Going Grassroots in 2011: Fighting the Assault on Patent Rights

By Gene Quinn
December 30, 2010

I frequently ask myself why it is that patents continue to come under attack by those who want to pretend they are only a burden on society and provide no benefit.  Believing patents provide no benefit to society demonstrates a failure to understand fundamental aspects of the patent system, disclosure and publication of applications, as well as the basic economic reality that to innovate requires funding.  Innovation, particularly cutting edge innovation, requires quite a bit of funding, sometimes many millions or hundreds of millions of dollars of funding.  Where will that money come if there is no reasonable expectation of recouping the investment?  Free-riders are not innovators and policies that encourage free-riders at the expense of innovators are nonsensical.

Those that look at the patent system and see no benefit for society are either the most intellectually dishonest people you will ever meet, or they are taking a ridiculous and objectively incorrect position because of some agenda. There really is no other way to say it. Just look at the number of patent applications that have been filed since 1975 (see chart below). As patents became more valuable more applications were filed, but a fraction of those applications filed actually are patented, which means that society gets the benefit of the disclosures in those applications without having the burden of having to live with an issued patent. What a deal! Without a patent system that provides for acceptably strong patent rights many, if not most, of these innovations would either not exist or they would be held as trade secrets. A secret doesn’t benefit society, but disclosed patent applications and expired patents do.

If you look at the demand for utility patents dating back to 1975 (see chart below) you clearly can see that from 1982-1983 there has been an almost linear increase in the demand for utility patents, as demonstrated by the numbers of utility patent applications filed each year.

Clearly there is demand for utility patents, and that demand is only growing, which demonstrates that the innovation industry values patents.  They are, in fact, acting as if they are necessary.  After all, an entire collective of disparate interests, in different technology sectors, represented by different actors (i.e., individuals, universities, large corporations, etc.) wouldn’t pursue something that costs significant sums of money if there wasn’t a perceived value.  Of course, we know that in many industry patents are, in fact, necessary if you want to attract investors or if you want realistic hope to recover costs associated with the time, money and energy inputs that were necessary to create the underlying innovation.

Whether we like it or not, it has gotten increasingly difficult to obtain a patent over the years, or at least a patent that is economically viable. It isn’t impossible by any stretch of the imagination, but to pretend it is as easy as it once was would be to ignore reality. Patents are granted on new and non-obvious innovations, they are not handed out like candy or to everyone who applies. Patents are a reward for coming up with something new, non-obvious and useful, so spare me the garbage about how patents are issued on things that are old and known. The only people who can say that are those who are ignorant and don’t realize that it isn’t about whether the innovation was old and known when the patent issues, but rather whether it was old and known at the time of creation and/or the time the patent application was filed.

Most of the innovations we want most cost a lot of money to create. New pharmaceuticals and biotechnological advances are expensive, as are medical devices that offer life saving treatments. Similarly, creating vast new communications networks and Internet platforms are expensive as well. Virtually everything society would want most costs a lot of money to create and take to market. For crying out loud it can easily cost hundreds of thousands of dollars to invent and take a kitchen gadget to market. So who is fooling who? No one in their right mind spends that kind of money without an expectation that they can at least recoup that amount plus a reasonable profit. Of course, that doesn’t always happen, but do you go into an endeavor thinking you are likely to lose money? Are you going to go into an endeavor knowing that if it is successful some Mega-Corporation will just take it from you and cut you out? Are you willing to donate your R&D costs to society and then allow others who can make it and sell it for less to reap the rewards of your invention? If you are, you are in the substantial minority. And if you are in that minority there is nothing stopping you from not getting a patent and donating your time, money and energy to the betterment of society. You have that right now, so why don’t you go exercise it and leave the rest of us alone who know that a strong patent system, with strong patent rights, lead to a better economy where there is more innovations that truly benefit society.

Notwithstanding, there are those who constantly want to chip away at the rights granted to a patent owner pretend that there would be just as much innovation without patents as with patents, which is so naive it is almost difficult to believe anyone could hold that opinion honestly.  Those who choose to live in this mental Utopia simply disregard human nature and the natural condition, and project their own socialistic ideals as if they are the norm, which history clearly shows they are not.  People are greedy and socialist nations that treat everyone equally stomp out the greed characteristics of their people, which then necessarily impedes maximization of individual output.  Why would someone work extra hard if they are not going to benefit?

