Steinbeck on Patent Attorneys

From John Steinbeck’s Novel, East of Eden published in 1952:

“Meanwhile Samuel got no richer. He developed a very bad patent habid, a disease many men suffer from. He invented a part of a threshing machine, better, cheaper, and more efficient than any in existence. The patent attorney ate up his little profit for the year. Samuel sent his models to a manufacturer, who promptly rejected the plans and used the method. The next few years were kept lean by the suing, and the drain stopped only when he lost the suit. . . But he had caught the patent fever, and year after year the money made by threshing and by smithing was drained off i npatents. The Hamilton children went barefoot, and their overalls were patched and food was sometimes scarce, to pay or the crisp blueprints with cogs and planes and elevations.”

50 thoughts on “Steinbeck on Patent Attorneys

  1. Re: anonymous attorney – Inventing is a profession – see section 1235 of the US Tax Code. It’s also quite clear you are counsel to a company that ignores patent rights UNTIL suit is filed against your employer. In today’s world, you are effectively working for ostrichs, please forgive the rest of us if we don’t feel too badly for you as you complain about getting shot in the @$$.

    Re: Imbalanced Perspective – amateur inventors are just that, amateurs. With experience, comes perspective (ie – recognizing impact on licensor IBTDA, liability, etc). As in ALL professions (including patent examiners, businessmen, patent attorneys), there is a spectrum of critters in Inventing – the Great, the Good, the Bad, and the Fugly. Painting all inventors with the Fugly brush is as misleading as painting all patent attorneys with the Greedy Brush or all patent examiners with the Incompetent & Bitter brush.

    At the end of the day, both independent inventors and their patent attorneys must be prepared to get ripped off by companies (ie, business decision makers) that percieve themselves to be beyond having the law brought to bear against them. Given that many of the decision makers will have moved on to other companies by the time a court enforced conclusion comes to bear, very few end up paying any personal price for their decisions.

    For those of you who want to review a great example of a Stienbeck type character that did well, I’d recommend googling Gary Michelson. $1.35B will buy a lot of beer. The irony in the relationship between Industry and Innovators is that the only way for an innovator to become truly wealthy is for industry to not only rip ‘em off, but to then deny theft to the bitter end of litigation.

  2. Dear Rusty,

    Thank you for the sobering oh so sad story.

    Suggestion: IP professionals should require would-be inventor novices read Charles Dickens’ short story, “A Poor Man’s Tale of a Patent” before getting started.

  3. And let’s not forget Charles Dickens’ short story – “A Poor Man’s Tale of a Patent”.

  4. There is a similar quote to Steinbeck’s in “On The Road” in support of the notion of the small inventor at a disadvantage. See, around p. 50, give or take a page or two depending on your version. Another wonderful commentary on the vagaries of IP litigation, regardless of which side you are on, is William Gaddis’ classic, “A Frolic of His Own.”

  5. FWIW, I do not have a citable source, but I have been led to believe that pro se patent applications have about a 20% allowance rate (which helps drag down the overall rate to the PTO’s most recent published figure of 54%).

    Last year Jon Dudas indicated that about 5% of all issued patents are commercialized. I personally doubt that very many of the pro se patents are within that 5%.

    MHO, YMMV, Not Legal Advice, etc.

  6. Max,
    May I take it that I’m flogging a dead horse to ask again:

    What are your views as to what motivates the impassioned “not-so-balanced” views of the [non-patent attorney] anti-patent contributors to Patently-O?

  7. anonymous atty says:
    “Inventing is not a profession.”

    So you say. Please google: famous inventors

  8. JOI, I thought I had told you why inventors are not balanced. It’s because they see themselves as being on one “side”. There aren’t any “sides” in the grown up serious world of patents, where you are sued for infringement one day, then yourself sue for infringement the next.

