Senator Thom Tillis: If IP Stakeholders Can’t Find Consensus, Congress Can’t Help

By Gene Quinn
May 5, 2020

“Last year, Senator Coons and I led an extensive effort to lay out a framework for Section 101 reform. At the end of the day, that process stalled because stakeholders refused to compromise. They let the great and perfect get in the way of the good.”

Thom Tillis

Senator Thom Tillis (R-NC), Chairman, Subcommittee on Intellectual Property

Senator Thom Tillis (R-NC) arguably has more pressing issues to focus on than intellectual property at the moment, as the nation scrambles to find solutions to the many economic and health crises caused by the coronavirus pandemic and COVID-19. And yet, Tillis has somehow managed to remain focused on IP, with recent movement in the areas of copyright and trademark modernization, as well as exploration into the implications of Allen et al. v. Cooper, Governor of North Carolina, et al.

I recently had the opportunity to catch up with Senator Tillis on the record, discussing his interest in intellectual property, the status of patent eligibility reform, the COVID-19 outbreak, copyright modernization, trademark modernization and the harm done by counterfeiting.

Without further ado, here is my conversation with Senator Thom Tillis, Chairman of the Senate IP Subcommittee.

You have focused extensively on IP; why? Where does this interest stem from? 

Before I ran for office, I worked for a number of years in technology and management consulting where I saw firsthand the value of intellectual property to businesses and the overall American economy. My private sector experiences taught me that intellectual property is fundamentally tied to American creativity and innovation. Our intellectual property system is one of the biggest reasons that the United States is the entertainment and technology capital of the world.

As you know, Gene, the state of North Carolina plays a major role in medical and technological innovation, as well as in publishing, music, and other areas of creative expression. Many North Carolina companies and institutions not only produce world-renowned products but also provide good, high-paying jobs to tens of thousands of North Carolinians. The American IP system provides crucial incentives to these North Carolina authors, inventors, entrepreneurs, and a fleet of other entrepreneurs.  Without strong intellectual property protections, why would anyone invest the substantial time and money to innovate pharmaceutical solutions to deadly diseases or develop a life-changing new technology or create a culturally enriching piece of entertainment?

You’ve indicated elsewhere that, without compromise, patent eligibility reform is “dead on arrival,” and now the Supreme Court has effectively indicated that it will not fix any of the problems either, having denied 50 or more petitions for certiorari, including cases asking the Court to reconsider its prohibition on patenting medical diagnostics. What do you say to patent owners and stakeholders who are left to struggle with the confusion in the meantime? Is there any recourse/ hope for them?

This is an important issue and I am glad people are still asking this question, however, my answer has not changed. Last year, Senator Coons and I led an extensive effort to lay out a framework for Section 101 reform. At the end of the day, that process stalled because stakeholders refused to compromise. They let the great and perfect get in the way of the good.

Stakeholders must find a consensus amongst themselves. The way the current jurisprudence sits, there’s almost no incentive to develop new, innovative diagnostic testing methods or other life-saving treatments. As the COVID-19 pandemic is unfortunately showing us, having these tests in the pipeline are crucial for public and economic health, well-being, and safety. I hope stakeholders will come together and compromise. I’m ready and willing to work with them to address all legitimate equities and fix this problem.

But, until that happens, I do not see our Subcommittee spending any more time on the issue.

Do you think the COVID-19 outbreak could potentially lead Members of Congress to rethink patent eligibility for life science related innovations in general? For at least medical diagnostics, specifically?

Right now our focus is on preventing the spread of this virus and making sure people can afford to buy food and pay rent. But what I do know is that without the life sciences companies who have stepped up to the plate and worked tirelessly to develop diagnostic tests, therapeutics, and eventually a vaccine to COVID-19, America would be in a much worse position than we are today.

I hope Congress realizes now, more than ever, how important a role America’s life science and biopharmaceutical companies play in our national well-being. We have to make sure we have smart policies in place that both promote innovation and development in this area and provide Americans access to crucial, life-saving drugs and treatments. We’ve got to get the balance right, and we have to keep America as the number one innovator in this space. Our national security, our economy, and our health depend on it.

What was most surprising/educational for you about the process of trying to reform the patent system? 

What most surprised me was the argument by some that the question of subject matter eligibility is more appropriate for the courts to answer, and not Congress. I fundamentally disagree with that argument. It is Congress’ job to legislate and decide what’s worthy of patent protection. This is especially true in an area as technical as subject matter eligibility. For years we have seen that courts are not equipped to answer this question, and only Congressional action is going to fix this mess.

In November, the House IP Subcommittee held a hearing to consider appropriate actions in response to the Federal Circuit’s decision in Arthrex v. Smith & Nephew, which found that Patent Trial and Appeal Board judges had not been constitutionally appointed. Does the Senate IP Subcommittee plan to hold any such hearings or otherwise take any action to address this?

Not at this point. The IP Subcommittee began 2020 with an ambitious agenda focused on copyright review and reform, including eight hearings on the Digital Millennium Copyright Act. DMCA reform is an issue of critical importance to copyright owners, but it’s also incredibly complicated and requires careful attention. So that is what the Subcommittee began the year focused on.

What outside of patent reform are you currently most concerned about with respect to U.S. IP rights and protection?

That’s a great question, Gene. Copyright reform is at the top of my list. With the exception of the important changes brought by the Hatch-Goodlatte Music Modernization Act in 2016, most aspects of the U.S. copyright system are based on understandings of the creative content industry that are nearly half a century old; the technological assumptions of U.S. copyright law aren’t much more contemporary: the DMCA was enacted in 1998, but most of the statute’s technological assumptions date back to the 1970s, and even the DMCA’s solutions to adapting to technological changes – revolutionary at the time and critical to the early development of the internet – have in recent years shown significant wear and tear.

Senator Tillis at Halloween Dog Parade in the Hart Atrium

In addition to the DMCA reform, I have also been very concerned with modernizing the U.S. Copyright Office so that it can better serve authors and copyright owners as well as the public. Another copyright issue I’m concerned about relates to the gap in criminal copyright law that treats criminal streaming as a misdemeanor but criminal reproduction or distribution as a felony – I’m hoping to patch this loophole, particularly as illicit streaming has become the most pervasive and costly form of copyright piracy. Finally, prompted by a Supreme Court decision in March, Senator Leahy and I just asked the U.S. Copyright Office and the U.S. Patent and Trademark Office to study the frequency with which States infringe copyrights, patents, or trademarks and then claim State sovereign immunity under the Eleventh Amendment of the U.S. Constitution.

Does it worry you that it has become so easy to pirate and counterfeit and plagiarize? It seems as if many are growing up in a world that simply doesn’t respect intellectual property rights specifically, or content creators and inventors more generally. Do you think more than legislation is needed to counter such a cultural shift? 

We lose a lot as a society when we don’t value the hard efforts of creators, entrepreneurs, and innovators. As the United States economy moves up the value chain in products and services, much of the value add comes from the original creative side, in the product origination and development. These inventors and innovators are the people that in many ways embody the American spirit – the desire to create or innovate where no one has before, the eyes to identify a demand or need, and the intellectual ability to turn an idea into something that can change lives and fuel economies. Congress plays an important role in crafting the IP system, but I don’t necessarily think that cultural shifts can – or should – be corrected by government regulation. Nor do I think that Americans on the whole now support piracy or devalue the intellectual creations of others. Rather, our American values cherish the ingenuity of innovators and our laws are, on the whole, designed to promote intellectual output while leaving space for appropriate uses by others. The culture of piracy remains an aberration from these American values, and one that can be appropriately curbed by strong IP protection, including periodic updates to our IP laws.

Will the Senate IP Subcommittee be looking into counterfeiting issues at all this term, and what might that look like?

Though the IP Subcommittee currently has no hearings planned on counterfeiting, I remain very concerned with the dangers that counterfeits impose on American businesses and individuals. Thousands of American businesses suffer billions of dollars in losses every year due to counterfeits. But counterfeits also endanger public safety, whether we’re talking about a flimsy knockoff bicycle helmet or phony personal protective equipment (PPE) such as N95 masks. As our country battles the COVID-19 pandemic, the dangers of counterfeit goods are particularly poignant. I have been encouraged by efforts from the Department of Justice and Department of Homeland Security to seize counterfeit PPE coming in from China. Even before the coronavirus was detected within our borders, I joined Senators Chris Coons, Bill Cassidy, and Mazie Hirono to introduce bipartisan legislation to ensure that U.S. Customs and Border Protection has the authority to seize merchandise that infringes on design patents so we can take steps to stem the flow of counterfeit goods and protect American interests. The Counterfeit Goods Seizure Act of 2019 would help reduce the importation of counterfeit goods and in doing so protect U.S. consumers and businesses from dangerous, harmful, and illegal products.

Some, perhaps including myself as a publisher and content creator, think the only way to really address the issues of pirating and counterfeiting and plagiarism that are so rampant on the Internet is to reconsider the immunity granted to platforms. That obviously opens up a can of worms for many reasons, but is that something that will be on the table for discussion?

As I stated in an op-ed last December announcing the DMCA review, the IP Subcommittee is looking to re-forge the consensus that originally powered the DMCA and craft new legislation to modernize the DMCA for today’s internet. My goal is to revise the DMCA so that technologists and copyright owners have a shared stake in each other’s success. This was a goal of the DMCA when Congress enacted it in 1998, but many feel that the balance of interests has gotten way out of whack. I’m not sure what that will end up looking like – we’re two hearings into this process – but it will be something that works for both copyright owners and online service providers.

