Placing limits on innovation may exclude great inventions before it’s known what has been excluded

In my previous article of this series, I have shown that the high patent quality standard discourages all kinds of inventors. In this last article, I will show that a high patent quality standard is repugnant to the U.S. Constitution.  When the patent office talks about patent quality, it refers to how well claimed intentions avoid reading prior art, and how well granted patents meet legal requirements. One of the measures the patent office has repeatedly used is controlling patent grant rates and punishing examiners for granting patents on inventions that should not be granted.

The constitutional purpose of the U.S. patent system is to promote the progress of art. This mission may be restated in a plain language as: getting the largest number of inventions for the public, getting the most important inventions for the public, and getting critical inventions in the right times. The government policy is to build a technological landscape defined by a large number of inventions to support American economy, strength national security, and promote national prosperity.

One main reason against using a high patent quality standard is that patent quality cannot be accurately measured. I note that the high-accuracy ideology came from the common law model. When the King of England invented the common law model, he had to show that his new adjudication method was better and fairer. It seemed necessary to use an identical legal theory for all similar cases and decided similar cases by using the same method. Each legal theory was defined by several abstract elements or categorical concepts. For a dispute, all facts including conduct, acts, and things were fitted to each of the abstract elements often by strained fitting, and the case was then decided by determining whether the legal theory was met. From the modeling point of view, all legal theories are extremely poor. Such models cannot pass scientific validity check. Nevertheless, the common law model was better than then-used methods—dueling and ordeals. To see how bad common law model is, imagine that all human conducts from destroying the planet to playing a bad joke may be characterized as malice; and 1 dollar and one billion dollars can meet the same consideration requirement in contracts. When a scale can deliver only an approximate weight in kilogram readings, it wastes resources to fight in a dispute in a reading error in a fraction of a gram. To underplay the model problems, courts have increasingly relied on technicalities, deadlines, procedures, rules, doctrines, and endless game-playing devices to distract litigants’ attention to justice. When miscarriage of justice happens, it is convenient blame the party’s fault.

Patent quality is even more difficult to measure. Considering inventions such as matches, stainless steel, plastic, vulcanized rubber, and penicillin, no common facts can be used in comparing patent quality. Patent legal requirements are used purely due to necessity. It is difficult to compare one patent with another patent. It is even more difficult to compare patented claims with prior art, imaging the unlimited freedom of selecting references and their combination. Whether a patent should be granted or denied cannot be determined in certainty even if references, relevant case law, and claims are fixed. The courts can still split in opinions because a large number of terms, legal rules, relevant law, doctrines, and other things in patent are susceptible to different interpretations. The large number of 5-4 decisions handed down by the U.S. Supreme Court demonstrate that it is impossible to make accurate determination even for a simple statute. However, if relevant law, facts, and references can be changed, as in patent case, outcome is unpredictable. I believe that “margin of errors” is really caused by “inherent uncertainty” and it is more than 20%, if all patents are fully challenged by using all possible prior art and decided by different judges. Moreover, there is no scientific basis to assume that a case holding must be applied to all inventions. A holding, which may be good in some cases, may result in absurd results in other cases. Different outcomes would be caused by the flaw in using the case law. When errors cannot be accurately defined and measured, patent examinations and patent trials necessarily result in conflicting outcomes.

Since the legal theory and the methods of adjudication carry inherent uncertainty in big margins, what is important is not to eliminate them, but find a proper way to address so-called errors. I believe that all those errors must be resolved in favor of inventors if the government understands the overwhelming society interest in securing inventions and the tiny rewards are actually delivered to inventors in the patent history. If errors are charged against inventors, such adverse actions will discourage inventing activities. Each adverse action will discourage individual inventors from trying, discourage accidental inventors from making inventions, and discourage people from becoming professional inventors. All adverse actions are accumulated to become a compelling force for destroying the innovation culture. If the Patent Office continues using the one-way patent quality policy, it will continue damaging public trust in the patent system. The public does not have to deal with a patent system that lacks good faith in fulfilling its firm offer. Erring on the side of inventors will advance constitutional purpose, but erring on the corporate side will cripple the patent system. This is now an indisputable fact.

It is often argued that bad patents can burden business. In addressing this argument, I must consider three different things: patent quality, litigation costs, and abusive litigation practices. Patents granted by taking the benefit of doubt do not mean they are actually invalid or bad. Yes and No is only a common law notion that is clearly contrary to reality. They merely have some weaknesses in the eye of law and are at odds with doctrines which are often incomplete, obsolete, and even absurd. It is entirely possible that some questionable inventions are highly inventive and of very high value to society. If a patent contains overly broad claims, a proper remedy is to amend the claims instead of invaliding the patent. It is well known that the court may construe the claim narrowly to avoid reading on unintended devices or processes.

