James Daily: An Empirical Analysis of Some Proponents and Opponents of Patent Reform

In 2015, two opposing groups of legal and economic scholars sent open letters to Congress.  The first group argued for patent reforms based upon empirical evidence indicating “that the net effect of patent litigation is to raise the cost of innovation and inhibit technological progress.”  Seemingly in reaction to the first letter, the second group expressed “deep concerns with the many flawed, unreliable, or incomplete studies about the American patent system that have been provided to members of Congress.”

In his Patently-O Patent Law Journal essay, James Daily reports the results of his investigation into the signatories to these open letters. He finds, inter alia, that the signatories of the second letter are (1) more likely to be donors to the Republican Party and (2) more likely to be registered patent attorneys.

Read the Article: James E. Daily, An Empirical Analysis of Some Proponents and Opponents of Patent Reform, 2016 Patently-O Patent Law Review 1.

 

About Dennis Crouch

Law Professor at the University of Missouri School of Law. Co-director of the Center for Intellectual Property and Entrepreneurship.

145 thoughts on “James Daily: An Empirical Analysis of Some Proponents and Opponents of Patent Reform

  1. In the broken US patent system, everybody gets to make up their own “technological field”! Yay!

    Today in oral arguments in Chicago Board Options Exchange v. Intl. Securities Exchange (2015-1728; panel: O’Malley, Mayer, & Reyna), the world discovered the existence of a “technological” field that the patentee described as “automated exchange trading systems!” That’s totally different, of course, from the super d00per technological fields of “automated bingo management systems”, “automated available real estate detection systems” and “automated shove this ad in your face systems”. Sure it is!

    Once again, Judge Chen’s coddling DDR Holdings decision is relied on heavily by the patentee. Please, junk patent peddlers, please continue to put more and more pressure on DDR Holdings!

    Check out this bizarre statement from the patentee’s attorney:

    Patentee: “The storage of the quotes is the automatically modifying is a disruptive event to the way automatic trading systems typically work.”

    That’s an exact quote, by the way, just as it tumbled out of his mouth. Can an attorney be more obtuse and full of pure b.s. than that? “Disruptive event”? LOL. Meme abuse at its finest.

    Maybe the silliest part of that bizarre comment is the use of the word “typically”. Is this automatic storage of quotes also “disruptive” to the atypical automatic trading systems out there? For some mysterious reason (can you guess it?) the patentee is silent on that issue.

    Patentee: “The automatic exchange trading system is essentially an exceedingly complex machine.” [<– it's a programmed computer, folks]

    The patentee then makes the d.o.a. argument that the programmed computer is not "general purpose" because … they are expensive and powerful! News flash: the cost of the programmable computer that is being programmed is completely irrelevant to the analysis.

    The patentee also tries to tie the f@te of its claim to the f@te of all financial services claims as if that threat matters to anyone other then the holders of junk patents.

    Patentee: “Trillions of dollars every day! You can’t get much more real than that!” [<— try to believe it folks. News flash: "1 trillion dollars" is no less abstract than "negative fifty cents"]

    Patentee: "These are super computers! These are hundreds of thousands of dollars, these machines! The PTO paid no deference to this!" [<– why in the world does he think this matters?]

    The CAFC judges dealing with 101 cases invariably ask a variation of a silly question: "Is it possible to patent an eligible solution to a problem presented by a previously described computer-automated method?"

    The correct answer and the answer that every defendant should memorize is “Absolutely, your honor. For example, the patentee could recite a novel non-obvious structure in objective structural terms that distinguishes the new machine from all the prior art machines and solves a problem presented by those prior art machines. That type of claim would avoid the abstraction issues which plague claims reciting only ‘new’ information-processing logic, whether that logic is ‘automated’ or not.”

    That is the correct answer to the oft-asked question. The answer should never be “I don’t know.”

    The question that the Federal Circuit is afraid to ask but should be asking is: “What is it about logic that is performed by a programmed computer that makes that logic eligible for patenting in that context and only in that context? Are certain kinds of logic patentable, but other kinds of logic not patentable? If so, which are the eligible kinds of logic and where and why do we make the distinction?”

    This is called “facing the music.” Until the CAFC grows up and starts facing the music, the farce is going to go continue indefinitely. The CAFC surely knows this. More importantly, soon enough everybody is going to know this and the CAFC’s complicity in the farce will become perfectly transparent.

    Kudos to the attorney arguing for International Security Exchange (the petitioner for the IPRs at issue in the two oral arguments this morning). This guy is a great speaker, smart as a whip, and clear as a bell. It’s just beyond belief that the most important patent jurists in the country have to endure extended lectures on a subject (stock trading) that doesn’t belong anywhere near a sane patent system. Expunge this junk with extreme prejudice.

    1. PROCESSES are patentable. They are even listed first:

      Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.

      The age of any tools used in a process has no bearing on the eligibility of the process.

      Crestor might be made in the same reaction vessels they use for making aspirin the 100 years before. That does not mean that a process for making Crestor is not patentable.

      1. PROCESSES are patentable.

        Some are, and some aren’t.

        Every competent patent attorney knows this, especially the last part.

    2. MM, I listened. The argument of Murray (against the patent) was that the argument of the patentee was far beyond the scope of the patent that simply involved determining risk, and then adjusting a quote automatically. The patentee was talking about thousands of contracts added to a quote. That was not claimed. Queues. Not claimed. Fast and expensive computers. Not claimed.

      I think Murry’s subtext is that if the patent had actually claimed a technological solution beyond merely the (conventional) method of balancing risk limited to a specific context, then the patent may have defined a patentable invention.

      In the IPR we find that that risk controlled by increment a number every time a contract was added to a quote until a threshold, after which the quote had to be changed in a direction that automatically accommodated the risk. Now this is very close to Alice, because it simply is a method of balancing risk, as opposed to any technology involved.

    3. In the broken US patent system, everybody gets to make up their own “technological field”! Yay!

      Asked several times previously – but never answered in any meaningful manner,

      Define “technological” in a non-circular way.

      Then realize that here in the U.S., our patent system is not limited to ANY sense of “technological arts,” but instead is expressly wider in that our patent system is geared to the Useful Arts.

  2. In the modern US patent system, everybody gets to make up their own “technological field”! Yay!

    Today in oral arguments in Chicago Board Options Exchange v. Intl. Securities Exchange (2015-1728; panel: O’Malley, Mayer, & Reyna), the world discovered the existence of a “technological” field that the patentee described as “automated exchange trading systems!” That’s totally different, of course, from the super dooper technological fields of “automated bingo management systems”, “automated available real estate detection systems” and “automated shove this ad in your face systems”. Sure it is!

    Once again, Judge Chen’s coddling DDR Holdings decision is relied on heavily by the patentee. Please, junk patent peddlers, please continue to put more and more pressure on DDR Holdings!

    Check out this bizarre statement from the patentee’s attorney:

    Patentee: “The storage of the quotes is the automatically modifying is a disruptive event to the way automatic trading systems typically work.”

    That’s an exact quote, just the way it came out of his mouth. Can an attorney be more obtuse and full of pure b.s. than that? “Disruptive event”? LOL. Meme abuse at its finest.

    Maybe the silliest part of that bizarre comment is the use of the word “typically”. Is the storage of quotes “disruptive” to the atypical automatic trading systems out there? For some mysterious reason (can you guess it?) the patentee is silent on that issue.

