The Supreme Crusade to Weaken Patent Rights in America

By Gene Quinn
July 16, 2018

“At times it seems as if we are living out a real-life Monty Python skit. Sadly, this is very real, and not at all funny. The Supreme Court is wrong more often than they are right on patent issues…”

Over the last 12 to 15 years I’ve seen things in America I thought I’d never see. Things I really don’t understand, although I can explain them in isolation. The big picture is elusive, fuzzy, even a bit of an enigma. But one thing is very clear, America is changing.

We’ve seen eminent domain used to take private property away from one private citizen and given to another private entity, we’ve seen secured creditors lose out to unsecured creditors in bankruptcy, we’ve candidates raise hundreds of millions of dollars without any real limitations. We’ve also seen those who pushed the U.S. economy to the brink not only escape jail but be given bonuses and proceed with business as usual as if nothing ever happened while real people lost everything. We’ve seen the U.S. patent system dismantled and weakened in order to please several unbelievably profitable corporations that make Standard Oil seem small by comparison.

There have always been bad decisions by judges and bad appellate courts, and poor policy decisions by political leaders, to put it politely. But I’ve seen things that make me scratch my head and wonder exactly how this is at all what the Founding Father’s had in mind.

In our space — the patent and innovation space — over the last decade I’ve heard from so many who think lawyers are the problem with society. They believe complaints about changes in laws and regulations, and the numerous ill-conceived judicial opinions are going to put lawyers out of work. It is that ignorance that allows mischief to be done because the masses are played for fools. What lawyers have ever made less or received less work when Congress changes the law, or the courts legislate from the bench? In a world that continually gets more complicated the cost of participating in the legal system only grows.

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As a complex world becomes more complicated and the laws grow longer and more cumbersome it is advantageous only to those who can afford the lawyers. It disadvantages individuals and start-ups and small businesses, or in other words job creators.  Lawyers are doing fine thank you very much, but that means it is more expensive for risk takers — those responsible for innovation — who are always starved for cash and already need to carefully triage what they will do with the limited funds available.

And during this time the Supreme Court, who has been on a crusade to weaken patent rights in America, has fundamentally altered the very fabric of what innovations can be protected. Without any change in the statute enacted by Congress, the Supreme Court has overruled themselves in a series of cases relating to what innovations can be patented regardless of whether they are new, non-obvious and useful.

Without any change in the law the Supreme Court has decided that there are some types of innovation that simply do not deserve to be patented even if they are new, non-obvious and no matter how useful. To the great dismay of many the Supreme Court has decided it is software, medical diagnostics, and biotechnology innovations that are not patent eligible; or in other words the future of any high-tech economy.

Most alarming, however, the Supreme Court, which was singularly responsible for the creation and subsequent dominance of the biotech industry in the United States in the 1980s, decided after more than 30 years that certain man-made products are no longer patentable. Again, all without any change in the law, just a change in philosophy that upset three decades of well-established law, vested rights, billions of dollars of investment and an entire industry and employs millions of people. But in their infinite wisdom the Supreme Court overruled their own decision that lead to the biotech revolution in the United States.

If man-made living matter could be patented in the U.S. investors were keenly interested. Now that certain man-made matter cannot be patented in the U.S. because the Supreme Court has had a change in philosophy, those companies and investors are going overseas, to Europe and China, where prospects for protection are good.

Meanwhile, the Supreme Court has actually taken the opportunity to lecture on the importance of stare decisis, the legal concept that extols the virtue of keeping the law the same when well established precedent has been relied upon. And the Supreme Court did this in a patent case no less. Yet, they don’t see the irony. In one case adhering to what was universally decried as the wrong rule because it was the rule for decades, and in another case changing their mind and obliterating much of the software, medical diagnostic and biotech industry in the U.S. To put this in perspective, the Cleveland Clinic has abandoned medical diagnostics because those innovations are not patentable.

Today, according to the Supreme Court patents are no longer property, but instead are nothing more than a “government franchise”. To reach that decision the Court had to ignore the statute, which says patents are to be treated as property. Truthfully, it seems that there is no level the Court will not stoop to in an effort to weaken patent rights in America.

