Senate IP Subcommittee Mulls Ways to Improve Patent Quality (Again)

By Eileen McDermott
June 23, 2021

“It seems that the prevailing view, both at the PTO and among some patent attorneys, is that patents on nonexistent and impossible inventions are mere curiosities—unfortunate, but ultimately harmless. But the recent assertion of the Theranos patents offers stark evidence to the contrary.” – Jorge Contreras

The Senate Judiciary Committee’s Subcommittee on Intellectual Property on Tuesday heard from four witnesses on the topic of “Protecting Real Innovations by Improving Patent Quality.”

The topic has been addressed by the Senate IP Subcommittee before, and long-debated in patent circles generally. Under the leadership of its new Chairman, Senator Patrick Leahy (D-VT), the Subcommittee now seems to be revisiting the conversation and looking for practical fixes.

The Dangers Described

Leahy opened the hearing by making reference to an experience Vermont had in 2013, when out of state companies targeted nonprofits and small businesses with letters alleging infringement of patents that purported to describe inventions covering a typical office network with a server, computers running outlook, and a scanner that permitted scanning a document directly to an employee email address. The letters sought license fees of $1,000 per employee, which could be debilitating even for a small business. About 75 Vermont businesses were targeted in all. As a result, Vermont eventually passed legislation targeting bad faith patent assertions.

Leahy also mentioned the “disturbing story” of patents originally owned by the disgraced Elizabeth Holmes of Theranos that were sold to a holding company and eventually asserted against “actual inventors and innovators working on steps that can be taken to curb COVID-19,” Leahy said. He continued:

Here we have the whole world scrambling to respond to a pandemic and the solution was nearly blocked by patents for a fake invention. When we think about patent quality, we should keep in mind that 52% of U.S. patents are issued to foreign entities. But we don’t know how many patents are owned by foreign entities because the PTO doesn’t require that the patent owner tell the public the patent was sold. There’s a real risk that companies build portfolios of poor-quality patents to stifle American innovators.

The COVID-19 suit Leahy and witness Jorge Contreras of S.J. Quinney College of Law, University of Utah, discussed was between Fortress Investment Group/ Labrador Diagnostics LLC and BioFire Diagnostics/ Biomerieux for infringement U.S. Patent No. 8,283,155 and U.S. Patent No. 10,533,994, two of 1,000 patents which were acquired by Fortress Investment Group from Theranos. Whether Leahy’s and Contreras’ characterization of that situation is accurate, or if Labrador was suing on patents unrelated to COVID, has been debated. But the Senators and panelists questioned whether patents for inventions that were never practiced and found to essentially be fraudulent should ever have issued in the first place—particularly in the case of one of the patents, which was issued two years after Holmes was indicted. Contreras explained:

Theranos never finished developing the tests that it sold to Walgreens and others for millions of dollars… Holmes, the lead inventor on both patents, is currently under federal indictment for multiple counts of criminal conspiracy and fraud…. More than a few issued patents cover inventions that were never made or at least never worked….It seems that the prevailing view, both at the PTO and among some patent attorneys, is that patents on nonexistent and impossible inventions are mere curiosities—unfortunate, but ultimately harmless. But the recent assertion of the Theranos patents offers stark evidence to the contrary.

Contreras then provided examples of what can go wrong: a bad patent can act as prior art; the holder can enforce the patent against others who are more successful at developing the technology; even if eventually invalidated in court, litigation is costly and many will settle leaving the bad patent on the books, etc.

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Sweet Solutions

To ward off bad patents, Contreras suggested the following solutions:

  • Increase vigilance for inoperable inventions. At the examination stage, the USPTO should be able to check inventor names against lists of retracted papers, criminal indictments, disciplinary proceedings, etc. that might cast doubts. Examiners should also be able to field other questionable inventions, like miracle cures, cold fusion and interstellar spacecraft.
  • Demonstrate reduction to practice. If flagged, the USPTO should be able to get a third party verification of reduction to practice.
  • Involve the public. The Peer to Patent program, which ran from 2007-2011, should be revived and expanded.
  • Enhance penalties for fraud. Include both criminal sanctions and substantial fines.

Other panelists focused more on improving and increasing the use of 35 U.S.C. Section 112 in examination. “Section 112 rejections are generally considered non-substantive and are not pushed at all during prosecution,” said Julio Garceran, Chief Intellectual Property Counsel at Cree, Inc., a compound semiconductor company based in Durham, North Carolina.

Garceran testified that “low quality patents are a business” and said that the high cost of patent litigation can create an incentive to burden the competitor with increased spending that could be better spent on R&D. He suggested that:

  • USPTO revenues should be kept in the USPTO to fund improvements to the examining force and infrastructure (end fee diversion).
  • Increase the use of 35USC Section 112 in examining patents.
  • Fix examiner incentives. The current count-based system seems to encourage quantity over quality.

