Rethinking the Patent System: Five Ways to Make U.S. Patents a Real Investment Vehicle

By Shawn Ambwani
February 19, 2020

“Perhaps a ground-up rethink of the U.S. patent system should be considered or maybe it is possible to fix many of these issues with a few tweaks. I am not sure, but it is important that it doesn’t just include the few who have made so much money off of an otherwise-backwater form of investment.”

Patent System op-ed - https://depositphotos.com/6496641/stock-photo-looking-at-the-opinion-section.htmlThe patent industry is in the doldrums. While the U.S. economy continues to endure historic, sustained growth, the stock market has skyrocketed, and new services, products, and investments launch every year, patents as an asset class have remained relatively flat for years. In the last decade, at best, patents as assets have shown anemic growth and stagnant value creation. While capital for litigation funding is available and overall U.S. patent grants and holdings continue to rise, patent valuations have not. Some blame the America Invents Act (AIA) and court decisions over the past decade as the reason why the market has not thrived.

I disagree. Any effects felt from changes in the law are symptoms of much more systematic problems that must be solved first for patents to fulfill their full potential as valuable investment vehicles. These problems—identified below— won’t be solved by rolling back regulations or reversing opinions and artificially increasing the value of unworthy assets. That will simply make it easier to enforce patents, and there is no evidence that this has ever been causation for innovation or competitiveness. Instead, it would largely benefit a small group of mostly white, older men who focus on monetizing patents. It is not surprising that these are the same ones who angrily denounce the system as unfair and seek to return things to the “good old days.” Sadly, those “good old days” were only good for a very few to the exclusion of almost everyone else and has led to the problems which I will detail below.

The real property market in the United States is measured at over $40 trillion; compare that to the value of the patent monetization market—roughly $400 billion—that is, roughly 100 times less valuable. In our information economy, we would expect individual patent value to be growing exponentially, but it’s barely budged. Why? To put it plainly, there are at least five major reasons why investment into IP has stagnated. For now, I will call them the Ambwani 5 (A5). Until we recognize and fix some major structural issues in the system, pricing will likely continue to average roughly $280,000 per sold patent, the secondary market will remain anemic and driven by a small cohort. If we can largely address these A5, I believe patents as a market and an investment will explode with growth commensurate with the current state and importance of technology and innovation in our economy. If we don’t address them, though, the industry will continue as a niche practiced by a few wizards of the dark arts.

The Ambwani 5

A1: Data  

The U.S. Patent and Trademark Office (USPTO), European Patent Office (EPO), and others have done an admirable job of making it a lot easier to obtain patent data, but more should be done. Databases are still very hard to understand and use, much is proprietary, and even basic information is hard to obtain without paying substantial subscription fees. Most of the customers of these databases are law firms and companies who have their own goals, and don’t usually benefit from providing objective patent quality measurements or case success rates. For investment to flow into patents, we need better measurements and a way to make them easier to view. For instance, requiring better public transfer, assignment, disclosure and ownership data within a timely period could quiet title, reduce transaction costs, and ensure assets are transferred, making markets much more efficient.

A2: Demystification.  

Patents are exceptionally challenging to read and understand for sometimes even the most sophisticated lawyers (though many would not admit to it). Until we recognize and find a way to make patents simpler to comprehend for 99.9% of the population, their value will never be fully understood, much less embraced. Investors have a tough time measuring or understanding the value predictably, and the complexity and vagaries of patent drafting prevent investment and increase transaction costs.. To compare, there is no way to easily get a snapshot of a patent like you can a piece of real property, or even an entire company. Until we can get plain-English versions of patents everyone can understand, reading them will be for most like reading another language, with the resultant uncertainty and concern around investment. Put simply, people don’t like to invest in stuff they can’t read, let alone understand.

A3: Diversity  

Any system catering to a small group of people that cannot be easily understood by outsiders will never achieve large adoption. Given history, education, and demographics, the vast majority of patent professionals are white males. While that is changing at a glacial pace, the industry continues to be dominated by a lack of diverse viewpoints. I am not talking about encouraging STEM or other programs to diversify, though that has benefits and should be encouraged. Sadly, that is probably too late to significantly increase the available pool of talent by the time such programs are implemented. What I mean is demonstrating how patents themselves can help communities outside of traditional patent practitioners and their clients—and making it easier for these communities to read, love, and benefit from using patents. If we could change the perception and practice of patents so that more diverse voices are heard, then more Americans will invest time and money into the asset class, and, similar to what has happened in real property and financial investments, there will be exponential industry growth. Otherwise, patents may continue to be the legal equivalent of country music—a niche genre with a rare breakout.

A4: Quality  

Investing in obtaining and maintaining a patent in many industries at the moment is like investing in a mine or an oil well. It should be no surprise that the vast majority of institutional investors are wary of including patents as part of their investment portfolio—they are simply too difficult to reliably predict their value.  This is because the quality (though certainly not the quantity) of the output is low, so the chances of successfully enforcing a patent is low. This is part of a system to keep the barrier to filing costs low for public policy reasons. But the effect is that a very small percentage of patents granted have any real value.  We know, for instance, that if someone invests resources in getting a high-quality, well-prosecuted patent, it can be the source of significant investment. Consider Orange Book pharma patents, which are usually the result of significant investments in filing and prosecution, and their much lower institution rate at the Patent Trial and Appeal Board (PTAB) compared to other patents. We know we can have good quality—the question remains do we want to pay for it. There is an obvious trade-off, but  even if requiring a much higher quality would result in a drop in patent filings or grants, it would be offset quickly by much more investment in the filings and grants that did emerge, because the patent owners would be much better able to receive a return.

A5: Abuse

There continues to be much abuse in the system. There are simply too many litigations that are not based on quality, but settle simply because the cost of litigation is so high. This does not encourage institutional investment; it suggests patents are only as valuable as the cost of litigation. We must strive to make it harder for such litigation to occur, as it delegitimizes everyone else’s rights, provides bad incentives, and even skews patent policy discussions. If we do not, the “patent troll” sticker will continue to deter investors and others from participating.

Toward a More Systemic Approach

In sum, I’ve identified five major systemic issues that I see as preventing patents from becoming a robust asset class. You will note I am not providing specific solutions today, as many are interrelated, and all are rather complex. Perhaps a ground-up rethink of the system should be considered or maybe it is possible to fix many of these issues with a few tweaks. I am not sure, but it is important that it doesn’t just include the few who have made so much money off of an otherwise-backwater form of investment. What I do know is that investment in patents is important for the future of our information economy, but the industry itself—insular, opaque, and Delphic—is to blame for its current malaise. Addressing these issues will broaden the benefits of and investment in the system for everyone, and in the end, would result in intellectual property becoming as valuable, as traded, and as commoditized an asset as real property.

 

Image Source: Deposit Photos
Image ID: 6496641
Copyright: stuartmiles 

The Author

Shawn Ambwani

Shawn Ambwani is COO / SVP Legal / Co-Founder at Unified Patents.

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 122 Comments comments. Join the discussion.

  1. Paul Morinville February 19, 2020 6:54 pm

    “Instead, it would largely benefit a small group of mostly white, older men who focus on monetizing patents.”

    Did you really write that? Is there something wrong with old white men? Are you attributing some sort of prejudice, dare I say racism, to old white men?

  2. Anon February 19, 2020 7:59 pm

    patents as an asset class have remained relatively flat for years.

    I lost interest right there, as even though patents have been under an unprecedented assault from BOTH the Left and the Right**, the growth in granted patents has been nothing short of skyrocketing.

    **by ‘Right,’ I do not intend to mean the political Right per se.

  3. Jeff Hardin February 19, 2020 8:24 pm

    A3: Diversity “If we could change the perception and practice of patents so that more diverse voices are heard, then more Americans will invest time and money into the asset class, and, similar to what has happened in real property and financial investments, there will be exponential industry growth.”

    False.

    Underrepresented inventors already testified on this. “What good is a patent if you cannot defend it?” A patent today is no longer an asset, but a liability. See https://www.usinventor.org/wp-content/uploads/2020/01/Inventor-Letter-to-Rep-Velazquez-re-SUCCESS-Act.pdf

    What underrepresented or financially-challenged inventor is foolish enough to share their invention with the world, get nothing reliable from the government in return, and PAY for the privilege?

    If you want increased diversity, fix the back-end,

    – as explained here: https://web.archive.org/web/20191226151858/https://www.uspto.gov/sites/default/files/documents/SUCCESSAct-Hardin-Duran.pdf

    – and all throughout the comments from inventors here:
    https://web.archive.org/web/20191226151858/uspto.gov/successact

  4. angry dude February 19, 2020 9:06 pm

    I call BS on you, dude

    Your “essay” reeks of stolen money your filthy outfit collected from your big tech corporate masters made on the backs of 1000’s of American inventors and smaller patent holders…

    Special Prosecutor is needed at this point to investigate corruption in wash dc
    The name of your outfit and your own name might come up in some of those proceedings as a willing and knowing facilitator of fraudulent and often criminal activities by your corporate masters and their recipients in wash dc

  5. angry dude February 19, 2020 9:36 pm

    Anon @1

    Dude,

    Why do you keep posting meaningless twisted crap nobody can read, much less understand ?

  6. concerned February 20, 2020 6:00 am

    “The patent industry is in the doldrums. While the U.S. economy continues to endure historic, sustained growth, the stock market has skyrocketed”…..

    …..after 4 quantitative easings by the Federal Reserve. Every time the stock market goes down, the Federal Reserve also runs in with a rate cut. The Federal Reserve cut interest 3 times in 2019 while the stock market was hitting record after record. Ask yourself why is the Federal Reserve so nervous after building this economy on a house of (credit) cards?

    Accordingly, I had trouble accepting the initial statement of this article that compares a flat patent environment to a “so-called” booming economy. Take away the Federal Reserve kool-aid and adjust interest rates to their historical norms, then see what happens.

    In addition, the patent assaults to suppress patent rights in the United States remind me of the sub-prime mortgage scam where “tricks” were leading to “treats” for the connected few. Neither of these situations can be sustained and the sub-prime scam already collapsed.

    Night Writer seems to be at ground zero of the patent carnage. Night Writer reported on another thread that their firm is already seeing patent related business fleeing the United States. It is only a matter of (how much?) time before it is clear that people will stop inventing when there are huge financial and time outlays only to see their inventions stolen with a kick in the mouth.

  7. Anon February 20, 2020 7:57 am

    Just not buying it:

    What I do know is that investment in patents is important for the future of our information economy, but the industry itself—insular, opaque, and Delphic—is to blame for its current malaise.

    It is NOT ‘the industry itself’ that has created the Delphic effect.

    As for ‘insular,’ I think that you confuse ‘legal nature’ with what you think that you want patents to be, but the bottom line is (and will remain) that patents are legal documents.

    As to opaque, I contemplated where you might be going with that, and then circled back to the beginning of your article and your calls for ‘clarity of data,’ particularly data on ownership and transfer, assignment, and the like. This is nothing but the old saw of the Efficient Infringers wanting to know WHO owns what (so that they can more easily pick and choose which items to infringe with impunity). ANY notion of a noble end such as “quiet title” is a false ‘shiny’ object that distracts from the actual aim, as there has never been any evidence of a problem to which your solution is being offered for.

    Let me also offer that your aspects of Abuse entirely miss perhaps the greatest abuse that we currently see: Efficient Infringement. You hint at the debunked “Tr011” problem and want to make it more difficult to ENFORCE a patent rights, when the answer to the most endemic abuse lies in the opposite direction of having a stronger patent right that is EASIER to enforce.

    As to your “virtue signaling” and rather impotent PC notion of diversity, I have to view your inclusion of what you view of “patent practitioners” as some type of driver to innovation and innovation protection as worse than any band aid on any real wound, and question just why this type of PC item makes your list. The “ISMs” here are of your focus, and it is entirely unclear what connection you think may actually exist between those ISMs and a broader and more healthy innovation protection system. It’s as if you BLAME ‘white’ and ‘male’ as a cause of problems, but purely on the basis of “white” and “male.” This is PC of the worst kind.

  8. Anon February 20, 2020 8:13 am

    angry dude @3,

    You really should get over yourself. Just because you cannot seem to get out of your own way most of the time and use reason, does not mean that everyone else cannot use reason either. What I write is neither ‘twisted,’ ‘meaningless,’ ‘crap,’ NOR items unreadable and preventing understanding.

    IF you apply even some minimal reasoning, you would come to understand that my posts are to the very opposite effect of what you whine about.

    Are they different than your drumbeat of anger and ‘just quit’…?

    Absolutely. And that’s a good thing.

  9. angry dude February 20, 2020 9:52 am

    I knew this dude is a total scumbag when he broughr race and gender into patent debate
    Perhaps Tesia Thomas might want to say something here…
    As for his outfit’s “business model”…
    Someone please bring RICO charges against his company and top level execs !
    Enough is enough

  10. Ternary February 20, 2020 10:12 am

    “That will simply make it easier to enforce patents, and there is no evidence that this has ever been causation for innovation or competitiveness.”

    Patents are not the source of innovation. Inventors are. The IP of inventors needs to be protected and easily enforced, to stimulate inventors to do inventions. If you doubt any causal relationship there, then discussing value of patents becomes moot.

    When you say “simply make it easier to enforce patents” it implies that to be negative.

    I don’t think that other investment vehicles and properties, such as debt, stock, land-ownership, government bonds or even bank-accounts would be very popular if they had the same “level of enforcement power” as patents have nowadays.

    The article itself identifies lack of enforcement as a problem. “…chances of successfully enforcing a patent is low.” So, which one is it?

  11. TFCFM February 20, 2020 10:30 am

    SA: “In sum, I’ve identified five major systemic issues that I see as preventing patents from becoming a robust asset class.

    I can count AT LEAST five “major systemic issues” that prevent pigs from becoming a class of flying animals (never mind whence they might fly).