    I have to be careful suggesting on a US site how to improve US law. I am likely to get told to mind my own business. But I do think the European system is useful to study. Most of the world, including the whole of continental Europe, uses civil law. UK joined up, but still has its common law, which now has to operate under the European Court of Justice. Fascinating, in patent law, how quality will come through, in the end, when the courts of England compete with those of Germany, for the patent litigation business. By dint of that competition, each jurisdiction specialises in what it is best at, to the benefit of all. Lawyers in common law countries have no idea how civil law works but UK patent litigators soon find out. Lawyers in civil law jurisdictions like Japan or Germany learn a lot the first time they litigate in UK. After that, they demand more of their litigation team in Germany. More and more, you see the benefits. Judges in each jurisdiction under pressure to achieve what’s just been achieved in the other jurisdiction (like: speed to trial, legal costs that are proportionate to the size of theaction, legal certainty, quantum of damages, evidence-gathering procedures etc, etc). JOI, in Europe you could afford to litigate but, unless your claim is clearly infringed, and robust against validity attacks, you would be crazy to do so, cos the loser pays the lawyers’ costs of the party that wins. Now that’s a good way to put a brake on vexatious accusations of infringement.

  9. anonymous atty
    Please don’t take this wrong, but my advice to you is to take two Aspirina and stop taking shots at inventors just because you have p-at-en-t-is envy.

    Please find something better to do than attempt to belittle inventors with your distorted imagination. You’ll thank me in the morning.

    It took me decades to learn that inventing is also an honorable profession.
    Seriously, why must you rain on others’ parades?

  10. The reason companies don’t salute small inventor patents is because they are usually junk subject matter, years behind current products. The inventor won’t take a reasonable settlement to go away because of corporate paranoia (as said above) and an inflated view of the importance of his invention (personal validation through patenting), and the realization that he may have paid a lot of money for a rather worthless piece of paper and is not getting the validation he expected.

    Small inventors, your patent does not show up on top management’s radar until you sue, when it has to be reported but is soon forgotten until the bills baloon as the small inventor performs abusive discover but won’t take a reasonable settlement.

    I’ve seen more inventors bumped from disgusted lawyer to lawyer because they cannot accept reality and a reasonable settlement.

  11. Max,
    Please allow me to assure you that American independent inventors are not naïve enough to be misled by the “Presumption of Validity.” Further, I have met dozens of American patent attorneys (and several European patent professionals) in my time and I can assure that there is no tendency to mislead any inventors, but thank you for your (misplaced) concern.

    Please allow me to offer a rule of thumb I learned a long time ago, a rule you might like to consider: More often than not, it is preferable to avoid criticizing unless you are also advancing some positive suggestion.

    I regret to inform you that it is a fact of life that it is as rare as a hen’s tooth to find a U.S. corporation that respects patents of independent inventors without litigation; however, it has precious little to do with any sense of duty to their shareholders to preserve the profits. Corporate policy decisions, whether or not to license outsiders patents, has far more to do with executives’ and directors’ personal profit aggrandizement, i.e., their desire to suck off as much corporate profit in the form of salaries, bonuses, golden parachutes, etc., and their short-sighted view to boost the current quarter’s profit no matter the effect later on. When it comes to profits, American businesses’ tend to follow 90-day business plans.

    Lastly, allow me to ask a follow-up question concerning our previous comments (above): What are your views as to what motivates the impassioned “not-so-balanced” views of the [non-patent attorney] anti-patent contributors to Patently-O?

  12. This house proposes the motion that: A presumption of validity is a cruel and unusual punishment.

    It punishes the independent inventor, because he is under the cruel misapprehension that the mere issue of his patent will bring the world to his knees. Other countries are more humane. They don’t have this exceptional “Presumption of Validity”. They don’t disguise that any attempt to assert a claim will (quite rightly) unleash a storm of non-trivial attacks on the validity of the claim. After all, corporations have a duty to their shareholders to preserve the profits, not give them away unnecessarily. How does a country meet the public policy need, to decide fairly, speedily, economically and proportionately the related core issues of infringement and validity of a duly issued claim? Not by adopting the present US patent law, that’s for sure.

  13. There are three times that a patent document is scrutinized and where its quality (enforceability and validity) becomes apparent.

