A quiet title is an absolute prerequisite to enjoyment of an exclusive right

Article I, Section 8, Clause 8 of the U.S. Constitution provides for the extension of an “exclusive Right” to inventors. In exchange for this exclusive right the United States Patent and Trademark Office, by and through the requirements of the Patent Act and implementing regulations, requires significant invention disclosure. In fact, the disclosure required must place the public in possession of the invention so that the invention can be both made and used by those of skill in the art having merely read the patent, all without undue experimentation.

In the post-AIA era it is hard not to notice that there is an uneven disturbance with the historic bargain struck between inventor and the government. In exchange for the exclusive right mentioned in the U.S. Constitution the inventor discloses a great deal of information about his or her invention, which adds to the knowledge base. The reward of a patent is an incentive, which according to Abraham Lincoln adds fuel to the fire of creative genius.

At some point a property right needs to quiet. If title in a property right never quiets how can it be considered a property right? If title in a property right never quiets is that right really an exclusive right? This is why the single most damning problem facing the patent system today is the inescapable reality that the incentive – the patent itself – has become at best an illusory promise.

In short, a quiet title seems an absolute prerequisite to the enjoyment of an exclusive right guaranteed by the Constitution. Unfortunately, a quiet title in a patent today simply does not happen if you are actually lucky enough to have obtained a patent on a commercially valuable innovation, which is a very sad commentary indeed.

The problem with patents in the post-AIA era is the system and judges that implement the system do not apply basic property laws, despite the fact that the statute says that patents are to have the attributes of property. Title in patents never seem to quiet any more – ever. Indeed, it is particularly difficult, if not impossible, to quiet title now thanks to the existence of inter partes review (IPR), a type of post grant challenge to the patent that can literally be brought at any point in time during the life of the patent. Furthermore, without a standing requirement to file an IPR challenge anyone at any time for any reason right up until the last day the patent is alive can file an IPR. [1]

“Commercial development of innovation, and new business formation, demands the prompt and predictable grant of durable property rights, and a reasonable expectation of the enjoyment of quiet title upon issuance,” wrote Brian O’Shaughnessy. “Financing of new enterprises, and the growth of existing ones, demands intellectual assets that stand up to challenge, regardless how those assets are derived or commercialized.”

There could be changes made to the patent laws that would lead to a quiet title for patents, that is if Congress were so inclined to once again favor a strong patent system in the same way that the Chinese government seems to favor patents (see here and here). We know how to do this for property, and in fact it happens literally every day in courtrooms all across the country. For example, when real property is used to secure a loan and the loan is not paid the property will be sold, with anyone having rights being notified before a sale can take place. In fact, there are laws in every jurisdiction on what notice is required, whether it be the notice due so that a lien can be place on a property, or the notice due prior to a forced sale. There are also detailed notice provisions for matters of zoning and planning when adjacent properties will be impacted by development, for example. And if actual direct notice cannot be given there are provisions that allow publication of such notice in newspapers and via other means. The same or similar also happens in bankruptcy courts every day. Thus, throughout various areas of law we know how to quiet title and give those with interest in the outcome notice that satisfies due process requirements. Patents shouldn’t be any different.

We know very well how to both legally notify interested parties in ways that have been thoroughly vetted for constitutionality purposes, and we know very well how to legally extinguish the rights of interested parties who choose not to participate in proceedings for one reason or another. So it is entirely feasible to quiet title in a patent once and for all and extinguish any and all challenges moving forward. Congress just needs to have the will to do that and actually recognize that patents are a property right.

It is time to recognize that patents are a property right, as the statute actually says they are. This requires patents to at some point result in a quieted title that cannot be challenged. We do this on the trademark side with incontestable trademark status, so why not on the patent side? After all, patents – not trademarks – are actually mentioned in the Constitution.

Patents are a property right of constitutional importance. It is long since time for the U.S. to start acting that way.


[1] Technically, an IPR can be filed up until six years after the patent has expired given that is the statute of limitations for bringing a patent infringement action.


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Join the Discussion

37 comments so far.