Certainly there are exceptions to the rule that people are motivated by what is in it for them, but this charity characteristic is not one to build a national innovation strategy upon.  Some will point to academics or others employed through grants to come up with inventions, but even those individuals are not truly benevolent and need the incentive of a pay check or funds to do their work. Even if we wanted to pursue that model now we have to recognize that it is impossible for governments around the world to spend any more money, they are all broke.

We know through controlled studies that when there is no incentive structure provided by the government there is little or no innovation. All you have to do is look at the third world countries and notice that they don’t recognize intellectual property rights, and many if not most don’t recognize any property rights; none that aren’t at the will and whim of a dictator.  In those countries that have adopted property rights, including intellectual property rights, there has been economic growth, foreign investment and a growing domestic economy. Government is the answer, it is the private sector and individual who has incentive to succeed that is the answer. Governments merely need to set fair rules, provide a mechanism to resolve disputes and then get out of the way.

We also have a controlled study in the United States relating to recognizing that strong patents rights spur economic growth and innovations that create new industries. When patent applications started to rise in a linear fashion in the U.S. coincides with the creation of the United States Court of Appeals for the Federal Circuit, which was formed for the express purpose of taking patent appeals out of the hands of the Regional Circuits because most of the Judges in the Regional Circuits had never seen a valid patent, or perhaps it is better to say that they had seen plenty of valid patents but never recognized one.  Thus, Congress knew it needed to do something to make a patent right valuable and desirable, so they created a separate Circuit Court of Appeals to hear all patent cases.  It was this, in my opinion, more than anything that caused patents to become valuable.  What good is it having a right that when litigated is guaranteed to be invalidated?  None.  So the Federal Circuit played a vital role in touching off tremendous economic growth.

Yet, there are forces out there, strange bedfellows indeed, that are working in various forums to chip away at the value of a patent by attaching the rights granted to the patent owner.  The patent is a right to exclude, so without the ability to exclude a patent is meaningless, yet the Supreme Court decided that a patent owner who prevails in a patent litigation is not as a matter of right entitled to a permanent injunction.  That is one of the most asinine rulings any Court has ever made, and shows just how little the Supreme Court understands about patents.  A permanent injunction should issue as a matter of right in every case where the patent owner prevails.  The permanent injunction wouldn’t do anything other than what the patent already grants, which is an order to not infringe.  The only difference is that with a permanent injunction you could go back to the district court for contempt proceedings if violated, at least presuming that the Federal Circuit gets the TiVo case correct, which is unfortunately a very large if.

The Supreme Court issuing a decision that permanent injunctions are not a matter of right shows they really don’t understand the nature of a patent, which is simply a right to exclude.  They have demonstrated their lack of understanding of patents many times before, at one point saying a process was hardly useful because it could only be used to power a computer, they have ruled that manganese is legally equivalent to magnesium, and they had said that in order to make a claim for infringement under the doctrine of equivalents you must prove that you were not entitled to the claim at the time you filed your application because the specification you filed would not support the claim you now seek as an equivalent. That which the Supreme Court doesn’t know about patents could fill volumes, but now they have decided to take a case that will in all likelihood lower the presumption of validity of a patent (Microsoft v. i4i). And a challenge to the constitutionality of gene patents is working its way to the Supreme Court because the ACLU thinks that isolated DNA occurs naturally, despite the fact that DNA is within a cell and a human created process is required to remove it from the cell and isolate it. The science doesn’t stop the ACLU from arguing to the public that the Patent Office is allowing the patenting of body parts, which is utterly ridiculous. The ACLU is wrong on the law and they are willfully, perhaps intentionally, wrong on the science to impose their agenda on society. But will the Supreme Court be able to understand this? They are the same Court that said manganese is equivalent to magnesium, so nothing is impossible when it comes to the Supreme Court. There is no mileage in underestimating the ignorance of the Supreme Court when it comes to patent and/or science matters.

The fight moving forward into 2011 and beyond will be more of what we have seen to date. The forces that would prefer to have a weaker patent right are those that are in the anti-patent community who want to do away with all patents, but they are also those who have built Mega-Corporations on patented innovations and now want to maintain that dominance by making it impossible for the next generation of small to mid-size company to seriously challenge them by building a foundation upon their own patented innovations. Strange bedfellows indeed.

Those who are anti-patent have been unable to achieve “patent reform” in Congress. In fact, it really isn’t “reform” it is just “patent change” and changes that reduce the value of a patent. Perhaps Congress understands, but more likely they are just unwilling to cast a vote that might upset campaign donors, who are on all sides of the “patent reform” efforts. Thus, both serious and pretend reform of the patent system in Congress stalls year after year after year. The anti-patent forces have taken to the Courts, where they are finding success at the Supreme Court, and sometimes even at the Federal Circuit, which ironically was formed with the express purpose of bringing uniformity to the patent laws and recognizing that not all patents are invalid.

