USPTO Director Michelle Lee delivers pro-patent speech at MIT

By Gene Quinn
March 31, 2016

Michelle Lee, Under Secretary of Commerce and Director of the USPTO

Michelle Lee, Under Secretary of Commerce and Director of the USPTO

Earlier today United States Patent and Trademark Office Director Michelle Lee returned to her old stomping ground to deliver what can only be characterized as pro-patent speech at the Massachusetts Institute of Technology. Lee told an assembled audience that the “role of IP in promoting innovation is more important than ever.”

Although not specifically about software patents, Lee’s prepared remarks have the same pro-innovation, pro-innovator, pro-patent feel of the famous (or infamous) software speech David Kappos delivered at the Center for American Progress in Washington, DC, on November 20, 2012.

Lee’s prepared remarks went on to say:

It wasn’t so long ago that the most valuable assets of companies were often tangible—like their plants, warehouses, and inventory.

Today, however, the most valuable assets of many of our country’s most valuable companies are increasingly intangible — their inventions, algorithms, processes, designs, and brands—their intellectual property.

And because these intangible assets can be more easily copied, the system we use to protect and enforce IP rights is critical to protecting investment and American competitiveness.

Focusing on the need to protect investment has been one of the major points raised by those in favor of a strong patent system. Investors prefer to invest in companies that have patented technology. As prolific inventor and founder Jay Walker has said best, “At the end of the day if you do not own the exclusive rights to the problems you are solving you are going to get copied at an astronomical rate. If we can’t own the solution to the problem the last thing I want to do is invest in the solution.” A focus on the importance patents play in protecting investment suggests a real appreciation of the plight of the start-up innovator, which has been largely missing from the patent debates for much of the last 5 years, perhaps longer.


Lee explained that lessons on the importance of IP were driven home to her when she recently visited China, pointing out that IP rights being critical to protect investment is something that is often mentioned in her meetings with our economic competitors. “China wants an economy more like ours, in which innovation and IP plays a greater role than low-cost labor,” Lee explained. China wants to strengthen it’s IP protection and enforcement “not just because their trading partners are requesting it, but because China views it as necessary… to an innovation-based economy with technologies developed in China that provide products and services higher up on the value chain.”

Lee would go on to explain that the U.S. economy needs more start-ups, but that start-ups unfortunately can face substantial hurdles caused by frivolous lawsuits or defendants simply sending threatening demand letters. This is a topic Lee, other Administration officials and many Members of Congress have discussed in the past.

What was new, or at least felt new, in Lee’s speech today was an explicit recognition that abuse can and does happen on both sides, which is something that those in the pro-patent camp have repeatedly pointed out over and over again.

To be perfectly honest, the Patent Office will likely quibble with the characterization that Lee’s recognition that abuse happens on both sides of patent disputes as being “new.” They, and she, would be correct to point out that this is not the first time she has mentioned or recognized that abuse can happen on both the patent owner and on the defendant side of a dispute. Up until today, however, Lee’s comments were rather non-specific and seemed (at least to me) less substantive and not particularly in tune with the reality that innovators can be and in fact are pushed around by larger infringers with alarming frequency.

Today Lee’s comments struck a very different tone, and she seemed to be unafraid to talk about patents in a positive light, or at least in a way that I have not heard her speak about patents before.

Lee explained:

Abuse can also happen on the defendant’s side, when a defendant draws out the time and expense of a baseless defense, hoping the plaintiff has neither the will nor resources to pursue its claims.

Either way, abusive patent litigation can have a devastating impact on innovators, especially startups, since the cost of patent litigation can often exceed the amount of its latest round of funding.

USPTO recognizes that there is a cost to society if we issue patents we should not have, just as there is also a cost to society if we don’t issue patents that we should.

This tension speaks to a fundamental balance that I believe the patent system must achieve, between (1) incentivizing innovation and (2) allowing others to make improvements to existing technologies.

