Mark Cuban, a software patent troll who hates software patents

By Gene Quinn & Steve Brachmann
October 29, 2015

mark-cuban-335bRecently we have published several articles relating to the patent views and philosophy of Mark Cuban (here and here). Cuban himself read the articles and engaged in a vigorous debate on a variety of patent issues in the comments to those articles. During this back and forth Cuban remained steadfast in his dislike of software patents. While Cuban’s dislike of software patents is well known, given how he has in the past tried to capitalize on software patents financially it seems at least a little hypocritical.

In February 2013, Mark Cuban became the exact thing that he purportedly despises and, which he is quick to tell others, is wrecking the American economy. He became what many would call a patent troll by raising his personal financial stake in a non-practicing entity which was, at that time, enforcing its rights on a software patent for a technology that it wasn’t commercializing. While reasonable minds can certainly differ on whether Vringo is or is not an evil patent troll, the type of enforcement activity Vringo has engaged in would seem to unequivocally meet the definition of a patent troll by those, including Cuban, who have a strong dislike for software patents and licensing entities.

The genesis of the accusation that Mark Cuban is himself a patent troll has its roots in a multimillion dollar stake held by Cuban in the Israeli tech company Vringo, Inc. (NASDAQ:VRNG), which was suing Google, now Alphabet, Inc. (NASDAQ:GOOG), over patents that Vringo alleged gave it the right to extract royalties from Google’s U.S. revenues from its AdWords service. Vringo ended up winning an initial judgment in a jury verdict before the patents-in-suit were overturned on appeal in August 2014, nullifying Vringo’s earlier victory.

In what can only be described as surprising, or perhaps curious, it appears that Mark Cuban kept his investment in Vringo because of its suit against Google. In April 2012, Cuban took a 7.4 percent stake in a company that’s most valuable asset was a patent infringement case, which could have netted it as much as $250 million per year. Being a brilliant businessman, there must have been something attracting Cuban to Vringo other than its Facebook-integrated visual ringtone app or the company’s relatively slim revenues. Especially considering that fateful day in February 2013 when he reported to the U.S. Securities and Exchange Commission that he increased the number of Vringo shares he owned, from 1.03 million to 1.13 million. There seems little doubt that the prospect of an enormous payday thanks to the presence of software patents was what pulled Cuban to Vringo. 

In a response given to Business Insider on the subject, as well as a related piece published by Forbes Cuban explained that he did have certain investments he viewed as “a hedge against the unlimited patent exposure all the companies I have investments in face.” He would go on to say that “Vringo’s IP… is the flip side of that risk and offers an imperfect hedge. So I made the investment.”

While hedging risk is a well known and widely accepted investment tactic, there is something rather bizarre about someone who is such a vocal critic doing exactly what they criticize others for doing. How can it be viewed as anything other than hypocritical, or at the very least opportunistic, for the person who funded the Electronic Frontier Foundation Mark Cuban Chair to Eliminate Stupid Patents to being seeking a lottery like windfall on the back of software patents?

[Varsity-4]

To be sure, Cuban will almost certain say that those calling him a hypocrite just don’t understand. If the law allows someone to do something how could it be wrong to do that thing? It is certainly true that if the law allows for a loophole then those who seek to use the loophole shouldn’t be chastised for exercising their rights. However, when you are a champion to close a loophole and you simultaneously seek to use the loophole for financial gain that has to say something about just how deeply and sincerely views are held. It should be a legitimate part of the public dialogue so that others can fully understand biases, and that Cuban is walking both sides of the street.

If Mark Cuban had an investment stake in Vringo, and he really believed what he’s said about the evils of patent trolling and software patents in general, why not become an activist investor and advocate for Vringo to drop its suit entirely? The answer, which is blindingly obvious given Cuban’s business acumen, is that in the back of his head, in the bottom of his heart, he wanted Vringo to win its suit. Those are the very same actions and hopes of those he so vehemently criticizes, but when he is the one who is the patent troll somehow things are different.

