Becoming Harder to Justify a One-Size-Fits-All Patent System

“While many have resisted the temptation to move away from a one-size-fits-all patent system… [A]ll patents— good, bad, revolutionary, and stupid—have eroded to the point where continued use of the U.S. patent system must be questioned.”

Time to Rethink

Patents in the United States are one-size-fits-all. If you obtain a patent on a revolutionary innovation, such as Bluetooth, the general patent term, without any extensions for Office delay, would be identical to the patent term for a method of walking a snake. Although, presumably, the requirement of paying maintenance fees on utility patents will result in the truly obscure and commercially irrelevant patented inventions falling into the public domain well before the natural expiration of the full available term, these two inventions are treated equally not only for purposes of term calculation, but for purposes of application requirements, filing requirements, examination, novelty and obviousness thresholds, and every other aspect of patent law. That is what it means to have a one-size-fits-all patent system. Regardless of the importance of the invention, every invention is treated the same.

But beyond the obvious disparity between the importance of these two illustrative inventions to society, the U.S. patent system does not consider how capital intensive it will be to bring the invention to the market so society can enjoy the fruits of the inventors’ labors. The patent laws and rules similarly do not consider how long it will take the inventor to bring the invention to market either. So, if you have an invention that will require $50,000 to take from idea to market you receive the same protections as one who has an invention that will require $100 million, or $1 billion, or $10 billion to get the invention to market.

It is becoming harder to justify a one-size-fits-all patent system, particularly in a world where infringement is not only tolerated but excused as if the innovator is the bad actor. It is even harder to justify when the infringers are willing to settle cases against those with weak patents and dubious claims of infringement for nuisance value but fight for a decade against innovators who have spent many millions, sometimes hundreds of millions if not billions of dollars, creating important inventions that are simply copied in a predatory manner.

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Activity is Malicious, Not Actors

There is nothing wrong with being an implementer, and there is nothing wrong with being an innovator. Problems surface, however, when malicious action occurs, and there is plenty of malicious activity in the patent world, just not the type that most are familiar with if your knowledge is based solely on accounts in the popular press.

Implementers complain that there are patent owners who engage in frivolous litigation using bad patents and egregious litigation tactics, and they refer to these bad actors as patent trolls. While it would be foolish to pretend that there are not bad actors who are patent owners, implementers have successfully managed to convince Congress and virtually all journalists that the term patent troll is synonymous with the term patent owner, which is as ludicrous as it sounds. Vilifying an entire category of people based on the actions of a few is juvenile, to say the least. While that may have worked in the third grade, no one who thoughtfully considers the issue could ever reasonably conclude that 100% of any category is all good or all bad. The argument is preposterous on its face, but a lot of very smart people have fallen for this charade for too long.

But as implementers lament patent trolls they conveniently overlook their own predatory behavior; the stealing of rights from innovators without any intention of ever paying. And this has become a strategy without consequence, making it exceptionally popular.

While many have resisted the temptation to move away from a one-size-fits-all patent system and recognize that certain patent owners deserve more, or at least better, rights, we at least need to have that conversation. It is not ideal, and there is absolutely no support in the law for treating any patent or inventor differently than any other patent or inventor. Those who are similarly situated should be treated similarly under the law, but the inescapable truth is U.S. patent laws have been eroded for everyone. The patent troll problem, which was always overblown, has allowed infringers to justify their own predatory behavior, while demonizing all patent owners.

Meanwhile, all patents— good, bad, revolutionary, and stupid— have eroded to the point where continued use of the U.S. patent system must be questioned. Despite the statute saying that patents are to be treated as property rights, the Supreme Court has ruled that patents are merely government franchises that can be stripped at any point in time during the life of the patent regardless of how much time or money has been invested by the patent owner. It simply cannot make any sense for all patents to become increasingly worthless simply because of the victimization of large multinational corporations who are incapable of crafting a strategy that solves the nuisance litigation problem that does not destroy the entire system.

Patents, at least some of them, must have a title that quiets at some point. And if patent ownership does not settle, how much longer can we realistically anticipate innovators will use the U.S. patent system? Even Congress recognized this problem, which is one reason why the some Members argued a federal trade secret law was necessary.

Intervening Rights for Patent Owners

The patent laws have scenarios throughout where infringers are granted intervening rights if, for example, a patent owner must change the claims. Absolute intervening rights are available for a party that prior claims changing, made, purchased, offered to sell, or used within the United States, or imported into the United States, anything patented by the reissued patent, and equitable intervening rights are provided where substantial preparation was made before there was a change in the claims.

