Patent Reform: Michel Testifies to House IP Committee

By Gene Quinn
February 11, 2011

Earlier today Chief Judge Paul Michel (ret.) of the United States Court of Appeals for the Federal Circuit testified before the Subcommittee on Intellectual Property, Competition and the Internet, a subcommittee of the House Committee on the Judiciary.  The House IP Committee held the hearing titled “Crossing the Finish Line on Patent Reform: What Can and Should be Done?”

Substantively, Chief Judge Michel also explained that “[t]he PTO desperately and immediately needs:  several thousand additional examiners, dozens of additional board of appeals members, and major modernization of its IT systems, which are antiquated, inadequate and unreliable.” The funds for additional hiring and improved IT systems would come from the Patent Office being allowed to set its user fees and keep the fees it collects.  Greater resources are necessary, Chief Judge Michel explained, because of the extraordinary increase in the size and complexity of patent applications over the last two decades, which makes the 20 hours on average provided to patent examiners wholly inadequate.

Procedurally, in his testimony Chief Judge Michel urged that before work on patent reform is concluded the Subcommittee should hear from “technology start-ups and other young, fast-growing businesses based on intellectual property”  because they are the ones that “generate most economic growth and create most net new jobs.”  Hopefully law makers will hear from this group that has been nearly shockingly shut out of discussions on how to reform the patent laws and patent system.

Without further ado, Chief Judge Michel’s testimony.

********************************

Chairman Goodlatte, Ranking Member Watt, and Members of the Subcommittee:

Thank you for the opportunity to submit this statement and provide live testimony at the Subcommittee’s hearing, the first of this Congress, on patent reform. The challenge, in my judgment, is to pass legislation that will work the greatest improvements in the operation of the American patent system, particularly in the U.S. Patent and Trademark Office (PTO), while minimizing the risks of unintended consequences that would impede “Progress in Science and the useful Arts,” to quote the key phrase in the Patent Clause in Article I, Section 8 of the United States Constitution. These risks include increasing, rather than decreasing, delays, costs, uncertainty, and complexity. The intricate interactions among the courts, the PTO, inventors, investors, owners and all the other participants in this vast system are more important than the text of the Patent Act. Our patent system, a kind of innovation system, has been the primary engine of technological progress, economic growth and job creation in America for two centuries. In fact, its importance has increased even further in just the last two decades.

I stress the actual operation of this web of actors because one is tempted to focus unduly on altering the words in the Patent Act. But those provisions just set forth the rules and roles. The actual operations are much more complicated and depend on many persons, some of whom are not typically perceived as part of the patent community, particularly venture capital managers and CEOs of technology start-up firms. As everyone from the President on down now seems to agree, these two groups, interacting, promote most of America’s economic growth and job creation, as well as technology development.

As a former member of another group of actors, the judges who enforce the patents that are issued by the PTO, I am pleased to try to provide fresh insights from the courts’ perspective. My recommendations reflect daily dealings with patent cases for more than twenty-two years as a judge of the Court of Appeals for the Federal Circuit, and from 2004 to 2010, as its Chief Judge. As you know, Congress created this court in 1982, investing it with exclusive, nation-wide jurisdiction over virtually all patent appeals, both from the PTO and the district courts as well as the International Trade Commission. Because my 22 years commenced early in 1988, I served on the court for a large majority of its existence. From that privileged position, I saw the patent system up close and over time.

In fact, I originally intended to serve as long as able, in accordance with the life tenure guaranteed by the Constitution, because I truly loved the work. I changed my plans, retiring on May 31, 2010, precisely to be free to participate fully and without the restraints that limit participation by sitting judges in this important public policy debate. As long as I remained in judicial service, my comments were limited essentially to the potential impact of proposed legislation on judicial administration and court operations. Now, as a private citizen for the first time after 44 years of continuous public service, I may speak freely on all aspects of patent reform. I concluded that I could better serve the country off the court than on it. It seemed to me that getting patent reform right was far more consequential for the welfare and prosperity of the nation than deciding appeals in individual court cases. So I can hardly express how grateful I am to the Subcommittee for inviting me to testify.

Of course, unlike most witnesses, I represent no coalition, company, industry, technology, trade group, or economic interest. I speak only for myself with a focus on what, in my judgment and from my experience, is in the best interest of the nation, of all companies, industries and technologies. While I do not have all the answers and certainly not all the knowledge, I believe I am as disinterested, neutral, impartial and objective as anyone could be. I believe that from my judicial service I am also well informed.

The genesis of the American patent system is important to recall. The Founders were so concerned about enabling the new nation to achieve economic development and security that they founded the system of private property rights to promote large public benefits right in the Constitution. In fact, among the enumerated powers of the Congress, the Patent Clause appears among the first, even above the power to declare war and to raise armies and maintain a navy. Attributed to the genius of James Madison, this clause was seen as of primary importance by the Founders. Therefore, in one of its first enactments in 1790, the new Congress passed the first Patent Act to implement the constitutional mandate: “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Rights to their respective Writings and Discoveries.” The patent system was so important to the Founding generation that as Secretary of State to President George Washington, Thomas Jefferson personally reviewed patent applications and approved patent grants.

Contrary to what many people today believe and state, American patents do not grant monopolies, but merely the right of inventors to control their innovations for 20 years and to prevent others from using those inventions during that period without the inventor’s permission and, usually, the payment of royalties. A property right, it grants not the exclusive right to make the product but the right to exclude others from doing so without the owner’s consent. The American patent system was designed for everyone, not just the rich and powerful as in England and other countries. Everyone was encouraged to invent, for one could actually make a living by doing so. Yes, it allowed for private gain, but as the means for public good. In President Lincoln’s famous phrase, it “added the fuel of interest to the fire of genius.”

American industrial development gained momentum over the next two centuries, creating the most technologically-advanced and wealthy society in all history. But in the last decade or so, this steady momentum slowed. Investments in innovation began to dry up. Without approved patents, technology start-ups could not get funded. Some expired while waiting.

In my opinion, the most important question relating to patent reform and economic recovery is how to rev up this engine of innovation. The answer requires determining the causes of its decline. I conclude that in a single word, the primary cause is DELAY, especially the long delays in obtaining patents on new technology. So the problem lies not primarily in the text of the Patent Act or the procedures it establishes, but in the operations and resources of the patent office and also the courts. The most important step for Congress is to provide the PTO with the resources it needs to examine patent applications expeditiously and carefully.

Over the last decade, while Congressional attention was focused on the Act and procedures in the courts, there developed a gigantic mismatch between the capacity of the PTO and its workload. Today, this gap is so huge as to impede recovery from recession and the job creation so urgently needed in America. Although internal efficiency measures in the PTO can help and are being instituted vigorously by the excellent leadership team under Director David J. Kappos, the gap is so large that it cannot possibly be closed except by a large increase in the resources of the PTO. And, it is needed immediately; in fact, it is years overdue.

The excessive delays caused by this resource gap were the subject of the Subcommittee’s hearing on January 25, so the metrics are well known to you: 1.2 million patent applications pending, over 700,000 not yet given even a preliminary evaluation, delays that average about three years, often far longer, and growing for almost a decade. From 1.2 million pending patent applications, we can predict, based on historical grant rates, that approximately 700,000 patents will issue. Many will promote growth and jobs. But how soon?

Therefore, first and foremost, patent reform legislation must raise the user fee levels and ensure that all fees collected remain available to support PTO operations in current and future fiscal years. No taxpayer funds are involved and the deficit is not affected.