So much of the patent debate is marked by a view that “my patents aren’t the problem, your patents are the problem,” but few episodes offer such a drastic and eye opening comparison. If patent trolls are ruining the economy, and patent trolls are those who own patent rights they did not invent, which is the definition offered by Cuban in comments on previous articles published on IPWatchdog.com, then Cuban is a patent troll who is ruining the economy. Why then would anyone take his self serving views of the patent system at all serious?

The one thing that is clear and needs to be at the center of any discussion involving Mark Cuban’s position on patent rights is that Mark Cuban does not care about you. It doesn’t matter if you are Google, a tech startup or the entire American system of innovation. In each case, Mark Cuban only cares about what you can do for Mark Cuban, and his focus is always on the companies he invests in. That is fine business policy, but given the fact that he is willing to become a patent troll himself it is hardly appropriate for Cuban to wrap himself in the flag and complain about the damage being done to the U.S. economy.

Cuban has an outsized influence in this patent debate, and is walking both sides of the aisle.  He has personally invested hundreds of thousands of dollars into the fight to stop what he characterizes as stupid patents, and he has invested millions into a business that only has those same stupid patents as the main asset. He may want to characterize that as a hedge, but it seems penny wise and pound foolish, or at least a little bit schizophrenic.

What makes this schizophrenic view of patents even more confusing is that Cuban does, at least at times, seem to understand the value of patents and why they are critically important to innovators and entrepreneurs. As many readers have noted in comments in our previous about Cuban, he is a regular investor on the reality television show Shark Tank, where contestants are often told that they need patents for their business ideas to succeed. This aspect of Shark Tank is something that was pointed out in a segment on the popular news comedy show Last Week Tonight with John Oliver (a segment which has its own inaccuracies, as we’ve pointed out elsewhere on this site).

What’s good policy for Cuban is not good policy for everyone. But Cuban will continue to tell you that it’s good policy for everyone. Why? Easy. Because that’s good policy for Cuban. His behavior in both the business and political worlds is further proof of the fact that Mark Cuban’s greatest interest at all times is Mark Cuban and never the American innovator. There is nothing wrong with hold self serving views, but Cuban’s on again off again hatred of patents based on who owns them is extremely telling. Indeed, Cuban’s position on patents seems akin to the weather in New England. If you don’t like it just wait for 15 minutes, it is bound to change.

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.

Gene Quinn

Steve Brachmann is a freelance journalist located in Buffalo, New York. He has worked professionally as a freelancer for more than a decade. He writes about technology and innovation. His work has been published by The Buffalo News, The Hamburg Sun, USAToday.com, Chron.com, Motley Fool and OpenLettersMonthly.com. Steve also provides website copy and documents for various business clients and is available for research projects and freelance work.

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 44 Comments comments.

  1. Night Writer October 29, 2015 10:04 am

    Wow, that is cool that you write blog posts like that Gene!

    I wish Mark would engage in real debate on these issues. He seems like a decent guy. My guess is that if he took the time to figure these things out that he would come around to be pro patent and be a great resource in ways to improve the patent system.

  2. IP Dealmakers Forum October 29, 2015 12:57 pm

    Open invitation to Mark and Gene to debate these issues at the upcoming IP Dealmakers Forum on December 7-8 in NYC. Our event is uniquely focused on connecting investors with IP. We guarantee a captive audience of influential investment and IP decision makers to whom you may present your views. Please reach out to us directly at wendy@ipdealmakersforum.com.

  3. step back October 29, 2015 1:18 pm

    Gene,

    Why pick on Mark Cuban?

    He is but a small time player in the scheme to dismantle America one brick at a time so we can be “Great”. Again. Like we were before we had patents.

    Why not pick on the Supremes, on Congress and on POTUS himself?
    They each share a greater responsibility for being scientifically illiterate and gullible to the trollish siren calls of them who call themselves “friends” (amici curie) of the system.

    http://patentu.blogspot.com/2015/10/dismantling-america-so-we-can-be-great.html

  4. EG October 29, 2015 1:30 pm

    Hey SB,

    It’s more fun to pick on Cuban who is a blatant hypocrite on this subject.

  5. step back October 29, 2015 1:32 pm

    Ah serendipity.