Why shouldn’t patent owners obtain intervening rights? Infringers have a multitude of opportunities to challenge claims throughout the patent process. Third-party pre-issuance submissions can be submitted to the patent examiner to prevent a mistake from ever being made in the first place, but this is virtually never used. There is also an opportunity after a patent has been granted for any third party to bring a post-grant review (PGR) challenge, which will allow for any issue to be raised by the challenger, including issues relating to patent eligibility and sufficiency of disclosure, but this procedure is virtually never used by infringers either.

If a patent owner has spent significant time and money innovating, and the infringer has not availed themselves of any opportunity pre grant or within the first nine months post grants during the PGR window to make a third-party pre-issuance submission, or challenge the patent, why should the infringer or any entity in privy with the infringer have any right to file a subsequent challenge? If there is a domestic industry in the United States, why should we allow infringers to be able to at any point in time during the patent lifecycle file a challenge to take the patent away from an owner that has made investments in research, development, and market deployment?

If the concept of intervening rights makes sense for infringers, then the concept must make sense for at least some patent owners. It is time to start talking about that so those patent owners who are the backbone of the innovation ecosystem don’t get lumped together with any bad acting patent owners.

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47 comments so far.

  • [Avatar for Anon]
    Anon
    December 28, 2021 07:45 pm

    ..and if I am not going to be lazy, I would draw attention to Greg’s disingenuous rebuttal above:

    Here is the part that is harder to credit. Do you contend that tech progress has slowed since 2006

    This is a misapplication of logic and a switch (along a bait and switch tactic) in that “tech progress” in and of itself is NOT the prime focus, as clearly, there is an EXPONENTIAL tech progress (think of Moore’s Law, for example) that Greg — yet again would not recognize in the fact that Judicial Activism is NOT something that we should so cavalierly accept in Greg’s Alfred E. Neumann manner.

    This part too is simply (and crassly) disingenuous: “Because the patent system is not intended for the benefit of patent attorneys. It is intended for the benefit of the public. If the public is seeing steady tech progress, then the system is working well, even if patent attorneys are dissatisfied.

    NO ONE was arguing that ANY of this was to be a benefit for patent attorneys.

    EVER.

    This simply ignores the FACT that those such as I have posted in view of actual innovation theory (and innovation protection in view of such) in a manner that is NOT “for patent attorneys,” but instead is in view of innovation itself.

    This is just NOT a matter of “steady,” and since innovation feeds on innovation, any acceptance of “steady” is actually a disregard of how innovation is TO BE promoted (and why).

    As I proved by the citation to Jungerson, folks were dissatisfied with the functioning of the patent system back in 1949

    This did NOT prove what Greg (continues) to assert.

    It is absolutely asinine for Greg to continue with his narrative.

  • [Avatar for Anon]
    Anon
    December 28, 2021 09:23 am

    There is nothing lazy about the “disparagement.”

    What is lazy is the reply to what is an on-point description of Greg’s innate bias.

    The “but we are only a small pharma” is a pitiful and obtuse treatment of what is a well known Big Pharma view in regards to innovation protection.

    Such a response shows your lack of awareness, lack of care, or both.

  • [Avatar for Josh Malone]
    Josh Malone
    December 28, 2021 01:21 am

    Right. It’s for inventors, not patent attorneys. Yet inventors can no longer secure exclusive rights to their inventions. Inventors are the ones complaining, thousands of them. Burning patents. Picketing from San Jose to Wilmington. Calling Senators and writing Congress and signing petitions and submitting comments and filing amicus briefs. Not patent attorneys. Inventors. For the first time in history. Wake up.

  • [Avatar for Greg DeLassus]
    Greg DeLassus
    December 28, 2021 12:43 am

    Big Pharma patent attorney “Greg”…

    This is a lazy disparagement. My company does not have a single FDA-approved product. In what sense can I be meaningfully said to represent “big” pharma? We are about as small as pharma companies come.

  • [Avatar for don quixote]
    don quixote
    December 27, 2021 11:46 pm

    Ahhh!!!
    And now, Big Pharma patent attorney “Greg” chimes in to both echo and glory in the Big-Pharma-centric prescriptions of the pompous “Chicago Boys” extraordinaire, Prof. Richard Posner, servant of the central banking elite, (who never presecuted a patent in his life), right on que.
    Small world, eh?

    Even then, it’s difficult to imagine being unaware that USPTO policies and function have dramatically changed. Incentivized ignorance is bliss.

  • [Avatar for Greg DeLassus]
    Greg DeLassus
    December 27, 2021 11:16 pm

    Greg, there is widespread evidence that it worked.

    Right. I believe that we all agree that the enormous tech progress of the XVIII, XIX, & XX centuries—and the shared economic prosperity made possible by that tech progress—stands as testament to the well functioning of our patent system between 1790 and 2006.

    Plenty of evidence that the system has been undermined since 2006… What we have today doesn’t work at all.