The burden on business must be judged in light of the total contribution of inventions secured in the patent system. To see how millions of inventions help the U.S. economy, one only needs to pick up any product in a grocery store or departmental store, and count the number of inventions on components, used materials, formulations, and implied production processes. Even containers, package materials, and shipping methods are disclosed in patents. Some inventions are used everywhere with perpetual useful lives. Others may be replaceable or have limited useful times. Some accidental inventions such as matches, stainless steel, plastic, vulcanized rubber, penicillin, x-ray, and microwave have huge values to society. If one tried to “remove” them from our offices and homes, it would hard to imagine what is left. Just those inventions alone might have changed the world histories and have changed our life. Many inventions by individual inventors such as the copy machine as well as many foundational inventions by founders had great impacts on the U.S. economy. A large number of inventions by professional inventors such as Thomas Edison have benefited mankind significantly.  It is too easy to forget the huge benefits of inventions. A large number of inventions are not replaceable. Multiple inventions would appear only when an underlying problem is being tackled by multiple inventors independently.

Since U.S. patents are granted with exclusive right to exclude, the only way to realize values of inventions is licensing, suing for damages or both. This reward mechanism would depend upon corporate cultural attitude to patents. In the early time, corporations were more willing to license and buy patents.  After corporations have developed a culture of using free inventions, patent owners are unable to get rewards and unable to enforce their rights due to excessive enforcement fees. Thus, the only way to recover tiny values is selling patents to enforcement firms. This naturally leads to two problems: too many patent lawsuits and incidental bad patent lawsuits. When the patent system is so big, a few instances of bad patent lawsuits are unavoidable. No matter how good a patent system is, it must have a few percent of bad patent lawsuits. This is particularly so in the patent field because the law itself is approximate and legal requirements are subject to different interpretations. Excessive broad patent claims and abusive litigation practices can burden the public, but their harmful impacts cannot be addressed in isolated cases. Their impacts must be addressed in light of the positive impacts of the system and must be addressed in a systematic approach that takes into account those positive, desirable impacts. Abusive litigation practices must be addressed in light of the corporate culture of resisting licensing patents and buying intentions.

Negative effects of patent suits on corporations are not the same as the negative effects of inventors-hostile measures on technological progress. First, the side-effect of patent lawsuits will not result in a permanent loss that cannot be offset. If a corporation is gone as a result of a patent lawsuit, better corporations may appear. In comparison, if an invention is lost, it may be forever lost or cause society not to have the invention for some time. Second, if a corporation is suited for infringing a patent, the corporation must be in the vicinity of using inventions. The Constitution promises invention rewards as the right to exclude or right to sue. Therefore, risks of being sued for infringing patents are implied by the U.S. Constitution. The risks must fall on those who use inventions. Moreover, corporations must accept reasonable “harassment” by patent owners because they are the biggest beneficiaries of the patent system. Most big corporations use thousands to millions of inventions; and the inventors spend their own money and use their inventive skills to create inventions for their benefits. There is absolute no equitable point for corporations. Unless corporations are charged with use fees for inventions they use, they must tolerate some patent lawsuits so that they can use the millions of inventions acquired by the U.S. patent system. Finally, the government should never have created a legal environment to protect the status quo of corporations. The patent clause implies the opposite: since it encourages technological innovation, it must favor corporate successive replacements. Bad corporations should be replaced by new one with technologies more beneficial to people.

A high patent standard is detriment to all inventing activities that are protected by the U.S. Constitution. The Constitution does not place a threshold on inventive level and it was never intended to mean that rewards were only for super inventions. This is a basis for using multiple protection grants. All inventions are rare birds that cannot be mass-produced like articles in production shops. Thus, the patent office must use the most inclusive fishnet with an ability to capture as many inventions as possible. Since each invention is unknown at the time of capturing, one cannot design any method to capture all good inventions. Placing any limitation in the capturing method could exclude great and even greatest inventions before the patent office even knows what would be excluded.

I will end my articles with the following conclusion:

Inventions are rare birds with very high value to society and unpredictable impacts on technological landscape and economy. History is a best reminder of important roles of inventions. The Qing dynasty of China quickly lost its superpower in a big part due to its losses in wars it fought. Its poor performance in battles was in a big part due to disadvantages in military technologies. Many inventions cannot be duplicated by other inventors, many inventions may be duplicated only after long delays, and many inventions are critically important in timing. The number of inventions that would be made in a given nation is basically limited by the number of people, the educational and skill levels of the population, and overall technological state. The patent system envisioned by the U.S. Constitution is to encourage all people to find solutions to all problems in all fields. Since people cannot be forced to make inventions, the only way to make people to invent is providing sufficient inventive.

Cited data shows the U.S. has a technological crisis. The patent office role is stifling technological progress for the nation. Due to its long corporation-favoring policies, the U.S. individual inventors took only about 4 inventions per 100,000 people. This number is rapidly going down in response to the inventor-hostile AIA. The number of inventions by U.S. entities is fewer than Japan, and it will be surpassed by South Korean. It is only about one-tenth of China’s number recorded for China patent office. The U.S. patent system has become a corporate extension for protecting corporate products, achieving monopoly, perpetuating their existences, and taking inventions for free.