Regarding delay, I would also emphasize two additional points: first, despite the Congressional command that they must be completed with “special dispatch,” delays in inter partes re-examinations average over 3 years, and delays at the appeals board have been almost as long. In fact, delays on appeal were intolerably long, even several years ago when the inventory of appeals was less than 4,000. It has since grown to over 19,000, so delays will likely increase substantially unless resources are greatly enlarged at the board.

Second, perhaps the most useful insight I can offer the Subcommittee is this: the numbers only tell half the story. What has also increased — I would say exponentially — is the complexity, technical difficulty and length of applications today. We saw this at my former court, which hears and decides 300-400 patent appeals per year out of a total 800 cases adjudicated. In 1988 when I was first on the court, the patents usually involved relatively simple technologies. Often the applications were less than 5 pages long and included less than 10 claims. I recall one for the design of portions of a running shoe. By the time I retired in 2010, a typical patent under court review involved extremely challenging technologies, such as advanced computers, bio-technology or pharmaceuticals, and ran to lengths of 10-20 pages with dozens of claims, many with dozens of claim components, called “limitations.” Properly examining such applications takes more time and higher levels of technical expertise than what examiners faced a decade or two ago. So the resource gap is actually far greater than the raw numbers imply.

And today’s applications are usually supported by lengthy, complex documentation and require the examiner to review dozens of prior art patents and/or technology publications and assess each claim against all that prior art.

It is said that, on average, an examiner is expected to complete the examination in less than 20 hours. To me, that seems an impossible task. But taking more time on any one application in the examiner’s docket means that all the other applications will experience even greater delay than otherwise. It is just an impossible situation — for examiners, applicants, everyone affected. The lion’s share of the solution can only be a vast increase in PTO resources.

The PTO desperately and immediately needs:

• several thousand additional examiners,
• dozens of additional board of appeals members, and
• major modernization of its IT systems, which are antiquated, inadequate and unreliable.

In addition, the office needs to attract, recruit, train and retain experienced scientists, engineers and other intellectual property professionals as examiners and board of appeals judges. That will require higher salary schedules, I expect. An expanded staff will also need more office space than the PTO presently has. Indeed, some 2,000 examiners now work at home. No doubt, many other enhancements are needed, but without the above improvements, I do not see how the PTO could promptly clear the backlog of 700,000 applications and stay current with the 500,000 new applications that arrived in 2010. Unless it does so, economic growth will be stunted.

The gap between resources and workload grew throughout the last decade. Congress last adjusted the fee levels in 2004. But this resource gap and the inadequacy of fee levels received little notice, as patent reform efforts focused on perceived problems in the courts and on adding new procedures in the PTO to review patents that allegedly should not have been granted.

But even worse than the inadequate fee levels, the PTO lost spending authority over an estimated $800 million in fee revenues since 1992. Therefore, in addition to raising fee levels (or empowering the Director to do so), Congress must act to ensure that the PTO has access to all fees it collects and can use them to support operations in the current and future fiscal years.

In my judgment, fixing the problem of PTO funding is far more important than enacting those provisions in recent legislative proposals that would alter court practices or add new processes inside the PTO if they further increase the PTO’s workload. So my principal recommendation is this: above all, fix the PTO funding problem. Make it possible for the PTO to clear the 700,000 backlog of applications and get current on new filings. To me, current means all examinations concluded within two years of filing. Note, I do not mean two years as the average delay; I mean every application examined within two years and either granted or denied. One year would be ideal, but two years might be tolerable.

Remember too that by law most applications must be published on the internet 18 months after filing. So given current delays, the invention is made public long before it is protected. It can be used without permission — and often without consequences — for all the months and years between 18 months and the eventual issue date. Although once granted, patents are a form of private property, until granted the inventor obtains no rights. Examination delays thus defeat private property rights or at least diminish their value.

The story is told that thousands of foreign engineers sit, not in labs doing research, but rather at computer screens reading U.S. patent applications that disclose new technology. Perhaps the story is only apocryphal, but the motivation can be understood.

As to new post-grant procedures proposed for challenging patents in the PTO, how can Congress have confidence they could be completed expeditiously? A one year statutory deadline for completing the new post grant review — which is not enforceable by anyone and may not be feasible — follows a 9 month post-issuance period for filing a review petition and the months for ruling on that petition. So the review period looks to me like year two, not year one. We know that the “special dispatch” requirement for present inter partes re-examinations failed to produce timely decisions. How can Congress conclude that the one-year limit for the new post-grant review would fare any better?

As to the new inter partes re-examinations proposed, preventing serial challenges that could go on for years and years will be difficult as different parties could file another challenge as soon as the first one is concluded and so on. I suppose abuses can be prevented, but, in my view, only with carefully-crafted safeguards.

Attention must also be paid to the interplay between new post-issuance procedures to challenge validity in the PTO and co-pending infringement/validity cases in the courts. Already over two-thirds of pending inter partes re-examinations under the present system involve patents being litigated in court. With insufficient numbers of judgeships and more than 10% of authorized judgeships long unfilled, district courts are now so backlogged that judges will be under pressure to stay pending infringement suits until the PTO has concluded all possible validity challenges. If so, might issued patents, as a practical matter, not be enforceable in court until several years after being granted? Would that be acceptable and fair to all concerned? Again, perhaps with very careful crafting, provisions could be written to prevent such a scenario. But great care must be taken, for all agree that court delays, like PTO delays, are already too long. I believe they reduce innovation.

At the very least, any new PTO procedures that add burdens should not take effect for several years so the PTO can first ramp up and once again function carefully and expeditiously, based on the new resources it may receive.

As to changing court practices and rules, much has changed since patent reform hearings began in 2005. In my opinion the perceived problem with the issue of damage calculations has been satisfactorily solved by court decisions since 2005. And further adjustments can be and are being made continually, as seen in the recent Federal Circuit decision in the Uniloc case. The same can be said for issues of venue, willfulness, obviousness, injunctions and eligibility for patenting. Therefore, I see no need for court-related provisions. Although they are asserted to reduce cost, delay and uncertainty, I fear they are more likely to have exactly the opposite effects. In my opinion, they can safely be omitted from reform legislation.

After delays, the next most harmful dynamic is extended uncertainty over the validity of issued patents. If patents were to suffer under a cloud of possible invalidation for years on end, how could their value not diminish? What then happens to their power to induce investments by risk capital managers and even large company CEOs?

I therefore urge that if the Subcommittee elects to pursue not a streamlined reform bill but a comprehensive one, it first hear from CEOs of start-up technology companies and from leaders in the venture capital industry. As far as I am aware, these categories of actors in the patent system have not been adequately heard. Perhaps it was because they are not part of the traditional patent community or not focused on lobbying Washington. Whatever the reasons, they are better able than anyone else to explain the interactions between patents and growth, patents and job creation, patents and risk capital investments in research and development, in finalizing product design, in building new production facilities, in hiring new workers and in supporting initial public offerings of stock to continue the growth cycle.

Everyone agrees technology start-ups and other young, fast-growing businesses based on intellectual property generate most economic growth and create most net new jobs in our economy. Before concluding its work on broad patent reform legislation, the Subcommittee needs to hear from representatives of these two communities.

Finally, the Subcommittee needs, I respectfully suggest, to conduct continual oversight hearings on PTO operations as resources are increased to assure that requisite speed and quality of patent grants and other PTO procedures are being achieved. Court operations and obstacles could likewise be usefully probed, for delays in the courts, in my opinion, are almost as harmful to the nation’s economic growth as delays in the patent office.

