PTAB to determine whether to sanction Kyle Bass for filing IPRs

By Gene Quinn
August 17, 2015

Hayman-Capital-Kyle-Bass

Hedge fund manager Kyle Bass.

After being granted permission to file a motion for sanctions, Celgene Corporation filed a motion for sanctions against the Coalition for Affordable Drugs on July 28, 2015. The motion for sanctions alleged that filing of the inter partes review (IPR) by the Coalition for Affordable Drugs constituted an abuse of process. On August 11, 2015, the Coalition for Affordable Drugs filed an opposition to the patent owner’s motion for sanctions. And now we wait for a determination in this case of first impression. Will Kyle Bass’ Coalition for Affordable Drugs be sanctioned by the Patent Trial and Appeal Board (PTAB) for filing IPRs?

Behind the Coalition for Affordable Drugs is hedge fund billionaire Kyle Bass, who has been filing post grant challenges to pharmaceutical patents in the hopes of causing the patented drug to fall into the public domain, which would cause the patent owner to lose revenue in the face of generic competition. The loss of revenue would cause the stock price to go down, which would be to the benefit of any investors who might hold a short position in the stock. Kyle Bass has reportedly been shorting the stocks of the companies that own the patents he is challenging.

According to Celgene, the Bass strategy of shorting a stock and filing an IPR is an abuse of the process and not what post grant procedures were designed to accomplish. Celgene’s motion argues:

Inter partes review (“IPR”) was designed as an expeditious and less costly alternative to federal district court litigation. It was not designed for the purpose to which it is aimed here—as a tool to affect the stock prices of public companies for financial gain, to the detriment of those companies and the investing public. By their own admission, the real parties in interest (“RPI”) filed this and other petitions as part of their strategy to profit from affecting stock prices. Their petitions represent an ongoing abuse of the IPR process that has been and will continue to be an unwarranted burden on the Patent Trial and Appeal Board (“Board”), and on innovators like patent owner Celgene Corporation (“Celgene”) and its shareholders. Celgene is confident in the strength of its patents, but should not be required to expend extensive resources defending them in the face of the RPI’s abuse of process.

Celgene also alleges that Erich Spangenberg, who is working with Bass in an advisory role, attempted to obtain payment from Celgene in exchange for not challenging the patents in issue through the IPR process. Celgene alleges that when they refused to pay Spangenberg he teamed up with Bass and conceited “concocted a new scheme to profit from affecting companies’ stock prices by filing IPRs.”

In response, the Coalition for Affordable Drugs argued:

[Celgene] makes the curious argument that filing IPR petitions with a profit motive constitutes an “abuse of process.” Yet at the heart of nearly every patent and nearly every IPR, the motivation is profit. Celgene files for and acquires patents to profit from the higher drug prices that patents enable. Generic pharmaceutical companies challenge patents to profit from generic sales. Celgene’s argument is in conflict with Supreme Court precedent expressly finding it in the public’s interest for economically motivated actors to challenge patents. See Lear v. Adkins, 395 U.S. 653, 670 (1969) (holding public interest requires permitting licensees to challenge validity because they “may often be the only individuals with enough economic incentive to challenge the patentability” and “[i]f they are muzzled, the public may continually be required to pay tribute to would-be monopolists”). Having an economic motive for petitioning the government simply does not turn the petition into an abuse of process.

The Coalition for Affordable Drugs goes on to argue that whether their motives are altruistic is irrelevant. They argue:

The U.S. economy is based largely on the notion that individual self-interest, properly directed, benefits society writ large. Celgene’s motive is to profit from consumers and taxpayers from drug sales. Celgene’s patent-conferred monopoly results in Revlimid prices that exceed $580 per pill— creating costs in excess of $200,000 per patient year. Revlimid sales were nearly $5 billion in 2014. Celgene is not giving Revlimid or its profits away.

(citation omitted). Essentially, by and through the Coalition for Affordable Drugs, Bass is arguing that while his motives may not be altruistic the motivations of Celgene aren’t exactly altruistic either. Nevertheless, the public would stand to benefit if Bass is successful. The Coalition for Affordable Drugs correctly notes that “each petition that knocks down a barrier to generic entry benefits the public.”

