Independent Inventors to USPTO: We Are All Underrepresented in This Patent System

By Eileen McDermott
May 9, 2019

Photo by alistairjcotton| ID: 70461613On Wednesday, the USPTO held the first of three scheduled hearings prompted by the Study of Underrepresented Classes Chasing Engineering and Science (SUCCESS) Act, which requires the USPTO Director to provide Congress with a report on publicly available patent data on women, minorities, and veterans, and to provide recommendations on how to promote their participation in the patent system. The hearing featured emotional testimony from five inventors, one of whom has recently joined Debtors Anonymous as a result of her patent being invalidated in the Southern District of New York.

Seeking SUCCESS

The SUCCESS Act was signed into law by President Trump on October 31, 2018 and gave the USPTO a one-year period to study representation of women, minorities, and veterans groups in patents. The Office released a report in February which showed that the number of women named as inventors had not been increasing at the same rate as the number of women who were now in STEM professions.

Deputy USPTO Director Laura Peter said at the hearing on Wednesday that the Office is seeking input from industry, lawyers, and academics at the public forums, the next two of which are scheduled in Detroit on May 16 and San Jose on June 3. “We’re looking for concrete ideas and action plans to increase the numbers of these groups applying,” Peter said, before explaining that she would be unable to stay for the remainder of the hearing.

Neither Peter nor Iancu was present for the public testimony, which one speaker remarked on critically. Artist and entrepreneur Darcy Bisker, who spoke twice during the hearing, commented on the lack of attorneys and top USPTO officials at the event. “Why are there no attorneys or other members of the public here? Why are the Deputy Director and Director not participating?” she asked. “They should be here.”

Like Sheep to Slaughter

Bisker is the owner of  patent no. 5,863,632, which was issued in 1999. After establishing a successful business and selling it, she and her business partner became embroiled in patent litigation, which led to cases against News Corp., 3M, and others in the Eastern District of Texas and the Federal Circuit. “My patent was not respected by commercial businesses and large corporations, so I have to ask—is the USPTO issuing valid patents? And if so, why are they not being upheld in the judiciary?”

She added that the focus of the hearing was misguided in that the true underrepresented class is independent inventors generally. “There needs to be reform. We don’t need to continue to focus on what we already know—yes, women are disadvantaged, but if I only have four fingers, how will I use them? I probably will not take the money I earn and put it in the public and have it usurped and taken away.” Bisker said that she expected to see more people developing inventions in secret in response to the unsustainable situation for inventors. She also said that she will abandon her recent company, Invent Yourself, which is aimed at teaching children ages 15 to 25 about the importance of IP, because “I don’t think I should help lead the sheep to slaughter.”

Don’t Forget STEM

Getting back to the USPTO’s intended focus for the hearing, Leslie Flynn, Professor at the University of Iowa, provided some statistics on women and minorities in STEM fields. Flynn is conducting a longitudinal study on high school students engaged in her department’s STEM Innovator initiative in order to provide a fuller picture of the capacity for minority groups to excel in STEM fields when provided with the appropriate tools. The full results of the study will be published in November, but preliminary research suggested that young adults need to engage in the innovation process at the K-12 level, Flynn said. “A shift is needed, and this should be advanced through legislation and a serious call to action for public-private-partnerships,” she added.

But Flynn was the only speaker who directly addressed the dearth of minority patent owners. The majority of speakers seemed most concerned about the damage being done to independent inventors of all persuasions as a result of developments such as the America Invents Act and judicially-created patent law.

Drowning in Debt

Perhaps the most heart-wrenching testimony of the day came from Paula Murgia, an independent inventor with Personal Beasties Group, LLC who broke down in tears multiple times while recounting her story. She began: “Hi, my name is Paula and I’m a debtor. I recently joined Debtors Anonymous, which I didn’t even know existed until I tried to pick my life back up after October, when my patent was invalidated in the Southern District of New York.”

Murgia’s patent no. 6,769,915, issued in 2003, was invalidated under Section 101 and she is now appealing. The patent covers “a user-interactive behavior modification system” that is in competition with technology pursued by the likes of Nike, FitBit, Apple, and Samsung. Murgia explained, sobbing at times uncontrollably:

“In 2004, big tech was well on its way to demonizing inventors and patent holders—accusing us of impeding innovation, when in reality we were just in the way of them steamrolling their own way towards monopoly status. They labeled all software patent owners as patent trolls. I was shunned, scolded and lectured whenever I mentioned being a patented inventor in the digital technology industry. I would pitch and people would laugh at me. By 2005, Nintendo had launched WeFit. Like many software patents post-2014, my first attempt to enforce my rights was defeated this past October. We filed our appeal last week. So, we’ll be coming back to Washington in a few weeks and I’m still holding on to some sort of hope. I’m still happy to testify here today to provide information and to encourage more minorities and women to invent here rather than in China, which seems to be the current trend.”

Playing it Safe

Representing veterans was Brian Aumiller, who served approximately 11 years in the National Guard before becoming an independent inventor—but one who is too afraid to practice his patent. “I went out and got a lawyer and got my patent issued within seven months. I was excited because I had something that was mine, this is what I fought for in the military.” Aumiller, who also became emotional at times, explained that he had yet to discuss his patent publicly prior to the hearing, due to his fear of litigation. “I learned right away that the patent was only valuable if you can defend it. Getting the patent is the easy part; protecting it is the hard part.”

Aumiller added that he does not have the $450,000 an earlier speaker had cited as the average cost of a PTAB proceeding.

Josh Malone, Inventor of Bunch O’ Balloons, said that his “heart aches for Darcy and Paula.”