Over the years the Supreme Court has reached many controversial decisions, but in the patent space they have made statements that demonstrate just how incompetent they are to render decisions in this vitally important area to our national economy. While the Supreme Court has ruled that a pH of 5 is equivalent to a pH of 6, that is simply false; pH is logarithmic. The Supreme Court has also ruled that manganese is equivalent to magnesium, which is also not true. The Supreme Court has ruled that isolated DNA exists in nature, which it doesn’t. But with each new, ridiculous decision that proves they are out of their depth we just live with the consequences as if what they say is visionary.

At times it seems as if we are living out a real-life Monty Python skit. Sadly, this is very real, and not at all funny. The Supreme Court is wrong more often than they are right on patent issues, and the Federal Circuit refuses to cabin Supreme Court decisions to the facts of the case. Instead, the Federal Circuit reads Supreme Court precedent as broadly as possible. What a nightmare of a perfect storm.

 

Image Source: Deposit Photos.

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 43 Comments comments. Join the discussion.

  1. Night Writer July 16, 2018 4:30 pm

    It does seem that with each new patent decision the justices seem more emboldened to fabricate nonsense to weaken patents. No shame. This is how democracies are lost. Be interesting to take a poll of attorneys and ask how many would care if the nine justices were tried for treason and taken out back and shot. Be interesting to ask that question every year and see how the percentage that said no they wouldn’t care changes.

  2. Bemused July 16, 2018 7:26 pm

    Gene:

    What I find dismaying is that while the justices (or, at a minimum, the Stupid Seven) have clearly bought into the bogus patent troll myth; how is it that they continuously ignore the empirical evidence that weak patent rights have a direct and adverse effect on innovation and start-ups (both of which go hand in glove with a country’s economic prosperity)? The analogy that comes to mind is getting rid of a toothache by cutting off the head.

  3. angry dude July 16, 2018 10:24 pm

    Lawers are not doing fine
    …just like the rest of us

    Otherwise i agree

  4. SVI July 16, 2018 10:32 pm

    “The big picture is elusive, fuzzy, even a bit of an enigma.”

    It’s taken me about 20 years to start figuring it out, but I now think there is a serious war against private property rights in this country, enabled by politicians and multinationals on the take from foreign powers. If you look at how patent rights have been eroded in that context, along with the broader push to eliminate available property in many other spheres, the big picture becomes clear. Soon you won’t even be able to buy optical discs for a music or movie collection. You’ll have to pay a monthly fee to Amazon or Apple. Multiple tips of icebergs that indicate the entire private property ocean of commerce is freezing.

  5. Paul Morinville July 17, 2018 12:43 am

    The problem with the Stupid Seven making law is that they only hear from the parties and those who can afford to pay tens of thousands of dollars for an amicus brief. And of course, the fake patent media, which they obviously take into serious consideration given their use of the term “patent troll” in their decisions and dissents.

    These people are responsible for the destruction of America’s startup engine by their ridiculous arrogance and pure hubris. They need to be impeached.

    Patent in China. Patenting in the US is foolish.

  6. Tim July 17, 2018 6:27 am

    Maybe it’s time that patent owners sue the USPTO that issued the patent in the first place, if the patent is pulled 5 times, as in the case of “VRINGO VS IP INTERNET”, and everything check’s out. And later, after 12-0 jurors agree on every single count of infringement, and a Federal Appeals Court tosses the case, and the Supreme Ct won’t see the case. It seem’s as if the USPTO is selling bogus patents!

  7. Benny July 17, 2018 6:43 am

    ” those companies and investors are going overseas, to Europe and China, where prospects for protection are good.”

    In what way is the decision to obtain patent protection outside the US in any way affected, or dependent on, the viability of patent protection in the US?
    Even if you had titanium-forged US patents, without EU patents you have zero IP protection on the metric side of the pond.

  8. Gene July 17, 2018 9:20 am

    prosecuting about fifty patent applications in china currently, i find that the chinese examiners are borrowing the worst habits from eu and us examiners. they require any claim amendment language to CLOSELY track the exact words and phraseology used in the specification. forget it if the claim language is clearly illustrated in the drawings, if you didn’t state it EXACTLY in the text of the spec then it’s an unsupported amendment. that’s the worst of the eu system. then, borrowing from the worst of us examination, the chinese examiner will argue that the amendment is obvious because it is a simple change and well known, without citing any prior art at all. soon, i will have some statistics about how often the chinese examination appeal system favors applicants.

    what is the evidence to support “prospects for protection are good” in china? do you have litigation stats? do most companies operating in china believe they should take a patent license in the face of an infringement assertion, because patentees’ prospects during chinese litigation are fair?