    Here is the part that is harder to credit. Do you contend that tech progress has slowed since 2006? If so, what evidence do you cite for this contention? For my part, I simply do not see any evidence that the rate of tech progress has slowed at all, much less with 2006 as an inflection.

    How can you say relax, this is how it’s supposed to work?

    Because the patent system is not intended for the benefit of patent attorneys. It is intended for the benefit of the public. If the public is seeing steady tech progress, then the system is working well, even if patent attorneys are dissatisfied.

    As I proved by the citation to Jungerson, folks were dissatisfied with the functioning of the patent system back in 1949, but rather obviously this dissatisfaction did not stand in the way of the invention of polyethylene terephthalate, or transistor radios, or antilock brakes, etc. Evidently, then, the satisfaction of patent attorneys is not a necessary precondition to the well functioning of the patent system.

  • [Avatar for Josh Malone]
    Josh Malone
    December 27, 2021 09:26 pm

    Greg, there is widespread evidence that it worked. Plenty of evidence that the system has been undermined since 2006. Either way, you aren’t making sense. What we have today doesn’t work at all. It does not remotely correspond with the plain text of the Constitutional bargain. How can you say relax, this is how it’s supposed to work? This system has no relation to innovation. There is no securing, no exclusive right. Just monopolies handed out to the rich and powerful. All others get a useless piece of paper that nobody believes. Why would you say this is normal and good?

  • [Avatar for Greg DeLassus]
    Greg DeLassus
    December 27, 2021 07:21 pm

    [I]n 1790 to 2006 it was not every case with substantial damages that was decided by the Supreme Court.

    Two points. (1) I spoke of SCOTUS and the regional CAs precisely because I agree that looking only at SCOTUS opinions gives one too unrepresentative a sample. The conclusion does not change, however, if you read the broader range of reported cases (which is hardly surprising, because the lower courts were following SCOTUS precedents). (2) Even today, very few damages awards are appealed all the way to SCOTUS.

    It was rare that an inventor would face the “death squad” for patents. Usually they got a jury trial that stuck… Before 2006 inventors could win as often as not.

    Where can we look up the data and verify these assertions? Trial court decisions are rarely published even today, and were even more rarely published before 1950, except for cases in which the supreme court justices rode circuit to preside. Where are you finding these trial court decisions on which this assertion is predicated?

  • [Avatar for Josh Malone]
    Josh Malone
    December 27, 2021 06:09 pm

    Greg, in 1790 to 2006 it was not every case with substantial damages that was decided by the Supreme Court. It was rare that an inventor would face the “death squad” for patents. Usually they got a jury trial that stuck. Today nearly ever inventor has to pass through the PTAB and Federal Circuit “death squads” – more than once. Before 2006 inventors could win as often as not. Today, it is one in a thousand at best.

  • [Avatar for Greg DeLassus]
    Greg DeLassus
    December 27, 2021 04:44 pm

    Justice Thomas[’]… patent system is… the opposite of the American system of 1790-2006, which… “promoted progress in the useful arts by securing the inventors for limited times the exclusive rights to their discoveries.”

    But this is just my point. The way that the patent system works now is how it worked in 1790, and 1830, and 1860, and 1935, and 1957, etc. That is why I cited you the quote from the 1949 Supreme Court dissent (N.B., 1949 falls squarely in the 1790–2006 time period that you discuss). The system is working now exactly as it worked in 1949, and it is provoking exactly the same response that it provoked then.

    A lot of people who started working in this field in the late 1980s through the early 2000s imagine that the system that they entered was the norm, and that recent trends are some sort of aberration. Not so.

    Go and read the court cases (SCOTUS and regional CAs) from the XIX and early to mid-XX centuries. They will sound remarkably familiar in view of cases from the 2010s onward.

    The regime we have now is the historical norm—the regime that fostered the enormous tech progress of the XX century and the engine of our shared national prosperity. It is the regime of the 1990s that was the aberration.

    Do not take my word for this. The thesis that I am advancing here is an empirically verifiable fact that anyone can confirm for themselves by reading the XVIII, XIX, & XX century case law. If Mr Malone thinks that I am misrepresenting this history, he is free to cite cases and data that he considers would disprove my thesis, and show the courts (not merely the patent office) of the XIX & XX centuries behaving in a manner more favorable to patentees than do the courts of today.

  • [Avatar for Anon]
    Anon
    December 27, 2021 03:59 pm

    Mr. Malone,

    It certainly has been pointed out that Greg’s Big Pharma viewpoint colors his views of ALL innovation protection, but he simply refuses to do anything except preach his desired narrative.

  • [Avatar for Josh Malone]
    Josh Malone
    December 27, 2021 12:58 pm

    Greg is aligned with Justice Thomas and the wealthy elites. His patent system is working as designed by the European aristocrats and modern tech tycoons.