Troy Lester

Troy Lester of Acushnet agreed with Garceran about improving 112 examination practices, and explained that “litigation abuse only addresses half the problem of overly broad patents.” Often, bad patents stifle innovation without ever being asserted because they create barriers. “We recently cancelled a multi-million-dollar order made by another U.S. manufacturer because of an invalid patent issue,” Lester said. For his part, he said that the following steps can be taken to fight bad patents:

  • Resources should be set aside for additional examiner review.
  • Examiner training and timings currently focus on quantity over quality to keep backlogs down, but this should be better balanced.
  • Improvements on Section 112 are imperative. The USPTO should require claims to use the same languages as the specification.

Bridget Asay

Bridget Asay, a partner at Stris & Maher in Vermont who formerly worked with the Vermont Attorney General’s office, testified about the litigation abuse described by Leahy in his introduction. She said that transparency would go a long way toward helping the problem, since it was not easy even for the Attorney General’s office to find out the status of the patents being asserted or the identity of the patent owners.

So Seven Years Ago

Both Senators Chris Coons (D-DE) and Mazie Hirono (D-HI) voiced concerns about overstating the patent troll problem to the detriment of legitimate patent owners. “I do want to make sure that the pursuit of patent quality as such is not used as an excuse to weaken patent enforcement protections for all patent owners,” Coons explained. He also pressed Asay on whether she was aware of a problem with demand letter practice today, as opposed to 7-8 years ago when the incident in Vermont took place. She provided one recent example in which the Washington Attorney General is suing a patent troll for violating the state’s “Patent Troll Protection Act,” but did not have other direct experiences to share. “I, too, heard a lot about this 7-8 years ago, but I think there have been significant changes and shifts in law and practice that have largely addressed it,” Coons said.

Hirono raised the specter of the Patent Trial and Appeal Board (PTAB), prefacing her comments by saying that “too often, efforts to address claims of bad patents weaken patent rights.” She asked the patent attorneys on the panel what their experience has been with the PTAB, since she has heard from many small inventors who are “abandoning the patent system” because of this. Both Lester and Garceran said that they think the PTAB is working now, and Lester opined that serial inter partes review (IPR) petitions stem from serial litigation: “What I believe is happening is when an entity files 300 litigations, they will have a lot of IPRs filed against them. If they file one litigation, they’re going to end up with one IPR – and if the patent is valid it’s going to survive the IPR. It might not even get initiated, and I think that’s the way the system was intended to work.”

Hirono also asked if legislation would be necessary to implement changes in the USPTO’s Section 112 examination standards. Lester and Garceran agreed that, while more explicit guidelines may be needed, the Office has the capability to do it. “It just needs to be part of their process,” Lester said.

The IP Subcommittee’s Ranking Member, Senator Thom Tillis (R-NC), also focused his solutions on improving Section 112 examination practices. “There are simply too many overbroad patents being issued, especially in software and financial services spaces,” Tillis said. He also suggested eliminating fee diversion and the introduction of a so-called gold-plated patent, which “would undergo a more rigorous, more costly examination process to make sure it is truly new, innovative and properly scoped,” but in exchange would be “virtually impossible to challenge.”

 

The Author

Eileen McDermott

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

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

Discuss this

There are currently 46 Comments comments. Join the discussion.

  1. mike June 23, 2021 12:12 pm

    Question: Where are the inventors on the panel? Their absence tells a lot about how Congress really doesn’t care about the only stakeholders the Constitution mentions here — the Inventors.

    Regarding Jorge Contreras’s suggestions:

    the USPTO should be able to check inventor names against lists of retracted papers, criminal indictments, disciplinary proceedings, etc. that might cast doubts.

    What do any of these names or lists have to do with the merits? Ad hominem? Very bad suggestion. Ideas, no matter the source, should be open to the patent pursuit. Unless you want them to stay under a mattress. The cure for a disease could come from a criminal. I don’t think Jorge Contreras understands the public disclosure benefit of a patent.

    Examiners should also be able to field other questionable inventions, like miracle cures, cold fusion and interstellar spacecraft.

    Who decides what is questionable? Why limit a “spark of genius”? If we allow examiners to decide what is questionable, how would that even be defined in the statute? This is a very poor recommendation.

    Demonstrate reduction to practice.

    A patent does not give anyone the right to produce anything. It is an exclusionary right. Plus, an improvement to specific functionality in a cell phone, for example, would require one to be able to produce a cell phone to satisfy such a demonstration requirement. Do inventors have those resources? Bad suggestion again. This Jorge Contreras guy is really off the rails.

    Enhance penalties for fraud. Include both criminal sanctions and substantial fines.

    First, Congress needs to make infringement of a patent a criminal offense, like it is with copyright infringement. Do that, and I’ll support this 100%.

    Congress, let me know when you want a reasonable witness to testify. I’ll be happy to make a trip.

  2. Anon June 23, 2021 1:03 pm

    The single – and best – answer to ALL of this is to put the focus where it needs to be: quality patent examination.

    Quality examination is such that ‘quality’ of inputs does not dictate the quality of a granted patent claim. Examination is “unto the law,” and NOT “unto the inputs.”

    ALL of this is merely a (continuing) smokescreen for blaming applicants and kicking up the “Oh Noes Tr011s” scare tactics.

    Focus.
    Focus.
    Focus.

