence that our silicon valley Overlords, who just happen to be headquartered in the most “progressive” parts of the country, have led the fight to destroy our patent system.

    When the Supreme Court says that patents (i.e., intellectual property) are not really property rights, but are instead a mere franchise, it is time for us all to wake up.

    How many more of our “property” rights are going to be turned into a franchise in the future? Your retirement investments? Your car? Your home?

  48. Ternary May 10, 2018 6:12 pm

    B@41: “Clinton’s unsuccessful campaign ($768 million in spending) outspent Trump’s successful one ($398 million) by nearly 2 to 1.” (https://www.washingtonpost.com/news/wonk/wp/2017/04/14/somebody-just-put-a-price-tag-on-the-2016-election-its-a-doozy/?noredirect=on&utm_term=.e3ee319a9daf)

    The total spending on the 2016 election can be found at: https://www.washingtonpost.com/graphics/politics/2016-election/campaign-finance/

  49. Disenfranchised Patent Owner May 10, 2018 6:12 pm

    “Okay, PC would represent Stalin if he were alive…”

    yep… unless they could find a client or two willing to pay them more.

  50. Disenfranchised Patent Owner May 10, 2018 6:30 pm

    Tim @ 43 and CW5 @ 44…

    Sorry for the tardy reply (I was tied up on the phone with appellate counsel).

    If you’re a patent owner, and if you can manage to stay outside the swamp, then you might stand a snowball’s chance in hell. But, if you end up before the PTAB and/or the CAFC, you’re DOA.

    Actually, you’re dead even before arrival. You just don’t know it yet. You have to pay dearly in order to learn that life lesson.

    In the swamp, nothing matters except, “You didn’t invent that!”

    Google ALWAYS wins! They bought that right/privilege by supporting Obama.

    Patents used to be an Article 1, Sec 8, Clause 8 personal property right.
    Today they aren’t even a privilege, much less an asset.
    They’re now a liability… a very expensive one.

  51. Disenfranchised Patent Owner May 10, 2018 6:41 pm

    At least, when SCOTUS decides a case, they make an attempt to craft an opinion. CAFC doesn’t even bother with such a mundane matter as explaining themselves.

    Sorry… I’m blithering…

  52. Gene Quinn May 10, 2018 10:22 pm

    Scott at 34-

    Anyone who says patents are a monopoly is incorrect, period. I’m happy to debate anyone who disagrees anytime, anywhere.

    See: http://www.ipwatchdog.com/2017/02/25/debunking-myth-patents-create-monopoly/id=78756/

    I doubt I will get any takers on my challenge, but I am seriously happy to take on any and all opponents on this issue. As long as the debate will be fairly moderated by an agreed neutral I will participate in any forum against anyone. I am correct. Everyone that knowns anything about patents knows I am correct. There are numerous reasons why a patent is not a monopoly.

  53. CW5 May 10, 2018 10:33 pm

    DPO @45, 46 & 47

    We must make the patent system a political issue, in my view. We no longer have the luxury to hope and believe that it can be held above the fray. Google and it’s gang spoiled that for us.

    The public needs to know that the patent system is as essential to American greatness as the First and Second Amendments. The patent system gives us hope they anybody can improve their station in life by being innovative. If they come up with a better alternative, society will reward them for it.

    Weakening the patent system snufs out the American dream. A weak patent system only benefits those already at the top of the ladder – those who want to hold on to their privileged, elite position and who don’t want to compete with more innovative up and comers.

    If the general public comes to understand this, they will fight to protect the patent system, and they will win.

  54. JX May 10, 2018 10:46 pm

    It is interesting that often a person who is themselves guilty of something, will levy a charge at others accusing them of the same of which they are guilty. Hence, its no surprise to see a representative of the effective corporate monopolistic interests, levy the charge against itty bitty independent inventors and smaller entities as somehow deriving monopolistic power. Indeed, the behemoths jealously guard that precious jewel which is their monopoly power, and are so hell-bent on power as to not share even a morsel of it. It is not about money at this point, it is about social control.