[Bio-Pharma]

 

Legislative History

Celgene argues in their sanction filing that the legislative history of the America Invents Act (AIA), which is the law that ushered in the ability to engage in the type of challenge being brought by Bass by and through the Coalition for Affordable Drugs.

Time and time again throughout the legislative history post grant proceedings were explained as being a faster, low-cost alternative to litigating validity disputes in Federal District Court. That being the case, it would seem extremely odd that any petitioner could bring a post grant challenge to a patent when that petitioner would not have standing to sue to invalidate the patent in Federal District Court. Make no mistake about it – Kyle Bass would not be able to take his challenge to Federal District Court. He would have no standing to bring a Declaratory Judgment Action. There is no case or controversy. So why then would he have standing to bring a post grant challenge?

Celgene argues that according to the legislative history, the one and only purpose for the creation of post grant challenges to issued patents was to help deter patent trolls. While this may well be what many Members of Congress understood, the problem is that the law as written does not require standing in order to initiate a challenge using the inter partes review process. Further compounding the problem for Celgene is the fact that challenges under the Covered Business Method (CBM) review process do require standing in order to initiate such a procedure at the United States Patent and Trademark Office (USPTO).

The legislative history is silent with respect to the type of challenge brought by hedge fund managers seeking to take advantage of a market opportunity. Using standard canons of statutory construction, given that IPR does not require standing and CBM does require standing, it will be argued that Congress was aware of the possibility of requiring standing and opted to include such a requirement only for CBM. By implication Congress must have also opted not to incorporate a standing requirement for IPR. Thus, it seems based on the way the legislation was drafted the intent was to allow anyone to bring an IPR challenge for any reason. Motivation does not appear to matter, which would mean that there is nothing wrong, illegal or immoral about the challenge brought by Bass and the Coalition for Affordable Drugs.

 

USPTO Discretion to Award Sanction

Celgene also argues that Congress gave the Patent Office broad discretion to award and enforce sanctions for abusive use of IPRs.

Pursuant to 35 U.S.C. 316(a)(6), Congress did give the Patent Office the authority to create regulations, including regulations regarding the appropriateness of awarding sanctions for abuse. The AIA instructed the Patent Office to create regulations “prescribing sanctions for abuse of discovery, abuse of process, or any other improper use of the proceeding, such as to harass or to cause unnecessary delay or an unnecessary increase in the cost of the proceeding…”

The Patent Office did create regulations explaining when sanctions would be possible. The Patent Trial and Appeal Board (the “Board”) “may impose a sanction against a party for misconduct, including: (1) Failure to comply with an applicable rule or order in the proceeding; (2) Advancing a misleading or frivolous argument or request for relief; (3) Misrepresentation of a fact; (4) Engaging in dilatory tactics; (5) Abuse of discovery; (6) Abuse of process; or (7) Any other improper use of the proceeding, including actions that harass or cause unnecessary delay or an unnecessary increase in the cost of the proceeding.” See 37 C.F.R. 42.12(a).

Celgene argues that the Board has the authority to issue sanctions against Bass and the Coalition for Affordable Drugs because the IPR filings are an abuse of process or otherwise improper. Bass et al counter by pointing out that the law and regulations allow a person who is not the patent owner to file an IPR, which means that  “[a] dismissal sanction would amount to an impermissible substantive rule that changes existing law governing an individual’s standing to file an IPR petition…”

[PTAB-1]

 

What will Happen?

It is important to remember that the primary architects of the AIA were from the pharmaceutical industry. In fact, Bob Armitage, the former General Counsel for Eli Lilly, was invited to speak at virtually every gathering of patent industry professionals because of how intimately involved he was with the drafting of the language of the AIA, and how closely he was involved with lobbying the industry, and Congress, to pass the AIA. The pharmaceutical industry supported the AIA, which is what ultimately pushed the bill across the finish line after many years of failed attempts. In retrospect it looks like the industry should have been more concerned about post grant challenges.

I am sympathetic to the biotech and pharmaceutical companies who are facing challenges to patented drugs that no one anticipated. Given the critical role the pharmaceutical industry played in passage of the AIA, I am much more sympathetic to the many other patent owners who find their patents being challenged in various post grant proceedings. These other patent owners largely did not support the AIA, and vigorously opposed creation of new mechanisms to challenge issued patents.