More than half of the U.S. patents are granted to foreign entities each year, with a large number of patents accumulated for enforcement against U.S. entities. U.S. corporations are on the losing side of competition. Some corporations harass individual inventions to open up technological spaces; and whenever patents are invalided, the underlying inventions will be free for foreign corporations. The whole patent system works in a spiral process to harm the national interest: few individual inventors get fewer and fewer patents while foreign corporations take more and more shares; more patents are invalided and more technological spaces are freed for foreign corporations; fewer and fewer individual inventors will try to invent, more and more patents will be taken by foreign corporations. Even a large portion of U.S. corporations has used U.S. patents to further foreign interests. Each time, when a patent is granted to a foreign corporation or a U.S. corporation aligned with foreign interests, the U.S. will surrender relevant markets for the entire terms with little benefit to the U.S. The technological poor performance is clearly correlated to the U.S. trade deficit from 1976 to present. When the patent office is hostile to U.S. individual inventors, they are not inventing and not patenting. The U.S. can never retake the technological spaces back. The market will be controlled by foreign corporations and U.S. corporations aligned with foreign interests. The patent office is promoting the interest of foreign competitions and foreign monopolies.

Until the patent office understands invention nature, abandon even-handed application philosophy and the high-quality standard, restore inventor-friendly policies, and terminate all money-can-buy privileges, whatever it does will only make the patent system worse. The AIA has not exerted its full adverse impacts yet, but the U.S. has suffered irreversible damages that cannot be undone. The high patent quality ideology has prohibitory impacts on U.S. inventive activities. They collectively make promised rewards failure so that inventions can be freely taken. The disparity in the application filing numbers between South Korean and North Korean shows how much bad patent policies could do to damage the national technological foundation.

A lowest patent quality standard can encourage a largest number of people to try to capture a largest number of inventive opportunities and make a largest number of inventions. A patent policy should remove all artificial barriers for would-be-inventors and let the people to steer technological development in multiple new directions. The constitutional mission implies that sound patent policies favor the replacement of old technological corporations by new technological entities, require inventions-using corporations to accept the risks of patent lawsuits, and promote commercial activities that advances inventive activities. The side effects of overreaching claims and questionable patents should be addressed carefully without discouraging inventing activities.

Thinking tankers should think how to recover from this man-made technological crisis. The Congress should create a new patent system, and write basic patent policies in the statute to prevent states regulators, federal and state courts, and the patent office from making more mistakes in the future.


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

Join the Discussion

34 comments so far.

  • [Avatar for Eric Berend]
    Eric Berend
    August 25, 2017 01:51 pm

    @ 30., ‘CP in DC’:

    Not sufficient, “Esquire”.
    Answer the points I made specifically there, and rebut these individually. Should be quite easy, if said “attacks” of mine are merely “ad hominem”. Why are you so lazy?

    Paltry attempt at a red herring, there: those “facts” you claim to have expressed, were little more than the expressions of your attitude based on policy reflections and false canard ‘talking points’ of your IP pirate masters and clients. Yet, you pretend that these deserve ‘rebuttal’.

    Ancient rhetorical tricks, do not make a coherent response nor argument.

    Your inadequate condescension amounts to an implication of “ad hominem” against me, in and of itself. At the least, evidence and references were supplied in Comment #23.

    Don’t let me guess: “TL/DR” to a ‘lesser’ pro se?
    You guys’ corrupt pretensions are literally sickening. And – yes; I have beat one of your ilk in motion practice at Court – give me an uncorrupted Judge, and I’ll do it again.

    By contrast, you FAIL to adequately support your de facto hit-and-run attacks made here, against ALL genuine small entity inventors.

    You boys are just like Trump – you ‘feel’ all imposing, having been coddled all along the way to your privileged perch – but when the real nitty-gritty trench war struggle begins – you resort to lies, calumny and ‘dirty tricks’, to avoid true confrontation on the essential issues.

    Thus: your charge of “ad hominem” against me holds about as much water here, as the notion of holding over five years of Congressional hearings without a single inventor being heard. In other words, a farcically malicious charge.

    For “fact”-based assertion here, I refer you to the several IPWatchdog articles carefully demonstrating that it is precisely NOT so-called ‘low quality’ patents that are routinely attacked at PTAB; rather, it is the HIGH VALUE patents that are so treated.

    “If an idea is novel, there should be no impediment to securing a patent.”

    What a load of TRASH you spout: “if an idea is novel, and it has ANY potential value in a new technology space desired by Big Tech IP pirates, then it goes to the PTAB patent-killing fields.” – there, fixed it for you. You’re welcome.