It will no doubt be music to the ears of the pro-patent community to hear Lee explicitly recognize the very real cost to society that occurs when patent examiners do not issue patents that should be issued, which I have long written is a very real problem that deserves far more attention than it receives. To have it treated by Lee on an equivalency level with the cost of issuing bad patents is astonishing in a very good way. We hear all the time about the costs of bad patents, but rarely do we hear about how devastating it is for innovators who have their innovations buried at the Patent Office. That prevents investment and stops promising start-ups before they ever really get going.

Following up on this point Lee used the example of a MASER, which stands for Microwave Amplification by Stimulated Emission of Radiation. She noted that the first patent was issued in 1960, the inventors (Charles Townes and Arthur Schawlow) are now members of the National Inventors Hall of Fame, and that more than 55,000 patents relating to MASER technology were granted, which generated billions of dollars and improved lives in countless ways.

The point was clear — granting patents does not inhibit innovation, nor interfere with economic activity. “Design arounds, or follow-on innovations, are a key part of what the patent system is meant to encourage.”

Indeed, the patent system offers what are supposed to be very strong, exclusive rights to the patent owners. They are supposed to create hurdles, real barriers to entry. By creating exclusivity that amounts to a real barrier to entry you encourage creative minds to engineer around to find solutions that will not infringe. That is how innovation is pushed forward, and occasionally we find that innovation takes giant leaps forward when meaningful roadblocks are put in place.

When you have weak patent rights and no real fear of consequences for infringement you either get no innovation or you get incremental innovation that crawls forward. There is no need to do anything original when you can simply take what someone else has done without pain or penalty.

This speech by Director Lee is exceptionally important for two reasons. First, the strong and explicit recognition that abuse can and does happen on both sides of a patent dispute, which can and does lead to large companies taking advantage of smaller innovators. Second, the explicit appreciation of the fundamental purpose of the patent system, to create strong property rights that require others to design around as they seek follow-on innovation.

It will be interesting to watch what, if anything, becomes of this speech from a policy perspective. One would imagine that in the carefully orchestrated Obama Administration this speech would not have been given without the knowledge and approval of Commerce Department officials, and perhaps even some within the White House. Time will tell, but it is possible that we may look back on this speech as a turning point in the patent debate, which ushers in a new appreciation for the trials and tribulations of innovators.

UPDATED: March 31, 2016 at 4:24pm ET

The Author

Gene Quinn

Gene Quinn is a Patent Attorney and Editor and President & CEO ofIPWatchdog, Inc.. Gene founded 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 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 Read more.

Discuss this

There are currently 36 Comments comments.

  1. Night Writer March 31, 2016 4:38 pm

    1) How is it that we have a software industry that is ten times bigger than any other country’s and yet the Lemley argues that this patent system is crushing the software industry. And note that the countries that cannot compete with us do not have protection for software, but do have protection for other technologies where they do compete with us. Almost a proof that the patent system is working–yet just like in fiance somehow the sun revolves around the earth and it is hurting the innovation.

  2. Night Writer March 31, 2016 4:39 pm

    My first reaction to Lee was the more publicly she is supporting patents, the more she is likely crippling them with new plots at the PTO.

  3. IPdude March 31, 2016 4:44 pm


    Doesn’t this feel more like her playing politics and placating a disgruntled demographic? Is there anything that points to her making an effort to actually be pro-patent, like addressing the ambiguity of 101 cases, changing rigged and unfair PTAB practices? I believe she’s even asked SCOTUS to put off addressing Cuozzo (IMO, so that she can continue to carry out Google’s mission of destroying software patents). Actions speak louder than words.


  4. Appearance of ... March 31, 2016 5:02 pm

    “But enough of words. Actions speak louder than. Action now. Observe all.” From “A Clockwork Orange”.

  5. Gene Quinn March 31, 2016 5:41 pm


    Actions certainly do speak louder than words, I agree wholeheartedly. I do think it is fair to notice, however, that this speech has a very different tone than in the recent past, so we now wait to see whether it will translate into different policies, or positions from the Obama Administration over the next 10 months. Time will tell, but it is better than the typical rhetoric that either doesn’t mention the plight of the innovator or gives it very short attention.