    That system is the opposite of the American system of 1790-2006, which was based on merit, was accessible by ordinary people, and “promoted progress in the useful arts by securing the inventors for limited times the exclusive rights to their discoveries.”. That isn’t working at all today.

  • [Avatar for don quixote]
    don quixote
    December 27, 2021 03:51 am

    The easily misled public will always believe that the stupid patents (“Method of Walking a Snake”) are somehow a justification for reform.

    This is a complete red herring and such notions should not be supported here. “Method of Walking a Snake” is nothing but the story of a fool and his money. It was and never should be the Patent Office’s responsibility to decide which patents are nothing but red ribbons for vanity projects. They are simply a voluntary tax, and not a tax on the system.

    The quote at the outset of this article is alarmingly reminiscent of the establishment lapdog and ghost-writer for the elite, Richard Posner (“Beyond the Rule of Law”; Prof U of Chicago) who argued years ago for “weakening” the patent system (he was nothing if not equivocating) ; and, that only Big Pharma should be allowed patents. That pompous ignoramus should not be imitated here.

  • [Avatar for don quixote]
    don quixote
    December 27, 2021 03:31 am

    The easily misled public will always believe that the ”
    stupid patents (“Method of Walking a Snake”) are somehow a justification for reform.

    This is a complete red herring and such notions should not be supported here. “Method of Walking a Snake” is nothing but the story of a fool and his money. It was and never should be the Patent Office’s responsibility to decide which patents are nothing but red ribbons for vanity projects. They are simply a voluntary tax, and not a tax on the system.

    The quote at the outset of this article is alarmingly reminiscent of the establishment lapdog and ghost-writer for the elite, Richard Posner (“Beyond the Rule of Law”; Prof U of Chicago) who argued years ago for “weakining” the patent system (he was nothing if not equivocating) and that only Big Pharma should be allowed patents. That pompous ignoramus should not be imitated here.

  • [Avatar for Anon]
    Anon
    December 26, 2021 05:00 pm

    Mr. DeLassus intent to spin malfeasance as some type of “as it ever was” is beyond asinine and may even rise to a level of being unethical given an attorney’s duty not to let bad law persist. We have a duty in our state oaths that dictate otherwise.

  • [Avatar for Greg DeLassus]
    Greg DeLassus
    December 26, 2021 11:45 am

    I do not own any patents. My clients have faced many IPRs. We have won some and lost some. That is how it goes when you choose to play in the big leagues.

  • [Avatar for PTO-indentured]
    PTO-indentured
    December 26, 2021 09:50 am

    @28

    Methinks he hath not faced a patent death squad nor personally owned IP pillaged by efficient infringers — yet boasts a ‘good cheer’.

  • [Avatar for PTO-indentured]
    PTO-indentured
    December 26, 2021 09:49 am

    @28

    Methinks he hath not faced a patent death squad nor personally owned IP pillaged by efficient infringers — yet boasts the ‘good cheer’.

  • [Avatar for Anon]
    Anon
    December 24, 2021 08:53 pm

    I see that the What-Me-Worry delusional state of nothing wrong is yet again being advanced by Mr. DeLassus.

    Beyond sad.

  • [Avatar for Greg DeLassus]
    Greg DeLassus
    December 24, 2021 03:16 pm

    Let’s try… the principles proven to produce such success for years…

    Honestly, that is what we are doing right now. The Supreme Court has *always* (for over 200 years now) been hard on patents. As Justice Jackson wrote in his dissent from Jungersen v. Ostby & Barton Co., 335 U.S. 560, 572 (1949), “the only patent that is valid is one which this Court has not been able to get its hands on.”

    Meanwhile, the USPTO has *always* (for more than 150 years now) been more willing to grant claims than the courts have been to enforce them.

    What we are seeing now is the historical norm. It has always been thus. AND YET, for all that, the U.S. patent system has (for over 200 years) admirably served its purpose of incentivizing technological innovation. Evidently, then, the present (and past) regime of easy prosecution, difficult enforcement is well calibrated for the purpose that Congress intended it to serve.

    Be of good cheer. Things are working as they are supposed to work.

  • [Avatar for PTO-indentured]
    PTO-indentured
    December 23, 2021 12:36 pm

    Josh, suggestion:

    Please consider using another term when calling out large incumbent co.s who seek to enforce lousy patents. Big-Tech has already won the day with and owns the “patent troll” brand. I don’t know what term to use alternatively, ’nuisance-ogres’?

    Else-wise, the ‘PT’ brand’s reach gets expanded — beyond the bounds of its more-often considered individual / small entity size (limited) — all the way up to enormous ‘incumbent’ companies (unlimited). For Big Tech (owner’s of ‘PT’) this is free advertising and a free ‘extended-bounds’ gain. For the courts at all levels, congress and the PTO — less differentiation equates to more anxiety-engendering.