    Are you ready to pretend, “Esquire”, that said articles regarding the ‘qualities’ of patents routinely attacked at the PTAB, never appeared on this Internet ‘www’ site?

    But given such outright, typical attorney contempt for the American inventor – everyone here: see how utterly derogatory his regard is, for me and everyone who invents independently.

    This is actually instructive: ‘CP in DC’ is a good example “in a nutshell” of virtually everything unprincipled and deliberately harmful to smaller entity U.S. inventors, today.

  • [Avatar for Tesia Thomas]
    Tesia Thomas
    August 24, 2017 01:13 pm

    Yeah @angry dude,

    I was naive about patent law. But I learned pretty fast. Now, I’m trying to educate every start up that I see.

    It’s just crazy how much the government sucks. And most of it is Citizens United and corporate lobbying.

    I think China is so right in asking for half equity in companies if the state wants to remain in control of the country. If China has voting power in Google in China then China can stop them paying off politicians.
    But there is also the lovely information that bribery gets you beheaded.

    I was naive. But now I know to move to China. I’m holding out hope for the Oil States decision.

    I’ve paid attorneys a lot of money to file my IP but I don’t think anyone can have a perfect patent. I shouldn’t have to pay for perfect patents. And attorneys shouldn’t have to draft perfect patents.

    The thing is that all of Google’s thosuands of patents are imperfectly but they don’t get challenged or if they do, not as often as Google challenges IP.
    Oh wait, the IPR would fail anyway. Google bought APJs.

  • [Avatar for angry dude]
    angry dude
    August 23, 2017 11:59 pm

    In very early 2000s when I was patenting AND simultaneously publishing (yeah… I was that stupid) results of my R&D I attended a few IEEE conferences and talked to quite a few corporate researchers – all those PhDs from Microsoft Research and similar large outfits
    We agreed 100% that the US Patent system was being systematically watered down by large corporations on purpose and that eventually it would collapse…

    So here we are, year 2017

  • [Avatar for angry dude]
    angry dude
    August 23, 2017 11:43 pm

    @Eric Berend

    100% true, dude

    And the definition of “small inventor” moved from “garage inventor” (those are long gone as far as patents are concerned – Tesia is probably the last one because she is so young and naive… well maybe not so naive anymore ) to small entities with 100s of thousands or even millions of dollars invested in R&D and patent “protections” – all wasted by now

    We may be crazy but we are not stupid
    Fool me once – shame on you, fool me twice – shame on me

  • [Avatar for CP in DC]
    CP in DC
    August 23, 2017 08:59 pm

    Eric Berend

    Ad hominem attacks. Not one fact based rebuttal. No further reply necessary.

  • [Avatar for John Fetter]
    John Fetter
    August 23, 2017 07:37 pm

    Eric Berend – Thank you.

  • [Avatar for Eric Berend]
    Eric Berend
    August 23, 2017 04:49 pm

    @ 20., ‘CP in DC’:
    @ 21., ‘Benny’:

    For wealthy infringer IP pirates, whether foreign or domestic.

  • [Avatar for Eric Berend]
    Eric Berend
    August 23, 2017 04:48 pm

    @ 20., ‘CP in DC’:

    Now you are taking this notion to the ludicrous. IPRs have been shown to be instituted far more often against “HIGH QUALITY” patents that are more valuable, than “LOW QUALITY” patents that are far less valuable.

    Corporation counsel; “30,000 foot”, megabuck$ infringer viewpoint, much?

  • [Avatar for Eric Berend]
    Eric Berend
    August 23, 2017 04:47 pm

    @ 18., ‘John Fetter’:

    And, even for most U.S. based IP practitioners, these rules are unknown or a mostly opaque ‘thicket of laws’ seeming morass.

  • [Avatar for Eric Berend]
    Eric Berend
    August 23, 2017 04:47 pm

    @ 16., 19., 20., ‘CP in DC’:

    It’s funny how sometimes, the importance of a particular article here at IPWatchdog is not recognized until a half day or more has passed, then suddenly the discussion gets impacted by the IP pirates sycophants. In fact, it’s becoming hilariously predictable. If I don’t see a “Benny”, a “Cesar Salazar”, a “Tiburon”, a “SoftwareForTheWin”, etc., within about two hours of any given article publication here on; then, rest assured, within about 12 – 15 hours, the IP pirates’ sycophants will appear to push their corrupt drivel of supposed rhetoric.

  • [Avatar for Eric Berend]
    Eric Berend
    August 23, 2017 04:46 pm

    @ 13., 15., 21., ‘Benny’:
    @ 16., ‘CP in DC’:

    Completely unwarranted, your brutal piling-on, thus.

    And: you and your ilk, have some God*mnned nerve, to portray the issue in such insolent and derogatory manner.