  9. Sam Mann July 17, 2018 9:29 am

    The sky is falling! The sky is falling! Democracy is on its knees! The American Eagle’s wings have been clipped, nay cut off entirely and its feathers all plucked out! And why? Because the Supreme Court is anti-American. They’re not just on a mission, but on a CRUSADE to weaken America! Oh woe is us.

    Articles like this are why I don’t like this blog very much.

  10. Taylor July 17, 2018 11:10 am

    Gene, nice work. Keep on truckin’ my man!! This message needs to be screamed from the rooftops until the group of nine in the ivory tower hears it. Unanimous decisions on complex issues worthy of certiorari are a sure sign that the either no one on the Court was capable of understanding the complex subject matter or that the group as whole reached a decision predestined for an anti-patent outcome, often both.

    In the interest of fairness, it is worth noting that the Court has always relied for some of its guidance in both patent and antitrust cases on the amicus briefs filed by the Solicitor General (largely an amalgam of views within the administration). For the last eight years, the SG’s briefs have reflected the powerful anti-patent bias of the previous Administration. Nowhere is this more evident than in the Oil States brief filed just before the election (IP Watchdog, 11/26/2017), but it is a thread that runs though most of the decision over the last ten years. One hopes that with Messrs. Iancu and Delrahim in place, the message from experts within the Administration will begin to move the rudder.

  11. step back July 17, 2018 11:16 am

    SVI @4

    Not to worry comrade.
    All property rights are equal.
    Some are more equal to being mere franchises than others.
    😉

    Footnote: above snark requires knowledge of Orwell’s Animal Farm and Supreme Seven’s Oil States –some of which may no longer be taught in government controlled schools

  12. Gene Quinn July 17, 2018 12:31 pm

    Sam @ 9-

    Not sure why you wouldn’t like IPWatchdog because of articles like this. Under a fake name you protest and mock, but absolutely everything stated in the article is 100% correct. There isn’t a single thing you can point to that is incorrect. That is why you choose to mock and act superior rather than contradict — because you can’t.

    Why don’t you come in from the shadows, Sam? Why don’t you debate me? I’d love the opportunity to expose you for the know nothing you really are.

    Are you afraid, Sam?

  13. B July 17, 2018 2:30 pm

    Hey, Gene

    “prosecuting about fifty patent applications in china currently, i find that the chinese examiners are borrowing the worst habits from eu and us examiners. they require any claim amendment language to CLOSELY track the exact words and phraseology used in the specification . . . .”

    The old joke about Chinese arithmetic being hard seemingly has an analog

  14. B July 17, 2018 2:55 pm

    Gene,

    “Yet, they don’t see the irony. In one case adhering to what was universally decried as the wrong rule because it was the rule for decades, and in another case changing their mind and obliterating much of the software, medical diagnostic and biotech industry in the U.S. To put this in perspective, the Cleveland Clinic has abandoned medical diagnostics because those innovations are not patentable.”

    Just, FYI, the SCOTUS didn’t obliterating whole areas of software. Bilski and Alice Corp. merely hold that you can’t program a computer to do a really old business method and call it patent-eligible. Both Bilski and Alice Corp. would fail under s103 imho.

    No, the Federal Circuit, particularly Judges Reyna and Taranto, are responsible for the vast majority of the carnage.

  15. Anon July 17, 2018 3:52 pm

    Sam @ 9, Gene @ 12,

    It is comments like this that make me cringe (as I remain an advocate for the ability to converse under anonymous and pseudonymous conditions).

    Sam, you first – you are more than welcome to an opinion of your choosing. But in sharing that opinion, you should be able to be open to having the opinion become an informed opinion. Your tone though is one of outright dismissal and one may even conclude that you think that the existing issues plaguing patent law are perhaps contrivances or not issues at all.

    You could not be more wrong (or more un-informed) on that point.

    It appears (also) that you might be trying to provoke Gene into a response that you then may want to point to and accuse Gene of being hyperbolic. Such is a tactic that I have seen MANY times (and typically by the likes of Slashdot/Techdirt types who simply do not want to engage on the merits).

    I would then take Gene’s response to you “down a notch” (but not to diminish his points). Those points remain.

