PTO Deputy Michelle Lee Says the Patent System Needs Change

USPTO Deputy Director Michelle Lee

If there was a major message to take away from U.S. Patent and Trademark Office Deputy Director Michelle K. Lee’s speech at Stanford Law School on Friday, June 27, it was that the patent system needs change to properly address the needs of an ever-growing list of stakeholders in the patent process, including the general public. In response to questions after the event, Lee stressed that the USPTO wants to “keep all options on the table” and is looking for creative solutions to curtail patent litigation which the deputy director refers to as abusive, as well as other USPTO-related issues which need to be or are being addressed.

At the start of her speech, which was titled “Speaking Truth to Patents: The Case for a Better Patent System,” Deputy Director Lee was adamant about the importance of a strong, healthy patent system to support innovation in our own country. She cited patent-protected innovations as “well-known drivers of the nation’s economy.” As a result, many more people have an interest in our country’s patent system than ever before. Interest in patent law has grown tremendously over the past few decades, often in response to landmark U.S. Supreme Court rulings or Congressional legislation, such as the America Invents Act. Lee even cites end-users of off-the-shelf products who have received demand letters alleging patent infringement as a significant group of stakeholders in the patent system.

An open discourse between all of these parties, including inventors, lawyers, end-users, USPTO personnel and more is the best means of encouraging positive changes to the system. “In general, more conversation is a good thing, but an increasingly divisive tone is not,” Lee told the group assembled at Stanford Law School. Specifically, she speaks to a willingness among stakeholders to label others as ‘pro-patent’ or ‘anti-patent,’ and she even went so far as to say that it’s unclear what those labels mean.

Lee said that she considers herself to be neither for or against patents, but she explained to the crowd that she saw herself as “pro-patent system”:

“What do I mean by ‘pro-patent system’? It means that I believe that a strong patent system is essential to fostering the innovation that drives our economy. I recognize that our patent system is not something that exists in the state of nature, but is the result of policy decisions made by Congress and the Courts that weigh the costs of patent exclusivity against its benefits. We are constantly reexamining those policy decisions, to make sure the benefits continue to outweigh the costs.”

Lee argues that, currently, the benefits of maintaining our country’s patent system outweigh the costs, but the dialogue which needs to effect positive change requires a critical view of the role of patents in regards to innovation. In this respect, Lee is quick to point out that patents aren’t the only drivers of innovation. The first-mover advantage of bringing a product to market before others can be its own incentive to innovate, she said, and open source models are chosen by some organizations that develop technology. Copyrights, trademarks and trade secrets are other options through which innovation can be protected.

And yet, Lee says, the limited monopoly created by patent exclusivity provides a unique and crucial channel through which innovation can reach the marketplace. “Exclusivity protects the competitive position of a new entrant to the marketplace, which in turn attracts investment. And that plays an essential role in giving inventors and investors the confidence to take the necessary risks to launch products and start businesses,” Lee said at the conference. The patent system and the limited monopoly of patent exclusivity may result in higher costs for the end-users of inventions, but the increased ability of inventors to attract capital investments and take risks in the private market is a benefit which outweighs those costs, Lee argues.

 

Current Issues in the USPTO

When this patent exclusivity is abused by patent holders, this is when Lee feels that the costs of the patent system begin to outweigh the benefits. As she relates in her speech, “litigation is an inefficient way of conducting licensing negotiations.” Licensing and technology transfer systems are sometimes necessary to provide patent rights to those who can commercialize technologies, but the holding of patent rights for the express intent to extract settlements from others constitutes a harmful abuse of the patent system:

“I am, as I said, “pro-patent system.” That, to me, means putting the well-being of the patent system first. And if there is a bug in our system, I think it ought to be fixed. So when patent rights are used not to help bring new products to the market, but rather to extract “cost of litigation” settlements from companies and end users inexperienced in the ways of our patent system, the careful balance of costs and benefits underlying our patent system is threatened. In these circumstances, patents are not being used to “promote the progress of Science and useful Arts,” as intended by our Constitution and founding fathers, and it imposes the costs of a monopoly on society, without any greater benefits.”