    The first time is when the PTO examiner reviews that application. The claims have to get past the examiner, but the written description is not looked at closely. In my experience, examiners do a good job of helping independent inventors get patents.

    The second time the patent document is important is when the issued patent is used as a business asset. That is, when licensing or assigning the patent or when trying to obtain financing. If the other party does their due diligence, the quality of the patent will be scrutinized and a value will be ascribed to the patent based on its quality, among other factors. Both the written description and the claims will be reviewed in a proper due diligence.

    The third time was identified by djf above and is when the patent is being enforced. At that time the accused infringer is going to review the patent very closely and a poorly drafted patent may not be able to stop the accused infringer. Both the written description and the claims will be closely scrutinized at this time, and everything possible in the written description will be used against the patent owner.

    I don’t have statistics, but 100% of patents go through the first identified scrutiny, a smaller percentage through the second time, and a very small percentage are enforced.

  14. Paul Cole and anonymous atty: hear hear!

    Perspective: at crunch time – i.e. when it comes time for a court to decide on validity and infringement – do patents procured by pro se inventors fare better than those procured by attorneys/agents? I don’t have statistics, but maybe you do. Personally, I’ve encountered inventors who could draft patents as well as any attorney (and who in some cases themselves eventually became patent attorneys), but I’ve encountered more inventors who couldn’t draft a patent if their life depended on it.

  15. Just think of the amount of money to be made and all the jobs created if all the inventors like myself with their notebooks full of drawings and shelfs loaded with dusty prototypes had a way to get their inventions to the store. We are INVENTORS not manufactures or distributors and know we don’t have the resources to get things manufactured and sold . Call us parinoid but the number of people who have had their ideas stolen by manufactures and their lawyers far excedes the number that have been paied a fair amount. So we put them away in boxes and cuss a little when 15 or 20 years later someone else brings something similer to market because back then we were working hand to mouth and couldn’t justify takeing out a second mortgage when the kids were young especially since the big companys would most likely rip us off anyway….Yes I took marketing and learned to evaluate a idea, of my 100+ a half dozen would make millions. (I never met a machine I couldn’t improve on 3 ways). I can only immagine haveing the resources needed to get the patents and manufacture and market ideas myself… If only I had the trust to give them to a manufacture and think that I would be paied a fair percentage, even 1% of a million is more than the sneeze I get from the dusty boxes thay are sitting in now.
    What if (I like this no attorneys needed :) We could take our inventions to the government and the government would issue the inventor a patent for free. The government then would publish ideas and licence them ( and enforce the licences )to manufactures who would have to pay the inventor a small fixed percentage say 1% of the gross sales or MSR price or maybe 5% of the net profit which ever is greater? ( easy to fudge profit/sales numbers ) Maybe give the inventor 1% of the sales tax collected on each widget? this gives the inventor a fair return on their ideas and the manufacture a fixed cost with the government enforceing their rights to a idea.

  16. Hey, Max, Paul and anon attny,

    With all due respect, you just don’t understand what the true invention is.
    My guess is that you’ve written waaaay too many junk patents for your big corporate bosses…
    Maybe it’s time to stop and think ?
    Invention is not reserved to the wealthy corporations with a lot of R&D investment, in fact, those corps rarely produce any significant inventions.
    Invention can’t be planned in most cases, it can occur to anybody, in any area outside of one’s day job expertise, by sheer luck, by a pure magic.

    Very sad, but you guys just don’t understand the nature of *real* invention and the whole purpose of the patent system.

  17. Patent trolls- deep pockets-garage inventors,patent attorneys are a trip,man. You billing -hour big shots are on some kind of superiority complex-reality is, unless you write patents in rocket science, what you guys do isn’t rocket science.There’s a few balanced attornys on this site( Gideon’s cool, pds,M.Sloenecker), the rest of you are starting to get really boring with your self-centered view of yourselves and the system. Zelda baby, it might be time to blow this popstand.

