A Decade Of US Patent Reform Must Be Undone

By Paul Morinville & Gene Quinn
September 3, 2018

John Thorne of the High-Tech Inventors Alliance (HTIA) recently argued  in an OpEd appearing in Law 360 that a decade of patent reform must not be undone. To put this OpEd into perspective, you must first look at who Thorne represents.  The HTIA is a lobbying arm of Google, Amazon, Intel, Cisco, Dell, and others who are affectionately known as the infringer lobby because rather than licensing or buying patent rights from innovators they knowingly and intentionally infringe. Their actions are considered rational business decisions because it is cheaper and more efficient to infringe than pay, hence the term efficient infringement to describe their actions. So, it is hardly surprising that the infringer lobby that has so successfully profited from a scheme of efficient infringement enabled in large part by patent reform wouldn’t want to see those gains on the backs of inventors come to an end.

The companies that make up the HTIA – the infringer lobby – are the very companies that benefit from weak patent protection because it allows them to freely take the property of others, a phenomena that economists refer to as the free-rider problem. But this free-riding goes beyond just being unfair, it strikes at the very heart of the patent system and fundamentally prevents the threat of creative destruction posed by an innovator with better technology.  The effect is to perpetuate these monopolistic multinationals and to consolidate power into the hands of the megalomaniacs who run them.

How ironic is it that the infringer lobby – the very people trying to weaken the patent system and who ignore the patent rights of others through a free riding scheme of efficient infringement – are the ones who are seeing their monopoly power consolidated. We hear all the time that patents create monopolies, which has a nice ring to it, but isn’t true. What good is a patent that a large multinational corporation will just ignore and infringe? That certainly doesn’t create a monopoly. But oddly, by ignoring the property of true innovators the infringer lobby has grown in size, power, strength and influence. See Tech Super Giants Maintain Standard Oil Sized Monopolies.

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Naturally, Thorne preaches that patent trolls actually exist and are killing huge multinational corporations.  After all, his benefactors are the primary novelists of the fairy tale having spent millions of dollars spreading its fiction.  But stop and think about that for even half a second in an objective way and the claims don’t stand up to any level of scrutiny. In 2017, Apple had nearly $50 billion in net income, Microsoft has over $20 billion in net income, Facebook over $15 billion, Goggle approximately $13 billion. If patent trolls are attempting to kill the tech elite of Silicon Valley we all ought to be able to agree they are doing a very poor job. Profits are soaring for the tech elite. See here, here, here, here and here. The age of patent retrenchment has coincided with a tremendous boon for Silicon Valley.

Thorne also argues that tech inventions are somehow different than other types of inventions because the lifetime of tech is much shorter, so the life of a tech product expires long before the patent expires.  But this makes no sense because most tech innovations become embedded into tech products permanently.  The original invention is enhanced in some way with further inventions that are built on top of the original invention in the next generations of the product. This sinks the original invention solidly into the tech product preserving its use forever.  A real-world analogy is pouring a foundation. Even if you gut the house and rebuild you will build on the frame and foundation in place. The same is true in the tech sector. Thorne implicitly acknowledges this tech truism by highlighting a patent issued to Steve Wozniak in 1979 for a “microprocessor for use with a video display”, which is still used today almost 40 years after it was invented.

Thorne argues correctly that the pace of high tech patenting has increased.  It certainly has.  And that is obviously a result of the explosive pace of high tech innovation. Just think of all we have now that we did not have as kids.  In our youth the latest, cool “invention” was a party line telephone. Some no doubt remember the first “mobile” phones that were really anything but mobile, but at least they weren’t tethered to your home.  Now we have the Internet, Wi-Fi, smartphones, GPS, satellite radio, internet television, robotic manufacturing, robots doing surgery, drones, self-driving cars, digital cameras, enterprise software systems, automated banking, and so much more. We also have new economies start because of technology. For example, Uber couldn’t have existed with 3G technology, but is possible with 4G.

Of course, the pace of tech patenting has increased.  Virtually every product on the market today is related in some way to tech.  If it is not a tech product itself, it is an enhancement to a tech product in some way or fashion.  Where it is neither, the product is engineered, manufactured, distributed, and sold via tech products.  Tech permeates everything from your smartphone to the buttons on the shirt you are wearing. Technology is everywhere.