Litigation springing from accusations of patent infringement constitute a huge public cost created by the patent system, and Lee cites economists who estimate that the total cost of these litigation activities reaches into the billions. It also casts a pall over the entire operations of the USPTO when the public is distracted from the benefits of the system by what Lee refers to as a “sideshow to innovation.” Although litigation happens in a healthy marketplace, abusive litigation turns the patent system into a tool for abuse.

Some readers may find it noteworthy that this discussion of abusive litigation did not involve much talk about Alice Corporation v. CLS Bank International; Lee’s speech only touched on the recent U.S. Supreme Court decision lightly, and she only generally discussed the need to follow Supreme Court guidelines on Alice v. CLS Bank as well as other cases. Preliminary guidance from the USPTO on the changes caused by that decision had just gone out that same day. It may also be noteworthy to readers that Lee refused to give a definition of what she saw as “abusive patent litigation” when asked during the Q&A session following her speech. Her simple response of, “No,” provoked loud peals of laughter from the crowd.

For Lee, it is crucial to maintain the integrity of the U.S. patent system. Finding effective solutions to problems posed by abusive litigation requires input from patent applicants, litigants, businesses, universities, industry leaders and the general public. “Not everyone may own patents, but we all are the intended beneficiaries of the system,” Lee said. There are actions that can be taken before and after a patent is issued, but the rights of legitimate patent holders should not be diminished. According to Lee, Congressional, judicial and executive channels for reform all pose ways of effecting positive changes to the patent system, and the greatest way that the patent office can work to curtail abusive litigation is by supporting the development of higher quality patents.

 

Developing Higher Quality Patents

Deputy Director Lee highlighted some actions which will be taken by the USPTO to encourage the issuance of higher quality patents in her speech. However, other efforts at reform can and should be taking place through multiple branches of government, she said.

“On the judicial front, Courts are making progress on important clarifications and developments in patent and patent litigation related case law,” Lee said. She noted that the Octane and Highmark cases argued before the U.S. Supreme Court have made it easier for district courts to award fees in patent litigation cases. The decision in Nautilis established a higher standard for patent claim quality. In her one comment on Alice Corporation v. CLS Bank International, Lee said the following:

“And, just a week ago today, the Supreme Court in Alice v. CLS Bank held that all claims in the patent at issue were ineligible under Section 101. While the ruling does not create a new bright line prohibition against certain categories of patents (such as business method patents or software), it likely lays the groundwork for more aggressive challenges to these types of patents as litigants test the boundaries of the CLS Bank ruling.”

Lee discussed a number of actions undertaken by President Obama and the executive branch which are aimed at patent reform. She cited legislation recommendations proffered by the White House in June 2013; among these are included requiring patent applicants to disclose the “real party-in-interest,” providing better legal protection for off-the-shelf consumers and curbing abusive lawsuits by incentivizing demand letter transparency. A series of executive orders directly issued by the President further increases the White House’s commitment to creating change in the patent system, many of which were closely aligned with the previously mentioned legislation recommendations. For our coverage of these June 2013 announcements please see Obama on Patent Trolls — Much Ado About Nothing.

The USPTO has been increasing its own ability to administer and support programming which is designed to improve the development of higher quality patents at various levels. Since the passage of the America Invents Act and the fee setting authority it gives the patent office, that office has been able to develop sustainable lines of funding, which Lee believes will enable the USPTO to engage in many useful projects. “For the first time in a long time the PTO doesn’t just have to make do, but can achieve our goal of building a world-class patent quality system,” she said. Without the same budgetary constraints, Lee indicated that the USPTO would be attempting some pilot projects aimed at improving various patent-related activities; for instance, she discussed a system by which veteran patent examiners who have performed very well could be used as coaches for junior examiners over the course of their careers, a move which is designed to increase patent quality across the board. The USPTO will also be expanding it’s Patent Examiner Technical Training Program, bringing even more outside experts into the patent examination process to help examiners gain the technical knowledge necessary to effectively critique whether a patent should be issued.