    Patentee: “The automatic exchange trading system is essentially an exceedingly complex machine.” [<– it's a programmed computer, folks]

    The patentee then makes the d.o.a. argument that the programmed computer is not "general purpose" because … they are expensive and powerful! News flash: the cost of the programmable computer being used is completely irrelevant to the analysis.

    The patentee also tries to tie the fate of its claim to the fate of all financial services claims as if that threat matters to anyone other then the holders of junk patents.

    Patentee: “Trillions of dollars every day! You can’t get much more real than that!” [<— try to believe it folks. News flash: "1 trillion dollars" is no less abstract than "negative fifty cents"]

    Patentee: "These are super computers! These are hundreds of thousands of dollarrs, these machines! The PTO paid no deference to this!" [<– why in the world does he think this matters?]

    The CAFC judges dealing with 101 cases invariably ask a variation of a silly question: "Is it possible to patent an eligible solution to a problem presented by a previously described computer-automated method?"

    The correct answer and the answer that every defendant should memorize is “Absolutely, your honor. The patentee could recite a novel non-obvious structure in objective structural terms that distinguishes the new machine from all the prior art machines and solves that problem. That would avoid the abstractions that plague claims reciting only new information processing logic, whether that logic is automated or not.”

    That’s the correct answer to the oft-asked question. The answer should never be “I don’t know.”

    The question that the Federal Circuit is afraid to ask but should be asking is: “What is it about logic that is performed by a programmed computer that makes that logic eligible for patenting in that context and only in that context? Are certain kinds of logic patentable, but other kinds of logic not patentable? If so, which are the eligible kinds of logic and where and why do we make the distinction?”

    This is called “facing the music.” Until the CAFC grows up and starts facing the music, the farce is going to go continue indefinitely. The CAFC surely knows this. More importantly, soon enough everybody is going to know this and the CAFC’s complicity in the farce will become perfectly transparent.

    Kudos to the attorney arguing for International Security Exchange (the petitioner for the IPRs at issue in the two oral arguments this morning). This guy is a great speaker, smart as a whip, and clear as a bell. It’s just beyond belief that the most important patent jurists in the country have to endure extended lectures on a subject (stock trading) that doesn’t belong anywhere near a sane patent system. Expunge this junk with extreme prejudice.

    1. In re Smith (CAFC 2016)

      Money quotes:

      [E]ven if the Applicants had properly challenged [the PTO’s 2014 Interim Guidance on Patent Subject Matter Eligibility] , we have previously determined that such Guidance is “not binding on this Court.” See In re
      Fisher
      , 421 F.3d 1365, 1372 (Fed. Cir. 2005). Thus we decline to consider Applicants’ argument regarding the Interim Eligibility Guidance.

      There’s plenty of ‘fail’ baked into those “guidelines.”

      [T]he rejected claims are drawn to the abstract idea of rules for a wagering
      game and lack an “inventive concept” sufficient to “transform” the claimed subject matter into a patent-eligible application of that idea

      The claims at issue recited rules and a shuffled deck of standard playing cards.

      Question: will the CAFC ever get around to explaining why it treats claims to “wagering games” using “rules” and conventional “technology” different from other claims reciting the application of statistical “rules” to process data with conventional “technology”? I’m guessing that’s a third rail they won’t want to touch anytime soon, to their detriment.

      1. Check this from Stoll’s opinion, “To determine whether an invention claims ineligible subject matter, we apply the now-familiar two-step test
        introduced in Mayo, id. at 1296–97, and further explained
        in Alice, 134 S. Ct. at 2355. First, we determine whether
        the claims at issue are directed to a patent-ineligible
        concept such as an abstract idea.”

        Shouldn’t that better be phrased as, “First, we determine whether
        the claims at issue are directed to [[a]] patent-ineligible
        [[concept]] subject matter such as an abstract idea.”

        It looks like the Feds are still borderline in their understanding of Mayo/Alice.

        link to cafc.uscourts.gov

      2. MM, I am sure that in a two-stepper, the Feds will find “rules” abstract.

        The question then becomes whether the rules are applied to improve the internet qua internet, for example, or to whether the rules are applied to improve a business method where the internet is merely recited generically, like background noise.

        1. The question then becomes whether the rules are applied to improve the internet qua internet

          As opposed to the ineligible rules that are applied to “improve the cleanliness of the bathroom qua bathroom”?

  3. Fairly interesting oral arguments today in Essociate Inc. v. Clickbooth.com before Reyna, Wallach, & Hughes. Essociate’s claims were tanked by the district court under 101.

    Lesson for patentees/applicants: Programming a ge neral purpose computer does not result in a “specialized computer”. Nearly all of the Federal Circuit is on top of this and arguments that some programming turns a ge neral purpose computer(s) into a “specialized computer” do not get off the ground.

    1. Adding: the CAFC continues to struggle with the worthless test that it claims to have found in Alice, namely that if the problem being addressed by the claims is “Internet specific” then the eligibility problem disappears. The reason that the CAFC’s test is d.o.a. is that the Internet, of course, is no different than every other prior art context in which information is shared, accessed, stored and processed insofar as it has unique aspects (e.g., the use of so-called “hyperlinks”) that distinguish it from other contexts (hence the use by humans of a word specific identifying that context). Salting a claim with those aspects and applying logic to those aspects in relation to some information content or abstract human relationships (e.g., “affiliates”) does not cure a glaring eligibility issue.

  4. Oral arguments today in HBAC Matchmaker Media, Inc. v. Google Inc. revolved around an all-too-familiar scenario where some kind of reform (judicial or otherwise) is badly needed.

    Once again we see a computer-implementer reaching into the ether and grabbing a term appearing nowhere in the specification to sidestep a prior art reference. And the PTO bends over and lets it happen because “shiny” (heckuva job!).

    So guess what happens when the patent is asserted? The patentee tries desperately to construe the term to mean “whatever is least limiting but still gets around the cited art that we were unable to distinguish in English during prosecution because, well, we’re incompetent and our specification stinks.”

    The added term in question is “head-end system”. The patentee complains that the district court judge incorporated limitations into the term that “don’t belong there”. But the problem is the term doesn’t belong in the claim because it wasn’t in the specification. Guess what else doesn’t appear anywhere in the specification? Any mention of the Internet or broadcast over the Internet. Guess what the patentee is alleging that the patent covers? Yup.

    It’s time for the Federal Circuit to put away the kid gloves and pick up the hammer. Tr0lls like HBAC Matchmaker Media, Inc and their cr@ppy attorneys need to find another grift. Written description needs teeth because there’s an incredible amount of junk out there to chew up.

    1. From the questions at the argument it appeared that the judges (Prost, Dyk, Stoll) did not think this case was as clear-cut as you apparently think it is.

      I guess we’ll see when a Rule 36 judgment/opinion comes out.

      Also, regarding your observation about the Internet, doesn’t the case law hold that patents can cover after-developed technologies (e.g., the Hughes Aircraft v. United States case)? Since the technologies were developed after the patent issued, then by definition, there will not have been a “description” of those technologies in the patent.

      1. I guess we’ll see when a Rule 36 judgment/opinion comes out.

        I don’t predict a Rule 36 judgment in this case.