    Gene, I also have to wonder if Sam has violated your posting protocol with a fake email. If so (as I have suggested previously), a warning would be a generous step, but removing the post would be warranted. One can fully engage in an anonymous or pseudonymous manner (for dialogue in the comments) while following the posting protocol of using a real email address, as that Personally Identifying Information is NOT shared.

    As to your not liking something, Sam, I have to wonder why (precisely) this type of thing is something that you do not like. The harm done (and continuing to be done) is very real. Do you not like it because you do not think that the issue is important?

  16. Poesito July 17, 2018 4:43 pm

    Great piece Gene. One of the best since I’ve been reading this blog (nearly two years now). I have a friend who thinks like PP “Sam.” He’s a professional economist. If the economy is okay then as far as he’s concerned everything is great and there is no cause to complain about anything

    I created a mnemonic to remember the names of the justices in the majority in the disgraceful Oil States decision: SKKaTBAG.

  17. step back July 17, 2018 5:47 pm

    Sam Mann @9,

    This blog is often aimed at those who practice day-to-day patent law and with years of detail level experience in the field.

    Sure; on any given day and when taken out of long term context, it doesn’t seem as if the sky is falling.

    But if you had been around for enough years, you would see the clear picture of death by a thousand cuts and slice offs. It’s been going on since at least 1995. They have been cutting away the rights of inventors all along.

  18. Gene Quinn July 17, 2018 7:05 pm

    Anon @15-

    I’m not sure whether Sam used a fake e-mail. It may be fake, but it isn’t obviously fake.

    I understand the need for folks to comment anonymously, and even using fake e-mails is understandable I suppose. It just irks me when someone doesn’t add any substance, engages in the schoolyard mocking, AND wants to stay anonymous.

    I always get a chuckle though. I know there are more than a few that share Sam’s views. I hear at events people say with great pride that they don’t read IPWatchdog, much like Sam did. But the truth is those who don’t read because they don’t like this and other articles like this don’t read IPWatchdog because they don’t want to hear the truth.

  19. SHAMIM HALIM July 18, 2018 12:11 am

    Innovations in the fields of software, bio-technology, and medical diagnostics would go a long way to help alleviate many a sufferings that human experience today. Nonetheless, there has to be incentives for persons who apply their mind, toil and try to find solutions of current problems or improvements in the existing technology. If there is no incentive, innovation will be stifled. I believe, if not Supreme Court, at the Congress must look at the current scenario and act.

  20. angry dude July 18, 2018 9:45 am

    scotus critters have always been pro-big corporate business and anti-small business/individual rights

    Patents are just one thing

    Just look at their other landmark decisions like Kelo and Citizens United

    Disgusting is the right word

    It is up to readers of this blog and American citizens in general to decide whether scotus behavior is pro-american or anti-american

  21. B July 18, 2018 10:01 am

    @ Angry

    “Just look at their other landmark decisions like Kelo and Citizens United”

    FYI, Kelo was a 5-4 decision with the four lefties joined by Kennedy deciding it. I don’t think it was so much pro-business as a grab for government power by effectively writing out the government taking for public use clause.

    As to CU, you’ve got that 100% backwards. CU is a win for the little guys, who are now allowed to pool their money to compete with the millionaires and billionaires.

    All that said, without doubt the SCOTUS is loathe to help out the little guy in civil cases. Criminal cases and civil rights cases, however, it’s a toss-up.

  22. angry dude July 18, 2018 10:41 am

    B @14

    Dude, don’t you realize how ridiculous and stupid your comments are ?

    WTF cares about Reyna and Taranto ?
    Who are those dudes anyway ? Nobodies

    I personally blame the entirety of scotus, cafc, district courts, congress, pto and obama’s administration and a bunch of other friendly folks in sv boardrooms and mass media outlets for well coordinated (and extremely profitable to them) effort to destroy US patent system and put independent inventors and small domestic patent-reliant businesses out of business

    No less

    And I’ve been saying this for many years on this blog…
    only to be called “sky is falling” overly pessimistic loser without any clue about how to navigate still great US patent system

    Well, try to navigate it now

  23. B July 18, 2018 12:53 pm

    “Dude, don’t you realize how ridiculous and stupid your comments are ?

    WTF cares about Reyna and Taranto ?
    Who are those dudes anyway ? Nobodies“

    Apparently, I’m the only one reading case law. I also read every single amicus for both Bilski and Alice.