  3. Anon-noyed June 23, 2021 1:09 pm

    If they randomly chose a member of the Patent Bar to testify, they’d get better feedback on how to improve the patent system than from the ones mentioned in the article.

  4. Julie Burke June 23, 2021 2:36 pm

    Regarding the suggestion:

    the USPTO should be able to check inventor names against lists of retracted papers, criminal indictments, disciplinary proceedings, etc. that might cast doubts.

    I couldn’t help but notice similarities between that proposal and the now-disbanded Sensitive Application warning System (SAWS) program. From page 2 of the TC1600 SAWS memo dated 11/2008:

    “The [SAWS] Impact Statement can be prepared by performing an Internet search to find external information indicating the sensitivity of the subject matter. One way to do this is via a Google search of the invention, the inventors, and owner or assignee. Such information may include, but is not limited to, financially important subject matter (Is the stock of the invention’s owner publicly traded? Have there been press releases about the invention?), politically charged subject matter, and subject matter which may raise legal or ethical objections.”

    Regarding the suggestion:

    Examiners should also be able to field other questionable inventions, like miracle cures, cold fusion and interstellar spacecraft.

    Again, the SAWS program flagged patent applications directed to this sort of subject matter for special treatment.

    In TC1600, page 6 of the 11/2008 SAWS memo flagged “applications claiming the prevention or curing of diseases which were previously considered impossible to prevent or cure:

    Alzheimer’s disease
    common cold
    dementia
    mental retardation
    HIV infection”

    However one defines the patent quality problem, surely reviving the SAWS program, in whole or in part, is not the solution.

  5. Pro Say June 23, 2021 2:56 pm

    +1 mike. Big +1.

  6. Greg DeLassus June 24, 2021 12:55 am

    Far be it from me to object to better §112 examination, but I have to wonder how Congress might hope to pull that off. Presumably there are reasons why the USPTO operates as it currently does vis-à-vis §112. Those reasons will not shift easily, and one can expect the status quo ante to return pretty quickly after the spotlight moves on, even if they were to shift under the glare of Congressional attention.

    If Congress wants to put a stop to the sort of thing that was happening in Vermont (and elsewhere) without adversely affecting the legitimate functioning of the patent system, they should consider adding a working requirement to Title 35. For example, they could add something like 19 U.S.C. §1337(a)(2) & (a)(3) to 35 U.S.C §271 as a condition precedent to a holding of infringement.

  7. MaxDrei June 24, 2021 4:37 am

    So-called “prophetic” examples are routinely used in chem/pharma patent drafting. These are sections of the patent specification that declare results of experiments that nobody has yet conducted. They are necessary, to satisfy the enablement requirement of patentability.

    In the context of “quality” and USPTO examination of 112 issues, does anybody see a problem for quality of the patents issued by the USPTO, and their high presumption of validity, given the ubiquity of phophetic examples drafted by patent attorneys on the other side of the world from the USA?

  8. Anon June 24, 2021 9:29 am

    MaxDrei,

    Do you see an issue with this “nobody has yet conducted” coupled with “necessary to satisfy enablement” when so many items actually FAIL enablement as shown in the wash-out data of FDA testing?

    Realizing of course that enablement is required AT the time of filing and that (at leas in the US), patents are not allowed for mere research plans…

  9. MaxDrei June 24, 2021 12:37 pm

    An issue? Not really, anon. The degree of “utility” needed to satisfy the FDA is much higher than that needed to validate a patent application, and rightly so. We must encourage expensive research, disseminate knowledge of contributions to the art as early as possible but also protect the public from medicines that don’t work at all or less well than existing products or have dangerous side effects for one or other person in the population. That’s a very tricky balance to achieve.

    As you say, setting forth a basis for research is not enough to justify a patent application. Under the EPC, the content of the specification, on the filing date of the patent application, has to make it at least plausible (to an expert) that the claimed subject matter does actually solve the technical problem relevant to the obviousness enquiry. Hence the presence of all those worked examples, whether prophetic or real.

  10. Anon June 24, 2021 1:37 pm

    We must encourage expensive research

    You missed the part about patents NOT being a reward for research plans, that utility MUST be present at time of filing (and get the notion that somehow the utility being different dead wrong).

    To paraphrase TFCFM, you are only allowed to have patents on what you actually invented.

    Want patent protection on a drug allowed to be used on a human (and obtain the rewards therefrom)? – then file your application WHEN you actually possess it.

  11. George June 24, 2021 5:09 pm

    An invention should work as described and claimed (at least to a reasonable degree). That’s the way it was for over 100 years! STUPID claims should not be issued a patent, unless they can be ‘scientifically’ proven not to be stupid and can be shown to work as claimed (by ‘independent evidence’, which could be provided by video). You don’t take the word of home buyer that their house is in ‘great shape’ – you get an inspector to confirm that! Besides, inventions that don’t actually work are useless anyway & just ‘clog up’ the system!

  12. George June 24, 2021 5:11 pm

    Yes, actual (respected) inventors & scientists should be on any committee dealing with patents.