        From the questions at the argument it appeared that the judges (Prost, Dyk, Stoll) did not think this case was as clear-cut as you apparently think it is.

        The written description problem is clear cut and it should be enough to tank the claim on summary judgment. The incredible waste of time and money leading to the ridiculous oral arguments today are the reason why. It’s the CAFC’s own miserable case law that keeps tr0lls like the patentee here propped up. The judges themselves recognized the lurking written description and enablement issues in this case (although they failed to acknowledge their tendency to bend over backwards to find computer-implemented claims broadly enabled while simultanously pretending, in non-enablement contexts, that the Internet is “totally different”).

        doesn’t the case law hold that patents can cover after-developed technologies

        The Internet existed before 1995. You knew that. Transmitting data over a computer network that could be converted into a video image existed before 1995. You surely knew that as well. Anything else you want to say about “after developed” “technology”?

        Here again we see the remarkable ability of certain folks — including Federal judges (as I’ve previously demonstrated) — to pretend they were born yesterday as long as it serves the purpose of promoting the propagation of the worst junk that any patent system has ever dealt with.

      2. Pilgrim, an example from Hughes about what you are talking about would help us understand your point.

        However, the issue here is not about whether a claim term that is otherwise used in the specification can apply to after-developed technology. The issue here the meaning of a claim term that is not used in the specification and that has no other well understood meaning to one of ordinary skill in the art such that it might define known structure. To the extent that the PTO allows this to occur, they are foisting on to the public an inherently indefinite patent that should be almost summarily invalidated.

    2. MM, a term not appearing in the specification should either define known structure or be treated under 112(f), until repealed. Otherwise, it is inherently indefinite.

  5. Does it make sense:

    A. Given proposed reforms to the law which potentially threaten to violate particular rights,

    that

    B. political parties and attorneys traditionally representing individuals who would be most affected by the violation of those rights would be more involved in fighting those reforms than others?

    What an astounding finding. Well worth the paper it is written upon.

    1. But don’t you “love” the immediate Malcolm twist and denigration?

      It’s like hyper chum for ad hominem.

    2. anon2 political parties and attorneys traditionally representing individuals who would be most affected by the violation of those rights would be more involved in fighting those reforms than others? What an astounding finding.

      Note that there’s disagreeement in this thread as to whether those “traditional relationships” are switched in this instance.

      In addition, there’s been disagreement over the years as to whether there is any detectable correlation between party affiliation and support for patent reform.

    3. The paper’s conclusion was not that those were particularly surprising or interesting findings. The more interesting finding was the differences that did not exist. For example, there were not significant differences in the number of signatories with technical backgrounds, business or economics backgrounds, non-JD doctoral degrees, or even those which were attorneys. There also weren’t significant differences in age or where signatories went to school.

      It’s not a case of lawyers vs economists, STEM folks vs social scientists, old vs young, or U Chicago vs Stanford. Yes, there is a correlation with PTO registration, but even in the 2nd letter fewer than half of the signatories are registered with the PTO.

      The paper’s actual conclusion was that the two positions should be considered on their merits. I don’t think either can be easily dismissed as the product of bias. Both letters were put forward by two large groups of equally experienced and accomplished experts in their field.

      1. I don’t think either can be easily dismissed as the product of bias.

        OR

        Both can be noted as having bias (but perhaps your choice of viewing lens does not capture the obvious bias).

      2. >>I don’t think either can be easily dismissed as the product of bias. Both letters were put forward by two large groups of equally experienced and accomplished experts in their field.

        I don’t buy that. I have an incredibly busy day at work (and month really), but from my reading of the list and the people I knew on the list I’d say that he second list had some people with real experience and some real scholars. The first list appeared to me to be populated with people that were judicial activist and had some cause they were pushing.

        But—the second group definitely had the serious scholars–not judicial activist with attitude.

        1. “People who agree with what I want the law to be are serious scholars, people who disagree are judicial activists with attitude.”

          1. patentcat–look at the lists. The second letter has the real scholars, and I will point out the people that I respected before this 101 nonsense reared its head.

  6. My take on this paper is that it is fairly ridiculous. Why? The sample sizes are small and you can just read the list of people and get an idea of who they are. Moreover, there is no analysis of which ones are real scholars (lots of them in the 2nd letter) and which ones are paid off charlatans (lots of them in the first letter.)

    K Street has managed to muddle things so much, but this paper doesn’t help. How about how many are real scholars (e.g., judged by books they wrote that are used by other schools to teach classes), and how about disclosure of where they are getting their money. How many are paid-off? Probably a lot of the first letter people get money from Google. Also, let’s stop calling anything that is not peer reviewed a paper. How about a vanity publication? Or hard copy blog post?

    1. I would even call “peer review” a worthwhile metric, given the lack of meritocracy and tendencies towards groupthink in academia (just look at the “peer support” for the likes of Bessen)

    2. The sample sizes are as large as they can be. I considered every signatory to both letters. The purpose of the study was not to use the signatories as proxies for all people with an opinion on patent policy. I disclaim this at the beginning of the paper:

      It should be noted at the outset that the selection of signatories was almost certainly biased by the letters’ organizers and the signatories themselves. Thus, the letters are not necessarily representative samples of legal and business academics or attorneys.

      Rather, the purpose of the study was to investigate whether the signatories to the letters divided along any particular lines that would either a) explain their motivations or b) suggest any particular blindspots or limitations. For example, if one letter had lots of economist signatories and the other had none, then that might suggest any economic arguments made in the latter should be considered especially critically.

      How about how many are real scholars (e.g., judged by books they wrote that are used by other schools to teach classes), and how about disclosure of where they are getting their money.

      You are welcome to take the provided dataset and add to it. I would be very interested to see statistics on publication numbers, impact factor, and co-authorship networks.

      Also, let’s stop calling anything that is not peer reviewed a paper.

      Are you referring to this paper or to works by the signatories? For what it’s worth, virtually no law journals are peer-reviewed; they’re almost all edited by law students (an abysmal state of affairs that I would very much like to see change). This article was edited by Prof. Crouch, which is at least closer to peer review than having a 2nd or 3rd year law student review it.

      1. Look, the point is that the real scholars and the real people were on the second list. If I had the time today, I could go into more depth about that, but there were the real scholars of patent law on the second list. Not judicial activist like Lemley who has so much baggage associated with him that it surprises me he can walk.

        And, look—the reality of what is going on is that real people that work in innovation see the effects of patents daily. We see the patent process motivating large and small companies to innovate and spend time and money doing so. We see people like Lemley fabricate nonsense like his functional paper or that software has no structure. Or, not tell us how he is protecting IP at his start-up (likely draconian employment contracts). Etc.

        The metrics you used are more like what a university would consider a credential for being hired than what a law firm or corporation would use to decide whether to hire a person. I would want to know the number of years they have of real experience in patent law, patent prosecution, licensing, patent litigation, etc. What they have actually done in innovation in terms of start companies, negotiate with large companies, etc.

        Etc. I mean that law journal articles are a joke. Lemley, for example, can pretty much publish whatever he wants. I contend that the references that Lemley uses in his functional paper do not support the propositions he asserts they do. Etc. Lemley said in one of his papers that software has no structure. Never retracted it. Never commented on this. Just say whatever you want and claim a reference supports whatever you say it does.