It should come as no shock that government gets what government incentivizes. If we want innovation we have to incentivize innovation. Energetic people need to be able to provide for themselves and their families, and if there is no realistic way to innovate, protect and reap the rewards of the time, money and sweat invested there will be less time, money and sweat invested to innovate. We will then wind up with a patent system that exalts cheap, easy, incremental improvement rather than the paradigm shifting, industry creating innovations that we really want. It does no one any good to pretend that it doesn’t take money to innovate. It does. Without a reasonable expectation to recoup investment and make an appropriate profit then there will be fewer who invest and innovate. It is just that simple.

In 2011 expect Congress to take up patent reform again, expect it to go nowhere, and expect the anti-patent forces to continue to look to the Courts to do what they have been unable to achieve in Congress, which is the substantial weakening of patent rights.  Truth, science and economics are on the side of a strong patent system that rewards innovators.  Make it your New Years Resolution to talk to friends, family and business associated about the need for a better functioning Patent Office and meaningful patent rights that can support the creation of new companies and industries.  The more we talk about it the better.  We can’t call a press conference and get hundreds of media there like the ACLU can, so we need to excel at the ground game — a grassroots movement that isn’t afraid to say it like it is and point out the agenda of those who would prefer to harm innovation in America.

The Author

Gene Quinn

Gene Quinn is a Patent Attorney and Editor and President & CEO ofIPWatchdog, Inc.. Gene founded IPWatchdog.com in 1999. Gene is also a principal lecturer in the PLI Patent Bar Review Course and Of Counsel to the law firm of Berenato & White, LLC. 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 34 Comments comments.

  1. John Spevacek December 30, 2010 3:12 pm

    “I frequently ask myself why it is that patents continue to come under attack by those who want to pretend they are only a burden on society and provide no benefit.”

    Because it is not a straightforward, linear argument. Unless it is, a very large amount of people will never understand it. You see this with taxes all the time. There are some people that cannot not understand that there are circumstances where raising taxes will actually decrease tax revenue, and vice versa. I saw this first hand when I worked in the local county library (part time job, high school). The librarians thought that by increasing the charges for overdue books from 5 cents to 10 cents, they would get more money. Boy were they wrong. People suddenly started bringing their books back on time and they were getting less money than before.

    Now before this breaks down into a huge tangential argument about the politics of our times (remember first that the SCOTUS also didn’t know what tangential meant!) there most certainly are circumstances where increasing taxes increases revenue and vice versa. Part of the political debate we should be having (but aren’t) is what situation we are in and what will happen to changes that are made. My point is that there are a large number of people who cannot understand that the contradictory result can and does occur at times, that’s all. And if they can’t understand that, the issues with patents increasing innovation will be just as opaque.

  2. john mitas December 30, 2010 3:23 pm

    To write software that could potentially turn into a billion dollar business doesn’t take much money. All it takes is no sleep, a good dev computer and a great developer. You don’t need millions to build the next twitter or facebook, look at alot of the great apps in the android/apple/microsoft app stores, most of those apps were built by a lone developer working from there home on there spare time. They could easily turn a simple app into the next “angry birds” app.

    So your argument is completely useless in my scenario, i hate software & software design patents, they’re utter useless and is a minefield for any software developer. Patents may not bite you when your a single person cutting code on your dream app BUT if you become big enough and start brining in millions of revenue expect the patent trolls and patent holders to comming knocking!!!

  3. Gene Quinn December 30, 2010 3:37 pm

    John Mitas-

    My argument is certainly not completely useless in your scenario. In fact, you prove the point nicely. Thank you! You say: “it takes is no sleep, a good dev computer and a great developer.” Let’s assume you are referring to yourself so there are no costs associated with hiring the aforementioned great developer. So you, this great developer are not getting sleep, working around the clock for free on a computer that you had to purchase at one time or another. So there are costs, both the cost of buying the computer and the opportunity costs associated with spending sleepless nights developing. So you could have been engaging in work that would pay, so you had to have some kind of backing financially. So you prove that inventing does cost money and you further prove that no reasonable person would engage in such an activity unless there was a reasonable expectation to recoup what you put into the project plus a reasonable additional sum.