    I assure you in a respectful manner. Reyna and Taranto are our biggest problems. Both these guys spent the better part of ten minutes screaming at me in 2016 for insisting that the PTO has an obligation to provide evidence to support an assertion of fact when evaluating a s101 rejection.

    Hughes had a go at me as well in 2016, but last April he was more interested to hear my position on evidence than merely screaming at me.

    It’s coming up to 4 months since oral hearing with no decision. Longer than Berkheimer.

    That said, Bilski held that business methods are patentable so long as they weren’t anciently old. Alice gave us a flawed test, but it is the Fed. Cir. that has screwed the pooch royally with their idiotic, conflicting holdings that took the worst from Alice while misrepresenting other portions.

  24. Anon July 18, 2018 1:06 pm

    B,

    Your view of Citizens United has been torn apart.

    Please do not repeat your fallacy on that decision without at least noting that others have provided a (much better) view – let alone attempt to “180” someone else’s view on the matter.

  25. angry dude July 18, 2018 1:58 pm

    B @22

    “Reyna and Taranto are our biggest problems”

    Dude,

    I beg you to stop making fool out of yourself

    Do you really think your opinion matters even in a single case decided or to be decided by scotus or by cafc ?

    The grand theft scenario was written in SV corporate boardrooms many years ago and bankrolled to the tune of hundreds of millions (to make hundreds of billions in illegal profits from stolen IP – the best ROI you can imagine)

    Those (probably including you) are just puppets dancing around to the tune of the grand corporate master with meaningless legal mumbo-jumbo to cover up the true nature of their servitude

  26. step back July 18, 2018 2:24 pm

    The sky isn’t falling in North Korea either.
    It is slowly getting closer to the ground though, crushing the lesser citizens in the process.

    In the USA the sky is similarly coming down step by slow step while crushing citizen rights with each turn of the vise screw.

    First they took away our patent rights, then our voting rights, then our rights to due and fair process … The time for alarm was long ago. And yet the frogs on this side of the warming pond waters do not sense need for panic in light of the rising temperatures. 🙁

  27. anony July 18, 2018 3:04 pm

    The joke is that if you describe an invention as a mostly-mechanical device like the enigma coding machine or a purely mechanical device like the Antikythera mechanism, the chances of patentability are likely much greater than describing an invention as a smartphone app. The joke being that archaic technology (gears and levers) is patenable while modern technology (computers and software) are not.

  28. B July 18, 2018 3:45 pm

    @ anony

    “The joke being that archaic technology (gears and levers) is patenable while modern technology (computers and software) are not.”

    Think so? Check the American Axle case. Machines + science = patent ineligible.

  29. Night Writer July 18, 2018 4:45 pm

    @22 B

    Both Taranto and Renya were selected by Google. Both are a disaster. Taranto held that any computer process that is also implemented by a human mind is per se obvious.

  30. B July 18, 2018 5:26 pm

    “Your view of Citizens United has been torn apart”

    I respectfully disagree, but thanks for playing and don’t foget to grab your consolation prize on the way out.

  31. B July 18, 2018 5:28 pm

    “Do you really think your opinion matters even in a single case decided or to be decided by scotus or by cafc ?”

    Ask me that in 14 days.

  32. angry dude July 19, 2018 9:51 am

    anony @27

    “…archaic technology (gears and levers) is patentable while modern technology (computers and software) are not”

    Well, not really

    Ask Tesia about her new mechanical zipper invention

    It may be patentable subject matter but still be killed by PTAB for obviousness

    cause it’s … simple and easy to understand and reproduce… after you see it

  33. Anon July 19, 2018 11:29 am

    B,

    I am not the one that gets the consolation prize. You may want to try and actually address the points put to you in that discussion instead of using empty quips. I quite recall that I was not the only one that took you to task, and that you had no substantive counters to the points put to you.

  34. Eric Berend July 19, 2018 5:42 pm

    @ 1., 20., ‘Night Writer’; @32., ‘angry dude’:

    The Egg of Brunelleschi (more commonly called the Egg of Columbus).

    Ingenuity ALWAYS looks easy, after the fact.

    There is a monument to the discovery of America by Columbus in the shape of an egg in Sant Antoni de Portmany, Ibiza, Spain.