If you had a magic wand and could make it so, what specific IP successes do you hope to deliver over the short-term? What specific IP successes would you like to achieve longer term?

Over the short-term, I plan on introducing the Copyright Office Modernization Act, and would like to see that become law. Likewise I am co-sponsoring the Trademark Modernization Act, and would like to see that enacted.

Over the longer term, I still would like to see patent-eligibility reform and DMCA reform. At this point, patent-eligibility reform will need that magic wand. Everyone needs to compromise if we are going to get any patent-eligibility reform done, and I encourage stakeholders to work on a consensus-driven approach with Sen. Coons and me. DMCA reform also will require compromise from stakeholders if we are going to eventually move forward with consensus-driven legislation that balances the interests of copyright owners and online service providers. But I’m optimistic that we can get there, and I’m looking forward to learning a lot from witnesses at our upcoming hearings.

 

The Author

Gene Quinn

Gene Quinn is a Patent Attorney and Editor and President & CEO ofIPWatchdog, Inc.. Gene founded IPWatchdog.com in 1999. Gene is also a principal lecturer in the PLI Patent Bar Review Course and Of Counsel to the law firm of Berenato & White, LLC. Gene’s specialty is in the area of strategic patent consulting, patent application drafting and patent prosecution. He consults with attorneys facing peculiar procedural issues at the Patent Office, advises investors and executives on patent law changes and pending litigation matters, and works with start-up businesses throughout the United States and around the world, primarily dealing with software and computer related innovations. is admitted to practice law in New Hampshire, is a Registered Patent Attorney and is also admitted to practice before the United States Court of Appeals for the Federal Circuit. CLICK HERE to send Gene a message.

Warning & Disclaimer: The pages, articles and comments on 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 61 Comments comments. Join the discussion.

  1. Model 101 May 5, 2020 5:33 pm

    He gave in to the 101 infringement narrative. Can’t agree so let everybody infringe!

    The easiest answer of all.

  2. Pro Say May 5, 2020 5:53 pm

    Thanks Gene and Senator Tillis.

    Now please help us beleaguered inventors understand — when you say, “that process stalled because stakeholders refused to compromise.” — just exactly what needs to be compromised?

    Isn’t the restoration of patent eligibility for all areas of innovation what our nation needs? You know what we’ve had since our Nation’s founding? What America has since our birth always been known for the world over? What we’ve always stood for?

    The restoration of how things were before the job-, new company formation-, and indeed Americans life-killing Mayo and Alice decisions can’t be really be controversial, can it?

    What am I — and my 1,000’s of fellow inventors — missing here?

    Please help us understand.

    Thank you.

  3. Ternary May 5, 2020 6:00 pm

    Compromise on what? Why should all being dissatisfied with Alice/101 have to accept an unclear and undefined change in a publicly undefined compromise? I find this a severe lack of backbone and insight. Who are demanding this “compromise?” Why is it needed? Can we only have less carbon emissions by allowing more chemical pollution? What political nonsense. Yet another excuse for Congressional inaction.

    Tellingly, Sen. Tillis wisely stays away from telling what that compromise should be and who is pushing for it.

    His position would have considerably more weight if a patent law expert, let’s say like Judge Michel, would bring up problems with 101 in combination with let’s say problems with 112. But no such experts have come forward, of course.

  4. Anon May 5, 2020 7:42 pm

    The word “compromise” has no place in wheeling a large wooden horse to be within the city walls.

    Instead, a critical eye should have been cast at those merely saying that they too want to ‘fix’ the mess of patent eligibility, when those same entities offered ‘compromises’ that only moved or worsened the problem.

    The right answer would have been to say: Right now we are fixing the KNOWN mess.

    After we get that done, THEN we can discuss other matters.

    Folding – as was done, only guarantees that the next time action is contemplated, EVEN MORE ‘compromise’ will be demanded.

    Sadly, I think that Congress needs a different champion in order to do what only Congress can do.

  5. Jason Lee May 5, 2020 8:37 pm

    Gene that was soft, where are the hard hitting questions? Im a fan Gene, but this interview was weak. We know Tillis is paid by Big Phama and it seems the carve out he was trying to get was blocked by Sen Coons. There is no accountability! Big tech and Big Pharma need to be broken down and special interest dollars need to be taken out creating the laws. Government needs to protect the majority not the corporate minority that runs the Government. U.S.A Good old Corporatocracy.

  6. Mike May 5, 2020 11:43 pm

    “I’m ready and willing to work with [stakeholders] to address all legitimate equities and fix this problem.”

    Really??? What happened behind those closed doors, Tillis? I’m with Anon. Unless you confess who this other party is and what they want to compromise on, Congress needs a different champion.

    I know that the guys at US Inventor are willing to meet at that table. You must invite them…including the party(ies) you say want a compromise.

  7. Lost In Norway May 6, 2020 5:37 am

    I have to agree with people’s reaction to “compromise”. Compromise should have been between the members congress to get some reform done. It should not be between congress, industry, and patent holders. Sure, congress can listen to the affected parties on both side, listen to the law experts, and then sit down and hammer something out. It’s not an issue of making people happy, it’s an issue of fixing this mess.

  8. Martin Nguyen May 6, 2020 11:54 am

    Did Senator Tillis refer “compromise” here to working out between big businesses and independent inventors? For instance, when it comes to PTAB reviews, patent protections, and patent litigations, there is a separate set of rules for big corps, for foreign companies, and for independent inventors.
    Please advise!

  9. CD Croan May 6, 2020 12:56 pm

    Sometimes the answer has to be a hard no.

    No, to monopolistic interests. No, to the lobby money. No, to efficient infringement.

    With the “but, you have to compromise” rationalization we’d have seen Winston cede southern England to Adolf. Instead the “infringer” got the hard no.

    As usual, money talks or in this case dictates. But they have to contend with a good Director at the USPTO. The last hope to the “little guy”.

  10. Mike Archbold May 6, 2020 1:26 pm

    Who cares what he says? He voted to acquit a president who carried on abuse of office and obstruction of Congress in plain sight. Vote the GOP out of existence.
    https://www.tillis.senate.gov/2019/12/tillis-statement-on-house-impeachment-vote

  11. Josh Malone May 6, 2020 3:49 pm

    My understanding is that Senator Tillis does not believe it is equitable for accused infringers to go through claim construction and motion practice to prove that a patent is invalid under 103 or 112. Several witnesses at the hearings last summer openly admitted that §101 is being used as a shortcut:

    Paul Gugliuzza – “the eligibility requirement, though imperfect, plays a crucial role in reducing litigation costs by giving courts a mechanism to quickly dismiss infringement claims that plainly lack merit”

    Mark Lemley – “patentable subject matter is treated as a pure question of law, which means that it has often been possible to eliminate ineligible patents on a motion to dismiss before spending much money on litigation or discovery.”

    Alex Moss – “Making early dismissal under Section 101 possible has only brought minimum levels of fairness and a playing field closer to that found in other types of litigation in patent cases by giving those who are wrongly accused a way to have their cases decided on the merits without risking their businesses or livelihoods.”

    I am in complete agreement that we need a speedy and fair way to resolve these disputes.

    In the status quo it takes an infringer two filings, 6 weeks, and ~$100K to win a case.

    In the status quo it takes an inventor 1,500 filings, 10 years, and ~30M to win a case.

    So a compromise would be somewhere between those two scenarios.

  12. Pro Say May 6, 2020 7:50 pm

    Thanks Josh @ 11.

    Gene — can you please let us 1,000’s of readers know if Josh is correct (assuming you know)?

    And if so, just what specific compromise is Senator Tillis looking for that would address his (unfortunate) concern?

  13. anonymous May 7, 2020 12:02 pm

    What a cop out, Sen. Tillis. Congress has a DUTY to exercise its constitutional authority to set patent policy, not to let the judiciary usurp that authority by conjuring so-called undefinable “judicial exceptions” to statute.

    Congress has a duty to:
    1. Do that which is right
    2. Make clear law
    3. Exercise its constitutional authority

    If parties with opposing interests were able to agree, there would be no need for patents, courts, or lawmakers at all. We’d all just agree through some magic compromise.

    The compromise that concerns me is the subcommittee’s compromised integrity. Tillis and the subcommittee know there is a problem with 101 and the courts. They know how to fix it and why. But they won’t, specifically because the Efficient Infringer Lobby has gotten to them, plain and simple. Congress is run by Apple, Amazon, Google, Microsoft, Facebook, and others.

    Why bother holding the June 2019 hearings, then do nothing about the problem? How much more civil, well-articulated, objective evidence is there than testimony from Judge Michel? Or Judge Plager, in the Interval Licensing dissent, telling you the law is broken, that “there is no need, and indeed no place in today’s patent law, for this abstract (and indefinable) doctrine.”

    The legal system and the constitutional role of Congress also stands compromised. Doing nothing to fix 101 is the purposeful ceding of the responsibility of Congress.

    Why not amend 35 USC to say only “A patent is valid in sole the discretion of the court” since that is where Congress has left it? That, sir, is the compromise you’ve struck, and it is wrong. Judge Plager told you, literally, “The Emperor Has No Clothes.” The law is not even able to be articulated, much less predictably applied.

    Congress’ failure to act cannot be blamed on “stakeholders” for a failure to compromise. It is a thinly disguised euphemism for the Efficient Infringer Lobby being your puppetmaster. Time to cut the strings. The “stalled” lawmaking process has nothing to do with innovators looking to protect their property, but rather with the fictitious back-room negotiating table where only Congress and the Efficient Infringer Lobby sit. End the charade.