    As for your hatred of software patents, that seems like a personal problem. Given it doesn’t seem you understand opportunity costs I don’t expect you would understand the justification for software patents. I’ll just point out that without a software patent you are a target, with a software patent you have an asset that can be used to attract capital, which will be necessary for you to expand to a million dollar business regardless of what you may think. A software patent also makes it less likely you will be sued by competitors. Suing someone with a patent is a great way to get sued yourself if you are engaging in business activities yourself.

    You do, however, raise a legitimate point about patent trolls, which is a huge problem that needs to be addressed somehow, as I have been writing about for some time.

    Thanks for proving the point of the article!

    _Gene

  4. Gene Quinn December 30, 2010 3:39 pm

    John Spevacek-

    I hadn’t thought of it as you put it, but the contrary logic required of people in the tax situation is indeed similar. It seems as if no patents would result in more innovation and be better for society right up until you realize that would mean less innovation, which necessarily is not better for society.

    Cheers.

    -Gene

  5. New Here December 30, 2010 4:04 pm

    @Spevacek

    “Because it is not a straightforward, linear argument. Unless it is, a very large amount of people will never understand it. ”

    You make a very good point and I’d like to stay with it by saying, I get questions all the time from people that just don’t understand software development …at all ! Being a straightforward, or linear argument doesn’t make it easy to get the idea across …believe me !

    People that do not understand what I know and do, to be fair, doesn’t mean something isn’t wrong with software development. Because my choices for development as libraries as well code style, will all have an impact on the result quality of the software. People with no such understanding as mine, only know what they must deal with at their end; and that is my “bad software” — in their opinion.

    It is this last I mention about they must deal with at their end, is the most important. As it is the problem that many, not only will make poor judgement calls, but also harm value because they know nothing else. Dealing with the general public on such matters i understand well, so I do understand how important the quality is that reaches them.

  6. john mitas December 30, 2010 4:09 pm

    Gene: you truely lack any experience in IT. We in this industry write code and build apps in hope to build the next billion dollar product. Yes we want to be rich BUT we can’t all go an start patenting every software idea we make, conversely we can’t spend 50% of our time researching existing patents to see what stupid patents exist that we MAY be violating. And definetely we can’t afford to pay patent lawyers to do the above two things (research of file patents for us).

    This whole patent system for software is stupidly skewed to businesses with massive revenues. Where as there are hundreds of millions of home developers like me writing code.

    Take for example apples patents around dropdown menu or microsofts patens on the browser shield icon, those things are common sense and every developer i know has built something like that into there app. So what the hell are we suppose to do, just give up coding all together and find another profession.

    NO THE SOFTWARE PATENT SYSTEM IS BROKEN AND WRONG !!!

  7. john mitas December 30, 2010 4:15 pm

    and another thing, patents in say the biotech is understandable. You need millions of dollars to setup your labe to be able to do the gene work (that is patentned) so ofcourse its understandable that patents are useful in that industry. So basically getting into the biotech industry you would already have a massive budget and backers of which definetely some of that funding can be used for patent research/filing.

    BUT in the software industry any teenage kid with there dads computer and a coding book can start bulding the next killer iphone app. A teenager wont have the thousands/hundreds of thousands to research/file patents. Even myself, i barely have enough to pay my mortgage let alone the 10K+ to file patents here in Australia.

  8. step back December 30, 2010 4:47 pm

    Gene,

    Before diving back into the “software-patents-ain’t-no-darn-good” cesspool, we should all first step back and take a look at some common objects that are capable of being abused.

    An iron cooking skillet in the wrong hands can be abused by hitting someone (an innocent, not a burglar) over the head with it. Yet no reasonable person in our society demands that all cooking skillets (or all iron versions) should be outlawed.

    An automobile in the wrong hands (i.e. in the hands of a habitual alcoholic) can be abused. Yet no reasonable person in our society demands that all cars should be outlawed.

    It is no different with patents.
    >Patents are instrumentalities which are highly useful in our advanced technology society.
    >Patents aid the start-up inventor in raising funds and in actualizing his/her invention.
    >Patents serve as a historical recordation for proving who did what first and who did not (e.g. Jack Kilby did not invent the first monolithically integrated miniaturized circuit –which is why he lost in the patent interference battle)
    >Patents serve as valuation tools for evaluating the intellectual know how owned by one concern or the next.

    And yes, patents can be abused just as iron skillets and cars can be abused.

    But that is no justification for outlawing patents.