      2. And, by the way, I have posted links on here before where real scholars have said that law professors at the top law schools do whatever they want with impunity. That the law schools and their peers put ZERO ethical constraints on their behavior even when other professors (not lawyers) accuse them of wrong doing.

      3. And another thing you might want to think about is that the first letter argues in a vacuum. How can it be that the software industry in the USA which grew-up with strong patents and is 10 times the size of any other software industry is suddenly in peril from patents? Doesn’t this sound a lot like the financial industry suddenly would be better off with no regulation?

        >> Again, the first group of people have little depth in actually working with patents and innovation. That is the key. Degrees mean nothing.

        Any analysis of the patent system that looks at the big picture and understands the patent system comes out that the patent system is why the USA has the most innovative economy of any other economy in the history of the world.

        1. You’re completely ign0ring major factors that influenced the US being the leader in software that it is today.

          The US has been the leader in s0ftware since WWII, and arguably before. Before personal computers, mobile phones, and tablets were even a thing.

          You’re ign0ring the incredibly complex relationship between hardware and s0ftware, and the fact the US has been the leader in hardware since ~the end of WWII (and the reasons other countries weren’t the leaders in hardware).

          You’re also ign0ring the incredible amount of g0vernment funding and projects that led to the US being the leader in hardware/software. Things like ARPA, funding for research at private companies, US universities, and national labs.

          You’re also ign0ring the fact that the US has a large, h0mogeneous population (same language, unlike the EU), and has had one of the highest GDPs per capita since WWII.

          You’re also ign0ring the fact that these are largely winner-take-all industries (and how the US having high GDP per capita and being a large, wealthy country impacts this).

          I’m not saying software patents had no role, but you’re probably vastly overstating their role.

          Why can’t I post this? ARG

          1. Yes there are circumstances that make it difficult to analyze completely, but then the patents had to do with all the EE stuff —and the starting of the software even going back to punch cards pre-1900.

            But, your economic arguments about why other countries have not be able to compete with us are pretty lame considering they have competed with us –and won or tied us–in almost every other category of technology and product. But, not software. And software has the unique position of being protected in the US and not in the countries that could have competed with us.

            Nice try, though. But, your arguments do not hold water.

            1. The US is a leader in dozens of areas of technology: semiconductor devices, pharmaceuticals, materials science/polymers.

              And other countries are competing; they just don’t compete in the US. China has, for example, Baidu, alibaba, QQ, Youku, tencent, COS (mobile operating system), but they’re local.

              I also don’t think foreign (at least non-EU) companies would make it in the US because of the paranoia (China/India will steal our data! I also don’t think these fears are entirely misplaced).

              >Nice try, though. But, your arguments do not hold water.

              Yes, they do.

              You’re just never going to admit anything because you specialize in software patents, and can’t deal with the cognitive dissonance that would come if you actually looked at the facts. I’ll leave you with this fun quote, that pretty much sums up why you’re never going to consider alternative viewpoints, even if they are factually correct:

              “It is difficult to get a man to understand something, when his salary depends on his not understanding it.”

              1. It is a bit of a microcosm into the mindsets that has led to a Donald Trump candidacy in the first place, though. Things you don’t like are a conspiracy; evidence of those things being true is either ignorable or just proof of more conspiracy; say a contrary thing loud enough and everything will work out.

                Golly that sounds familiar.

                1. It should Malcolm – it is your own “playbook.”

                  Malcolm is the Trump of the anti-patent blogosphere.

                  Have some more popcorn, chump.

              2. patentcat–you have no idea what you are talking about. I have worked in the software industry as it grew-up with patents. I do know.

                Actually, patentcat, I realized the value of patents and got into patent law from software engineering and business. My opinions about the value of patents was derived when I was an inventor listed on the patents and not as a patent attorney.

                Anyway, your argument that gee no one else could make it in software is ridiculous. Just ridiculous. Moreover, saying we are leader in some fields (all of which have patent protection) is true. So what? They have patent protection too.

                And, they prove my point. The countries that compete with us in those fields have patent protection in those fields. Software is one of the illustrations of patents and their value to innovation.

                You people just do not listen to empirical evidence. Nor do you have any deep understanding of the patent system. Anyone that starts citing the abusers of the system (the law firms that push litigation), has simply no idea what they are talking about.

                I’ll bet you can’t even explain what the values of the patents are. Anyway, just disgusting having to deal with people like you.

                1. No, you’re the one with no idea what you’re talking about, and is rationalizing everything through the lens of “post hoc ergo propter hoc”.

                  But you need to justify your existence or whatever, so keep those blinders on.

                  The point was that you can still be a leader in technology, even if countries have similar protections.

                  The other point was that other countries are also leaders in software, even without software patents equivalent to the US.

  7. The primitive prism through which Pr. Crouch sees his world.

    “signatories of the second letter are (1) more likely to be donors to the Republican Party and (2) more likely to be registered patent attorneys.”

  8. ‘the net effect of patent litigation is to raise the cost of innovation’

    Patent litigation does not raise the cost of innovation -only theft of.

    Congress should beware of the ‘findings’ of moonlighting educators working for large Chinese and multinational invention thieves. They say and write what they are paid to.

    For our position and the changes we advocate, or to join our effort, please visit us at link to aminventorsforjustice.wordpress.com
    or, contact us at tifj@mail.com

    1. Congress should beware of the ‘findings’ of moonlighting educators working for large Chinese and multinational invention thieves. They say and write what they are paid to.

      LOL. You can’t even parody this stuff.

      Thankfully it doesn’t sound anything at all like something you’d hear coming out of the mouth of some undereducated flag-waving Rethug (“The concept of global warming was created by and for the Chinese in order to make U.S. manufacturing non-competitive” <– guess who?).

        1. Sounds like an invitation to visit Quinn’s site and see if that quote can be found there.

          Gee, Malcolm driving traffic (again) to Quinn because of Malcolm’s 0bsess10n…

      1. What is a “net effect” of only a portion of the patent system? So, should we say the “net effect” of disclosure in a patent application greatly increases the rate of innovation. Yes, let’s just pick and chose parts of a system.

    2. Staff’s point is a real good one. And even further, the point is that litigation is part of the patent system, and yes it has its costs. You cannot separate litigation from the incentives and all the money that flows into innovation because of patents.

      You know, what strikes is this fantasy world that K Street has constructed. In the real world of innovation, patents are central. They are central in big innovation companies, they are central to little start-ups. Anyone that actually works in this field knows that.

    1. Patent law being at its core a sovereign law (aiming for what is good for the sovereign) might very well find some correlation with authoritarian views.

      That does not – and should not – serve as a base for ad hominem for unrelated aspects of authoritarian views – the basest of ad hominem attacks.

          1. “What do you think the Quid Pro Quo is based on?”

            To the extent that there is such a “quid pro quo” and that such a thing in the patent context is not solely an imaginary thing made up by people who confuse you, the “quid pro quo” is “based upon” the notion that the government will give an entitlement in exchange for the disclosure in an attempt to promote the progress o the useful arts and sciences.

            “The better question is: Why haven’t you heard of this?”

            Because it was just made up on the interbuts by and idi ot named anon.

            1. To the extent that there is such

              There goes 6 – playing the f001 and ignoring the basics because they are just too darn inconvenient for him…..

  9. Does anyone think the AIA was a big help (other than perhaps the IPR regime, which is still over $600K to disposition)?