    Less metaphorically, I believe Mr. Ambwani hopes to transform patents into an “asset class” that they were never designed to be and which they will, for the foreseeable future, stubbornly continue to fail to resemble: free-wheeling, easily “monetizable” vehicles to fuel speculation of both the rational and irrational variety. Patents, by their very intentional design, serve a far different purpose.

    The purpose of patents (as both asserted in our Constitution and designed into our patent statutes and decisions) is to promote progress in science and the useful arts — NOT to line the pockets of speculating weasels.

    Patents are well suited for protecting folks who are *actually developing* an industry from competitors who would compete merely by stealing an innovator’s invention(s). As several recent lines of case law and statutory law have made clear, patents are not intended to be, and are not, used by the devious merely to “set traps in the paths” of other innovators who *actually apply* the innovations.

    Much of the name-calling about “trolls” (and the moaning and groaning among those justly so-called) stems from the carefully-designed unsuitability of patents as mere land mines on the paths of progress in science and the useful arts.

    Heaven help us if patents ever begin to resemble the easily-trafficked financial “Saturday Night Specials” wield-able by folks more interested in stick-ups than in advancing progress that Mr. Ambwani and other quick-buck-artists would like them to become.

  12. Benny February 20, 2020 11:41 am

    Anon,
    I don’t fully agree with the angry dude, but you do have a problem with your style of writing comments. You aren’t composing legal documents here. A more conversational style would be appropriate for what should be a forum for discussion among colleagues.

  13. Eric February 20, 2020 11:42 am

    I agree it is “simply too difficult to reliably predict” the value of a patent. Perhaps the underlying problem here is the difficulty of predicting the value of inventions beforehand. If the value of inventions are uncertain, investors will hesitate to spend big money for preparing and prosecuting gold plated patents that “everyone can understand.”

  14. Anon February 20, 2020 12:13 pm

    Benny,

    You are free to feel any way that you want to feel.

    My writing style is perfectly fine though, as my points carry, and are substantiated by each of fact, law and history.

    If you want a “more conversational style,” may I suggest a coffee club or other venue? If you want to hash out legal items on a legal blog with those knowledgeable of legal matters, then I suggest that you do NOT aim for a “more conversational style.” This is NOT the forum that you think it to be. If the brusqueness of directness (or the plain facts and law) bother you, I suggest that you “up your game” and develop a better legal position instead.

    Benny, there is a reason why YOUR views are so easily identified with the views of Efficient Infringers (and likewise, so easily dispatched). Being “more conversational” won’t change that, nor make your views any more palatable to those that know and understand innovation, the history of innovation, and the laws protecting and promoting innovation. I kindly reject your “more conversational” because ALL that such amounts to is a plea to go easier on your errant views.

    No thank you.

  15. Josh Malone February 20, 2020 12:54 pm

    Shawn, is there more data on the $280,000 average price figure? I am curious about the distribution as well as the pedigree of the sample population. Are patents that survive IPR averaging $280,000? Are patents produced by R&D programs averaging $280,000? Are patents that have never been litigated averaging $280,000? Is there any way to see whether there is a correlation to the value of the invention?

    It does seem very similar in many ways to the sub-prime mortgage bubble. Very far removed from the value of the ostensible “exclusive right”.

  16. Bozo the bozo February 20, 2020 1:26 pm

    If the problem is too many white people (ha!), Mr. Ambwani can help by getting out of the field. Lead by example, please.

  17. jacek February 20, 2020 2:30 pm

    We are talking nonsense here leading to nowhere. The article above must be designed only to create confusion and direct attention from real issues we are facing today. In mean time: “Help kill bad patents and win!” Unified Patents advertise $ 7,000 Prize Video Encryption & Decryption. They are getting ready to rock next company stock price to the benefit of WestView Capital Partners.

  18. xtian February 20, 2020 2:30 pm

    A follow-on to Josh’s question. Are pharma patents considered in this price figure? Amgen acquired Otezla® For $13.4 Billion in cash. I checked in the orange Book for Otezla® patents and I thought I saw 11 patents listed. So each patent there is worth over a billion?

  19. mike February 20, 2020 3:44 pm

    “there is no evidence that [one’s ability to enforce patents] has ever been causation for innovation or competitiveness”

    Two points:
    1. Absence of evidence is not evidence of absence. In other words, IF there is no evidence, that does not mean there is no correlation. All it means is that there is no evidence.

    2. Evidence of this sort is not needed. It is obvious — if one cannot protect their intellectual property, there is no guarantee of a reward for the inventive work. The bigger fish will then steal, and thus there is no incentive to continue innovation, and there is no competition.

    “Instead, it would largely benefit a small group of mostly white, older men who focus on monetizing patents.”
    White, older men? Really? That statement has racism written all over it.

  20. shawn ambwani February 20, 2020 3:48 pm

    josh, it is funny that everyone is complaining about what I wrote as if I am trying to decrease the value of patents. In fact, the entire goal is to make them more valuable and attract more investment. anyone who thinks investment in secondary market is and has always been a small almost illiquid market is deluding themselves. the reason why it is small and illiquid is why I wrote this whole article. Now to address your specific questions. I only get those numbers from ROL, which puts out their quarterly data publicly. That is average for the sale prices they see on the open market (which i think is the best barometer). But a lot of the market is admittedly opaque and hard to quantify, especially since many include non-patent consideration. I can only guess surviving an IPR would usually make them higher than average and ones which have not been litigated or tested would be lower. Also the turnover is so low compared to real estate it creates a very large variance. Part of the problem is in the reporting is so bad and incomplete. Ping me directly if you want to discuss about it more.

  21. shawn ambwani February 20, 2020 3:56 pm

    Hey Angry Dude. Not to belabor the point. But you are white. and you are male. And you are angry. And you do hide behind your handle. Some might consider you a gutless coward. I don’t. I think you are just weak and probably socially inept who probably could benefit from counseling. But on the plus side you are very entertaining. I laugh at every one of your comments. 🙂

  22. Curious February 20, 2020 7:10 pm

    The purpose of patents (as both asserted in our Constitution and designed into our patent statutes and decisions) is to promote progress in science and the useful arts — NOT to line the pockets of speculating weasels.
    The issue is far more nuanced than that. Patents are an asset, and like all assets, their value is a good proxy for their usefulness. If patents have no value, it is because they are not useful. That being said, real assets (e.g., real estate, interests developing business) are used to line the pockets of speculators all of the time. The fact that speculators can make money off of patents should not be considered a detriment. If speculators take advantage of information asymmetry between the buyer and seller to make money off of patents, then they should be able to do so just like with any other asset class.

    For example, if you know that a particular parcel of land is going to be critical for a major (yet unannounced project), you can buy that land for much cheaper than its actual value had this information been known.

    Patents are well suited for protecting folks who are *actually developing* an industry from competitors who would compete merely by stealing an innovator’s invention(s).
    Your comment implies that patent holders should be also those within the industry. However, good ideas can come from outside the industry, and those ideas (and the people who come up with them) should not be denied patent protection.

    As several recent lines of case law and statutory law have made clear, patents are not intended to be, and are not, used by the devious merely to “set traps in the paths” of other innovators who *actually apply* the innovations.
    That statement appears to be pulled out of your nether regions, as I’m aware of not case law and certainly no statutory law that makes that requirement.

    Much of the name-calling about “trolls” (and the moaning and groaning among those justly so-called) stems from the carefully-designed unsuitability of patents as mere land mines on the paths of progress in science and the useful arts.
    This wouldn’t be so much of a problem if the so-called “innovators who *actually apply* the innovations” did not traipse around minefields with their eyes closed while relying upon the courts to bail them out of trouble. The Googles and Facebooks of the world just do their thing and don’t give a &^%^ about whether they are trampling on other people’s patent rights. Their founders wouldn’t be multi-, multi-billionaires if they actually had to pay for the patented technology that they used.

    As for the article itself, I found myself disgusted with the propaganda being foisted upon us. Then I found out that the writer was affiliated with Unified Patents, which is basically the enforcement wing of the efficient infringer coalition, and that explained everything.

    As is plainly evident, the goal of the article was to present some fairy tale that the current legal landscape has nothing to do with the devaluation of patents. The author thing identifies problems that need to be addressed first without setting forth any potential solutions to these problems. Why not propose solutions … because he (and the people he works for, i.e., the efficient infringers) are perfectly happen in a landscape in which patents have little value for disruptive individuals and small companies.

    Perhaps I should address the Ambwani 5 in another post as this one is long enough as it is.

  23. Pro Say February 20, 2020 7:40 pm

    . . . and just what would any of us expect from . . . a co-founder of a company like Unified Patents?

    “Unified Infringers” would be more apropos.

    “[patents are a] Backwater form of investment?”

    Sheesh.

  24. Curious February 20, 2020 7:53 pm

    The Ambawani 5:

    A1: Data
    What is the data you are looking for? The issued patents are available for anyone to see.
    For instance, requiring better public transfer, assignment, disclosure and ownership data within a timely period could quiet title, reduce transaction costs, and ensure assets are transferred, making markets much more efficient.
    This is hardly a serious issue. It isn’t like patents are getting swapped between parties all of the time.

    A2: Demystification.
    Until we recognize and find a way to make patents simpler to comprehend for 99.9% of the population, their value will never be fully understood, much less embraced.
    This one is a laugher on its face. Anybody read the 146 page document that is Microsoft’s 10K that was filed on August 1, 2019. I’m sure a handful have, but I very much doubt 99.9% of the population understands what is in it. However, that doesn’t hamper MSFT from being a heavily traded stock (something like 36.8M shares or about $6.7B worth of market valuation traded today alone). Investors have long relied upon experts to de-mystify investments.

    Until we can get plain-English versions of patents everyone can understand, reading them will be for most like reading another language
    I’m sorry, these are legal documents with very specific legal requirements. While we would all like to see shorter legal documents, that is not the world we live in.

    Put simply, people don’t like to invest in stuff they can’t read, let alone understand.
    Yet people do it ALL THE TIME in the stock market.

    A3: Diversity
    This is just a load of bull-$&^%. Technology and innovation is race, gender, and color-blind. Patents were issued to both women and minorities in the US in the early 1800s.

    A4: Quality
    This is the one that the anti-patent people just love to pull out. If these patents were just of higher quality, we would be all for them. The problem with this seemingly great idea (what could be wrong with requiring higher quality patents?) is that a requirement for higher quality leads to less accessibility. Getting back to diversity, do you think that woman and minorities or other economically-disadvantaged people would have had access to the patent system if they were forced to write the same kind of patent that a pharma company would put together for a blockbluster drug? Getting a patent is expensive as it is and is outside the reach of many people who would otherwise take advantage of a system. Imposing requirements that the patents be the 100-200 page monstrosities that you might see with these pharma patents would make the patent system only accessible to the very, very rich. This, however, is exactly what Mr. Ambwani’s clients want. They don’t want individuals and small companies with disruptive technologies to get patents. Rather, they want to ability to coopt those technologies for their own — why innovate when you can engage in efficient infringement. Let the small guys do all the hard work, and then swoop in and take advantage of your greater size, marketing budgets, supply chains, pre-existing distribution chains and customers (among others).

    For the efficient infringers of the world, their bemoaning “quality” is just code for we want patents to be so expensive to obtain so only us big guys can get them.

    There are simply too many litigations that are not based on quality, but settle simply because the cost of litigation is so high.
    Who settles these days? Certainly not your clients. They’ll first take the patents to the killing fields of the PTAB. In conjunction, they’ll argue that everything is directed to an abstract idea and shouldn’t be patentable in the first place. If that doesn’t work, they can fight like Apple has with Virnetx. How long has that patent battle been going on? Something like 9 years. How many small inventors/small companies can afford to litigate for that long?

    In today’s environment, an asserted patent is not an asset — it is a liability. You win at the PTAB, what do you get? You get another IPR and get pulled back in. They keep doing it until they can win because all they need to do is win just once.

    Gene addressed Mr. Ambwani and his company, Unified Patents, in this post a couple of years ago:
    https://www.ipwatchdog.com/2017/08/27/duplicitous-nature-unified-patents-patent-owners/id=87354/

  25. shawn ambwani February 20, 2020 8:22 pm

    Hey Curious. White? Male? Older? Angry? Scared of outing yourself because you are afraid what your customers might think? No worries. You are definitely not alone.
    I have no problem with patents as an asset class and would like to see more (not less) investment in them. I am also have no problem with valid patents being used by ANYONE to make money. Also, I didn’t say that many patents have a lower value than what they would if some of the laws and decisions were different so don’t put words into my mouth. Of course if there was no Alice some patents would be worth much more than now. But my WHOLE point was that the market is small and a niche. Until you solve the issues I pointed out it will always be that way. Instead of attacking the messenger, attack the message. So far I haven’t heard anyone saying they think the data, diversity, complexity, and quality are great. My guess is because they can’t and it is harder to look in the mirror than blame others for all their problems.

  26. angry dude February 21, 2020 12:12 am

    I just can’t believe that top executive of a multi-million dollar US company can post “White? Male? Older?” comments…
    Maybe it’s a troll ???
    Are they all like this in SF Bay Area ?
    If yes then Calexit now (SVexit to be precise) !
    Good riddance

  27. Shawn Ambwani February 21, 2020 4:18 am

    “Are they all like this in SF Bay Area ?
    If yes then Calexit now (SVexit to be precise) !
    Good riddance”

    “2020 clownworld: a skin-bleached Pajeet lecturing Americans on the evils of whiteness.”

    Hey Curious, Anon, and angry dude. Wow. Love it. Show your true colors. Bring it on. Put those hoods on. BTW, I never said white was evil. I just said that almost everyone in the industry are white older males. That is just a fact. And the industry will not grow if it stays that way.

  28. Curious February 21, 2020 8:07 am

    Instead of attacking the messenger, attack the message.
    I did attack the message … I guess you were reading too closely.