It hardly seems reasonable that a motion for sanctions should be granted when a pharmaceutical patent is being challenged simply because the challenger has brought the petition for some monetary benefit. If the Board sides with Celgene then all patent owners should be victorious in sanctions motions given that the challenger always has some financial motive for seeking to invalidate the challenged patents. Therefore, it seems extremely unlikely that the Board would award sanctions simply due to the financial motivation for filing an IPR. Such a ruling seems further unlikely given Supreme Court precedent that exalts challenges to patents as being in the public interest.

It is, however, troubling when petitioners contact patent owners in advance of filing an IPR seeking payment for not challenging a patent. Such a tactic could easily be characterized as extortion-like, but I’m not sure where you draw the line. Would it be acceptable to file the IPR challenge and then acknowledge a willingness to settle if the patent owner were to pay? In other words, does the timing of the request for payment matter? It would be a stretch for any court to rule that an offer to settle an already instituted litigation constituted extortion-like activity.

The real problem isn’t that Kyle Bass is seeking to take advantage of a market opportunity, but rather that the post grant procedures were ill-conceived from the start. They were championed as being a cheaper alternative to litigation, but in fact can easily cost in excess of $1 million in attorneys fees, which is hardly cheap. Post grant challenges were seen as a panacea that would allow certain companies to take out certain patents, but due to political realities pharmaceutical and biotech patents couldn’t be carved out. That political problem remains. If post grant challenges are good for some patents they must be good for all patents. Similarly, if inter partes review can be brought by some parties without standing then they must be able to be instituted by all parties without standing, even if the motivation for brining the challenge is primarily (or even exclusively) financial.

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 as of the time of publication and should not be attributed to the author’s employer, clients or the sponsors of IPWatchdog.com. Read more.

Discuss this

There are currently 31 Comments comments.

  1. David Stein August 17, 2015 6:02 pm

    As an outspoken critic of Alice, I can’t imagine how the PTO could fairly pin any kind of sanctions on Bass for filing IPRs.

    The definition of abuse of process is that the abuser knew that the invocation of the process was unsubstantiated, and invoked it anyway for nefarious purposes. In this case, “unsubstantiated” = “the abuser strongly suspected that the claims were valid under 101 review.” But that is the central problem with current 101 law: every patent claim ever issued could be invalidated under Alice/Mayo. Even Diamond v. Diehr could be invalidated under Alice! Every patent claim can be legitimately challenged under this evidence-free, purely-opinion-based 101 law that we have now.

    Accordingly – the only way to have any reasonable certainty that a claim is 101-eligible is to litigate it – and exhaust all appeal options. So it follows that “abuse” of this process can only occur if the litigant is (1) clairvoyant or (2) a collusive body of Supreme Court justices.

    Is this a serious problem, that Alice is so open-ended that people can invoke the system arbitrarily, without threat of sanctions? Of course it is. It is not only the predictable result of the IPR system and recent 101 case law – it is the intended result, promoted by actors who want to weaken the patent system to suit their business interests. And we have not even begun to address that side of the issue.

  2. Night Writer August 17, 2015 6:19 pm

    Doesn’t sound like an abuse of process to me. Not if you have a good faith belief that the patent is more likely than not invalid and you have only public information.

    “but rather that the post grant procedures were ill-conceived from the start.” I think this sums it up. The problem is that under preponderance of the evidence with BRI many patents are invalid with super prior art searches that are used in IPRs.

  3. Night Writer August 17, 2015 6:20 pm

    David writes: >>> Every patent claim can be legitimately challenged under this evidence-free, purely-opinion-based 101 law that we have now.

    I agree.

  4. EG August 17, 2015 7:20 pm

    Hey Gene,

    As we’ve all said over and over again, the AIA (Abominable Inane Act) is fraught with unintended consequences, these IPRs by Kyle Bass just one instance. Also, on what statutory basis could/might the PTAB/USPTO sanction Kyle Bass?

  5. Brian Smith August 17, 2015 8:49 pm

    Gene,

    I am not sure if you saw this news last week.