    “In all matters of discovery and invention, even of those that appertain to the imagination, we are continually reminded of the story of Columbus and his egg. Invention consists in the capacity of seizing on the capabilities of a subject, and in the power of moulding and fashioning ideas suggested to it.”
    — Mary Shelley (Introduction to the Third Edition of Frankenstein)

    “The spiritual guide was astonished at this solution, which had all the simplicity of Columbus’ egg.”
    — Leo Tolstoy (War and Peace)

    “”They are not perfect ovals – like the egg in the Columbus story, they are both crushed flat at the contact end – but their physical resemblance must be a source of perpetual wonder to the seagulls that fly overhead.”
    — F. Scott Fitzgerald (The Great Gatsby)

    The notion advanced at times, that these Nine In Robes who are supposedly so biased against patents owing to their lack of scientific and technical abilities and advancement based upon mere ‘English-major’ qualifications – evaporates in the face of such a well known, plain, staunch basis of belief about invention and ingenuity in American English LITERATURE.

    Strong evidence that ‘Night Writer’ and ‘angry dude’ are quite correct in their various assertions of an enormous DELIBERATE inequitable taking of property and power from independent inventors and all but the largest business entities, AND the strong implications of massive treacherous corruption thereby practiced; despite occasional admonitions from others in the “pro-patent” community about their seeming pessimism.

    And, to his credit, Gene Quinn does not shirk the point, in this article.

    Is it not high time the question was asked and recognition of this deplorable conduct demanded, by far more stakeholders then the ‘angry dudes’ and ‘Night Writers’ of the world – including in particular, the designated keepers of the U.S. public interest?

  35. Jianqing Wu July 19, 2018 7:30 pm

    I would like point out the true cause for destroying the patent system:

    When technologies expand, the patent system naturally creates uncertainty in each of patented inventions in the regions between prior art and patented features. The uncertainty can be found in all patents under enforcement. The number of disputes in such uncertain regions increases from a few in the early system to tens of millions now. One can easily show thousands of bad patents, bad mistakes, etc. in such a huge patent pool. Then, evidence-based approach would mandate the need to kill the patent system.

    The incompetence of justices can be found from their own profiles. None of them have experience in patenting, inventing, or even doing any research in their entire lives. Much worse, they have kept counting and comparing abstract numbers such as pages, issues, cases, inventions, bad patents, etc. They can only see one side of story but ignore patent’s role in creating the economy. They never see the difference between $20 billion burden and $18 trillion economy. They never weigh between thousands of bad patents and millions of good inventions. To fix the few errors, they KILL it.

    While I never believe that those justices have intention to ruin the patent system, I guess that they might think that they are doing great things to fix national problems.

    They never appreciate the odds of coming up with a-first-in-the-world invention. They made enforcement a second lottery. Maybe those justices need to ask themselves a question: who will invent and patent if the odds are like twice lightening striking.

    Ignorance is the worst enemy when it runs the court that decides matters vital to the nation. Yet, they still count abstract numbers, patents, inventions, issues, and even paper limits/per motion, paper limit per case, and paper limit per whatever (see the massive court rules). They still look at U.S. patent growth rates (without knowing all meaningless figures).

    As long as the nation is run by ignorance, no change will take place. A good patent legislature will again be destroyed for the same reasons. History repeats itself.

  36. Night Writer July 20, 2018 10:56 am

    @35 Jianqing Wu

    Those are really good points, but I think there is more to it. I think that the justices because of international trade bend to the will of large corporations. So the justices feel that they must do what the large corporations tell them they need to thrive.

    We have seen that in labor law and anti-trust law. Both have been gutted by the justices and particularly in anti-trust law what happened is the large corporations said that with international competition that we didn’t need anti-trust law.

    So there are other aspects to it. I think the ignorance and arrogance of the justices make them easier targets for the large corporations.

    I think another aspect of this is the justices feeling that they don’t need to follow the Constitution that they can pretty much do whatever they want because the Constitution is so old and things have changed so much.

    I think all these elements together explain the outcomes we are seeing.