“These women inventors believed the promise on their patents and it wrecked their lives. These savvy, educated, industrious individuals did everything right and learned our patent system is rigged for big corporations. I hope these findings by the USPTO will convince Congress to take the patent system out of the hands of the lawyers and corporations and give it back to independent inventors.”

The USPTO is accepting comments from the public on this topic at successact@uspto.gov through June 30.

Note: an earlier version of this article included quotes from Jeff Hardin and Patricia Duran that Hardin and Duran felt were  inaccurate. They have been removed in their entirety as we were unable to immediately clarify.

Image Source: Deposit Photos
Photo by alistairjcotton
ID: 70461613

The Author

Eileen McDermott

Eileen McDermott is the Editor-in-Chief of IPWatchdog.com. Eileen is a veteran IP and legal journalist, and no stranger to the intellectual property world, having held editorial and managerial positions at several publications and industry organizations. She has acted as editorial consultant for the International Trademark Association (INTA), chiefly overseeing the editorial process for the Association’s twice-monthly newsletter, the INTA Bulletin. Eileen has also served as a freelance editor for the World Intellectual Property Organization (WIPO); as senior consulting editor for the Intellectual Property Owners Association (IPO) from 2015 to 2017; as Managing Editor and Editor-in-Chief at INTA from 2013 to 2016; and was Americas Editor for Managing Intellectual Property magazine from 2007 to 2013.

Warning & Disclaimer: The pages, articles and comments on IPWatchdog.com do not constitute legal advice, nor do they create any attorney-client relationship. The articles published express the personal opinion and views of the author and should not be attributed to the author’s employer, clients or the sponsors of IPWatchdog.com. Read more.

Discuss this

There are currently 59 Comments comments. Join the discussion.

  1. Jimmy May 9, 2019 9:03 pm

    I do agree that independent inventors should have a different classification with the USPTO. One of the benefit of having this classification would be that instead of going through the PTAB to invalidate all the granted patents that come their way, the independent inventor would instead go through arbitration/ mediation and have a limit on the number of times that a person/big tech could file a petition toward the independent inventor.

    Then the next major issue for the USPTO would be – what defines an independent inventor? Is there a limit on the number of granted patents that an independent inventor can have (I’m hoping there won’t be)?

  2. Anon May 9, 2019 11:30 pm

    Horrible idea – and one that goes against a basic foundational premise of the US patent system.

    See Thomas More to get why (in reverse).

    ANY improvement or power of patent NEED be independent of patent owner.

  3. Josh Malone May 9, 2019 11:46 pm

    Anon – the wealthy elite class has plenty of rights in the current public franchise system. They are doing fine. Claw back some rights for inventors and America will make a come back.

  4. Paul Morinville May 10, 2019 2:14 am

    Anon, I agree with Jimmy. And I agree with you. All things being equal, you are right and Jimmy is wrong. But all things are not equal. In fact the laws were written by huge corps for the benefit of huge corps. Whether they intended to screw small inventors or not doesn’t matter. The fact is all small inventors are screwed.

    I think we should exempt the small from the laws that the big bought. The big can then play in the swill they themselves created with each other while the small guys startup companies. When the small grow to a certain size, they get to jump into the swill. But at least they get to get there. Today the small get nowhere, so it is an improvement.

  5. mike May 10, 2019 5:06 am

    Anon, you and I have spoken about this on this blog before. Although I absolutely agree that the rights associated with a patent should be fully transferable and not depend on the entity who holds the patent, the reality is that this utopia does not exist. I’m not finding evidence of this “go[ing] against [THE REALITY] of the US patent system”. Your theory is great and one to pursue, but recall, you cannot obtain a patent on an “abstract idea”. This suggested change, on the other hand, focuses on reality and transforms a particular article (in this instance, a patent held by its inventor) into a different state (a patent with the ability to be excluded from a challenge at the PTAB).

    Congress with the AIA pushed patents in the opposite direction of your utopia. Because Congress shows no signs of going away from this system (ahem, Oil States), giving this underrepresented class the ability to choose the venue where a patent challenge might occur is the next best thing.

  6. Anon May 10, 2019 6:40 am

    Sorry Mr. Malone, but this remains a very p00r idea.

    No matter how it sounds or feels, making the property right dependent on the owner and not fully alienable is simply a very bad idea.

  7. Anon May 10, 2019 8:11 am

    While my earlier comment is still “in transit” (there are still serious, and uneven, delays in the speed of posting comments for this site), I will add that I have previously explained why segregating rights by type of patent owner is both a bad idea and how it goes against the nature of the patent right itself.

    This is NOT to say that I do not feel for the “game” and those without sufficient means to play that game. But one does not advance by being blinded by emotion. For the reasons already given, tieing particular substantive powers of patent to be dependent on whom owns the patent is simply not the way forward.

    Restore power and night to the patent? Restore injunction as the “default” because it is the path of remedy that makes the transgressed most whole?

    Absolutely.

    But do this across the board and independent of just who happens to own the item of property.

    Be aware of — and beware of — any Pandora’s box leading to an affirmative “must practice,” or “must be the inventor” to enjoy the full power of the patent grant. This is NOT about whether the rich have other means. This IS about what it means for a patent to be a patent.

  8. Anon May 10, 2019 8:19 am

    No mike, two wrongs still do not make a right.

    The answer is NOT to denigrate a patent further (just because the emotion is there and this “feels” like a justified ‘Ends’).

    There simply would be unintended consequences to what is being portrayed as a “good” thing.

    This is not some “pollyanna” non-reality thing that I talk about, and making this misstep would remain a misstep, even if you feel that this would provide “some” good.

    As I discussed previously, this “some” does not even provide the perceived protection across the entire class to which it is aimed. It would provide only for the members of the class that also practice their innovation.