For the general public, Lee announced that a series of discussions will be held across the country during the fall of 2014. The purpose of this discussion series is to solicit opinions from the general public on the patent system as it stands now. Although there was no schedule announced at the Stanford Law School event, Lee urged input from all interested parties and made sure to drive home the fact that all suggestions will at least be considered. Part of Lee’s closing remarks reiterates her view on the patent system and our role within it:

“As what used to be a small world of patent law has become larger, more visible, and more consequential—to our economy and the world—we must acknowledge that the patent system doesn’t belong to a narrow set of patent stakeholders, but to all of us. As specialists, experts, and repeat players in this field, we must acknowledge not only the strengths of our patent system (and there are many) but also those places where it falls short of its goal to promote the Progress of Science and the useful Arts. Fixing those areas needing improvement is not a “pro-patent” thing to do, or an “anti-patent” thing to do… It’s about taking the necessary steps to ensure that patents remain an important driver of innovation. It’s about maintaining the public’s faith that the benefits of patents outweigh their costs to society. It’s about never ceasing to ‘speak truth to patents,’ to think innovatively about how we innovate, which means always striving to make a better system than the one we inherited.”

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44 comments so far.

  • [Avatar for wow]
    wow
    July 15, 2014 07:08 pm

    anon

    you need to stop misreading ppl’s comments.

  • [Avatar for Anon]
    Anon
    July 9, 2014 10:17 am

    wow – I commented directly to your posted comments and asked you to clarify any mistakes that I may have made.

    Your answer here contains no such clarification. Are you saying that I did not in fact make any mistakes in responding to what you actually posted here? Are you (now) saying that your comments at 6 no longer apply?

  • [Avatar for wow]
    wow
    July 8, 2014 06:55 pm

    “My comments were geared specifically to your comments at 6, in which you clearly tie “commercialization” into some sort of view of “quality.”

    I did mention the word commercialization in one of my earlier posts but I did say that patent quality may be associated with implementation details not commercialization specifically.

  • [Avatar for Anon]
    Anon
    July 7, 2014 05:49 pm

    wow at 35,

    Please “correct” my errors. As I view what was actually posted (perhaps in stead of what you thought that you had posted), my replies do not show any obvious errors.

    If I have misstated your position, I truly apologize. But I cannot be held responsible for replying to things you wish you said instead of what is actually here on the blog. Your comments are her in black and white and it is those comments that I have responded to.

  • [Avatar for Steve]
    Steve
    July 7, 2014 03:41 pm

    Lee’s resignation is the first change the Patent System needs.

  • [Avatar for NWPA]
    NWPA
    July 7, 2014 01:46 pm

    GEdeepthroat: not sure what to make of that, but there is no doubt that we can see that Lee is there to burn down the system because she is not focused on improving prosecution and post-grant proceeding.

  • [Avatar for Anon]
    Anon
    July 6, 2014 09:05 am

    Benny,

    Clearly, “involvement” is the key – and as I have indicated, this is a code word for more than just submissions of art.

    We both agree that prior art submissions are a good thing. Ask yourself, then, what is the “involvement” above and beyond that topic? (your reference to streamlining is noted, but again, that falls to a topic we agree upon, and misses the bigger picture).

    You do realize that there are vested interests desiring a weakened patent system for their own reasons, right? Your posts do not indicate an understanding of the real world fact, and it seems almost too Pollyanna-like of you to want to ignore the real world politicking in our discussions. Not recognizing it, or not wanting to talk about it won’t make it go away.

  • [Avatar for Benny]
    Benny
    July 6, 2014 01:54 am

    Anon,
    So what were you referring to as an “an exceedingly bad idea”, if it wasn’t anything I said?
    As for improving the third party submission system, both the EPO and the Australian patent office have more streamlined methods, so there is demonstrably room for improvement.

  • [Avatar for GEdeepthroat]
    GEdeepthroat
    July 5, 2014 08:48 pm

    Has anyone read the recent letter from Senator Hatch to the president? If you have not done so, I suggest that you do and you will find that Ms. Lee was not appointed to be the Deputy in accordance with the vacancies act.