    It is YOU and YOUR client BEHEMOTH CORPORATE PIRATES, who decided you would overwhelm the U.S. patent system, “firehosing” applications to sustain a mammoth “Mutually Assured Destruction” sleazy IP war with each other, as if U.S. patents were to be accumulated in like fashion as sabre-rattling nuclear warheads. Then, in the same period, YOU guys instructed YOUR OWN LEGAL DEPT’s to “DO NOT SEARCH PRIOR ART”.

    WHO was it, who generated LITERALLY 1,000,000’s of explicitly ‘low quality’ patents at the USPTO, over the past some 20+ years?
    YOU GUYS. YOUR pirate ‘CLIENTS’.

    NOW, after it was you and your fellow pirates who SWAMPED THE SYSTEM – you DARE have the SHEER TEMERITY to propose “Some changes are needed on all sides”?!!

    No. NO longer possible – there will be NO individual or small entity inventors, at THAT table. What – you really are used to hopeful genius inventors being your easy SUCKERS, right? Haven’t you seen the news, for the past FIVE YEARS, idiots? Congressional ‘hearing’ after Congressional ‘hearing”, even AFTER the stunning passage of the AIA – with NOT ONE actual REAL WORLD inventor, the ENTIRE TIME.

    Curious: how much more, do you think individual inventors can be forced to “change”, on our “side”, in your fantastic notion?

    What’s the matter? You and your fellow pirate whales have succeeded in ruining IP protection for the small inventor class that you have such deep seated inherent contempt for and hatred of; and’ we’re abandoning the system altogether in droves – is this not: what you wanted, fought for, dreamed of – and now handsomely have, beyond any shadow of a doubt?

    Then: STOP COMPLAINING and disparaging the already vanquished, you gluttonous assclowns.

  • [Avatar for Eric Berend]
    Eric Berend
    August 23, 2017 04:07 pm

    I have seen this disparity of motivations and rewards exhibited in the IT industry itself, in some of its sales models. There is a periodic vacillation between “supporting the channel” and “obviating the channel” of VARs that make up a great portion – if not the majority – of professional and industrial sales in IT today, and have for the past about 30 years.

    This domain bears all of the same hallmarks of a conflict of inherent interest between avarice of the benefits of incentivization and aversion to the intrinsic costs of the same; as are now found in the U.S. patent space.

    No doubt, there are direct effects. While perhaps not the sole reason involved, when HP ‘pulled back’ from the channel to emphasize more direct sales in some of its most lucrative lines, in the wake of the dot com bust, Collective with its 500 consultants, went bankrupt within 18 months. The company I worked for, a smaller ’boutique’ networking consultancy with Wall St. and Big Med research U. clients, had to downsize back to the West Coast and eventually its principal founder accepted a high-level tenured professorial position at a major CA University, with the demise of that concern. Also, please read Comment #6 in; testifying as to the same effect, but on a U.S. patent-degradation basis, at Rovi.

    In patents as applied to IP, there is an inherent potential conflict in the juxtaposition of possible enormous economic value being derived from the disruption or outright elimination of existing industries, for particular inventions.

    The Founders hoped that the appeal to overall economic benefit in the implied bargain of Article 1, Section 8, Clause 8 – as well as inculcation in the basic American principles of property rights being earned at blood price – would overwhelm or at least counter-balance the ‘human nature’ inclination towards appropriation of knowledge without cost and power abuse of the strong against those which are vulnerable.

    At the time, the establishment of a “patent” to land or “real property”, was the one category of ownership assignment or ‘title’, considered beyond reproach or recourse. Their choice to continue the classification of such intellectual property rights called “patent” out of the British jurisprudence, was no idle nor lazy consideration; on the contrary, if there was to be such insecurity of title or doubt as to veracity or property ownership, then the word and meaning of “patent” would most particularly NOT have been attached to the concept; the concept of “license” had been known in property law for centuries, by that point*.

    Instead, this is, in fact, the only specific reference to “property” in the U.S. Constitution, is in this single Clause. That these are straight forward and almost rudimentary bases of implication and conclusion, makes this no less true and indubitably applicable; indeed, before the entire domain goes gallivanting off in search of needless complexity: where is Occam’s Razor to be found?

    In human history, the survival of one’s “own” as differentiated from “others”, has often been enhanced at the burden of “others”. This is the basis of ‘exploit’ as transitive verb; (definition #2; while this is buried in the description shown there, note that it occupies all of its “Recent Examples of exploit…”)

    The ‘digerati’ and largely public school-educated masses, that now show such intense collectivist disdain for property rights and especially, patent property rights; have had it adroitly marketed to them, that inventors and patent holders are “evil” and do not deserve to be regarded with any respect whatsoever. We are now the ‘evil’ “other”. Therefore, false canards, emotions and ‘feelings’ have taken over their critical thought processes.

    “Scam”, “racket”, “swindle”, “defraud”; all being more descriptive versions of ‘exploit’; are we discussing so-called ‘human nature’, here?