    Just on time for this line of thought, our friends over at Patent Docs validate my point. “They” are out to dismantle America one brick at a time with a well funded disinformation cabal.

    http://www.patentdocs.org/2015/10/pigs-fly-hell-has-frozen-over-and-the-new-york-times-supports-small-inventor-and-university-patentin.html?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+PatentDocs+%28Patent+Docs%29

  6. step back October 29, 2015 1:38 pm

    Mark Cuban may bring eyeballs to this site due to his Shark Tank notoriety.

    But you can tell from his weak and tepid arguments that he is but a follower and not a thought leader when it comes to flinging mud pies at the notion of “software” patents.

    In our modern world almost everything is driven by software.

    As Danny Hillis correctly predicted, even the door knobs to our front doors are driven by software (especially if you live in hotels –as probably Mark Cuban often does).

    So when you knock out all patents that make use of software, you knock knock out all patents that give rise to our modern way of life. (Yes that was a knock knock joke.)

  7. Post Script October 29, 2015 1:41 pm

    Hi Gene,

    Please see the link below for a discussion about a patent application on which Mark Cuban is an inventor.

    http://fivethirtyeight.com/features/can-an-astrophysicist-change-the-way-we-watch-sports/

    The application has not published yet (I did a few searches and came up empty). Anyway, from the summary in the article, I would venture a guess that it is a software patent application.

    I sent the link to you via the IPWatchDog email link on Sunday, I believe, and thought you may have rolled this in when I saw the title of the article. Just figured I would pass this along to the readers as well, should anyone be interested.

  8. Common Sense October 29, 2015 1:51 pm

    Mark Cuban is a hypocrite.

    But the patentee-rights voices attacking him are also hypocrites. You’re supporting a world where this game playing is lucrative. His hypocrisy absolves you of nothing.

  9. Mark Cuban October 29, 2015 3:34 pm

    You can’t help but prove over and over again gene that you prefer to operate in a delusional vacuum that dismisses anything I say that you don’t like

    It’s as if you think I’m lying about everything.

    Rather than doing the work and looking to see that my total investment in vringo was TINY .

    Its less than i spend defending against patent trolls

    Let’s just call it what it is. You are the worst of all trolls. You just use this site as your platform

    It comes down to one of two things now gene. Either I’m a liar and everything I said about patents is a lie

    Or you have no integrity

    I’m not a liar

  10. step back October 29, 2015 4:04 pm

    Mark,
    Not even a Malcolm Gladwell outlier? 😉

  11. David October 29, 2015 4:22 pm

    Gene – the tone of your piece if unfortunate. Discourse of this variety is not productive.

    Why don’t you invite Mark to publish a counterpoint?

    At this level, disagreement should be civil.

  12. John Willkie October 29, 2015 6:01 pm

    Having first engaged Mark Cuban in discussions about “software patents” in 1999, I’ve always found his opposition to software patents (as opposed to those based on physical devices) to be emotional (at best) and not based on addressing intellectual property, well, intellectually. His recent posts on this site have only confirmed my earlier observations.

    Just because a (claimed) hedging investment in Vringo is small doesn’t make that investment consistent with Mr. Cuban’s long-held emotionally-based position. Yes, companies that Mr. Cuban has started and has invested in have been targeted by firms that claimed their intellectual property was being infringed upon. Simply, “that’s business life.”

    This can’t come “down to one of two things.” This parry isn’t even up to the metrics of a “false dichotomy.” Gene having integrity or not is orthogonal (has nothing to do with) whether Mark (note how I capitalize proper names) is a liar or not. Mark’s views on patents aren’t falsiable — they are opinions, and unless Mark doesn’t believe what he is saying, they can’t be lies. Emotions, after all, are expressions of how one feels about something; beyond being authentic expressions or not, they can’t be classified as lies.

    The issuance and existence of a patent is a fact. How one feels about that patent is irrelevant, at least until one is accused of infringement. What one does in response to a patent infringement suit amounts to a fact. You either “put your money where your opinion is” (a la Newegg, a la Cisco) and spend usually uneconomic sums to have the patent invalidated or otherwise overturn the challenge, or you settle with the patent holder, perhaps reserving the right to call the owner a troll.