    So, again, while I “feel” the pain, I stress that this idea is and remains a bad idea – and a bad idea for all.

  9. Jason Lee May 10, 2019 9:34 am

    “Like Sheep to Slaughter” Well said Bisker!!

    NOW this is the truth, but know one seems to be listening!! Patents are worthless its all smoke and mirrors, at the end your patent is worth-less and you have no money left!! Keep you invention to your self!! or Go to Germany and China to get real protection.

  10. Paul Morinville May 10, 2019 10:13 am

    Anon, There is no patent system. You imagine one and attribute it with good sound policy. But that is all pixey dust and fairies because it doesn’t exist. But we have an opportunity to learn from China. They started up a patent system on a small scale and expanded it from there. Let’s create a trial patent system for small entities. If it harms our economy, the damage will be confined. After all we are going to experiment with a new idea and that is dangerous. After all, how can anyone own an idea? That is such a bastardization of a free market. But it seems that China makes a good argument that a patent system will help drive innovation. We should try it. If we damage our free markets, that damage will be confined to the small. But if the Chinese theory works, we can expand it to larger entities, work the bug worked out and eventually we can allow everyone to participate. We have a lot to learn from the Chinese. They did in fact figure out that creating a property right for a new idea creates an asset that attracts funding to startup companies. Funding companies to commercialize new ideas creates jobs and drives others to create more. We should learn from them.

  11. Anon May 10, 2019 11:07 am

    Sorry Paul, but if you want to rest on some type of “we don’t have it” argument and then make changes, I will continue to resist when those desired changes are known to be sub-optimal.

    You want changes? Fine. Let’s change BACK TO the power that we had while retaining features that are NOT compromised by placing substantive rights based on “who owns” rather than the item itself.

    I am all for having an open mind in considering alternatives, but I refuse to have an “open mind” to the level that my brain falls out. My counter points do NOT go away based on your supposition that the system needs to be changed. The change you advocate for remains a bad change.

  12. Paul Morinville May 10, 2019 11:21 am

    Anon, I agree that the changes are not good. But they are an improvement. There is no way that Congress is going to fix anything. There is just too much money dumping on them to keep it broken. Fundamentally, I completely agree with you – 100%. I wish it were possible, but that view is pie in the sky. It will never happen until China hacks an aircraft carrier and beaches it.

  13. Dan Brown May 10, 2019 12:22 pm

    The problem with the current system for inventors is the Efficient Infringement business model. Pirates know that they can abuse inventors rights in the current legal system with little chance of ever being held accountable. The costs and sacrifices that an inventor makes to pursue an infringer is the issue. This combined with a lack of criminal punishment for willful infringement perpetuates a cannibalistic system for inventors seeking to commercialize their intellectual property. We need a legal system that will protect the inventors rights and punish the pirates. Not just for special groups of inventors, but all inventors.

  14. FormerInventor May 10, 2019 12:23 pm

    I sold a bunch of VR/AR patent rights, oops I mean “franchises”, to a big corp at a steep discount from the valuation. I was glad to get something at all, considering the stories in the article.

    I took the money and invested in Real Estate instead of furthering my technology. The piece of paper from the government for my real property actually means something and is not so easily taken away.

  15. Jimmy May 10, 2019 12:35 pm

    @Anon

    I wasn’t aware that there was a so-called “system” but if that is the language you want to use, then I submit this as part of the foundation –

    Patent Act 1836 – SEC. 17.

    “And be it further enacted, That all actions, suits, controversies, and cases arising under any law of the United States, granting or confirming to inventors the exclusive right to their inventions or discoveries, shall be originally cognizable, as well in equity as at law, by the circuit courts of the United States, or any district court having the powers and jurisdiction of a circuit court; which courts shall have power, upon bill in equity filed by any party aggrieved, in any such case, to grant injunctions, according to the course and principles of courts of equity, to prevent the violation of the rights of any inventor as secured to him by any law of the United States, on such terms and conditions as said courts may deem reasonable: Provided, however, That from all judgments and decrees, from any such court rendered in the premises, a writ of error or appeal, as the case may require, shall lie to the Supreme Court of the United States, in the same manner and under the same circumstances as is now provided by law in other judgments and decrees of circuit courts, and in all other cases in which the court shall deem it reasonable to allow the same.”

    What is interesting about this section is the “…all actions, suits, controversies, and cases arising under any law of the United States, granting or confirming to inventors the exclusive rights to their inventions…. shall be by the circuit court or any district court having the powers and jurisdiction of a circuit court…. To grant injunctions…. To prevent the violation of the rights of any inventor…”.

    Since those in the legal world like to play the mighty “wizard of words” game, maybe someone can explain what the word “ALL” means. The definition I’m seeing for “all” refers to “to the whole quantity or extent of a particular group or thing”. Additionally, since when does PTAB have the right to grant injunctions….

    Also, the “foundation premise of the U.S. Patent System” already classifies inventor when they file their application by the fee’s they pay. Additionally, the foundation of the 1836 patent law even goes further and breaks down the classification based on an inventor (citizen) nationality.

    I find it very alarming when I hear that the courts (i.e. – judges) refer to a process, event, and/or reasoning for a decision based on something that happen in the U.K (Great Britain) in the 1500’s, 1600’s, and/or 1700’s. Wasn’t the purpose of the Declaration of Independent is to be free of the rules and laws of Great Britain? If so, then why wander down the Great Britain rules/laws path and find some sentence that talks about “Privy” when establishing a rule in the U.S. for patents

    A founding father and an independent inventor Thomas Jefferson wrote “Believe me, dear Sir: there is not in the British empire a man who more cordially loves a union with Great Britain than I do. But, by the God that made me, I will cease to exist before I yield to a connection on such terms as the British Parliament proposes; and in this, I think I speak the sentiments of America.”