    “SEC Administrative Court Has A Constitutionality Problem”

    http://www.law360.com/articles/690328/sec-administrative-court-has-a-constitutionality-problem

    SEC “suffered what could become a fatal blow Wednesday when a New York federal judge called the controversial forum “likely unconstitutional.” ”

    “most suits brought against the agency have alleged a host of larger problems, including constitutional violations, denial of due process and the bias of certain administrative law judges”

    Have any of you guys looked at SEC case and similarities regarding APJ bias, due process and hiring practice of Ex Google Ms. Lee at USPTO for the Judges?

    Would be interested in knowing your take on the SEC case and what you can learn from it.

  6. Owen August 17, 2015 11:13 pm

    “due to political realities pharmaceutical and biotech patents couldn’t be carved out.”

    Since pharma and chemical patents are the least likely to be invalid or uncertain as to claim scope, it would be obvious and beneficial to exclude them from post-grant review entirely. Ordinary challenges in district court should be sufficient to ensure that any few invalid claims that slip through can be discarded. Also, pharma patents are the most likely to see billions in revenue riding on a single patent or family; a similarly valuable mechanical or electrical or semiconductor project would have dozens or hundreds of patents and wouldn’t be vulnerable to uncertainty over a single administrative proceeding.

    So why was it so hard for Congress to draw the line that would keep hedge fund parasites honest and keep IPR for industries where most challenged patents turn out to have been invalid all along? It continues to disappoint that the PTO cannot make reasonable distinctions among objectively very different types of patents and the review they need.

  7. David Stein August 17, 2015 11:54 pm

    It continues to disappoint that the PTO cannot make reasonable distinctions among objectively very different types of patents and the review they need.

    The PTO cannot make those distinctions because they cannot create substantively different legal standards for different areas of technology.

    The PTO is neither a legislature, nor a court. It has no power to change substantive patent law, nor to create new legal interpretations. As an administrative agency, the PTO’s powers are: (1) adhering as faithfully as possible to the law and courts’ interpretation of it, and (2) adjusting its procedural rules (i.e., the MPEP) to adjust the process.

    Moreover, when toeing the line between “process” and “substance,” the PTO must tread cautiously – and conservatively. The last time the PTO tried to create new procedural rules that significantly affected substantive rights, it was correctly and harshly rebuked – and generated some well-earned criticism over its unnecessarily hostile and confrontational relationship to the patent community.

  8. Night Writer August 18, 2015 6:25 am

    >it would be obvious and beneficial to exclude them from post-grant review entirely.

    Not only can’t the PTO do this, but it would be terrible if Congress does. It would be a case of divide and conquer. The anti-patent forces would become much stronger in that the pro patent forces would lose huge allies.

    By the way, there was huge lobbying that went on that tried to split chem from mechanical/EE.

  9. Anon August 18, 2015 9:01 am

    Owen,

    Your “least likely” does not hold up to scrutiny.

    Any argument that you see put out there in the attacks on “software patents” is based on fallacious logic that can be – and is – applied to any (and all) art units.

    There is in fact no “safe zone.”

  10. EG August 18, 2015 9:03 am

    NW,

    Agree with you sentiments completely. If IPRs are unfair for one segment of technology, they’re unfair for all. And IPRs frankly need to go completely, and may be extinguished anyway due to two cases correctly challenging their constitutionality. Note also the interesting comment up thread by Brian Smith that would be applicable to IPRs as well.

  11. David August 18, 2015 10:13 am

    Brian & EG, the Article III arguments being made regarding IPR are very different from the SEC admin court challenges. The overlap is minimal.

  12. Night Writer August 18, 2015 10:36 am

    Hmm…interesting that a dist. ct. judge made the call. My guess is that the Google stacked Fed. Cir. will never hold the IPRs unconstitutional that the SCOTUS will never hold the IPRs unconstitutional based on their Alice decision. The federal courts want those IPRs in the PTO and not in the federal courts.

    But, a lone fed. dist. judge might hold them unconstitutional which may make it harder for the Google judges on the Fed. Cir. to lie.

  13. Paul F. Morgan August 18, 2015 11:40 am

    The subject article seems reality-based.

    Isn’t a key question for sanctions here something the PTAB must promptly decide as to any IPR petition? Namely, whether the prior art and arguments presented in the petition are sufficient to justify even proceeding with an IPR? What is the status of that requisite PTAB preliminary decision?
    Also, re some hyperbole in comments above that any and all patent claims can be challenged on Alice or Mayo 101 grounds, those grounds cannot even be raised in an IPR, and can anyone point to any pharmaceutical or chemical claimed as a compound that has ever been rejected by a court on Alice or Mayo 101 grounds?