    And, were one to look a bit, I believe that one would find out that more often than not, Mark Cuban whines about patents but has never mounted — let alone won — a real patent defense. Funding an EFF chair is not a patent defense.

    One can seem to be a hypocrite on both sides (offense and defense) on this issue. I’d love to see an exploration of what companies owned and controlled by Mark Cuban have done in the face of a patent challenge. If I remember correctly, the first challenge came up in the 1990’s.

    By the way, I enjoy “Shark Tank.” Mark Cuban is the big draw there, and I am especially interested when he inquires about the patents that a suitor has. Sometimes, they are for physical implementations, and I seem to remember one that was about a software application.

  13. Gene Quinn October 29, 2015 6:29 pm

    David-

    Frankly I have no idea why you would say the tone of the article is unfortunate. Mark Cuban says he hates software patents and then invests in a company that is suing Google? That seems to be the very definition of a hypocrite. His actions are different than his opinions. If he hates software patents so much he shouldn’t have gone troll. Now I’m not saying I think Vringo is a troll, but by Cuban’s own definition Vringo is a troll.

    As far as your statement about disagreement being civil, I agree. And absolutely nothing in this article was uncivil. I suspect you don’t like the fact that I called him a hypocrite. That, however, isn’t name calling at all. It is perfectly descriptive.

    I have repeatedly invited Mark Cuban to do an in depth interview with me and he has yet to take me up on the offer. I’d gladly publish an op ed or rebuttal from Cuban, but I’m not going to hold my breath and I’m not going to beg him.

    -Gene

  14. Gene Quinn October 29, 2015 6:39 pm

    Mark Cuban-

    You saying I have no integrity is enormously comical. You hate software patents and invest in a company that sues Google. Others may be swayed that this is some kind of legitimate hedge investment, but you and I both know that for someone with your resources there are tens of thousands of investment opportunities that don’t require you to violate what you proclaim is a core belief. So save the hedging your bets for someone who isn’t familiar with the concept of ethical investing.

    I don’t recall saying you are a liar. Saying you are a hypocrite is different. You are like so many others — do as I say, not as I do. Your position on patents is all over the place, and you knowledge of the appropriateness of copyright protection for software is naive.

    I’ve invited you do do an interview, but you refuse. If you want to write a rebuttal I’ll publish whatever you send. I’ll still gladly do an interview. But you are a public figure with disparate views on patents depending upon what is convenient. I personally have no problem with anyone looking out for themselves, but when your positions are anything but nuanced, when your positions at times are diametrically opposed to what you proclaim are your strongly held believes, then a commentator such as myself is entitled to call you on it.

    I don’t think you are a liar. I think you hate software patents, but you are not going to let your principles get in the way of trying to make a fast buck even if that means you have to become a patent troll (based on your own definition). Given your celebrity status and willingness to engage in the debate you have outsized influence. I think you need to exercise that more judiciously, and when your views seem to change depending upon whether you are suing or being sued I think that is fair game to expose so others can take into account your bias.

    So I’ll ask you again, why are you afraid to do an interview with me? You don’t strike me as the type of guy who ducks hard questions or who is unwilling to mix it up. I think an interview would be fascinating. We can talk about whatever topic you want to talk about and anything you want off the record can be off the record or out of bounds for the conversation. Ask around. You’ll find that those who have engaged me in such discussions have never questioned me or the process or the result.

    We obviously disagree on a lot, but a conversation can be passionate and civil. If you never agree no one will ever know, which is unfortunate.

    -Gene

  15. Gene Quinn October 29, 2015 6:44 pm

    Mark Cuban-

    I see that Wendy has invited us to do a discussion at IP Dealmakers in NY in December. See comment #2. I’m game if you are game.

    -Gene

  16. Gene Quinn October 29, 2015 6:48 pm

    Step-

    Why pick on Mark Cuban? First, I really don’t think I’m picking on him, although I understand why he may feel that way.