  13. George June 24, 2021 5:13 pm

    “Enhance penalties for fraud. Include both criminal sanctions and substantial fines.”

    Like against Elizabeth Holmes and Theranos, maybe??? I’d be for that!

  14. George June 24, 2021 5:18 pm

    “The [SAWS] Impact Statement can be prepared by performing an Internet search to find external information indicating the sensitivity of the subject matter. One way to do this is via a Google search of the invention, the inventors, and owner or assignee. Such information may include, but is not limited to, financially important subject matter (Is the stock of the invention’s owner publicly traded? Have there been press releases about the invention?), politically charged subject matter, and subject matter which may raise legal or ethical objections.”

    REALLY???? (link please). So some of our most valuable and potentially important inventions were ‘deliberately’ being blocked by our own PTO??? Talk about ‘criminal activities’ and corruption (at the PTO)! When will the FBI investigate this? When will Congress?! Too embarrassing?

  15. George June 24, 2021 5:24 pm

    @Julie Burke

    How about using computers more, to analyze submissions and ‘weigh’ all factors?! In the case of ‘cures’. Like looking at ‘all’ scientific evidence either supporting such claims or not supporting them? Shouldn’t that matter? Like injecting disinfectant into people? Does that actually work? If the answer is unknown at the time – a period of time can be allowed to find that out and then things can be reviewed again, right (once supporting evidence is provided)? You don’t have to decide right away – you just have to decide at least a few years later.

  16. George June 24, 2021 5:49 pm

    @Anon

    No one really cares about ANY of those ‘inconvenient things’, like having to tell the truth on an oath or declaration, or ever worrying about ‘ethics’ (which goes for lawyers too)! Who – ever – enforces that anyway? The PTO hasn’t done that for decades! And there’s no other government agency that does that either (at least when it comes to patents). Not even the FBI, NSA, or DHS ever steps foot into the USPTO (that I am aware of). Don’t know why, but they don’t. THAT needs to be fixed too & Congress should make sure it DOES get fixed with stiff jail sentences, too! Otherwise everyone will just keep ignoring that requirement of 18 U.S.C. § 1001 (which is supposed to carry up to a 5 year jail term for EACH violation).

    Holmes should have been threatened with at least 200 years already (if not 1000)! She lied her head off to the PTO, but was issued over 200 patents, anyway! What’s up with THAT?!I Wonder what the ‘quality’ of those were?! Maybe 10-20 were any good at all?! Maybe she was ‘actually’ one of the inventors on 5% of them? She was kinda busy as a CEO, wasn’t she?! Surprising she had that much time (over 5-6 years) to do research & development too. Elon Musk doesn’t! Richard Branson doesn’t. Jeff Bezos doesn’t. Tim Cook doesn’t. Bill Gates hasn’t for at least decades! But somehow Elizabeth Holmes had all kinds of time to do that – , in between – pitching her (fake) product to raise millions of dollars – with the HELP OF those issued and pending patents! Talk about ‘bootstrapping’ your company with the HELP OF the (easily fooled?) PTO!

    Maybe we just need a MUCH BETTER PTO (or computers and AI that I would much prefer)?!!!

  17. George June 24, 2021 7:22 pm

    @11

    “You don’t take the word of home buyer” ==> “You don’t take the word word of a home seller”.

  18. George June 24, 2021 11:25 pm

    The USPTO is still issuing ‘perpetual motion’ machine patents just because it doesn’t want to waste the time PROVING that they are (especially since that’s not even required anymore and it’s not their job to do that anymore). Harmless in the end? Sure, but not totally, since they can be cited in future similar patents, help make them more credible that way and it then just adds to the huge pile of ‘junk’ patents (maybe 30% of them). Yes, I think there may now be up to 3 million patents out there that are basically ‘junk’ and in many cases don’t even work as claimed – INCLUDING those of the now defunct Theranos company! I usually have little problem spotting them and being able to ‘prove’ they can’t work as claimed, because those filing them have insufficient training in the sciences, especially physics. But those can STILL be cited by examiners as prior art AGAINST ‘good’ patents that do everything they claim! How is THAT fair?! How is THAT a good thing?! How is THAT a defensible thing, Congress?!

    We need patents that once issued are 99% ‘guaranteed’ to be valid and at least 95% guaranteed to work as claimed. Otherwise the ‘system’ is just an illusion of protection and actually just a bunch of worthless ‘crap’! If we want to compete against China, we have to do much better than that! Remember I said that in 10 years!!! Better yet, when it all finally goes to hell, check back here (and buy me lunch)!

  19. Anonymous June 28, 2021 12:08 pm

    I can get behind “gold plated” patents if Sen. Tillis is referring to making a patent’s validity incontestable a time certain after issue. That would be a great idea, just as incontestability is good for TMs. A patent should be incontestable three years after issue, leaving plenty of time in that 3 years for “wrongly issued” patents to be challenged via IPR.