  18. Max, Did I miss it?, i.e., your response to my query above, which was:

    “What accounts for the also “not-so-balanced” view of the [non-patent attorney] anti-patent contributors?
    Please take no offense, but, one might think the glaringly incomplete view you declined to opine in the first instance speaks to your own not-so-balanced vantage point. Perhaps you would care to complete and clarify your thinking and thereby make your observation comprehensive.”

    Max: What do you think motivates the impassioned “not-so-balanced” view of the [non-patent attorney] anti-patent contributors to Patently-O?

    PS:
    Please do not define or associate me derogatorily with words like by jaundice or discontent. To the extent of my “discontented view of US justice,” that is the duty of every American citizen. You often ask for comments or explanations of American IP issues and other views. I have one I hope you find interesting — please see my comment at:
    link to patentlyo.com

    Here is an excerpt:
    The USSC has begun to sell out “We the People” in favor of the agendas promoted by big business organizations. For example, put simply, the Supremes’ eBay ruling reserves a patent’s “exclusive Right” (injunctions) for big businesses, while denying a patent’s grant of “the exclusive Right” to independent non-manufacturing inventors.

    THE SUPREMES’ EBAY RULING CORRUPTED OUR CONSTITUTION.

    What the best big business shills have done to defend the eBay ruling is to cite other corruptions of our Constitution that have also occurred! Please note that STATUTES CANNOT AMEND THE CONSTITUTION — that is the plain unambiguous meanings of Article V & Article VI, Clause 2 of the Constitution.)

  19. Paul, I agree that the flow of self-delusional self-pity is tedious and embarrassing but there are compensations. When “Small Inventor” writes that Paul Cole is “out of touch with reality” he (it can’t possibly be a she, can it?)does at least give those of us who know Paul Cole the opportunity for a good loud laugh.

    JOI, the small inventor, by definition, is a potential litigant without a deep pocket. Most members of that class of persons have a jaundiced and discontented view of US justice, don’t they?

    Patent attorneys work for deep pockets who are seeing infringement of their patents and other deep pockets who are getting blackmailed by the trolls. So we see both sides. And write accordingly.

  20. “Garage” inventors are a pain, not worth the fee. They think that all they need is a patent to become rich. I tell them to save the money and build a business and patenting will be natural part of the business like fire insurance. Besides they usually lose interest over the years it takes to get a patent or the they have family problems and run out money. More often than not the lawyer has to move to get off the case because the inventor hasn’t paid fees or can’t be found. I get kick out some who go pro se to save money and call for help. Only work for the kings and be happy. Working with garage inventors is like family law…ugh

  21. Mr. Cole, you state “But getting new products to market takes a team effort. Inevitably by the time the product comes to market, …” and therein lies one of the main problems with our system of product development. Many in that team have only worked for the company for a short time. They come from everywhere, big business and small, most have left their previous job unwillingly, either by downsizing or seeing the writing on the wall they jump ship. These “teams” unfortunately bring with them their knowledge of their previous employers’ trade secrets and patented inventions and a knowledge of the IP of those dealing with and competing with their previous employers. Many in the team were never taught not to take what isn’t theirs. Everybody in the team and management who does know better turns a blind eye to this theft in an effort to get the product out. The theft is often accompanied not only by a blind eye, but is a justified and encouraged action for the benefit of the investors. After all, they don’t want the business to fail so that the investors have to sell the IP they do create to the patent trolls. It is no wonder that we have so many trade secret and patent infringement suits today.

  22. Dennis, I see that you deleted a crucial sentence in your elipsis:
    “It was his first sharp experience with the rule that without money you cannot fight money.”
    This is the crux of Steinbeck’s critique.

  23. To all that complain about patent prosecutors:

    1. Yes, they are expensive.

    2. If you don’t like it (or can’t afford it), patent agents/attornies are not required. You can do it yourself. See MPEP 401.

    3. If and when you receive your patent, remember how difficult or easy it was.

    4. Assess whether the prosecutors are worth the cost.

    Maybe they are worth it, maybe they are not. Until you understand the complexities of the patent process, it is hard to determine.