    * A reference to the case of Thomas v. Sorrell decided in 1673; which most ironically, dealt with the question of whether a Royal Patent (!) prohibiting the establishment of any law providing for a penalty for selling liquor without a license, was applicable as to its validity and also, after the King’s death; can be found in the Columbia Law Review article “Licenses in Real Property Law” (Vol. 21, No. 8, pg. 759, footnotes 8,9; Dec., 1921).

  • [Avatar for John Fetter]
    John Fetter
    August 23, 2017 03:02 pm

    CP in DC @ 20 – I was under that self-same impression, that foreign applications have narrow claims and therefore sail through – for many years – until I looked very closely at one technology that I understand very well, picked the 50 latest granted patents, and proceeded to read all the pages of the public PAIR image file wrappers. Foreign patent claims are translated and one would expect this would have at least some negative effect. Yet there were very few objections. But what stood out were the successive waves of objections leveled at extremely well written claims, ranging from narrow to broad, of the patents taken out by some of the biggest US corporations. I personally believe that the near-real-time nature of public PAIR is a badly thought-out idea and that there are likely very sophisticated links between it and the objections. If it looks like a duck ……. Easy to deny, next to impossible to prove, therefore a perfect system.

    There are good laws and bad laws, good patents and bad patents, good people and bad people. Welcome to the real world. It is wrong to treat people differently merely because someone, who has decided what is good and what is bad, (and is likely to have a vested interest), is pointing a finger.

  • [Avatar for Benny]
    August 23, 2017 01:48 pm

    CP in DC,
    You should come here more often. You make sense.

  • [Avatar for CP in DC]
    CP in DC
    August 23, 2017 01:25 pm

    John @ 18

    Sadly, foreign applications are able to sail trough examination comparatively effortlessly and US applicants are obliged to work their way through multiple final rejections and RCEs. (Spend a few hours searching through public PAIR.)

    I’ve worked for both US and foreign clients, they get the same (poor) treatment. Generally, foreign drafted applications tend to be narrow without broad claims and that helps prosecution.

    If an idea is novel, there should be no impediment to securing a patent.

    True, and applicable regardless of the origin of the work (assuming 103 and 112 were met).

    If some people believe an idea or a patent must be judged to determine whether it is stupid, of “good quality” or “bad quality”, they should bear in mind that the idea of talking over wires sounded very weird in its day.

    It is not the PTO’s job to determine what is a worthy or commercially relevant invention (remember the SAWS program). In this context “quality” means proper examination, applying the legal standards and known prior art to obtain a patent with clear claims supported by the specification. If done properly, then it is unlikely an IPR will be instituted, because there would be no new art.

  • [Avatar for CP in DC]
    CP in DC
    August 23, 2017 12:59 pm

    angry @ 17

    Be as angry as you like, but the facts don’t change.

    EPO: filing fee 120, search fee 1,300 (the cheapest of 4 options), examination fee 1,635, total: 3055. Same at the PTO: filing 70, search 300, examination 360, total 740 (small entity).

    Proper examination would avoid IPR institution, just like it avoids EPO oppositions. IPR institution is not 100%.

    The two patents are examples of what got issued by the PTO. They were not the only “bad patents” that got issued, just a good example.

    Costs to weed out these patents is passed to the public through district court litigation or IPRs. Why should the public have to pay twice for shoddy work?

    A good patent system benefits all participants whether “big corporate infringer lobby” or “US small business” and it benefits research and business because it provides certainty.

  • [Avatar for John Fetter]
    John Fetter
    August 23, 2017 12:55 pm

    “A patent system does not prefer any one participant over another. Foreign applicants (especially in this age of multinationals) do not get preferential treatment over a national inventor. A patent by Google, IBM, or Merck doesn’t get a pass at the PTO or District Court while a patent for a sole inventor gets a “rough” treatment. The legal statutes make no exceptions.” – Sadly, foreign applications are able to sail trough examination comparatively effortlessly and US applicants are obliged to work their way through multiple final rejections and RCEs. (Spend a few hours searching through public PAIR.) If an idea is novel, there should be no impediment to securing a patent. If some people believe an idea or a patent must be judged to determine whether it is stupid, of “good quality” or “bad quality”, they should bear in mind that the idea of talking over wires sounded very weird in its day. The people working at the USPTO are working within a highly developed Cyril Northcote Parkinson system that is capable of withstanding just about everything society can throw at it.

  • [Avatar for angry dude]
    angry dude
    August 23, 2017 12:08 pm

    CP in DC @16

    Dude, are you with multinational big corporate infringer lobby or with US small business ???

    “A fee for a provisional application for small entity is $60”

    yeah, right, thanks but no thanks

    a price of cheap dinner only to be followed in a few short years by the IPR sticker price of 300-500K at least
    It’s called bait and switch

    And what was the harm from method of swinging patent ?

    anyone got sued for real ? any damages paid out ?? any injunctions ???