    So if the rules of law actually pertained to the “foundation premise of the U.S. Patent System”, the independent inventor may have a chance of succeeding.

  16. mike May 10, 2019 1:13 pm

    Anon, Two wrongs don’t make a right. I agree. Two wrongs make two wrongs. But this is not a second wrong. This is correctly using how “patent rights” are defined with today’s patent law, and applying a similar principle to enable the lower class that the AIA created in 2011.

    You said “I have previously explained … how it goes against the nature of the patent right itself.” Sure, but please define “patent right” as it exists in the United States statute and case law as of May 10, 2019, and then we’ll get somewhere.

  17. Josh Malone May 10, 2019 2:35 pm

    I do not see any fundamental offense in giving the INVENTOR the exclusive right to their discovery. That is exactly what the founders authorized in Article 1 Section 8 of the Constitution.

  18. MICHAEL RAM May 10, 2019 5:18 pm

    The USPTO has to stand by, the Courts have to recognize and Congress must pass legislation that acknowledges that A PATENT IS PRESUMED VALID and the pre-AIA 101 standard for patentable subject must be reimplemented. It is not acceptable that what once was patentable subject matter is no longer patentable. As a patent attorney I can work within the patent system and with the patent examiners and their supervisors to place the best art on the record, to address 102 and 103 issues and to write claims that comply with 112. This would then establish a high threshold on those attacking the validity of patents. Suppose the USPTO is necessary party in the defense of patents it issues, and is obligated, if the patent is overturned, to reimburse the patentee not only for the cost to obtain the patent but also for the cost to defend the patent issued by the USPTO. We still have to figure out a way to cover the cost of enforcing patents against deep pocket infringers. With patents presumed valid and then found to be infringed more Courts (and the PTAB if it continues to exist) will rule in favor of the inventor enforcing his/her patent rights, the Courts will see that the patentees receive just compensation and the settlement of infringement actions will predominate over litigation to the bitter end.

  19. Anon May 10, 2019 6:11 pm

    Josh,

    You misunderstand what I state. It is NOT a matter of “giving the inventor.”
    It is a matter of introducing a slippery slope of substantive patent power as a function that WHO the holder is AS a function of being the inventor.

    I have explained this previously.

    Jimmy,

    The difference between non-substantive patent power and price breaks for aspect of “who owns” is a topic well known to those concerned with these matters. I am not going to rehash aspects that you should already be aware of.

    Additionally, you going back and pin-citing aspects of law (regardless of context and evolution of law) is NOT helpful for the discussion. The foundational aspects I speak of are related to the award winning (historical society related award) work on the foundation of the US patent system.

    mike,

    While you state here that this is “not a wrong,” I have explained previously exactly why it IS a wrong. I do understand how you want this to be placed into the context of changing meaning of the US patent right, but as I pointed out above, that does not “make” the argued for position any better. That argued for position necessitates a change. The better path is to change BACK to the prior power position WITHOUT the side effects of inducing ANY “WHO OWNS” detriments.

    Paul M.,

    I truly feel your pain. Nonetheless, I will continue to advocate based on law and not sheer emotion.

  20. mike May 11, 2019 10:46 am

    Anon:
    “The better path is to change BACK to the prior power position WITHOUT the side effects of inducing ANY “WHO OWNS” detriments.

    I understand your position and agree on the ideal. But wr must focus on reality. Have you spoken to Congress about this and determined their lack of willingness to roll back?

    I have.

    When your starving child REFUSES to eat the banana you hold in your right hand, and you hold a cookie in your left, knowing your child will die without consuming glucose, you must give him the cookie to sustain him for at least a while. It’s better to still be in possession of the banana for later persuasion and consumption with your child still being alive, than to be holding a banana and a cookie while overlooking a grave and tombstone that reads, “here lies a child who died of starvation.”

  21. Anon May 11, 2019 1:21 pm

    We must have patented very differently mike (with no disrespect intended), but the child when hungry enough WILL eat the banana.

  22. jimmy May 11, 2019 1:58 pm

    @anon

    Maybe you would like to share more about this “award winning” foundation you keep on referring to (after all I did give you the 1836 patent law as a reference). If the board/group is going to argue the counter point of your point of view shouldn’t we at least understand where your point of view is coming from?

    Another foundation I’m using is from the USPTO site which states:

    “President George Washington signed the bill that laid the foundation of the modern American patent system. This date marks the first time in American history that the law gave inventors rights to their creations.

    The 1790 law gave the Patent Board members the power to grant a patent. Their authority was absolute and could not be appealed. “

    According to that statement – the board has the right to grant (not take away or invalidate) a patent and further more the authority was absolute.

    Again if the foundation of the U.S patent system was truly being followed, then independent inventors would have a fighting chance.

  23. Perkins May 11, 2019 2:59 pm

    Kudos to Darcy Bisker, Paula Murgia and the others who are trying to publicize the wrongdoing that has resulted from big data’s anti patent activity. Big data’s attitude that they do not need to be annoyed by pesky inventors and their patents, fits right in with their attitude that they don’t need government regulation of how they protect their customers’ data. I agree with Chris Hughes that Facebook should be broken up, and I suggest many other big data companies should be broken up as well.

  24. Anon May 11, 2019 7:49 pm

    PaRented (not patented) – mea culpa

  25. Another Anon May 11, 2019 9:05 pm

    Heard from an inventor after the AIA passed: “We are all Trolls now.”