    If you do not like the patent process, petition congress.

  24. Of all Steinbeck’s novels, there are AFAIK only two I haven’t read. I can’t remember the title of the other one. I think it had something to do with a pony. I will have to read East of Eden now.

  25. Paul Cole wrote some BS..

    hey, fella, what do you do for a living ?

    I can’t believe you are a patent attorney…
    You are absolutely out of touch with reality.
    And the reality is UGLY, my little misinformed friend, just plain UGLY…

    It’s all about big vs. small. In a real jungle big animals eat small animals for food.
    In a patent jungle big corps suck all blood out of independent inventors and small underfunded startups to become even bigger.
    No difference at all. Welcome to capitalism, pal…

  26. It is not really about greedy industrialists who are out to cheat inventors.

    If there is a good product and a good patent, it is in the interests of the industrialist to take the product on, develop it and promote the grant of a patent covering the new product.

    But getting new products to market takes a team effort. Inevitably by the time the product comes to market, the inventor’s original equity will have been well diluted, but this is inevitable if others are to be properly reqarded for their efforts. 5% of a big pie is far better than 100% of nothing.

    Attorneys should only take small inventors on if they realize this and have realistic business plans and support either in place or foreseeably within reach. Otherwise, the invention will fail sooner or later and the relationship between attorney and client will break down. No reputable attorney wants a client like Samuel.

  27. Is it OK to bash males…on board full of attorneys…really…

    Just flip your statement and changes males to women or any other minority group…

  28. Hey…the comment by Steinbeck may apply to MALE patent attorneys but, I am very sensitive to the financial needs of my clients. The next time you get a billing from your patent attorney read the activities he/she billed or did not bill you for. In every billing there are legal activities I do for client that I do not feel right billing about and don’t. I am sure all patent attorneys do the same. Don’t lump us all in the same ball of clay. On the flip side there are inventors who would take my whole day and complain about paying me a penny.

  29. “[P]eople will obtain a patent simply for the glory of hanging a beribboned document on the wall.” Newman, Pauline, J., concurring in Figueroa v. U.S. (05-5144, Fed. Cir. 2006)

  30. Dennis,

    There have been several twice-posted comments in the past few days, such as mine above. After I entered my comment and hit POST, I did not get the instruction to enter the somewhat-obscured letters prior to posting to prevent abuse of your Patently-O blog, which, if I may say, is the best on the Internet. (I don’t know if it matters, but I typed my comment in MSWord and then pasted it into the comment box).

  31. Dear MaxDrei, You offered this interesting & insightful comment:
    “Let’s remember that patent attorneys act for a patent owner half the time and the other half of the time for a competitor of the patent owner. It gives them a balanced view, about whether any provision of patent law is “good” or “bad”. Some contributors to this blog give a patent attorney viewpoint. Others give the view of the independent inventor, which is not so balanced.”

    Max, Your astute observation leaves one hanging for the other shoe to drop:
    Please finish your thought and answer this:

    What accounts for the also “not-so-balanced” view of the anti-patent contributors?

    Please take no offense, but, one might think the glaringly incomplete view you declined to opine in the first instance speaks to your own not-so-balanced vantage point. Perhaps you would care to complete and clarify your thinking and thereby make your observation comprehensive.

  32. Dear MaxDrei, You offered this interesting & insightful comment:
    “Let’s remember that patent attorneys act for a patent owner half the time and the other half of the time for a competitor of the patent owner. It gives them a balanced view, about whether any provision of patent law is “good” or “bad”. Some contributors to this blog give a patent attorney viewpoint. Others give the view of the independent inventor, which is not so balanced.”

    Max, Your astute observation leaves one hanging for the other shoe to drop:
    Please finish your thought and answer this:

    What accounts for the also “not-so-balanced” view of the anti-patent contributors?

    Please take no offense, but, one might think the glaringly incomplete view you declined to opine in the first instance speaks to your own not-so-balanced vantage point. Perhaps you would care to complete and clarify your thinking and thereby make your observation comprehensive.