  • [Avatar for Anon]
    July 28, 2017 02:49 pm


    As Paul Morgan notes on another thread, there is a very real problem with your view of “Its all about shifting the time and effort towards the patents that matter most.

    One cannot know a priori – at the time that any such shift would occur in order to effect quality – which patent any such efforts should be aimed at. You do not have the luxury of hindsight to figure out which ones should have more time and effort, as “most important” is not known at the time when time and effort decisions are to be made.

    Further consider that the US patent system was built and predicated on the notion that patents should be able to be had by more than the titans and established monied entities. There is an immediate problem with any solution that simply rests on dollar levels as a means to control quality. Solutions that push TOO much “exacting quality” do not fit with the overall design of the US patent system (the veritable engineered Rube Goldberg “solution” is just not a solution).

  • [Avatar for Paul Cole]
    Paul Cole
    July 28, 2017 11:49 am

    @ Josh Malone

    I do not like US 9051066 or 9242749 because they contain no claim to filling a water balloon. However, claim 3 of 9315282 relates to apparatus for filling a water balloon which is a huge step in the right direction. Keep the continuations coming and kindest regards.

  • [Avatar for Tesia Thomas]
    Tesia Thomas
    July 28, 2017 10:52 am

    “…where my claims are NOT up for invalidation…”

    You can pay a maintenance fee one day before your patents are invalidated. And pay more in IPR than in obtaining the IP.

  • [Avatar for Tesia Thomas]
    Tesia Thomas
    July 28, 2017 10:51 am

    @Josh Malone, Damien

    “Perfection is not the standard.”

    Exactly. If they can nitpick anything and everything, even defining balloons in a spec, then we are going to lose any and every way.
    They will keep trying until we do.

    Electron microscope prior art search pushes back the priority date.
    Electron microscope examination pushes back the issuance date.

    None of that encourages inventors to file patents.

    I don’t want to spend $500,000 on anything besides an infringement suit where my claims are up for invalidation if I already have my patents issued.

  • [Avatar for Damien]
    July 28, 2017 09:48 am

    @Tesia “Well if that’s the case…how do I get my patents examined by electron microscope before issuance?” Thats possible to do… patent applications will just cost $500,000 to file rather than $1000. The idea I think is that its much more efficient to have a $1000 review that is only 80% right than to require a $500,000 review that is over 99% right.

    Its all about shifting the time and effort towards the patents that matter most. If a patent is very important, then it will likely undergo the $500,000 review either through IPR and/or district court invalidity. But all the ones that need not have that type of review we can be fine with only spending $1000 even though its likely 20% of bad ones will fall thru the cracks.

    Presumably, if those bad ones mattered, they would eventually be IPR’d or face invalidity at some point.

  • [Avatar for Paul F. Morgan]
    Paul F. Morgan
    July 27, 2017 08:51 pm

    Gene, you ask “rationalize the PTAB invalidating claims that have survived Reexamination, where there is much more time spent?” First, this has rarely happened. Secondly, I have no interest here other than in realistic arguments, much less “rationalizing.” So, let’s note some important differences: Reexamination is completely ex parte by a regular examiner rather than an APJ panel. There is no trial, no rebuttal, no cross examination, or any other participation by the reexam requester once it is initiated. Also, the IPR petitioner may have found better prior art not considered in the reexamination.

    As to “How also do you rationalize the PTAB invalidating claims that survived in district court litigation where the defendant would have spend excessive sums searching for prior art?” Again, this has only rarely happened, especially since IPRs are normally decided first, and the Fed. Cir. blessed it, not me. Among a number of differences, there is the defendant’s burden of “clear and convincing evidence,” the fact that most D.C. suits are settled before trial with no actual validity decision, and the small percentage that do go to trial or get S.J. are majority-decided on infringement issues,plus the difficulty lay jurors have with technical literature and claims. Also note that even now only roughly a quarter of patent suits get IPR responses.
    No one is disputing that many patent suit plaintiffs were better off before IPRs. They got far more, and larger, pre-trial settlement payments, especially with patent suit defense costs regularly exceeding one or two million dollars.