  37. angry dude July 20, 2018 2:04 pm

    Night Writer@36

    Fundamental things never change and if they do change the consequences are usually disastrous for society as a whole

    The rule of law, property ownership rights for each and every individual – not just the rich, rights of any individual to the (intangible) fruits of his/her mental labor and ingenuity enshrined in the US Constitution are the same now as 200 years ago

    When the state tries to abolish property rights of individuals the consequences are catastrophic and eventually result in a bloodshed
    Just look at what happened after October revolution of 1917 in Russia

    Those SV corporate giant tech elite dudes are greedy to the point of being blind and stupid

    They destroyed the golden goose and think they can compete with the entire Chinese ecosystem of corporate giants and well-supported startup economy while devastating US startups and independent inventors
    They can’t – without sucking fresh blood and ideas out of healthy domestic startup ecosystem SV giants are dead men walking
    I give it a few years – China will have them for free breakfast

  38. Eric Berend July 20, 2018 3:10 pm

    @37., ‘angry dude’:

    I agree with your assessment of this situation, nearly completely. I have written as to this effect, previously.

    “…
    That gusher from AlphaGoog can get cut off just as abruptly as Google Glass was dropped – or, try any of the company’s dozen-plus failures at creating new technology with any public appeal. It’s no wonder Google and friends are desperate to destroy patents for anyone but themselves (notice their special PTAB institution rate and CAFC rate of invalidation) dependent upon role (attacking or defending…is it Google?…then, favor them no matter what) – and adverse decision rate for the valid novel technology of everyone else.

    “The whole Ashley Madison scandal was a watershed event for revelation of the digerati’s massive swindle on the U.S. and “Internet” economy: the “women” are mere software bots.

    300,000 software bots and just 4000 women.

    Just look how quickly that essential news story was swept aside; yet, here we are yet again, with tired partisan refrains in a Congressional “hearing” that resembles a kangeroo* court inquest rather than any honest trial – where’s the other side?

    “Dozens of sham hearings – not ONE inventor heard.
    The most corrupt and evil members of Congress.
    The most corrupt and evil members of academia.
    The encouragement of the most corrupt and evil online communities against property rights.

    From the very beginning, the whole racket is based on nothing but a pile of lies. Get ready to call China “Master”.”

    — Eric Berend, July 19, 2017 6:34 am, comment #12 posted to article “House IP Subcommittee holds yet another one-sided hearing on bad patents and patent trolls” by Steve Brachmann[1]

    And:

    “The whole enormous conspiracy to strip the U.S. and its inventors of their rightful property, is now revealed in greater scope and detail.

    “… it presumes the destruction of all that which took some 500+ years to legitimately establish, and that has renewed the economic and military strength of the nation, time and again, in our past.

    Get ready to call China “MASTER”. Get ready to see “ordinary” Americans ordered about by Chinese-made robots controlled by Chinese-made AI.

    The FOOLS (of the IP pirate cabal, and in the U.S. Congress) still think their wealth assures their perpetual ‘Masters Of This Universe’ status and powers. The Chinese and the Russians, will teach ‘them’ just how VERY WRONG ‘they’ are; and, U.S. inventors and U.S. citizens? Mere “collateral damage”! ‘

    — Eric Berend, May 2, 2018 2:14 pm, comment #3 posted to IPWatchdog.com article “The Biggest Trade Secret Loophole You’ve Never Heard Of” by James Pooley [2]

    China already had ‘them’ for breakfast (U.S. companies cannot own even 50% of so-called “joint ventures” with Chinese corporations – oh, and “hand us [e.g., China] over ALL of your tech, IP AND production knowledge, while you’re at it”).

    China already had them for lunch. See “Why Google is Quitting China”, Forbes, Jan. 15, 2010 [3]; as of this writing, Google’s search market share has now declined to 1.56%, which is down from its August 2009 level of 36.2%[3,4].

    In my opinion, it’s ‘dinner’ that China is about to have ‘them’ for.

    So long as enough good faith and belief in the U.S. patent system was held by U.S. inventors, then it was possible to meet any technical competition threat head on, with the promise of continued ingenuity provision, as demonstrated by most of two centuries of American experience.

    If any sovereign power is to have greater success likely from a monolithic, ‘top-down’ approach, it is China rather than the United States in the agency of its multinational corporations of the U.S. and the U.S. public research and development institutions.

    It’s as if the gun makers outlawed all but knives for fighting, then gave guns to their opponents. ‘Knives to a gun fight’, where one’s enemies have been deliberately better armed by entities supposedly of one’s own allegiance.