    Inventors are pests to the monopolies, in many instances their inventions have the power to literally overnight destroy and obsoletize large capital expenditures. Imagine your dismay after spending $10B constructing a refinery, only to have some inventor come along with a new catalyst or process that renders your operation unprofitable.

    Early in the Republic, when flintlocks were all the rage, patents served a different purpose, to advance progress in the useful arts. Today, patents have been reduced to social control mechanisms, a franchise privilege few have access to. In fact, the Sup. Ct. didn’t even have to say it, for by the meteoritic costs of patent prosecution and enforcement had made patents an effective franchise long ago that were only affordable by the priviliged. Its just gone way beyond critical mass.

    There is still time for resistance and change, at this stage it might require some civil disobedience to be effective, since going through the courts appears futile. Sometimes I wonder what fraction of our population is truly willing to stand up and fight for what’s right. And how many are truly free enough that they can “afford” to occupy themselves with such matters. It might just be that such high ideals are a thing of the past, and we’re again in a “might makes right” era.

  55. Scott May 10, 2018 11:07 pm

    Gene,

    I have a thick docket to get through over the next week, but once I catch a breath I’ll send you a well-researched and well-cited rebuttal in response to your above article. If you’d like to extend the debate past that I’d be more than happy to continue.

  56. Curious May 11, 2018 9:11 am

    Also, Hillary Clinton spent $1.4 billion on her last presidential campaign all the time screaming about how bad the CU decision is.
    And what would you expect any candidate to do in that situation? You work within the system that is presented — even if it is a bad system.

    Imagine individual people pooling their resources to make a political statement without having to bow down to individual candidates, the political parties and the multitude of PACs.
    Nice straw man argument. You do realize that political action committees have been around since 1944? As such individual people have LONG HAD THE RIGHT to pool their resources to make political statements without having to bow down to individual candidates or political parties. Also, you do realize that these individual people pooling their money will have to be registered as a PAC to the extent that they raise or spend any significant amount of money? As such, why would a PAC have to bow down to a PAC?

    The ultimate result of Citizens United is that corporations and labor unions can make unlimited donations to what is now called a Super PACs. Additionally, because of the rules associated with Super PACs, people can set up shell corporations to donate to a Super PAC and be able to hide the true identity of the donation. So much for transparency ….

    What right does the government have to shut down such free speech?
    Another HUGE straw man argument. Shutting down free speech was never the issue. The issue was whether free speech applied to corporations and labor unions. In today’s world, the more $$$ you have the more speech you have. Again, these means that Corporations (because they have magnitudes more money than labor unions) have more speech than nearly everybody else.

    Bringing all of this back to patent law. Individual inventors, even if they created their own Super PAC that advocated for inventor rights, would have little hope of outspending the likes of Google, Facebook, etc.

  57. angry dude May 11, 2018 9:22 am

    CW5 @53

    “If the general public comes to understand this, they will fight to protect the patent system, and they will win”

    Dude, that’s a very very big IF…

    lemmings are happy with beer, popcorn and some game or show on big screen TV

    approaching idiocracy a little by little…

  58. Curious May 11, 2018 9:24 am

    I have a thick docket to get through over the next week, but once I catch a breath I’ll send you a well-researched and well-cited rebuttal in response to your above article.
    Good luck with the rebuttal. Using Wikipedia’s definition of monopoly of “a specific person or enterprise is the only supplier of a particular commodity” a patent holder is not necessarily a monopoly since: (1) the patent holder may not have the rights to practice the invention (because the invention itself could be subject to other patent(s)) and (2) because of eBay v. MercExchange a patentee’s right to exclude has been severely curtailed to the point that a patent owner realistically only has the right to obtain a reasonable royalty.

    While there may be some examples where a patent has created monopoly-like power for patent owner (particularly in the case of pharma but there are other laws that impact that exclusivity), in most cases, obtaining monopoly-like power using patents is extremely difficult.