  • [Avatar for Josh Malone]
    Josh Malone
    July 27, 2017 07:44 pm

    Apologies for the outburst. A little frazzled after 2 years of constant attacks by Telebrands and the PTAB. Perfection is not the standard. All of the claims and patents granted by the USPTO for my invention meet the statutory requirements. I withdraw my suggestion that blog commentors aid in claim drafting.

  • [Avatar for Tesia Thomas]
    Tesia Thomas
    July 27, 2017 07:19 pm

    @Paul Cole

    I get it now. I thought you were literally saying he had to define the word ‘balloon’ in his specification. Haha
    You’re saying he had to define that he was making a balloon toy. Got it.

    I’ll email you. Thanks for the knowledge and stories.

  • [Avatar for Josh Malone]
    Josh Malone
    July 27, 2017 06:36 pm

    Paul, send me some claims or publish them here and we’ll throw them in the next continuation. Have 30 attorneys working this, maybe you are better than all them.

  • [Avatar for Paul Cole]
    Paul Cole
    July 27, 2017 04:50 pm

    @ Tesia

    The trouble that Josh got into was at least in part because he had claims to filling fairly unspecific containers, but no claims to filling balloons in general or more specifically water balloons for children’s games. If he had got claims directed to that, on the decision I saw posted in this blog some time ago, he might have had an easier time and a more realistic view of his claim might have been taken. But because the claims that he had were broad and woolly, there was an excuse for the decision makers to be tough about what was meant by adequate filling.

    I am well aware that the Glidden patent was upheld. But it could have been a whole lot stronger. It is one of the assignments for my students at Bournemouth University.

    One of the key points is that you need to have a claim for the business you are in. If your invention is putting a sail on a surfboard, you need to have one or more claims defining a surfboard hull. If you don’t define that and define the size of your craft, you are liable to have sails on transatlantic yachts cited against you as happened in the UK. There was no limit on hull size or type, so the transatlantic yachts were taken very seriously. If your business is filling child’s water balloons, you need to have some claims defining just that – you may put in some broader and more speculative claims as well, but you need claims clearly and specifically covering your core business and where your cash flow is going to come from.

    My Windsurfer drafting paper can be obtained by e-mailing me at pcole@lucas-uk.com.

  • [Avatar for Edward Heller]
    Edward Heller
    July 27, 2017 03:36 pm

    Paul Morgan, et al., quiet title and the presumption of valid mean essentially the same thing.

  • [Avatar for Tesia Thomas]
    Tesia Thomas
    July 27, 2017 02:59 pm

    @Paul Cole,

    In Josh’s case, the IPR wasn’t over defining ‘balloon’ or not.
    Again, barbed wire patents were not invalidated.

    What was your point? Only the Windsurfer patent was invalidated.

  • [Avatar for Paul Cole]
    Paul Cole
    July 27, 2017 02:38 pm

    @ Tesia Thomas

    In answer to your questions, you can buy my book Fundamentals of Patent Drafting from the Chartered Institute of Patent Attorneys. Or you can e-mail me, and I will send you a copy of my Windsurfer article. It used to be readily available online but has now disappeared into hyperspace, unfortunately.

  • [Avatar for Tesia Thomas]
    Tesia Thomas
    July 27, 2017 02:26 pm

    @Paul Cole,

    I understand what you’re saying.
    I read the MPEP and now follow this blog just so I could understand as much about patents as possible.

    But, isn’t ‘balloon’ defined in the dictionary?!!
    Wouldn’t its size and how to purchase it be known by one skilled in the art?

    Also, barbed wire patents were not invalidated.

  • [Avatar for Tesia Thomas]
    Tesia Thomas
    July 27, 2017 02:03 pm

    @Paul Cole,

    “At the drafting stage, the patent specification is viewed by candle-light. In inter-partes re-examination it is viewed with a spotlight and a magnifying glass. In court proceedings it is viewed with an electron microscope. There are order of magnitude differences between the resources allocated to these different situations.At the drafting stage, the patent specification is viewed by candle-light. In inter-partes re-examination it is viewed with a spotlight and a magnifying glass. In court proceedings it is viewed with an electron microscope. There are order of magnitude differences between the resources allocated to these different situations.”