    Only Congress can fix the 101 problem. End your fake excuses and do that which is right.

  14. Josh Malone May 7, 2020 1:51 pm

    I agree that this is a confounding legislative process to ask workers to compromise with freeloaders over our the product of the labors of our minds.

    However, there is an elephant in the room that has not been acknowledged. A substantial majority of the population and Congress do not believe that software implemented inventions should be entitled to 17 years of exclusivity.

    The unstated pre-conditions for any legislation are therefore:
    1. Previously issued patents for software implemented inventions shall not be enforceable; and
    2. Future patents for software implemented inventions:
    a. shall not be issued; or
    b. shall not be enforceable.

  15. Anon May 7, 2020 2:50 pm

    Josh,

    I call B$ on the supposed “substantial majority” AND your proposed fixes.

    That has to be one of the worst ever posts from you.

  16. Curious May 7, 2020 3:08 pm

    At the end of the day, that process stalled because stakeholders refused to compromise. They let the great and perfect get in the way of the good.
    There is no compromise when the stakeholders of one group (big-tech) has no interest in compromising. The big-tech group (e.g., Google, Microsoft, Facebook) have essentially won and are happy with the status quo. If you are a small tech company with great technology trying to break through against the likes of these companies, you are essentially screwed these days.

    Just as a single example, Look at what Google and Facebook are doing to Zoom. Because Google and Facebook are so big (and have so much cash), they’ll basically take Zoom’s technology and give it away for free. Google and Facebook will make money off the ads that they serve on their platforms. Essentially, the big tech players can do this to just about any new technology that comes down the pike. They’ll wrap it up in their platforms (which already have hundreds of millions of built in users) and the innovators get left with nothing.

    In the past, these innovators would be able to file for patent infringement (assuming they obtained patents, which many have) and perhaps get an injunction. However, forget that injunctions are mostly off the table, the greater likelihood is that these patents will be declared as being directed to abstract ideas by the Federal Circuit. With no patents to worry about, the likes of Google, Facebook, and Microsoft can acquire whatever technology they want.

    Of course, they aren’t interested in compromising. They already won. Why would they be interested in giving up one of their competitive advantages in order to generate a more robust innovation economy and promoting entrepreneurship? Their allegiance isn’t the United States and what is best for this country — their allegiance is to their shareholders. Acquiring technologies from others FOR FREE is in the best interest of their shareholders.

    Compromise isn’t going to happen, and if that is the thing is holding up reform, then we might as well accept the status quo. The likes of Google, Facebook, and Microsoft aren’t getting any smaller, and their lobbying budgets are only going to get bigger and bigger. Congress has a choice — they can do what is best for Google, Facebook, and Microsoft or they can do what is best for the United States, as a whole. You cannot please everybody, but I do know who Congress is pleasing right now by doing nothing — those that are perfectly happy with the status quo.

  17. Ternary May 7, 2020 6:35 pm

    @14 Josh and @15 Anon
    I understand Josh to try making explicit what drives the opposition to fixing 101. I did not understand Josh to actually support these remedies, which make no sense in view of his previous remarks. But I may be wrong and in that case I am also extremely disappointed.

  18. Pro Say May 7, 2020 7:22 pm

    Big and totally unexpected “ouch!” Josh @ 14.

    All innovations, regardless of field or category, are equally entitled to patent eligibility.

    What if the balloon filler you’d invented included software, a computer, or the internet in order to, say, control the balloons’ fill rate . . . control such fill rate from a distance . . . maximize the amount of water in each balloon without the balloons popping . . . automatically reduce the incoming water pressure if and when one or more of the balloons’ pop in order to prevent any more from popping . . . and/or a whole host of other functionalities?

    Wouldn’t you want and expect the exact same patent protection you have now?

    As time goes on, more and more “old school” innovations are incorporating computers, software, AI, machine leaning . . . and technologies yet to be invented or even thought of.

    We cannot, we must not, splinter patent protection.

    Because no one knows what the future hold for innovations, ALL inventions are and must remain patent eligible.

    ALL.

  19. jacek May 7, 2020 8:24 pm

    So without consensus reached between the Wolf and the Sheep, “compromise” is not possible.
    Why would Wolf would be willing to “compromise” having a mouth full of sheep meat?
    Interesting how he wiggled out of the question regarding online platforms’ immunity.

  20. Curious May 7, 2020 9:01 pm

    However, there is an elephant in the room that has not been acknowledged. A substantial majority of the population and Congress do not believe that software implemented inventions should be entitled to 17 years of exclusivity.
    LOL, the vast, vast majority of the population is entirely ignorant of the issue and have no opinion. If you spent 25 years or so listening to people telling you about their great ideas that they would like to patent (as I have), you would realize that the general populace has a VERY expansive view as to what constitutes patentable subject matter.

    The unstated pre-conditions for any legislation are therefore:
    1. Previously issued patents for software implemented inventions shall not be enforceable; and
    2. Future patents for software implemented inventions:
    a. shall not be issued; or
    b. shall not be enforceable.

    Congratulations, you are a tool for the likes of Facebook and Google, who want nothing better than to crush any small tech company with a patentable idea.

    Without the power to prevent these companies from “co-opting” (a nicer word than stealing) their technology, how do you expect any startup to compete with the likes of these companies? They have built-in advantages that no startup could even hope to compete with. All these companies have to do is take whatever software is created by the startup and make it free on their platforms. They’ll figure out how to make money on it elsewhere.

    We all appreciate the battles you fought with your own patents. However, throwing software innovators under the bus with regard to 35 USC 101 is not going to win you any friends. There are far more people concerned about patent eligibility of software than they are are about the struggles of low-tech inventors.

  21. Josh Malone May 8, 2020 12:24 am

    I didn’t bring the elephant and I don’t agree with the preconditions. It is just an observation.

  22. Josh Malone May 8, 2020 12:27 am

    I have a suspicion that big tech wants software patents for themselves but not for you and me. Hence their requirement that software patents shall not be enforceable.

  23. Concerned May 8, 2020 6:46 am

    I have a patent application that has a solution and that solution includes a computer.

    The solution was not the computer, the solution was the inventive concept regardless of the use of the computer. And the inventive concept is not used in any field of commence, with or without a computer.

    A few people I never have met are following the outcome of my application because I feel it will answer an important question:

    Will any solution that happens to use a computer be patentable and enforceable regardless of what the solution achieves and regardless if the inventive concept has never been used on Earth?

    The USPTO has deferred this question to the courts even though my first examiner told me verbally three times my process is patentable. My second examiner told me twice in writing that it solved a long sought business problem.

    Yet the rejections were unsubstantiated and illogical on the surface, I suspect to force my process to the courts.

    Mr. Malone statement @ 22 is most likely the real hidden agenda.

  24. Curious May 8, 2020 11:54 am

    Mr. Malone statement @ 22 is most likely the real hidden agenda.
    That is hardly a “hidden” agenda of software companies. It is been plain as day for many of us for a very long time.

  25. Josh Malone May 8, 2020 3:20 pm

    Here is another outrageous proposal.

    If Congress does not wish for inventors to have exclusive rights to toy inventions, they should vote to make toy inventions ineligible for patenting. If Congress does not wish for inventors to have exclusive rights to software inventions, they should vote to make software inventions ineligible for patenting. If Congress does not wish for inventors to have exclusive rights to COVID-19 treatments, they should vote to make COVID-19 treatments ineligible for patenting. Same goes for mathematics, mental processes, exercising pets, proposing marriage, gambling, or any other type of innovation for which they do not wish to promote progress.

    They should quit scamming inventors and encouraging the USPTO to issue fake patents that cannot be enforced.

    Just vote up or down. We may have exclusive rights or we may not have exclusive rights.

    If they really want to do their jobs, make it a roll call vote.

  26. Ternary May 8, 2020 3:37 pm

    The interest of the incumbents is hidden (let’s say thinly veiled) by so-called “interest in high-quality patents” promotions. Almost all who read and comment on this site know what is going on. There is zero interest by these “promoters” to allow inventors to easily amend or correct faulty patents. Why? Because there is zero interest for anyone but themselves to have a valuable patent.

    It is if incumbents proclaim: We would be more than happy to abstain from infringement or pay reasonable fees to patent-owners IF ONLY THE PATENTS WERE OF HIGHER QUALITY.

    Everyone on this and the other blog knows this to be horse manure. Still, almost every person beholden to an interest group maintains as official agenda that their interest is “to protect the fruits of American ingenuity” and to pursue “the highest quality patents.”

    By cherry picking certain cases, a narrative has been created that many if not most patents asserted by small companies and private inventors are flawed and of low quality. Even though most of those have clearly been infringed. So, the patent may be of low quality, the covered inventions clearly are not.

    By having to fight a front that proclaims interest in “high quality patents” this has become a continuing and losing struggle to salvage our patent system, which step-by-step-by-step is going down the drain.

    So while there clearly are “official talking points” the real agenda is “hidden” to keep confusing the uninitiated. And with great success. Just read this “holier than though” interview with Sen Tillis. It really is the inventors fault, who do not want to compromise. It is clever politics, but miserable policy.

  27. Mike May 8, 2020 11:46 pm

    What was the general consensus of the 45 stakeholders who were invited to testify?

    Did they generally agree that SCOTUS mucked up Section 101? (Y/N)

    Did they generally agree to include 112 in the proposed framework? (Y/N)

    Start with that Tillis, and quit making up false stories that there wasn’t agreement amongst your selected stakeholders.

    Someone please grab the testimonies and report back.