  6. nat scientist March 31, 2016 5:55 pm

    “Sincerity – if you can fake that, you’ve got it made.”

    ? George Burns

  7. step back March 31, 2016 6:04 pm

    There you go again.
    Falling for that trickster’s word, “innovation”.

    Innovation and invention are two different things.

    Invention describes what happens at the point of origination.
    Innovation on the other hand, describes what happens at the recipient end, from the recipient’s point of view and irrespective of what happened at the point of origination.

    If I deliver to someone who’s been living under a rock a copy of an invention I stole from the true inventor, then by definition I am an “innovator” because I brought something to the recipient that the recipient perceives as “new”.

    The present administration loves to roll that “innovation” word off their tongues time and again. I don’t hear them saying anything nice about “inventors” and securing for said inventors the exclusive rights to their new and useful discoveries. It’s as if the Constitution and section 101 of the Patent Act do not exist. Instead we live in an innovatively innovative double-speak logic world.

  8. Gene Quinn March 31, 2016 6:27 pm

    Step back-

    Come on man! You know me better than that! I know the old bait and switch game about innovation meaning putting a product on the market, even if it infringes your patent it is still new to me and therefore innovative. What a garbage!

    Still, if you read the speech this is a very different Michelle Lee. At least I’ve never heard her talk about abuse going both ways as being an equivalent problem. Many former Directors and Commissioners have talked about the real costs of not allowing patents that should issue, which is why the USPTO has historically had a bias to allow, which admittedly hasn’t been the prevailing wisdom for much of the Bush 2 and Obama Administrations (save the Kappos golden era). So Lee talking about the problem of examiners refusing to allow when allowance is proper definitely strikes a different tone.

    My analysis of the PTO lately has been rather hard hitting I think. I’m just trying to call balls and strikes here. If the next pitch is a ball or a wild pitch I’ll point it out. But this one seemed straight over the plate if you ask me. The real question will be whether it is followed up with another strike and then then another and a series of actions or at least the PTO advocating policies on Capitol Hill that help innovators. That would be a welcome change.


  9. Curious March 31, 2016 6:39 pm

    Lee would go on to explain that the U.S. economy needs more start-ups, but that start-ups unfortunately can face substantial hurdles caused by frivolous lawsuits or defendants simply sending threatening demand letters.
    Ah yes … patents are hurting the little guy spiel. Therefore ….. we need to put a stop to this. Let’s forget, for a minute or two, that (i) “startups” are likely so small that they will be off the radar screen of anybody looking to assert their patents, (ii) if a startup does hit the radar screen either (a) their revenues are so small that any requested amount for licensing the patent should be proportionately small or (b) the start isn’t a “little guy” anymore and likely has a very high valuation and (iii) the startup is very well likely infringing a valid patent (or at least a valid patent until the PTAB gets a hold of it) and needs to be better aware of what they think is “innovation” might very well be “infringement.”

    By raising that point (which is really an argument for LESS patent protection) instead of pointing out how startups get less investors when they don’t have some protection for their innovations, Lee isn’t make a strong “pro-patent” statement. Instead, she is dressing up her anti-patent stance in the guise of being pro-patent.

    since the cost of patent litigation can often exceed the amount of its latest round of funding
    Where did she pull that number? Out of her &^%? I could write a 3 page post on how improbable that statement is.

    not particularly in tune with the reality that innovators can be and in fact are pushed around by larger infringers with alarming frequency
    Can I get an “amen” in the house?

    This tension speaks to a fundamental balance that I believe the patent system must achieve, between (1) incentivizing innovation and (2) allowing others to make improvements to existing technologies.
    There is no balance — you don’t get to (2) unless (1) happens. They go hand-in-hand. Others can and will accomplish (2) no matter how strong (1) because strength of protection for the innovation also equates to strength of protection for the improvement. For example, if the original inventor wants to take advantage of the improvement (and the inventor of the improvement wants to take advantage of the original invention), then they have both have an incentive to fairly negotiate over the relative value of their respective inventions. <– this happens all the time. However, if there is little incentive for innovation (1), there will be just as little incentive to make an improvement on that innovation (2).