Many experts stand ready to assist the Subcommittee in its work, which is vital to the future of America. That includes me.

Thank you.

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 61 Comments comments.

  1. Blind Dogma February 11, 2011 4:44 pm

    There are several choice comments here that I invite Bobby to locate. Specific comments that place his usual dogma squarely in the crosshairs of oblivion from one who is neither pro-inventor nor “pro-public” (whatever that truly means).

    Anything at all Bobby, that sticks in your craw, that is more than just a little bit hard to swallow? Oh along the lines of genesis of the system, primacy of property rights, definitions of monopolies, actual protection of the Quid Pro Quo?

    I assure you that this person knows quite a bit more than you, even without the benefit of sleeping at a Holiday Inn last night.

  2. EG February 11, 2011 5:04 pm

    Michel’s comments are spot on. The primary issues, which the current version of so-called “patent law reform” doesn’t address, is the PTO initial examination system. Until you address that, including funding, staffing, training and upgrading IT systems at the PTO, the rest is essentially meaningless.

  3. Blind Dogma February 11, 2011 6:18 pm

    I hate to be a cynic, EG, but your comment of “the rest is essentially meaningless” simply is not true.

    Year after year (after year after year) of special interests chasing the politicians means that a lot of money has changed hands – hardly meaningless for those with wads of cash.

  4. Stan E. Delo February 12, 2011 8:06 am

    EG-

    Right on the money indeed, and finally the voice of reason and extensive experience has been presented sans ANY ulterior motives. I can almost See some Congressional faces getting red from embarrassment at hearing the real truth of the situation, and realizing how much they Don’t Know about what they are trying to do and have tried to do in the past. Kudos to Chief judge Michel also for pointing out in no uncertain terms that the Subcommittee has essentially not considered the opinions of major players in crafting their “Patent Reform” bill. He was very polite it seems to me, in not directly saying that their reform efforts are mostly useless, and in fact would hinder things significantly, which might hopefully make them listen to the voice of sanity for once, instead of just big business with their hundreds of millions dedicated to lobbying for Their version of “Patent Reform”

    My sincerest thanks to Chief Judge Paul Michel for his efforts to help us all. There may perhaps be some hope for independent inventors after all, if we can escape the draconian devaluation of US patent rights that the S. 23 bill for instance, represents, as it is currently being contemplated.

    Thanks once again Gene-

    Stan~

  5. john white February 12, 2011 8:36 am

    It’s good to see that the Judge has been reading my views about patent reform and the current state of the PTO, and agrees. Smart guy. I’d like to buy him a beer sometime and chat. The patent system matters too much to be left to myopic lobbyist pursuits. The system should be addressed, if at all, in its entirety. My view, as it has been, is make the system we have work better. Statutory adjustment is fool’s gold.

  6. Stan E. Delo February 12, 2011 10:23 am

    Fool’s Gold is just Pyrite, which tarnishes very quickly unless it is kept dry. In the real world though, Pyrite won’t get the job done in most cases, even if it looks attractive for a little while. Real gold on the other hand will last for thousands of years, and is not susceptible to drive by transient lobbyists deciding what the current price of gold should be. They would like it to be very cheap of course, but there are others that might disagree with them.

    Stan~

  7. Ron Hilton February 12, 2011 4:23 pm

    Where did all the angst go regarding trolls, vampires, obviousness, evidentiary standards, software, DNA etc? Of course fully funding the USPTO and modernizing its IT is an important first step. But it will take more than that to fix what ails the patent system and make it more adaptable to the ever accelerating pace of technological change. IMHO.

  8. Stan E. Delo February 12, 2011 4:48 pm

    Hi Ron,
    I think the troll thing went away when the software/IT folks walked away from the Patent Reform act of 2010 because they couldn’t get the damages relief that they wanted and had paid so much to try to achieve. They still seem to be a bit miffed about what they Didn’t get for their $200,000,000 investment in lobbying for Their version of Patent Reform in the last few years. Well boo hoo and so sad for them, but others might take a somewhat different view of their version of Patent Reform. The large IT firms are *outsourcing* enough these days that it seems a bit silly of them to worry their little heads too much about what happens to US patent law. Why do they need to subvert the value of US patents if they are using Chinese and Indian subcontractors? Maybe because they value the granting of a US patent? Only the Shadow really knows, and just a guess on my part.

    Stan~

  9. Horst H. von Brand February 12, 2011 8:18 pm

    Some good points, some really strange, some clearly fiction.

    Yes, patents need a lot more research before being granted. 20 hours isn’t even a joke for something moderately complex. Yes, startups must be heard, but please also consider what happens before it becomes a startup. Please look at the practical impossibility of searching hundreds of thousands of patents (and applications) to check if the idea I came up with has been patented before.

    I just fail to see how a patent, once granted, translates automatically into new jobs. Sure, it is an “asset” that adds “value” in some half-tangible way, but I’d posit that the value of something like IBM doesn’t lie in its patents, but in its know-how (and people),

    That people overseas just sit at screens and read over US patent applications to “steal” them is completely absurd. Sure, there might be some doing so, but just reading patents won’t get you know-how required to use the idea by magic.

  10. Ron Hilton February 12, 2011 11:39 pm

    BTW, I’m no big fan of recent patent reform efforts in Congress. Michel is right on in his assessment in that regard, and in his call to include input from the entreprenuerial community (as opposed to other’s interpretation of the views of the entreprenuerial community).

  11. step back February 13, 2011 6:47 am

    Arguing about the USPTO funding and letters of law scrivened as blank ink on imported paper is a fool’s errand when the invention wagon train has already pulled out of Dodge:

    When Factories Vanish, So Can Innovators
    NYTimes link: http://www.nytimes.com/2011/02/13/business/13every.html?ref=global-home

  12. step back February 13, 2011 1:33 pm

    Here is some telling “testimony” from a less honorary figure and at another site re the New York Times story pointed out here at comment #11. Judge Michel may have his gaze up in the stars. However we (and Congress) need to pay heed to those with their boots in the trenches:

    “It is already too late……­.I have spent my entire career in consumer goods manufactur­ing. I have seen three industries­, not businesses­, industries­, move off shore. While I still own and operate a pattern making business it has become quite obvious that the knowledge base and skill sets are gone. Young project managers do not even know the questions they should be asking to get a project off the ground. Why? Because they know little about materials and manufactur­ing processes. Why? Because they no longer see anything made. Their jobs have become little more than administer­s who send drawings to Asia and they let the Chinese “figure it out’. When they get back, what they get back from the Chinese it becomes the “state of the art” because they do not know the difference­. When we tell them that a product design will not “draft”, they might suggest opening up a window or door, or we get the “Chinese will figure it out”, they are clueless.

    source: http://www.huffingtonpost.com/social/sonoffestus/us-manufacturing-decline-_n_822546_77216214.html

  13. Blind Dogma February 13, 2011 3:35 pm

    Sad but true, Step.

    One reason why I am now in law is because I refused to relocate overseas ( a minor – but painfully true reason, though).

    And while industries’ loss is law’s gain, the royal we (our Congressmen and Senators) need to actually listen to the ground folk (and as directly opposed to the corporate folk). The corporate folk too close to the top know that no matter what United Citizen may have implied, corporations are not citizens of this country.

  14. The Mad Hatter February 13, 2011 8:01 pm

    Hopefully law makers will hear from this group that has been nearly shockingly shut out of discussions on how to reform the patent laws and patent system.