  28. Model 101 May 9, 2020 12:04 pm

    Senator Tillis is letting infringers make the (past and present) patent laws. Infingers make the patent laws America, not Congress. The senate, couldn’t be bothered. Let’s face it – Senator Tillis would never let the inventors beat the infringers. He would never get re-elected. He should be voted out for putting his own personal political interests ahead of American innovation.

  29. Randy Landreneau May 11, 2020 2:09 pm

    Consensus is almost never on the right side of history. Based on consensus, we wouldn’t have had the American Revolution. The issue should only be what is right for the future of this great nation, and Senator Tillis and others should not be influenced by the same characters who were behind The America Invents Act.

  30. Jeff Hardin May 11, 2020 9:12 pm

    @Randy. So true. We don’t live in a democracy. We live in a democratic republic. This is because our founders knew that might does not make right. Right makes right, and those who are elected should be able to tell the difference.

    What is wrong is that the High Court and the courts continue to ignore the people and their elected representatives on Section 101. See the paper by Knowles and Prosser. Knowles testified last summer in the hearings. Congress needs to abrogate our their bad decisions and set the record straight on Section 101.

    Also what is wrong is the intent of the AIA is being misread by the courts, most recently in SCOTUS’s Thryv ruling. The AIA included a sense of Congress stating the intent was to protect small businesses and inventors from predatory behaviour. It was never about “bad patents” as J. Ginsburg wrote. Now that we are 9 years in, the AIA clearly missed the mark and threw our the baby with the bathwater. It demands a second look and a carve out for inventors who own their patents. These inventors are not the dreaded patent trolls. They are the source of innovation in this country.

    It really is that simple.

  31. Anon May 11, 2020 9:26 pm

    and a carve out for inventors who own their patents

    Making the substantive nature of the property right be dependent on just who the owner of that property may be is an utter bastardization of one of the principle foundations of the US patent system.

    Such is an absolute non-starter.

    And this comes from one of the most vocal advocates of a strong patent system.

  32. Jeff Hardin May 12, 2020 6:37 am

    @anon

    We already live in a world where “the substantive nature of the property right [is] dependent on just who the owner of that property may be” with today’s US patent system.

    So, thank you for pointing out how the AIA created an “utter bastardization of the founding principles of one of he US patent system.”

    I remind you that a patent system itself at its origin was designed to create a carve out for Inventors. But what we have today is the opposite. Publically disclosed ideas by Inventors with the intent of being protected are now exposed, challenged, and stolen, all to the detriment of the Inventor.

    A carve out for these Inventors is not a “second wrong” to make a right; it confronts the reality that Congress will not undo the AIA and provides Inventors an incentive to innovate without being trampled by bigger fish who efficiently infringe.

    If you can offer something else that is politically viable, I’m all ears.

  33. Anon May 12, 2020 7:10 am

    Jeff,

    If you have been around the patent blogs for any length of time, you would know that I am no fan of the AIA.

    That said, two wrongs simply do not make a right, and further breaking the system is simply not the way to go.

    A carve out for these Inventors is not a “second wrong” to make a right;

    You are absolutely wrong on this point. You do not get to make up your own facts.

    Confronting reality has nothing to do with why the fact is — and remains — that the path you want is not how the US built its innovation protection engine.

    I have also spelled out how it will not even give you the benefit that you think that it will. Making the patent property non-alienable will not be the panacea that you think it to be. The aim of such is not even the full set of “inventors” as has been touted. Rather, it is the much smaller subset of inventors who both invent and who commercialize items protected by patents.

    You preach a false hope, and one that I will always vehemently object to.

  34. Jeff Hardin May 12, 2020 12:45 pm

    @Anon:

    “If you have been around the patent blogs for any length of time, you would know that I am no fan of the AIA.”
    I have, and I know.

    1. Please explain how what I have said here indicates “making the patent property non-alienable”. You do not get to make up your own facts.

    2. I await your offer of something that is politically viable.

  35. Anon May 12, 2020 5:39 pm

    By tying substantive powers to the status of owners you make any defeasing (transfer) problematic because you remove the ability to transfer the entirety of the property.

    I make up NO facts — I am merely more aware of the legal ramifications than you appear to be.

    In posts past directly on this topic I have spelled out a number of these types of issues. I will not re-explicate the entire reasoning each time this topic pops up on a new thread.

    As to 2., you rather miss the point of the condemnation of Senator Tillis here. “Politically viable” is nothing more than Orwellian doublespeak for not doing what needs to be done. IF the reasoning provided is merely accepted at face value, then NO resolution that defeats the agenda of the Efficient Infringer will ever advance —- including yours if it is deemed to harm the Efficient Infringers. The only way yours DOES advance is because the Efficient Infringers recognize it’s drawbacks more than you do.

    To turn the Senator’s phrase back to him: the mere ‘good’ would be the enemy of the necessary, in restoring the greatness of the US innovation protection system.

  36. Jeff Hardin May 13, 2020 1:05 am

    The Constitution makes no mention of entities other than “Authors and Inventors” in the securing of the exclusive Right to their Writings and Discoveries. For some, perhaps that is too radical for “doing what needs to be done”.

  37. Anon May 13, 2020 7:53 am

    Jeff,

    That is a non-sequitur to the point at hand of the property right created FROM the inchoate rights of individuals being meant to be fully alienable.

    No one – least of all me – is saying otherwise** that the inchoate right starts with that self-same identity that you mention in your post at 36. However, starting there does NOT mean ending there. Other legal considerations are – and must be – brought to bear; notably, the laws concerning property and transfer of property.

    Your position remains at odds with these fundamentals.

    ** a separate (and emerging) discussion has to do with legal definitions of ‘invent’ – notably there, the legal definition includes a subset of ‘conceive.’ The emerging field of AI currently provides a situation in which a putative invention may well have NO legal inventor because of the subset lack of a human conceiver. That discussion should not be confused with the discussion here and the point here that the legal chain of title from holder of an inchoate right, through the maturity of that inchoate right into a full set of property rights is — and has always been meant to be — fully alienable.

    You start messing with making substantive elements of that property right NOT be fully alienable at your own peril. Especially if you are not even aware of the legal nature and consequences of property law.

  38. mike May 13, 2020 8:17 pm

    @anon: I always value your posts and insight. I see your point, but I also see Jeff’s. What Jeff mentions might very well be the point at hand if the the exclusive right secured to inventors cares not of the ability to transfer it.

    So, question for you: How do we know that the property right created from the inchoate rights of individuals is meant to be fully alienable?

    @jeff: I appreciate your efforts for inventors like me. I see your point, but I also see anon’s. Removing the ability to transfer the entirety of the property might be problematic.

    So, question for you: Are you saying that because the constitution says the right secured to inventors is an exclusive right, the text provides for this right to be non-alienable (e.g. if Congress deems it so)?

    No matter where each of you stand on the relationship between this “exclusive right” and the product provided from the USPTO that we call a “patent”, inventors (and patent owners) today do not have an exclusive right to their discoveries by way of that product. Today that product is a revocable public franchise and does not grant the right to exclude others from their discoveries, no matter the size of the inventor/owner. (I would add that the more financially enabled the patent owner is, the easier it is to exclude others, which doesn’t seem fair to me.)

  39. Anon May 13, 2020 10:29 pm

    mike,

    Over at another patent blog (PatentDocs), awhile back there was an article by award winning HISTORICAL article on the formation of the (then special) US patent system. This article was researched and written by historians — not by legal wonks or people with a desired spin on what patents should be today.

    This resonated deeply with me. As I have noted previously, way back when I was obtaining my engineering degree, I had a minor in the history of science and technology. I have been an advocate for innovation throughout every step of my career, from an engineer and innovator, through being a leader and manager of innovation teams, to being able to champion and create the legal protection for innovators.

    Being able to transfer is — and always has been — a critical part of the US innovation protection system. This has allowed those who would choose to solely innovate to be serial innovators. Sure, this does not ‘define’ everyone, but I am sure that you can agree that the CHOICE to be a serial innovator — or not — is far better than removing that choice with a (boobytrapped) LACK of choice in setting substantive rights tied to a particular status of ownership.

  40. Anon May 14, 2020 8:55 am

    mike,

    Let me also add that I am NOT saying that Jeff’s desire fails to meet some type of Rational Actor test.

    By that, it may be easy to understand that Jeff ‘has a point’ in wanting what he wants – that a Rational Actor may well rationally advance the view being advanced.

    But that is not the critical driver.

    Efficient Infringement is entirely rational by the Rational Actor test.

    It is also entirely wrong — in view of what protecting innovation is all about.

    Seeing Jeff’s point is simply not enough.
    Not by a long shot.

  41. mike May 20, 2020 8:58 pm

    @anon:

    OK. Thanks for all your background info, but still, how do we know that the property right created from the inchoate rights of individuals is meant to be fully alienable? I don’t think you answered that question other than saying that the ability to transfer is and has been a critical part of the US innovation protection system. Sure, the ability to transfer might be a part of our CURRENT system, but this is only because Congress deems it so. (For example, just because something has been a certain way, that doesn’t mean is should or can stay that way. This was argued in Oil States regarding Article III, but SCOTUS said that Congress simply changed their mind and had the power to do so. Also, the right to fully exclude others by way of a patent was once part of our US innovation system, but that is no longer the case, and Congress doesn’t care to address it.) The Constitution says that the exclusive right is to be secured to the Inventor, not to other parties, so I’d like to know how one might know for certain that the property right created from the inchoate rights of individuals is meant to be fully alienable, especially when the Constitution does not say so.