    Indeed, the patent system offers what are supposed to be very strong, exclusive rights to the patent owners. They are supposed to create hurdles, real barriers to entry. By creating exclusivity that amounts to a real barrier to entry you encourage creative minds to engineer around to find solutions that will not infringe. That is how innovation is pushed forward, and occasionally we find that innovation takes giant leaps forward when meaningful roadblocks are put in place.
    Can I get another amen in the house. Strong patents can encourage competitors to take entirely different paths — explore avenues that wouldn’t have been explored except for the huge roadblock in the form of a patent. Although not always, these avenues not previously explored can lead us to great heights. Overcoming obstacles leads to greatness — not by taking the easy path (i.e., by copying someone else’s technology).

    It will be interesting to watch what, if anything, becomes of this speech from a policy perspective.
    I am reminded of the illusionist that says “watch my wand waving over this hat …. and ignore the man behind the curtain.” I suspect Lee’s statement are more about misdirection than changing direction.

  10. Stephan Curry March 31, 2016 8:21 pm

    Herr Director is probably getting a conceited satisfaction that we just wasted 15 minutes of our billable time or 15 minutes of in-house time trying to analyze her comments and facially pro-patent comments and how we are suppose to act surprise that she is acknowledging the little guy in abusive litigation.

    Even some paragraphs in her speech seems purposefully recycled from her past speeches previously loaded in the pto website.

    Enjoy it, Herr Director. Jawohl Mein Kommandant.

  11. Curious March 31, 2016 9:16 pm

    wasted 15 minutes of our billable time or 15 minutes of in-house time trying to analyze her comments and facially pro-patent
    Honestly, it didn’t take 15 minutes (more like 30 seconds) — then again, based upon her past statements and actions, I assume the worse (despite superficial comments to the contrary).

  12. Stephan Curry March 31, 2016 10:53 pm

    the 15 minutes number was thrown out there to make it dramatic since Herr Director reads IPwatchdog and so she thinks she is wasting our time.

    my coined word “Metrics” in my IPwatchdog comments even made it as a word in the title of Herr Director’s latest USPTO blog article (see USPTO website), and so the word metrics is in her blog article title but the word metrics is not even mentioned in the body of her blog article.

  13. Stephan Curry April 1, 2016 3:57 am

    copied from Curious@9:
    Lee would go on to explain that the U.S. economy needs more start-ups, but that start-ups unfortunately can face substantial hurdles caused by frivolous lawsuits or defendants simply sending threatening demand letters.
    Ah yes … p ——— since the cost of patent litigation can often exceed the amount of its latest round of funding
    Where did she pull that number? Out of her &^%? I could write a 3 page post on how improbable that statement is.

    The above are the comments that the future Director started saying in silicon valley in circa 2007 that startups are getting sued so much that patent reform is needed. she has not provided any statistics on her arguments, and as Curious says above, these comments by the Director are improbable and generally illogical. Michelle thinks she can fool a lot of people with her improbable comments about startups.

  14. Night Writer April 1, 2016 6:58 am

    The bigger picture is that there is really no debate about these issues. You get people like Lemley that just spout off and then turn tail and run when confronted with his unethical judicial activism. With Lee would she actually answer any hard question? No. She would spout off (and has many times) and turn her tail and run for the hills. And would not participate in any forum that demanded real debate. And will just write nonsense that is published like Lemley who has access to the law journals that are really just a vanity press.

    It is a joke and there is no interest in improving it.

  15. PAUL MORGAN April 1, 2016 9:07 am

    Gene, I think your posted personal interviews with PTO Directors on this blog are a great idea. For another one, how about specific questions re some of the conspiracy theory posters on this blog. Like alleged Director influence or management of the PTAB, APJ job protection, etc.

  16. Paul F. Morgan April 1, 2016 9:17 am

    A good example is the above “I believe she’s even asked SCOTUS to put off addressing Cuozzo.” In fact, the PTO Cuozzo Brief makes every attempt to get a decision, and does not contain even the slightest suggestion to put off addressing the issues. The issue of Cuozzo’s lack of standing, which is jurisdictional, was only pointed out by non-participants and ignored until recently.