    Well if that’s the case…how do I get my patents examined by electron microscope before issuance?

    Also, why would Josh Malone have to define what a balloon is, or its size, or where to purchase it?

  • [Avatar for Paul Cole]
    Paul Cole
    July 27, 2017 01:25 pm

    @ Tesia Thomas in DC

    Of course examiners check for statutory requirements based on prior art searches. But they can devote only limited time and resources to each application.

    At the drafting stage, the patent specification is viewed by candle-light. In inter-partes re-examination it is viewed with a spotlight and a magnifying glass. In court proceedings it is viewed with an electron microscope. There are order of magnitude differences between the resources allocated to these different situations.

    And if you go back to writing a journal article, you can be upset about a referee if he or she fails to pick up a mistake in your article. But you wrote it, and the mistake is YOURS. The examiners are professional referees, no more and no less, and their work is not and cannot be infallible. Hence the need for post-grant challenge.

    The fact that your paper got published in Nature is not evidence that your research results are correct. They may be rubbish. Further investigation may reveal that fact. The patent system is not fundamentally different in its essentials.

    When I get time, I will write a posting about Josh Malone’s patents. To give you a foretaste, what is a water balloon? His invention was all about water balloons. But no definition in his patent and no explanation of what they are. I found several other water balloon patents, but none of these inventors troubled to explain what a water balloon is, what their size might be or where you might buy them. The inventors of the Windsurfer omitted to include a claim to a surfboard-like hull either. The inventor of modern barbed wire in the 1860’s omitted to mention that it was steel wire, omitted to mention that the wire was galvanised (which would have set it apart from piano wire) and said nothing about diameter. Mistakes of this kind are gross and have a long history.

    So don’t tell me that there is no scope for both our clients and ourselves upping our game and improving our patent quality. It is much better to think what we can do to help ourselves than to lie back passively and hope that Congress will bail us out from situations that are often of our own making.

    A main claim beginning “A method for optimizing….” Anyone foresee problems with that?

  • [Avatar for Anon]
    July 27, 2017 12:14 pm

    CP in DC,

    That’s not the trend – you missed the point of my introduction of the criminal analogy.

  • [Avatar for CP in DC]
    CP in DC
    July 27, 2017 12:00 pm

    Tesia @13

    Oh no, examiners too are at fault too. I constantly advocate for better examination. It’s just not one or the other, it’s both that contribute to the problem.

    I have mentioned that bad patents come from bad examination, bad examination comes from bad examiners, and bad examiners allow bad applicants to obtain patents. When I say “bad” I mean those who produce poor work product. Examiners often get the easiest prior art, not all the prior art. Those who take a patent knowing that it has a low chance of survival (especially after the IPR statistics) are at fault as well.

    This site has numerous articles about examiners that do not follow law, fact, or Board reversals. I can’t control that. I can control the patents that issue under my prosecution.

    I advocate for better prosecution that takes into account that IPR is waiting for your patent. IPR can only be instituted by anticipation and/or obviousness, so know the art. Also, know your claims.

    IPR is not instituted on 100% of the patents submitted for IPR. There are patents that will not undergo IPR despite petitioner’s best efforts. How about discussing those and the reasons institution is avoided? Today it was reported that Astrazeneca AB avoided IPR institution by Complex Innovation’s petition on US patent No 7,759,328 for Symbicort a very profitable asthma and COPD drug.

    Continuing the trend….

    “The best basis for a quiet title is a legally valid right.”
    “The best basis for acquittal in a criminal matter is to be innocent.”

    and the best basis to avoid claim invalidation at IPR is to avoid institution of an IPR.

  • [Avatar for Richard A. Catalina, Jr.]
    Richard A. Catalina, Jr.
    July 27, 2017 11:57 am

    Gene, very good article and insightful comments from readers.