    A patent does not confer a monopoly to the patentee. At best, a patent allows a patentee to attempt to obtain monopoly-like power if all of the stars align.

  59. Anon May 11, 2018 10:03 am

    Curious @ 57,

    Your point is the critical point of providing context.

    I have no doubt that the items of rebuttal that Scott refers to will include a lack of proper recognition of that context. Yes, there are undoubtedly academics and economists out there that only too glibly speak of “patent monopoly” and – as if by the magic of their own incantations – a patent IS a monopoly.

    It is just not so.

    As easily understood by most anyone with a rudimentary understanding of what a patent is.

    There is an easy distinction that make all the difference: negative rights.

  60. Scott May 11, 2018 10:27 am

    @ 57, 58:

    While I was originally just going to address Gene’s misunderstanding of the “very specific economic term ‘monopoly,'” which really speaks to his misunderstanding of the word “market” (which he discusses here: http://www.ipwatchdog.com/2017/02/25/debunking-myth-patents-create-monopoly/id=78756/), I will also address your noted context as well. The first aspect — “(1) the patent holder may not have the rights to practice the invention (because the invention itself could be subject to other patent(s))” — will be a straightforward legal and semantic analysis, but the second aspect — “because of eBay v. MercExchange a patentee’s right to exclude has been severely curtailed to the point that a patent owner realistically only has the right to obtain a reasonable royalty” — will be a bit more involved because it requires more case law analysis, so it may take me some time to address the latter aspect(s).

    That being said, I’ll be primarily relying on Mas-Colell / Whinston / Green “Microeconomic Theory” (Oxford, 1e: 1995) (available here: http://math-hse.info/f/2011-12/%D0%A4%D0%9F%D0%9F/%D0%A2%D0%B5%D0%BE%D1%80%D0%B8%D1%8F%20%D0%B8%D0%B3%D1%80/Mas-Colell&Whinston&Green%20–%20Microeconomic%20Theory.pdf), and specifically on chapter 12 to show that patents are indeed a monopoly under the “very specific economic term ‘monopoly.'” So, if you’d like to get ahead of my analysis and read the text for yourself (a standard in graduate econ programs), that text is available for you.

    Just as a side note, before I went to law school to become a patent attorney, I studied economics with a focus on macroeconomic market power and constitutional restraints, and planned on pursuing a PhD in a subtopic of the field, so this is a passion project I’m happy to indulge in for a bit. Thanks for presenting me with a problem to address.

  61. Gene Quinn May 11, 2018 11:23 am

    Scott-

    You are wrong, I am right, and I’m happy to debate you or any of your professors at any time any where. A patent is not a monopoly, period. Nothing you can say will change that fact.

  62. Scott May 11, 2018 11:36 am

    Gene,

    How about we use one of these two approaches for a debate:

    1. You present substantive arguments addressing why patents are not a monopoly, and I will rebut those arguments; or

    2. I present substantive arguments addressing why patents are a monopoly, and you can rebut those arguments.

    Seeing as how you have already presented arguments addressing why patents are not a monopoly, how about I rebut those arguments (i.e., option 1). Since this type of argument seems more amenable to citations, diligent logic, and diagrams in support of various points, how about I do this in writing, for example, by way of email. Does that work for you?

    Also, by substantive, I mean more than “You are wrong, I am right.” and “A patent is not a monopoly, period.” Something more along the lines of your arguments here: http://www.ipwatchdog.com/2017/02/25/debunking-myth-patents-create-monopoly/id=78756/. Hopefully, you can provide even more, because I’d like to take on your best arguments rather than your weakest arguments.

    Importantly, if I do write a detailed argument in such a manner, will you actually read it and respond? I’d rather not waste my time arguing if you don’t plan on responding.

    Thanks

  63. Curious May 11, 2018 11:50 am

    specifically on chapter 12 to show that patents are indeed a monopoly under the “very specific economic term ‘monopoly.'”
    I scanned chapter 12 (“Market Power) and looked more closely at 12.B (“Monopoly Pricing”) and found no mention of patents. Section 12.B opens up with the statement “[i]n this section, we study the pricing behavior of a profit-maximizing monopolist, a firm that is the only producer of a good.” However, as I discussed above, only in limited circumstances is a patentee the “only producer of a good.” You’ll need to provide more explanation because I’m not finding support for your theory in this book.