But despite the explosion of innovation, Thorne argues that too many patents are issued and as a result patent litigation grew by six-fold from 2000 to 2013.  Not only does Thorne fail to map that growth in patenting to the explosion of tech innovation, but he completely omits the effects of the America Invents Act (AIA) where patent suits against multiple infringers must now be filed as separate suits which has been shown to account for all the numerical increase during the timeframe he selected.  Indeed, the increase in patent litigation was a purposeful design by Congress.

Larger numbers of patent infringement lawsuits were an intentional choice, and it was demanded by the likes of the infringer lobby that Thorne represents. They were tired of getting sued as one of one hundred or one of two hundred defendants, so they convinced Congress and the Courts to make it harder and harder to sue large numbers of defendants in the same case. So, of course there was going to be more patent litigation. This argument is not only a misrepresentation, it is intentionally deceitful. Thorne knows better.

Given the logarithmic growth in patenting in America it makes more sense to compare the rate of litigation in relation to number of patents in force. That is the only true apples to apples comparison, but one Thorne and the infringe lobby do not want to do that because if they do it becomes apparent there is no increase in patent litigation despite changes to the law requiring more lawsuits for patent owners to get the same justice.

 

Thorne argues that that the litigation rate goes up because with more patents, there are more opportunities for litigation.  He says there are too many patents issued and many of them should not have been issued. Perhaps he is correct. In an ideal world if patent examiners could spend 4 months researching and examining each patent application more narrow claims would issue, or in some cases patents might not issue at all. But that is an unrealistic system, and one that even his clients in the HTIA wouldn’t support. The unspoken truth is not every patent is commercially viable.  Indeed, the vast majority of patents are not commercially viable and are never commercialized. Industry estimates generally range between 96% to 98% of patents will wind up not being commercially viable or valuable. It doesn’t make sense to do a no stone left unturnedsearch and have the system come to a screeching halt when 2% to 4% of patents will be viable and commercially valuable.

What Thorne knows, but won’d say, is that commercially irrelevant patents are not the subject of litigation.  There is no constant of commercially viable patents in relation to issued patents either, so there is no direct relationship between an increase in patenting and the fictional increase in litigation that Thorne asserts.

Litigation rates have remained relatively constant for about 150 years.  But before that litigation rates were higher.  If you buy Thorne’s thesis that more patenting means more litigation and you also wish to replicate America’s innovation explosion during that early period more than 150 years ago that lifted us from an agrarian backwater nation to the world’s most innovative economy in just a few decades, then you must conclude that today not enough patents are being issued because our litigation rate is too low and we should issue more to correct it.

Thorne also argues that high tech products are an aggregation of many inventions and that patenting these inventions slows innovation because enjoining any minor invention within an aggregated product will enjoin the entire product.

Can we stop with claims that patents inhibit innovation please? There are tens of thousands, if not hundreds of thousands, of patents that relate to smartphones. Exactly what innovation in the smartphone industry has been inhibited by patents? Even Apple’s gigantic and well drafted patent portfolio turned out to be inadequate in order to keep Samsung from copying the revolutionary design of the iPhone.

Innovators file patents for economic gain.  There is no other reason.  Getting an injunction provides no economic gain.  In fact, it is an economic loss to the inventor because patent lawsuits cost millions of dollars.  during the sewing machine wars of the antebellum period, everyone sued everyone and locked up the market.  But because everyone was trying to make money, the industry solved the dilemma through the creation of the sewing machine combine which aggregated the patents in one entity and licensed all the patents to the manufacturers.  This approach of aggregating patents is still in use today in one way or another, so this has never been problem that required any government intervention.

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In the entire history of the US patent system, there has never been a case where an inventor sought or received an injunction just for fun.  Injunctive relief creates a fair market for the invention free of any free riders. Having eliminated the free riders who are a drain on innovation because they are not paying innovators, so they can continue to push forward, it becomes possibleto establish the fair market value of the invention.  Alternatively, if the innovator wishes to be a market participant, injunctions also serve to clear the market of competition so they can get a head start for a long enough period to establish a beach head in the market that can withstand competition from infringers when the patent expires.

Tech products were marketed and sold without new technologies before the technologies were invented.  If a tech multinational adds an invention to their product, they can certainly remove it, so the entire product would not be enjoined.   They could still sell the same product they were selling successfully without that new technology having been coopted without permission.  This is being done now by tech multinationals who offer older versions of computers and smart phones without the latest technologies.