    But my WHOLE point was that the market is small and a niche.
    The market is small because the patents have little value. They have little value because between the Courts and the PTAB, there are few valid patents once they go through the wringer. Moreover, and a point I’ve made before, is that the market always discounts the value of assets for risk. In this instance, whether or not a particular patent is invalidated is always panel dependent (at the Federal Circuit) and the Supreme Court’s eschewing of bright line rules means that there is little certainty as to how any court will rule on a particular patent. What might be valid in one forum might not be valid in a different forum.

    You wrote that “requiring better public transfer, assignment, disclosure and ownership data within a timely period could quiet title.” Um no. There is no quiet title in patents because of the many paths for invalidating patents for which there is no end. You want to quiet title, then as a good first step get up on your little soap box and tell courts that 35 USC 282(a) is still the law of the land — that patents are presumed valid. Tell courts to actually READ THE STATUTE and realize that 35 USC 101 was never intended to be a condition for patentability and therefore a defense under 35 USC 282(b).

    So far I haven’t heard anyone saying they think the data, diversity, complexity, and quality are great.
    How about you address my criticisms of the same?

    Show your true colors. Bring it on.
    Some of us have been on this blog for well over a decade. Our true colors with regard to our support for a strong patent system have never been in doubt. It is you, on the other hand, who is pretending to be someone who wants a better patent system. You are just one of many gadflies that have decided to inhabit our little patent ecosystem from time to time. Like all of those in the past, you’ll flit around for awhile before you depart.

    White? Male? Older? Angry?
    Frankly, I’m embarrassed for you that you actually wrote that. However, it does give me incredible insight as to the kind of person you are.

  29. Anon February 21, 2020 8:14 am

    Lower case anon @27 with his/her pejorative should not be confused with my calling out of the ‘virtue-signaling PC’ (and MIS-use of facts for some PC effect).

  30. Anon February 21, 2020 8:24 am

    Shawn,

    YOU are not looking into the mirror of what Curious actually has stated, but instead you jumped to your own “virtue-signaling” Race card.

    Curious, your posts are excellent even if they are too kind (to both Shawn and to the curmudgeon known as TFCFM, who continues to peddle misperceptions about patents being of value ONLY when associated with some ‘positive’ doing. TFCFM continues to misrepresent while continuing to ignore the fact that his views have been shown to be false.

  31. TFCFM February 21, 2020 10:11 am

    TFCFM@#11: “Patents are well suited for protecting folks who are *actually developing* an industry from competitors who would compete merely by stealing an innovator’s invention(s).

    Curious@#22: “Your comment implies that patent holders should be also those within the industry. However, good ideas can come from outside the industry, and those ideas (and the people who come up with them) should not be denied patent protection.

    I don’t think I “imply” any such thing, and I certainly nowhere suggest that ‘non-industry’ innovators should “be denied patent protection.” I merely observe that our patent laws (ENTIRELY by design) have been made to promote the progress of industry and science, and not to promote bandits who would hide beside the roads to such progress, hoping to steal some cash from they who travel along such roads.

  32. angry dude February 21, 2020 10:17 am

    Is there a possibility that someone can bring RICO charges against Unified Patents ?

    Cause their “business model” is racketeering – organized crime of extortion or coercion, no less
    Much like what Al Capone did… but they kill patents instead of people … and make smaller patent holders go bankrupt

    It emerged right after AIA on bequest of the biggest SV corporate infingers and will not go away by itself unless something is done

    Are those dudes in congress doing lip service to inventors and US patent system aware of this situation they created themselves ?

  33. xtian February 21, 2020 10:41 am

    @shawn @27 – Comments w/r/t diversity.

    Your first statement in this paragraph appears to be that practitioners in the IP industry, i.e., the patent attorneys themselves, are dominated by white-Anglos. But, then you appear to talk about inventors not being ethnically diverse, access to STEM etc. I can’t tell what your point is. Is your point that if patent attorneys were more racially diverse, then inventors would be more racially diverse? Are you intimating that white Anglo patent attorneys don’t have clients that are in the racial minority category? So if there were more racially divers patent attorneys, there would be more racially diverse inventors? Does this include gender? You don’t mention it. I would appreciate clarification.

    My experience is that I actually have more females and non-Anglos as inventors in my industry. What industry do you work in? May be you should expand your horizons?

    Alas, I can see no reason to bring up “diversity” with respect to patents. For example, if racial and gender qualities are imparted into patents through their inventors or IP practitioners, then are patents with racially diverse inventors or attorneys of record better/stronger/more valuable than patents with Anglo inventors? Also, would I have a discrimination or gender bias defense to infringement or invalidity if someone challenged my patent because the inventors are racially and/or gender diverse?

  34. Curious February 21, 2020 10:50 am

    even if they are too kind
    I try to take the high ground (while depriving myself of certain pleasures to be had in taking the low ground) from time to time, and I do want to engage them. However, what I have found is that once they are forced to dig deeper than their talking points they have considerable problems supporting their positions.

    Part of my attempt to engage them is to determine whether they are just intellectually dishonest or whether they actually believe the claptrap they try to peddle. As for Mr. Ambwani, he is engaged in the business of helping patent infringers so he has his mind mind up already regardless of the evidence.

    I can imagine a conversation between him and one of his new clients goes something like this:

    Ambwani: What can I help you with?
    New Client: We’ve been accused of infringing this patent.
    Ambwani: I think we can assist you with this problem.
    New Client: We are infringing, but we don’t want to pay a licensing fee and we really need this technology.
    Ambwani: Don’t worry about it, we’ll have our experts “find” prior art and with the Courts and Patent Office on our side, we’ll have that patent invalidated in no time.
    New Client: What if the patent is valid?
    Ambwani: There is no valid patent in my business.
    New Client: That’s what I like to hear.

  35. mike February 21, 2020 11:12 am

    Shawn says: “Instead of attacking the messenger, attack the message.”

    But then he says:
    “Hey Angry Dude. … you are white. and you are male. … you do hide behind your handle. … I think you are just weak …

    “Hey Curious. Scared of outing yourself because you are afraid what your customers might think?

    “Hey Curious, Anon, and angry dude. Wow. Love it. Show your true colors. Bring it on.”

    Hey Shawn, contradict much?

    And then, in a mark of complete racism, Shawn says “[T]he industry will not grow if it stays that way [where almost everyone in the industry is a white older male].”

    I do find it interesting that anyone can challenge a patent at the PTAB. And Unified Patents does exactly that.

    Get rid of the PTAB and give inventors their day in court with a real jury, and everyone here will gladly take off their mask.

    Good one Shawn.
    Fail.

  36. Benny February 21, 2020 11:38 am

    Curious,
    Why did you use inverted commas around the word “find” in the phrase “find prior art”? If Mr Ambwani does find valid, novelty destroying prior art, he is helping clear up the mess the patent office has dunked his client in. Unless, of course, you think that patent law regarding 102 should be changed.

  37. angry dude February 21, 2020 12:45 pm

    xtian @33

    “What industry do you work in?’

    He works in racketeering industry

    And “diversity” crap he brings up is his last resort to hide behind

    Perhaps young African-American female inventor Tesia Thomas has something to say about him and his racketeering outfit

  38. Curious February 21, 2020 1:17 pm

    I merely observe that our patent laws (ENTIRELY by design) have been made to promote the progress of industry and science, and not to promote bandits who would hide beside the roads to such progress, hoping to steal some cash from they who travel along such roads.
    Patent rights are alienable property. Do you know what that means? It means that it can be bought and sold. If somebody wants to buy someone’s patents and use them to set up roadblocks, then that is the nature of patent rights, which includes the right to exclude others. If you got a problem with that right, then amend the Constitution.

    What you fail to appreciate is that because inventors have little hope of enforcing their rights in this environment, they are forced to sell their rights to other people — people who view the inventions, not as an inventor’s labor of love, but as mere commodities that need to be monetized. If you don’t like third party patent aggregators, then come up with a better way for the original owners to make money off of their patents. However, we know better. You aren’t here to make things better for inventors. You just want to make things better for infringers — hey, at least admit it. You would at least get some credit for being honest.

    It is a zero sum game here. What is good for inventors is bad for infringers, and what is good for infringers is bad for inventors. Over the past decade or so, almost everything coming out of the Courts and Congress has been good for infringers. This is why tech companies like Google and Facebook can make gobs of money while paying comparatively little in licensing fees. This is why patents have little value except to large companies who can asserting not 1 or 2 or 10 patents, but can assert 1000, 2000, or 10000 patents, which no small company can ever hope to defend against.

    The system is now designed so that patents work for the big guys but not the little guys.

    Why did you use inverted commas around the word “find” in the phrase “find prior art”? If Mr Ambwani does find valid, novelty destroying prior art, he is helping clear up the mess the patent office has dunked his client in.
    I can “find” prior art for 99% of inventions. It doesn’t have to be 102 art. However, I can find 103 art for just about anything. Moreover, with a little hindsight reconstruction, I can cobble together an obviousness rejection that the PTAB will likely buy into. What constitutes obviousness under 103 has little to do what is “obvious” to those skilled in the art.

    The great thing about the IPR system for patent infringers is that even if the patentee wins, they still lose. A win by a patentee gets them absolutely nothing as another IPR can still be filed and there are no monetary damages attached to a win. The patent owner will have spent a significant amount of time and money defending the patent gets nothing of value in return. The only thing they get is the opportunity to have it done again to them (so they can spend even more time and more money) by companies like Unified Patents.

  39. Shawn Ambwani February 21, 2020 2:46 pm

    Curious, the entire fact you look at this as a Zero sum game. Surprisingly the same infringers you talk about are also the largest filers at the PTO. It ignores all the innovation they have done. I want true inventors to make money and I want them to get investment and I want them to be able to sell their patents to whomever they choose for a great amount of money if they are truly innovative. I want to make the pie bigger for everyone and the only way to achieve that is through making them more attractive to capital markets. It benefits all parties to make the market bigger and not simply pay lawyers tons of money. It is telling when most of the market value is based on the legal fees generated rather than underlying asset. Instead of looking forward positively all of you just complain that the “good ole days” were better. But it was only good for a select few. Just like the 50s south. Here is a question to ponder, why do you think this profession is dominated by white males? How would you encourage more capital investment in patents? All you guys are just negative and downers, IE Angry White Males. Have a good painful life!!!!! Peace out.

  40. jacek February 21, 2020 4:30 pm

    There is something called “right and wrong” and, in many people’s eyes, absent in US laws but easily recognized even by kids in kindergarten. Also, there is this stunning addiction of US citizens (not always shared in other countries) to use courts and lawyers as mercenaries and assassins. (in the legal realm) It is in the best interest of participants to make system fair if only not to force people to look for alternative solutions since the courts, laws are ineffective as tools to assert their rights.
    Larger picture:
    Have you ever thought about what prompted millions of Syrian refugees to go to the EU suddenly? Or the process started in Poland, which ended the Soviet Union. A similar process of people coming to conclusions is in works here in the US.

  41. bart February 21, 2020 5:58 pm

    “All you guys are just negative and downers, IE Angry White Males. Have a good painful life!!!!! Peace out.”

    Me thinks this will be the last time Mr. Ambwani writes an article on IPWatchdog.

  42. Curious February 22, 2020 1:34 am

    Surprisingly the same infringers you talk about are also the largest filers at the PTO.
    If you actually READ what I have been writing, it is not surprising. Little guy cannot invalidate the 100 or 200 or 2000 patents getting asserted against him. Big guy can put little guy into the poorhouse by IPRing his handful of patents into oblivion. It is asymmetric warfare — the kind of which the little guy has little chance of winning.

    Also, there is this stunning addiction of US citizens (not always shared in other countries) to use courts and lawyers as mercenaries and assassins.
    LOL … do you think big tech companies will take a license merely by the asking? Or perhaps you think that middleman (ahem, like yourself) can step in a broker these deals (while taking a substantial cut for themselves). Patents that aren’t asserted are far less valuable than patents that are asserted. Nobody, particularly in this era, is going to take any patent owner seriously unless the patent owner has shown a willingness to sue. I heard of a magical period of time when big companies would consider taking licenses on patents without the threat of a lawsuit. However, I suspect that is just a fairy tale. Efficient infringement isn’t just some terminology we bandy about here — it is a legitimate tactic that has worked very well for the infringement crowd. Why take a license when you can IPR patent holders into submission?

    Have you ever thought about what prompted millions of Syrian refugees to go to the EU suddenly?
    Let me guess … Assad got sued for patent infringement and he decided to take it out on his own people? Seriously, you are really grasping for straws trying to find an anology with the Syrian conflict.

    It is in the best interest of participants to make system fair if only not to force people to look for alternative solutions since the courts
    By participants, you mean infringers? We should coddle infringers, is that it? It does seem to be your company’s line of work.

    laws are ineffective as tools to assert their rights.
    That is what you are your clients are relying upon, isn’t it?

  43. Curious February 22, 2020 2:05 am

    Here is a question to ponder, why do you think this profession is dominated by white males?
    I keep wondering whether you ask this question because you don’t know the answer or you think it will get a rise out of some of us.

    Regardless, to be a patent attorney (i.e., somebody who is can get registration number at the USPTO — not any old litigator who wants to call themselves a patent litigator), one needs a engineer/high-tech degree and a law degree. In case you haven’t noticed, engineering schools are chock full of males. As such, the pool of potential candidates are heavily slanted towards men.

    While engineering schools have quite a number of non-white students, a good many of those have English as a second (or third) language. While that may be enough to be an engineer, an exceptional grasp of the English language is needed to do well in law school. This requirement discourages many engineers (regardless of the color of their skin) from attending law school. However, it has more of an impact on those who skill in English is not on par with their skill in engineering.

    These factors lead to demographics of patent attorneys. I believe similar demographics can be find in the CEOs of the S&P 500 companies. However, these companies seem to be doing pretty well — or at least that is what my 401K statement tells me.

    All this aside, this has NOTHING to do with the value of patents as assets.