    My cynical side says that the chance of this happening is slim and none.

    That said, 20 hours isn’t sufficient to evaluate even the simplest patent application, which is why so many ridiculous patents get through the system. I don’t know what amount of time is actually needed, however I suspect that giving examiners the extra time would save the court system a huge amount of money and time, and would be less expensive in the long term.

    But there are people who are making money out of the current system, because it’s too difficult to defend against junk patents, and who will fight any reform.

    Wayne aka The Mad Hatter

  15. Blind Dogma February 13, 2011 9:38 pm

    Two diametrically opposed comments to your post, Wayne.

    First, sure coming in cold twenty hours would serve no one well. But you have a basic flaw in this thinking: examiners are supposed to be the experts in their particular art field. They are supposed to be both subject matter and search experts. That is their job. That is what they are paid to be. Notwithstanding the commonly heard acrimony, I have found a majority to be capable professionals. I have found it odd, though that if the time limits are not enough, why do we not have the examiner union championing times that would be appropriate? Granted, I am not an examiner and I am not privy to the workings of the union, but if an examiner cannot do a proper job in the time given we have several problems (and I would include Office management as part of the problem if they are not only accepting inferior work due to time limitations, but are guily of pushing inferior work in order to have the examiners meet time limitations – in truth it is the American public (and yes that includes the inventors) are the ones being ripped off. As we have seen, shoddy short cuts in examination cut both ways – patents are issued that should not be, and applications are rejected (and painfully slowed in process – or both) that should not be.

    Second, the trade off between the costs incurred by the courts and the costs incurred by the Office should be properly compared. You seem to think that the court venue (so to speak) is the more expensive one. It is not. So your second premise is equally as flawed. I do not have the actual numbers in front of me, but there have been a number of studies showing that the very small fraction of patents that are actually litigated pale in cost to the Office examination structure – and that is even with the million plus backlog of applications needing examination! While not a believer myself, there is serious consideration that must be given a pure registration system if (and it is a mighty big if) you are to let cost and timing drive the system.

  16. The Mad Hatter February 14, 2011 1:57 am

    Blind Dogma,

    You missed one point, which I may have not been clear enough on, and that’s the ‘Speculative Invoicing Scam’ where a patent holder picks a bunch of targets, and sends off a threatening letter, with the aim of getting a payment without having to prove anything in court. I know of a couple of cases where the company that got the letter decided to ignore it, and nothing happened, and I know of a couple of cases where the company figured that $20,000.00 was a reasonable amount to pay not to have to show up in court.

    So you have to include those costs too. Now it’s quite possible that I totally misread the patents I was shown, but they looked like junk to me, and I’ve read a hell of a lot of patents.

    As to court costs, when you add to the actual costs of running the court, the legal fees of the litigants, and the other costs (discovery, etc.), the amounts get pretty large.

    Wayne aka The Mad Hatter

  17. Blind Dogma February 14, 2011 8:58 am

    Wayne,

    The basis that you speak of – the “Speculative Invoicing Scam” would be around no matter what. In fact, just last week I circulated a notice from the EP concerning a rather large list of organizations sending out true scam requests.

    There will always be the P.T. Barnum targets.

    I have not excluded those costs – but they are comparatively minor. As to the court costs – including all of the aspects of them – those too have not been excluded. I am not sure that you recognize that the “pretty large” is not pretty large in comparison to the full (as existing) examination costs, and would pale further if actual rigorous examination would be undertaken. As it is, the system attempts to balance the cost picture regarding the degree of examination and reasonable people can disagree on that balance point.

  18. Blind Dogma February 14, 2011 10:21 pm

    Wayne,

    For your viewing pleasure, I am repeating a comment here from another of Gene’s threads that addresses the relative “pretty large” notion. Enjoy.

    Gene,

    The lie about “exploding litigation” is even worse than you think. Far worse.

    Taking a very rough approximation from the data presented above, the proper ratio to consider is litigations commenced against cumulative, and thus enforcable, number of patents existing. The actual number for cumulative is a bit tricky (and may alter the final ratios slightly), but the actual ratio of litigations commenced per live patent DROPS from 0.18 % in 1980 to 0.11 % in 2008 (based on using 1975 as a pure baseline and computing the ratio for the data in common years shown).

    A couple of points:

    The percentage is indeed less than 1 % – currently an order of magnitude less. This speaks volumes about the relative costs between court costs and Office costs (with an annual budget in the billions with a B).

    The drop is not perfectly steady – but the trendline nearly is.

    Litigation as a percentage of live patents is excessively small and has dropped around 40% in the last 28 years.

  19. Copyright Attorney February 15, 2011 12:32 am

    Here is a similar story

    Simon began his testimony by reciting how far things have come in patent reform thanks to recent court decisions. No longer do companies like Intel have to fear easily obtained injunctions, invalidating bad patents for obviousness is easier, the standard for willful infringement is now more than mere knowledge of a patent, and inconvenient fora for infringement suits are no longer the rule. He also noted that damage awards are becoming more difficult to prove, especially for non-practicing entities.

  20. The Mad Hatter February 15, 2011 6:14 am

    I have not excluded those costs – but they are comparatively minor. As to the court costs – including all of the aspects of them – those too have not been excluded. I am not sure that you recognize that the “pretty large” is not pretty large in comparison to the full (as existing) examination costs, and would pale further if actual rigorous examination would be undertaken. As it is, the system attempts to balance the cost picture regarding the degree of examination and reasonable people can disagree on that balance point.

    I wasn’t aware that anyone had done any in depth studies on this. For that matter I have doubts about how you could do an accurate in depth study.

    And I don’t think I mentioned ‘exploding litigation’, I did however mentioned litigation using bad patents, i.e. patents that I have read myself, which were for things that I was able to research, and determine that the technology in question had been in use before the patent was applied for, in some cases by a tremendous amount of time (20+ years).

    The problems with studies, is that the person and/or group responsible can manipulate the results by a careful choice of the questions that the study asks. And I’ve seen some beauties there. Asking the right or wrong questions is critical to getting the legislation you want, which is why I’m so cynical about industry studies.

    Wayne aka The Mad Hatter

  21. Blind Dogma February 15, 2011 7:51 am

    The problems with studies, is that the person and/or group responsible can manipulate the results by a careful choice of the questions that the study asks

    Then you should love the Judge Michel advocacy piece wherein he establishes his neutrality and his views align with those that I have expressed.

    The problem you are going to have with being so cynical is that you will only trust your own limited view. You will apply a filter on all information and only that information that reinforces your personal view will be given any credence. You will blind yourself – perhaps knowingly and perhaps unknowingly. Never the less, the stain will be on your lips.

    Stan – are you working on the flavor of cyanide cynicism?

  22. Stan E. Delo February 15, 2011 3:07 pm

    BD-
    Actually I have already been working on a new Bitter Almond flavor of Kool-Aid, but it should have nearly the same effect as Cynical Cyanide for the most part. The Bitter Almond is based on metallic compounds, where I think the CC flavor would have an organic compound basis if I recall it correctly.

    Stan~

  23. The Mad Hatter February 15, 2011 6:55 pm

    Blind Dogma,

    Actually I trust those that have proven themselves. Gene for instance. We may disagree on issues, but I’d trust his answers to be the best answers he can give based on his knowledge.