  26. Disenfranchised Patent Owner May 12, 2019 7:22 am

    “Specifically, recommendations should be provided on how to promote the participation of women, minorities and veterans in entrepreneurial activities; and how to increase the number of women, minorities and veterans who apply for and obtain patents.”
    –Deputy USPTO Director Laura Peter

    Perhaps women, minorities and veterans simply have more common sense than us mostly male idiots who believed in and relied upon US Patents. Unless and until real value is restored to US Patent “rights,” nobody in their right mind should ever consider investing in a US patent (or inventing in the US, for that matter).

  27. Disenfranchised Patent Owner May 12, 2019 7:34 am

    “At each of these hearings, we welcome representatives from industry, law, and academia to present oral testimony on the participation of women, minorities, and veterans in entrepreneurship and patent activities. We value your insights and recommendations regarding: concrete ideas and action plans to increase the number of women, minorities, and veterans applying for patents; public policies or other initiatives to promote the participation of such underrepresented groups in the patent system and entrepreneurial activities; and the role that the USPTO should play in addressing these important matters.”
    –Deputy USPTO Director Laura Peter

    The USPTO should advocate for the complete and total repeal of the Orwellian named America Invents Act (AKA the “Anti-Inventor Act”), if it truly wants to promote entrepreneurship, innovation and the continuation of public policies that have made America great for everyone, including women, minorities and veterans. On the other hand, if it truly wants to preserve the jobs of 300 (or so) $175,000/year kangaroos whose job it is to kill patents, they’ll never do so.

  28. mike May 13, 2019 2:11 am

    @anon: “the child when hungry enough WILL eat the banana”

    Not a child that doesn’t know any better. With the passage of the AIA, we have such a child.

  29. Anon May 13, 2019 8:08 am

    jimmy,

    I will look for the reference for you (it was on Patent Docs sometime last year).

    But do not confuse that reference with your snapshot of the 1836 law as some type of “equal” foundation point. What you provided is not a foundation point.

    As to 1790 and “absolutetism,” perhaps you have a link for that. US law tends away from absolutism, and property – even at 1790 – did not enjoy “absolutetism.” Eminent domain was a real thing back then (as it is now), and Takings legitimately may occur. Of course, there are conditions to be met for Takings to be legal, but they does not mean that no Takings under any situation is the rule.

  30. Anon May 13, 2019 8:17 am

    mike,

    Sorry, but I am not buying any points that you are attempting with the parenting analogy.

    What is being pursued here is not a “one time cookie to keep a child alive” scenario.

    Further, as I indicated several times now, the position simply does not accord any weight because “change” is needed now because of the AIA.

    We can all agree that the AIA is abysmal without agreeing that adding another wrong of tying substantive patent rights to the condition of who the property owner is IS a “good” thing.

    It is NOT a good thing, and no amount of “the present condition needs to change” can make it to be a good thing. The “relativism” gambit is a logical fallacy, to which I simply and directly say: “No thank you.”

  31. mike May 13, 2019 6:02 pm

    @anon: “I am not buying any points that you are attempting with the parenting analogy.” OK great. I will ignore your comment “the child when hungry enough WILL eat the banana” then.

    I genuinely do look forward to you providing an attainable legislative solution to the discussion when Congress doesn’t want to abolish the AIA, yet the AIA created two classes of patent holders: those who can receive adequate representation, and those who cannot, and those without adequate representation have patents with expiration dates.

  32. Anon May 14, 2019 7:51 am

    mike,

    There is a difference between “not buying” and “ignoring.”

    I am not ignoring your comments – I am pointing out that your comments do not have the weight that you think that they have.

    Your “fallback” is a legal fallacy. I cannot make Congress do the thing that I would have them do. But that simply does not mean that the attempt to have Congress do something else is not itself an error or a wrong. Such remains a wrong and — as such — two wrongs simply still do not make a right.

  33. Josh Malone May 14, 2019 9:51 am

    Anon, is it legally wrong to not have a patent system? Is it legally wrong to have a patent system that grants transferable rights? Is it legally wrong to have a patent system that grants non-transferable rights?

    None of these things are legally wrong. Congress has broad authority to secure exclusive rights to inventors provided it promotes progress in useful arts. There is no mandate that Congress provide a patent system, it is their prerogative.

    I submit that the current system is legally wrong as it fails to secure and does not promote progress in useful arts. Congress is not authorized to issue public franchise rights to the wealthy elite – that is the system our founders explicitly rejected.

    But you are not talking about whether a certain policy is legally wrong or not. You are talking about what policy best promotes innovation.

    current patent – worst policy
    no patent system – poor policy
    non-transferable patent system – intermediate policy
    transferable patent system – best policy

  34. Anon May 14, 2019 10:07 am

    Josh,

    Your questions are off base.

    Wrong and “legally wrong” are two very different concepts.

    But to answer your questions.

    It is not legally wrong to not have a patent system. Such is a Sovereign choice and as such, the notion of “legally wrong” is largely inapplicable. For a Sovereign to choose not to have a patent system then would not be “legally wrong.”

    Similarly, a Sovereign may well choose to have a patent system along any number of graduated options. In such a case then, a Sovereign may well choose to have a patent system that grants transferable rights, and there would be no “legally wrong” there.

    Similarly, a Sovereign may well choose to have a patent system along any number of graduated options. In such a case then, a Sovereign may well choose to have a patent system that grants non-transferable rights, and there would be no “legally wrong” there.

    However, NONE of those questions align with what OUR Sovereign set forth in its creation of OUR patent system.

    This is the baseline for MY comments concerning what is “wrong” and how two “wrongs” cannot make a right.

    I DO hear your concerns, and I have been more than patient in explaining to you that just because the current state is one in which change is desired, that THAT condition does NOT make the proposed move any better.

    IF you are going to premise your argument that change is needed, that is all fine and good.

    But that would serve as a premise unto itself, separable from the next step of the proposal.