  17. Generous Electric April 1, 2016 9:28 am

    Ms. Lee saying something good about patents… burning her bridge back to Google?

  18. Gene Quinn April 1, 2016 9:49 am


    I’m not on the payroll of the USPTO, so I don’t defend Director Lee from each and everything anyone raises.

    I will observe that I’ve only ever heard the PTO say that they want a decision in Cuozzo. They are convinced they are correct. Personally, I am convinced they are incorrect. Regardless, the PTO just wants the issue resolved.

    In terms of your statement about Director influence over the PTAB, I’ll just point out the obvious. If the PTO is uncomfortable with claims that the Director is influencing the Board then they shouldn’t have the Board directly report to her. As I pointed out in a recent article, you would be hard pressed to come up with a more conflicted structure than what Congress and the PTO collectively created for post grant procedures. As I’m sure you understand, in the law the issue is about appearance.


  19. Erich Spangenberg April 1, 2016 10:27 am

    I have been critical of Ms. Lee’s leadership at the USPTO–but think it is a mistake to not give her credit when she does get it right. She got it right at MIT.

    This is a significant change in tone compared to her recent speech at CES. Given her long career with large law firms and corporations, it is understandable that it would take time for her view to evolve and I hope this MIT speech is an indication that her views are evolving.

  20. Simon Elliott April 1, 2016 12:02 pm

    I had to check if this was from March 31 or April 1

  21. Joachim Martillo April 1, 2016 12:49 pm

    Giving an anti-patent speech at MIT is risky. The undergraduates often take at least one or two courses, in which they must study the patent system.

    RMS (Richard Stallman) can get away with anti-patent rants because his opposition to software patents is absolute.

    The PTO record under Lee is quite clear. Companies like Google or Cisco can have software patents, but the PTO does not appear to give the the small business or individual inventor similar rights to stake out claims to the intellectual property they create.

    Such ultra vires policy-making on the part of the PTO can permanently end economic inclusiveness and ultimately any democratic inclusiveness in the USA.

    Political economic analysis also suggests a fundamentally destabilizing effect of such policy. RMS’s ideas if ever implemented would have similar effect albeit probably over a longer period.

  22. Night Writer April 1, 2016 1:32 pm

    Richard Stallman is a joke. Consider that he has been saying the same thing for over 30 years. I argued with 30 years ago in fact. So, Richard instead of doom and gloom the 30 years of software patents has built the greatest strength of the American economy. And—particularly noteworthy is that it far out distances other countries that do not offer patent protection for software. Funny how Stallman just ignores this evidence that the patent system is working.

  23. Joachim Martillo April 1, 2016 3:16 pm

    RMS is an eccentric, but he has had genuine achievements for which he was inducted into the MacArthur Fellows.The Linux system system is at least as much the work of RMS and his followers as it is the work of Linus Torvalds and Linus’ followers.

    I don’t agree with RMS about patents, but I found it stimulating to work with him (~30 years ago).

    From the man page:


    Emacs was written by Richard Stallman and the Free Software Foundation. Joachim Martillo and Robert Krawitz added the X features.

  24. Joachim Martillo April 1, 2016 3:17 pm

    The should be “From the emacs man page.”

  25. Stephan Curry April 2, 2016 7:53 am

    General public, note this article.

    Patent Attorneys, tell Tom King to change CAFC to Federal Circuit in this article.

  26. Justin Blows April 4, 2016 6:07 am

    Thank you for your article Gene. I’m a patent attorney with an interest in Software patents. It’s probably a good time to remind some of the readers that the law around software patents have significantly changed in the last few years.

    It has got significantly harder to get a software patent and patent offices generally only award software patents to truely innovative pieces of software. I think that in the last 2-3 years these ideas have been taken up by the US courts and the USPTO.

    I think it would be hard to get a ‘rubbish’ software patent through these days. I think that if people advocate too hard make it even harder to get software patents then a lot of innovative startups with great software ideas that are truely innovative will not get the funding they need to get their companies up.