    It is telling when most of the market value is based on the legal fees generated rather than underlying asset.
    The underlying asset is a negative legal right — the (supposed) ability to prevent somebody else from practicing your invention. You do understand this?? You understand the difference between this negative legal right and traditional types of assets and how they are respectively monetized?

    All you guys are just negative and downers, IE Angry White Males. Have a good painful life!!!!! Peace out.
    I have a very prosperous life, thank you — far, far better than being an engineer. Moreover, when I go home, I sleep well at night knowing that I’m helping innovators — not covering for thieving companies.

  44. Benny February 22, 2020 3:40 am

    Curious,
    “Why take a license when you can IPR patent holders into submission?”
    Because if you are selling 50,000 knurled flange brackets rather than 50 million smartphones or laptops, a license is cheaper than an IPR. Since the CEOs of most small to medium niche tech companies are engineers rather than lawyers, they can do the math. But since IPRs are visible while settlements and licenses are not, you have no sense of proportion of monetization vs. invalidation.

  45. Pro Se February 22, 2020 8:11 am

    I am an independent African-American patent holder, the first IPR filings I received that came out of nowhere, and Unified Patents first (and likely only) campaign against an individual, was against me.

    They agreed to pick up an attack for the interest of Adobe, Visa, and Sony.

    Don’t come here Shawn and speak about race, how dare you…

    If slavery was legal today, you’re firm would be trying to sell my children.

  46. jacek February 22, 2020 9:03 am

    Curious. You forget to take apart the last sentences of my comment:……….. “the process started in Poland, which ended the Soviet Union. A similar process of people coming to conclusions is in works here in the US.” ……….
    There is alternative reality outside of the law you apparently newer going recognize submerged in to the legalities of the system.

  47. angry dude February 22, 2020 10:08 am

    Curious @42

    “…to be a patent attorney (i.e., somebody who is can get registration number at the USPTO – not any old litigator who wants to call themselves a patent litigator), one needs a engineer/high-tech degree and a law degree”

    If only this were true…

    Regardless, all those patent attorneys AND patent examiners AND district court judges etc etc HAVE to obey SCOTUS justices with liberal arts degrees from like 50 years ago
    Please don’t even get me started on congress critters – it’s a zoo… plus too many of them.. will take a while

    Yeah, it it this bad

    I think we are moving towards “Idiocracy” (a must watch movie btw)
    “It’s got electrolytes…fuddruckers… butt******s”

    Jesse Ventura for president and let’s settle all patent disputes inside boxing ring – it will be far more fair than the present system
    I can put some folks down despite being “older white male”

  48. Shawn Ambwani February 22, 2020 4:42 pm

    It is funny that everyone is scared of saying who they are. Like you are ashamed of your positions and statements. Gutless. Weak. Cowards. I am trying to make this conversation bigger than just PTAB or the perceived injustice against almost exclusively older white male licencors. I’m trying to encourage institutional investment and grow the market to where it should rightfully be, but that can only happen through wider understanding and adoption. Instead we keep hearing from almost exclusively from angry white males who have no solutions but just keep whining about their horrible lot. I have done well on all sides of this spectrum. I came to play, instead I just comments from a bunch of anonymous babies and no solutions. Just sad.

  49. jacek February 22, 2020 5:24 pm

    Gutless. Weak. Cowards. Older white….Scared. What next ?
    I think taking advantage of the screwed up system and feeding on
    other people misfortunes to have patents from USPTO is not I would be proud off.

  50. angry dude February 22, 2020 6:39 pm

    jacek @49

    This dude just wants to be hurt … like physically hurt.. and it will happen sooner or later… probably sooner
    don’t know about SF lgbt bars but in any suburban redneck bar in PA, NJ, NY … pretty much anywhere in this country the regulars won’t tolerate his “angry older white males” attitudes for a minute- cause they are mostly white, male, older and angry as hell at their government, just like I am

    But you saying “other people misfortunes to have patents from USPTO” is not right
    It wasn’t a “misfortune” at all, but a well calculated plot by his SV corporate masters and their recipients in wash dc – nothing random to it – including Unified Patents founding right after AIA and their “business model” which falls under RICO act (Special Prosecutor pleeease !!!)

    Perhaps some congress critters should read this thread and realize just how much damage they did to their country back in 2011 with AIA so now we have legalized racketeering outfits like Unified Patents

    Just like the Prohibition Act led to the rise of Al Capone, the America Invents Act led to the rise of Unified Patents (they are hiring now!)

  51. Pro Se February 22, 2020 8:43 pm

    @Shawn:

    “I’m trying to encourage institutional investment and grow the market to where it should rightfully be”

    You’ll never be able to do that at this point of your career. Even if you’re 100% correct, no one in the patent community will ever take the time to hear what you have to say.

    The devil doesn’t issue tickets to heaven.

  52. Curious February 22, 2020 10:46 pm

    If only this were true…
    This is true. You cannot practice before the USPTO without a registration number, and a registration number requires a technical degree.

    Because if you are selling 50,000 knurled flange brackets rather than 50 million smartphones or laptops, a license is cheaper than an IPR.
    Why take a license, when it will cost them far more to sue than any recovery they could obtain? OK, maybe you want things to go away, and you spend $15K to take a license. However, we are only talking about a very special set of circumstances. When big-tech infringes, they don’t infringe in the thousands of units — they infringe in the millions of units.

    There is alternative reality outside of the law you apparently newer going recognize submerged in to the legalities of the system.
    Honestly, I have no idea what you are talking about.

    It is funny that everyone is scared of saying who they are.
    What is with your penchant for childish insults? By being anonymous, I get to speak my own mind. Are you that ignorant as to how the internet works that this needs to be explained to you?

    I am trying to make this conversation bigger than just PTAB or the perceived injustice against almost exclusively older white male licencors.
    Then have the conversation. All you’ve done in the comment section is insult the posters.

    I’m trying to encourage institutional investment and grow the market to where it should rightfully be.
    You would make a great politician. You say a lot without saying anything at all.

    I came to play, instead I just comments from a bunch of anonymous babies and no solutions. Just sad.
    You’ve just come to troll us. As for solutions, didn’t you write: “You will note I am not providing specific solutions today, as many are interrelated, and all are rather complex.” On one hand, you criticize use for not presenting solutions when come here with none of their own.

    You want solutions, these are easy:
    (1) Repeal Ebay v. MercExchange. Patents are a negative right — the right to exclude (“securing for limited times to … inventors the exclusive right to their respective … discoveries”).
    (2) Rewrite 35 USC 101, 282 to explicitly get rid of the exceptions to patentable subject matter and to reaffirm that 101 is not a condition for patentability and it is not a defense to infringement (which is how the statutes were originally written).
    (3) Repeal the the IPR procedure or make it a true alternative to litigation — you get one bite of the apple. If you pick IPR, you’ve forfeited the right to litigate invalidity based upon prior art in the court. However, patents are presumed valid in either proceeding. No endless trip to the PTAB in an attempt to outspend a plaintiff.
    (4) Repeal TC Heartland. Venue should lie anywhere where defendant is subject to personal jurisdiction. There is no reason why patent defendants are entitled to have home court advantage.
    (5) Redefine obviousness under 35 USC 103 to make it reflect that “obvious” patents are invalid — not the current regime that allows the USPTO/Courts to create Frankenstein monsters that have little basis in reality.

    If you want better data on who owns a patent, I have no problem with that. If want the law to be changed to give the USPTO more money to make better patent searches, I have no problem with that. Nobody likes to sue on patents that will be subsequently invalidated based upon prior art that wasn’t found at the USPTO.

    Demystification won’t happen for the same reason that a Corporate 10K filing is not going to be demystified. There are certain legal requirements that need to be met, and the meeting of those legal requirements are what causes the complexity of the documents.

    I have no idea why you harp on diversity. Is there diversity in the CEOs of the S&P 500? Is the lack of diversity harming that asset class? Nothing about patent law is inherently against diversity. On the contrary, it is both gender and color-blind.

    I’ve addressed quality above. I have no problem giving the USPTO more resources to do better searches and have better examination.

    As for abuse, there are already mechanism in place to address abuse. They are called Rule 11 sanctions. It is the same procedure used to prevent abuse in any type of litigation.

    Here are your solutions. However, I have little doubt that you will not engage in the conversation you are supposedly yearning for. Your comments have already indicated that you have no desire to address the substantive comments already made here.

    Implement these solutions, and the patent market will explode. Unfortunately, a number of the big tech companies are going to be feel a bit of pain, but that is what happens when your business models are built about co-opting other people’s technology without paying for it.

    Implement these solutions, and engineers will be in incredible demand — which it is a tide that floats all boats, regardless of color, or gender, or age. Companies will be looking to create new technologies knowing that their inventions will truly be protected. Others will be forced to design around existing, patented technologies. Either way, there will be an explosion in innovation. THIS IS WHY THE FOUNDERS INCLUDED A PATENT SYSTEM IN THE US CONSTITUTION. This is why every modern country in the world has a patent system — there is a huge variety in the economic and political systems of the world, yet they all have patent systems because everybody recognizes the value of innovation. It is a shame that neither the Federal Circuit nor the Supreme Court believes the same, as nearly every decision of real substance they have issued in the past decade or so has been anti-innovation and pro-infringers.

  53. Shawn Ambwani February 23, 2020 12:25 am

    Curious. You actually have some good points which I could actually agree with. You should make yourself known. As for the rest of you trolls I am highly entertained. Btw if you want FREE patent , litigation and PTAB data it is on our portal. And as someone mentioned , we are hiring!!!

  54. bart February 23, 2020 1:49 am

    @Shawn, You just got schooled by Curious above. It would serve you best if you just stopped talking at this point.

  55. Hans U. Meyer February 23, 2020 8:29 am

    Stopped reading after “older white male”. Before using such clichés, please read the Sunday Times bestseller “The Madness of Crowds, Gender, Race and Identity”, by Douglas Murray. An eye-opener.

  56. Anon February 23, 2020 8:44 am

    Shawn,

    You engage yet another fallacy with the “ You should make yourself known. As for the rest of you trolls

    Making oneself known is NEITHER a verifier of veracity, nor a nullifier of such.

    That you think otherwise only shows the narrowness of your “thinking” (and not the only such showing).

    I certainly ‘get’ that one of your objectives here was to ‘entertain yourself.’

    Cheap thrills, as they say…

  57. Anon February 23, 2020 9:03 am

    Curious,

    Once again my friend — well said.

    And once again, you presage that Shawn really does not want to address ANY of the points that you raise, as all that you get in response is the equivalent of “ok, you have some points, OUT yourself and then maybe I will engage.”

    Much like the fact that the ONLY reason he included the PC virtue signaling was as a ‘tro11’ mechanism (pretty much everyone has pointed out that HE has engaged in at least as much if not more of the ISMs that he ‘signals’), Shawn’s “I Use My Real Name” ploy has nothing to do with content.

    He arduously has avoided content and has greed to the emotive “hot words” in his rhetorical tactics.

    Sure, this will certainly ‘work’ (if by work, you mean ‘Tr011’ the non-lawyers), but for ANY decent attorney, who is trained in ‘words’ and use of rhetoric, Shawn’s game is abundantly clear — and abundantly self-defeating.

    Mr. Ambwani, this is certainly not the first, nor the last, that you have ‘engaged’ in this manner, and to those that may actually be able to appreciate ANY point that you might be attempting to provide, the games you play far outweigh any possible merit of ‘alternative viewpoint.’

    I suggest that if indeed you are serious (and are our for more than just the fun and self-stroking of ‘tr011ing’), that you revisit your ‘points,’ eliminate the obvious PC rhetoric, actually try to understand and incorporate the legal realities (and foundations of patent law), and map out that which you would want to keep and that which you would want to remove (and why).

    There is certainly nothing wrong with having a different opinion, and many might question just why Gene provides a guest spot to you, but you make a HUGE mistake in thinking that because you can Tr011 here and that you can play rhetorical games, that doing so is in any way effective for actually meeting what you posit as your goals.

    You really do not f001 ANY critical thinkers.

    You only f001 yourself.

  58. Pro Se February 23, 2020 9:30 am

    @Shawn: I’ve seen you a few times but decided not to engage to avoid any conflicts. You are far from a tough guy.

    I hope you are safe out there because despite your attitude and behavior, no one should be physically harmed over patents…

    I’d highly advise you reconsider your public tone.

  59. Anon February 23, 2020 12:14 pm

    Pro Se,

    I note the concern, and would echo that — but only to the degree that NOTHING that Shawn has said here rises to the level of the “fighting words” doctrine, and I WILL fight for Shawn’s ability to express his views, no matter how noxious (and ultimately ineffective) those views may be.

  60. Curious February 23, 2020 12:23 pm

    You should make yourself known.
    I have made myself known. My writings, under my nom de plum, can be found on IP Watchdog for about a decade or so. My work name is immaterial. My ideas and writings stand on their own.

    Gene knows who I am and can vouch for the fact that I’m a patent attorney with many, many years of experience. Other than that, nothing else need be known about me to address my comments.

    Speaking of which, I’m still waiting for the “conversation” (that you purport to want) to begin. You started it with you article. I have presented substantial comments in response. Your turn …

  61. Shawn Ambwani February 23, 2020 2:42 pm

    Curious, I would love to have a thoughtful discussion with you in the open rather than behind a mask. You ask why anonymity is an issue and I would point to the physical threats by Pro Se and Angry Dude and racist comments by Anon (now deleted) and others as case in point where being anonymous chills speech and rigorous debate (something I though was pretty important to the founders, probably more than patents). No one can argue with our data on our website since we provide it for free and down to the case information and it stands on its own. When I say something I own it and not in secret. I am not lumping everyone every anonymous person here, but it shows the downsides and just reinforces that some on this thread are just a new version of the “good old boys” in hoods of not so long ago which only limited the ability for the patent market to grow and attract new investment.

  62. Eric February 23, 2020 3:08 pm

    “I came to play, instead I just comments from a bunch of anonymous babies and no solutions.”