    I STILL reject the notion that making (substantive) patent rights depend on the WHO of the owner of those rights is a “good” idea.

    I STILL reject the logical fallacy of “relativeness” as an attempt to peddle a plainly BAD idea as some type of “step forward.”

    IT is NOT a step forward. A bad thing is always a bad thing. You want to say the current situation is “wrong.” We may find common ground there. But I reject your proposal and the p00r logic being attempted to make that proposal “sound good.”

  35. Paul Morinville May 14, 2019 10:09 am

    “current patent – worst policy” It’s a sucker policy. You get to give the labor of your mind to huge corporations paying hundreds of thousands of dollars to do so, and lose your rights to trade secret the invention all at the same time.

    NEVER PATENT IN THE UNITED STATES.

  36. Jimmy May 14, 2019 10:54 am

    While I’m not a big fan of eminent domain, I do understand the pro’s and con’s of it (former life as a highway civil engineer) and one of the pro’s is that the owner of the property are at least compensated for the government taking of the property.

    If the USPTO is going to invalidate a property of mine, I want to be compensated for the property. Regardless what the SCOTUS stated in the Oil decision, patents are considered as private property. You talked about the “foundation of patents system”, how about the foundation of private property rights. Since the legal system seems to fall back on historical aspect of things, all one has to do is read James Madison and John Locke to understand that a person work (including writings) and ideas are private property rights (natural). When I (as an independent inventor) put something in writing and submit to the USPTO, I’m not giving up any of my private property rights.

    When the USPTO grants an exclusive right to my private property rights and then proceeds to invalidate those same exclusive rights and takes away ( eminent domain) without compensation, my private property rights have been violated and taken away, with the end results being my writing have become public property.

  37. Anon May 14, 2019 11:39 am

    Jimmy,

    I completely agree with you about the travesty of the Oil States decision, and how that decision simply cannot square with the direct words of Congress (a granted patent shall have the attributes of personal private property).

  38. Anon May 14, 2019 11:54 am

    Jimmy,

    There is an additional notion that may help your understanding of “private rights” – the notion of an inchoate right.

    An inchoate right is something that is less than a full legal right and that must go through some set legal process to become an actual legal right (and then, for which Takings law may apply).

    One of the major problems with all of the post grant procedures is the fact that — being post grant — the inchoate right has been deemed to have become a full legal right.

    At the institution decision point, when that already granted item is dragged back into the executive branch apparatchik, and no longer treated as a full and proper legal right, there has been a Takings. And regardless of any actual additional “adjudication” (or pseudo-judication in the non-Article III forum), the damage of the Taking has already been done. Putting a gloss on the mechanism of pulling a granted property right back into a domain and calling it a Public Franchise right does not — and cannot — alleviate the Act of a Taking.

  39. Randy Landreneau May 14, 2019 2:09 pm

    Anon,

    Does it not matter that our Constitution specifically mentions inventors, rather than those who acquire patents from inventors? If an inventor cannot defend his or her patent right because he or she doesn’t have $450K available for each PTAB attack (and no chance at contingency representation due to no winnings and terrible odds), then the inventor has no rights. Large entities still have rights. They can even apparently get cronies as PTAB judges! Allowing inventors to opt for Article III Courts facing invalidation efforts appears to me to be a reasonable step toward achieving what was originally intended.

  40. Anon May 14, 2019 4:32 pm

    Does it not matter that our Constitution specifically mentions inventors, rather than those who acquire patents from inventors?”

    Fair question – as far as that goes. See “Stanford v Rocher” as to just whom may be the first.

    Other than that, you absolutely miss the very basic fact that the PROPERTY of the patent grant was always intended to be a fully alienable property.

    Such was NEVER meant to be constrained to be required to be held by that actual inventor.

    The rest of your post is dealing with logical fallacies. Sorry, but one STILL has rights, even if one cannot afford to apply them. This in no small part is ALSO why the proposed item of tying substantive rights to WHO OWNS is simply a bad idea.

  41. jbavis May 15, 2019 2:58 pm

    We do indeed see there are 2 classes of patent holders: those can defend their patents and those who cannot. The Founders never envisioned such a distinction.

    Change needs to happen but large corporations are quite content with the status quo – while inventors couldn’t imagine something worse.

    Both sides need to feel the pressure to come to the table and negotiate.

    After things like eBay, AIA, PTAB, Alice, 101, Oil States, etc – ANY HINT of an improvement is welcome AND JUSTIFIED. It is time to add SOME pressure and SOME uncertainty to large corporations IN WHATEVER WAY POSSIBLE. Have the large corporations squirm so that they feel the need to come to the table and renegotiate. Until then, they will be content with status quo.

  42. Anon May 15, 2019 3:54 pm

    jbavis,

    Yours is exactly the type of emotion-laden and thought-LESS commentary that mob mentality would be proud of – and that actual Rule of Law people will fight against you.

    Your path is NOT the path to take.

  43. jbavis May 15, 2019 5:55 pm

    Anon:
    Newsflash: mob mentality has already taken over the patent system. Undoing eBay, AIA, PTAB, Alice, 101, Oil States, etc will take DECADES and DECADES. In the meantime, ANY changes that pressure and incentivize large corporations to want to come back to a just patent system is justified.

  44. jbavis May 15, 2019 5:57 pm

    Anon:

    Furthermore, over the past 10+ years on this board, I cannot recall a single time you have made constructive, helpful comments. EVERY ONE of your comments have been to urge inventors to either restrain themselves or point out reasons not to take action. Are you Mark Lemley?

  45. Anon May 16, 2019 7:20 am

    jbavis,

    You need to pay better attention.

    I have often provided solid and helpful (cogent and thoughtful — not mindless and reason-less — advice, views, analysis and the like.