  9. step back December 30, 2010 4:59 pm

    John Mitas,

    I am always amused by someone such as yourself who claims that major software innovations can come into being IF ONLY we had:

    > One lone wolf programmer
    > Giving up his sleep night after night
    > And pounding selflessly and continuously on his one keyboard
    > To produce that one great piece of software, that just like that one great Rock ‘n Roll song in Jack Black’s movie, School of Rock; can “change the world”.

    If that truly is the case, why don’t you be the one great Rock star of Software land and give away for free the next big Beetles song or Mick Jaggar song because, unlike everybody else in this world, you are so altruistic that you are willing to eat out of garbage bins and sleep in a cardboard box behind the supermarket all in the name of the goodness of softwaredom?

    The truth is that essentially all the easy programming has already been done.
    The task of coming up with the next great thing is usually an arduous and risky one.
    No reasonable person gives away the fruits of his labor for the goodness of mankind (assuming that person is not independently wealthy to begin with).

    Dream On Dream On Dream On
    Dream until your dream comes true
    Dream On Dream On Dream On
    Dream until your dream comes through
    Dream On Dream On Dream On
    Dream On Dream On
    Dream On Dream On, AHHHHHHH

    Dream On Lyrics, Band:Aerosmith

  10. Gene Quinn December 30, 2010 5:52 pm

    John Mitas-

    If thinking I have no experience with IT or with writing code will help you get through the night then by all means hold on to that erroneous assumption.

    Who ever asked you to spend 50% of your time researching existing patents. That comment suggests you are not at all knowledgeable about patents. Can you answer me this? When you read a patent what do you read? Seriously. Are you one of the so many who read the title and start complaining? Do you read the abstract or look at the drawings? You do realize that only the claims define the exclusive rights, correct? I suspect that will come as news to you.

    If you were starting a project responsibly you would realize that you don’t just run out and patent everything, but at some point if an innovation seems to be making head way and there is a reasonable expectation of success then you should be thinking about patents. Just like everything else in life you should hire experienced professionals to help you and engage as a business owner would. Doing your own patent research is a recipe for disaster. Sure, do some yourself to familiarize yourself with what is out there, but if you want to succeed in business you need to hire reputable professionals who specialize in tasks and not do everything yourself.

    You mention Apple patenting drop down menus, which is something I wrote about the other day. You ask: “So what the hell are we suppose to do, just give up coding…” No, you SHOULD operate in a business appropriate way. If some thug were to come in and try and shake you down what would you do? Businesses ignore crappy software patents all the time. It is a YOU problem if you let clearly invalid patent claims dictate how you run your business.

    The software patent system is not wrong or immoral, but at times it has been broken. There are a lot of crappy patents out there, but the ones that reputable professionals are getting for clients today aren’t crappy, wrong or immoral. So you can choose to ignore the patent system if you like, but when someone with a patent comes knocking on your door it will be to late. When you realize you have the million dollar innovation you have always dreamed about it will be too late to protect and everyone can copy you. You will be bitter and upset that others stole your idea/invention, but you will have yourself to blame.

    If you are really serious about learning then read the pages of IPWatchdog.com. I suggest you take a look at:

    http://ipwatchdog.com/2010/09/03/business-responsible-inventing/id=12137/
    http://ipwatchdog.com/2010/08/31/keep-money-until-proof-of-concept/id=12347/
    http://ipwatchdog.com/2010/04/21/patent-strategy-laying-the-foundation-for-business-success/id=10192/
    http://ipwatchdog.com/2010/03/29/software-patents-and-murphys-law-uncertainty-is-where-patentability-resides/id=9898/
    http://ipwatchdog.com/2010/01/25/q-a-file-a-patent-application-before-market-evaluation/id=8599/
    http://ipwatchdog.com/2010/01/24/the-apple-way-repeated-innovation-patent-domination-2/id=8589/
    http://ipwatchdog.com/2010/01/13/beware-those-claiming-software-patents-are-unnecessary/id=8376/

    These are just a handful of articles I wrote this year. Some clearly relate to tangible innovations, but the business responsible approach to proof of concept and its importance with respect to only moving forward so long as there is reasonable chance of success applies to software as well.

    Cheers.

    -Gene

  11. Gene Quinn December 30, 2010 5:58 pm

    Step-

    OMG! 2 for 2 on comments! Two of the best comments of the entire year, here on the second to last day of 2010! I can’t agree more about the iron cooking skillet, that is a perfect analogy. I also love the lyrical message. You had me at “dream on”!

    Keep on keeping on my friend. Happy New Year.