    Second, we have a long standing bias with respect to exposing hypocrisy and taking on the popular misconceptions about patents and innovation, whether it is in the media or from those who are high profile. Because of Cuban’s high profile he has an outsized voice, so I think it is important for those who may otherwise be predisposed to want to believe him to understand all the intricacies of his positions.

    I do pick on SCOTUS a lot, and Congress even more. President Obama not so much because I doubt he is really intimately involved in patent or IP policy. Although the TPP would be a disaster, so look for more on that with respect to bio and pharma.

    -Gene

  17. Paul Morinville October 29, 2015 11:03 pm

    Gene, Cuban will not debate you. He will continue to sit in the back of the class shooting spit balls at the blackboard like a 50 year old juvenile delinquent. The truth is he can’t debate you. He knows nothing about how patents drive capital to early stage companies and fears revealing that doltishness to his shark tank audience.

  18. angry dude October 29, 2015 11:09 pm

    David@11

    “At this level, disagreement should be civil.”

    Well, if we equate patent “exclusive” rights to land leases on new frontiers in the good old days then I’m wondering how you would keep the smaller participants in this “civil” discussion from reaching to their guns…
    People don’t liked to be robbed, much less to be legally robbed by potus courts changing the rules 180 degrees AFTER the deal is made and money is paid

  19. Paul Morinville October 29, 2015 11:12 pm

    angry dude, There is no need to justify why we small guys would lash out at Cuban. He put himself into it with both feet even naming his lobbying group after himself. He’s an ego maniac and a coward. He deserves whatever he gets from small inventors.

  20. angry dude October 29, 2015 11:23 pm

    Paul Morinville@19

    There is more to this…

    After discussion on this blog everyone and his dog knows that Mark Cuban-owned US Patent 8738278 is INVALID

    http://www.google.com/patents/US8738278

    Good luck trying to enforce it in court, Mark 🙂

  21. Night Writer October 30, 2015 6:52 am

    >>People don’t liked to be robbed, much less to be legally robbed by potus courts changing the rules 180 degrees AFTER the deal is made and money is paid

    From several credible sources, I’ve seen estimates that a software patent is now worth about 20 percent (at best) of what it was before Alice. What shocks me is that most commentators still try to sell Alice as if it is statutory interpretation. It is not. It is the SCOTUS deciding that it is unconstitutional to grant a patent for anything that fits the test defined in Alice. And, what is so shocking about this is that it is based on a finding of fact by the SCOTUS.

  22. Night Writer October 30, 2015 6:54 am

    @Mark Cuban: Come on Mark, engage—figure out patents. I’ll bet that you won’t like the world of no patents, which is where we are headed.

  23. Ray October 30, 2015 7:41 am

    well there are some good points on both sides of this argument. I’d like to just add that investing should not be emotional and smart investors usually find ways to hedge there bets. A hedge can be thought of as insurance and we all know if you collect on insurance it means something bad has happened. In fact it is the opposite of your investment thesis. For example, if I bought the bonds of AIG prior to 2008 meltdown, I may have also dealt in AIG credit default swaps (CDS) for insurance. In the event the AIG bonds defaulted, I would have been protected by the CDS. Would anyone accuse Mark Cuban of not being a sophisticated investor not capable of creatively hedging his investments? We all know the answer to this. So Gene, sorry I don’t think Mark Cuban making a hedge investment is hypocritical.

    IMHO and much more important WRT to this debate, I’ll also say that Mark Cuban is dead wrong with his position on software patents. Software patents are crucial to the long term success of the US innovation economy for all the reasons Gene Quinn has stated at length.

  24. step back October 30, 2015 7:43 am

    Night Writer @21

    That is a good point you make.

    What shocks me is that most commentators still try to sell Alice as if it is statutory interpretation. It is not. It is the SCOTUS deciding that it is unconstitutional to grant a patent for anything that fits the test defined in Alice.

    We should post a comparison of Graham v. Deere and Alice v. CLS.

    In Graham the Supreme Court stepped carefully as if not to break eggshells and followed the words and logic of 103 with near surgical exactitude.