    Here’s several for comment (or ridicule):

    1. Extend the 12-month pendency of provisional applications;
    2. Extend the one year deadline under 35 USC 102(b)(1), or;
    3. Allow examination at the USPTO to be delayed until the inventor decides to pay the corresponding fee.

    These suggestions should give the inventor sufficient time to determine whether his/her invention is worthy of the large sum of money needed to properly prepare and/or prosecute the patent application, which should lead to higher quality, more enforceable patents.

  63. Anon February 23, 2020 5:28 pm

    Shawn,

    It is disingenuous of you to repeat that the “Anon” and “anon” were the same person when I made it perfectly clear that such was not the case.

    Further, the ONLY ‘chilling going on here is by you, a person using ‘their real name’ — which proves the point of my later post regarding veracity as a function of actual content.

    You being up ‘the founders’ which actually proves the point AGAINST your ‘Real Name’ position (many founders published under pseudonyms).

    I am not lumping everyone every anonymous person here,

    That is precisely what you are doing — and the point is NOT lost that you are claiming the opposite while doing it.

    Also (to beat that horse some more), your latest reply “wanting to discuss” DOES NOT ACTUALLY DISCUSS and only serves as a smokescreen for rhetorical devices that I (and Curious) have already exposed. There is NO reason to avoid a conversation just because your demand of ‘Real Name’ is not met. Your excuse does not withstand critical evaluation.

  64. Anon February 23, 2020 5:58 pm

    Eric,

    Respectfully, none of your suggestions would be effective to “give the inventor sufficient time to determine whether his/her invention is worthy of the large sum of money needed to properly prepare and/or prosecute the patent application, which should lead to higher quality, more enforceable patents.

    This is because of the “no new matter rule” and the fact that even if you want to rely on a provisional date, you may ONLY rely on material in that provisional that satisfies the requirements of a non-provisional (and thus, would NEED BE already written at the expense level that you seek to alleviate).

    While certainly the cost of prosecution is a different animal, one only can prosecute what one provides at the first instance (or properly stakes out early in a Provisional filing).

    I share that one of the on-going tasks of mine (typically with new clients, as existing clients have learned this lesson) is that the Provisional route is NOT to be thought of a “quick, dirty, and cheap,” and one SHOULD expect to pay full price for full value OF a filing that may decide enablement and possession of any later claim — or be ready to NOT count on the year’s time of delay.

    This can be a very nuanced conversation.

  65. Curious February 23, 2020 8:31 pm

    I would love to have a thoughtful discussion with you in the open rather than behind a mask.
    I doubt that, as you are using my anonymity to deflect my points and mask your reluctance to engage in a dialogue. As for anonymity, while there is a great many sources I can point to, I’ll refer to something one of the biggest anti-patent groups (EFF) published at https://www.eff.org/issues/anonymity

    Let me quote:
    The tradition of anonymous speech is older than the United States. Founders Alexander Hamilton, James Madison, and John Jay wrote the Federalist Papers under the pseudonym “Publius” and “the Federal Farmer” spoke up in rebuttal. The US Supreme Court has repeatedly recognized rights to speak anonymously derived from the First Amendment.

    I can produce a cite if so desired, but Benjamin Franklin was well known for writing anonymously. If anonymous speech is good enough for the Founding Fathers, then it is good enough for me. Or perhaps you want to disparage the Founding Fathers for being “a small group of mostly white, older men”?

    something I though was pretty important to the founders, probably more than patent
    See above. Like your perception of the current environment for patents, your perceptions of what the Founding Fathers believed in are simply wrong.

    No one can argue with our data on our website since we provide it for free and down to the case information and it stands on its own.
    Are you looking to engage in a debate, or are you using Gene’s website as a marketing tool for your website? It seems that the latter is more apt.

    it shows the downsides and just reinforces that some on this thread are just a new version of the “good old boys” in hoods of not so long ago which only limited the ability for the patent market to grow and attract new investment
    Being anonymous has limited the ability for the patent market to grow? That is a new one on me. Perhaps you might be kind enough to walk us through your logic on that one as I’m having trouble identifying the interconnections between the two.

  66. Pro Se February 23, 2020 8:47 pm

    @Shawn: I didn’t threaten you, I said I avoided conflict.

    You and your firm take on your client patent so-called “enemies”, what do you think that makes you, a neutral operative?

    No, you chose to insert yourself into heated situations where real inventors are being juxed by the collateral damage caused by the AIA and you twist the jux after insertion, you don’t allow defendants to defend their own fights.. you jump in…

    So YOU need to walk the streets not knowing just who your firm has created enemies with.. that’s a YOU problem.. good luck with that.

    I can afford to pray for your well being and I do hope you find a tone that stick to the legality of the “game” you speak of and stop pressing buttons with unprofessional banter.

  67. angry dude February 23, 2020 9:05 pm

    Eric and Anon,

    Dudes, what are you talking about ?

    Improving this… improving that .. wtf cares at this point ?

    Pretty much EVERY US patent granted to a small entity (btw the definition of “small” has shifted from “garage” inventor to a multi-million dollar company) has no real value at present
    This is because legalized racketeering is allowed AND PROMOTED(!!!) by PTO’s own PTAB !
    Collecting fees from patent holders on the front end and THEN racketeering them on the back end – what a great business to have !

    It’s like I sell you some real estate and then publish it’s address on some public website WITH the notice that the new owner does not occupy the premises and does not have resources to evict squatters… What do you think happens next ?
    And then I ask you to pay me a fortune to remove that notice (but not the squatters already living there – you have to fight them on your own)

  68. angry dude February 23, 2020 11:08 pm

    I have few radical suggestions:

    1. PTAB is abolished and serial patent validity challenges are no longer permitted
    (this will take care of Unified Patents and that dude’s “career” in racketeering)

    2. A “double-blind” examination process is implemented by the PTO:
    the names of patent applicants are not known to examiners
    AND the names of examiners are not known to patent applicants and their
    attorneys

    3. All patent applicants are treated the same way by the PTO – no large or small
    or micro-entities.

    4. Cheap provisionals (not published, not examined AND not looked at
    by anyone at the PTO until corresponding regular application is filed – if it is
    filed) are available to everyone at the same price (with same requirements to
    include all subject matter to be claimed later in regular application).

    This would be much more fair than what we have today – a mockery and an insult: I do not want to pay micro-entity fees so those shameless wash dc critters can brag about “helping” small inventor but I get nothing for that.

    PTO must stand behind its work (the error should be few percent or less – not 80 or 90%) and racketeering by organized crime syndicates like Unified Patents and their corporate clients must be prosecuted under RICO

    Alas… not gonna happen
    Pecunia non olet…

  69. Anon February 24, 2020 8:31 am

    angry,

    Again, congrats on the little steps.

    Anytime that you propose more than just emotion and a “just quit” message (one of the desired messages of the Efficient Infringers), I want to cheer.

    So let’s cheer and take a look at your suggestions:

    1. Interesting, but their are due process issues from the other side. The biggest problem is that you really cannot defeat “serial” attacks because each attacker has their own Constitutional right of redress.

    That being said, perhaps — and especially for prior art types of challenges — their should be a truly neutral authority that quickly views art and eliminates any art that is already cumulative of the record. This would mean two things: that the Office “consideration” be given BOTH teeth AND reason for having teeth.

    1) Currently, it is a serious detriment that “considered” by the Office merely means that a reference has shown up in a (sometimes thousands of references long) list of a result of concatenated key word search strings. This of course also reflects a current (and long running) problem of examination (and examiners being so trained) that involves merely looking at the claims (out of context of the specification), and cobbling together 103 rejections based on keyword searches. However we do it, we need to focus on ‘quality examination’ — to be directly contrasted with ‘quality patents.’

    2) once a ‘best search and examination’ has actually been done, the Patent Office itself should take on the full legal role of being the entity that provided a ‘Public Franchise’ and indemnify the recipient of that (still) personal property with BOTH defense and enforcement payouts. I DO agree with you that the current mode of post grant review is beyond abysmal and that the Office making money both coming and going leads directly to gamesmanship and the open invitation of corruption.

    2. In theory, I can see some appeal to the double blind process, so I cannot dismiss it outright. My problem though is that examination IS tough and I have found a legitimate source of making examination better is direct person-to-person interviews. The double-blind route eliminates this incredibly helpful path, and I hesitate for that reason alone.

    3. The opposite of 2. here, as in theory, there is NO real difference between entity size and examination, as entity size and the level of fees paid difference IS separated from the actual process of examination. I do mention ‘in theory,’ because while there is indeed separation, I do NOT discount human nature and the plain aspect of Rational Actor that any entity invites different behavior based even slightly on profit potential. The stories are legion of the number of truly horrible examinations and subsequent grants to the likes of IBM and Microsoft, and one would have to seriously discount human nature to believe that examination has NOT somehow been influenced by the “Office profit” profile of prolific filers. So here, mixed reactions, but the mixture from the opposite angle of 2.

    4. This is already there (and makes me wonder why you include it), as well as has its drawbacks as I have already mentioned (but you were in too much of an emotional hurry to actually reason through my post).

    The summarizing point of the PTO standing behind their work IS a pinnacle point of mine that I have repeatedly put forth in response to Greg ‘I Use My Real Name’ Delassus comments vis a vis the horrible decision of Oil States. Which reflects one of my points herein time Shawn that mere use of a real name is NO indicator of veracity. Greg has shown himself to be an inte11ectual coward of the highest order. The difference being that his non de plumes (he also uses ‘dozens’ — but likely for ‘Count Filter’ reasons on that other blog) is that there is NO difference in that a poster or real name use or otherwise can post banal, vacuous, and otherwise be inte11ectually lazy or dishonest. As Curious so rightfully notes: it is the content of the blog posts themselves (and HOW that content is delivered) that actually matters.

  70. xtian February 24, 2020 9:52 am

    Why don’t we go to a registration system. All patent claims filed are granted. Those that don’t like the patents can then fight it out at the PTAB.

    Its essentially what we have now, but applicant’s have to pay for a worthless examination.

  71. angry dude February 24, 2020 10:39 am

    Anon @69

    Dude, most of your points (and the vague style of your posts) just serve efficient infringer’s agenda …

    I had my patent application searched by both USPTO and EPO.
    What I found out is that USPTO search results were mostly IRRELEVANT, while EPO search results were on target. Why is that ? EPO search was more expensive, but not by thousands
    Are people in Europe smarter than people in USA ?
    I let you answer this question yourself… (maybe Shawn can chip in with his racist remarks)
    Concerning serial challenges – those are not to be allowed by any racketeering for-profit outfits like Unified Patents. The accused manufacturer should be able to put arguments together and submit re-exam request to the PTO. If their engineers and attorneys don’t have any good arguments to present they probably infringe and willfully infringe…
    Concerning “double-blind” examination – just ask “concerned” on this blog…
    Not sure if it will help him get his patent allowed but it will help IBM reduce their patent output each year … by a LOT! And that’s a good thing !

    The bottom line: US Patent System as it is right now is a sham and a racket
    We do not need such patent system.
    It is better to abolish it outright than to try to put lipstick on a pig.
    Unless some radical changes are made I don’t see any reason to participate in this scam – it’s throwing good money after bad
    To the morgue then…

  72. Eric February 24, 2020 10:57 am

    I would support a registration system.

    And I would go one step further…I would eliminate issue fees and maintenance fees. Think of the savings to inventors! And who knows, maybe inventors can be persuaded to invest those savings at the front end (i.e., patent preparation), which in theory should result in patents that are less susceptible to challenge at the PTAB.

    Or I’m I being to naive?

  73. TFCFM February 24, 2020 10:57 am

    Curious@#38: “If somebody wants to buy someone’s patents and use them to set up roadblocks, then that is the nature of patent rights, which includes the right to exclude others. If you got a problem with that right, then amend the Constitution.

    Neither “the nature of patent rights” nor “the Constitution” mandates that Congress adopt a patent system which permits bandits to impede progress in Science and the Useful Arts.

    The Constitution merely empowers Congress to do the opposite (adopt a patent system which promotes progress in Science and the Useful Arts). Congress, wisely, used that power to enact a patent system that discourages ‘troll’-like behavior. Nothing about the Constitution nor “the nature of patents” invalidates Congress’ choice to do so.

  74. Eric February 24, 2020 11:17 am

    I doubt the examiners at the EPO are smarter than those at the USPTO. Does anyone know if the EPO keeps all the fees paid to it by applicants?

  75. Curious February 24, 2020 12:50 pm

    Neither “the nature of patent rights” nor “the Constitution” mandates that Congress adopt a patent system which permits bandits to impede progress in Science and the Useful Arts.
    How about you use real examples instead of using vague descriptions such as “permits bandits to impede progress”? Who are these bandits? Have they improperly obtained the patents? Have they improperly asserted the bandits? Generic assertions of wrongdoing does little to help those serious about discussing potential solutions that both sides can agree upon.

    You need to: (i) identify those actions that you believe are improper with specificity </i) and (ii) if you want to be helpful, propose solutions that address these supposedly improper actions.

    The Constitution merely empowers Congress to do the opposite (adopt a patent system which promotes progress in Science and the Useful Arts).
    This comes about “by securing for limited times to … inventors the exclusive right to their respective … discoveries.” However, this impeding of progress you complain about is also going to result from the “securing … the exclusive right.” There is a trade off being contemplated here. There will be some impeding of progress (because a single entity can exclude all others from practicing the invention) but that is intended to be more than offset by the promoting of progress as a result of inventors get rewarding for inventing (and hence, they will be more likely to invent again) and the public getting a description of the invention, which allows the public to use that invention as a springboard to create more advances.

    You complain about bandits impeding progress, but these so-called “bandits” are using one of the the bundle of rights that are granted as a result of the bargain enshrined in the Constitution. You cannot separate this right (i.e., the right to exclusivity) from the other bundle of rights and make the system work. If you think otherwise, then this is a perfect forum for you to explain how that can be accomplished.