    Dude, you are really making me angry

  • [Avatar for CP in DC]
    CP in DC
    August 23, 2017 11:39 am

    I found the series of articles difficult to read. Difficult because the reasoning and conclusions were not adequately supported. A lot of opinion was passed off as fact or “observation.”

    A patent system does not prefer any one participant over another. Foreign applicants (especially in this age of multinationals) do not get preferential treatment over a national inventor. A patent by Google, IBM, or Merck doesn’t get a pass at the PTO or District Court while a patent for a sole inventor gets a “rough” treatment. The legal statutes make no exceptions.

    The high costs for obtaining a patent are legal fees, not PTO fees. A fee for a provisional application for small entity is $60. European attorneys charge more and EPO costs are higher. Maintenance fees in the US are joke compared to Japan or Germany that charge on a per claim basis. So if costs are an issue, lets have a honest discussion about this and compare comparable entities.

    The amount of filings is also not indicative of the problem. Yes China has more filings than the US, but the claim scope in China is narrow compared to the US, so naturally you file more applications to get the SAME coverage. The same coverage may not be possible as China allows claims only on exemplified subject matter. In contrast, the US allows prophetic examples and later declarations to support the invention, neither allowed in China.

    As to patent quality, if the author means “extreme patent quality,” then the author should use the modifier “extreme” to convey the message. Otherwise, there is a problem of confusing advocacy for better examination (yes it is poor) for extremism and thereby dismissing the message.

    We need an honest discussion about poor examination, poor applications, and poor prosecution. As Gene points out, there are two parties to the problem the PTO (examiners and the PTAB) and practitioners (applicants). The PTO is tone deaf to reasonable requests to improve examination even though they are aware of the problem. Practitioners refuse responsibility, placing the entire burden on the PTO (eg, I draft it and it’s their job to figure out what is in the prior art).

    I welcome an open and honest discussion on improving examination and applications. Any standard whether high or low impacts all participants whether large entity or small, national or foreign, a large lab or a sole inventor.

    Before all this discussion, we had patents to sticks (6,360,693) and a method of swinging (6,368,227, issued 2002). Yes extreme examples of poor applications poorly examined. The only recourse was to challenge these “presumed to be valid -282” patents in court at great expense. The large expense of challenging these patents was passed on to the public after the PTO failed to do its job.
    Naturally NPE appeared because the barrier to challenge the patents was so high. Now, the barrier to challenge is too low. We need modifications, even Federal Circuit judges in Nidec Motor Co agree.

    Some changes are needed on all sides.

  • [Avatar for Benny]
    August 23, 2017 10:52 am

    “The market will be controlled by foreign corporations and U.S. corporations aligned with foreign interests. The patent office is promoting the interest of foreign competitions and foreign monopolies”

    That would make equal sense if it were written by a European attorney in the context of the EPO granting EU patents to US applicants, giving US corporations the edge over their European competitors.

  • [Avatar for John Fetter]
    John Fetter
    August 23, 2017 10:36 am

    A patent is a narrowly and meticulously defined official amendment of an actual law that authorities permit patent title holders to enforce. That law is being corrupted.

  • [Avatar for Benny]
    August 23, 2017 10:18 am

    I can’t speak for the US, but in the little patch of sun where I hang my hat I can’t think of any legally binding decision over which I, as a voting, tax-paying citizen, have no right of appeal. That applies to patents also, where I can file an opposition (if I can show good cause) and request re-examination for locally granted patents.

  • [Avatar for John Fetter]
    John Fetter
    August 23, 2017 09:47 am

    A patent is a patent is a patent is a patent. It used to be. It is no longer. The issued document confirms that the person granted title to the patent has the right to exclude OTHERS from making, using, offering for sale, or selling the invention throughout the United States of America or importing the invention into the United States of America. That’s entirely fair and not difficult to understand. It absolutely does not say anything about OTHERS who hold a grudge against the titleholder, being entitled by virtue of the grudge to have the application examined again under conditions that are 100% favorable to the grudge holder, without the patent even having been put to use, thereby to disqualify the person granted title to the patent from putting the patent to use. Why does the Director of the United States Patent and Trademark Office not tell the truth on the issued document, by saying that the person granted title to a patent is granted title to something that cannot be used?

  • [Avatar for Anon]
    August 22, 2017 02:47 pm

    Gene @ 8,

    Tenure is no limitation to creative application of a truly reflective quality system.

    First (of many) business truisms, is that you get what you measure. The measurement system must be realigned with what “quality” actually means – which, of course, is itself more than just a little problematic in that defining quality must include – as you indicate – both Type I and Type II errors.

  • [Avatar for Anon]
    August 22, 2017 02:43 pm

    Gene @ 6,

    That is precisely what I was thinking in making my suggestion at post 3.

    Curious at post 4 hits on why the phrase itself (even though it may be noted as you suggest) will make a straight up reading (or quoting to other contexts) problematic.