    In Alice the Court boldly went where no appeals court can rightfully go, shoving Humpty Dumpy of his perch and seating their royal duffs in on his place. There is nothing in either 101 or science per se that justifies the jiggery pokery mock that they made up out of invisible Emperor’s thread.

  25. Night Writer October 30, 2015 9:04 am

    step back @23: Alice really overrules Graham too.

    What shocks me so much about Alice is what an enormous bite it represents and yet it is based on a finding of fact that any claim that fits the Alice test was granted unconstitutionally. That is simply stunning when you are talking about at least 10’s of billions of dollars gone based on a finding of fact that any claim that fits the test in Alice “tends not to promote” and therefore was granted unconstitutionally and is therefore invalid. Stunning in the breadth. Stunning.

    I would say there are practically no boundaries for the SCOTUS. They are making the laws and re-writing the Constitution.

  26. Anon October 30, 2015 9:51 am

    The emperor really does not have any clothes.

    Those calling for “politeness” and “civility” are akin to the cowed adults trying to shush the child who points out what the adults “don’t want to see.”

    Let’s all be “polite” AFTER the elephants in the room are addressed and wax nose is removed from those mashing it to fit their philosophical views of “invention” (or what is allowed to be covered by that term). The Court is not above the US Constitution, and there are very real limits for that Article III branch of the government.

  27. angry dude October 30, 2015 10:06 am

    Night Writer@24

    “… talking about at least 10’s of billions of dollars gone…”

    This part gets really interesting.
    At the end of 2014 well-known Erich Spangenberg made a few predictions in his blog.
    One of those predictions was that major GAAP writeoffs were coming to account for huge loss of intangible values on corporate balance sheets due to patents being devalued
    Has anyone seen any of this ?
    How can corporations still list their patents on their balance sheets and assign some monetary value to them if the real patent value is gone ?
    When do we see a class-action lawsuit from shareholders to force a corporation to make those write-offs ?

  28. Night Writer October 30, 2015 10:21 am

    @26 Angry >>How can corporations still list their patents on their balance sheets and assign some monetary value to them if the real patent value is gone ?
    When do we see a class-action lawsuit from shareholders to force a corporation to make those write-offs ?

    I had forgotten about this. Those are great questions. I’ve seen very respectable people that do portfolio analysis say that a software patent is only worth 20% of what it was worth pre-Alice (and pre-AIA too.)

    Great observation. I wonder even about the so-called “trolls”. Companies like that would be the ones to take a close look at.

  29. xtian October 30, 2015 10:34 am

    Mark States: “Rather than doing the work and looking to see that my total investment in vringo was TINY .”

    It is interesting to note that Mark’s justification for “hedging” is that the hedge bet is small (at least in terms of his dollars). There’s relative morality and then there’s the new word that I am coining: “monetary morality.” Only if the investment is “alot of money” then the positions are in apposite.

  30. angry dude October 30, 2015 10:58 am

    Night Writer@27

    Here is the link to Spangenberg’s blog:

    http://www.ipnav.com/blog/erich-spangenbergs-patent-predictions-for-2015/

    Well, it’s good to know that some of his doom and gloom predictions about “patent reform” haven’t materialized .. at least not yet…

  31. Anon October 30, 2015 11:19 am

    The write-off question has been discussed (minorly) on a couple of threads here.

    My current understanding is that a large majority of such write-offs will NOT happen because internal asset development is not reflected on the books (not sure I buy that line of thought fully, mind you – questions of the value of goodwill remain regardless of whether patent assets were internally developed or acquired – with associated acquisition costs that would require treatment).

    Perhaps an expert in tax or business valuations could weigh in.

  32. Night Writer October 30, 2015 11:47 am

    >>>Well, it’s good to know that some of his doom and gloom predictions about “patent reform” haven’t materialized .. at least not yet…

    I don’t know. We’ll see. I’ve said it before and I’ll say it again, I think this is like employment law and anti-trust law. The big corporations just ate them away piece by piece year by year. I don’t see this stopping.

  33. Anon October 30, 2015 5:02 pm

    Night Writer @ 32,

    Well then, we have a case of a “boiling frog,” then do we not?