Thorne’s argument that this slows innovation is simply not true. Again, if it is true he should be able to point to examples, which he cannot, and representing companies that are enjoying record profits makes it difficult to be convincing when he proclaims death is near at the hands of patent owners.

Thorne also misleads his readers about the damage brought on inventors by the Patent Trial and Appeal Board (PTAB).  He states that only 16% of challenged patents are fully invalidated.  That figure is derived from the number of all challenged patents, including those not instituted by the PTAB.  It includes only those patents where every single claim is invalidated and does not include patents where less than all claims are invalidated. It also includes settlements as victories for patent owner, but a settlement where the patent owner capitulates and gives a royalty free license is hardly a victory. Settlements occur about 25% of the time and are not victories and it is entirely disingenuous to pretend they are.

Further, the only claims that the PTAB evaluates are those selected by the infringer, and in reality when you look at the final written decisions approximately 70% of patents reaching a final written decision by the PTAB have all claims invalidated — a stat very different from the misleading and self serving 16% figure Thorne uses.  Another 13% of patents are found to have one or more claims defective. so when the PTAB reaches a decision on the merits they find patent examiners wrong in 83% of patents, an astonishing error rate that simply does not jibe with the 96% quality the USPTO claims. If examiners are providing 96% quality on examination then the PTAB is extremely over zealous, which is what nearly every objective observer believes.

Of course, Thorne also ignores the reality that many patent owners have their patents serially challenged in what appear to be coordinated attacks until one challenger finally is successful in killing the patent. See The Real IPR Gauntlet.

Thorne also omits gang tackling, a practice which his benefactors routinely engage in.  Often a PTAB procedure invalidates only a few challenged claims leaving some still valid.  When multiple infringers file multiple PTAB procedures (gang tackling) and/or an infringer files the aforementioned series of petitions, eventually all claims are invalidated, or the inventor must walk away due to cost and abandon the patent.  This effect is entirely omitted from Thorne’s PTAB invalidation stats for no other reason but to mislead the reader.

The effects of serial challenges and gang tackling are insidious. At the end of the day the patent owner is worse off than if they had lost on the first challenge. The patent owner gets bled dry little by little defending the patent grant over and over again until nothing is left. But the way the USPTO provides its statistics can allow those who want to mislead using those statics to paint an unrealistic picture. For example, if a patent owner prevents institution 4 times on Patent A, but a fifth challenge is successful and ultimately winds up with all claims being lost, the USPTO will consider the kill rate to be 20%. Of course, the kill rate from the patent owner’s perspective is 100% because the patent is lost.

The phony statistics of the PTAB have never been more on display than in the case of Zond. Zond owned 371 claims.  By the end of the 125 “gang tackling” challenges filed against them, they owned 0.  0 claims.  0% survival.  Every claim Zond had – ended up dead. But according to the USPTO, Zond had 1,220 claims instituted out of 1,377 claims challenged. But Zond had only 371 claims? Correct. Those 371 claims were challenged multiple times across those 125 challenges.  The USPTO consideres the institution rate to be 1,220 divided by 1,377 or 88.6%. But if 1,220 out of a possible 371 claims were instituted that means from the patent owner perspective the institution rate was 329%. Regardless, Zond lost everything, yet the USPTO can with a straight face say only 88.6% of the claims were instituted.

The argument most revealing about the goals of Thorne’s benefactors is his argument that business method innovations are abstract and should not be patented.  Google’s primary contribution to the mountain of technology we all live on today is their page ranking search algorithm, which is a business method.  Facebook, eBay, Amazon, and most other tech companies are also built on business methods. These tech multinationals rely on networking effects of millions of users to attract and retain users.  When the user base becomes a certain size, it acts as a virtual monopoly. They have their size and market power and can dominate as a monopoly. They do not want others behind them to have the same advantages they had, which is why they would prefer the patent system to weaken and the USPTO to close its doors.

Successfully launching a company based on a business method requires millions of dollars spent in marketing and user acquisition.  Thorne’s benefactors have been highly successful at killing this threat by striking a blow to the primary vehicle used to attract investment – patents.  A business method startup competing with these huge multinationals must have patent protection to attract investment.  Without patents, these huge multinationals just copy the business method and, using their deep pockets and massive customer base, take the market and run the startup into the dustbin of history.