    May I suggest that a separate post (putting all the pieces together AND making a the global swap-out be made, so that a single reference could be made – with the Extremism angle clearly noted directly in the text itself?

    It’s a little bit of “preaching to the choir” for us here to note that the author really means “Extremism” even though the simpler phrase “patent quality” is being used. Unfortunately, those with whom we engage may not engage on an intellectually honest basis, and will be only too willing to purposefully use the more common view of “patent quality” (vis a vis, NON extreme patent quality).

    Thanks to you and the author for continuing the good fight.

  • [Avatar for xtian]
    August 22, 2017 02:28 pm


    Here is another viewpoint to your two-way street analogy: what happens when we find a patent exhibiting “good quality?” Answer: nothing. It is still susceptible to the same challenges as “poor quality” patents. If there is “poor” there must be “good.” If it all on the applicant to filed “good quality” then incentivize “good quality” with immunity from IPRs.

  • [Avatar for Gene Quinn]
    Gene Quinn
    August 22, 2017 02:17 pm

    Jianqing Wu raises an interesting point about setting the quality bar too high.

    Before we even get to whether the bar is too high or too low the biggest problem I have is quality seems to be a one-way street in the eyes of the USPTO. I understand (and have seen) extremely low quality patent applications and patent prosecution. I get that the USPTO sees it all from the way it is supposed to be done to things that are truly awful. But quality, if it is to mean anything, has to be a two way street. There has to be a mechanism to address what we all know to be truly awful, sub-par (being generous) quality by certain patent examiners.

    The Office never wants to talk about quality being a two-way street. I understand why. There really isn’t anything they can do given the way public employees essentially have tenure.

  • [Avatar for step back]
    step back
    August 22, 2017 02:11 pm

    Gee, what if the USPTO could implement “quality extremism” in its dealings?

    What a radical and highly improbable thought!

  • [Avatar for Gene Quinn]
    Gene Quinn
    August 22, 2017 01:53 pm

    And remember, the author’s premise is that “patent quality” is all about extremism. The article he sent was close to 10,000 words and we asked him to break it down into smaller chunks so it wasn’t so overwhelming for Internet consumption. That view the patent quality extremism is wreaking havoc is absolutely his thesis and perhaps got lost in this final piece due to editing.


  • [Avatar for Curious]
    August 22, 2017 01:41 pm

    In my opinion our corporations would do themselves, and the US, a great service if they treated IP created by employees as a partnership with a revenue split, rather than property owned solely by the corporate entity.
    Not a bad idea. However, inventors really don’t appreciate how much risk (and invested $$) go into developing technology. If inventors want part of the reward, they should also be willing to partake in the risk. If they knew how much it cost, I doubt many would be signing up.

  • [Avatar for Curious]
    August 22, 2017 01:39 pm

    This point has been made before (and inferred by Anon @3 above). Arguing against “high patent quality” is a LOSING argument, and it plays into the hands of the anti-patent crowd.

    You can use the term “quality extremism” proffered by Anon or perhaps you can discuss why “gold-plated patents” are unnecessary and overly expensive the same way gold-plated toilets are unnecessary and overly expensive. Gold-plated patents mean that the patent system is heavily tilted towards the established players and the rich. However, gold-plated patents cannot be obtained by individual inventors and those new entrants into a market who are looking to disrupt the status quo.

  • [Avatar for Anon]
    August 22, 2017 12:26 pm

    Where ever the phrase “patent quality” appears, use the phrase “Quality Extremism,” and the piece reads much more easily.

  • [Avatar for Jeff Pittman]
    Jeff Pittman
    August 22, 2017 12:23 pm

    Thank you for this informative article about the downtown turn in US innovation. Thinking about this problem just yesterday, I believe a leading issue stifling US innovation is the lack of individual incentive to invent. More specifically, in most employment contracts all IP goes to the corporation or education institution, and not the individual. Thus, the individual does not see any of the passive financial rewards from their innovation. Thereby, their incentive is to invent is greatly diminished.

    In my opinion our corporations would do themselves, and the US, a great service if they treated IP created by employees as a partnership with a revenue split, rather than property owned solely by the corporate entity.

  • [Avatar for step back]
    step back
    August 22, 2017 12:04 pm

    Great title followed by a long exegesis to undecipherable ends.

    I agree that the current state of US patent law discourages inventors rather than promoting their desire to come forth with their ideas.

    I agree that in the long run we will see a diminishing stream of revolutionary ideas and a demotion of science and the useful arts in this used-to-be-great country of ours.

    Every rational wannabe inventor will question the sanity of working long hard hours to come up with an invention, allowing the USPTO to early publish it with no guarantee of fair adjudication, to watch the rest of the world freely take the published idea, run off with it and then to face an IPR death squad with 99% assured demise of the inventor’s dream.

    With odds like that from one’s own countrymen, who needs enemies?