    [1] – URL at “http://www.ipwatchdog.com/2018/05/02/biggest-trade-secret-loophole/id=96720/”
    [2] – URL at “http://www.ipwatchdog.com/2017/07/18/house-ip-subcommittee-holds-one-sided-hearing-bad-patents-patent-trolls/id=85724/”
    [3] – URL at “https://www.forbes.com/2010/01/15/baidu-china-search-intelligent-technology-google.html”
    [4] – StatCounter Global Stats – Browser, OS, Search Engine Market Share China (All Platforms). URL at “http://gs.statcounter.com/search-engine-market-share/all/china”, as retrieved on July 20, 2018.

  39. angry dude July 20, 2018 11:01 pm

    Eric Berend @38

    Yep, China will eat SV tech giants and entire US economy alive for breakfast

    Not Russia though – Russia has vast natural resources to export, a population of 8 times less than China and well too many nukes to scare the rest of the world

    China, on the other hand, has too many people and too few resources so they will take on USA (and Russia too in the the Far East)

  40. Night Writer July 21, 2018 8:42 am

    @39

    That is the whole thing. Google could lose 90 percent of its revenue overnight.

    The only way to insure that doesn’t happen is to make sure patents cannot stop them from copying anything anyone else does.

  41. SVI July 23, 2018 12:17 pm

    @Eric Berend #38 “That gusher from AlphaGoog can get cut off just as abruptly as Google Glass was dropped – or, try any of the company’s dozen-plus failures at creating new technology with any public appeal.”

    I agree with the general idea, but the way that the gravy train ends for Google is by enforcing antitrust violations, similar to what EU is doing. Isn’t it funny that Google conducts the same business in the US as in the EU, yet the USDOJ has not seen fit to seriously investigate Alph/Goog, let alone come to some hair-raising conclusions about those business practices, as EU has concluded. Google Glass is alive and well as an enterprise product. The fact that Google marketed it as a consumer product when it was barely ready for developers proves only that Google doesn’t understand hardware. They buy hardware companies, and try to develop and market hardware. But they just don’t get it. (Elon Musk has the same affliction).

    @Night Writer #40 “That is the whole thing. Google could lose 90 percent of its revenue overnight. The only way to insure that doesn’t happen is to make sure patents cannot stop them from copying anything anyone else does.”

    As stated above, I disagree. The way to go after Amazon, Google and Apple is by looking at their business practices as they relate to antitrust law, and start breaking them apart and/or aggressively fining them beyond a slap on the wrist. Patents are just one area where these companies are trying to steal and undermine private property. They think everything in their server repositories belongs to them, and they are using their capital to control the public by controlling content/searches and even media. It’s fine if Amazon wants to be the biggest and best online retailer, but when it starts buying WaPo and other media stalwarts, controlling how consumers access TV and music, etc., etc., these are just antitrust cases waiting to happen. The fact that they aren’t happening proves how corrupt DC has become.

  42. Night Writer July 25, 2018 8:08 am

    @41 SVI

    Our views are not in contradiction. I agree that patents are just a small part of what these companies are doing and that anti-trust law is probably the way to go after them.

    But, —guess what–the big international corporations convinced the Supreme Court long ago to eviscerate anti-trust laws and these companies have a bigger hold on anti-trust than they do on patents.

    I just speak about patents because it is what I know.

  43. Jianqing Wu July 27, 2018 6:21 pm

    It will take a long time to make necessary changes in patent laws. Now, a very high percentage of people in general population held a negative view against patents and inventions. Media plays a big role. I have seen a large number of publications called “research papers”, reports by National Academy of Science, and law review articles. When each of such publications says that patents are bad, inventions caused problems, patent litigation burdened the economy…. people accepted such a view as truth. Congress and Supreme Court often relied on such publications.

    All of those publications share common characteristics: counting inventions, patents, and using rejection rates and grant rates, and doing statistical analysis to get the label of “scientific validity”. Today, I read a research article by NATIONAL BUREAU OF ECONOMIC RESEARCH (http://www.nber.org/papers/w20337). The authors compare patent grant rates like comparing widgets (X% things v. Y% things). They probably do not know that the inventions can range from a paper clip to a huge ship, and an application can have any size from 3 pages to 500 pages, and issues can vary in complexity. The authors seem to be unaware how office decisions are made in each application. This kind of flawed analysis is everywhere.

    I think that inventors must expose the flaws in all research articles, government reports, and law review articles. That must be done! Judges cannot see all obvious flaws in such publications they rely upon.

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