Snap Chat is an example of this.  Snap built a large customer base very quickly with a system to put rabbit ears on pictures of babies.  Facebook noticed the high rate of user acquisition, felt the threat, and tried to acquire Snap.  When Snap refused, Facebook simply copied Snap lock, stock and barrel, and then leveraged their billion users to take the market from Snap.  Snap had virtually no patents, and the patents they did have were of questionable integrity thanks to more than a decade of efforts to weaken the patent system and change the laws both in Congress and the Courts. Snap was defenseless against Facebook’s attack. If it can happen to Snap, well-funded and publicly traded company, what chance do individuals or startups have?

The real problem created by invalidating patent protection for business method patents is that it eliminates the threat of creative destruction within the marketplace, thus making these huge multinational corporations untouchable.  From a public policy perspective, the effects are damning – massive data gathering and privacy intrusion, political corruption, limits on free speech, killing startups and other economic damage.  It has had the effect of consolidating power into just a few megalomaniacs who run these huge tech corporations.

Don’t drink the Kool-Aid. Don’t fall for the myth that the largest, richest, most profitable corporations in the world are on the brink of extinction unless we continue to destroy the U.S. patent system. If you say it out loud while looking at their SEC filings reporting their financial well-being it is as ridiculous as you imagine.

 

Image Source: Deposit Photos.

The Author

Paul Morinville

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

Paul Morinville

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 24 Comments comments. Join the discussion.

  1. Tesia Thomas September 3, 2018 11:58 am

    “The real problem created by invalidating patent protection for business method patents is that it eliminates the threat of creative destruction within the marketplace, thus making these huge multinational corporations untouchable.”

    This is the inventor’s biggest fear. Yes we want money but we mostly want change. We invent to make the world better.

    I recently went to a nursing home with a sample of my zipper to show people born almost a century ago before zippers were even that popular.

    Their reaction to my product was amazing.
    But, their natural reaction to the technology that most people claim is “simple” may not be enough to get a court to see the validity of my invention especially with what Josh is going through over his invention that people deem “simple.”

    If anything, the “patent reform” doesn’t align with people’s perceptions of new technology.

    Kids excitement when they can play with water balloons faster.
    That’s akin to dial up vs WIFI.
    Just because one is fully mechanical does not make it any less.

  2. Night Writer September 3, 2018 12:53 pm

    How many of the US utility patents are from inventions made in the USA? I think this is a key point.

  3. Software Inventor September 3, 2018 6:34 pm

    Mr. Thorne is a paid and financial benefactor of those he represents: big tech clients and lobby group such as HTIA. He speaks for them, in my experience many are the beneficiaries of efficient infringement, and no others. It is INSULTING that he states his perspectives represents all inventors, such as para 6;

    “The reforms of last decade have addressed these problems, lowering the amount of wasteful litigation while strengthening the system for all innovators. They were the work of both Congress and the U.S. Supreme Court.”

    And, para 16 and 17;

    “But despite all that success and the particular benefit of the reforms to small inventors and startups, legislation has been filed in Congress effectively to repeal AIA and overturn Alice, eBay and Impression Products…

    The reforms of the last decade were essential for innovation in all sectors.”

    Mr. Thorne neither speaks for, nor presents, me the independent inventor and startup who has been financially decimated over the past decade by his lobby’s patent hijackings efforts. The companies he represents, conversely, have made conservatively tens of millions of dollars each efficiently infringing on my patents, and are petitioning my patents before their colleagues on the PTAB to institute in the IPR process.

    Patent reform such as offered in HR 6264 and HR 6557 are essential for the thousands of independent inventors like me to survive, and create disruptive technologies which are the life blood of our economy and country’s prosperity.

  4. angry dude September 3, 2018 9:01 pm

    Too late for that

    Its all about money today, money now, money in your 401K etc.

    Undoing “patent reform” means undermining stock market – the biggest tech stocks will fall (I let you figure out why…)

    No one wants it (well… I want it but who cares)

    So to the morgue…

  5. angry dude September 3, 2018 9:10 pm

    Tesia Thomas @1

    “We invent to make the world better”

    Come on, girl…

    Stop this nonsense, pleeeeeeze

    You should watch “Silicon Valley” on HBO

    “Hooli is about people. Hooli is about innovative technology that makes a difference, transforming the world as we know it, making the world a better place through minimal message-oriented transport layers. I firmly believe we can only achieve greatness if first we achieve goodness”

    All of this PR BS coming out of the mouth of a complete ar$hole and (almost) criminal CEO

    It’s just money, girl

    this simple

  6. Tesia Thomas September 3, 2018 9:13 pm

    @angry dude,

    I don’t watch TV.