    Which doesn’t mean I’ll agree with him 🙂

    Wayne

  24. Stan E. Delo February 15, 2011 7:44 pm

    Hi Wayne,

    So just for grins, let’s look at your posit, and perhaps view it in an ostensibly *objective* manner. Gene has been successfully practicing patent law for perhaps 20 years as just a wild guess, and I would venture a guess that he has never even come close to unethical behavior, so it would seem to me as if he knows quite a Lot more than either you or I will probably ever know in our lifetimes, unless we were to study sufficiently such that we were able to pass the Bar exam to be able to practice law before the USPTO. I would like to point out that it is NOT easy to pass said exam, and generally requires about 6 years of very intensive study to get to where he is, but perhaps Canadian attorneys are not held to such a high standard. Becoming a licensed Patent Attorney here in the US at least is at least as complicated as becoming a bona-fide Medical Doctor, but in actuality it is much more complicated in several different manners. MD’s have it pretty easy in comparison, as they only have to uphold the Hippocratic Oath to *First do no harm*, where patent attorneys are held to an arguably much higher standard of ethics or they can be disbarred and lose their livliehood by doing something as simple as revealing details of an invention that they have been entrusted to evaluate and provide a patentability opinion on said invention. My Doctor Kaminski, for instance, would not have his ticket pulled in most cases unless he let me die due to gross negligence and a lack of due care and caution in most cases. He would of course avoid that eventuality at all costs, because he happened to like me rather a lot it seems, but I was just a very young kid at the time, and I didn’t have a clue about all that at the time of course, but he saw beyond all of that into my possible future.

    Stan~.

  25. The Mad Hatter February 15, 2011 7:59 pm

    Stan,

    While I don’t question Gene’s legal skills, I do question his opinions. Like everyone, he reflects his back ground. His back ground includes all of that legal training, in which a belief on the benefits of Patents was a major part. Therefore Gene tends to be biased towards patents.

    I come from a different background, having spent a lot of time in the manufacturing industry. I’ve read a lot of patents, using my skills and knowledge of the technologies involved. This gives me a different insight. When I see a patent which covers a technology that I knew was already in commerce years before the patent was filed for, I am less than impressed.

    I know a lot of people who think software patents are the problem. They are wrong. Software patents are just a symptom of a patent system that doesn’t work. The obvious for which prior art exists all too often is allowed to be patented. Since software engineers typically aren’t trained in hardware, they don’t know about the problems that exist on the hardware side. Since I worked in hardware, I’m more aware of them.

    And there are some serious problems with the patent system. If there weren’t, we wouldn’t see so many patents failing in court.

    Wayne

  26. Stan E. Delo February 15, 2011 8:26 pm

    Wayne,
    I am afraid I can’t agree with your premise of so many patents failing in court, because as I have said before, less than 2% of patents are ever threatened to be litigated, and of those, more than half of them are settled out of/before court proceedings so the total of all litigated patents is less than 1% in the aggregate. Hardly a huge problem in my opinion, and usually a *problem* instigated by large corporations that would like to roll over smaller entities that are innovative and that might possibly cause problems for the BigCorp guys that would like to keep independents from challanging their market share in Any manner at all. How sad that they need to kill inventors that might only get into their *Profit Margin* by less than 2%. That is why I am starting to detest big IT companies like MS for instance, because they are so willing to KILL innovation just so that they can get an extra 2% of profit margin, when they are already so obscenely profitable. It doesn’t seem to be fair to me, and they are being the worst possible type of bullies imaginable. (Can you spell Anti-Trust?) The EU folks spanked them for about $300,000,000 or the Euro equivalent, but boo hoo because they couldn’t *appeal* it effectively.

    Stan~

    Stan~

  27. The Mad Hatter February 15, 2011 9:05 pm

    Stan,

    Ignore the other cases – think only of the cases that reached a court room, and where the patent was found to not be legitimate.

    Wayne

  28. Stan E. Delo February 15, 2011 9:29 pm

    Wayne-

    If you were to send off even a very tentative *cease and desist* type of notice to *potential* infringers, any competent legal counsel would IMMEDIATLY file a writ to obtain a Declaratory Judgement in the matter, which would effectively tie even a granted patent up for at least 2 years in most cases. Meanwhile opposing counsel would have 2 years to try to invalidate said Granted US patent by searching far and wide to try to find Any possible prior art. Is that what you would really desire? I happen to think the granting of a US patent would have hopefully answered that particular issue, but in your generosity you would apparrently like to rescind my patent rights. Why you would insist upon that point of order is somewhat of a mystery to me. You are not a US citizen as far as I am aware, so why are you so eager to give MY patent rights away? Could it perhaps be because you are not especially innovative, and you hate the fact that others might be? I have seen this tendency before, and I am not able to understand that type of mentality. It should be a happy thing, instead of a contentious issue that you happen to like to detract from. It is not easy, and very expensive of time, but I would have it no other way at the end of the day.

    Stan~

  29. Blind Dogma February 15, 2011 11:46 pm

    Ignore the other cases – think only of the cases that reached a court room, and where the patent was found to not be legitimate.

    My, that’s a mighty big Gulp there Wayne. Ignore 99.9% of what is out there because it doesn’t fall into what I believe.

    Stan, do we have brew in the works that features puppy dog tails?

  30. Stan E. Delo February 16, 2011 12:20 am

    Not yet, but I am working on a Dragon-Fly concept that seems to be showing a bit of promise. It tends to flit about here and there, but seems to mostly be on the beam for the most part. The best part seems to be the colours, which are very mercurial and indefinate. Much like Octopi, which are able to change their colours at will, to avoid getting eaten I would suppose. Perhaps a bit like B and others who would like to to strip me of my patent rights just because they think they might be able to. Not gonna happen Bobby and IANAE, no nmatter What you say or do. Why don’t you both go invent something of your own?

    Stan~

  31. IANAE February 16, 2011 2:55 pm

    Not gonna happen Bobby and IANAE, no nmatter What you say or do.

    Why do you think I have any objection at all to you securing a valid and enforceable patent for your invention? Is it the whole Nijel the Destroyer (son of Harebut the Provision Merchant) thing?

    I like patents. I support the patent system. I make my living getting patents for people, so it would be pretty silly of me to not want people to get them or consider them valuable.

    Okay, so I don’t think everybody who files a patent application should get a patent. So what? I support the criminal law system too, but that doesn’t mean I want to throw every defendant in jail. Both systems are fundamentally about the balance between a few people who deserve a very targeted government action and a great many people who don’t want that government action interfering with the freedom they’ve come to expect. A better balance means a better system for everybody, and more meaningful rights for the people who get them.

    Don’t buy into the right-wing “love it or leave it” rhetoric that identifying any slight imperfection or potential improvement in an otherwise good system means wanting to destroy that system. You invented an improvement to something or other, didn’t you? Do you hate that thing and want to destroy it, or do you care about it and want to make it work better?

  32. Stan E. Delo February 16, 2011 3:40 pm

    IANAE-
    Of course I want it to be a stronger patent, or otherwise why would I even be here? For any ostensibly granted patent though, why would I want it to become nearly instantly less valuable because MS desires it to be so by using obscene amounts of funding to try to change the inherent *perceived* value of US patents for the foreseeable future? It seems very short sighted and greedy to me, but perhaps I might be missing something here? I think not, as I have watched very intently from close range while MS went from being an innovative company, and then somehow they got lost in their corporate bottom line, to the point where we happen to be at now, wherein MS would very much like to REDUCE the value of ALL US patents, just so that they can improve their profit margin by 1 or 2 percent? It seems insane to me, as they don’t seem to care about innovation any more at ALL, but just want MORE MONEY. What ever happened to the concept of making things better for the human condition, as opposed to corporate greed? They are clearly trying to stomp inventors into the ground if at all possible, so that they can get MORE MONEY and totally avoid any embarrassing legitimate claims of patent infringement.