    Instead of clamoring for your mindless emotion-charged position and doubling down on mob rule, you might actually engage from time to time across the vast number of topics that I am involved with and be specific with your absurd accusation here.

  46. jbavis May 16, 2019 12:27 pm

    Anon – Unfortunately every time over the past ~decade that a light at the end of the tunnel materialized for inventors, it has been quickly neutralized and stripped away. Even with cooperation and willing parties, it will take decades to undo the damage. Inventors are already in a different class – so even up the playing field for us – if large corporations want to go around shooting themselves, then let them.

  47. Anon May 16, 2019 2:41 pm

    Sorry jbavis, for reasons that I have already outlined in detail, making the change so as to tie substantive patent rights to whom it is that owns the property is a bad idea.

    Not only does it NOT do what you think it does, it harms the overall general “class” of small inventors. The ONLY possible sliver of the class of small inventors to which some benefit may accrue are those small inventors that ALSO actually put their innovation into production themselves. The “target” is UNDER-inclusive and OVER-reaching in its ill-effects.

    I really do not mind that some will want this avenue for emotional reasons.
    I really DO mind that some will base their views only on emotion and leave critical thinking untouched.

  48. jbavis May 16, 2019 6:15 pm

    Anon – the class of inventors who manufacture their inventions benefit – that is an improvement over what we have today! While we pontificate over the next 2-3 decades on how to fix the situation fully and completely, let’s take this opportunity for inventors.

    One step at a time…

  49. mike May 16, 2019 6:39 pm

    @Anon:

    I’m curious.

    1. When you say “The ONLY possible sliver of the class of small inventors to which some benefit may accrue are those small inventors that ALSO actually put their innovation into production themselves.”, can you elaborate on why you believe this will be the only class who may receive some benefit? Why must an inventor listed on the patent put his invention into practice in order to receive benefit from an inventor-owned patent that would allow him/her to opt out of the PTAB and remain in district court when patent validity is challenged? I was not aware that a patent had any production requirement (it only grants the right to exclude others from producing), so I’m curious on your take on that.

    2. Would small inventors who have patents found to be read upon by infringing products benefit in that they can enforce their rights and receive contingency representation during the patent validity challenge stage?

  50. staff May 17, 2019 10:55 am

    “I don’t think I should help lead the sheep to slaughter.”

    Exactly. This patent system is worthless for many inventors. It is far too hard, expensive and slow for us to get, keep and enforce our patents. We simply have no realistic expectation we will be able to commercialize our inventions. The only way forward in our view is for Congress to pass our bill. Only then will inventors return to the patent system.

    For our position and the changes we advocate (the rest of the truth) to restore the patent system, or to join our effort, please visit us at https://aminventorsforjustice.wordpress.com/category/our-position/
    or, contact us at aifj@mail.com

  51. Anon May 17, 2019 12:49 pm

    mike @ 48,

    You miss the ill-effect that is visited upon inventors who do NOT commercialize their own innovation and instead sell the property that is the patent to those that would commercialize (for the moment, I am not addressing those that maintain ownership, but may “lease” rights to manufacture, as that is more nuanced).

    IF substantive rights are anchored to the “who owns,’ those that innovate and “cash out” by NOT owning are placed in a huge detriment.

    jbavis,

    Yet again, you think that you are taking a step forward, but that is a step backward. Please put your emotion to the side and pick up reason – then go back and read my posts on the topic from that place of reason.

  52. Anon May 17, 2019 12:53 pm

    staff,

    For the reasons (and discussions) that I have provided, I will fight your initiative as it is laid out.

    Take pause – and realize just how PRO-Patent I am (across my many views on topics across the patent blogosphere), which indicates that my willingness to fight your initiative is a position for me not lightly taken.

  53. mike May 17, 2019 1:14 pm

    @anon: And what is that “ill-effect that is visited upon inventors”? In what “huge detriment” are those who innovate and “cash out” placed? You say that I have missed it, but you have still yet to explain what exactly the ill-effect and the huge detriment are. Please explain so I can see your perspective. Thanks.

  54. jbavis May 17, 2019 6:01 pm

    Anon:

    1) winning a concession for inventors is NOT a step backward. While it doesn’t solve the problem for non-practicing entities – it DOES improve the situation for inventors who DO manufacture their invention. You have provided no reason how this does not improve the situation.

    2) this concession won will contribute to discomfort for large corporations – thereby increasing motivation for large corporations to want to fix the mess. We can argue how much it increases, but it is > 0%.

  55. Anon May 17, 2019 7:41 pm

    mike,

    I explained more than once now. Any such “value” immediately disappears when an original owner goes to sell his property. It’s like the immediate several thousand dollar depreciation hit the moment a new car owner pulls away from the dealership.

    Combine this with the under reach that such a suggested benefit will NOT reach the entire “class” being pitched to and what you have is misrepresentation based MORE on emotion than reason.

    I also explained how the camel’s nose of “who owns” may well lead to a type of “must practice” which is ALSO anathema to how patents were originally set up in this country.

    The bottom line is that (IF as suggested) change is going to be needed, I would change back to the proven power that we had AND not mess with any such “Who owns” false promises.

  56. Anon May 18, 2019 11:57 am

    jbavis,

    Your post crossed in transit, but you are simply wrong. Please pay attention. What you want IS a step “backwards” as it is a mis-step.

    Your “discomfort” argument is simply a misguided emotional ploy. Patent rights at their best is simply NOT ASSOCIATED with the present owner – be that owner ANYONE. Aiming for discomfort is sub-optimal. Aim better.

  57. mike May 22, 2019 2:54 am

    @anon:

    I truly want to understand your position here, so I would appreciate your response.