    The old adage about boiling a frog in a pot of water is to bring the temperature of the water up little by little. The frog acclimates to the gradually rising temperature and will not jump out of the pot until too late.

    Try that with raising the temperature quickly, and the frog leaps out and CHANGES the situation.

    Maybe we should all push for the maximum disruptive application of what the Court is doing and apply maximum heat so that Congress finally takes notice and removes patent appeal jurisdiction from the Court.

  34. nat scientist October 30, 2015 6:24 pm

    The facts are that the City of software patents is burning down, and a larger-than-life convert to Clarity would be H-U-G-E rather than a giant peeing on our legs, saying our pants are on fire. Saul of Tarsus, back to the future.

  35. step back October 31, 2015 8:37 am

    Night Writer @25

    Yes that is an astute observation.
    The Supremes have effectively erased sections 102 and 103 out of the Congressional legislation because inventors never get to that part so as to demonstrate the novelty and nonobviousness of their respective discoveries. Inventors are now, thanks to Alice, de-secured from the rights conferred by sections 102 and 103 even though the Constitution says that Congress is supposed to “secure” such rights for inventors of new and useful discoveries.

    This is not your father’s careful and prudent Supreme Court.
    There is a new circus in town.

    http://patentu.blogspot.com/2015/10/alice-omelette-poured-generously-over.html

  36. Anon October 31, 2015 10:15 am

    There (remains) a huge elephant in the room.

    The Court is violating the separation of powers – pretty much no matter how you look at what it is trying to do with the entire question of 101.

    It is either actually writing statutory law – which it does not have authority to do… or

    it is “interpreting” statutory law in direct violation of the Act of 1952 – by straight up ignoring history and understanding of why Congress acted in 1952 to repulse the anti-patent Court and that Court’s treatment of “Gist of the Invention” in the then permissible common law evolution of the term of “invention” that the previous Congress had shared with the judicial branch. The elimination of this common law authority can be found in the words that Congress used, the Congressional record (see the notes of 103 per the Cornell Law web site) and in the writings of those most familiar with the intent of Congress – in part because they helped Congress write those very words – see the writings of Federico and Rich,… or

    either way what is “now” statutory law fails a fundamental aspect of statutory law (yes, applicable to civil law – as typically it does with civil laws dealing with property rights – and not just criminal law), in that we have a serious “Void for Vagueness” problem, in that in wanting to maintain its “judicial grip” on patent law, the Court has refused to provide enough clarity to the law. To use a playful, if not admittedly childish analogy, the Court has royally screwed up in its desire to keep its finger in the wax nose of patent law.

    (and I do not even [yet] return to the notion that in order to do any of this, the Court is necessarily violating the “no advisory opinion” limitation on its authority as it uses a mere future conjectural and speculative “may” and “might impact” language in its attempt to merely implicate a “harm” in its reach to mash the law)

  37. Anon October 31, 2015 10:27 am

    oops – forget one: by using the words it has actually used – and choosing to not limit itself in the Alice case, the Court has rendered its (implict, explicit, either, or both) exceptions as Swallowing the very words that the Congress has used.

    To wit: in the Alice case, what was NOT at issue before the Court – since both sides stipulated to this condition – was that the statutory category of “machine” was met by at least some of the claims in question.

    It is critical to note that a “hard goods” category result of a portion of 101 was deemed met, and that this was NOT an issue before the Court.

    And yet, the direct holding of the Court is a result that this portion of 101 is rendered meaningless. It is as if that portion of 101 simply did not exist. It is all fine and dandy for the Court itself to “warn” of the danger of “treading lightly, lest the exceptions swallow the rule,” but when they themselves render a verdict – complete on its face – that does the very thing they warn about, and sets forth no limits to stop what they warn, then their decision is necessarily – and fatally flawed.

    If I were the CAFC (and had the judgment of Solomon/Rich), I would take the next case – and explicitly rebuke the Supreme Court for its actions and declare that any such attempted holding by the Court lacks proper authority and cannot be binding.

    Would this “create a crisis?”

    I daresay that any such crises pales to the crises we already have. Even if we don’t know (or don’t want to point out that the emperor is very, very naked).