    I have been a practicing intellectual property attorney for over 30 years. Recently, I was recommended to the president to be nominated for the Under Secretary of Commerce for Intellectual Property and Director of the United States Patent and Trademark Office. I had and still have significant support for the nomination on the Hill. Essentially, Presidential Personnel “blew off” for prominent United States Senators and an equally prominent Congressman. One of the Senators called Presidential Personnel while he was on his way to the airport to return to his home state for a family emergency. That had absolutely no effect on the present director of the Presidential Personnel Office. Unlike Ms. Lee, I will not return to the corporate world to make big bucks. I am pursuing this position, not for personal gain, but to serve the American people. Note, that I did not say the people of the world, I said, the American people, citizens of the United States of American.

    I have written and prosecuted approximately 500+ United States and foreign patent applications. I have been extremely successful in obtaining patents based on those applications. Those patents proved to be valid and infringed when reviewed by competitive entities. When actually infringed, they settled for six-figure amounts and agreed to exit the business that the patents protected. The one time my client was accused of patent infringement, my team and I successfully convinced the plaintiff that their interest would not be well served if we were to file an answer to the complaint utilizing inequitable conduct as our primary defense. In fact, within two weeks of the meeting where we presented our evidence, the plaintiff notified us that they would file a withdrawal with prejudice. Needless to say this, save my client a tremendous amount of money for defending a ill-advised patent infringement suit.

    I have been involved with international companies numerous times and secured agreements with ace companies as part of a team where I was the IP representative. Two of those agreements were worth about $10 billion revenue over about 12 years.

    Most recently, I have served as a patent examiner with the goal of learning as much is possible about the inner workings Of the United States Patent and Trademark Office in preparation for becoming either the director or the Deputy Director of the USPTO.. The United States Patent Patent and Trademark Office, requires considerable reform to become more efficient and more effective with their primary job of issuing or rejecting patent applications.

    I have the experience in the military (leadership), private corporations (management) along with my understanding of the training process (which is well below standard at the USPTO).

    I could go on and on about what requires upgrading at the USPTO, but suffice it to say that I have identified at least 25 major areas and up to 75 minor areas that can be improved within one year, which will significantly transform USPTO into a efficient and effective organization.

    Thanks for your attention

  • [Avatar for wow]
    wow
    July 5, 2014 05:11 pm

    Anon,

    you should learn to read other people’s comments correctly before posting your responses to them.

  • [Avatar for Anon]
    Anon
    July 5, 2014 08:56 am

    wow at 25,

    My comments were geared specifically to your comments at 6, in which you clearly tie “commercialization” into some sort of view of “quality.”

    Such is simply not a part of the legal notion of what patents are. Thus, your attempt to define quality as having a component ties to commercialization is necessarily faulty. As I indicated, you should be aware of this fault and of the tyranny of simply assuming an implication that is not there.

  • [Avatar for Anon]
    Anon
    July 5, 2014 08:52 am

    repeat as no moderation flag ripped:

    Benny,

    We are again missing each other, as I nowhere indicated what you seem to think that I indicated. Prior art from the public is indeed a good thing.

    That being said, you seem unaware of the actual extent the “infringers rights” groups have in the debate.

    I would also point out that there need be no changes to the current system in order to effectuate any or all improved third party art contributions. Clearly then, the mere “third party art” line of thinking is NOT what is being discussed.

  • [Avatar for Anon]
    Anon
    July 5, 2014 08:51 am

    Benny,

    We are again missing each other, as I nowhere indicated what you seem to think that I indicated. Prior art from the public is indeed a good thing.

    That being said, you seem unaware of the actual extent the “infringers rights” groups have in the debate.

    I would also point out that there need be no changes to the current system in order to effectuate any or all improved third party art contributions. Clearly then, the mere “third party art” line of thinking is NOT what is being discussed.

  • [Avatar for Benny]
    Benny
    July 5, 2014 06:47 am

    Anon at 16,
    Nowhere did I suggest “handing over guard duties to the fox”. I suggested that the PTO be more pro-active in accepting evidence of prior art from the public, and in particular that segment of the public who have a deeper knowledge of the art than the examiner. Perhaps you would like to explain why you consider this, as you state, “an exceedingly bad idea”.