    Reform should be as minimal as possible and focus on a statutory definition of “abstract ideas”, procedure for early determinations of law in cases, piercing the veil of the powers behind litigation entities, and fee shifting for low quality (but sadly not “exceptional”) assertions by some objective measure of proportionality (to damages, or nexus to sales, or strength of legal argument as determined by judges, or all of the above)….

    1. Martin, to the extent that the ultimate objective was to harmonize US patent law with the ROW, the AIA was a misstep in the right direction.

      Those crafting the legislation forgot their objective and created a prior art regime and grace period vastly inconsistent with the ROW. We have what MaxDrei calls a first-to-file system that retains the very worst aspects of or prior first-to-invent system.

      So now we have first-to-file, but a substantive law still way out of phase with the ROW.

      Then there is the matter of 112(f) that was not addressed. That statute needs also to be repealed to bring us into harmony. There is worldwide consensus on that point.

    2. Oral arguments today in Bascom v. AT&T re

      5987606

      This junk was tanked under 101 at the pleadings stage by Judge Lynn (story here: link to law360.com)

      1. A content filtering system for filtering content retrieved from an Internet computer network by individual controlled access network accounts, said filtering system comprising:

      a local client computer generating network access requests for said individual controlled access network accounts;

      at least one filtering scheme;

      a plurality of sets of logical filtering elements; and

      a remote ISP server coupled to said client computer and said Internet computer network, said ISP server associating each said network account to at least one filtering scheme and at least one set of filtering elements, said ISP server further receiving said network access requests from said client computer and executing said associated filtering scheme utilizing said associated set of logical filtering elements.

      According to the patentee’s attorney, this claim is “disclosing specific logic at the ISP level” and somehow that qualifies as “technology”, even while the specification admits that filtering is old, ISP servers connected to clients are old, and filtering on the ISP server is old.

      From the spec:

      some service providers, such as America Online, have used a third “server-based” configuration where the filtering function is performed at the remote server site. To the inventors’ knowledge, however, each of the existing systems implementing this server-based configuration utilize a single set of filtering criteria for all of their controlled-access end-users.

      So let’s use two sets for the two different users! Yes, that’s the “innovation.”

      The patentee lucked out by pulling Judge Chen, whose DDR Holdings opinion remains the single plank over which patentees on logic may safely walk (for the moment).

      “Why isn’t the inventive concept locating the filter at the ISP server instead of at the personal computer”? Chen asks. The answer, of course, is that filters are for filtering and putting a known filter in a place where filtering can (and did) take place for the purpose of (wait for it!) filtering using two criteria instead of one criterion isn’t “innovative” at all.

      The real groaners from the argument:

      Judge: ‘There’s no evidence in the record that these are well-known routines”. [<-in fact it's admitted right there in the background and, as a matter of logic, "filtering content" is as old as the human brain]

      Patentee: "We don't have any record at all." [<- actually we have your specification which is filled with admissions]

      Also numerous references by the patentee and judges to "many different users" or "thousands of users" when the claim is far broader than that. It covers a network of two clients.

      For what it’s worth, the attorney for AT&T could have done a lot better here. Bonus points for almost suggesting that DDR Holdings got it wrong.

      1. MM, 101? As you describe it, the claim is anticipated by the prior art even as admitted in the specification. The claim requires only one filtering scheme at the ISP, and one ISP filtering scheme was known.

        On 101, I don’t understand why this is not eligible. Assume the filtering scheme was to filter adult content to a government office. That would be one use, and we could all applaud that use. The technology is the filter itself, and its location at the ISP.

        As to extending the concept to multiple schemes, well that is not even claimed, now is it? But even if it was claimed, why is this not subject matter patentable under 101. It certainly improves the utility of WWW.

        1. Ned; The claim requires only one filtering scheme at the ISP, and one ISP filtering scheme was known.

          On 101, I don’t understand why this is not eligible.

          “Filter information with a computer” – ineligible
          “Filter with a first computer, wherein the first computer is remotely attached to a second computer.” — ineligible

          Is that too hard to follow?

          As to extending the concept to multiple schemes, well that is not even claimed, now is it

          No, but the “plurality of sets of logical filtering elements” is claimed. That’s huge! Nobody ever used multiple sets of logical filtering elements to provide different filtering to different “clients” with different tastes/purposes. One size fits all because before the Internet we were all the same and we given the exact same information/products/treatment wherever we went, no matter what we asked for. Don’t you remember?

          It certainly improves the utility of WWW.

          Using basic logic and increasing access to more logic (e.g., “personalizing”) tends to improve the utility of just about everything. That’s why we don’t allow patents on logic.

          1. MM, You can say that Diehr was about calculating numbers as well. But in reality, it really was about a molding process.

            The internet is a system of linked computer that pass packets of data from here to there. In a sense, everything about the internet uses conventional hardware. But still, when two computers are talking to each other in computer language, it is digital. Improvements to that communications by providing content filters arguably improve the system, even though some would believe that filters should categorically not apply from a free speech point of view.

            For me, improving content filters or how it is done actually improves the internet qua internet. Such claims are not about improving a business method or about calculating price. They are about improving communications in general, to extent one actually thinks that censorship is an improvement: Restricting government agencies access to adult sites is something that is going to improve government, reduce costs and allow us to have more money to spend on something worthwhile to the public weal.

            1. Ned: The internet is a system of linked computer that pass packets of data from here to there.

              Right. It’s a system for sharing information, selectively or not, as people choose.

              In a sense, everything about the internet uses conventional hardware.

              That’s true only if nobody is innovating any new hardware. Are people innovating new hardware? I’m pretty sure they are. And I’m pretty sure they’re patenting it as well. And I’m pretty sure that the number of patent attorneys sitting around dreaming up new hardware and trying to “get rich(er)” by dragging corporations in multiple industries into East Texas with claims to that new hardware was always pretty close to zero. That’s a feature of a healthy patent system.

              There will be no end to the continued tightening of the system as a whole as long as the patenting of logic is allowed to plague the US patent system. Take it to the bank.

              1. Here is MM highjacking another thread. Instead of making a comment about the subject of the post, i.e. the two opposing views of patent reform, she has to bring up a claim that she believes to be bad.

                MM is it too hard to comment on the subject of the post?

                1. is it too hard to comment on the subject of the post?

                  No, that was easy. See comment 3.

                  Welcome to the Internets, by the way, where people discuss stuff and go off on tangents all the time. Given the last quarter century or two of US patent law history, talking about “patent reform “without getting to the topic of subject matter eligibility is pretty much impossible. It’s going to happen (the discussion) so you might as well get used to it.

            2. The huge reform problem is the difference between what is intrinsically “abstract”, which should be an eligibility question, and what is an abstraction of an invention, which should be a patentability question. We have two separate problems and only one legal tool to fix them.

              The filter problem is a form of the latter. Y’all know my detailed thoughts on this- anyone who cares can find them here. link to papers.ssrn.com

              Speaking of filters, if you want to by a t shirt at JCrew or send your sweetie some flowers from FTD, it just got more expensive.

              Why? Because “FILTERS!”.