    Even (especially?) the doctrine of constitutional avoidance cannot undue the Gordian Knot woven by the Court treading where is just was not supposed to tread.

  38. Anon October 31, 2015 10:37 am

    step back @ 35,

    The Court in Deere was “walking on egg shells” and slipped much into “the record” with dicta because that case was a mere 14 years removed from the rebuke of Congress in the Act of 1952.

    This wanting control over the meaning of patent law is NOT a new thing.

    But look what happens when We (the Royal We) become lackadaisical about the separation of powers and the strength of the patent right. We see an accelerating over reach of the judicial branch, which has long been tending to an anti-patent animus.

    Maintaining strong (and proper) separation of powers was very much on the minds of our founding fathers, and we appear to have fallen asleep to the dangers of a Court that deems itself able to make law when it wants to.

  39. Night Writer October 31, 2015 11:26 am

    Everyone should contemplate that each time a claim is invalidated under Alice that the holding is the claim was granted unconstitutionally because the SCOTUS has made a finding of fact that any claim that fits into the procedure outlined in Alice “tends not to promote”. So, the SCOTUS is saying that their finding of fact trumps Congress and the PTO. It should stun anyone. (Note again that as Bork pointed out when the SCOTUS creates these words like abstract that they have a life of their own.)

    I think there are Constitutional challenges here to contemplate. What about Chevron deference? Isn’t the fact that the PTO granted the claim mean that the PTO has evaluated the claim and has determined that it does tend to promote?

    (As one example of the challenges that could be made.)

  40. step back October 31, 2015 10:52 pm

    Night Writer @39

    You are 101% on target.

    Recent actions of the Mount Olympus Nine reek of due process violations, withholding of equal protection of the law, procedural improprieties, an incompetent appeals court making findings of fact that they have no right or competency to make, taking of property from inventors without compensation, fraud= making promises to inventors and not keeping them, and … well the mind boggles at trying to find an end to this list of atrocities.

    In terms of due process, consider that normally a person who is threatened with having life, liberty or property taken away by government has a right to confront his attackers, to cross examine them. (Somewhere in the 6th Amendment if memory serves.)

    However, thanks to the “friends” of the court procedure (amici curie briefs) the whole due process system is bypassed when the Mount Olympus Nine get to arbitrarily and capriciously pick their supposed “friends” and use the alleged “facts” proffered by the supposed “friends” without giving the accused any opportunity to cross examine the supposed “friends” and show them up for the charlatans they really are.

    In this way the Magnificent Nine get to form their comprehensions of “science” and “fundamental motive principles”, “abstract ideas”, plucking leaves from DNA trees and so on; where all of this is rooted in deceptive manipulation and against which the small time inventor has no defense or opportunity for defense.

    It is no longer practice of law. It is pure political circus.

  41. patent leather November 1, 2015 11:33 am

    The ultra wealthy are only concerned with one thing, preserving their wealth. Cuban is worth more money than anyone can possibly need in a lifetime. Thus, he is more worried about being sued and losing part of his fortune than using our patent system to make more money. The problem is, as Gene touched upon, the ultra wealthy have a larger voice than the average person and can use their status for the bad (or good) of society. In this case, Cuban’s railing against the patent system will certainly do more harm than good.

    I’d still like Mr. Cuban to answer my questions posed on the other threads, that is, without patents how are startups in the software industries going to get investments and get off the ground? Cuban may not realize that his experiences and good fortune are the exception and not typical.

  42. nat scientist November 1, 2015 3:41 pm

    We can unleash the muses of creation in a way that Mr, C might agree: to render immunity from infringement of software patents to an individual practitioner who has majority ownership and skin-in-the-game. Let the games begin and forget about that unemployment business in the various valleys of the USA.

  43. Anon November 1, 2015 4:41 pm

    nat scientist…

    Rendering “immunity” to infringers is the siren song of the established large entities.

    Please inform yourself.

  44. John C Wentworth December 9, 2015 4:14 pm

    Cuban sold VRNG along time ago. He got out after bought the stock in the pennies.