    I’ve also argued that it is the patent’s limited term that always mitigates against having been “mistakenly” issued. The right to exclude is limited in time for a reason. See, https://www.ipwatchdog.com/2019/09/24/blame-weakened-u-s-patent-system-cannot-pinned-ptab-alone/id=113824/

    What would be Sen. Tillis’ criteria for “gold plating” a patent, making its validity incontestable? Some higher fee (of course) by the applicant, presumably to allow more time for a somehow more comprehensive prior art search? It likely wouldn’t produce “better” prior art upon which to reject claims, but rather only become another boon to large corporations who could pay inflated “gold”-tier examination fees. How much would an applicant have to pay to guarantee an actual, constitutional jury trial once a patent has issued – the gold-plated, justice-delivering apparatus the constitution itself was meant to guarantee? (Or, isn’t it true that having to pay for constitutional rights is unconstitutional, as in the poll tax?)

    Or is “gold plated” meant to refer to present patents, already presumed valid and requiring a clear and convincing evidence burden to invalidate? Or is there intended a second-class type of patent envisioned contrasted to the present gold ones, involving less rigorous examination or involving “less economically important” technologies? Or does “gold plated” mean the inventor actually gets a jury trial, seeing the damage the AIA has already done? Or does “gold plated” refer to Congress creating a white list of patents whose validity they don’t want questioned? (Congress has constitutional authority to do this, but such practice would likely quickly devolve into political favor granting even worse than now, if that’s even possible.)

    Part of the problem is that almost EVERY infringer raises an invalidity defense. There is NO disincentive to sling mud to see if some sticks, and it is damaging to the patent system as a whole. Even the talking point of the Serial Efficient Infringer (the “SEI”) that there are “bad quality” patents is bad for confidence in the system. Can you imagine if every real estate transaction involved the buyer challenging the propriety of the property lines of the surveyor? Or if every cash transaction was questioned as being counterfeit? The system would collapse. Transactions would not flow. Perhaps that’s what the SEIs want after all, already having amassed unassailable market power.

    And what of the criteria itself for novelty and obviousness? That test is not sacrosanct. Do we really need to assume a POSA has unlimited time and financial resources?

    A patent ought to be non-obvious if a *reasonable search* by a POSA would reveal 103 prior art. That reasonable search could be limited by being conducted in a reasonable amount of time with a reasonable budget.

    What is NOT reasonable to the patent system as a whole is Apple/Amazon/Big Tech/Pharma spending hundreds of thousands of dollars to find ANY prior art that can possibly be argued to be invalidating, pieced together by a team of $1500/hr attorneys, $1000/hr technical experts (who will literally sign any opinion said attorney team will write for them), using proprietary databases, AI, hindsight, professional search teams with more than ordinary skill in the art, and on and on. This POSA is a total legal fiction that Congress can constitutionally limit and define as conducting a *reasonable search* within a reasonable amount of time with a reasonable budget. There’s no way to limit hindsight bias after 5, 10, or 15 years after issue, much less when big money is at issue. I’d rather reasonable deals flow, with certainty in the law.

    If this POSA can’t find invalidating art within 3 years from issue, the patent is incontestable. There’s your gold plated patent, Sen. Tillis.

  20. George June 28, 2021 2:19 pm

    More AI is whats needed! Much more!

    “To generate the newly released AI patent dataset, the USPTO’s Office of the Chief Economist used a machine learning approach that achieved superior performance compared to existing alternatives. Learn more in the working paper:”

    In other words compared to ‘human’ alternatives!

    https://www.uspto.gov/ip-policy/economic-research/research-datasets/artificial-intelligence-patent-dataset

    The 21st century is soon coming to our patent system (like it or not)! And @Anon is SURE not to like it!

  21. Anon June 28, 2021 4:20 pm

    George,

    You insist on inanities and continue to misconstrue my position on advancements that may eventually come.

    You seek to imbue a sense of “fear” where none exists.

  22. George June 28, 2021 9:48 pm

    “You insist on inanities and continue to misconstrue my position on advancements that may eventually come.

    You seek to imbue a sense of “fear” where none exists.”

    LOL!!! That’s all!

  23. George June 28, 2021 9:59 pm

    @Anonymous #19

    There shouldn’t BE any “wrongly issued” patents! That’s the whole problem here! At least they shouldn’t happen more than maybe 1% of the time and hopefully a lot less than that! The target should be less than 1/1000! That’s what I would ‘require’ computers to achieve, anyway! Like to see ‘humans’ do that!

    How many patents were invalidated in the first 100 years of our ‘original’ patent system (the one we replaced with AIA)? Anyone know? What percentage of those were invalidated? So, our ‘system’ is working a lot better than that, now, right? Our system works just like you’d expect of a ’21st century’ system, right? Streamlined & efficient, right? High quality & low error rates, right?!

    LOL! It’s a DISASTER and will eventually bring us to financial ruin (because investors will NEVER KNOW if a company’s patents are any good at all – take for example ‘Theranos’)! China will roll over laughing! And so will Elon Musk (who could care less about ‘worthless’ patents)!

  24. Anon June 29, 2021 7:33 am

    George @ 22….

    You seemingly cannot help your inanity, can you?

    As to your comment at 23, what exactly do you think it is that “a computer” can do to NOT have [“wrongly issued” patents!]?