  33. It’s been awhile since I read East of Eden, but didn’t Samuel eventually get quite wealthy using a patented refrigeration process to ship lettuce back east?

  34. Gee, the reference to a made-for-tv movie reminded me of Harry Wycoff in the sci-fi tv series Wild Palms. I found a citation to “him” and other fictional patent attorneys in a list in Wikipedia. See attached link. Another part of the same list includes the venerable Judge Giles Rich and Prof. Dennis Crouch. Good company to be in.

  35. I do not know exactly, but I guess that none of my above predecessors is a patent attorney in fact. Otherwise I would’nt understand your comments. You should know that money sucking is our only pleasure, much more but blood sucking, which we use only as a frustrating displacement activity if no money is available.

  36. Thank you, MaxDrei. I completely agree with you. At time I find myself thinking this very thought.

  37. Let’s remember that patent attorneys act for a patent owner half the time and the other half of the time for a competitor of the patent owner. It gives them a balanced view, about whether any provision of patent law is “good” or “bad”. Some contributers to this blog give a patent attorney viewpoint. Others give the view of the independent inventor, which is not so balanced.

  38. You do not enter the rather stressful profession of patent attorney to extract money out of people. You enter the profession because you find the field challenging enough, and perhaps you think you can use your scientific and technical knowledge and apply it on a different platform. It is one of those rare fields requiring a techno-legal expertise – a marriage of science and patent law.

  39. Prosecuting patent attorneys are certainly money suckers, but they are not blood suckers as you suggest…

    The real bloodsuckers live in corporate legal departments and board rooms – those will literally suck all blood out of any small inventor who dares to ask for some licensing money…

  40. Boy, you guys are a serious bunch…Bloodsucking patent attorneys preying upon small inventors who are burdened with a n uncontrollable addiction to the patent process? That’s a new one on me. Now would this concept play better as a made-for-TV movie or as a sitcom?

    (admittedly I never read East of Eden – Steinbeck’s not one of my favorites).

  41. Ah, but in 1952, Congress amended the Patent Act and fixed EVERYTHING!

    Also, the Amalgamated Threshing Behemoth Company published its own novel at about the same time describing “Samuel,” and told the story a little differently:

    “Once ATB began to make a profit, the trolls began to emerge from the woodwork, bit by bit, like drops of water through a crack in a leaky ceiling. At first it was a slow trickle, but then there was a veritable torrent of trolls, each with a bodyguard of patent attorneys who insisted that their client was the next Edison. Each would file a lawsuit claiming to have invented the best, cheapest, and most efficient threshing machine in existence. Each would claim to have shown the machine to ATB, and that ATB had defrauded them by rejecting the machine and then practicing the invention. ATB could keep them at bay only for a little while, but like a gathering swarm of mosquitoes, eventually the trolls and their attorneys overwhelmed the company entirely, sucking away its lifeblood and moving on to wreak havoc upon the economy.”

  42. A real good indicator of Patents being the sport of kings is the number of patent attorneys making a living as inventors vs. the number of patent attorneys making a living as, well, patent attorneys. Even with the ability to waive their own legal fees and with good business knowledge, patent attorneys do not enter the field of inventing in large droves for the reason that marketing skills additionally are required.

  43. He was probably using Malcom Mooney as a patent attorney.
    Mooney then explained to the Examiner how it’s all obvious. Then Mooney refused to file a continuation application – wouldn’t want to abuse the system.
    And of course, Mooney wouldn’t want an injunction even for the overly-narrow patent that eventually did issue.
    No wonder …

  44. I largely agree.

    Patents are the sport of kings (i.e., large companies). I try to convince closet inventors to move on as it is too difficult to make money with patents alone. If they are willing to build a business where the patent serves defensively, it starts to make sense. This would be the sort of start-up that plans to be a large company in the future.

    I know some will give examples of someone making money on patents alone without a business plan, but I can give examples of lottery winners. Just watch the news every week and see another lottery winner.

    Ethically, I couldn’t take on Hamilton as a client.

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