    Stan~

  33. IANAE February 16, 2011 4:40 pm

    Of course I want it to be a stronger patent, or otherwise why would I even be here?

    It seems very short sighted and greedy to me, but perhaps I might be missing something here?

    I think you are missing something here. Mostly, you’re missing that both sides are being greedy. One side wants stronger patents, one side wants weaker patents.

    Another thing you’re missing, though mostly it’s because everyone is trying to distract you with paranoia, is that not every patent is going to instantly become worthless just because the standard of proof is lowered. There are a lot of patents that could never be invalidated even on a balance of probabilities standard, because there simply isn’t any close art, or all the art out there is cumulative to what has already been considered in prosecution. Those patents will have just as much value as ever. They might even have more value, if your potential investor recognizes them as such and prefers them over the weaker patents with really close art that are more likely to be invalidated – something he should have been doing all along, if he makes it his business to invest in patents.

    It’s the patents with really close art that need to be worried. If people have been investing in patents without checking whether they have close art because they were relying on the standard of proof, that’s their own problem. Sure, this case is about Microsoft trying to invalidate a patent because Microsoft was sued (something any reasonable defendant would try), but the broader principle is about making sure the valid patents are enforced and the invalid ones are invalidated. Frankly, I don’t think Microsoft would win this case even at a lower standard of proof, which should give you some indication of how “worthless” patents would become.

    Imagine if it suddenly came to light that there were some houses built with inferior quality wood, and those houses were in danger of collapse. Would it drastically reduce the value of all houses in the country? Sure, for a day or so. After that, all home buyers would make it part of the inspection to check whether the wood was okay, and the good ones would still command the same fair price they did before. Maybe more, taking into account the reduced supply. Patents are the same way. You can check what art is out there, and you can get legal advice as to your chances in court for much cheaper than litigation costs. Intelligent people will simply select for the good ones, and leave the bad ones for trolls who don’t care whether they’re valid.

    What ever happened to the concept of making things better for the human condition, as opposed to corporate greed?

    If there were ever a general sentiment of making things better for the human condition without any sense of greed, we wouldn’t need a patent system in the first place. The patent system exists so that people who invent things can use their inventions to make money, because otherwise they wouldn’t bother. I’m paraphrasing, but that’s pretty much what the Constitution says.

    Greed is a funny thing, though. It works both ways. Just like freedom. Yours and someone else’s are always in balance, and the human condition is better when that balance is struck just right.

  34. The Mad Hatter February 16, 2011 6:07 pm

    I think everyone is missing a lot of things, mostly because they are so tied into their own viewpoints. I have no objections to patents per se – I have objections to patents that are issued in improperly, and based on the patents I’ve read, 9 out of 10 patents may not meet the patent offices rules.

  35. Stan E. Delo February 16, 2011 6:36 pm

    Hi Wayne-
    So why are only 2% of all patents ever threatened to be litigated? I say threatened, because about 2/3rds of the litigation queries are settled out of court because the litigants were probably just testing the waters a bit before they decided to dive into the waters of litigation. Usually Everyone loses during litigation, especially because the recent practice of Not allowing the winning party to be able to recoup their litigation expenses has mostly been rescinded at least here in the US as far as I am aware of. In criminal law cases this is usually the case, so why is it dis-allowed in patent interference cases? It makes no sense to me at all that MS can challenge a patent and just walk away if they lose their case and not be responsible for the millions that the plaintiff has had to pay for defending their apparently valid patent?

    Stan~

  36. IANAE February 17, 2011 9:36 am

    So why are only 2% of all patents ever threatened to be litigated?

    2% sounds like a lot.

    You can’t credibly threaten litigation until you find an infringer. Most patents don’t have them, and most infringers don’t exactly go looking for attention from the patentee.

    It makes no sense to me at all that MS can challenge a patent and just walk away if they lose their case and not be responsible for the millions that the plaintiff has had to pay for defending their apparently valid patent?

    Good news, they can’t challenge a patent until you threaten to sue them on it (for appropriate values of “threaten” and “sue”). It’s not like they can choose random seven-digit numbers and sue the ones that come up, even if they thought that was a good business use of their money, which it isn’t. i4i is an infringement case, and when MS walks away from it they’ll be walking funny.

  37. Stan E. Delo February 17, 2011 7:25 pm

    IANAE-

    So just out of curiousity, have you ever considered what would happen if I sent a cease and desist type of notice to parties that I thought might be infringinging my Granted patent?

    Stan`

  38. Anon February 18, 2011 7:59 am

    The patent system exists so that people who invent things can use their inventions to make money, because otherwise they wouldn’t bother. I’m paraphrasing, but that’s pretty much what the Constitution says.

    You are paraphrasing incorrectly. The Constitution says only to reward with the power of exclusion. What the individual inventor does with that power is left to the individual. There is no such Constitutional existential directive to make money or to do anything except exclude others.

    This type of reading into, or paraphrasing, the Constitution is the source of twisting the Constitution to support belief systems that should not be supported. For example, this type of reading makes it fine to take back the grant of a patent if the patentee decides for himself to only hold the patent and – in the very basic right – simply exclude everyone. When you try to “paraphrase” the Constitution and end up with a result of the basic right being nullified, it is a good sign that your paraphrase is wrong.

  39. The Mad Hatter February 18, 2011 8:41 am

    So why are only 2% of all patents ever threatened to be litigated? I say threatened, because about 2/3rds of the litigation queries are settled out of court because the litigants were probably just testing the waters a bit before they decided to dive into the waters of litigation.

    Assuming that my numbers are right, and 9/10ths of patents aren’t enforceable in court, most patent holders are going to avoid court, aren’t they?

    Wayne

  40. The Mad Hatter February 18, 2011 8:51 am

    Here’s an example of bad patents from Oracle v. Google. I’ve read these patents, and quite frankly they are a joke.

    Wayne

  41. The Mad Hatter February 18, 2011 9:09 am

    So why are only 2% of all patents ever threatened to be litigated?

    I don’t know. You’re the expert, you tell me.

    Wayne

  42. Blind Dogma February 18, 2011 10:03 am

    Assuming that my numbers are right, and 9/10ths of patents aren’t enforceable in court

    That is truly a mad assumption. There is ZERO basis for this.

  43. IANAE February 18, 2011 10:08 am

    So just out of curiousity, have you ever considered what would happen if I sent a cease and desist type of notice to parties that I thought might be infringinging my Granted patent?

    Yes. And it’s a serious problem for patentees that needs to be addressed, but it’s a whole different problem.

    There is no such Constitutional existential directive to make money or to do anything except exclude others.

    Well, no. Making money is always optional. When you give people the ability to make money within the context of a free capitalist society, it’s more or less understood that they will use it to make money. It’s what’s known as an “incentive”. For “promoting” desired behavior.

    It still works that way, in case you haven’t noticed. Companies generally don’t spend money to get patents unless they have some chance of ultimately recouping their investment, and individuals seem not to want patents that businesspeople with money aren’t willing to invest in.

    Why else would you exclude others from making or selling an article of commerce that you went to the trouble of inventing and telling them about, if not to make money by being the only one who can do it? Spite?

  44. Blind Dogma February 18, 2011 11:14 am

    Well, no. Making money is always optional. When you give people the ability to make money within the context of a free capitalist society, it’s more or less understood that they will use it to make money. It’s what’s known as an “incentive”. For “promoting” desired behavior.