    Regarding “Jeff’s desire”, has he actually stated his desire here? All he said was “carve out for inventors”. He mentioned the Constitution, but it appears that was in response to you. He did not specifically spell out what that carve out should be. Just adhering to his text without reading into it.

  42. Jeff Hardin May 21, 2020 2:34 am

    Mike @ 38 & 41:

    Thanks for your question. Yes, I said in this thread “a carve out for inventors who own their patents”.

    It appears that Anon assumes that by my saying this that I have somehow “[tied] substantive powers to the status of owners” and/or advocated here the inability to transfer patent property rights. I have done no such thing, as you pointed out — I haven’t even said what that carve out should be here.

    You are also correct in that I quoted what the Constitution says, which was only in response to Anon after he compared the Constitutional “exclusive Right” with patent property, and talks of transferability of that property. I simply quoted the Constitution.

    I will say that I do not see where in the text the exclusive Right to Inventors is to be transferable, but by my saying this, I’m not stating a position, nor am I saying the right is or isn’t to be transferable, nor did I advocate that rights remain with an inventor. But I will say that Congress does have the power to change the system, and they have done exactly that.

    So, to answer your question:

    “Are you saying that because the constitution says the right secured to inventors is an exclusive right, the text provides for this right to be non-alienable (e.g. if Congress deems it so)?”

    I would say the text doesn’t specifically speak on the matter other than the securing is to Inventors (and Authors). I would also say that this provides justification for supporting Inventors (capital “I”). One could argue that this even means solely focusing on them and their exclusive rights, if Congress so chooses, because, like you pointed out, it says nothing of subsequent owners. It says nothing of investors. It says nothing of businesses. It says nothing of transferability to any of these or others. Now, by saying this, I show no advocacy for keeping the right solely with inventors. Reading into that would be making up facts. Again, I’m just stating what the text says. I do think transfer of this property is important.

    Now, what of a carve out for these Inventors? Well, one example would be to require Inventors to first consent to a challenge of their patent at the PTAB prior to instituting the challenge. This does not rid of patent challenges, so this does not affect one’s ability/inability to transfer property rights. Does it render a patent different based on who owns it? Possibly. But so does the AIA, and to the detriment of these Inventors, so much so, that they cannot even come to the discussion table.

    I have written previously about this, and I specifically applied conditionals to such a carve out, namely, “if Congress wants to keep their AIA system that created the represented and the underrepresented classes” and “if Congress wants to incentivize the true underrepresented class and its progeny to file for and obtain patents”. If Congress truly wants those things, then Congress should consider requiring Inventors who own their patents to first consent to a challenge of their patent at the PTAB prior to instituting the challenge, because this AIA system has thrown those whom they wish to incentivize completely under the bus.

    This example “carve out”, for example, would help small inventors receive contingency representation in a post-grant patent validity inquiry because such inquiry would stay in a district court where a monetary upside for legal representation is attached to the matter, and the burden of proof presumes the patent valid. That is all but lost at the PTAB, such that inventors cannot even engage in licensing discussions, lest their patents be challenged with a very high chance of invalidation and at an alarming cost to the inventor because contingency talks are off the table in that tribunal.

    Personally, I would advocate for dropping the entire PTAB and unwind many of the negatives the AIA brought. But in speaking with Congress, undoing the AIA is not their desire; meanwhile, inventors are currently suffering and have no real protection against the efficient infringers and cannot even step up to play ball. So the conditional “if” is important. **IF** Congress wants to keep the AIA and also incentivize small inventors, they at least need to pull these small inventors out from under the bus.

  43. Anon May 21, 2020 9:43 am

    mike,

    but still, how do we know that the property right created from the inchoate rights of individuals is meant to be fully alienable?

    This was answered in the Historical (and award winning) article.

    Further, if you have had any legal training, particularly in property law in which alienability is discussed, you would understand that this is a foundational aspect, and the choice NOT to have full alienability would be an abnormality that itself would be discussed directly.

    This is NOT some type of artifact of the current system. This is a foundational piece and IS tracable back to the start of the country.

    The roots are deep in Jeffersonian and Locke views of WHY we even have government in the first place: the protection of Life, Liberty, and Property.

    Further still, this is NOT just because “Congress deems it so.” Certainly, the allocation of authority TO set up the rules was made in the Constitution to Congress. But there are other Constitutional aspects (the checks and balances and such) that prevent any one branch from violating precepts that have been established — particularly those of Life, Liberty and Property.

    I would not bank on the Oil States decision too heavily — that decision is absolutely dreadful. The Supreme Court has made an absolute muck out of patent jurisprudence and that case is no exception. Additionally – and historically – this is NOT the first time that the Supreme Court has mucked things up. I have posted in the past how the 1930’s and 1940’s Supreme Court was SOOOO bad that they self-christened themselves with the phrase “The only valid patent is one that has not yet appeared before us.” This was SO bad that this was the main driver for a somnolent Congress to rouse itself and pass the Act of 1952.

    The aspect of what the Constitution provides rests as the STARTING point of the legal right of protection for innovation. It does not say more, because it NEED NOT say more. Once the right is established, that right – a property right – inures ALL the other Constitutional protections of property.

    You bank too much on a premise that is not accurate. As I have stated – these are aspects of law, and it would behoove those who want to talk about them to understand the lay of the land.

    As to; “Regarding “Jeff’s desire”, has he actually stated his desire here?

    Yes. He may not have used the words “desire,” but he plainly has put forth a position. Do not be so wooden. The text has meaning and is placed in the context of a conversation. Also, if my view OF his view is not accurate, he is free to correct any errors that I may have made.

    For example – he attempts that very thing with the post at 42.

    To THAT post then, let’s now turn.

    Jeff,

    You appear to want to say that my capture of your view is NOT correct. You state BOTH that you said “a carve out for inventors who own their patents” and now state “I haven’t even said what that carve out should be here“.

    In other words, you admit that your earlier post is NOT even a complete thought.

    So please, FINISH THAT THOUGHT.

    What exactly DO you mean by ‘carve out?’ (this is asked somewhat rhetorically, as I have read the rest of your post — and dismantle that post as follows).

    By the way, YOU are in error with the notion of “which was only in response to Anon after he compared the Constitutional “exclusive Right” with patent property

    This is NOT a ‘comparison.’ It is a legal definition. You do not get to change the legal landscape of what the Constitution provides and what a patent right IS.

    I will say that I do not see where in the text the exclusive Right to Inventors is to be transferable

    I have explained this – now several times. This too is NOT something that you get to choose to ignore. Waffling with such words as “nor am I saying the right is or isn’t to be transferable” is legal error. It just does not matter whether or not you come out and say it. What matters is the law itself.

    Congress DOES have the power to change things – but, and critically, that power is NOT unfettered power. One need look no further to the different realm of trademark and the Tam case. Also, while eminent domain is an actual power, that too is not an unfettered power.

    You err on thinking that subsequent owners are somehow excluded from the patent clause — and show a fundamental misunderstanding of the very nature of the legal right — as property – that IS created with that clause.

    While you appear to not want to be dragged into this difference, and want to focus solely on this rather hazy ‘carve-out’ for original inventors (that happen to decide to NOT alienate their property), you simply do not get to dismiss the nature of that underlying property. Congress simply may NOT choose to do with property ANYTHING that they may want to.

    This (again) ties back to the fundamental Jeffersonian/Lockean concepts of Life, Liberty and Property.

    I have not seen your “previous writings” in regards to “underrepresented classes,” so I will withhold comment on your views (until they are more developed in this conversation – if you so choose).

    However, you DO a thing that you indicate that I say that you do but disclaim from doing. Your very own words of “should consider requiring Inventors who own their patents to first consent to a challenge of their patent at the PTAB prior to instituting the challenge IS a substantive right entirely depending on the owner of the underlying property right.

    Thus, my critique IS proper.

    I really care not at all about the Ends that you then add — the Means to those Ends do not survive critical scrutiny.

    And I have spoken on these matters in great detail previously — one can find these comments by searching this blog for this very subject of treating the subset of inventors that do not alienate their property in a special manner.

    The “suggested fix” that you want for the mess of the AIA is indeed a second wrong.

    It matters not that you personally understand that it IS a second wrong for the fact of the matter that it is a second wrong to prevail.

  44. Jeff Hardin May 21, 2020 12:36 pm

    Anon:

    I provided an example carve out above to which you dissent. I do not disagree with your position.

    Assuming no statutory changes are coming from Congress to undo the AIA or the PTAB, what would you suggest that would help small inventors enforce their held patents as being valid?

  45. mike May 21, 2020 8:11 pm

    Anon:

    Is there a link to that article?

    SCOTUS says that Congress now says this “right” is a revocable public franchise. So hopefully whatever article you can provide includes proof that the exclusive right mentioned in the Patent Clause is synonymous with private property (or at least some type of property). Because if it doesn’t, then we have a problem — Congress gets to decide what that exclusive right entails, property or not, and can adjust it at any time they wish. If the executive doesn’t enforce the law as written, and the judiciary says the law is constitutional, then Jeffersonian or Lockean precepts of yore take a back seat.

    I need something that allows me to enforce my held patents, as Jeff mentioned -patents that have a ticking clock and will expire. Right now, I cannot even discuss licensing unless something changes.

  46. Anon May 22, 2020 4:52 am

    mike,

    I have provided the link previously, but do not have it readily available now.

    By the way, the term “public franchise” is a form of property — do not be fooled by the “public” in the term.