  7. Pro Se September 3, 2018 11:23 pm

    Well, last week a judge forced me to hand over my source code to my infringer, the company infringing my patent, a judge gave them my source code to go with it, destroying NDIL LPR 2.2(h) – being a patent troll is actually a better way to go.

  8. Benny September 4, 2018 9:45 am

    Night Writer @2,
    Why is that a key point ? (Foreifn inventor/filer asking).

  9. Jianqing Wu September 4, 2018 10:37 am

    Is the page moved?

  10. Jianqing Wu September 4, 2018 10:38 am

    In my view, mere reversing the patent reform is NOT enough. Before the patent reform (precisely the final destruction of the U.S. patent system and formation of a prevalent infringement culture), there were too many problems that had been created by the courts. Court process flaws, unworkable doctrines, flawed case reasons, massive judiciary junk science, absurd or unfair rulings, mistakes, and massive technicalities have generated huge incentives to challenge patents. This is the very reason for many technical companies that have made billions dollars by using millions of FREE inventions to challenge a few patents that are still under enforcement.

  11. Jimmy September 4, 2018 12:03 pm

    I find it a little strange that John Thorne has very strong feelings about changing a decade (10 years) of US Patent Reform but he and the rest of the HTIA group had no problem in wanted to dismantle 200+ years of Patent Reform.

    Additionally – also according to John Thorne, the quality of the U.S. issued patents has gone up as well due to the U.S. Patent Reform. Which is amazing since majority of the IPR that have been filed from the HTIA members are targeting those same issued quality patents.

    John Thorne would also like you to believe that due to the Patent Reform, R&D has increased by 44 percent and that venture capital funding has increased to $61 billion and that startup activity has also increase – all due to the U.S. Patent Reform. This is just plain BS! What Mr. Thorne doesn’t tell you is that between 2008 – 2012 the R&D of companies, venture capital funding, and startup activity went down to the lowest point due to the 2008 financial crisis and didn’t start to rise until 2012 (this according to the Kauffman index). From 2012-2016 the increase was dramatic for R&D, funding, and new startups.

    Mr. Thorne cannot make a direct connection that the increase in these activities is 100% due to Patent Reform as none exist. That would be like me stating that since the passing of the AIA Patent Reform, the murder rate in Chicago has increased 224%, the death rate from autonomous vehicles has doubled and the patent infringement from HTIA members has increased by 654%. If Mr. Thorne is going to state figures, he should be able to back them up with the facts.

  12. Tractare Veritatem September 4, 2018 1:18 pm

    The devil is in the details, as usual.

    While it makes good theater to rail against ‘the system’, claiming it’s unfair, one need only click into the details a to get an understanding of what’s really at issue.

    A look into the Zond patents reveals that only a few of them are well written; you can see settlements occurring in those cases. The others are dying in the PTAB, and rightfully so.

    A repeat performance in the SnapChat example. The ‘system’ is blamed for Snap’s lack of patents for use in defense against FaceBook. However, a review of Snap’s issued patents reveals low-quality patents, that are waiting for death at the hands of the PTAB or CAFC. This is why Snap came to a gunfight with an excuse and no hope.

    Guidance on what makes a quality patent is out there, but it takes skill to incorporate it into a prep&pros practice. These are sorely lacking in most patent practitioners, who are stuck in the old way of doing things and refuse to change in any meaningful way.

    Unfortunately, the patent-consuming public thinks all patent practitioners are created equal, and that patent prep&pros are a commodity practice. They spend gobs of money on their patents only to see this money get flushed away when they actually try to use the patents.

    Patents take a high degree of skill to prepare and prosecute, and only those who continually change and learn do it well. No amount of tinkering with the ‘system’ is going to change this.

    Like anything else, you get what you pay for. Caveat Emptor.

  13. Software Inventor September 4, 2018 10:20 pm

    Tractare Veritatem @ 12.

    I take it that you are not aware that pre-AIA issued patents are being instituted…the same patents you and your colleagues wrote back then? You should be ashamed of yourself and your profession! Do NOT insult me after I paid you for your sub-par work. Get an electrical engineering degree and we can talk.

  14. Night Writer September 5, 2018 3:14 pm

    Benny September 4, 2018 9:45 am
    Night Writer @2, Why is that a key point ? (Foreifn inventor/filer asking).