              US 6,782,370 B1

              1. A computer-implemented method for the recommendation of goods and/or services to potential customers over a distributed network based on customer buying history utilizing an information processing system containing processing means having transmission means for receiving and transmitting data, and database storage means for storing information in database files, the method comprising the steps of:
              receiving customer commands specifying a particular good or service to be used as filter data;

              storing information pertaining to goods and/or services purchasing history of previous customers;

              comparing said filter data with said stored information and determining whether, for said filter data, corresponding entries exist within the stored information; and

              if corresponding entries exist, displaying the identity of other goods and/or services purchased by said previous customers who have purchased the good and/or service used as said filter data.

              Feel the innovation. See how it improves people’s lives. Understand that these litigation costs are MILLIONS of dollars- as if stores were burning down uninsured. If that were happening, people would be screaming for a fix, but because its a legal racket that nobody can get their minds around, nothing can happen.

              They know if they mess with patents, all the good things of modern life are at risk- it goes on and on and on and on…..

              It’s a cancer in the exact sense that what was good and healthy is now grown out of control and destroying, and attacking it only morphs it in other directions. Truly an evil thing, but not the creation of any one evil actor….

              1. I forgot to mention that Amazon’s expired one-click patent was cited by a judge yesterday as an example of “an improvement to the Internet” that, apparently, stands as an example of what that judge would find awesome and eligible.

                Absurd.

                1. To me, the one click patent should be eligible under 101 and obvious under 103, and that would be that.

                  It is a “process” in the broad sense of the word that the Bilski court interpreted Congress to have intended.

                  We disagree about the philosophical / economic values of eligibility for intangible inventions (i.e. logic and information) when they are truly useful, new, non-obvious and fully described.

                  I think reasonable people can and do disagree on that point – and that is the root of the problem and the ledge on which the rackets live. Hence my attempt to square the circle by limiting the consumption of such results to non-human actors.

                2. MM, I agree with Martin here. Since the object of the improvement is a machine, the claims are eligible.

                  Now whether they might be obvious is another matter.

              2. Are you saying that this wasn’t an invention in 1997 or are you saying that since they have been doing this for almost 20 years, it is now obvious and you want to roll your eyes?

                Hindsight is 20/20.

                1. It wasn’t an invention in 1887 or 1787 or even 1687. If a general storekeeper knew their customer, the customer could walk in, grab a sack of flour, nod at the storekeeper, and leave. That’s one click.

                  The skill needed of a PHOSITA to implement that transaction in an e-commerce environment was minimal. The idea to do so was obvious and clearly motivated (noting that the TSM test is not dispositive as of KSR).

                  Everything new or different is not worthy of a patent, and surely things that are barely new or barely different are less worthy than that.

                  The underlying technology of ecommerce? routers, switches, hard drives, etc? Another story if the structures were new and useful and fully described and not within the easy skill of people in the art.

                  The underlying logic of ecommerce expressed as processes? Again, that’s where MM and I differ: One click ordering is a “process” in the broad sense of the word that the Bilski court interpreted Congress to have intended.

                  We disagree about the philosophical / economic values of eligibility for such intangible inventions (i.e. logic and information) when they are truly useful, new, non-obvious and fully described.

                  Hence my proposal of limiting the consumption of such results to non-human actors to ensure that patents do not exclude or provide rental opportunity to cultural and social processes that would effectively impair human freedom; like the ability to nod at a storekeeper and walk out the door.

          2. ““Filter information with a computer” – ineligible
            “Filter with a first computer, wherein the first computer is remotely attached to a second computer.” — ineligible

            Is that too hard to follow?”

            Only because there is no reason a new, useful method for filtering information (with or without a computer) is ineligible.

            Your declaration does not make it so.

            1. Les: there is no reason a new, useful method for filtering information (with or without a computer) is ineligible.

              The reason you are wrong (and we can all be thankful for this) is that granting such claims would cause the system to implode pretty such immediately.

              Granting such claims “on a computer”, of course, caused the system to implode over the course of a decade and it’s a mess we’ll be cleaning up for another decade, at least.

    3. MS: Reform should be as minimal as possible and focus on a statutory definition of “abstract ideas”

      If you’re going to exclude information processing logic from the definition of “abstract” then you’re better off picking another term.

      Note that any definition of “abstract” that includes information-processing logic will not qualify as “minimal reform” (assuming that abstract “innovations” remain ineligble subject matter).

    4. Another 101 oral argument today before Lourie, Bryson, & Reyna

      Jericho Systems v. Aximoatic

      link to leagle.com.

      The claim is reproduced in the above-linked district court decision (claim tanked on summary judgment. Money quote:

      “[T]he wording of the claim appears to present a complex method that uses attributes, rules, connectors, classifications, and remote data sources. But, upon closer examination, the gist of the claim involves a user entering a request for access, looking up the rule for access, determining what information is needed to apply the rule, obtaining that information, and then applying the information to the rule to make a decision. [<- sometimes referred to as "filtering" — a form of logic]

      This is an abstract idea. The abstract idea being that people who meet certain requirements are allowed to do certain things.

      The example of buying an R rated movie ticket is just one example of how this abstract idea currently is and has been applied in society for as long as civilization has existed.

      Judge: “Does more specificity get you way from abstraction.”
      Patentee’s attorney: “Yes!” [<– wrong]

      Judge: "Would you agree that if all this takes place in a single computer, as opposed to being distributed, would it survive 101"?
      Patentee's attorney: "That's the heart of the dynamic enrichment process! To answer the question, I doubt it."

      Judge: "In terms of Ultramercial and DDR, what is the line between abstract and non-abstract?"
      Defense: "I disagree with the premise of the question because there was an abstract idea found in DDR, although the claims were deemed eligible."
      Judge: "Good point. What's the line between eligible and ineligible in those cases?"

      What follows is complete nonsense. Why? Because there is no principled distinction that can be made between the “innovations” in Ultramercial and DDR. The claims at issue in both cases describe information processing logic and both claims are completely devoid of limitations reciting objective structural distinctions over the prior art or steps that result in new physical transformations of matter.

      Arguing about “what is eligible and what isn’t” without recognizing or acknowledging why the problem of ineligible “abstractions” arises only in limited contexts (i.e., computer-implemented innovations and determine-and-infer methods) is a f00l’s game.

      Also how can it be possible that patentees are still resting their hopes on ridiculous “no preemption” arguments? It doesn’t matter that your claim is “limited” to a computer or some kind of distributed network. What matters is that the claim protects an abstraction in some context. It doesn’t matter what the physical context is, as long as that context was pre-existing.

      Lastly it’s interesting that in the two 101 cases argued today the eligibility of the computer-implemented logic was tied to the carrying out of that logic using “remote” means (with nothing innovative about the physical arrangement of processors in either case, of course). But the arguments and questions asked by the two panels could not have been more different.

      1. MM: the word “abstract” confuses. Of course if something is highly specific, it is not abstract.

        But that is why the problem is whether the subject matter being protected is even statutory. If no amount of specificity can change the fact that something is nonstatutory.

        As to information processing, that does not per se disable the patentability of the claim if the processing is used to improve a machine or system. I give you Alappat that improved displays by a new method of anti-aliasing, implement in hardware in the spec, but alternatively implemented with programming in a processor. The display was improved using either hardware or software.

        But new software to calculate the improved price fails not because a programmed computer is nonstatutory, but because price is nonstatutory.