  47. mike May 22, 2020 9:02 am

    Anon: To me, the critical word is “franchise”. Said franchise is controlled by the government. That doesn’t seem like an inventor’s property to me.

    Jeff: By the way, I favor solutions clearly presented over those not fully provided. If Congress wants to keep the AIA, I hope they listen.

  48. Anon May 22, 2020 8:32 pm

    mike,

    What “seems like” is laden with red flags for me.

    I take it that you are not an attorney, and I would caution against a mere ‘colloquial’ use of terminology (or worse, misapprehension).

    Just as on should not divorce the “public” from the term, one should not divorce the “franchise” from the term – to a certain extent.

    One extent that I have posited that DOES play (or perhaps more accurately, has yet to unfold AS playing) is the notion that in any franchise context. there are legal duties that arise between the entity with power granting the franchise and the entity to whom a Quid Pro Quo has been exchanged and receives the franchise.

    These items are NOT at the beck and whim as you seem to implicate with your comment of “control.”

    This is ALSO why I have been ardent in my posts on understanding Takings Law. The plain fact exists that the Government MAY undertake a takings of property – but such is not — nor ever has been – an unbridled takings.

    So too (still) with the property known as the patent.

    While the current state is one in which MALfeasance does run rampant, there are voices – such as mine (but by no means is mine the only voice) that seek to Right the ship on the current goings on and restore justice and Rule of Law to the patent landscape.

    Are we there? Is there justice now? Clearly, the answer is no.

    But the fact that THAT answer is no does NOT mean that we abdicate the fundamentals that are to be restored. Which is exactly why I — as much as a pro-patent person that you will EVER come across — am against what Jeff and people like Jeff are trying to do.

    Instead, the answer TO Jeff (and for Jeff) is instead to restore the proper protections and Rule of Law.

    Is this an easy task? Most definitely not.
    Is it the RIGHT task? Most definitely.

    And that is why I persevere.

  49. mike May 23, 2020 4:04 am

    It would be a shame to let “the great and perfect get in the way of the good”, when “the right answer would have been to say: Right now we are fixing the KNOWN mess.”

    Yeah, those “legal duties” were ignored when takings were retroactively applied to the social compact I had already entered with the government when I disclosed my invention and entered the patent bargain prior to the AIA. The USPTO said we should have anticipated such retroactivity in Celgene, and the CAFC agreed. You have previously said in conversations with me that the Oil States opening will go nowhere. So two branches of government control at their beck and whim, and as this very article shows, the third is looking for consensus before it will balance power for the People. We can talk about legal duties from 200 years ago all we want, but government today decides what those legal duties are.

    > “Which is exactly why I — as much as a pro-patent person that you will EVER come across…”

    That’s rather bold to say, predicting the future and all, but actually, this is of little value to me, simply because being pro-patent and being pro-inventor are not one in the same.

    Inventors like me with expiring patents cannot even engage in discussions today, or we will be PTAB’d, invalidated, and left broke, so we therefore do not have any property to discuss to even transfer. What we have with a patent today is a liability. That is the “known mess” to which Congress can agree right now. Their AIA did that, and they can fix that while keeping their “AIA anti-troll efforts” intact.

    So Jeff’s example proposition gives me at least some property to discuss, which is a much better proposition than our current reality, and quite frankly, I cannot wait for your utopia. Don’t get me wrong: I prefer it, and I truly value your opinion. But I live in a real world with a ticking clock.

    Like Jeff said, if Congress wants to keep the AIA, they need to at least somehow pull the inventors out from under the bus.

  50. Anon May 24, 2020 8:12 am

    simply because being pro-patent and being pro-inventor are not one in the same.

    You misapprehension what it means to be pro-patent. I have previously noted that my being pro-patent is not a facile adoration of the piece of paper of a patent but is instead to the driving notions of promoting and protecting innovation, to which, the patent is a vehicle.

    Jeff’s proposition presents a trap and a FALSE hope. It’s a mirage, a shimmer of water where there is none, leastwise none to the real problem for innovation protection (and NOT some limited ‘salve’ for a special subset of innovators that may also be in the business of practicing their innovation).

    As I have provided, a full understanding of protecting innovation shows the error of embracing that mirage. And I cannot NOT see the error of that path.

    As I have also noted, a Rational Actor may well choose to align with that path, but that alone is not a sign that the path is not a wrong. Efficient Infringement is also ‘justifiable’ to the Rational Actor and is also a wrong when it comes to the full understanding of protecting innovation.

    I view Jeff’s false hope as a bit of Chamberlain-like “peace in our time” (or perhaps, ‘a piece for a little time’). You do not abate the wolf at the back door, and IF Jeff’s move DOES pass it will be because the wolf at the back door has already grasped the bigger picture and understands how to defeat that little ‘piece for a little time.’

  51. Anon May 24, 2020 8:16 am

    Like Jeff said, if Congress wants to keep the AIA, they need to at least somehow pull the inventors out from under the bus.

    ALL inventors — and not just the little subset of inventors that may (at a select time) be only concerned with themselves being the one to put the innovation into practice.

    Jeff’s mirage is NOT providing the reach that you may think it does.

    Do NOT wheel that large wooden horse into the city gates.

  52. mike May 25, 2020 2:32 am

    (taking a stab at HTML comments here. apologies if it doesn’t work out.)

    As always, thank you for your insight, Anon. Your position in support of innovation with patents as a vehicle is rare to find today and is very much appreciated. We both desire the same thing.

    “You misapprehension what it means to be pro-patent. I have previously noted that my being pro-patent is not a facile adoration of the piece of paper of a patent but is instead to the driving notions of promoting and protecting innovation, to which, the patent is a vehicle.”

    Perhaps then state being “pro-innovation” rather than “pro-patent”? I find the holdout on helping inventors transform their liability into an asset and gaining the ability to enforce their property as not being pro-inventor, and inventors are the source of innovation. You don’t want to leave any inventors behind, which is great, and I get that. Neither do I. But Congress shows no signs of undoing the AIA, and with that, they have left ALL inventors behind. They will, however, unwind unintended consequences of the AIA that hurts inventors so long as it does not help trolling behavior — that is the known mess to them, and is something they can fix right now.

    “Jeff’s mirage is NOT providing the reach that you may think it does.”

    I can’t speak for Jeff, but to me, the reach here would help inventors who possess patents regain their ability to enforce them. For those inventors who do not wish to put their innovation into practice, this doesn’t hurt them any more than they already are, rather, this provides them opportunity: simply hold onto their patents, and they would then gain the benefit of a courtroom if they decide to enforce them. If they don’t want to do this and prefer to sell their patents, then the buyer assumes the risk of being thrown into the PTAB, just as they do today, and equally important, just as the inventors do today.

    Holding out against that opportunity for inventors (and also those with ticking clocks) in order to reach some unrealistic utopia with today’s Congress leaves an entire generation (or more) of inventions wasted until that ever becomes a reality.

    Would supporting this detract Congress from solving the real problem or helping all inventors? If your argument for supporting those who do not wish to put their innovation into practice holds water in Congress, then it would not. So please do continue making your case for all inventors, and I will continue to join you in that cause.

  53. Anon May 25, 2020 11:42 am

    First, thank you mike for the kind words – they do not go unnoticed.

    However, I will still not support this second wrong precisely because two wrongs do not make the right that is so desperately needed.

    You ask, “Would supporting this detract Congress from solving the real problem or helping all inventors?

    The answer (sadly) is: absolutely.

    If for no other reason than the provided premise coming from Senator Tillis that was the focus of this thread, our current leaders lack the backbone to fix the actual problem and allow the late-coming “I-want-to-fix-this-too-but-not-really-as-my-“compromise”-is-nothing-but-a-Trojan-Horse-meant-to-NOT-protect-the-innovation-that-is-currently-hampered-by-the-ADMITTED-mess-made-by-the-Supreme-Court” to H1JACK and derail a necessary first step.

    As I have noted, the ONLY way this second wrong gets by is IF those that can derail (and get away with such) already see what you and others have not seen: that this is NO real fix.

    And not one even for the very limited subset of innovators that want to practice their patent-protected innovation.

    I say this BECAUSE the fundamental nature of the property right IS degraded.

    Your last comment includes (almost as a ‘throw-away’ statement, “If they don’t want to do this and prefer to sell their patents, then the buyer assumes the risk of…

    What you do not appear to grasp is that this second wrong CEMENTS that problem into the law and HURTS all small serial innovators who would rather innovate than put their innovations into practice. This plays directly into the Efficient Infringer game plan because this weakening, a Divide and Conquer stratagem, eviscerates the ability of selling. This is a capitulation and permanent acceptance of the woes that you simply demarcate as “happening today.”

    This is NOT correcting those woes.

    This IS a cowardly, Chamberlain-like “at least give me my little piece for today.”

    Not only will I not support this — I will treat this as the enemy of a real fix that it is.

  54. mike May 28, 2020 4:11 am

    In response to my question, “Would supporting this detract Congress from solving the real problem or helping all inventors?”, you said, “The answer (sadly) is: absolutely.”

    If this is true, then the argument for supporting those who do not wish to put their innovation into practice will not hold water in Congress. To them, this is not a known mess to which they have any concern. (It should a known mess.)

    As you said previously: “The right answer would have been to say: Right now we are fixing the KNOWN mess.”