    I immediately thought of the trademark registration system. When clients seek to retain me for trademark work – or existing clients who need a reminder – I advise them that the registration is not necessarily the be all and end all. Yes, they made it through the opposition publication period, but are still subject to potential cancellation proceedings by any third party with a more senior right. It happens.

    However, after five (5) years of unchallenged, exclusive use of the mark, the registrant can seek to make the registration incontestable. That is the gold medal, not the registration, but a registration that has been made incontestable. While there are some very narrow exceptions, the likelihood of a registration being cancelled after being made incontestable is highly, highly unlikely.

    Perhaps that is what is required with patents. After a date certain, no IPRs. Validity, subject to equitable doctrines such as estoppel, may only be asserted as a defense to infringement by the patent holder. Only then will patentees have the level of assurance that their property right is free and clear.

  • [Avatar for Gene Quinn]
    Gene Quinn
    July 27, 2017 11:52 am

    Paul Morgan-

    You say: “IPR petitioners find by spending a lot more time and money for prior art searches than the PTO provides or applicants are willing to pay for.”

    So how then do you rationalize the PTAB invalidating claims that have survived Reexamination, where there is much more time spent?

    How also do you rationalize the PTAB invalidating claims that survived in district court litigation where the defendant would have spend excessive sums searching for prior art? Either what you say above needs amendment to reflect what is really happening, or what you say about there being no difference between BRI and Phillips is false.

    What is clear, it is ridiculous to say that no one has pointed to decisions where the different standard has been consequential. Just look at the patents that survive litigation and are invalidated at the PTAB. Seems rather conclusive.

  • [Avatar for Anon]
    July 27, 2017 11:47 am

    Mr. Morgan,

    Since you state “These are not the real problems with IPRs.

    Would you be so kind as to provide your views as to what exactly ARE the real problems with IPR’s?

  • [Avatar for Tesia Thomas]
    Tesia Thomas
    July 27, 2017 11:42 am

    @Paul F. Morgan,

    No. It’s more like ridiculous combinations of the same prior art because the breadth of construing claims has changed.

  • [Avatar for Tesia Thomas]
    Tesia Thomas
    July 27, 2017 11:36 am

    Also, @CP in DC,

    I work as a chemist. And, I firmly believe any child trained in OSHA safety training and 5S and other safety hazard protocols can be an effective chemist.

    All we do is guess and check. Sometimes not even educated guess.

    Chemistry is witchcraft. Any scientist, chemist, or lab tech will tell you if they’re not a pompous piece of crap.

    I don’t know how the heck chemistry is patentable over software.
    Chemists can’t give adequate descriptions because what we know about a material is found AFTER making the material through analysis whatever it is.

    From Kevlar to penicillin…
    Many chemical discoveries were accidents for this very reason.

    Also, the way the company I work for deals with “inventions” is to just hand over lab notebooks and give the attorneys the number of the inventors.

    The process is always the same:
    “I threw sh*t together, mixed it, and tested it to see if it did something I liked.
    If it did then I sent it in for analysis.”

  • [Avatar for Paul F. Morgan]
    Paul F. Morgan
    July 27, 2017 11:28 am

    T.T. That “same prior art” myth is endlessly repeated on this blog, but it is indisputably rebutted on the record [since all IPR files are open to the public]. Almost all IPRs decisions are based on prior art patents or publications that the application examiner missed. Which IPR petitioners find by spending a lot more time and money for prior art searches than the PTO provides or applicants are willing to pay for.
    Nor has anyone yet pointed to any significant number of IPR decisions where changing from BRI claim interpretation to In re Phillips claim interpretation would have changed the outcome.
    These are not the real problems with IPRs.

  • [Avatar for Tesia Thomas]
    Tesia Thomas
    July 27, 2017 11:07 am

    @Paul Cole, @Paul F. Morgan, @CP in DC

    So it’s not examiners?
    Because last time I checked, examiners look for prior art and examine patents.

    What does IPR do so differently?
    Oh yeah. The SCOPE is different. The breadth of construing claims.

    It doesn’t matter what prior art you draft with. The examiner should find most else.
    The people who file IPR are in many cases using the same prior art that was found in examination.