    When a term becomes ‘everything’, its meaning (e.g., to the general public) becomes amorphous, diffused — people cannot get their heads around ‘everything’. Too many plates are spinning at one time — so let’s all just accept a next fiction as fact. Putting forth any new and additional ‘trouble’ associated with PTs (or alleged so) if it sticks, empowers the term to a new level and that’s a huge win for the owners of the brand — fanning their flame.

    Any man-made system is susceptible to corruption, particularly when there are those who seek to corrupt it (by whatever ‘name’). Pre-AIA the US patent system was not immune to this, but it operated on much-clearer, readily understandable principles, that enabled it to flat out beat the pants of AIA and the PTAB. AIA/PTAB drove the US patent system to the depths of 17th ranked worldwide, and “horribly clear” in year 1 (and for a decade), unfair to individual inventors.

    Our focus should be on getting the PTO to operate at its best — those principles, proven pre-AIA, to have maintained the USPTO at #1 ranked worldwide for years are well-known, sensible, reasonable and led to unmatched success.

    Let’s try, advocate for, the principles proven to produce such success for years — and if we don’t like such results, we can always go back to AIA and endemic efficient infringement.

  • [Avatar for Anon]
    Anon
    December 23, 2021 08:07 am

    Counter points to the notion of assertions against start-ups:

    Is that even a part of the Efficient Infringer model?

    Is that then more of a distraction than a point against having a strong patent system?

    Further, assertions are not the same as filing suit, so the hunt for “give me evidence” is not likely to provide a picture of reality.

    There is a reason why war chests are developed – the (apparent) focus by Shawn and Greg [and consider the ‘legacy’ of those sources] plays a most odd Alfred E Neumann-like “What, me worry?” game that is itself a distraction.

  • [Avatar for Greg DeLassus]
    Greg DeLassus
    December 22, 2021 09:52 pm

    [I]ncumbent corporations… want the USPTO to issue lots of patents (franchises) with which they can bludgeon disruptive startups…

    Can you cite examples of this phenomenon? I cannot think of examples of large tech companies asserting patents against startups.

  • [Avatar for Shawn Ambwani]
    Shawn Ambwani
    December 22, 2021 08:09 pm

    Josh. as i mentioned I completely agree that a bifurcated system might be the best at this point. I don’t think there was a concerted effort to get to this point by any players. It was simply the end result of a lot of decisions made over time in court, companies, and government. The system has gone awry and slowly lost its value in the process. The data shows that tech companies very rarely assert against startups and most assertions made in tech come from patents of companies which make less than $100 m. In any event, the net result is a system which benefits almost no one except the people working within it which is exactly the opposite of what it should be.

  • [Avatar for Pro Say]
    Pro Say
    December 22, 2021 06:46 pm

    Shawn: ” That will increase investment and strengthen the system.”

    Oh, you mean like like the AIA (America Invalidates Act) and the PTAB Death Squad have done?

    Curious: “Gold-plated patents (or whatever designation one wants to use) will be used by those with the gold and will only serve to maintain the disparate treatment by the system between the haves and the haves not.”

    +1

    As the Big Tech behemoths grow ever larger . . . the little American guy and gal inventors get buried.

    Where are you Congress? It’s almost 2022 . . . and you’ve been filling in your new calendar for months now.

    How about penciling in your support — and vote — to restore patent protection to all areas of innovation this year (without adding onerous new requirements)?

    You all continue to –rightfully — rail against Big Tech. Take back from SCOTUS the Constitutional authority granted to you and you alone, and watch innovative new companies rise up to challenge these behemoths . . . because Big Tech will no longer be able to steal their innovations.

  • [Avatar for Anon]
    Anon
    December 22, 2021 06:32 pm

    Mr. Malone.

    No. What you seek is not what you want.
    Nor is it any type of solution.
    Do not so willing go to the place desired by your adversaries – look into the meaning of “Divide and Conquer.”

  • [Avatar for Josh Malone]
    Josh Malone
    December 22, 2021 04:41 pm

    There are patent trolls and there are low quality patents. The vast majority are created by or sponsored by incumbent corporations. They created the problem and they push the solution – making patents increasingly harder to enforce. They want the USPTO to issue lots of patents (franchises) with which they can bludgeon disruptive startups with better technologies. They want patents for them but not for us. They want low quality and low reliability patents, and that’s what they got.

    A bifurcated patent system can offer something for everyone.

  • [Avatar for PTO-indentured]
    PTO-indentured
    December 22, 2021 01:37 pm

    Some humans are murderers and thieves — humans are trolls.

    Some products made have been terrible — manufacturers are trolls.

    This is the high-bar level of reasoning that has won over US courts at all levels, congress, and AIA ‘believers’.