    Do you even understand HOW the Courts have intruded to induce ‘error’ that was NOT there during prosecution?

    Would ‘computers’ help with that?
    Would they predict how the courts will meddle and re-scriven law?

    For all of your one-trick pony soap-boxing, you show an amazing lack of understanding of the various nuances in BOTH innovation writ large and how patent law has been tied into a Gordian Knot (by far the biggest and most uncertainty inducing aspect IN patent law today).

  25. George June 29, 2021 4:19 pm

    “Would ‘computers’ help with that? Would they predict how the courts will meddle and re-scriven law?”

    They would INFORM the court as to the ‘proper’, ‘consistent’ & LOGICAL analysis to employ (based on the law & ‘maybe’ prior cases – if they were any good and stood the test of time)! Let the court argue with the computer then and let a jury (or better a panel of ‘experts’ in each field) decide who has the best arguments! The court can’t argue ‘against logic’ & clear evidence and ‘perfect analysis’ – using OBJECTIVE TESTS rather than subjective opinions and they’d also have access to ALL prior art ‘that has ever existed in the world’ (going back 1000’s of years)! Easy-peasy (for a computer)!

    THAT’s how you get ‘high-quality’ and ‘enforceable’ patents – rather than just MORE JUNK!

  26. George June 29, 2021 4:30 pm

    @Anon

    It’s called introducing a true GAME CHANGER, instead of fiddling around the edges and just ‘playing the same old (20th century) games – forever’! What a ‘fresh idea’, eh? But of course, that might not be in YOUR best interest, right? Then again, what’s good for the goose is good for . . . lawyers too, right?

  27. Anon June 29, 2021 9:06 pm

    George,

    Your fantasies — and my denigrating them — have nothing to do with any sense of me looking out for my ‘best interests’ (your insinuation that my motives are greed based utterly fail).

    I have provided you at least a half dozen links — across a spectrum of sources — that DO that denigration of your futuristic wishful ‘want it now’ (and YOU should take note that these are not MY views that I share with you).

    Pull your head out, son. Your arse is not a hat.

  28. George July 1, 2021 12:43 pm

    Welcome to the 21st century, Anon! I know you’ve been sleeping for a long time but it’s time to finally wake up!!! LOL!

    https://www.cnn.com/videos/tech/2021/06/30/bts-dancing-boston-dynamics-robot-dogs-spot-moos-pkg-vpx.cnn/video/playlists/wacky-world-of-jeanne-moos/

  29. George July 1, 2021 12:47 pm

    @Anon

    For being a lawyer, you sure seem to have a LOT of time on your hands (including keeping tract of number of words being used in comments)! What, no clients? Not suing anyone? Not inventing anything (useful)?

  30. George July 1, 2021 1:01 pm

    Suggestion 1:

    The PTO should not issue patents that could be immediately circumvented, with little difficulty! These are by definition ‘legally worthless’ patents that just help ‘clog up’ the system and offer NO VALUE to inventors. Indeed, they hurt rather than help innovation. For instance, Examiners should point out to applicants how by simply removing an element in their claims, their resulting patent could easily be circumvented & rendered worthless. That does not require a law degree, anymore than raising objections to overly broad claims does!

    So, in the interest of applicants, Examiners should also point out weaknesses and/or overly narrow claims language too. It’s only fair and would make for much better patents in the end. Would also help reduce ‘pointless’ infringement lawsuits, since obvious weaknesses in claims would be greatly reduced. Claims would be made as good as possible and as strong as possible, not just as ‘weak’ as possible (or as weak as the PTO and large industry likes them to be)!

    We need strong and ‘enforceable’ patents to be issued – not just MORE ‘legal sounding’ garbage!

  31. George July 1, 2021 1:10 pm

    @Anon #21

    “You seemingly cannot help your inanity, can you?”

    You seemingly are obsessed with the term ‘inanity’ aren’t you?! That’s NOT an ‘argument’, counselor! Using that term repeatedly in a court wouldn’t help you get out of a wet paper bag & would probably get the judge pretty mad! In court you must be ‘respectful’, remember? Or haven’t you ever been in a courtroom? Try to learn a ‘new’ word for today! It’s not THAT hard. Just one new word a day, will help you express yourself much better! How about ‘poppycock’? I like that one! LOL!

  32. Anon July 1, 2021 2:15 pm

    I am no more obsessed with using the term than you are in LIVING that term.

    I will make a deal with you: stop being inane and I will stop using the term (as I use it accurately).

  33. George July 1, 2021 6:03 pm

    @Anon

    Well, then I guess we’ll have to go out of business! My family & associates wouldn’t like that much! Will you step in to support us and develop those new inventions?! Have you ever invented anything in your life (and, NO, you didn’t invent the word ‘inane’)? LOL!

    I don’t know though, we’ve been doing pretty well being ‘inane’ for > 40 years, Anon. Maybe YOU should try it?! Or maybe you’re just STUCK in a rut? And, what might’ve been considered ‘inane’ in the 19th & 20th centuries, isn’t so inane anymore – ever consider that?! Get with the program! Invest in ‘the future’ – or become obsolete! LOL!