  • [Avatar for Anon]
    Anon
    July 4, 2014 09:28 am

    One must ask: is she a “leader?”

    Since she has not been vetted properly for a leadership position, is anything she ventures forth in that unsubstantiated role strictly ultra vires?

  • [Avatar for NWPA]
    NWPA
    July 4, 2014 07:36 am

    What strikes me about everything she has said is she is now the leader. She should take responsibility for the current state of the PTO and be focused on improving quality. Instead we get these worm tongued half statements of justifications for burning the system down. This person should be immediately removed. You Lee are serving us. Get to work and do your job! What a poisonous person. She is neither for or against patents and she is the leader of the PTO?

    Now, I am willing to take bets that this person didn’t make any actual deal with the Oval Office companies that hired her, but that when she leaves she gets a ridiculously generous job from a company that she met in the Oval Office. Welcome to the third world. Thank you Lee for bring us one step closer to the third world. Your soul for a buck, eh Lee?

  • [Avatar for Anon]
    Anon
    July 4, 2014 07:27 am

    Joachim,

    I take exception to your portrayal of my posts as biased (tendentiously) and obtuse, as I very clearly delineated between technical and legal. I have misrepresented nothing, while your post does the very type of misrepresentation that you would accuse me of.

    As for the anonymity factor, I have on past occasions here attempted to debunk the “authority fallacy” that you wish to lean upon. You taught at MIT? Great. What does that have to do with posting here? Nothing. Let’s not fall to the fallacy of CV and post “opinions.” Let’s see the content in the posts – separate and without having to borrow from “name recognition.”

    Your hubris as to law shows in your posts (and showed as well in the previous discussion when we ascertained your lack of legal training). The 6th grade was enough training for your law understanding? Don’t be insulting. To yourself.

    From your 86 page link, I see that you exhibit hubris in the technical area as well. “Silly” indeed.

  • [Avatar for Joachim Martillo]
    Joachim Martillo
    July 4, 2014 03:45 am

    Anon, not only did you tendentiously misrepresent what I said, but consulting for law firms on technology issues related to patents or occasionally for the state department with respect to international technology regimes simply is not practicing law. You were too obtuse to understand what I was saying.

    Because many lawyers and judges do not have a firm grasp of patent eligible technologies or technology in general, patent prosecution and patent litigation inherently involves many non-lawyers.

    Patent law also has implications for national and international policy. Such implications are frequently not legal issues. Without the assistance of experts in technology, economics, and other nonlegal areas, lawyers can do a suboptimal job in addressing such issues.

    Anyway, anonymity means it is impossible to judge your CV. I on the other hand was on the faculty at MIT. Where have you taught? Can I look at any documents that you have written for important cases? In the early 80s, I was helping develop the sophisticated packet oriented I/O devices on which modern computer networking depends.

    Here is an elementary document that I put together for one of my classes to help explain the transition from software+character devices to VLSI packet devices.

    https://docs.google.com/file/d/0B3Nln6m4BDYzZ3JOOHVpWjF3MmM/edit?pli=1

    Do you understand it?

    Most lawyers do not understand the technologies with which I work every day, but if you hand me any legal brief, opinion, or argument, I will understand it and probably would have understood as well as any lawyer when I was in 6th grade when I functioned at the level of a graduate student (in the humanities, I admit, for I was very good with classical languages and texts).

  • [Avatar for angry dude]
    angry dude
    July 4, 2014 12:04 am

    24. NWPA
    “I’ll just bet that this “leader” will slink out to industry and cash in…”

    And that’s exactly the problem with US government – the revolving door between government and big corporations
    Maybe they should just merge at some point ?

  • [Avatar for wow]
    wow
    July 3, 2014 10:30 pm

    Anon
    “Do you know the law, now? Kindly show me the portion that has this “commercialization” requirement.”

    Where did i say commericalization is required by the law? My comments are responses to the article, I have not suggested that i was referencing the law.