    -Gene

  12. New Here December 30, 2010 11:08 pm

    “Before diving back into the “software-patents-ain’t-no-darn-good” cesspool, we should all first step back and take a look at some common objects that are capable of being abused.”

    @step back

    In our or any advanced technology society, shouldn’t allow instrumentalities as patent to, upon being granted, supersede by favor of them what has been created and in use before. Those of us as myself, remember before the Apples, Microsofts and others existed ! …long before they, ever burning the night oil to gain patents on software that now seems to be so important to them.

    “software-patents-ain’t-no-darn-good” cesspool”
    I for one are happy to be part of change even if viewed this way …for those patents that the shoe fits, yes !

  13. MLS December 31, 2010 12:08 am

    I had the opportunity to read this past summer a book by William Rosen that can be found at the following location::

    http://www.amazon.com/Most-Powerful-Idea-World-Invention/dp/1400067057

    What piqued my interest was that Mr. Rosen’s book was lambasted (almost slandered) by certain well-known persons who can consistently be counted upon to decry anything dealing with incentivizing inventive activity that results in the recognition of certain rights of exclusivity being held by inventors. Obviously, the book struck a nerve, and I was interested to find out why. Having read it, I not only discovered why it was lambasted, but also obtained what I consider to be quite valuable insight into the benefits achieved by incentivizing systems of the type represented by patent law.

  14. step back December 31, 2010 4:56 am

    MLS,

    I didn’t read the book.
    But I did see the guy present on C-SPAN Book Review show.

    Yes, the development of steam engines was one of many unappreciated leaps in technology where patents played an important positive role (for some) and the public doesn’t even know all this is going on in the background because, quite frankly, they don’t care. All they know is that they show up at a store; and there it is: The next big Great Thing.

    It all seems to happen by magic.
    However, in the back of the shop boiler rooms, hundreds of technicians are toiling and innovating to make some next gizmo appear in the store as if it were preordained to be there, except that it was not. And it would not appear there if we did not have a strong patent system.

  15. staff December 31, 2010 10:50 am

    ‘burden of having to live with an issued patent’

    It’s a contract. Inventors disclose their inventions and in turn get what used to be exclusive use for a limited time- thanks a lot SCOTUS! Ever wonder why no one knows how to make a Stradivarius? He took his secrets with him to the grave. No doubt many other discoveries have been lost over the ages because their inventors took those with them to the grave rather than risk them to theft. Who would build a house if you could not get a title? If we don’t restore strong property rights to inventions including the power of injunctions to patentees large and small, no one will bother or will keep their discoveries secret which will be lost forever after their deaths and keep others from building on those discoveries. That is the true power of disclosure.

  16. New Here December 31, 2010 11:04 am

    @step back

    “unappreciated leaps in technology ” oh, please someone stop me from crying !
    Please research this subject, it was not born here. Nor was rocket tech; so most if not all, was only built from such knowledge …here.

    What is unappreciated is the fact that at the time few of those people of the general pop had access to things as patents. Too, seeing how much smaller the United States was then, and as a result, the number of people really doing any inventions that anyone at the time should care about. The trash that was patented then because the inventions were something new …for that time when so so little was around.

    What is unappreciated is the fact that many have from Universities and Colleges taken much information from many others there in books etc, and have had the benefit of using that information to build understanding and the ideas they build form it without knowing whom it really belongs ! These same, then obtain high paid employment to work on development that the final owner isn’t the inventor — that shares the benefit of all that information and all built upon it !

    Not all is wrong or bad with the patent system, it needs a special eye opened to see the rest of those also working hard, making what turns out as unappreciated leaps in technology too. Well, many are sick of the problem patents today create, that others see the changes to address those problems, some are unhappy while other see a fair playing ground may be in the future.

    Happy New Year everyone !