    This is the problem statement: How can the patent system be modified to prevent patent trolls from “imped[ing] progress” while at the same time maintain the exclusivity promised by the US Constitution and to have these patent rights be alienable?
    If you have a solution to this problem, then let’s hear it. If it is a problem that you cannot solve, then you have to acknowledge that we have to take the bad with the good when it comes to how the patent system works. However, this is how all property systems work — anytime a right to property is granted to someone, it becomes a negative right to that property for someone else.

    Congress, wisely, used that power to enact a patent system that discourages ‘troll’-like behavior.
    How did they do that? What part of 35 U.S.C. are the anti-troll provisions? When I’m looking for anti-troll provisions, I’m looking for provisions that are specifically directed against patent trolls — not provisions that generally discourage patent assertions regardless of the identity of the party doing the assertion.

  76. angry dude February 24, 2020 1:54 pm

    TFCFM @73

    “Neither “the nature of patent rights” nor “the Constitution” mandates that Congress adopt a patent system which permits bandits to impede progress in Science and the Useful Arts.”

    Dude, are you in your right mind ???
    Apparently not…
    Inventors like Tesla, Edison and Wright Brothers are now “bandits” ?
    Why don’t you leave this IP (that is “intellectual property”) blog and never come back. Good riddance

  77. angry dude February 24, 2020 2:07 pm

    xtian @70

    Registration is fine with me

    But answer one question: why other countries like China or Germany have functioning patent systems and patent courts and USA does not ?

    China is many times bigger than US (in population), Germany is smaller..
    People living there could not be more different from each other
    Yet they both have functioning patent system which USA does not have

    Maybe the answer is corruption in wash dc ?
    (Do they still practice capital punishment for government officials corruption in China ?)
    So much for draining the swamp…

  78. Tiburon February 24, 2020 4:43 pm

    “Put simply, people don’t like to invest in stuff they can’t read, let alone understand.”

    Nail. On. Head.

    Anyone who works in software not only can relatively easy to *READ* other software but also more importantly can *BUILD UPON* the work of others (aka link in a library is a matter of minutes). Not so with patents. Hence why software folks are so opposed to patents.

  79. Anon February 24, 2020 5:44 pm

    Tiburon,

    You would do well to recognize the fundamental and innate differences between legal documents and technical document, before you buy what is being sold here by Shawn.

    Let’s put it another way: do you recognize the difference between financial documents and technical documents? Do you recognize WHY there is a difference?

    Before you jump so quickly then to “software engineers don’t like patents” understand that the reason you are giving for your feelings is one entirely situated in ignorance? FAR too many otherwise intelligent (from a technical perspective) people make the mistake of thinking that their technical intelligence is a substitute for other forms of intelligence. Rather than recognizing their weakness, they want to paint the different item as somehow fundamentally flawed BECAUSE it is not the technical item that they understand.

    You also share: “importantly can *BUILD UPON* the work of others (aka link in a library is a matter of minutes).” but I have to wonder if your version of “BUILD UPON” pays any heed for those whom you would TAKE FROM to do that building upon? Do you even recognize that the mere ability (and especially EASE of ability) to take does NOT mean that any such taking is EITHER proper, nor necessary to innovation? Do you personally recognize ANY aspect of property in the works of others from you, it is excessively convenient to use?

    This may well go beyond a critical lack of understanding THAT differences exist in the documents that are legal and the documents that are technical, and may well go to a philosophical view that anything out there that CAN be used to be built upon should be entirely unencumbered by ANY restraint, so that the ease of ‘building upon’ is the only concern, the only driver.

  80. Anon February 24, 2020 6:00 pm

    Curious,

    Good luck in getting ANY straight forward or direct answers from TFCFM.

    His replies to you to date have been entirely NON-answers and sound bite quips that merely take as conclusions, the premises that he would need to actually establish.

    For example, your set of questions in regards to ““permits bandits to impede progress”? Who are these bandits? Have they improperly obtained the patents? Have they improperly asserted the [patents]?” reveals that TFCFM has already passed judgment as to what “real inventions” may be (and who may wield the legal instruments that protect inventions). Note that to this day, he refuses to acknowledge the ‘negative right’ nature of what a patent actually provides. and that — to him — “promoting the progress” is SOLELY reflective of positive rights in action? He has refused to even acknowledge WHAT the Quid Pro Quo even is, and that such a Quid Pro Quo fully provides that an inventor may properly block ALL OTHERS from ALL positive actions for the entire length of time of the exclusive right? To him, this is simply a foreign concept, an unthinkable result, and one that just cannot come from the law AS WRITTEN by Congress.

    He has NO concept that the negative right nature of a patent — the power to NOT let someone else DO something is that way (at least in substantial part) because — as the adage goes: necessity is the mother of invention. IF one is blocked, THEN one is prompted and promoted TO innovate.

    Instead, much like other non(real)-patent attorneys (and most likely, a litigator not trained at all in how to write patents in order to protect innovation), TFCFM does not critically think and merely views any blockage as — and only as — an impediment to the promotion of innovation.

    To such, it is indeed a very slippery slope to eliminate any protections of property at all. After all, would not ALL of mankind benefit if any item of property can be taken by the State and redistributed to those that could make the most benefit from the property? Why should any sense of individual property get in the way of such ‘promotion?’ Who cares whatsoever of the essence or aspect of inchoate right that necessarily FIRST exists, and to which is the reason why we as a government have provided the mechanism of Quid Pro Quo to turn that innovator’s inchoate right into a full legal right?

    None of these things matter to TFCFM.

  81. Anon February 24, 2020 6:05 pm

    Curious,

    As to your asking for specific anti-‘Tr011’ words of Congress, maybe TFCFM might recognize the award-winning historical journalism once provided over at PatentDocs that plainly provided that our Founding Fathers actually aimed specifically to have the granted personal property right of a patent to be fully alienable — by design and expressly so that the person that invents need not be the ‘forever owner’ and only one that may utilize the negative nature of the legal right.

    Of course, this would destroy the unsubstantiated premise of TFCFM and ruin his ‘nefarious’ labeling game.

  82. angry dude February 25, 2020 3:08 am

    @Anon

    Dude,

    Are you twin brother of TFCFM ?

    Both of you, troll twins, just go away please ?

  83. Anon February 25, 2020 6:47 am

    angry,

    You have a hammer.

    Everything — and I do mean everything — looks like a nail to you. It’s as if you have but a single filter: is the comment aligned with MY emotion and make MY emotion the only worthwhile topic (no matter who benefits from my emotion), or not?

    That’s not a good thing.

    Maybe stop the self-indulgent emotional stroking that you are engaged in and realize that MANY other issues are being discussed.

    Not everything has to be the simpleton mouth piece propaganda position that you so single-mindedly pursue (even as, or perhaps more accurately, especially as, the position that you advocate for IS something that the Efficient Infringers want — as has been explained to you many times now).

  84. TFCFM February 25, 2020 10:22 am

    Curious@#75: “This is the problem statement: How can the patent system be modified to prevent patent trolls from “imped[ing] progress” while at the same time maintain the exclusivity promised by the US Constitution and to have these patent rights be alienable?

    You need do no more than:
    1) Understand what the Constitution actually says (or stop misrepresenting it, if you do understand) and
    2) look no further than our current patent system.

    The Constitution’s Patent Clause empowers Congress to create a patent system — one that “promotes progress… by securing for limited times to … inventors the exclusive right to their … discoveries..” The Constitution imposes no particular meaning to “exclusive right” (let alone the absolute, utterly inflexible meaning you propose). The Constitution also explicitly expresses it’s “patents directive” as empowering Congress to achieve a goal. In short, the Constitution does not specify a patent system (ANY system, let alone the one you would prefer).

    Looking to the patent system that the Congresses have implemented over the year, they’ve done a pretty admirable job of trying to promote progress through award of certain exclusive rights, while limiting inhibition of progress by denying award of other exclusive rights. Perhaps the most relevant example to our current discussion is 35 USC 283, in which Congress makes injunctions available subject to the principles of equity. You can’t get much more flexible and situation-specific than that, leaving the availability of a potentially-progress-inhibiting remedy to the discretion of a court having access to the circumstances and issues particular to each particular case in which the remedy is sought. That is an EXCELLENT example of how the current patent system promotes progress by providing a remedy which — if misused — could instead inhibit progress.

  85. Curious February 25, 2020 12:28 pm

    TFCFM@84

    I had the following requests of/questions for you:
    How about you use real examples instead of using vague descriptions such as “permits bandits to impede progress”?
    Who are these bandits?
    Have they improperly obtained the patents?
    Have they improperly asserted the patents?
    You need to: (i) identify those actions that you believe are improper with specificity and (ii) if you want to be helpful, propose solutions that address these supposedly improper actions.
    If you have a solution to this problem [of patent trolls], then let’s hear it.
    How did [Congress] do that [i.e., discouraging troll-like behavior]?
    What part of 35 U.S.C. are the anti-troll provisions?

    Your response to say was that the “Constitution imposes no particular meaning to ‘exclusive right’.” Does any part of the Constitution include a definitions section? Did I miss this? Of course, it doesn’t include an explicit definition. However, one need only look at the dictionary to determine that an “exclusive right” involves excluding, which includes “limiting or limited to possession, control, or use by a single individual or group.” What does “exclusive right to their … discoveries” mean to you? What right are you considering to be “exclusive”? and why is it exclusive?

    BTW, I’m not misrepresenting the Constitution when I’m using its actual words.

    That is an EXCELLENT example of how the current patent system promotes progress by providing a remedy which — if misused — could instead inhibit progress.
    Current patent system? Your next comment was to point to 35 USC 283 … a provision that is so old that it is eligible to receive full social security. However, as you very well know, the Supreme Court in eBay v. MercExchange changed, after a half-century of existence, how that particular provision has been interpreted. This is the Supreme Court Decision that gave rise to efficient infringement. If the stakes are big enough, go to court to because if you lose, you’ll only be subject to paying the royalty you would have paid to begin with. The Supreme Court wasn’t done there, of course. They added Alice/Mayo, KSR, and Nautilus to make it easier under 101, 103, and 112 to invalidate patents, thus making the calculus more in favor of challenging patents.

    BTW — only 4 justices (Kennedy, Stevens, Souter, and Breyer) expressed concern, in a concurrence, about companies using patents “not as a basis for producing and selling goods but, instead, primary for obtaining licensing fees.” Two points: (i) only one of the justices currently remains and (ii) these justices fail to appreciate how the economy has changed. The US is more of a service economy than a manufacturing economy. Moreover, to the extent that there is manufacturing, the design is being decoupled from the manufacturing. One need only look at Apple (“Designed in Chang, made in China”) to see how that operates. Apple doesn’t even manufacture the products themselves, they outsource that to contract companies (e.g., Foxconn).

    Who can forget the advertising line for BASF (going at least back to the early 90s) of: “We don’t make the products you buy. We make the products you buy better”? This tag line exemplifies the modern economy in which many companies collaborate to produce products — not just a single company that does everything. How can modern tech companies that do design but not manufacturing effectively license their (patented) technology in today’s environment? If I’m a manufacturing company that wants to pay for licensed technology, I want to have the option to take an exclusive license to that technology (conversely, as a design firm, I may want the ability to give an exclusive license). However, how can that be accomplished in today’s environment?

    The title of this article involves “Ways to Make U.S. Patents a Real Investment Vehicle.” However, U.S. Patents will not be viable as an investment vehicle when the rational choice for anybody accused of patent infringement is to fight rather than take a license. Why invest in a shop to sell your wares when there is a very good chance that when you open your doors for business somebody is going to come in and firebomb the place?

  86. angry dude February 25, 2020 1:37 pm

    @ Anon & TFCFM

    Dudes,

    Can you two just unite in a happy marriage and leave IPWatchdog alone ?

    The crap you are posting is not helpful at all – it is designed to distract reader’s attention from real pressing issues

  87. Anon February 25, 2020 1:55 pm

    TFCFM,

    You do NOT get to read a Congressional sharing of authority in a vacuum.

    I have explained to you exactly what principles of equity are being MISapplied because of the very nature of your own not understanding the basics of patent law. In short, those principles of equity are: to make the aggrieved as whole as possible, AND NOT to treat ‘injunction’ as one would in general (non-patent) contexts as ‘the most harsh form of remedy.’

    You want to play the card of ‘the Constitutional Clause is an allocation of authority,” and yet turn right around and misrepresent the allocation of authority being shared across branches of the government.

    That sharing BACK TO the judicial branch is simply NOT as open-ended as you pretend, and you simply do not get to read out of the sharing clause that which controls the sharing. You don’t get to play the game of removing what a patent means in the first place, and then limit what a patent may mean by a backwards ‘legislating from the bench.’

    You also do not get to redefine what it means to “promote progress,” by ADDING some type of “positive act” requirement to what a patent is (or provides). As I have also educated you, the use by the framers of “to promote” was NOT limited to only the modern day notion of linear (or non-linear) advance, but also included the mere notion of ‘to make aware’ (in the advertising sense of the word promotion). If you had ever actually studied innovation, you would understand that the mere “make aware” has historically been one of the greatest drivers of innovation. I suggest that you reach back and view some of the old BBC television show Connections ( https://en.m.wikipedia.org/wiki/Connections_(TV_series) ) to gain a little appreciation of the very Constitutional words that you want to bandy about.

    Your own Con Law understanding is not up to snuff.

  88. Anon February 25, 2020 4:39 pm

    angry,

    Check yourself. This is a law blog. This is not “the angry dude emotional rant” blog.

  89. angry dude February 25, 2020 7:29 pm

    Anon @88

    There is no patent law in the US at present as all of us know (even you and your twin brother/sister/partner TFCFM)
    You “legal” talk isn’t worth sh1t

  90. Anon February 25, 2020 8:39 pm

    angry,

    As noted, you may have whatever feelings you choose to have.