    IPR is about construing claims to fit whatever prior art that anyone can find.
    Vitrnex, Cisco, Josh Malone paid a lot for examination, drafting, and prosecution of their patents.
    Still invalidated in PTAB. The PTAB expands the scope of the prior art!

  • [Avatar for Paul F. Morgan]
    Paul F. Morgan
    July 27, 2017 11:00 am

    CP in DC – good observations. Some of those complaining about reexaminations or IPRs are folks that refuse to pay for prior art searches before filing their applications and outsource prep and preparation on a low bid and/or fixed low fee basis. Then, fail to get independent second opinions before filing lawsuits and/or control their trial lawyer’s costs.

  • [Avatar for Anon]
    July 27, 2017 10:44 am

    The best basis for a quiet title is a legally valid right.

    The best basis for acquittal in a criminal matter is to be innocent.

    Why then should any innocent person object to ______?

    Fill in the blank,

    Then realize that for all of the good advice as to possible “best practices,” ALL of that quite misses the point as to the other forces in play and the weakening of the U.S. patent system.

    While there is nothing wrong – in and of itself – with promoting best (or even merely better) practices, there IS something wrong when such advice is offered as succor (and a distraction) from where focus needs to be brought.

  • [Avatar for CP in DC]
    CP in DC
    July 27, 2017 09:34 am

    Paul Cole @ 4.

    I completely agree with your analysis.

    To draft a proper application that overcomes the prior art (assuming there is a prior art search), that explains the invention in sufficient detail, and that concludes with claims that are clearly understood takes time and money. To do this efficiently, the drafting attorney also must have expertise acquired over years of work. Even the Supreme Court has recognized the difficulty of this task.

    Yet, clients often come with a basic invention and examples to file an application on the invention. However, what they really want is an all-encompassing application with very broad claims that covers any possible application of the invention regardless whether this is supported or not. Of course, the client wants the lowest price possible. In life sciences, applications can be 100 pages or more (I just read one of 326 pages) and these take time and expertise to draft.

    I worked with an attorney who would say: “you can have it fast, cheap, or good, but only two, you pick.” This is true in patent prosecution, and as Paul mentions the pricing system entrenched in patent prosecution feeds into a mentality that you can have all three. Is not possible, so clients would rather go cheap and lose than pay more and win.

    Naturally, many applications are drafted on a very low budget. Why are we surprised, these applications meet their demise in IPR? It was worse, when these issued as patents and the only path to invalidity was to challenge in district court.

    I work in the life sciences field, where applicants can’t “add patents to a pile.” Why would you crosslicense your competitor when you have a patent that protects a novel pharmaceutical product? Also, the rate at which research progresses is not sufficient to yield a vast pile of patents. This strategy may work in high tech, but not life sciences, yet clients want the same pricing.

    I want patents to be strong, but this will require time and money for drafting. This site has repeatedly published articles on how to write better applications. Five days ago, Gene wrote an article on description and it did not get one comment. Such an important topic deserves attention and discussion; the lack of interest reflects a basic misunderstanding of the importance of drafting.

  • [Avatar for Paul F. Morgan]
    Paul F. Morgan
    July 27, 2017 08:51 am

    One reason that patent validity have always been challengable for the entire lifetimes and beyond of patents is that patents can be sued on for their entire lifetime and beyond. There is no actual statute of limitations or repose [and no longer even estoppel] preventing not bringing patent suits until near their end of patent life or even six years later than that, and it is quite common. Hence the time scope of reexaminations, IPRs, and other suit defenses. As repeatedly shown here, almost all IPRs are filed in response to the petitioner or its customers or anther company being sued or threatened by the patent owner.
    Plus, it is not legally or politically practical to hold a patent suit defendant defenseless because another defendant in a prior suit on the same patent failed to defend itself.
    Some of your concern could perhaps be addressed by requiring more mandatory joinders of the relatively few cases of plural IPR petitions filed against the same patent, and more rejections of IPR petitions not presenting new material prior art?