    You may like to look at the following list of US court decisions in favour of some types of software technology. I think most, if not all, of these are truly innovative and deserve patents.

    Here’s a link:

  27. Eric Berend April 4, 2016 11:57 am


    It is high time this farce was called to a close. The individual or genuine non-billionaire inventor is now deceived in the belief of the notion of actual effective patent property protection ever being restored in our lifetimes.

    At this point, the system now serves to extract genius innovations from individuals and deliver these to wealthy infringers while providing an illusion of U.S. Constitutional operation and due process as an integral part of its operations.

    The deluded public believes individual inventors are “patent trolls” keeping them from enjoying software-based ‘free stuff’. It is relevant to point out that the vast majority of these have rushed to expose their lives online permanently with nary a though of the long-term potential consequences; therefore, how can one reasonably expect them to listen to intelligent discourse upon this subject area?

    The billionaire infringers are lined up in concerted activities towards this goal, with few dissenters. These corporations have spent at least $1,000,000,000 combined in the past decade, led by Google/Alphabet, Inc. The medium larger entities see the impetus of these “majors” and go along with this apparent tide, accordingly. The organizational momentum here is now overwhelming.

    Their bought-and-paid-for, ‘owned’ politicians and their ‘handlers’ and political operators including the ‘K Street cabal’ fostered the CDO scandal (repeal of Glass-Steagal, bailing out billionaire banks with over $600,000,000,000 while withholding $39,000,000,000 in TARP relief earmarked for home owners), the S & L scandal (Silverado and the ‘Keating 5’), the treasonous ‘Iran-Contra’ scandal (planes packed with cocaine from South America out of unmarked New Mexico airstrips, sold for weapons to smuggle to ‘contras’ in Nicaragua), and the sordid Enron affair (rolling blackouts in SoCal, NatGas goes to $15/mmbtu, John C. “Cliff” Baxter found dead on the median of a TX highway just after agreeing to testify to Congress).

    This is a fight that is now, already lost. Subsequent and current efforts to redress the wounds now, unfortunately only provide confusion and public concealment of the true nature of this abominable situation. The damage is now so extreme and well established, that it will only be made apparent by the actual economic harm suffered by this nation over the next two generations.

    The dumbed-down, sycophantic public needs to see innovation going to Europe, South America, China and India, and the concurrent impoverishment of American technological prowess, before the importance of what has become lost, will be understood by them.

    The ‘multinationals’ (corporate and NGO) that swim in this ‘sea’, are of the opinion that they can manage any extra-national risks to their objectives, so China doesn’t seem to matter much, to these mendacious chauvins. Those of us on the other side of this issue, are too weak in aggregate or individually, to further affect this process, as it now stands.

    Gene: I deeply respect and appreciate your tireless efforts to right the wrongs committed in this domain by wealthy patent infringers against genuine inventors. However, as this article illustrates, said infringement legitimization campaign has succeeded well enough that this is a mere ‘grasping at straws’.

    “Signs” that maybe – just maybe – the Google/Alphabet, Inc.-owned head of a U.S. agency that refuses to show any respect whatsoever for non-billionaires, might let the boot off individual inventors throats…perhaps a little; and you take this as some kind of hopeful turn? To an inventor son of an inventor like myself, this is PATHETIC.

    And YES, I am quite aware that ALL CAPS is seen as rude yelling, in online print as this is. Yelling and screaming is the genuine natural response of humans that are severely betrayed and abused. Anything less, would be disingenuous, at this point.

  28. step back April 4, 2016 1:06 pm


    All patent practitioners need to now stick their heads out the windows, step out on to their porches, etc. and scream “We’re mad as heck and not going to take it any more!”

    Don’t give up the “good fight” even if it seems like we are losing at the moment. If you give up, you lose for sure. That’s what “they” want.

  29. Stephan Curry April 5, 2016 8:49 am

    Step back @28

    Here is a guy Birchak leading the fight against Careless patent reform (see article). Maybe Attorney Birchak can gain some allies.

    who is the woman attorney anyway at El Camino Real law firm business address who introduced the google search engine to Director Lee? I would bet 9 billion dollars that this attorney is really annoyed at the director for advocating careless patent reform and I will win the bet.