  34. Anon July 1, 2021 7:29 pm

    I have no clue where you reach for this “Well, then I guess we’ll have to go out of business

    More inanity from you.

    (hint: it is your posting ‘style’ and has nothing at all to do with what you may do at an inventing level – you do know that the two are NOT connected, eh?)

  35. George July 3, 2021 11:27 am

    @Anon “as I use it accurately”

    I don’t think so! I don’t think you know what you are talking about (especially when it comes to computers & AI). But then time will tell, I guess.

  36. George July 4, 2021 1:54 pm

    Suggestion #2:

    a) We have rules about what is and is not IP and any vagaries are eliminated.
    b) We codify those rules into a series of ‘tests’.
    c) Those who pass all such tests get patents.
    d) Those who don’t pass these tests don’t get a patent.
    e) All patents are assumed to be valid & at least 99% MUST BE valid, or tests (b) are revised until they are.
    f) Tests can be graded more accurately and much faster by computers than by humans, so that’s how they will be graded (in the 21st century).

  37. Anon July 5, 2021 10:25 am

    George,

    Your rebuttal of “I don’t think so! I don’t think you know what you are talking about” is mindless and empty.

    Your inanity is directly on point as to why.

  38. George July 5, 2021 5:50 pm

    @Anon

    “hint: it is your posting ‘style’ ”

    You mean ‘blunt’ instead of diplomatic?! Yeah, I think that saves a lot of time and misunderstanding, don’t you? I think judges appreciate it too (since it saves them time as well).

    Diplomacy is not all that it’s cracked up to be. For instance, evidence climate change! 40 years of ‘diplomacy’ and ‘compromise’ there! Kinda HOT now! China doesn’t believe in it much. They might kick our ass too! And if they decide to go green – THEY WILL GO GREEN (fast)!

  39. Anon July 6, 2021 11:58 am

    LOL – no, I do NOT mean “… ‘blunt’ instead of diplomatic

    I mean what I said: inane.

    I have previously explained the meaning to you back when you went off the deep end thinking that I had said inSane.

    As to China and ‘go green,’ you might want to check out their ecological record before making any statements. Hint: it’s not good.

  40. George July 6, 2021 4:03 pm

    @Anon

    If I am ‘inane’ then maybe it’s YOU who are ‘insane’?! Ever think about that (especially if you voted for Trump . . . like ever)!

    “As to China and ‘go green,’ you might want to check out their ecological record before making any statements. Hint: it’s not good.”

    China is building most of the world’s solar panels, batteries & many of its wind turbines – dummy! If it weren’t for them we wouldn’t have a ‘green revolution’ at all! Also, like I said, if they decide to do something THEY DO IT, 10x faster than we ever will! That means if they ‘give the order’ to go green, they’ll become 100% green within 20 years! They don’t have to wait around for a ‘do-nothing’ Congress like we do. And, I’m confident that they will get to 100% green at least 10 years before we do, no matter what they are doing now or when they start switching over. They want to win THAT race too!

    And AI is coming to patent law, Anon, whether you like it or not! We’re already INVESTING in it and ALL lawyers who don’t do that will get left out in the cold (or heat), so they should invest in it too and actually HELP IT ALONG, if they’re smart and planning for the future. If they don’t, they might not even have any jobs within a decade. PTO examiners should also start looking for other types of employment over the next 10 – 15 years. I predict a decline in their numbers of at least 40%-50% over the next decade.

    The 21st century is coming to law, guys. Billable hours will decline by 90% or more (including for litigation)! But then look on the bright side, here’s your chance to work just a couple of days a week and use the rest of it to do something ‘really productive’ (like maybe even invent something yourselves – if you have the guts that is – lol)!

    https://www.cnn.com/2021/07/06/perspectives/ibm-ceo-arvind-krishna-digital-skills/index.html

  41. Anon July 7, 2021 12:44 pm

    George,

    Let’s walk through this (maybe this time you will learn something).

    1: “maybe it’s YOU who are ‘insane’?! Ever think about that (especially if you voted for Trump . . . like ever)!

    The lesson I gave you distinguished inane from insane. Neither of which applies to me. Further, I have already shared with you that I did not vote for Trump (either time).

    2: “China is building most of the world’s solar panels, batteries & many of its wind turbines – dummy!

    Before you exclaim “dummy!” with the misunderstanding that they MAY be manufacturing items, the record that you need to check is their own national ecology record. By the way, you do recognize that the manufacturing process for such things as solar panels and electronic vehicle batteries has highly toxic byproducts, right? Your supposed ‘counterpoint’ actually strengthens the point put to you. You are just too daft to realize it.

    3: “Also, like I said, if they decide to do something THEY DO IT, 10x faster than we ever will! ” This is baseless and divorced from the reality of both their history and the current fact that they are this world’s largest ecological offender. The reason why is because they are industrializing and doing things that more modern countries have long outlawed as being bad for the environment. They nakedly covet power that you you mindlessly insist that they could simply give up. You speak of things that you just don’t know about.