  • [Avatar for NWPA]
    NWPA
    July 3, 2014 06:13 pm

    Lee should be 100 percent focused on improving the PTO. She is very obviously an anti-patent person that was snuck into the PTO via the oval office and approval of anti-business leaders like Google. Please.

    I’ll just bet that this “leader” will slink out to industry and cash in to the tune of $10 million after her post at the PTO where she dedicates herself to burning our system down.

  • [Avatar for Anon]
    Anon
    July 3, 2014 05:49 pm

    Joachim,

    Regarding: “I am irritated that someone who posts anonymously keeps implying that I should not address patent issues simply because I am not a lawyer.

    Your irritation is misdirected.

    Let’s not engage in the false cry against anonymous (or pseudonymous) posters. Further, there are two aspects important in pointing out your lack of legal status – first, those who DO practice law have an ethical obligation here in the states to watch for and control the unauthorized practice of law. Gene does a great job of monitoring the conversations here and eliminating the propensity for non-lawyers to misrepresent the law (and it should be understood that I am NOT saying that non-lawyers cannot have opinions on legal matters), but your posts cross the line from mere opinion about the law into the land of implying what the law is. That’s just too far.

    Second, this very issue of your status first came up in a conversation in which you were advocating an incorrect position of law. In that conversations I had to “badger” you for your bonafides, of which you were, shall we say, less than forthcoming. On that thread, the disposition of the topic turned on a correct legal understanding. So when you want to make statements that hinge on having legal experience and understanding – when you do NOT have such, your “irritation” is misguided.

    Please note that my comment explicitly distinguished between the technical and the legal – yours should as well. You should not be irritated when anyone points out that you are “borrowing authority” that you do not have.

  • [Avatar for Benny]
    Benny
    July 3, 2014 10:52 am

    Angry,
    Not really. Like your government, we have our fair share of fools and intelligent leaders pretending to be fools to encourage the public, and a free press who lose no opportunity to embarrass them all. According to our patent attorney the Israel PTO is populated with an aged generation of examiners who all too often, in his words, “confuse the shadows with the substance”.

  • [Avatar for angry dude]
    angry dude
    July 3, 2014 10:39 am

    Benny,

    I surmise that your country (Israel) would not survive for long with the government like in US

  • [Avatar for Benny]
    Benny
    July 3, 2014 10:24 am

    Angry,
    Don’t flatter yourself. It’s not just the problem with your government. I can think of a lot of countries who have it worse than that. My government isn’t much better.
    I wouldn’t go so far as to blame every shortcoming on incompetence – only those who don’t do, don’t err.
    It is frustrating, though, that a patent examiner can generate 100-200K in un-productive legal fees simply because he or she didn’t spend an extra half hour on a prior art search or more careful reading of the application. I don’t think these people should be fired – I think they should own up to their errors and put them right.

  • [Avatar for angry dude]
    angry dude
    July 3, 2014 10:03 am

    Joachim at 15.
    “If the problem is sheer incompetence”

    You DO realize that this is the PROBLEM with our entire government – all branches of it
    If you are a manager in some federal government agancy and you screw something up, you don’t get fired – you get promoted or you get honorable retirement with huge pension
    gotta love our government

  • [Avatar for Joachim Martillo]
    Joachim Martillo
    July 3, 2014 09:20 am

    I am irritated that someone who posts anonymously keeps implying that I should not address patent issues simply because I am not a lawyer. Sometimes law firms need experts that actually understand the technologies whose associated patents are being prosecuted or litigated.

    “That being said, from your technical experience, what would you suggest for this apparent lack of skin in the game? Would you prefer a pure registration system and a first real fight between interested parties in the court system?”

    All anon proves is the old saying: “to a carpenter with a hammer, every problem looks like a nail.”

    The problem is not legal. There is a severe management and personnel report problem in the PTO.

    The amount of nonsense in patent prosecution is steadily increasing.