  17. Gerard December 31, 2010 11:43 am

    It is useful to hear the pros and the cons concerning such issues. Perhaps, the time is now for intellectual property law innovations. For example, the ability to rapidly create IP and bring it to market in a short period of time can result in substantial social benefits. Yet the patent application process can take two years. A provisional patent application can be processed in about one month. It cost about $100. The process to obtain patent pending status is a helpful step to software developers who would like to produce product and earn revenues before a patent application can be processed. The next innovation in patent regulations should be a procedure to automatically register the trade secrets that may be included in the provisional patent application. Why does a software trade secret have to be secret? Let’s publish it. Once it is included in a provisional patent application, it could be registered in an accessible database. The owner would be identified in the database and business activitiy could occur between individuals who had access to the database. Let’s call the database a trade secret bank. Now a software publisher could include trade secrets in a provisional patent application, publish his software and his/her trade secrets to the market, rely upon law enforcement to enforce IP rights if the trade secrets were registered in the bank, initiate law enforcement action against infringers, and enter into licensing agreements with interested parties to raise the revenues needed to pursue a full patent application. Patent examiners could look up the trade secret information in the bank to determine whether the patent applicant was the original author of the idea or technology. We don’t need to keep it quiet – we only need to protect property rights. So, let’s encourage the software guru’s to publish their innovations with trade secret protections using the existing provisional patent application process while they pursue revenues in the market place and engage in the process to obtain full patent protection without the requirement that there be no publication prior to the award of a patent. Let’s secure IP rights and get innovation out of the barn as soon as possible.

  18. New Here December 31, 2010 12:40 pm

    @Gerard

    With all respect, until it is known what belongs to whom, law enforcement to enforce IP rights means little without the Courts first. Without the Courts first, then law enforcement to enforce IP rights would be in the hands of claimed owners and would be rogue at best. And being rouge, such an idea could turn into a deep dark pit even for groups of patent owners standing together. I don’t wish that on anyone !

    IP rights are not the sole right of patent owners. The PTO needs to start with garbage collection, because over the years many patents have after being granted, hit the shelf after a failed entrepreneur’s venture for just one example. The patent system could be better, but change has to happen.

    HNY !

  19. New Here December 31, 2010 12:43 pm

    RE# 18

    rogue not rouge…thanks.

  20. Ron Hilton December 31, 2010 3:27 pm

    As a somewhat successful entreprenuer working on my second software start-up, and one who has found himself at different times at both ends patent infringement litigation, I have a few observations to share. If you have a billion dollar idea, then it’s worth making some investment to bring it to fruition. Lucky you if the idea happens to be software-related and requires comparatively little development expense (as opposed to bio-tech or whatever). But that is not the only expense for a successful venture. Admittedly, it costs money to get a patent, if your idea is in fact patentable. If it isn’t, then it’s probably something that someone else with a computer and some free time can replicate, and you’ll be sharing that billion dollars with a lot of other people. That’s the downside to the software business. The low barrier to entry is an advantage to you but also to your competitors. It cuts both ways. Anyways, if your billion-dollar idea is patentable, you as the inventor have a great deal of leverage, IF you file a patent on it. It is well worth giving a certain percentage of your venture to one or more investors to fund the obtaining of a patent, not to mention funding the other typical expenses involved in starting a business. In the unlikely event that your software is found to infringe some other valid software patent (which is likely to be very specific to a certain application, not software in general), your best defense will be a good offense in the form of your own patent portfolio. Once again, IP gives you, the “little guy” the leverage you need to attract big money and fend off big corporations in bringing your billion-dollar idea to market. Software patents are your friend.

  21. step back December 31, 2010 4:44 pm

    Software patents are your friend.

    Software patents are your friend if you are giver/creator rather than a free-for-me taker.

    Happy New Year and may all your new ventures be patentable ones. 🙂

  22. Ron Hilton December 31, 2010 8:14 pm

    I would just add that most software ventures are likely patentable. The claims will probably be narrow. But it doesn’t have to be a whole new programming paradigm to be patent-worthy. It just needs to protect what’s new about the software product. Because it’s narrowly focused on one unique product, the chances that someone else will inadvertently infringe are low. A patent is like insurance. You hope you never need to enforce it, but it’s there for protection, just in case. It’s a prudent thing to do and part of the cost of doing business.

    Happy New Year and may the Grassroots be greener in 2011… 🙂

  23. Mark Nowotarski January 2, 2011 5:23 pm

    One of the challenges to getting grass roots support for patents is the tiny percentage of Americans who get them. About 100,000 US residents get patents every year from a population of about 300,000,000. That’s only 0.3%.

  24. Mark Nowotarski January 2, 2011 5:24 pm

    Oops, missed a zero, That’s only 0.03%.

  25. Ron Hilton January 2, 2011 6:44 pm

    Believe it or not, 100,000 is a big number when it comes to grass-roots activism, and inventors aren’t the only stakeholders. If it is framed as an issue of free market economics, American technological leadership, and chanmpioning the “garage” inventor (almost an American icon), true patent reform would enjoy wide support. The focus needs to be on improving patent quality, which even detractors of the patent system would agree is needed.