    4: “And AI is coming to patent law, Anon, whether you like it or not! ” And yet again you indulge in your hobby horse and PROJECT views that I have not put forth. I have never asserted that ANYTHING innovative is somehow ‘not coming.’ What I have provided is a wealth of articles – across a spectrum of sources – that point to deficiencies of today that you CONTINUE to turn a blind eye to.

    5: “here’s your chance to work just a couple of days a week and use the rest of it to do something ‘really productive’ (like maybe even invent something yourselves – if you have the guts that is – lol)!” Your myopia is unparalleled. As is your disdain for those who assist in the innovation process (and — like it or not — champion the legal aspects of innovation protection). You seem to be completely unaware of the pro-innovation positions that I have – and long have had. EVERYTHING to you is your hobby horse.

    6: The CNN Krishna article.
    First, consider the source. CNN is perhaps one of the least trustworthy sources in the entire Main Stream Media environment.
    Second, the article is advertising – nothing more. Note that looseness in use of the term AI. It is basically a pitch by a Corporatist to ensure feedstock of one of its inputs. of course, this is an entirely rational view to expound, so I do NOT fault the pitch. But you should at least recognize that it IS a pitch. The pitch is light on actual substance, and heavy on virtue signaling. In that aspect, it is no wonder that it is fodder for CNN.

  42. George July 7, 2021 3:44 pm

    @Anon

    Tired of YOUR ranks, Anon! You know nothing about many of the things you are talking about, especially about China & AI. China is already on the Moon, aren’t they? They’re already building their own space station & will complete it in two more years! They will also send astronauts to the moon in a couple of years and are already ahead of us with AI. As to your so-called AI failures,they are just TEMPORARY (as with all new technologies) and so DON’T MEAN ANYTHING! Already most of the problems with facial recognition of darker people have already been solved and it now works 98% of the time with them too! Only took about a year to fix! There is not one problem you can point out that can’t or won’t get fixed within a few years!

    Also whatever China looks like now, they ‘could be’ cleaner than us within as little as 20 years! They LOVE doing that, just to surprise us and shake us up! They love proving how much faster things can get done under communism rather than democracy. They will probably have a whole colony on the moon by 2030 too and might even get to Mars before we do! So, we will be the ones that have to prove them wrong. Place your bets (including as to the future of patent law) and we’ll see who comes out ahead!

    The U.S. is on its last legs if we give in to those who want nothing more than to destroy democracy or play politics with EVERYTHING affecting our society – even when it comes to ‘critical’ healthcare and infrastructure issues. We are still looking STUPID around the world (even with Trump gone). China, Russia, North Korea, Iran & the Taliban are still laughing their heads off (even while their own countries struggle). They are willing to ‘suffer’ in order to see our government get overthrown and will be happy to help any way they can. We are ‘incapable’ of making any sacrifices, whatsoever, anymore! That was not true in the 1940’s! That is our ultimate weakness now & could spell our ultimate demise as a nation (at least a strong one). Putin & his ‘buddy’ Trump, will be happy to pick up the pieces and create a country in their own image, once that happens.

    And now I am done here and will only respond to comments from others. I’ve WASTED enough time with you and it seems no one else wants to interact with you either. I wonder why (you’re such a nice & respectful guy)?

  43. Anon July 8, 2021 4:33 pm

    I suppose that you mean “rant” – to which you err, as my dissertation was anything but a rant, guiding you point by point.

    You insert non sequiturs in an attempt to suggest that I do not know anything about China – while you yourself show your own lack of knowing about China as you do not address the actual points at hand. It is no surprise really that you avoid being on point, as were you to be on point, you would easily recognize that the points that I have presented are in fact true.

    Your response to “my” noting of AI failures misses as well, as I have repeatedly pointed out, those failures are NOT “mine,” as they are those of a spectrum of sources. You do not like what those sources have to say, then you have to rebut THEIR points. I merely present these as but a small set of examples that show that your ‘pet pony’ is simply NOT HERE NOW.

    As to the political tones, you do realize that you contradict yourself right? You laud China, pan the US, and then seek to want to take a pro-democracy stand (and against those who would destroy democracy).

    If you want to portray China as a shining example of the virtues of communism than may I suggest that you move there.

    Further, even as I did not vote for Trump, you seem apparently eager to continue blaming him for various countries laughing at us (and they laugh at us BECAUSE of Biden). Your grasp of politics is certainly not your strong suit.

    As to whether or not you respond – meh, that has always been your option, and your past choices have never provided cogent responses anyway, so I suppose that there is no great loss with your latest choice.

    As to others choosing not to interact with me, you would do better (far better) to note that choices NOT to interact are driven by my having far better points. Being a “nice and respectful’ guy is simply immaterial to having better points.

  44. George July 8, 2021 4:47 pm

    @Anon

    You’re a ZERO! That’s all.

  45. Anon July 8, 2021 5:56 pm

    Except not – you being wrong [again] is just not a surprise, George.

  46. George July 29, 2021 5:00 pm

    The public & other lawyers will decide that (once we know your name)! Can’t wait, huh?

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