  30. step back April 5, 2016 3:55 pm

    Steph @29

    Thanks for that link.
    When President Obama says he is all for “innovation”, he means the kind where a small inventor’s ideas are appropriated by a too big to infringe (TBTI) entity and then presented to the public as if originated by the TBTI entity.

    BTW, how come you keep name dropping local addresses in the Bay Area? Many readers here don’t live in the Bay Area and don’t know what you are talking about. Next will you be asking all of us to share some lunch time curry with you at that shop on Castro across the street from Fenwick?

  31. Stephan Curry April 5, 2016 4:43 pm

    step back@30
    you are welcome.
    Please tell Attorney Birchak that his article should get popular in IPwatchdog.

    An attorney friend of a friend of a classmate friend of mine used to throw curry parties (ok, pizza parties) at his house in saratoga california, but shame on him/her for failing to invite his/her nearby neighbors including someone now famous or infamous who now is trying to wreck our envy of the world patent system by using innovation promotion as a pretext. more name dropping of Bay Area locations.

  32. Stephan Curry April 6, 2016 12:16 pm

    Don Chisum is a prophet like Moses (Deut 18:15-19)

    CHISUM: I’m very skeptical when Congress starts talking about reform. I don’t think there is enough sophistication in Congress and among committee staff members about how the patent system really operates and about the challenges the many thousands of people operating the system face. Most of the legislative efforts I’ve seen over the last 30 years to reform the patent system, in fact, reformed very little. The “reforms” have tended to respond to particular interest groups, to particular complainants. Congress has tended to respond only to a consensus that something was wrong rather than thinking outside the box as to what will really improve the efficiency and predictability of the patent system.

  33. staff April 8, 2016 7:15 pm



    ‘We want more startups to succeed because their success benefits all of us. But we also know that recently many startups (and big companies) have seen the power of patents from the other side—as the subjects of abusive patent litigation. By this, I mean, e.g.,, when an entity brings meritless infringement claims against others sometimes preferring patents that are broader and vaguer to assert against entire industries with the sole purpose of extracting settlements just under the cost of defending against the lawsuit, hoping that the alleged infringer doesn’t look too closely at the merits of the claim.’

    As Confucius once said, ‘when I was young I would listen to what someone said and expect they would do it. Now that I am older I listen to what they say and watch what they do.’ If PTO management really wanted to help startups they wouldn’t make inventors fight them for years to patent our inventions. Pendency and the fact that there is no longer a sensible rule for patentability that squares with fundamental property rights and the Constitution are the real problems for inventors. As one litigator for plaintiffs recently stated with uncertainty, ‘all patents can’t be invalid?’. This is further proof how out of touch PTO management is with inventors. They appear to us to have been commandeered by large multinational invention thieves. In our view they are at least biased against us and we question if matters are worse.That is one reason we oppose administrative reviews of our issued patents. Others are covered in our position statement.

    We believe litigation abuse by plaintiffs if it exists at all is restricted and very uncommon. It certainly does not justify these sweeping changes that deny ALL inventors meaningful and practical rights to their inventions and discoveries. Even large corps are now finding it hard to enforce their patents. Imagine how hard it now is for inventors and small entities.

    Seldom do infringers and their puppets give a clear description of what they regard as litigation ‘abuse’. Inventors will tell you that’s because if accusers don’t explain it, they wont have to support it. It’s like the vaporous phrase ‘patent troll’. The other problem for inventors is if our accusers don’t clearly define what it is we are doing wrong, we cant adequately defend ourselves and counter. That violates due process, but of course infringers get away with it because these charges are not brought in court. All this plaintiff litigation abuse talk is like a modern day Spanish Inquisition.