    You may not have facts and law be whatever you want them to be.

    This IS a patent law blog.
    This is NOT ‘the angry dude emotional rant’ blog.

    You of course express yourself.
    Fine.

    Don’t expect that others will actually stop trying to discuss law and how to your feelings.

    I suspect that you have become addicted to your anger, and your continued choices appear to only ADD to that anger (and yet, continue to ignore factual take-aways OF your choices).

    I give you some free advice: obtain counseling — at least to the level that you may yet again appreciate the difference between reason and emotion (and allow you to see the t001 that you have become).

  91. angry dude February 25, 2020 10:38 pm

    Anon @90

    Dude,

    I repeat once more : THERE IS NO PATENT LAW IN THE US

    As a patent attorney you are liable to disclose this fact to your prospective clients

    Legally liable. Period.

  92. Anon February 26, 2020 5:59 am

    And I repeat, you may express any feelings that you want, but you don’t get to make up items of fact and law.

    As to my ethical responsibilities, I am well aware of them, thank you.

  93. TFCFM February 26, 2020 11:53 am

    Curious@#85: “Current patent system? Your next comment was to point to 35 USC 283 … a provision that is so old that it is eligible to receive full social security. However, as you very well know, the Supreme Court in eBay v. MercExchange changed, after a half-century of existence, how that particular provision has been interpreted.

    That a statute has been on the books a while does not render it invalid. Quite the opposite, in fact. Moreover, the Supreme Court, in eBay did not change the interpretation of section 283, but rather reversed the Federal Circuit for mis-interpreting that section.

    I will continue to avoid questions that avoid the point or simply attempt to divert attention from it. Repeating them a third time will only lengthen your reply without adding substance.

    _____

    Anon@#87: “I have explained to you exactly what principles of equity are being MISapplied because of the very nature of your own not understanding the basics of patent law. In short, those principles of equity are: to make the aggrieved as whole as possible, AND NOT to treat ‘injunction’ as one would in general (non-patent) contexts as ‘the most harsh form of remedy.’

    You have expressed your opinion as to what you wish the principles of equity relevant to requests for an injunction on a patent case were, but you have whiffed on what those principles (i.e., the ones actually applied by US courts, an as reiterated in the eBay decision, for example) actually are. You’re entitled to your opinion, but your opinion does not have the force of law — particularly where — as here — your opinion flies in the face of what the established law is on this point.

    Id.) “You also do not get to redefine what it means to “promote progress,” by ADDING some type of “positive act” requirement to what a patent is…

    ???

    I can’t follow what you even think you mean when you discuss my alleged requirement for “positive acts”. I impose no such requirement. Instead, I note that the equitable remedy of an injunction requires that a court considering granting such a remedy consider all relevant facts. I suppose some of those facts could pertain to ‘positive acts.’ If your intended meaning is different from that (I can’t read your mind), I’ll need you to explain what you’re thinking if you want a sensible reply.

  94. Anon February 26, 2020 2:24 pm

    “Principles of equity” are NOT your version of a principle-LESS “anything the Court says.”

    Given your lack of understanding of how the Constitution works (and your prior attempts to shift the current eligibility mess from the Court to Congress), I am not surprised by your (very wrong) response here.

    That you also insist on ‘playing dumb’ when it comes to what a negative right means only goes to show that you are just not a patent practitioner and that you just do not have the grasp on patent law that you think that you do.

  95. Anon February 26, 2020 2:31 pm

    You entirely miss the Constitutional nature of the shared authority (and the limits thereof) when it comes to patent law.

    You have it backwards with your attempt to allow the Court an unlimited power that turns and shapes patent law. That is simply not how the US Sovereign has allocated that authority.

    What’s funny here is that you attempt to lecture those that clearly know better than you (both myself and Curious), and that you seem absolutely unaware of the fact that you are not aware of the Rule of Law on the very things that you want to lecture about (and clearly lack the credentials — the working knowledge of actually protecting the work of innovators). The games that you would rather play (the litigator games so easily noted as such) do not and cannot make up for what you lack.

  96. Curious February 26, 2020 2:34 pm

    I will continue to avoid questions
    That you are. No surprise there. I have presented plenty of questions and commentary to address your (and other’s) points about the “current patent regime,” yet the best you can do is to point to a statute drafted in 1952 and a Supreme Court case from 2006. Seriously, why do you bother with the effort of typing when you have nothing to say?

    I repeat once more : THERE IS NO PATENT LAW IN THE US
    I’ve avoided this mess for quite some time, but please realize that comments like these serve no useful purpose.

    I write because I want people to seriously consider my thoughts. However, who is going to take you serious when you make comments like that? I don’t know about you, but once a person starts ranting (about anything), I immediately tune them out. You have a story to tell, but your frequent rants are the wrong way to go about telling it. Moreover, if you are going to rant, at least try to be original with your rants. For example, your “to the morgue” schtick has gotten really, really old. Don’t be the guy who generates cringes from everybody else the moment you walk in the room.

  97. Anon February 26, 2020 9:34 pm

    Wow Curious, sorry for you on both fronts.

    about the “current patent regime,” yet the best you can do is…

    And THAT is not even ‘best,’ as he cannot even understand just why the Supreme Court has messed up the Act of 1952. As to which questions TFCFM avoids, that’s easy: ANY question that he does not like. He has a magic wand that makes all questions that he does not like to be the type that he will not answer (even while maintaining that he is open for discussion).

    With that kind of openness, Fort Knox is extremely jealous.

    As for ‘angry’ – there be NO reason there (and thus, no reasoning). All one can hope to do there is inoculate the new passers-by and keep pointing out that angry’s path only leads to one of the thigns that the Efficient Infringers want.

  98. TFCFM February 27, 2020 10:29 am

    Curious@#96: “…the best you can do is to point to a statute drafted in 1952 and a Supreme Court case from 2006

    It’s called “current law,” son. Look ‘er up.

  99. Anon February 27, 2020 12:04 pm

    TFCFM,

    You seem both amazingly smug and amazingly unaware that “current law” (especially in regards to Supreme Court jurisprudence) in regards to patent eligibility is one giant irreconcilable mess of a Gordian Knot, which results in knowledgeable professionals discussing both the state of “current law,” as well as how to cure the problems of that state.

    Engaging in discussions without this level of awareness is probably the single biggest driver of you having virtually no persuasion or respect of your opinions.

  100. Pro Say February 27, 2020 1:19 pm

    I honor of comment #100, I’ll provide this:

    Shawn; when you find yourself in a hole, stop digging.

    Just. Stop. Digging.

  101. Curious February 27, 2020 4:29 pm

    Just. Stop. Digging.
    He did. We weren’t the easy mark he thought we were going to be. The best he could do was to spray insults all over the place. Eventually, he realized that his only ally of TFCFM wasn’t providing much help.

    As for TFCFM, I see that he is in full avoidance mode. All of us are aware of eBay. However, some of are aware that eBay indiscriminately harms both your so-called “bandits” and innovators who are looking to protect their intellectual investments. As such, the Supreme Court’s decision in eBay is not promoting progress. Rather, it has eviscerated the promise of exclusivity found within the Constitution.

    TFCFM has presented no explanation as to how the plain language of the Constitution supports the Supreme Court’s removal of exclusivity from the bargain enshrined in the Constitution. I didn’t expect an explanation, as ‘explaining’ things appears to be one of TFCFM’s shortcomings.

    Now that this post has been buried on the second page, I expect it to wind down quickly. It was fun while it lasted. There was a glimmer of hope that someone from the anti-patent side would be game to engage us in a conversation. However, despite comments to the contrary, engaging in a conversation does not appear to the goal of Mr. Ambwani. Instead, he appears to have been hawking his business.

  102. Anon February 28, 2020 7:33 am

    Curious,

    You nailed it all-around.

    But the lemon-aide here is that casual readers drawn by Shawn’s headline can see each of the points you make, as well as can see why the pretenses of those points really don’t belong in an earnest discussion of fixing “the current laws.”

  103. Anon February 28, 2020 7:40 am

    … which at the hand of the day may be a reason that Gene has provided space for those who are clearly not within ‘his bubble.’

    It is a fruit of engagement to show that some do not really want to engage — just as some joined the chorus of wanting to fix the mess of the Court’s re-writing of patent eligibility doctrine and policy did not really want to fix the broken scoreboard.

    Of course this (and any inputs) must be approached with a critical mind, willing to reason. And since ideologies remain that seek to not have that reasoning, the ‘work’ of commentators to push back remains.

  104. Anon February 28, 2020 9:40 am

    To clarify, “the pretenses of those points” are NOT the points presented BY Curious, but rather, the point TO WHICH Curious has responded to.

    Apologies for any confusion.

  105. TFCFM February 28, 2020 10:30 am

    Curious@#101: “TFCFM has presented no explanation as to how the plain language of the Constitution supports the Supreme Court’s removal of exclusivity from the bargain enshrined in the Constitution. I didn’t expect an explanation, as ‘explaining’ things appears to be one of TFCFM’s shortcomings.

    The simple explanation for this lack-of-an-explanation is that the question you pose in #101 is not the question you asked previously. THAT question is easy to dispose of:

    The Patent Clause contains no “bargain enshrined in the Constitution.” The plain text is clearly and obviously an empowerment clause, simply enumerating what power the Congress is AUTHORIZED to exercise — not that it must exercise them or how it must exercise them if it chooses to do so.

    (The blindingly-obvious hint is that the main body of the sentence that includes the Patent Clause and to which that clause refers is “The Congress shall have power.” I realize you ignore that part of the sentence because you don’t like it and because it doesn’t align with the agenda you wish to push, but that doesn’t make the sentence go away.)

    Even if one considered the Patent Clause an “enshrined bargain,” it is not defined. As an initial matter, what “exclusive rights” are referred to, and can they be granted only for inventions that are “discoveries” (not non-“discovery” inventions, such as mere application of cleverness). Must exclusive rights (whatever they are) be granted even for obvious discoveries? Must exclusive rights be granted even when the inventor refuses to file an application or refuses to disclose how the invention works? How much of a “discovery” is a “discovery”? [… I won’t bore you with more …] None of these are, of course, specified in the Constitution, even if the Patent Clause were not merely a clause in a sentence enumerating the powers of Congress. The clause leaves all of these issues (and many more neither specified nor even envisioned in the Constitution) to be determined by Congress.

    Finally (for this comment, anyway), the Supreme Court in the eBay case did not “remov[e] exclusivity from the bargain enshrined in the Constitution” (your words). Instead, it reversed the Federal Circuit’s practice of glossing over the standard for assessing awards of injunctive relief in patent cases, finding (as is indisputable) that Congress had never enacted a patent law that directs courts to assess requests for injunctions in patent cases differently than courts do in all other case.

    (Do you want to ask me about my favorite flavor of Jell-O as a stinging retort and feign outrage when I decline to answer?)

  106. angry dude February 28, 2020 4:33 pm

    TFCFM & Anon

    Dudes

    Are you twin brothers or what ?

    Would you just shut up, please ?

  107. bart February 28, 2020 4:56 pm

    Sure. “The Congress shall have Power to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.”

    Congress must decide if its current patent statute does that — promote the progress of science and useful arts. I (and many inventors) find that it does not; as a result of the AIA, patents have become liabilities rather than assets for investment, and thus, inventors are opting for trade secrets and electing to not seek the very system Congress created for securing for limited times to them the exclusive right to their discoveries. One major way that this particular system promotes the progress of science and useful arts is the public disclosure component. With trade secrets, that public disclosure becomes lost, and thus the very driver for progress by public disclosure as well.

    Congress was NOT given the power to DEMOTE the progress of science and useful arts, yet the system Congress created is now that demotion.

  108. Anon February 28, 2020 6:26 pm

    never enacted a patent law that directs courts to assess requests for injunctions in patent cases differently than courts do in all other case.<"

    35 U.S.C. 283 Injunction.

    The several courts having jurisdiction of cases under this title may grant injunctions in accordance with the principles of equity to prevent the violation of any right secured by patent, on such terms as the court deems reasonable.

    Try again, TFCFM.
    By the way, this is called a strict limitation on the power provided by the Constitution to one branch of the government being shared with another branch of the government.

    Apparently, you never actually took Con Law and do not appear to grasp the fact that ANY cross-branch sharing is evaluated under strict terms (you know, in order to protect the nature of our tri-partite system).

    That’s not only the current law, sonny, that’s the law as understood by those who have dedicated their professional careers to understanding the US legal system. But to you, that type of thing is merely someone else’s opinion, or worse, something not to the point that you believe in.

  109. Anon February 28, 2020 6:29 pm

    angry dude @ 106.

    I insist: you first. As much as TFCFM is getting the law wrong, at least he is trying to talk about the law.

    You on the other hand, ONLY want to rant on your feelings. As I have noted, this is NOT the “angry dude’s rant forum.” This is a forum for legal discussions.

    I highly suggest that you try to remember that.

  110. angry dude February 28, 2020 10:31 pm

    Anon @109

    Dude,

    There is no patent law in the US

    The emperor is naked – has been naked for quite a while (of which I told you all many years ago but nobody would listen)

    Pointless discussion

  111. Anon February 29, 2020 7:09 am

    angry,

    Your feelings on “pointlessness” are yet again noted — as is your choice of reacting to those feelings along a line of ‘just quit’ that serves the Efficient Infringer’s viewpoint.

    You are more than welcome to your feelings, but — yet again — I counsel you to NOT mistake those feelings for items of fact and law, as well as counsel you to NOT focus merely so much on YOUR feelings that your message is that of a t001 for the very type of entity that causes the anger that you claim to have.

    It simply is incongruent for you to so single-“mindedly” pursue that “just quit” message.

    Anger alone does not explain your nigh-constant attempts to squelch the legal discussions of others. While anger alone is irrational, and your (continued) behavior is irrational, there appears to be something more afoot with your reaching out and attempting to intrude upon conversations of others and silence ANY attempts at critical reasoning.