    Well, when creating the AIA, the known mess to Congress was those who do not produce but “whose only innovation occurs in the courtroom”. So they removed the ability for all patent holders to make it to the courtroom, labeling all patent owners, including legitimate inventors, as trolls. Congress shows no sign of unwinding the AIA. They consider legitimate inventors who don’t produce as trolls. (I strongly disagree with Congress here.) However, I have it first hand that they are concerned if inventors do not seek patents because they feel a patent does not provide a vehicle to protect their inventions. To them, that is the known mess. And right now they should fix that. I don’t see the above example proposition as cowardly or a permanent acceptance of today’s woes. Nor is it a permanent acceptance of the woes inventors face today. Rather, this would create the opportunity for all inventors to be able to enforce patents they choose to hold in a courtroom while we continue the fight for all inventors.

    Your statement “the fundamental nature of the property right IS degraded [by such a proposition]” should read “the fundamental nature of the property right IS ALREADY degraded right now”. Holding out against inventors having this opportunity that is compatible with today’s Congress because you desire the pursuit of something not compatible with today’s Congress is where we disagree. Your position leaves an entire generation (or more) of inventions wasted, when we both want the same thing. Please don’t create enemies. I am with you in your fight, and will not stop until the property right is as it should be. But I will not leave a generation of inventors behind when we can gain momentum.

  55. Anon May 28, 2020 5:50 pm

    Sorry mike, but your statement of “I don’t see the above example proposition as cowardly or a permanent acceptance of today’s woes. Nor is it a permanent acceptance of the woes inventors face today.” does not accord with what I have already provided.

    That you do not see something is not something that I control.

    I DO see it – and I am trained TO see it. This IS my balliwick.

    Also, as I have noted several times now, this is NOT the extensive “for all inventors” that you state. This is ONLY for a subset of those “all inventors,” and the cleaving of just which inventors DOES REAL DAMAGE to the notion of full alienability of property. There is a very real ‘wrong’ in the proposal.

    While I certainly agree that the current state HAS wrongs, what I have shared is that this ‘step’ has its own wrongs. So, sorry, but no, your paraphrase and “should say” is not accurate. Critical thinking and distinguishing on these points — as I stated — is my profession. I am actually paid to do this type of thing.

    My position does NOT leave an entire generation or more wasted. It merely makes it urgent to have a real fix. Not a false fix that makes matters worse.

    My position is NOT to ‘create enemies.’ At least, not to create enemies that should not be created. I tell you earnestly, if you want something that I know is detrimental, than you ARE an enemy – leastwise on that point. And I have no problem whatsoever having you as an enemy on one point, and an alley on another.

    This is simply NOT a matter of “momentum” worth achieving.

    Not by a long shot.

    I am in this for MORE than merely a subset of innovators that may want their own ‘little piece for a little time.’ That type of “momentum” has had disastrous effects in history. You have NOT shown why ‘this instance’ would be any different from those types of past disasters.

  56. mike May 28, 2020 7:00 pm

    “You have NOT shown why ‘this instance’ would be any different from those types of past disasters.”
    Nor have you proved that this will be the same as those types of disasters.

    “I am actually paid to do this type of thing.”
    I don’t find this as relevant. I can give you a very long list of things in my life that were done by “experts paid to do specific types of things in their respective fields” that were done incorrectly.

    This actually reminds me of Hank Johnson’s statement on the CAFC’s remedy in Arthrex removing the civil service protections offered to APJs: “Speaking for myself, I find it inconsistent with the idea of creating an adjudicatory body to have judges who have no job security. It goes against the idea of providing independent impartial justice if a judge is thinking about his or her livelihood while also weighing the facts of a case.”

    I’m not saying to not trust your intentions. This is just a friendly reminder that there is so much work to do to reform the system.

    I am not your enemy Anon. We must gain ground where we can with Congress and keep educating them and keep pushing.

  57. Anon May 29, 2020 10:41 am

    mike,

    I need not prove the thing to have the thing on the table for consideration. You DO need to prove it not so to take it off the table of consideration.

    Whether or not you find what I do relevant only speaks to your lack of understanding of the legal terrain. Ask yourself, would you opt to have brain surgery from a cab driver or a brain surgeon? Then consider again what you find relevant.

    I need NO reminder of the level of work to do. This has zero to do with any trust of my intentions. These counters of yours are non-sequiturs.

    “Enemy” is simply being misused by you. As I noted, you may well BE an enemy on a specific issue and NOT be an enemy on another issue.

    There is NO “universal” ‘you are my friend, and thus I agree with all of your stances” here. Just as I am NOT a “my party, right or wrong” political person, I am NOT that way in patent matters.

    Perhaps it is the word “enemy” that sets you off. Fine. Don’t use that term. Just realize that I fight to the same resounding degree on those issues that I believe in no matter who I have to fight.

    The issue here is clear: what is being pursued is detrimental to innovation and innovation protection. That this comes at a “little piece for now” for a certain subset matters NOT AT ALL.

  58. mike May 29, 2020 10:22 pm

    Whether or not you find what I do relevant only speaks to your lack of understanding of the legal terrain. Ask yourself, would you opt to have brain surgery from a cab driver or a brain surgeon? Then consider again what you find relevant.”

    Ask yourself: Would a brain surgeon know how to manipulate the medical system to his own benefit to the detriment of others more than a cab driver? Hence the irrelevance of your statement “I am actually paid to do this type of thing” to actual matters.

    Am I saying you are not to be trusted? No. I’m saying your claim of being paid is irrelevant. A more proper inquiry here would be “would you opt to have brain surgery from a brain surgeon who genuinely cares about all his patients and their humanity and will do what he can to save some today, or from a brain surgeon who only cares about seeking perfect surgeries, even if it requires him to forego helping his current patients, costing them their lives?”

    You have insinuated before that I am not an attorney in your comments. It is important to note there that there is no requirement for one to be a patent attorney to support and defend innovation. So that to, also irrelevant.

    “Just realize that I fight to the same resounding degree on those issues that I believe in no matter who I have to fight.”

    if you call those who wish to fight with you your enemy or they do not matter, you might very well find yourself fighting alone. I understand might does not make right; one person can hold the truth and everyone else can be wrong. I get that. We are that minority today. But your fight will be in vain if you cannot persuade others, and if a roll call vote, a majority.

    “what is being pursued is detrimental to innovation and innovation protection. That this comes at a ‘little piece for now’ for a certain subset matters NOT AT ALL.”

    Thanks for your opinion. Know that I will not succumb for divide and conquer. I will fight with you. We must gain ground where we can with Congress and keep educating them and keep pushing.

  59. Anon May 30, 2020 8:36 am

    mike,

    I will disagree vehemently with your attempt to change the spin of the question for relevance being on a scale of being paid to do something to be a question of relative care for the patients of the caregiver from whether or not the caregiver is paid for being a professional in that area.

    This both assumes too much and misses too much.

    It assumes that I do NOT care (in some moral relativistic sense) about people that I SHOULD be caring about.

    This of course is not correct.

    I have patiently outlined exactly why the Chamberlain-like “peace in our time” analog of “a little piece for a little time” is morally wrong, and it is in comparison to a more fuller understanding of the legal principles involved.

    It is NOT in regards to a strawman of “perfect surgeries.”

    Making substantive property rights dependent on the status of the owner of the property is simply a wrong.

    Period.

    It matters NOT that you want these substantive property rights for some “Ends” that you think is good in and of itself. Ends (even good ones) with improper Means is NOT the proper path in law.

    I cannot be more clear about that.

    You also miss – and miss badly – as to my “insinuation” BOTH about you being an attorney and an inserted strawman about NEEDING to be an attorney.

    First, I was pretty clear that you (in my view – always feel free to correct if I am wrong) are NOT an attorney. There was NO insinuation necessary, and I take your phrasing here to use “insinuation” as my stance at the beginning of “you not being an attorney” as somehow being a ‘wrong’ value tactic.

    There is NOTHING wrong with my stating that you are not an attorney (even as I do this rather straightforwardly) HAD I done so merely through insinuation.

    This leads to the second part of your rhetorical vehicle: the strawman that one NEEDS to be an attorney. You should note that I have never said such a thing. But like (well, actually, exactly the same as my brain surgery by a professional brain surgeon as opposed to a cab driver), the statement reflects what I would HOPE you would accept as a truism, that in a general sense, a professional in a very intricate setting is much better at understanding the intricacies than someone who has no knowledge of those intricacies.

    This is borne out by the way in view of the understanding of each of the nature of property, its full alienability, and these relations to each other for the maximum leverage of protecting innovation.

    So while you End with a statement of “important to note there that there is no requirement for one to be a patent attorney to support and defend innovation,” your Means to that statement are NOT correct, and your corollary statement of “So that to, also irrelevant.” is ALSO NOT correct.

    The opposite holds true. This is NOT to say that the End you want cannot be true, as clearly, the End you want CAN be true. It is to say though, that a professional in this area WILL likely know and understand the foundational legal aspects better than someone who is not involved with those aspects.

    This tactic that you employed is geared to one thing and one thing only: to diminish MY position on the topic.

    However, this tactic does not work. Not here, and not with me, and most definitely, not with this topic.

    Your next statement ALSO contains a false statement (I add bold to emphasize the portion that is false): “you call those who wish to fight with you your enemy or they do not matter,

    I have NEVER said that people I disagree with do not matter.

    Again, this is a rhetorical trick that will not work with me.

    Further, the conclusion from this false premise is LIKEWISE false: “you might very well find yourself fighting alone.

    The falsity here comes from an implied value connection stemming MORE from the false implication of not valuing others than from any actual implication that I have separated issues one from another. I will ALWAYS be fighting WITH others on an issue by issue basis.

    ALWAYS.

    To think otherwise is beyond asinine.