        What got us into this mess are guys like Radar who looked at Alappat and did not understand its message, or if he did, simply ignored it, and by selective misquoting of the holding or the quoting of dicta, was able to get the words of the case to apply to the use of a programmed computer to improve a business transaction as if Alappat were about the programmed computer as opposed to being about the improved display.

        Then of course, we had State Street Bank that read Alappat to authorize patents on using computers to calculate the improved price.

        1. Ned: Of course if something is highly specific, it is not abstract.

          Wrong. Straightforward examples illustrating this are infinite in number and easy to come up with (even the CAFC understands this).

          “One number plus another number” is abstract. “1.3453234 plus 2.5234223” is also abstract.

          “A and B are legally obligated to each other” is abstract. “A and B are legally obligated to each other by virtue of a 542 paragraph contract drafted under a full moon in October 2012 and signed with a ball point pen manufactured in China” is also abstract.

          “Display information using old display” plainly protects an ineligible abstraction. “Display information about user in the order of name, residence, birthdate, job history, ability to lift a tire, number of cohabitating parrots, and potato chip brand preference” has the same problem.

          1. MM: take Rubber-Tip Pencil, the oft cited case. The idea was to attach a rubber eraser to a pencil tip. The claim was to a piece of rubber for the purpose. The claim was not to the combination, anything about the rubber that was adapted, or to anything about the pencil that was different.

            Abstract.

            Getting specific by laying out the details would have saved this claim.

            But when one starts with the non statutory, no matter how specific the nonstatutory is made, it is still non statutory. That is why numbers are not made statutory by increasing their digits, or their algorithms for calculation. They remain nonstatutory regardless.

            1. Ned: Getting specific by laying out the details would have saved this claim.

              Only true if the details in question were objectively structural.

              Claiming “A piece of rubber, wherein said rubber is for attaching to a pencil, and wherein said rubber is for erasing words that comprise no more than 3 vowels” is more detailed (and I can get far more detailed still) but no less abstract.

              The Rubbert-Tip Pencil case’s relevance to modern subject matter eligibility law is to demonstrate how widely accepted developments in the law arose out of what we would now recognize as subject matter eligibility considerations. Such a claim as the one you described would be deemed anticipated because “the doctrine of statements of intended use” results in the non-structural (i.e., abstract) “limitations:” being ignored for the purposes of comparing the claimed object to the prior art.

              1. Once again, you seek to make an issue by mis-portraying the law and one optional form of claim as being somehow the only legal form with your “Only true if” statements.

                What you say is just not true.

            2. But when one starts with the non statutory, no matter how specific the nonstatutory is made, it is still non statutory

              LOL – how about that big box of protons, neutrons and electrons, Ned – you are really glomming onto that “logic.”

        2. Ned: price is nonstatutory.

          That’s because “a price” is an abstract concept.

          Making a price “more specific” ($2.99) doesn’t make the price less abstract. It makes the price more specific and less vague and more useful as information. But the physical properties of the price aren’t changed because prices don’t have any physical properties to begin with.

            1. Lenght. For that matter, dits and dahs have length too, both absolute and relative.

              Of course prices have physical properties too, for example, altitude. Some are higher than others.

                1. Without the other parts? Shrug, without the other parts the spaces have no meaning. I suppose, in that case the space is infinite and it means there is no signal.

                  With the other parts:

                  Dit Dah means A and Dit Dah means E T.

                  –… …–

                2. aaargh…. someone should tell this blog comment software that spaces have meaning and should not be deleted….

                  let me try that again:

                  Dit Dah means A and Dit _Dah means E T.

                3. without the other parts the spaces have no meaning.

                  Les,

                  You are clearly missing the point (NOT against you) that it is not (it almost NEVER is) the matter of a parsed part of a claim like Malcolm (and Ned) try to use.

                  This is merely the canard of “Point of Novelty” in action: whenever you see Ned and Malcolm trying to use that canard, just dial back to the failure of “space” in and by itself.

                  The anti’s want to use a certain “logic” but also want to clench tight their eyes to the necessary implications of that selfsame “logic.”

                  The fact of the matter in that they choose to continue to ignore these points only means that the points will follow their continued attempts to engage in a drive-by monologue type of propaganda.

                  …for the whiners (not you, Les), there is an extremely easy way to stop my replies: treat the points presented in an inte11ectually honest manner and either accept and integrate them, or show where they are faulty and should not be accepted and integrated.

        3. “But new software to calculate the improved price fails not because a programmed computer is nonstatutory, but because price is nonstatutory.”

          OMG. eligibility is not dependent on the work piece.

          Human DNA is not statutory, but a new machine that sequences DNA at a crime scene would be eligible.

      2. Judge: “Would you agree that if all this takes place in a single computer, as opposed to being distributed, would it survive 101”?
        Patentee’s attorney: “That’s the heart of the dynamic enrichment process! To answer the question, I doubt it.”

        That was probably the most shocking part of the entire thing. I would be pissed if that was my attorney.

  10. My take away is that none of the factors that would suggest any special knowledge of how patents affect innovation were important. The only factors that were significant were ones that would suggest that the writers of the 2nd letter have a bias.

  11. I’d be curious if there were any significant correlation based on association with the technology industry versus pharma/biotech.

  12. I still find it a bit weird that Democrats favor big business in this debate, while Republicans favor the little guy and the universities.

    1. Again, the Republican donation effect size was small, and there was no corresponding correlation with Democratic donations. I don’t really think of patent policy as a left-right issue. There are fairly well-defined interest groups, but they’re more apt to be divided along technology and business model lines than traditional political ones (e.g. patented pharma and biotech versus generic pharma and software).

      1. James, on the “divide,” observe that those on one side need patents for their business model. On the other side are those who not only do not need patents, but would want to operate in a patent free-world.

        1. Ned,

          As I pointed out to you (and here, James makes a similar error), the is not a binary Left/Right thing because BOTH the Left and the Right would like weak or non-existent patents.

          The modeling is flawed at the onset.

    2. Ned: I still find it a bit weird that Democrats favor big business in this debate, while Republicans favor the little guy and the universities.

      That’s not what’s going on.

      “Little guys” get sued with junk patents, too.

      1. MM, I know, and if patent reform were limited to letters/actions against small business, then we, all of us here, I assure you, would 100% be in favor of patent reform.

  13. He finds, inter alia, that the [opponents of patent reform] are … more likely to be donors to the Republican Party

    Nobody could have predicted that!

    Seriously, though, the rhetorical tactics of patent reform critics (who are indistinguishable from the habitual/professional apologists for patent maximalism) were so transparently similar to those of the Republican base that a perfectly apt nickname was coined for them many years ago: the patent t–b-ggers.

    Per Dennis’ request (and that’s the only reason) I’ve ceased using the term here. I do advocate its use elsewhere, however, because (1) ridiculing these people is fun; (2) it’s an effective means of marginalizing their worthless contributions to the development of the law; and (3) there’s few attorneys out there more deserving of ridicule than the “experts” who stepped up to publicly defend Prometheus’ position.

    1. Strictly speaking, what I found was that patent reform opponents were more likely to be donors to Republican candidates and causes, not the Republican Party per se.

      More importantly, the effect size was small, its significance was just under p < 0.05, and there wasn't a corresponding inverse correlation for Democratic donations. As I discuss in the paper, I don't know if I would read too much into that finding, especially since patent policy is not a traditional left-right issue, and IP attorneys are, as a group, almost the definition of politically moderate.