    You are confusing the choice of the inventor with the Constitutional existential directive. You do have a habit of speaking too much for the inventor, apriori deciding for him, that which is for him to decide – not you.

    Why else would you exclude others

    I don’t know and I don’t care – it is not up to me to decide. Likewise – it is not up to you to decide.

    Your paraphrasing is wrong. It is as simple as that.

  45. IANAE February 18, 2011 11:39 am

    You are confusing the choice of the inventor with the Constitutional existential directive.

    What constitutional existential directive? The one that says Congress has the option to grant patents? The one that says inventors are entitled to patents? The one that says patents should grant an exclusive right?

    As far as I know, under this proposal, Congress will continue to grant exclusive patent rights to any inventor who applies for them and whose claims are directed to an invention. Have you heard different?

    I don’t know and I don’t care – it is not up to me to decide. Likewise – it is not up to you to decide.

    I don’t know, but I do care. And it’s up to all of us to decide, to the extent we can influence law and policy in this democracy we have to live in. Patents are supposed to promote the progress of the useful arts. If we’re granting rights that don’t promote the progress of the useful arts, have we not violated some sort of constitutional existential directive? Don’t we all have an interest as members of society to correct those rights?

    If you can give me even one plausible reason why anybody would invent something previously unknown just to make sure nobody else, including himself, would lawfully use it, I’m all ears. If your entire argument is “I have a right, so I’m allowed to be a jerk about it”, I would consider that a compelling argument to re-think that right. Our rights exist to make our collective lives better, and that’s how they should be tailored and enforced wherever possible. I enjoy my rights very much, but I still have to live with everybody else’s.

  46. Blind Dogma February 18, 2011 12:58 pm

    What constitutional existential directive?

    A fine time to feign ignorance. Nice of you to throw up the smokescreen and not answer the rather direct question. You have a habit of doing so when it comes to the point that the inventor is the one who has the right to choose to do with his property and your choice for him has no proper bearing in any discussion we may be having.

    This tactic is vintage IANAE.

    Our rights exist to make our collective lives better” – Sorry Comrade, this only happens after the granted term of exclusivity runs its course. Until then, and excuse the venacular – get the fuck off of my property.

    And in more polite terms – a glaring ommission of your policy is that even given the absolute denial of anybody to legally and properly use the right of exclusion to the fullest extent, there are several benefits already accrueing to society – the benefit of reading my invention, and thus being able to use it as a stepping stone or as a driver to invetn an alternate path. Let’s stop pretending that a purely legal and absolute exclusion somehow is anethma to society and somehow must be stmpped out. This type of “paraphrasing” is equally dead wrong.

  47. Blind Dogma February 18, 2011 12:59 pm

    What constitutional existential directive?

    A fine time to feign ignorance. Nice of you to throw up the smokescreen and not answer the rather direct question. You have a habit of doing so when it comes to the point that the inventor is the one who has the right to choose to do with his property and your choice for him has no proper bearing in any discussion we may be having.

    This tactic is vintage IANAE.

    Our rights exist to make our collective lives better” – Sorry Comrade, this only happens after the granted term of exclusivity runs its course. Until then, and excuse the venacular – get the f_ck off of my property.

    And in more polite terms – a glaring ommission of your policy is that even given the absolute denial of anybody to legally and properly use the right of exclusion to the fullest extent, there are several benefits already accrueing to society – the benefit of reading my invention, and thus being able to use it as a stepping stone or as a driver to invetn an alternate path. Let’s stop pretending that a purely legal and absolute exclusion somehow is anethma to society and somehow must be stmpped out. This type of “paraphrasing” is equally dead wrong.

  48. Stan E. Delo February 18, 2011 2:00 pm

    Gene-

    I think my last comment got stuck in the spam filter for some reason, and there will be a duplicate comment.

    Stan~

  49. IANAE February 18, 2011 2:07 pm

    Nice of you to throw up the smokescreen and not answer the rather direct question.

    Tell me what you’re talking about, and I’ll be happy to answer the question. I’m in no mood to explain the entire Constitution to you.

    the absolute denial of anybody to legally and properly use the right of exclusion to the fullest extent,

    There is no inherent entitlement to use any right “to the fullest extent”. In non-patent property cases, it’s quite common to refuse the property owner’s request for a remedy that is arbitrary or would inconvenience the defendant far more than it would benefit the property owner. It’s all in there under the equitable test for injunction.

    What is the balance of hardships between a plaintiff who wants an injunction for no tangible benefit to himself, and a defendant who wants to continue operating a business to which he’s already committed money and resources? The defendant will always win that one.

    Let’s stop pretending that a purely legal and absolute exclusion somehow is anethma to society and somehow must be stmpped out.

    Tell it to Title 35, the Supreme Court, and every law school in the country. They all seem to think there’s still a test for an injunction. You’re the one living apart from reality, and apparently looking to make the divorce final.

  50. Stan E. Delo February 18, 2011 2:13 pm

    BD-

    Very well said, and I find it a bit puzzling why some have such a hard time understanding such a basic concept, or maybe just ignoring it because it isn’t convenient for them or their agenda.

    To further the analogy in a real estate example, If I have a clear title to the land I live on and that I have invested significant amounts of time and expense in developing, the Constitution very clearly says that I am Legally entitled to tell unwanted visitors to leave My home and property, and goes even further to give me a specific Legal means to defend my property directly if things get ugly. If the interloper wants to take my property rights, they will have to prove their case in a court of Law by voiding or invalidating the title to the property, instead of deciding to just camp in my front yard against my wishes. Pretty simple really, and it seems only reasonable from my perspective. Socialism has very famously failed historically many times in the past, so why should we think it might succeed in the case of IP rights? Like Gravity, it’s not just a good idea, it’s the Law!

    Stan~

  51. Blind Dogma February 18, 2011 2:47 pm

    Tell it to Title 35, the Supreme Court, and every law school in the country. They all seem to think there’s still a test for an injunction. You’re the one living apart from reality, and apparently looking to make the divorce final.

    Except this has nothing to do with an individual practicing the exact nature of a patent right.

    Likewise, your strawman answer of a non-patent property case. We are not talking about non-patent property cases, are we? This is patent law. We are dealing with patents. We are dealing with the very nature of what a patent right means.

    It doesn’t matter if you are in a mood to explain the entire Constitution to me. I will settle for you explaining just what it is about a patent right that negates the right to exclude.

    Let’s start there.

  52. The Mad Hatter February 18, 2011 2:57 pm

    “Assuming that my numbers are right, and 9/10ths of patents aren’t enforceable in court”

    That is truly a mad assumption. There is ZERO basis for this.

    It’s not an assumption. It’s based on a huge number of patents that I had to read in my last job. Out of several thousand patents, 9 out of 10 should not have been issued according to the patent office’s own rules. Take for example The Cat Genie which has a patent date of 2005, however the invention was first mentioned in writing in 1957 (that’s the first date I know of, there may have been an earlier mention).

    The U.S.P.T.O. is incapable of catching things like this, due to the limits being placed on it.

    Wayne aka The Mad Hatter

  53. IANAE February 18, 2011 3:11 pm

    To further the analogy in a real estate example, If I have a clear title to the land I live on and that I have invested significant amounts of time and expense in developing, the Constitution very clearly says that I am Legally entitled to tell unwanted visitors to leave My home and property, and goes even further to give me a specific Legal means to defend my property directly if things get ugly.