  14. David August 18, 2015 11:42 am

    Night,

    I agree regarding the CAFC. The Circuit will rubber stamp whatever the USPTO puts before them on this issue. Nonetheless, Heller / MCM will have to take the issue to the Circuit en banc before we can know for sure.

    I disagree regarding the SCOTUS. The Supreme Court has demonstrated (recently) that it takes separation of powers issues very seriously. After all, we are talking about the power of the judiciary. I recommend reading the following SCOTUS decisions:

    B&B Hardware v. Hargis (2015)
    Horne v. Dept of Agriculture (2015)
    Teva v. Sandoz (2014)
    Wellness Int’l Network v Sharif (2015)

    They aren’t directly on point with the IPR challenge, but clearly depict a certain theme. Recall that CJ Roberts is known for his steadfast commitment to the separation of powers.

  15. Gene Quinn August 18, 2015 11:55 am

    Brian-

    I did not see the SEC article, and don’t know a lot about the SEC. I will see what, if anything, I can find out.

    Thanks.

    -Gene

  16. Gene Quinn August 18, 2015 3:06 pm

    Brian-

    It looks like the SEC is having issues as the result of the appointments clause of the Constitution, which requires inferior officers to either be appointed by the President, the Judiciary or the Head of a Department. PTAB judges are appointed by the Secretary of Commerce, so this wouldn’t create a problem for the USPTO/PTAB.

    -Gene

  17. Brian Smith August 18, 2015 5:45 pm

    Thank you Gene, EG and David.

    -Brian

  18. Paul F. Morgan August 18, 2015 7:45 pm

    P.S. CBMs [unlike IPRs] do allow raising 101 issues, but since they also require standing by the petitioner – suit or threat of infringement – they cannot be used by the likes of Msrs Kyle or Spangenberg.

  19. Night Writer August 19, 2015 7:56 am

    Probably the real question is whether or not the stock will lose more value from the news of the filing of the IPR than it will lose at the disposition of the IPR. Think about it. Also, the way IPRs are set-up means that Kyle and Spangenberg are doing a public service by filing a non-frivolous IPR.

    Paul Morgan>Also, re some hyperbole in comments above that any and all patent claims can be challenged on Alice or Mayo 101 grounds,

    Everyone knows that Paul. And there is little that is said about Alice that is hyperbole. Real patent attorneys that actual practice patent law — like me–have seen first hand the effects of the Alice storm. And real patent attorneys know that Alice is not a rule of law but judicial activism without bounds. Not sure who is paying you Paul, but I have not met an independent patent attorney yet that doesn’t think that Alice is not a rule of law. I have noticed how anti-patent you are Paul. Your likes is an epidemic that is being fueled by K street. Seldom do you write anything that is based on actual patent law. You seem to get on here and other boards and take pot shots at people that you judge to be pro patent.

    Maybe Paul you could defend Alice? I would want to know where you get your money before engaging you further. It is a waste of time blogging with people that are being paid by the anti-patent lobby.

    David >> Night

    I read one or two of those. I think the calculus will be if the IPR could easily be changed to be “Constitutional” then the SCOTUS might so hold. I think David you way underestimate how little regard the SCOTUS has for the Constitution and the laws of the US. I think they do pretty much whatever they want for the outcome they want. Here, they don’t want all that IPR work to go back into the federal courts. I think the SCOTUS may not like the lack of standing. They may make some narrow holding that indicates to Congress how to fix the IPR. But, I am sure that the SCOTUS is going to make sure that IPRs stay at the PTO.

  20. Curious August 19, 2015 11:27 am

    I think David you way underestimate how little regard the SCOTUS has for the Constitution and the laws of the US. I think they do pretty much whatever they want for the outcome they want.
    That is the way of many/most(??) judges. We get bad case law because some judge has an outcome in mind and monkeys with the law to arrive at that outcome.

    NWPA — btw — I’ve been reading your stuff for years. While I agree with most of what you write, let me humbly suggest that you pull back on some of the rhetoric. Don’t be the pro-patent version of MM.