    Are patent examiners abusing their authority? Are they making policy decisions about their pay grade? (Bivens issues)

    Why do I see increasing interference in claims? Why do I see more and more inappropriate prior art combinations used to reject technologies that seem to meet all the requirements of patent eligibility? Why do I see technologies being patented today that were patented 10-15 years ago (even though relevant database access today is much more available)? Do examiners reviewing patent specifications with a heavy software component understand software technology? Why do I see all sorts of misunderstandings of precedents like Diehr, Flook, Benson, or Bilski?

    Sometimes we should apply Occam’s Razor. More and more patent claims are appearing that are not even proper English by PTO standards.

    Is there a language problem at the PTO? If so, managers should make sure examiners receive remedial training in basic English semantics and grammar.

    If the problem is sheer incompetence, the managers should be identifying incompetent examiners and weeding them out.

    How often are examiners let go for doing a poor job? Where can we find the statistics?

  • [Avatar for Anon]
    Anon
    July 3, 2014 08:02 am

    Paul @ 7,

    I think that you take an overly optimistic view of “non-understanding.” I think the truth is more nefarious.

    Think agency capture (and just look to the savings and loan debacle for a recent historical analogue.

  • [Avatar for Anon]
    Anon
    July 3, 2014 08:00 am

    Benny,

    Handing the chicken coop guard duties over to the fox in the name of “interested public” is an exceedingly bad idea.

    As has been noted in the “Troll” hysteria, ask yourself who exactly coined the term “Troll” and why exactly did they do so? The answer does not include “for the public good.”

  • [Avatar for Benny]
    Benny
    July 3, 2014 04:19 am

    Anon at 3,
    I agree with Joachim at 2 and believe he has a valid point. As to your question over what can be done, first Lee herself has suggested involvement of outside experts in the examination process, and second, the USPTO could do more to encourage involvement of the “interested public” (which would generally be competitors with deep technical knowledge in the field – and who would do the job for free). The USPTO could look to the Australian patent office to learn how this could be done more effectively.
    Yes I know I can file third party submissions via EFS-Web, but the USPTO doesn’t exactly go out of its’ way to encourage the use of t his tool.

  • [Avatar for Anon]
    Anon
    July 3, 2014 12:11 am

    wow,

    Do you know the law, now? Kindly show me the portion that has this “commercialization” requirement.

  • [Avatar for wow]
    wow
    July 2, 2014 06:43 pm

    “Thus, your second point: too vague for commercialization is not an accurate statement of law, and what you call “higher quality” is also inaccurate..”

    I know the law. My claim for “higher quality” is not inaccurate at all according to the reasoning of the courts in Alice.

  • [Avatar for Steve]
    Steve
    July 2, 2014 04:52 pm

    Angry dude’s got that right. When my legal counsel and I nicely contacted infringers; they ignored, denied, or threatened us. Sadly, the only way they’ll engage in discussions is after you sue them (and even then they offer you a bone to go away).

    It’s not right, and I hate it, but looking to the courts and juries for help is the only option they leave us with.

  • [Avatar for angry dude]
    angry dude
    July 2, 2014 12:18 pm

    Are you kidding me ?

    You can’t even kindly suggest that some big corp infringes on your patent and should take a license – they’ll sue you immediately for declaratory judgement (they’ll do it in remote jurisdiction if they can – bankrupting you)
    In the present legal environment (created largely by Scotus) patent holder should sue first in his jurisdiction of choice (ED Texas or Delaware), then talk about licensing later… much later

  • [Avatar for Anon]
    Anon
    July 2, 2014 11:26 am

    To American Cowboy’s point, far too much ado is made of the “boogeyman” of litigation.

    Remember folks, the litigation path is the government sanctioned path for patent enforcement when the parties cannot agree on their own.

    Remember as well folks, that the actual percent of active patents (not patents per year, and not just live patents, as even recently expired patents can still be pursued for up to six years of past damages) is far far far below 2%.

    By buying into the hype of “rampant litigation’ (very much like the hype of “Troll”), we allow the tail of the flea on the tail of the dog to wag the dog.

  • [Avatar for American Cowboy]
    American Cowboy
    July 2, 2014 10:54 am

    As she relates in her speech, “litigation is an inefficient way of conducting licensing negotiations.”