      1. Whether something is significant or not can be meaningless. Sometimes something is significant but meaningless; and sometimes it’s not. Plus, you’re dealing with so few people (what, 90 in total?), that significance really doesn’t matter. Your sample size is too small and much could be due to randomness.

        Plus, you’re responding to MM, who really doesn’t care and only wants to deni grate those whose opinions disagree with his.

        1. “Significant” in this case means something like “it is reasonable to attempt to interpret these differences as something other than the product of chance.” The statistical tests that I used take into account the small sample size. I also reported effect sizes for the two significant findings. The large effect size for PTO registration indicates that it is “meaningful” as well as significant.

          Perhaps if the sample had been larger then finer distinctions would have become apparent, but perhaps not.

          A more complete Bayesian model would have take into account the prior probability of, e.g., attending Harvard or Chicago, but given the selection bias issues I didn’t think the study warranted that kind of modeling.

      2. JD: IP attorneys are, as a group, almost the definition of politically moderate.

        That may be. I’m referring specifically to the class of IP attorneys who were (and are) actively advocating on the Internet and elsewhere for more expansive patent rights. You know, the folks who gave us such memorable chestnuts such as “every patent creates a job”, ‘constitutional right to a patent”, “patent reform critics are like terrorists in Iraq”, “PTO death squads”, “PTO Gestapo”, “PTO star chambers”, “if you don’t like patents on software, stop using computers”, “the Royal Nine h@tes patents”, “Obama h@tes patents”, “critics of software patents want to take us back to the iron age”, “patent reformers are communists” etc etc etc.

        Those people are real. They’re out there. And they mostly sit around and echo each other’s whines at some other patent blog that’s administered by (surprise!) … a Republican.

        I don’t know why it seems to upset people to talk about this obvious stuff. Maybe some Republicans aren’t as proud of being Republicans anymore? That’s certainly understandable now that their likely Presidential candidate has swapped the much abused dog whistle for a bullhorn.

        Note that I’m not suggesting that all Republicans share the same views on all the hot issues (patent and non-patent). I am suggesting that there is a strong link between the “freedom fighters” in the base who detest “the government” (“keep it out of my medicare!”) and those who pine for the days when the PTO and Federal Circuit were models of thoughtless compliance.

  14. Interesting paper Prof Dailey!

    I looked at these folks as well last year, and I could have shared some easy to find material confirming that more than half of the “Professors” – purporting to be objective academics representing the “public” interest – were in fact active lawyers providing services to well paying, anti-patent clients such as Google. Remarkably, none of them identified their representations of anti-patent entities when they signed this letter. Instead they passed off this faux funded research as representing the views of some kind of patent reform samaritans.

    1. JNG anti-patent clients such as Google

      Google is “anti-patent” because Google doesn’t give JNG enough money. And JNG is all about super awesome patents!

      C’mon, JNG, show everyone you’re latest “innovations”. Be proud.

      1. LOL

        as between the two of us Moon-man, you can probably guess which one Google has given money for patents

        you can now return to your regular life of ….irrelevancy

  15. “and (2) more likely to be registered patent attorneys.”

    You say dat, like its a bad ting…..

    It is the authors point that the signatories of the second letter are more likely to know what they are talking about?

    1. That is like saying that weapons manufacturers know what their talking about when it comes to the conduct of war.

      1. No. If anything, its like saying weapons manufacturers know more about how weapons are made, how weapons work and where they are intended to be used.

        1. I don’t accept the idea that patent attorneys have any special knowledge about what does and does not promote innovation. Patent attorneys have special knowledge of obtaining and litigating patents. This requires knowledge of the rules and law pertaining to obtaining and litigating patents. This does not require or even implicate knowledge of whether patents do or do not promote innovation.

          1. “This does not require or even implicate knowledge of whether patents do or do not promote innovation.”

            First of all, the second letter is described as expressing “deep concerns with the many flawed, unreliable, or incomplete studies about the American patent system that have been provided to members of Congress,” not an opinion on whether patent do or do not promote innovation.

            So, your statement is a non-sequitur.

            Be that as it may, it stands to reason, does it not, that, as a group, farmers would know a bit more than non-farmers about which fertilizers work best, or whether or not fertilizers work at all?

            1. I agree that we have wandered off topic a little bit, but my comment was a response to your original thought in comment #1, not directly to the contents of the 2nd letter.

              As to your second point, I do not think that farmers/fertilizer is analogous to patent attorney/innovation. For one thing, patents are not a proxy for innovation. An understanding of the affects of patents on innovation is not required, nor is it even implicated, by the process of obtaining and enforcing a patent. Maybe patent attorneys have more knowledge of the affects of patents on businesses, but again, that is not a proxy for innovation.

              1. You are mistaken.

                First, the analogy is farmers/fertilizer vs. patent attorneys/patents.

                Professionals in a field/ something that promotes growth.

                ….and being in the field everyday, you see things. You become familiar with companies that innovate (and patent inventions) and their competitors that don’t. You see that patents promote innovation.

                1. Les,

                  Our friend needs to read the basics that were in play when the patent system was first created.

                  It is simply well understood that patents promote innovation.

                  It is either incredibly naive or incredibly disingenuous to blandly say otherwise.

                  The “anti” Kool-aid at work…

                2. When you have to start your sentence with “it is simply well understood that…,” you have already lost. I do not take that assumption for granted. Sounds like you have been enjoying your fair share of maximalist kool-aid.

                3. Ok, we can play your little game. I will make a statement with just as much credibility and thruthiness as yours:

                  It is simply well understood that patents hinder innovation.

                  quod erat demonstrandum…

                  Some fancy (but like you, wrongly used) Latin for you too.

                4. Yet there are many companies that innovate without patents, and even companies that innovate despite patents. Without patents, market demands and competition would promote innovation, especially in fields (such as software) where the cost of innovation is low.

                  You are, in essence, starting with a premise and working backwards.

                5. Not at all – it is you that is operating under the fallacy that patents are only for a “but-for” stance.

                  It is just not so.

                  It has never been so.

                6. Not at all. I am open to the idea that patents, at the same time, can promote innovation, hinder innovation, and have no effect on innovation. A lack of patents would promote innovation, hinder innovation, and have no effect on innovation as well.

    2. Not a bad thing, or at least I don’t take any particular stance on whether it’s bad or not. After all, I’m registered, and (as I indicate in the paper), I probably fall closer to the second letter than the first.

      Those were just the only two significant differences I found between the two groups. There may be other differences I didn’t examine, or there may be significant differences hidden by the relatively small sample size.

      As for what the differences mean, if anything…I speculate a bit in the paper, but I suspect how one interprets the differences probably depends a lot on which letter one agrees with in the first place.

      1. What if you agree with parts of both letters? I don’t like some NPEs, but also think patenting has its place (and even NPEs are allowed by the law).

    3. He does.

      A side issue is, how many litigators actually get a PTO registration? If your thrust is litigation, there’s really few reasons (at one time, anyway) to get PTO registration. Similarly, as a patent prosecutor, I have a juris number with my state, but I have no idea what the number is.

      1. That is true, so I also looked at whether the signatories were attorneys and whether they had appeared as an attorney in a patent case (bearing in mind that the data I used for that is not perfect, mostly because PACER data is not perfect). Those variables did not show a significant difference between the two groups.

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