    While I don’t always do this myself, think about your potential audience. I’m sure there are congressional staffers and clerks for federal judges who read this blog. While they cannot change the law themselves, they have pull with those who do. Write something that he/she could pass along (as a printout or a link) to a real decision maker as an example of some thought-provoking analysis. However, I suspect highly inflammatory comments are less likely to be passed along to a neutral party. We aren’t trying to convince the people already in our camp, our goal should be to convince the undecided as to the validity of our (pro-patent) position.

    For example, while I think Google has undue influence in the patent system (along multiple fronts), I don’t think it helps calling out the Federal Circuit as being bought and paid for by Google. I think you can make the same point without blatantly insulting the integrity of the court.

    Again, just a suggestion …

  21. Bob August 19, 2015 3:14 pm

    Night Writer at post #2:”The problem is that under preponderance of the evidence with BRI many patents are invalid with super prior art searches that are used in IPRs.”

    I think you meant to say “quality art searches.” Wouldn’t it be great for patent quality if a team of examiners spent half a year on every application? Then there would be no need for IPRs in the first place.

  22. Paul F. Morgan August 19, 2015 3:57 pm

    Thanks Curious. I have tried to point that out before. But many commentators prefer to just rant or make ad hominum attacks or politically unreal proposals that will simply turn off anyone in any position of authority to do anything constructive, as well as misleading the public as to current realities they have to live with.

  23. Night Writer August 19, 2015 4:43 pm

    Curious, I am not one to pull punches for politics. The fact is Curious that I’ve predicted just about everything that has happened. I said that Obama after he removed Kappos would start to appoint judges to the Fed. Cir. that were outsiders that were hostile to patents. Obama has done that. This is the same tactic that the USSR used to suppress uprising. Obama is very clever. Moreover, I predicted Alice in the sense I said years before it came out that what the anti-patent forces were searching for and what the SCOTUS was going to do was come down with a case that permitted patents to be invalidated with SJ.

    So, I have a pretty good handle on what is going on politically. Like it or not, Google did get the Fed. Cir. stacked. It is just a fact. The judges don’t report to Google, but they were selected and/or approved by Google. Basically, the judges between O’Malley and Stoll were Google approved. Chen surprised them. (Another thing I predicted is that I said that it would be much harder to get people that are patent attorneys to burn the system down because they are vested in patent law. That is why Google picked judges to serve on the Fed. Cir. that are not patent attorneys.)

    It doesn’t help to close our eyes to what is going on. For example, with Lee, we need to watch her policies and what she says to Congress. It appears —amazingly– that she is appointing good people within the PTO. Something I did not expect. But, will she pull an Obama and get burn the system with clever policies? I don’t have the time to figure out how she might be doing this, but it is a clear avenue that she may be taking.

    In fact Curious, what I have taken the most flack for is predicting these things. I was called chicken little for about 5 years. And as soon as Ned pointed out Rader’s dissent to me in Bilski, I said that something like Alice would be the result.

    As to Paul, he is a big boy and can stand up for himself.

  24. Night Writer August 19, 2015 4:44 pm

    Paul >>as well as misleading the public as to current realities they have to live with.

    Paul, I have noticed that your forte is making side comments that impinge the character of people without directly addressing them. I am happy to stand behind my words and address you directly.

  25. Night Writer August 19, 2015 4:52 pm

    And, Curious, what is happening now is the following: big corporations are telling Congress that they can do the innovation without patents. They want tax breaks to encourage more spending in innovation coupled with tighter trade secret laws. That is where we are headed. I am not sure there is a way to sugar coat that or add provocative comments. That is just reality. (And, by the way, I also said that what Google would do is try to get stronger trade secret laws enacted. I said that about 2 years before it was introduced into Congress.) The message from the anti-patent forces is trust us. We can do innovation without these patents.

    None of this stuff is very hard to understand. I grew-up in DC. I grew-up with some of the people in Congress right now. I know how DC works.

  26. Curious August 19, 2015 10:21 pm

    In fact Curious, what I have taken the most flack for is predicting these things.
    MM made similar predictions (at least to the outcomes) as well.

    That being said, don’t let your personal feelings impact how you convey the message. My comments weren’t about your message — it is about the tone of your message. You are passionate about the law — I get that. Most people who regularly post on this blog are the same.