    Worse, this reasoning is fiction-based. Worse it is merely alleged: Elite multinational Tech cried ‘Wolf!’ (not really there) over and over again — in the greatest paid-for anti-innovator campaign of all time. The wolf? It still has not been shown, really there.

    Basis: We think, well um… we’re pretty sure, eh we don’t actually really have proof that, some(?) individual inventors / innovators are causing substantive damage to the US patent system by certain(?) patents. And if at least some have or do, then By Golly individual inventors / innovators as a whole are: ‘patent trolls’! You can also think of them as ‘evil NPEs’ too. These ‘never do good’ NPEs don’t really producetheir inventions you know just like: authors don’t really producetheir books, and like screenwriters don’t really producetheir feature films, and like songwriters don’t really producetheir albums.

    All the ‘real work’ is done by multinational corporations!

    Creators, innovators, inventors, NPEs! It’s so scary — how they earn their livelihoods from such ill-gotten IP thinking they could even have such rights. What tremendous damage these kinds of creations have wrought in America. Multinational corporations should whip up a new Fairy Tale. Then with more IP Death Squads, end the livelihood of all such trolls.

    Sounds strange doesn’t it?

    But this is the proven real ‘toll’ a biggest paid-for campaign of all time yields — fueled by a Fairy Tale. Told enough at bed-time each night, the whole of US courts at all levels, congress and the PTO bought it lock, stock and barrel (with no substantive evidence — it is still based on fiction, still void of empirical proof).

    Small consolation: the fate of our US patent system turns on a Fairy Tale.

  • [Avatar for Josh Malone]
    Josh Malone
    December 22, 2021 12:47 pm

    @Benny, if the USPTO rejects the application they lose all the fees for issuance, maintenance, and IPR. The USPTO must issue 350,000 patents ever year, it is set by the budget.

  • [Avatar for Curious]
    Curious
    December 22, 2021 12:28 pm

    the only solution to the issues of quality I can imagine at this point is a bifurcated system which should actually increase confidence and value of the overall market
    Who is going to want the lesser quality patent? What is the value in the lesser quality patent?

    Oh wait, the higher quality patent is going to cost a LOT more. Welcome to the US Patent System — the sport of kings — where money buys you access and the (poor) little guy is shut out of just about everything. This is pretty much the system we ALREADY HAVE NOW, so why the change?

    Let’s be clear, any bi-(or tri- or whatever)furcated system is going to favor those with money over those without. Inventors aspiring to be like Josh Malone and Paul Morinville will be disfavored in such a system. It is already expensive enough for an inventor to get a patent. Small-time inventors rarely can afford to hire higher-quality attorneys who now how to avoid the traps being laid by the Federal Circuit over the past decade or so. Gold-plated patents (or whatever designation one wants to use) will be used by those with the gold and will only serve to maintain the disparate treatment by the system between the haves and the haves not.

    It’s a pretty sound general notion that in matters of patent law, go in the opposite direction of Mr. Ambwani’s feelings.
    Truer words have never been written.

  • [Avatar for Benny]
    Benny
    December 22, 2021 12:04 pm

    “Third-party pre-issuance submissions can be submitted to the patent examiner to prevent a mistake from ever being made in the first place”
    Try it and see. I’ve done it several times using 10r2 prior art, the examiner ignores it. In one case, I submitted a foreign reference to both the USPTO and AUSPAT for the same competitor application. The USPTO examiner ignored the submission, the Aussie examiner cited the submission to convincingly reject the application.

  • [Avatar for Anon]
    Anon
    December 22, 2021 09:47 am

    As if to seal the silliness of the idea of bifurcation, the illustrious Mr. Ambwani has weighed in with his feelings.

    It’s a pretty sound general notion that in matters of patent law, go in the opposite direction of Mr. Ambwani’s feelings.

  • [Avatar for Night Writer]
    Night Writer
    December 22, 2021 09:06 am

    @13 jacek

    What a weird comment. The example was given to illustrate how non-competes/trade secrets can be used to limit employment. Google et al have admitted to not competing for each others’ employees in an anti-trust suit. We know that SV is cutthroat –by far more than real estate–in trying to get the best talent and keep it.

    And—anyone that knows anything about SV–knows that the number one threat to existing companies is existing employees leaving and starting up competitive companies. That is well documented and I’ve heard the founder of Intel say this personally.

    So please try to take the example for what it was offered for. And if anything what you wrote strengthens my position as if she is nearly gone and no threat to the real estate company, then why in the world would they put up such a fight to keep her out of the business?

    Think.