    For example, if a patent truly is ‘vague’ it will be invalidated in court, or at least will if the defendants choose to contest. Often in patent suits there will be multiple defendants. If defendants pool their resources, as they often do, it will be a small cost for each to collectively fight and invalidate -the relative cost of a bagatelle for large corps. That will be the end of that bad actor and likely it will hit the news (large infringers and their PR machines make sure of that) and greatly discourage any truly bad behavior from all other patent holders -and even legal and just behavior by them. Why then do these large multinationals spend millions in lobbying Congress to change patent law instead of mere thousands to stop legitimate bad behavior using existing law? Could it be the bad behavior does not honestly exist, or is it not bad actors or behavior they are aiming at? We believe their intent is to use these isolated or fictional accounts as a ruse to force changes in Congress -often at the threat of PAC money for those who do not cave in.

    ‘there are very strong interests here in Washington, that have very strong ulterior motives to try to knock down and diminish the civil justice system…They like to coming to the branches of government where they’ve greased them with campaign contributions and lots of lobbyists and super-pac threats and all that good stuff’

    Thereby they are able to use these baseless or overplayed accusations to make changes to the patent system which in essence legalize theft so they can rob and crush ALL inventors and other small competitors. Today the patent system is so weak that inventors and small entities can no longer find law firms to take their patent suits on contingency. If we cant assert our patents in court against infringers, what good are they? This alone will tell savvy and honorable Congress members and PTO personnel all they need to know.

    These and other problems are what the Patent Office and its management should be focused on, not on these falsified and manipulated accusations which are largely pretense and propaganda. Because of the above and the fact that inventors and their attorneys will tell you small entity applications and issued patents have declined sharply over the last several years, it is not surprising to find that confidence and trust by seasoned inventors in the patent system is near bottom. But rather than address those, PTO management instead chases purported problems we question the existence of -certainly not in our businesses. The ship is sinking and rather than bail they want to be sure the correct flag is on the mast. Statements like those of Ms Lee makes one question the impartiality of PTO management. Rather than considering possible future litigation and enforcement which introduce bias into the process when examining applications and any subsequent post grant review, the PTO needs to be focused purely on the merits of the application and patent. In our view PTO management and MS Lee have proven they are not objective or impartial. These things only reinforce our lack of confidence and distrust in them.

    Inventors are not surprised at Ms Lee’s statement which only serves to promote the big business falsified and overwrought ‘reform’ agenda. To us they do not differ materially from those she made when she worked in industry.

    Inventors regard large multinationals as the principle members of the cabal lurking in the shadows who engineered the gutting of the American patent system and are still pushing to gut it. That has been their most ‘innovative’ contribution to society -legalized theft. Some inventors and small entities question if Ms Lee is still working for them based on how she has ignored the plight of inventors and her public statements.

    Still, in fairness we offer Ms Lee an opportunity to debate these issues in an open public forum on this site. We will publish anything she submits verbatim. In return however we claim the right to speak candidly and ask pointed questions in defense of inventors and their rights. Will she accept our offer?

    Open debate is something those who promote the dismantling of the patent system -what they call ‘patent reform’, steer far and wide from. Rather, they prefer to make baseless accusations in the shadows they can then use without public debate or scrutiny as pretense to force unnecessary and dangerous changes to further cripple an already wobbling system -changes which will only drive a dagger into a corpse.

    We welcome the opportunity to engage in an open public debate with Ms Lee and all advocates of these dangerous and unsupported changes to patent law. If she declines our invitation, it will only further turn inventors and small entities against her and PTO management.

    The patent system has reached a crisis for inventors and small entities. We need to end what large multinational invention thieves call ‘reform’. It’s time to rescue and restore.

    For our position and the changes we advocate to truly reform the patent system, or to join our effort, please visit us at
    or, contact us at

  34. Night Writer April 9, 2016 9:25 pm

    Staff that is a great post. What I’ve been saying now for like 10 years. The problem is the money the corporations put into K street just keeps coming and coming…

  35. step back April 12, 2016 6:36 am

    staff and Night Writer

    Sadly, your excellent posts of 4/8 and 4/9 have sunk below the awareness event horizon of this blog

  36. staff April 21, 2016 7:56 pm

    We have yet to hear from Ms Lee. We again invite her participation in an online debate. Will she accept and step out into the light?