    When you write stuff like “Basically, the judges between O’Malley and Stoll were Google approved” the people on our side nod their heads. However, that shouldn’t be your intended audience. That same statement causes eyes to roll in the undecided because it is way over-the-top.

    Again, this isn’t about your message — it is just about how you present it (and how it comes across).

  27. Anon August 20, 2015 7:52 am

    I would posit that the “extreme” of Night Writer’s posts are better than the “peace for our times” lackluster of those who would have all of us accept meekly the poor judicial decisions coming down (and seemingly multiplying).

    Mewling acceptance of injustice sits less well with me – maybe it’s that Ugly American in me, but I am more offended by the thought of someone telling me to just take it.

    As for Mr. Morgan, while he has indeed been polite about his posts, he has also been steadfast about not hearing the counterpoints raised against his views. In that manner, he is every bit a part of the problem – the drumbeat of propaganda against a strong patent system.

  28. Curious August 20, 2015 9:25 am

    I would posit that the “extreme” of Night Writer’s posts are better than the “peace for our times” lackluster of those who would have all of us accept meekly the poor judicial decisions coming down (and seemingly multiplying).
    You are creating a false dichotomy. It doesn’t have to be either the way of NW or meek acceptance. One can make forceful arguments yet still be respectful — Gene has been doing a very good job of it recently.

    As a general matter, extremists usually get tuned out by those that aren’t already on board to their message. If NW (or yourself) want to fight fire with fire when it comes to the likes of MM et al., it is impossible for me to stop you. However, the point I’m trying to make is that your passion and knowledge of the law would be best employed by focusing on helping the CAUSE rather than scoring points against the anti-patent crowd that haunt these blogs.

  29. Night Writer August 20, 2015 11:39 am

    >>MM made similar predictions (at least to the outcomes) as well.

    Not really. MM has just presented a consistent anti-patent message. For example, he used to argue that software was a natural law. In fact he did that for about 5 years and said that it would be held so by the SCOTUS. So, his predictive power is only in that he constantly predicts a negative outcome and many of the outcomes have been negative.

    What is interesting is that patentlyo continues to permit him to post despite the fact that he is almost certainly paid to do so. I don’t think one can view patentlyo as neutral to patents. Patentlyo must be taken with MM as a forum for the anti-patent movement lead by big corp. (And, by the way, there was even an advertisement for a paid anti-patent blogger on patentlyo several years ago. And the job description fits about the behavior from MM.)

    Curious, I understand your point. And do try to push my posts towards the persuasive end of the spectrum. One problem is that it is time consuming. For example, as to the Fed. Cir. judges it is just a matter of gathering data to prove what Google and Obama did. But, appointing a majority of the judges of the Fed. Cir. with no science background surely must be seen as scandalous.

  30. Curious August 20, 2015 1:13 pm

    MM has just presented a consistent anti-patent message.
    … which has (sadly) predicted the current state of affairs.

    What is interesting is that patentlyo continues to permit him to post despite the fact that he is almost certainly paid to do so.
    I have tweaked Dennis on that same point (or similar ones) on occasion — some going back many, many years. The fact that he tolerates MM’s antics gives me serious pause as to what impels him to allow that behavior. We are professionals and we should strive to act like professionals — particularly when publicly discussing our profession. Failing to address the unprofessional actions of members of the blog you are running almost raises to the level of the unprofessional actions themselves as the lack of corrective action is an implicit condoning of those unprofessional actions. This is why I’ve stopped posting on that website for quite some time now.

    For example, as to the Fed. Cir. judges it is just a matter of gathering data to prove what Google and Obama did. But, appointing a majority of the judges of the Fed. Cir. with no science background surely must be seen as scandalous.
    That data would be invaluable. As to the “no science background” aspect, that has frequently been the case at the Federal Circuit. We have to show that the percentage of “no science background” has to be significantly different than past percentages at the CAFC.

    As always, please remember that I’m on your side.

  31. Eric Berend August 21, 2015 5:04 am

    So: this arbitrary, deliberately manipulated logjam is likely to drift down the river, ever closer to the waterfall over which awaits a ‘Wild West’ future of trade secrets and industrial espionage wars.