    I think the point is obvious. The patent system is meant to promote innovation in this country. I think these charts are not showing the decline in innovation in this country and that many of those utility grants are from inventions made in other countries, e.g., China which is filing application through the roof.

  15. Benny September 5, 2018 3:43 pm

    Night,
    You talk scribble. Patents are about protecting your market presence, not promoting innovation. That was just an ideal, but it’s out of place in the corporate world where a lot of innovation happens, and even so, the ideal was to promote innovation per se, not “innovation here, but not elsewhere”” Furthermore, many foreign inventors (present company included) work for multinational corporations, so their place of residence is largely irrelevant. It goes without saying that while patent protection is local, patent publication is global, and I’m not going to protect my invention locally and let the likes of you copy it and sell it in 50 states (or at least in those whose residents are efucated enough to use it, which more or less excludes a couple beginning with “A”).

  16. Anon September 5, 2018 6:06 pm

    You talk scribble. Patents are about protecting your market presence, not promoting innovation.

    Benny, your feelings are just not in accord with the law.

    Yes, certainly, “market presence” may be protected. But every bit as certain: NO market presence at all need be there.

    NONE.

    just an ideal, but it’s out of place in the corporate world

    Check again – inventors STILL must be actual real people and are not allowed to be juristic persons of corporations (and that’s even with the AIA’s pro-Big Corp changes as to who may prosecute applications).

    You have drunk the Big Corp Kool-Aid FAR too much.

    As to your last comment, you quite miss the point. Patent law was, is, and ever shall be a Sovereign-centric law. You want protection in any “local” area, then you need to patent in that area (quite regardless of the “publish global” aspect). This has always been the case.

  17. Benny September 6, 2018 2:03 am

    Anon,
    Are you sure that the law is accord with the real world? It is Night Writer, apparently, who does not appreciate the irrelevance of an inventors place of residence to the idea of promotion of tech. It is precisely because I fully understand the sovereign-centric idea of patent law that I file outside my country.

  18. Anon September 6, 2018 5:28 am

    Benny,

    Before we shift to Night Writer (don’t worry, we will get there), let’s clarify that you are saying that I am correct about the sovereign-centric nature of patent law – even as you seek to question my view.

  19. Benny September 6, 2018 5:36 am

    Anon,
    Give me some credit for intelligence. I DO know how the patent system works both in the US and in many other countries (I wouldn’t be surprised if I know more about the EU system than you). I’m not such a cretin as to think that holding a US patent might have any legal ramifications for a Chinese company selling copies of my product in the UK, for example. Or that not obtaining a CN patent might give me any cause for complaint if numerous Chinese companies manufacture and sell my product in their local market. Or that a USPTO examiner is likely to look at the SIPO database when searching for prior art, either (that last one is off topic but unfortunately true).

  20. Anon September 6, 2018 10:19 am

    You want credit – but are refusing to give me credit.

    As I asked, let’s clarify that you are saying that I am correct about the sovereign-centric nature of patent law – even as you seek to question my view.

  21. Anon September 6, 2018 10:23 am

    Or that a USPTO examiner is likely to look at the SIPO database when searching for prior art, either (that last one is off topic but unfortunately true).

    Under US law (AIA) – this is a legal requirement for proper examination.

    Whether or not examiners are being held accountable for what they are supposed to do is likely a topic in which we may find agreement.

  22. Benny September 6, 2018 10:26 am

    Anon,
    You got something to say, say it, stop beating about the bush.

  23. Anon September 6, 2018 12:16 pm

    Benny,

    I already said it. See post 16. For some reason though, you took exception, even as you appear to agree with me. I’m just trying to clarify YOUR position.

  24. Software Inventor 2 September 7, 2018 5:25 pm

    Tractare Veritatem @ 12.

    The most qualified IP professionals have utterly no idea how to wrangle with decisions such as Alice v CLS. The two-part Mayo test is subjective, fictional law, that has rendered most patent claims ineligible within the tech field. Following your logic, all of the IP professionals involved in the prosecution of nearly all tech IP are, therefore, poorly qualified. Of course, this isn’t the case.

    It’s the incessant tampering with the patent system and new interpretations of the law that render patents useless and has led to, “efficient infringement” as author Paul Morinville states. This is the problem, a serious one.

    A few powerful infringers have successfully leveraged the “patent troll” narrative to sidestep plenty of excellent IP. In the process, they have diluted the incentive for inventors to leverage the patent system, and that is anti-innovation.

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