    I’m sure BD will point this out to you, because he’s a real stickler for not bringing up non-patent property issues, but the law of real property doesn’t exactly apply to other property cases. Even tangible personal property has completely different laws from real property. For example, if someone steps on your land you can get an injunction. If someone steps on your hamster, you won’t get an injunction but you can force him to buy what remains of your hamster. Good luck forcing a trespasser to buy your house.

    The common law has a special place in its heart for real property, and it always has. That’s why the “irreparable harm” aspect in a trespass to land case is swept under the rug with a nod and a wink, and you always get an injunction. Land is sacred. Chattel is less so. Statutory rights are worth no more than precisely what the statute provides, which in the case of patents is an injunction in accordance with the principles of equity.

    Like Gravity, it’s not just a good idea, it’s the Law!

    If you manage to break that law, you won’t get an injunction. You’ll get a medal.

    I will settle for you explaining just what it is about a patent right that negates the right to exclude.

    It doesn’t negate the right to exclude. It is the right to exclude. Everybody knows that. It’s right there in the statute.

  54. Stan E. Delo February 18, 2011 4:22 pm

    Funny you should mention the use of injunctions, as a fairly recent court decision has essentially stripped inventors of the possibility of getting an injunction to get alleged infringers to stop the infringing behavior, until THEY have proven that they are either Not infringing, or they can manage to invalidate the claims in question. The way it is now, injunctions are very difficult and expensive to get, and if the inventor even so much as suggests that they might be infringing their Granted patent, the infringing party will Immediately seek a Declatory Judgment, which will effectively suspend the inventors patent rights until the INVENTOR proves that their Granted patent is not invalid and in substantive fact is being infringed., at very great expense of time and money for the inventor most times. So how is an injunction so Harsh for alleged infringers if they actually are infringing? If they aren’t I tend to think that They need to prove that they Are Not trespassing, instead of the property owner being required to prove that the Are trespassing. If the property owner doesn’t have that right, they have very little indeed to show for all their effort and expense to acquire the property in the first place.

    If another party IS actually infringing the inventors patent, they will be able to effectively suspend the inventors patent rights for probably a year or maybe much longer, just by getting a fairly inexpensive DJ in the venue of Their choice.

    Stan~

  55. IANAE February 18, 2011 4:49 pm

    The way it is now, injunctions are very difficult and expensive to get,

    It’s really not as bad as all that. Even post-eBay, most successful plaintiffs who asked for injunctions have gotten them. All you have to do is show that you were doing something with your patent, and that now you can’t do as much of it. Pretty straightforward, if that’s what you’re doing.

    and if the inventor even so much as suggests that they might be infringing their Granted patent, the infringing party will Immediately seek a Declatory Judgment, which will effectively suspend the inventors patent rights until the INVENTOR proves that their Granted patent is not invalid and in substantive fact is being infringed.

    Well, no. They still have to prove your patent is invalid, and they still need clear and convincing evidence. It’s pretty much the same process you’d go through if you wanted to sue them for infringement, so you might as well get on with it because they’re clearly in no mood to negotiate a license with you. It also wouldn’t “suspend” your rights, because you could still apply for an interlocutory injunction and you’d still be entitled to damages for acts of infringement during the course of the action, just the same as if you’d sued them for infringement.

    It’s definitely a problem, but not so much because it forces you into court. You’d have been forced into court anyway if you wanted them to pay for their infringement, because they never had any intention of paying you anything. It’s mostly a problem because it promotes an attitude of rushing to sue the other guy instead of sitting down and talking things over like civilized businesspeople, and it makes licensing expensive and therefore economically inefficient.

    Still, this shouldn’t come as a complete surprise to anybody. If you wanted someone off your land and they insisted on trespassing, you’d still have to take them to court. The very reason civil courts exist is because some people refuse to recognize their legal obligations, and we need a framework for forcing their hand. I’d love to see the system restructured to make litigation much more affordable, especially patent litigation undertaken by sole inventors or small companies, but litigation is inevitable when someone openly violates your rights (any rights, not just patents) and you’re not willing to take it lying down.

    If they aren’t I tend to think that They need to prove that they Are Not trespassing, instead of the property owner being required to prove that the Are trespassing.

    How would you feel if I hauled you into court and demanded you prove that you have not trespassed on my land?

    It’s always the plaintiff’s burden to prove liability. Always. That’s exactly how it should be.

  56. Stan E. Delo February 18, 2011 5:55 pm

    BD-

    Fortunately my new ScotchBroom flavour is coming along very well. A bit acerbic, but it tends to blend well with other flavours pretty readily.

    IANAE writes in small part;

    “How would you feel if I hauled you into court and demanded you prove that you have not trespassed on my land?

    It’s always the plaintiff’s burden to prove liability. Always. That’s exactly how it should be.”

  57. patent litigation February 22, 2011 1:45 am

    We in the patent community are fortunate to have Michel as an advocate for these issues. I particularly appreciate his urging of the new IP Subcommittee to pay more heed to start-ups, rather than continuing Congress’s inordinate focus on the needs of large corporations. Since some of our legislators are probably shareholders in some of those large corporations, however, I don’t know how likely they are to change their ways.
    http://www.youtube.com/watch?v=2OfoURsNBl8

  58. The Mad Hatter February 22, 2011 1:40 pm

    Ah, I see we have another cynic here. Note that user patent litigation links to the General Patent Corporation home page, and they make the claim that:

    We champion the cause of independent inventors and IP owners that are victims of patent infringement. Since 1987, we have helped inventors to effectively enforce and license their patents through artful negotiation and skillful litigation. In fact, General Patent has secured settlements for 100% of its clients!

    100% – interesting claim. Me being the cynic that I am, when I see a claim like that, I recommend that everyone avoid the person making the claim.

    Wayne

  59. Blind Dogma February 22, 2011 2:51 pm

    Wayne,

    “patent litigation” is a spam-bot that hits many of the major IP blogs with exactly the same message regardless of (or only in the smallest manner related to) the thread subject line.

    Indeed a mental auto-delete is called for when you see that name as the poster (I just skip over the contents anyway).

  60. Stan E. Delo February 22, 2011 3:12 pm

    Wayne-

    I would also add that GPC will probably not appreciate your allegations very much. They have been very successful in their practices over the several years that I have been observing them. But of course you will never need their services at all, so why does what they do matter to you at all?

    Stan~

  61. The Mad Hatter February 22, 2011 9:52 pm

    Blind Dogma and Stan,

    You wouldn’t be aware of the problems I’ve been having with spam bots recently. Spam bots, if left unchecked, can destroy a Word Press based site, by overloading the SQL engine. Because of them I’ve had to implement increasingly severe measures on my main site to prevent problems.

    And then there’s the ‘truth in advertising’ issue. In effect they are trying to use Gene’s blog to advertise, without appearing to advertise. I have nothing against advertising, but if you are advertising, be honest about it.

    My signature here does link to my blog, but I don’t talk about my blog here, because most of what I write (Canadian politics, ethics, copyright) doesn’t directly address issues that Gene is addressing here. When my blog does address patent issues, I often link to Gene, if he’s written something of interent, but I don’t mention the posts in comments here unless I have a reason. I don’t talk about my other sites here at all, because they have nothing at all to do with patents. One site is strictly about policing issues in Canada. Why would I mention it here?

    So from an ethical stand point, I object to their bot style posting. If they want to take part in the discussion, that would be different.

    And anyone who claims 100% success – well I find them less than believable.

    Wayne