  64. Curious May 11, 2018 12:30 pm

    Scott @62 — I suggest you begin by presenting a definition of “monopoly” that you intend to use. Perhaps you are using this terminology differently that how Gene (or perhaps I) is using the term.

  65. angry dude May 11, 2018 3:29 pm

    Scott @62

    Dude,

    How can inventor of a better *improved* mouse trap have a monopoly on his improved mousetrap if the incumbent mousetrap manufacturer has 10,000 patents on all aspects of ordinary mousetrap ???

    The only thing inventor can do (could do until Ebay etc) is to exclude incumbent manufacturer from manufacturing his *improved* version of a mousetrap.
    That’s all.
    No monopoly. Period. End of discussion.

  66. John Wu May 11, 2018 7:34 pm

    I have studied the patent law histories, and have to conclude that the Supreme Court had various anti-patent periods. The U.S. patent law was fairly stable for the first 130 years. Then, U.S. started weakening patent rights a little bit by a little bit. I see a predictable pattern. The patent systems of UK and many other common-law nations have experienced similar anti-patent movements.

    An inventor-favoring policy will result in rapid advancements of technologies. Then, powerful people who enjoy achieved technologies will be constrained by the very patents that empower them. Then, they will do everything to destroy patents. After they cripple or destroy patent systems, they will soon find little more new technologies will come. All companies will only invent things to perpetuate their businesses and product innovations. So, now a super majority of patents are in social media and information technologies. It is so clear that U.S. technologies are rapidly declining following up the production rapid decline.

    I bet that China will eventually repeat what UK, common law nations, and U.S. have gone through.

    However, U.S. is unique in that its corporations have great influences on national patent policies. Now, a super majority of U.S. patents are granted to foreign corporations and international corporations (who use patents to advance foreign interests).

    In the isolated world in the early days, ruining patent systems is not a big deal as most nations do not even have any patent system, and there was no competition. Now, technologies are everything.

    This anti-patent judicial practices have hurt the nation for many decades but the impacts are not obvious immediately.

  67. Night Writer May 12, 2018 11:39 am

    @66 John Wu

    Thanks John Wu. Very interesting.

  68. Anon May 12, 2018 8:23 pm

    Scott,

    Thank you for the link – it has been a while since I entertained myself with Econ reading.

    However, not much has changed, and up to and including Chapter 12, there is exactly zero implication of “patents are monopolies.”

    Zero.

    Shall I continue? Did you indicate the wrong chapter?

  69. Anon May 13, 2018 11:26 am

    Scott @ 60,

    I have finished my perusal of the linked reference.

    There is no way for you to arrive at your conclusion, except for you assuming the point to be proven.

    The reference simply does not provide the help that you think that it does.

  70. Disenfranchised Patent Owner May 13, 2018 11:45 am

    Anon @ 69 & Gene @ 61

    Scott seems to find stuff obvious the same way that the PTAB finds stuff obvious. If a cited reference doesn’t contain the evidence needed, it is simply made up. And, if a cited reference contains evidence that belies a desired conclusion, it is simply ignored, or overruled citing “preponderance.” Rule 36 follows on appeal.

  71. Anon May 13, 2018 12:59 pm

    DPO,

    I am not willing to “tar” Scott to that level (yet).

    Econ theory is fascinating, and Scott may have made an honest mistake that the detailed treatise “proves” the point that he thinks it does (being caught up in the MANY theorems and postulations that are treated in the ~1,000 page tome).

    Let’s see when/if he comes back (with a degree of honesty and humility) upon recognizing that the postion he advanced is one that he would have to assume into the writing.

  72. Withheld May 31, 2018 5:10 pm

    No. They are not anti-patent. They are Luddites.

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