  26. Blind Dogma January 3, 2011 7:26 am

    A subtle (but no less important) point concerning Mark’s numbers – Ron’s reply – is that “framing” becomes the operative word.

    We live in a world of soundbytes and the political jockeying for the fleeting attention of the American public. When those soundbytes are thrown out without a basis in the fundamentals, when dogma for a particular agenda blinds the actual knowledge of the law and its history, you have examples of a war being waged without regard to the actual causalities that would be inflicted by the ignorant, no matter how well intentioned they envision themselves to be..

  27. Some Lawyer January 3, 2011 11:00 am

    Folks, this man is a PATENT ATTORNEY. Talk about having an agenda. The more dysfunctional and litigious the patent system is, the more money he makes! Duh!

  28. Gene Quinn January 3, 2011 12:35 pm

    Some Lawyer-

    Your comment is inappropriate on this forum. It has been approved, but moving forward this type of comment will be deemed unacceptable and deleted.

    You use a fake name, a fake e-mail address and are not adding substantively to the debate. You say I and others have an agenda, as if you do not have an agenda. You claim that a more litigious patent system would be to my benefit without realizing I do not represent litigation clients. So your ridiculous, non-informing response isn’t even based in a modicum of fact.

    If this type of comment without information, analysis and which is factually inaccurate is the best you can do please go elsewhere.

    -Gene

  29. Mark Nowotarski January 3, 2011 4:00 pm

    The more dysfunctional and litigious the patent system is, the more money he makes! Duh!

    For the first twenty years of my career, I was an R&D engineer for a commodity chemicals company. We sold massive quantities of liquid nitrogen, oxygen, argon etc. to steel mills, electronics fabs, food processing plants, hospitals etc. for a multitude of uses.

    Our R&D group’s objective was to help our customers use as little of our product as possible to achieve their objectives. Why? Because the less they used for any given process, the more value they were getting from our product. The more value they got, the more reasons they found to use it and the more money we all made in the long run.

    It worked every time.

    So, “Some Lawyer”, I know for a fact that you are wrong. The more dysfunctional the patent system is, the less money any patent attorney will make because the less value our clients are getting for our services. That’s why it is so important for every patent attorney to work hard towards making the patent system more consistent, more efficient and more reliable. That makes money for everyone.

  30. IANAE January 3, 2011 4:35 pm

    The more dysfunctional the patent system is, the less money any patent attorney will make because the less value our clients are getting for our services.

    That’s not strictly true either. It’s more of a Laffer curve type relationship.

    If your company had found a way for its customers to use none of your product to achieve their objectives, said customers would have received tremendous value, but your repeat business would have dropped off somewhat.

    A certain amount of litigation is actually required to provide enough certainty for the rest of us, by establishing a sufficient body of precedent on the important and recurring questions of patent law. We don’t want so much that it’s “dysfunctional”, but none of us really wants there to be no litigation at all. Everybody needs to make money from the system, but first and foremost there must be profit in it for the patentee.

  31. Mark Nowotarski January 3, 2011 5:13 pm

    If your company had found a way for its customers to use none of your product to achieve their objectives, said customers would have received tremendous value, but your repeat business would have dropped off somewhat.

    Ironically, we did, in fact, invent an alternative for customers to use none of our product in the heat treating industry. We patented it and started a whole new business selling the alternative. But even that “zero use” option still needed to be backup up with a ready supply of our product in case the alternative went down. That backup was very profitable business.

    So I guess that supports your point. No matter how efficient the patent system is, some amount of litigation will always be needed as a backup in case the system fails.

  32. Blind Dogma January 3, 2011 6:09 pm

    as a backup in case the system fails.

    I hate to break it to you, but llitigation is built in as part of the system.

    The breakdown is lawlessness.

  33. patent litigation January 4, 2011 2:09 pm

    I know hoping for congressional patent reform may seem like a fool’s errand at this point, but it is encouraging that the House Judiciary Committee is forming an IP subcommittee that is purportedly prioritizing patent reform. Though it’s questionable as to whether this will lead to much-needed reform, nevertheless the Obama administration’s continued efforts on behalf of intellectual property are very much welcomed.
    http://www.generalpatent.com/media/videos/patent-suits

  34. Anon January 4, 2011 2:24 pm

    patent litigation,

    I would be very afraid of using your services, as your posts are often off mark. You miss the point on the IP subcommittee, as the patent aspect is being downgraded from full committee status to sub-committee status.

    I would agree with you though that it is indeed very questionable as to whether this will lead to much-needed reform.