    Your nest statement as well has a false premise: “I understand might does not make right” as this appears to insinuate that I think that might DOES make right, or even worse, that I think that your position somehow requires YOU to believe that might makes right.

    The introduction of THIS premise is entirely untethered to ANY point that we have been discussing, and thus cannot serve as what you appear to want to have it serve for. “Might makes right” and “majority” are too different legal concepts, easily seen by way of example of the Chinese Communist Leadership.

    There is ALSO a falsity with your conclusion of NEEDING a majority. Again, this shows a lack on your end of understanding the legal terrain, and our Constitution protects against that very same concept as you wield it (as you wield it, it is called the Tyranny of the Majority).

    I certainly HOPE that my position is not in vain, as my position directly aligns with the very precepts of the Constitutional foundations of this country. If such be in vain, then OUR COUNTRY based on the Constitution are in that very same vanity.

    I may certainly conclude with a “happy to have you” fighting with me.

    Just as well, I can conclude that you may not BE ‘with me’ on EVERY issues related to patent law.

    I will STILL fight on an issue by issue basis.

    And I expect that you would do no different (even as I fully appreciate that you may well choose TO do differently).

  60. mike June 5, 2020 6:55 am

    Anon,

    The way you incorrectly read statements made and then go off on your assumptions is simultaneously atrocious and hilarious.

    Let’s begin.

    “I will disagree vehemently with your attempt…”

    I disagree vehemently with your vehement disagreement! Your statement “It assumes that I do NOT care … about people that I SHOULD be caring about” is exactly that: an assumption. Nowhere in that analogy did I state that “you do NOT care about people that you should be caring about.” You show that you care exactly for the people whom you should be caring about.

    Who are those people Anon? Does Congress have the same sentiment? Investigating those answers will help guide where work should be focused.

    “Making substantive property rights dependent on the status of the owner of the property is simply a wrong. Period.”

    I agree. But here is where you fail — on recognizing the conditional if. Congress is already making property rights dependent on the status of the owner of the property. If Congress wants to keep doing that, they should at least preserve inventors and their property when doing so, lest a generation of inventors and their innovations get left behind or stolen, thereby demoting the arts and sciences, not promoting the same. Just as important as the words “if”, if not more so, are the words “at least”.

    “It matters NOT that you want these substantive property rights for some ‘Ends’ that you think is good in and of itself. Ends (even good ones) with improper Means is NOT the proper path in law. I cannot be more clear about that.”

    Again, focus on the conditional if, and also realize that I do not believe the the “Ends” are good in and of themselves, otherwise I would not have previous stated that we must keep educating and pushing with Congress, and my instant words indicating “at least”.

    Are your ends tolerable with today’s Congress — those who actually write the law? (I have yet to see you present your means to get there.) Does this leave a generation or more of inventors and their innovations lost? Congress created a system where property rights dependent on the status of the owner of the property, and Congress has shown no signs of undoing that. I cannot be more clear about that. I engage with Congress, so I truly welcome your constructive suggestions to help Congress understand.

    “…I would HOPE you would accept as a truism, that in a general sense, a professional in a very intricate setting is much better at understanding the intricacies than someone who has no knowledge of those intricacies.”

    Absolutely. Professionals in intricate settings are much better at understanding those intricacies than someone with no knowledge of said intricacies. But you should focus on the word “professional”. Said “professional” is human. Humans have agendas and a moral compass. When the compass isn’t pointed in the right direction and a personal agenda is at play, that very knowledge of these intricacies can be abused. So I stand by my statement regarding irrelevancy.

    “This tactic that you employed is geared to one thing and one thing only: to diminish MY position on the topic.”

    Quite an assumption here, Anon. Don’t take things so personally when factual matters are stated.

    “Your next statement ALSO contains a false statement (I add bold to emphasize the portion that is false): ‘you call those who wish to fight with you your enemy or they do not matter,‘ I have NEVER said that people I disagree with do not matter. Again, this is a rhetorical trick that will not work with me.

    Have you intentionally misquoted me here? Again, you miss the conditional. I did not say “you call those…”. I said “if you call those…”. If. That word is important. Misquoting me and then going off is also a rhetorical trick that will not work with me. Commenting on the rest of your statement here is not necessary because you are off course by missing the conditional at the beginning.

    “‘I understand might does not make right’ as this appears to insinuate that I think that might DOES make right, or even worse, that I think that your position somehow requires YOU to believe that might makes right.”

    OK — this appears to insinuate that I think. — I’ll leave that one right there.

    “There is ALSO a falsity with your conclusion of NEEDING a majority.”

    I said “if a roll call vote, a majority”. Forgive me, but does Congress not consider a majority in a roll call vote?

    “I certainly HOPE that my position is not in vain, as my position directly aligns with the very precepts of the Constitutional foundations of this country.

    I don’t find your position to be in vain. What are your means to get there with Congress? I talk to Congress, so please do let me know.

    “I will STILL fight on an issue by issue basis. And I expect that you would do no different…”

    Issue by issue basis, sure, but I prefer “reasoning” rather than “fighting”. I find it more effective to allow a person to convince themselves by argument rather than by a stick.

  61. Anon June 5, 2020 11:14 am

    Your vehemence about my vehemence is noted – as is the understanding between us that you recognize that I care.

    However, your position still does not reflect that my caring is exactly WHY the attempted proposals here (exemplified by Mr. Hardin’s views) are simply a wrong headed avenue.

    For all of your newly found animosity towards ‘my’ reading, it is your reading that is suspect on this point.

    You miss – and miss badly – by calling for me to: ‘Who are those people Anon? Does Congress have the same sentiment? Investigating those answers will help guide where work should be focused.

    I need not ‘investigate’ as I have already done so — this is part and parcel of my profession and advocation. I am MORE THAN enough focused based already on the work and ‘investigation’ that I have done.

    As to “. But here is where you fail — on recognizing the conditional if” –

    One immediate response to your assertion: you are wrong.

    Whatever the current state of mal-treatment by EITHER the Courts (the main perpetrator) or the Congress (through the captured and horrendous AIA, or the lack of action by Tillis and company), THERE IS NO ERROR in my position.

    I have never said that the current situation is perfect, so there is more than just a little strawmanning from you. Likewise, the fact that the current situation is NOT perfect does not make making a second wrong to make the first wrong go away.

    I have been more than clear on this point.

    As to your comment on my position of Ends do not justify the Means, your attempt at “Again, focus on the conditional if is a non-sequitur and does NOT change my position or its relevance one iota.

    Your question of “Are your ends tolerable with today’s Congress” simply does not make sense – nor does it show YOUR ability at reading the points that I have already presented.

    Yes, Congress does actually write the law.
    What is your point in saying this?

    Is Congress capable of writing bad law?
    Absolutely.

    Is Congress capable of writing law that FAILS Constitutional muster?
    Also absolutely.

    MY “means” – as if you think that I personally have some special means is a non sequitur. I have at multiple occasions remarked on SEVERAL possible (and appropriate) means. Just google “Kavanaugh Scissors” for example. Note as well that ALL of “my” means merely reflect proper legal means. The “my” is merely my providing the reasoning and manner of the proper US legal means.

    So I stand by my statement regarding irrelevancy” You agree with my premise – and yet wish to stand by YOUR conclusion (which does not flow from my premise). Sorry, but your statement itself is irrelevant. The mere notion that advocates are human and humans MAY make mistakes does NOT support your view of what is irrelevant. Your willing acceptance of my premise carries more than you have thought about — and shows that your have not yet realized what your agreeing to necessarily entails.

    As to “Quite an assumption here, Anon. Don’t take things so personally when factual matters are stated.

    You have shown neither facts, nor how my reply is an assumption. The assumption then is your own. This is NOT a “I am taking this personally” response on my part. This is an application of legal logic and of the possibilities on the board. This ALSO shows that your lack of carrying through the necessary implications AND your desire to hold onto your own positions is NOT a “I am taking this personally” as you wish to paint the position. You need to think more on these things.

    As to “Have you intentionally misquoted me here? ”

    Absolutely not – it was MY position that was ‘misquoted.’ My correcting that errant view cannot possibly “misquote” how that errant view was presented.

    Don’t take that correction personally. 😉

    Again, you miss the conditional” No. I did not. ANY such imposition of a “conditional” that creates an errant view of what I said is NOT PROPER. You seek FAR TOO MUCH to rest on this supposed miss of mine — when I have made no such miss.

    The problem my friend appears to be that you want ANY attempt for correction to be accepted as merely an attempt to correct.

    That is a fallacy – and a very dangerous one at that.

    I said “if a roll call vote, a majority”. Forgive me, but does Congress not consider a majority in a roll call vote? – misses the point – try again.

    What are your means to get there with Congress? I talk to Congress, so please do let me know.

    I talk to Congress as well. Your request to ‘please let you know’ as already been answered: my posts on this blog are ALL open for you to read.

    Issue by issue basis, sure, but I prefer “reasoning” rather than “fighting”.

    Again – the response is: you are wrong.

    Your response implies that “fighting” must be to the exclusion of “reasoning,” and that my “fighting” cannot include “reasoning” and thus your avenue is a better preference.

    This is a case of implied and assumed fallacy. The difference you want to rest on is not there. My “fighting” has NO exclusion from already including “reasoning.” In fact, ALL of my fighting INCLUDES “reasoning” to a degree that I doubt that you would even be capable of. I do not mean this in a (strictly) denigrating way, but instead, take this in the analogy of you being a cab driver and me being a brain surgeon and the “reasoning” being a brain operation.

    I easily reject the logical fallacy that you want to rest on.

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