  • [Avatar for SHAWN AMBWANI]
    SHAWN AMBWANI
    December 21, 2021 06:21 pm

    While I don’t agree with all the statements that gene and josh have made I do actually completely agree that the only solution to the issues of quality I can imagine at this point is a bifurcated system which should actually increase confidence and value of the overall market. That will increase investment and strengthen the system. We have a lot of patents which aren’t so good. We can’t go backward and easily fix them. Let’s see how we can improve the system moving forward.

  • [Avatar for jacek]
    jacek
    December 21, 2021 05:19 pm

    Night Writer
    The 300k legal defense fund for Gladys could make a nice retirement fund for her. I imagine she did not pass the real estate broker license exam for fun but to make some money to supplement her income. With on average 20k yearly earnings of this license holder, I do not think he will make much more at her age. Real Estate is a callous, cutthroat business.

    ——————Annon is absolutely right————————————
    I do not think the dollar is a sign of sainthood in patents when it comes to today’s posting. If so, Theranos invention would now have tremendous value instead of being non-performing junk.

    Plus, what about some democracy and the saying that “Everybody” is equal before the law?
    The real question raised today is about PARTICIPATION.

    How many greenhorns USPTO and surrounding vultures can find in quite the near future to disclose their invention in the US?
    The news about the worthless US patents spreads. When they take hold of minds the source of US success will dry, China and the EU will be light years ahead of us. China is already ahead when comes to AI inventions.
    I myself sit on the fence knowing what is waiting ahead. The Challenge of developing new is the real source of joy but what about the reality, money, and effort wasted?

  • [Avatar for Moderate Centrist Independent]
    Moderate Centrist Independent
    December 21, 2021 05:01 pm

    @1 well said, anon.

  • [Avatar for Lab Jedor]
    Lab Jedor
    December 21, 2021 03:03 pm

    One solution. A patent that is invalidated in any post-issuance procedure should be eligible for being submitted to the PTO as a continuation. This endless finagling and frustrating of inventors should end. As a benefit: a patent owner has then a better understanding of the focus of the Courts/PTAB and where to hit an infringer the hardest.

    The second-life potential of a patent should incentivize inventors to file “high-quality” patent applications. It also addresses the concerns of infringers who keep saying that it is the low quality of patent claims that concern them. We can now sue them with high quality patent claims, as they proclaim that is what is missing nowadays. So, everyone is happy,

    This also addresses an issue that is identified in the excellent Intangible IP newsletter by Louis Carbonneau that certain patents generally become valuable after a long period of time (12 years). We have seen how the patent system changes over such a long period.

  • [Avatar for concerned]
    concerned
    December 21, 2021 11:58 am

    Anon: Thank you.

  • [Avatar for Josh Malone]
    Josh Malone
    December 21, 2021 11:14 am

    Merry Christmas. Sooner or later we must deal with the fact that USPTO is handing out hundreds of thousands of public franchises to technology companies for ordinary engineering. Every few years they action off them off to patent trolls to offset their acquisition costs. If you can’t afford to purchase a thousand or more franchises of your own, you cannot play the patent game. They have rigged the system to ensure that a single patent is unenforceable, regardless of its merits.

    Patents today truly are public franchises like the right to operate a toll bridge, according to Justice Thomas. If you are wealthy and connected you can get loads of them. That is where we are, like it or not and we have to deal with it.

    This patent system has nothing to do with innovation.

    A bifurcated patent system would allow the policy debate surrounding the existing corrupt pay-to-play public franchise program to continue. Alice, eBay, PTAB, etc would apply to these unconstitutional anti-competetive patents.

    Meanwhile, new patents based on merit, innovation, and progress in the useful arts would be actually secured to the inventor for a limited time.

  • [Avatar for Gene Quinn]
    Gene Quinn
    December 21, 2021 11:14 am

    Paul @4…

    I agree with you 100%. The culprit is the lack of injunction availability. The problem is there is no end in sight for that epic mistake. No bill that has an eBay fix will have a chance for the foreseeable future, and there seems no chance SCOTUS will ever come to the realization that they are wrong about anything.

  • [Avatar for Anon]
    Anon
    December 21, 2021 07:28 am

    concerned,

    I “get” your frustration.

    That being said, your rant against IBM is just that: a rant.

    I see no cognitive point that you are presenting that is on topic here, and your assertions lack foundations.

    May there be a bias based on volume?
    OK, perhaps. But you need a better presentation to even approach that point. Do you know how many applications of IBM do not make it through to grant? Can you ascertain the content — and the differences in content – between those that do make it through to grant and those that do not?

    Attempting to compare grants en masse (with no particulars) to your own desired basis for grant is a clear non-starter. How long into IBM’s list would I go to find a single counter example of a grant that does solve a problem? (and it would behoove you to remember that solving a long-felt need is NOT a requirement for grant, so a deliberate focus on that single aspect is NOT determinative).

    Further, there is NO relation between grant rate and stock performance — leastwise in a legal argument setting.