    The other irrational driver that I could fathom as to why you would so insistent to do as you do is fear. What would you be afraid of in the instance of others discussing law (on a law blog)? One may rightfully wonder if you have been compromised and have become an actual paid advocate of the Efficient Infringers. Your insistence on their message AND insistence that only YOUR emotional feelings matter — very much to the exclusion of ANY critical reasoning remains** most odd.

    ** emphasis here on ‘remains,’ as even those that HAVE been hurt and may be angered, would have SOME capability of reasoning, and would NOT reject a call for reasoning, nor reject reasoning as a path forward. ALL of this has been (patiently) explained you, and yet you continue to insist on not only rejecting reasoning as to YOU, but also, you reject reasoning as to any other conversation.

    The level of your unreasonableness is thus extended from your own condition (you advocate beyond ANY direct point related to your personal condition), and one rightfully wonders why.

  112. Anon February 29, 2020 7:22 am

    TFCFM,

    You continue with your posts of misdirection in your replies to Curious. Do you really think that such rhetorical games will convince any attorney reading the exchange? I cannot believe that even you could be that full of yourself or self-delusional.

    Favorite flavor of Jell-O….?
    Feigned outrage…?

    Your attempts at spin have been objectively and consistently noted. Your LACK of explaining YOUR points and consequent refusal to address points that are indeed pertinent (and cannot be classified as ‘flavor of Jell-O’ type of questions in ANY inte11ectually honest manner) is abundantly clear.

    The parlor tricks you employ may impress any of your personal non-lawyer friends, but here, they only emphasize your actual lack of experience with protecting actual innovators. What you do present as your knowledge of patent law (and Con Law) is surface knowledge at best. Yes, Article I is a delegation of authority. No one is saying otherwise. No one is parsing the legal directives NEARLY as much as you are — as it is you that selectively discounts portions that are ‘inconvenient’ for you and your current beliefs, sonny.

    Smugness, condescension AND being incorrect on the larger principles of patent law (and Con Law) at hand are a horrible combination for you.

  113. Curious February 29, 2020 11:14 am

    I realize you ignore that part of the sentence because you don’t like it and because it doesn’t align with the agenda you wish to push, but that doesn’t make the sentence go away
    I’m sorry, I don’t see how this introductory clause helps your position.

    As for the “exclusive rights” mentioned in the Constitution, I see how you’ve made no attempt to explain how the current patent system provides exclusive rights. Rather, you dodge the issue by manufacturing a distinction between “discoveries” and “mere application of cleverness.” If you cannot put a definition to “exclusive rights,” I want to see you describe the differences between discoveries and “mere application of cleverness” and also describe how these distinctions are supported anywhere in the (case or statutory) law. Good luck with that.

    You first write:
    the Supreme Court in the eBay case did not “remov[e] exclusivity from the bargain enshrined in the Constitution” (your words).
    and then you “support” this assertion by stating:
    Instead, it reversed the Federal Circuit’s practice of glossing over the standard for assessing awards of injunctive relief in patent cases, finding (as is indisputable) that Congress had never enacted a patent law that directs courts to assess requests for injunctions in patent cases differently than courts do in all other case.
    … while completely ignoring that the Supreme Court has removed exclusivity as a patent right for many patentees – reserving exclusivity only to those that meet the Supreme Court’s standard. Spin all you want, but when a patentee cannot have exclusivity to his/her invention based upon the application of a standard, then exclusivity has been removed. A right has been provided via the Constitution, yet the Supreme Court has blessed unequal application of that right. I know you are OK with rights being unequally distributed (particularly as you appear to favor those rights being granted to mega-corporations but not individual inventors and small companies) but I am not.

    The conditions that you (and the Supreme Court) want to apply to those exclusive rights disproportionately harm small inventors and small companies. Again, while you appear comfortable with this, I am not.

  114. Anon March 1, 2020 1:50 pm

    Curious,

    I believe that TFCFM’s comfort comes from his facile understanding of innovation protection principles (as well as of Constitutional Law).

    Note how jumps to criticize, but suffers of the exact thing that he accuses others of?

    He wants to “harp” on the notion that the Article I Section 8 Clause is ‘merely’ an allocation of authority (and then jumps to an odd — ‘but there is nothing there defined’ — view – at the same time wants to apply ONLY his view of what it means to promote.

    I have shared with him that the founding fathers understanding of ‘promote’ is not (and simply never has been) one of merely advancement along a technical path.

    I have shared with him the recent Connections show which highlights the other meaning of “promote” – equally covered by the Constitutional Clause (the Connections show can no longer really be considered ‘current day,’ although the principles therein DO remain current day).

    He accuses you of parsing things, then he turns around and parses the ‘shared back’ RE-allocation of authority first fully vested in the Legislative branch back to the Judicial Branch (and such ONLY in part, and strictly controlled by the words of Congress — and ALL of those words, not just the ones that TFCFM likes).

    He dismisses the very real Constitutional constraints on cross-branch shared authority – that are inconvenient for him – as merely some ‘desired feelings’ of mine. Such is simple but unfortunately substantial legal error on his part.

    Sadly too, the error is multiplied greatly when we — as attorneys, sworn in with a duty to place the Constitution ABOVE all three branches, fail in our duties to make sure that the highest level of the Judicial Branch remains bound for its own limitations of power (and the inherent checks and balances that control — including explicitly in the case of ‘principles of equity’ – that the authority is NOT without context and purpose. ANY application beyond the explicit (and to be tightly construed) authority is indeed ultra vires and without (proper) legal effect.

    There are indeed many who are comfortable with treating the Supreme Court as if they are above the Constitution, There are indeed many who are comfortable with having “principles” BE the rather principle-LESS ‘whatever the Supreme Court does or says.’

    I am not.

  115. TFCFM March 2, 2020 10:41 am

    Anon:@#108: “35 U.S.C. 283 Injunction.
    The several courts having jurisdiction of cases under this title may grant injunctions in accordance with the principles of equity to prevent the violation of any right secured by patent, on such terms as the court deems reasonable.

    …this is called a strict limitation on the power provided by the Constitution to one branch of the government being shared with another branch of the government.

    ???

    35 USC 283 is called a “statute” an is an authorizing statute. Just as the Patent Clause of the Constitution authorizes the Congress to write patent statutes (like section 283), section 283 is a statute whereby the Congress authorizes courts in patent cases to grant injunctions under certain circumstances.

    Just as the Patent Clause of the Constitution does not obligate the Congress to enact any patent statute (let alone any particular statute), so does section 283 not obligate any court to issue an injunction in a patent case. Instead, it empowers a court to do so, and carefully limits that empowerment to situations in which the “principles of equity” indicate that an injunction should issue. Moreover, the “any right secured by patent” that you highlight are the rights stemming from the statutes issued by Congress — not whatever ineffable “fundamental nature of patents” you might harbor in your mind.

    Simply put, the Constitution authorized the Congress to write patent laws. Congress chose to (did not have to) write section 283, authorizing injunctions under certain circumstances. Per the words of section 283, a court can choose to (does not have to) issue an injunction to prevent violation of a right granted by the patent statutes, but the court can only choose to do so “in accordance with the principles of equity.” Those principles include the principle that injunctive relief in inappropriate when money damages suffice under the circumstances.

  116. TFCFM March 2, 2020 10:49 am

    Curious@#113: “As for the “exclusive rights” mentioned in the Constitution, I see how you’ve made no attempt to explain how the current patent system provides exclusive rights.

    ???

    The current patent statutes define the exclusive rights that Congress chose to provide. I don’t know what further “explanation” you want than that.

    The Constitution, in effect, said, “Congress, you can make a patent system if you want to.” Congress decided that it wanted to, and made a patent system by enacting the patent statutes. Those statutes define the exclusive rights that Congress, exercising its enumerated power to do so, chose to grant to inventors.

    [My point regarding “discoveries” is merely that there are many, many thousands of details of a patent system that are not explicitly defined or mandated in the Constitution. The Patent Clause (all 30 or so words of it) was plainly not intended to specify all of those thousands of details, but rather to charge Congress with specifying details if Congress decided to implement a patent system. Among those details are the type(s), scope, and nature of the exclusive rights to be granted.]

  117. Curious March 2, 2020 11:02 am

    Anon:

    We (obviously) have different writing styles and consequently we oftentimes are saying the same thing albeit in very different manners.

    TFCFM is a patent-infringer-apologist. He has no interest in having the system work for everybody (big and small). He only cares about big (i.e., his likely employer) being able to take part in the patent system and small be damned.

    As you noted, he likes to criticize very discrete parts of our arguments and then goes silent when we address the flaw in his arguments. For example, he bemoans those that those that “‘set traps in the paths’ of other innovators who *actually apply* the innovations.” However, he doesn’t address the criticisms that there is no requirement that an innovator “actually apply” their innovations. It is not a Constitutional requirement for the grant of a patent right, and for reasons I discussed above, the modern economy has caused the increased bifurcation between manufacturing/implementing (i.e., “actually apply”) and designing (i.e., innovating). Research universities do not manufacture or implement their inventions. Rather, they are partnering with others who do. Many technology companies (I gave BASF as one example) are developing technologies but are licensing those technologies for others to use. There are very few industries where a single company develop products/services from soup to nuts. As a result of a global economy, companies are focusing on their expertise (whatever that may be). For some companies, it is manufacturing. For other companies, it may be design. For other companies, it may be integration. For other companies, it may be cutting-edge innovation.

    The antiquated notion that NPEs are necessarily bad, as implied by both TFCFM’s comments and the concurrence in eBay I noted above, just doesn’t hold water in today’s economy. There are many LEGITIMATE reasons why an innovator may not practice their own invention. However, they should not deserve less patent protection because they, for whatever reasons, have chosen not to do so.

    To the extent that a “patent troll” it is to be defined, let’s define it as a company that does nothing except acquire patent assets (from third parties) and assert those IP assets to generate a revenue stream, even these entities serve to Promote Progress. First, these companies provided cash flow to the innovators from whom the patent assets were acquired. This allows the innovators to be rewarded for their innovation. Second, assertion of patent rights (regardless of who does it) Promotes Progress. Road blocks force companies to either pay a toll to get around the road block or innovate themselves to find different ways around the road block Road blocks force companies to take paths they would never have taken had there not been the road block in place.

    While obstacles are the bane of copiers, obstacles challenge innovators to innovate more.

    When you see people complain about obstacles (TFCFM, we are looking at you), it isn’t hard to know whose side they are on — the side of the copiers.

  118. Anon March 2, 2020 1:46 pm

    TFCFM,

    I am repeating your own words back to you with certain items emphasized:

    Simply put, the Constitution authorized the Congress to write patent laws. Congress chose to (did not have to)…

    … no one is really saying otherwise — here you play the ‘dissection’ game, emphasizing a point as if that point makes a difference to the ongoing dialogue. It does not.

    write section 283, authorizing injunctions under certain circumstances. Per the words of section 283, a court can choose to (does not have to) issue an injunction to prevent violation of a right granted by the patent statutes,

    This IS a limitation for the (temporary) transfer of authority of one branch to another branch. You seem to be far too glib about this aspect.

    but the court can only choose to do so “in accordance with the principles of equity.” Those principles include the principle that injunctive relief in inappropriate when money damages suffice under the circumstances.

    And those circumstances include the very nature of the patent right itself. As I have laid out for you (and you have wrongfully dismissed as ‘mere want’ from me), those circumstances ARE ALSO a limitation on the cross-branch sharing of authority.

    I have repeatedly mentioned the difference between a negative right and a positive right. ALL that I get back from you on this point is “?” and dismissal. This distinction is critical to properly understanding ALL of the current problems in patent jurisprudence, and YOUR reactions clearly indicate YOUR lack of understanding. I am not your mother, and it is not up to me that you recognize your shortcomings, but you clearly celebrate these very shortcomings as if they were some ‘fountain of wisdom’ for you. I am truly amazed at the levels of your ego and at the same time, how undeserving of those levels you are.

  119. Anon March 2, 2020 3:49 pm

    Curious,

    I would correct one not so small error in your last post.

    While you state: “The antiquated notion that NPEs are necessarily bad, as implied by both TFCFM’s comments and the concurrence in eBay I noted above, just doesn’t hold water in today’s economy.” actually never held any water in view of the actual law (sonny!). That is, the words of Congress and the intent of Congress has always been of the nature that once the innovator’s inchoate right had been turned into a full set of legal personal property rights through the Quid Pro Quo, that THAT property was to be fully alienable. Additionally, what the patent right itself IS is merely a negative right and simply is not a positive right to engage in a positive action of making.

    I had shared with TFCFM these highlights previously (as well as a reference to PatentDocs that featured an award-winning historical written piece that explained this (unfortunately, I do not have a hyperlink).

    He (naturally) decided to ignore those points.

  120. Curious March 2, 2020 5:36 pm

    I would correct one not so small error in your last post.

    actually never held any water in view of the actual law (sonny!).
    This statement implies that I stated a position relevant to past circumstances — I did not. I felt no need to discuss past circumstances as what is relevant to today’s patent system is today’s circumstances. That being said, much of what can be said about “today’s circumstances” could also be said about circumstances from 15 or 25 years ago. Since our discussion involved the current patent system, I left it up to the reader to determine whether or not the same/similar logic applies to the past.

    He (naturally) decided to ignore those points.
    His most consistent attribute.

  121. Anon March 2, 2020 6:55 pm

    Thanks for the correction of my correction, Curious.

    Instead of “correction” then, let’s think of it as an augmentation.

    🙂

  122. angry dude March 2, 2020 10:28 pm

    Dudes,

    Do you think any of you are smarter than the Founding Fathers ?

    You know… dudes on your money … like George Washington, Thomas Jefferson etc etc

    Wtf this dishonest pos from a racketeering outfit dares to propose “rethinking” 230-year old US Patent System ?

    Why other countries like China or Germany have functioning patent systems and USA does not ?

    You know why… Pecunia non olet

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