    >> “Any such ‘value’ immediately disappears when an original owner goes to sell his property. It’s like the immediate several thousand dollar depreciation hit the moment a new car owner pulls away from the dealership. Combine this with the under reach that such a suggested benefit will NOT reach the entire ‘class’ being pitched to and what you have is misrepresentation based MORE on emotion than reason.”

    I find the claim of this being based more on emotion to be without merit.

    On your dealership analogy, right now, the dealership lot is full of depreciated cars no reasonable person will buy. Dealers are going to stop selling cars in the U.S. if all cars sold here are worthless as soon as they are placed ON THE LOT. So what’s wrong with the proposal to add value to cars again so that a dealer can earn on his investment, and then continue to bring new cars to the market? If the car buyer gets hit with immediate depreciation if/when they ever want to resell the car, that’s just the market being the market.

    At least cars will have value on the lot so they will be sold to, used in, and benefit the market. Whether or not they can be sold again does not restrict that original innovation. (Remember, the Constitution specifically calls out “Inventors”.) But what DOES restrict the original innovation is a system where cars cannot be sold and driven off the lot in the first instance because they have no value as soon as they are placed on the lot. And that’s what we have today.

    You want a system with no depreciation of cars at all (I’m sure we all do), so you are refusing to support a system where at least cars are sold yet may have potential depreciation if the original buyer wants to sell. In your holdout, you must realize that we currently live in a system where no cars are being sold at all.

    That’s how I currently see the dealership analogy.

    Can you please explain how this is an “under reach” and how this “benefit will NOT reach the entire [class of original inventors] being pitched to”?

    You said “one STILL has rights, even if one cannot afford to apply them.” You also said “IF substantive rights are anchored to the ‘who owns,’ those that innovate and ‘cash out’ by NOT owning are placed in a huge detriment.”

    So, in light of these items under an inventor-owned system:
    – an inventor can sell his patent rights,
    – a buyer still has rights (even if the buyer cannot afford to apply them), and
    – given a buyer has enough money to buy patent rights, the buyer will most likely be in a financial position to be able to apply those rights,

    please elaborate on what you mean by the “detriment” in which you say the aforementioned inventors are placed.

    >> “Patent rights at their best is simply NOT ASSOCIATED with the present owner – be that owner ANYONE.”

    To which entity does the Constitution state Congress has to power to secure the exclusive right to their discoveries? The Constitution says nothing about those who buy from inventors; it speaks on the inventors alone. Besides, Congress gets to decide what best promotes the progress of science and useful arts, and I don’t see a mandate stating that a patent property right should be fully alienable. Don’t get me wrong, I do think a fully alienable right would be best, but my issue is that I don’t find Congress undoing the AIA. It remains unconstitutional on your takings argument, but the constitution only speaks on inventors having said rights.

    Also, you did not explain “how the camel’s nose of ‘who owns’ may well lead to a type of ‘must practice’.” You just merely said it might lead to it. Please explain how it will lead to it.

    Thanks!

  58. Anon May 22, 2019 8:07 am

    Your view of the dealership analogy is completely off. You are looking at both the wrong point in time of the depreciation and the wrong party who suffers the depreciation.

    This finds parallel to how you view patents.

    You want a certain Ends, and you (not I) are the one immersing in emotion and lack of objective reasoning to support the ends that you want.

    Let me put it this way: I favor strong protection for innovation. That strong protection should be there regardless of who just happens to own the innovation. We already have “direct innovator” protection (see Stanford v Roche) as innovation still MUST inure first to the REAL Person (and not a JURISTIC Person).

    If you want to say that the juristic person power balance of out of whack, I would fully agree with you. But that is a separate problem and meddling with the person-LESS ownership aspect of property is simply not the way to address that problem. Such is worse than a band-aid (for reasons already provided).

    As to “under-reach,” that should be self-evident (I have already explained this in this simplest and direct terms, so I am not sure how to explain it again).

    The second bullet in your “in light of” set no longer applies fully (depending on WHO the buyer is). This too should be self-evident here.

    Your paragraph after that gets the legal notion of property (and full alianability of that property) wrong.

    The making of the inchoate right into a full legal right is by way of Act of Congress. That property has always been meant to be fully alienable. You degrade that with an insistence on having substantive rights become dependent on a factor of “who owns.”

    I fully understand the “why” if the proposition. I also fully understand patent (and property) law, the historical context and underlying power of the US approach, and why the desired Ends here is denigrated in light of that dull understanding.

    You admit that you do not see a mandate for full alienabiltiy. That indeed is part of your problem.

    I do which I had time right now to scour the postings over the last year or two over at PatentDocs to provide that historical reference, but my bandwidth is somewhat limited. That (historical) award winning treatise would provide that which you admit to not being able to see.

    As to the AIA and my Takings position, this is something that the Court should have corrected in the Oil States case. If you recall the conversations up to that case, I actively implored readers across the blogosphere to recognize that issue and make that argument. Sadly, the parties did NOT make that argument. You might note that even as ham-fisted as the Court’s take-away was, they too indicated that HAD my provided argument been made, that the holding of the case may have been different.

    Your phrasing “constitution only speaks on inventors having said rights.” simply ignores the legal meaning of property. Your reading rewrites the meaning of property and would entail that ONLY the inventor may enjoy the fruits of innovation protection. And that is a key driver as to why the illicit Means to a desired Ends being proposed will not enjoy my support.

    I suggest that you understand the nature of turning an inchoate right into a full legal right necessarily invokes the then-well-understood alienability of property and why such was not needed to have been so spelled out that you would see it directly. Once you see and grasp that aspect, then I think that you will appreciate my already extant explanations.

  59. Curt June 20, 2019 4:06 pm

    Anon, you are living in the libertarian Utopia world. Ughhhh.

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