    Do not let your emotions cloud rational thinking. You only come across weaker in doing so.

  • [Avatar for Night Writer]
    Night Writer
    December 21, 2021 04:16 am

    @3 Curious

    Could not agree more.

  • [Avatar for Night Writer]
    Night Writer
    December 21, 2021 04:16 am

    Gene, you and I have gone head-to-head a few times on trade secrets.

    Consider this:
    https://www.gofundme.com/f/an-84-year-old-with-a-5-year-noncompete?utm_source=customer&utm_medium=copy_link&utm_campaign=p_cf+share-flow-1

    Just think of how SV firms could use the trade secrets to prevent movement of software developers/hardware developers.

    Trade Secrets are almost the opposite of patents. Patents enable free movement of information and employees. Trade Secrets lock in the information and can be used to lock the employee to the company as the Trade Secret can be very broad and prevent the employee from working on related areas or even their primary area of expertise.

  • [Avatar for Paul Morinville]
    Paul Morinville
    December 20, 2021 08:54 pm

    Gene, You discuss how different patents require different levels of investment to commercialize. That is very true, but injunctive relief and a reasonable likelihood that the patent will not be invalidated, solves the problem.

    When a new technology is invented, it is possible to estimate the size of the market it will create. That market value is used to value the patent by assigning a portion of it to the patent. In a functioning patent system, it should equate to a reasonable royalty. Maybe 3% or higher. (I’ll leave that to the experts)

    So if an invention creates a $100M market, investors should be comfortable investing up to $3M to launch the startup to commercialize the invention.

    The experts valuing the market and patent will determine how much should be invested, but that evaluation couched in a market value for the invention creates the scale of investment you seek. It has nothing to do with creating a patent system that favors one type of invention over another. It only uses the patent system that was ours for the first 220 years and since destroyed.

    eBay wiping out injunctions is the biggest culprit wrecking this. If there are no injunctions, there is no willing buyer or willing seller, and therefore no future market to value. Instead investors have to value the patent at the value they think an English major in a robe will award it years in the future.

    The lack of injunctive relief is what makes all patents have the same low value to attract investment. Restore injunctive relief as the default award upon a finding of infringement, and the problem you stated goes away.

  • [Avatar for Curious]
    Curious
    December 20, 2021 08:15 pm

    The words “Divide and Conquer” come to mind, and the notion of ANY such ‘dividing’ would induce such a NEW spigot of “Corporations speaking to Congress” that makes the current capture seem like a literal drop in the ocean.
    Agree. The focus should be on protecting all innovation.

    Imagine the fights that will be made in the courts (or at the USPTO) as to whether an invention qualifies for one particular (more or less favorable) protection regime. Imagine the money that will flow in the back halls of Congress to place certain categories of inventions into particular protection regimes.

    It would make what is happening today with 35 USC 101 quaint by comparison.

    When you think of it, the Courts have already created, in essence, a two-tier protection regime via 35 USC 101. There are those inventions that are not eligible for patent protection (i.e., those supposedly directed to JUDICIAL exceptions) and those that are eligible. We’ve seen how the Courts have screwed up this up. What happens when they get a hold of whatever Congress would produce? I can all but guarantee that it won’t be a pretty sight.

  • [Avatar for concerned]
    concerned
    December 20, 2021 07:50 pm

    Anon:

    IBM gets 9,000 patents per year. The patents must be granted based on the fees said patent grants generate for the USPTO.

    No way IBM has 9,000 patents and all 9,000 are better than the one solution I created. In other words, did IBM solve 9,000 separate problems that millions of working professionals and experts could not solve in over 60 years (period problem surfaced)?

    If IBM really did solve that many problems, why is IBM stock in the toilet, losing 40% the last 9 years during a raging bull market? USPTO may try to fool me but not Wall Street.

    My father was crying horribly after going to the doctor. He said the doctor told him he had A.D.D. (attention deficit disorder) at 85. I said “Don’t feel bad Dad, I got IBM at 195!”

    Yea, 9,000 patents per year.

  • [Avatar for Anon]
    Anon
    December 20, 2021 03:44 pm

    While the idea of quiet title is interesting, I reject (and vehemently so) the notion of NOT having a “one size fits all” patent system.

    The words “Divide and Conquer” come to mind, and the notion of ANY such ‘dividing’ would induce such a NEW spigot of “Corporations speaking to Congress” that makes the current capture seem like a literal drop in the ocean.

    No thank you.

    Instead, let’s focus on protecting ALL innovation, as well as our Founder’s original and foundational premise that patents — as personal property — NEED BE fully alienable. And further – that this implicitly and explicitly means that WHO happens to own a patent is entirely immaterial to the strength and vigor to which a patent right should carry (and carry against ALL).