  • [Avatar for Chris Gallagher]
    Chris Gallagher
    July 27, 2017 06:49 am

    I agree with Gene and Brian. If fully quiet title can not at least at some point completely and finally pass to a patent holder in exchange for her full disclosure, our Constitution’s Article I, Section 8, Clause 8 is rendered meaningless.

  • [Avatar for Edward Heller]
    Edward Heller
    July 27, 2017 05:52 am

    Speaking of budgets Paul, if the patent office is issuing too many patents of dubious quality, we need to look to improving procedures in the PTO that guarantee, or better guarantee, that the patents that are issued meet the requirements of the statute.

  • [Avatar for Edward Heller]
    Edward Heller
    July 27, 2017 05:50 am

    Paul, you do not seem to understand that many U. S. corporations simply add patents to a pile for crosslicensing or other such purposes and have no intention of ever enforcing them in court. In these situations, it is all about budget.

  • [Avatar for Edward Heller]
    Edward Heller
    July 27, 2017 05:49 am

    Gene, if the status of being a property right depends upon Congress, that which Congress giveth, Congress can taketh.

    Do not focus on what Congress does. Focus on the power Congress has.

    Congress has the power to secure to inventors exclusive rights in their discoveries. Assuredly, they can require by statute and by procedure some examination prior to granting a patent. But once the patent has been granted, there is no exclusive right until the PTO no longer has jurisdiction to revoke the patent and only those who have standing can go to court and petition to have the patent revoked. The status of being a property right gives one a right to a day in court with the trial before a jury at his option before his patent is revoked.

  • [Avatar for Paul Cole]
    Paul Cole
    July 27, 2017 01:41 am

    The best basis for a quiet title is a legally valid right.

    That demands in patent law that the claimed subject matter should be adequately disclosed, clearly claimed, eligible, novel and unobvious. The drafting of specifications that will meet these requirements and will survive not only USPTO examination but also third party due diligence and review in post-grant procedure and before the courts demands that the specification be drafted to a standard where it is fit to be put before a judge. Those who have been involved in validity or enforcement proceedings know just how high a standard the courts demand. Patent quality begins with the inventors and ourselves, and getting right what we put before the USPTO and other patent offices is our prime responsibility.

    It may be that the inventor does not measure up as part of the drafting team and following Richard Arkwright deliberately withholds critical information. It may be that the inventor is incapable of providing an adequate explanation of the invention because he or she is bad at explaining things. It may be that the attorney by a synergistic combination of greed for scope and inattention to detail puts in broad and over-speculative claims while omitting to include claims which define the field of endeavor in which the inventor is actually working and the particular advances relevant to that field. The present cost pressure on our profession and demands for fixed costs in drafting and prosecution are the enemy of patent quality.

    Some years ago we acted for a large US corporation in an EPO appeal hearing in opposition proceedings. We took it very seriously, demanded a number of presentations during lunch from the attorney who was handling the case and was very knowledgeable in the relevant art and gave him a very difficult time. As a result of this thorough preparation the appeal hearing was successful and the patent was maintained. We put in a bill for £10,000 for the very considerable preparative work involved and for attendance at the hearing. Back came the reply: “Why are you charging so much? An appeal stage hearing should cost £5000 and that is what we budget.” We looked into it, and found that another UK firm had acted for the same company in appeal hearings before the EPO in the same week. But each of the four other appeal hearings had been lost, and the relevant patents had been revoked. When we pointed this out, it emerged that this large US corporation would rather spend £5000 and lose than spend £10,000 and win.

    Attitudes of this kind, which have become entrenched in some large corporations, do not promote the patent system or issued patents which can benefit from quiet enjoyment. We can make a difference by upping our game, and our clients can make a difference by supporting us in that endeavor.

  • [Avatar for Night Writer]
    Night Writer
    July 26, 2017 10:52 am


  • [Avatar for Anon]
    July 26, 2017 10:24 am


  • [Avatar for Tesia Thomas]
    Tesia Thomas
    July 26, 2017 10:05 am

    Right patents can be as show cars.
    You can buy it just to look at it. Or, should be able to do so.