    Absolutely correct.

    BUT, when companies refuse to negotiate with the patent owner, the patent owner has only two options: start litigation… or walk away.

  • [Avatar for Anon]
    Anon
    July 2, 2014 07:12 am

    wow,

    Beware the tyranny of “commercialize,” as the patent right is not (and often for improvement patents, cannot be) a positive right, or right to do something. A patent right is a negative right, or a right merely to keep others from doing something. Often, infringers rights group will mis-present this aspect of patent law. Thus, your second point: too vague for commercialization is not an accurate statement of law, and what you call “higher quality” is also inaccurate, as patent applications are not – nor have ever been – meant as design documents in the technical sense.

    That said, I too (it should be obvious) favor strong protection, but I will differ from your view of “better guarding against copy-cats” by noting that the protections in the various regimes offer protections on different (albeit sometimes overlapping) aspects of the item for which protection is being sought.

  • [Avatar for Paul Morinville]
    Paul Morinville
    July 2, 2014 03:46 am

    “Copyrights, trademarks and trade secrets are other options through which innovation can be protected.”

    Yes trade secrets protect inventions. Trade secrets were the only protection that existed prior to the patent system. As a result, innovation was hidden primarily in trade guilds and monasteries where their people were sworn to secrecy, thus consolidated their economic power based largely on these secrets. Thousand of years of history show that a trade secret innovation economy only produced short unsustained spurts of innovation often lasting only a decade or two separated by multiple sequential decades of little or no innovation.

    The patent system was intended to “lay open” these secrets so that others could build upon them. And build upon them they did. Since the effective birth of the patent system in the early 1700’s, we have experienced the longest sustained period of innovation in human history. I can’t think of a single decade since where innovation has not been at a higher rate than any period prior to the patent system.

    The thinking that inventions should be protected by secreting them will end this period of innovation.and send our innovation economy into the dark ages. The America Invents Act takes a stab at this with its prior user rights provisions. Sounds like Deputy Director Google Lee does not understand this either.

  • [Avatar for wow]
    wow
    July 1, 2014 06:16 pm

    Patent assertion entities MAY become a problem to the economy when:

    1. They do not commercialize their patents either through implementation or licensing arrangements

    2. The inventive concept is too vague to enable commercialization

    Higher quality patents are simply, design documents with lots of implementation related details.

    “Lee is quick to point out that patents aren’t the only drivers of innovation.”
    True, but your revenue model could be unsustainable without patent or strong IP protection.

    “Copyrights, trademarks and trade secrets are other options through which innovation can be protected.”
    I feel patents are much better for guarding against copy-cats than copyrights.

  • [Avatar for angry dude]
    angry dude
    July 1, 2014 04:16 pm

    How about spending more time on patent examination ?
    It’s that simple

  • [Avatar for Fish Sticks]
    Fish Sticks
    July 1, 2014 02:45 pm

    The key is for higher quality patents to be issued. And this means that the examiners must be able to efficiently access and properly apply the most relevant prior art. Good and efficient access to prior art databases (beyond U.S. patents) is needed.

  • [Avatar for Anon]
    Anon
    July 1, 2014 01:37 pm

    As we have already established, Joachim, your “on patent issues” is not on legal issues, as you are neither an attorney nor a patent agent and you surely do not engage int eh unauthorized practice of law.

    That being said, from your technical experience, what would you suggest for this apparent lack of skin in the game? Would you prefer a pure registration system and a first real fight between interested parties in the court system?

  • [Avatar for Joachim Martillo]
    Joachim Martillo
    July 1, 2014 12:24 pm

    I have been writing and consulting on patent issues since the 1980s. The problem with the US patent system is obvious. Patent examiners have neither risk from downside in doing a bad job either in granting ridiculous patents or in denying a patent to inventors that have written a perfectly reasonable patent specification and claims for patent eligible technology.

  • [Avatar for Anon]
    Anon
    July 1, 2014 11:13 am

    I am reminded of a certain author named Orwell, “doublespeak” and the notion of “infringers’ rights.”

    This is not the first time that a type of agency capture has occurred.