By Greg Aharonian [LINK]
The 11 August 2008 edition of the Wall Street Journal, page R6, has an idiotic article on patent licensing, starting with a review of the Microsoft v. Avistar squabbles. Microsoft earlier was in talks with Avistar to license its technology, but in the midst of discussions, filed reexam requests challenging 29 Avistar patents, causing Avistar a month later to fire 25% of its workforce (27 employees). Avistar is crying foul, while Microsoft is arguing it found legitimate prior art that the PTO must use to reassess the validity of the patents.
I looked at a few of Avistar’s patents (7412482, 7398296, 7152093 – some of the earlier patents are assigned to Collaboration Properties or Vicor Incorporated). On the side of Avistar, many of their patents cite an excellent amount of patent and non-patent prior art. On the side of Microsoft, the patents are in the crowded area of network communications, so a priori I would not be surprised if a company like Microsoft that can afford to spend tons of money for prior art searching has found additional prior art to use in the reexam requests. Unless the prior art they cited is bogus in order to cause delays to squeeze Avistar, I would say that Microsoft’s countermove is a legitimate tactic.
In short, this is a case that has little to do with tr-lls, but rather is a case that should be the basis for an article on the tactics of prior art searching (how much should small companies spend on searching during patent prosecution versus how much should they spend before entering into negotiations or litigation?). Indeed, if anyone has seen any of the Microsoft reexam requests, I’d be interested in knowing the quality of the new prior art that they found. But the article uses this squabble as an intro into the ill-defined, made up problem or tr-lls (tr-lls being the restless-leg-sydrome of the IP world). The author of the article, not wanting to do much thinking, sets the stage of the article as follows:
At the epicenter of the struggle are so-called ‘patent tr-lls’, a derogatory term for small firms whose only business is to buy patents and assert them in court in hope of obtaining large settlements or damages. |
This is a sentence of economic nonsense. First, is ‘tr-ll’ really a derogatory term if tr-lls are using the same tactics as the infamous non-tr-ll tr-ll, IBM? If, when IBM was doing this, it didn’t earn the label of derogatory, it shouldn’t be applied now except as a compliment.
Worse, this paragraph completely betrays free markets (something the Journal is glad to do when it is in the interests of its big company buddies), because it forgets the fact that a patent is an asset created by the government in exchange for an inventor’s public disclosure of a new and useful invention. When the asset is so created, there is absolutely nothing freakin wrong with people doing with patents what they do with all other financial assets – buying, selling and exploiting them. To attack this practice is to attack free market economics. If an inventor doesn’t have enough money to fully enforce his or her patent, it is pure free market economics for that inventor to sell the patent (for a fixed sum and/or royalty) to another economic player who can fully enforce the patent. To complain about this is to attack free markets (something too prevalent in big increasingly-uninnovative companies).
Speaking of which, the article quotes head abuse-patent-reform leader Mark Chandler of Cisco (who I would be glad to debate this issue with, while I am totally drunk, and still win):
Mark Chandler, general counsel of Cisco Systems, says companies that don’t produce anything can buy low-cost patents, hire contigency fee lawyers and file lawsuits seeking massive damages for patents that contribute negligible value to a product. Proposed patent reform that links damages to the economic value of the patent would help solve the problem, he says. |
Again, Chandler is attacking free-market economics, in that there is absolutely nothing wrong with companies raising funds to help enforce patents where the original inventor does not have the financial resources to do so. And I don’t think that is what Mark is whining about.
Rather what I think he is whining about is that a) companies like Cisco refuse to spend much time and money monitoring issued patents in their field to anticipate such problems (something the bio-pharma-chem companies, acting like grownups, routinely spend lots of money doing so), and b) companies like Cisco (and most of Silicon Valley) refuse to pool their monies and talents to build prior art resources and tools to help kill much of the crap being issued by the PTO that is used to harass children such as Cisco. I have asked around for 15 years in Silicon Valley for funding to build two prior art collections, one to remain in the Valley for everyone’s use, and the second to be donated to the PTO for examiner’s use. No interest whatsoever, and not just no interest in not funding me (hey, I know I am a jerk), but they don’t want to fund anyone to effectively solve the prior art problem. Because the large companies like Cisco (lead by …. IBM) want to continue to get their crappy patents (which would be threatened by any serious prior art effort – that patent peer review project being a logistic scam at IBM’s behest to prevent serious treament) while whining about smaller companies’ crap.
So anyone use the full word ‘tr-ll’ with the ‘o’ in the patent world is either an idiot or a liar. Or both. No crappy patents should be asserted in courts for only one reason – that such crappy patents don’t issue in the first place. But will companies’ like Cisco use their clout to get Congress to investigate incompetent and corrupt PTO management? NO. Until they do, they should stop whining. If someone gives me his address, I will send Mark a pink blankee he can wipe his tears with.
Notes:
Why, thank you. I think. 🙂
e6k makes the same assumption about firms that he makes about examination: quantity = quality. He’ll soon find out that he’s wrong on both.
He’ll learn the hard way. I’m just sad I won’t be there to witness it. Of course, when his identity is revealed by somebody from his firm, who’s been assigned the task of mentoring him and posts his name and how horrible his
“work” is, I’ll have a friend of mine at that firm give me all the funny details.
Can’t wait.
BTW, that jacket is sweet. (And I’m talking stylish, not $ as e6k can’t seem to understand), but I have several others that generate far more compliments.
“I hope you can type…”
He can type. He can’t write, but he can type. Maybe he’ll acquire some dictation skills. Then all he’d need is somebody who speaks his particular brand of baby talk to transcribe it all for him.
LOL
This is one of the most entertaining digressions I’ve read in a while. Thank you, gentlemen.
Oh, poor sweet 6k. You poor, foolish thing. Have fun with your monstrosity firm. I really mean that. I really hope your giant-firm dream comes true. I’m proud to be the hired-help of a tiddly-wink firm, where we don’t have to slowly starve incompetents to death. Where all of my attorneys eat what they kill. Where no one is whoring out patent applications at a discount AND taking it in the shorts from the partners for not making their hours. Good luck with all that. Of course, what do I know? I’m only the hired help. Which brings me to my next fascinating point: it gives me fits of giggles to know what you, 6k, can expect from your support staff – NOTHING. Those women are vicious. Most of them have pretty good relationships with their partners, and will not hesitate to put in a bad word for you. I hope you can type or maybe your sycophancy can save you there, too.
Yes, yes, tiddly-wink firms should be ashamed. Honestly, JD’s firm is huge to me. And his jacket is nice. And it is nice to put a face with the name of one of my most favorite ranters.
I guess the notion of being a small fish in a big ocean doesn’t mean anything to you 6k… I guess we can look forward to hearing you moaning about your billable hour requirements and the 199 other jerks on the partnership track that are trying to steal the crumbs off yours and everyone else’s plate.
Sounds super.
]]]]Tyrone Slothrop discussed Patently-O’s Idi0tic blog-thread “Greg Aharonian Discussed the WSJ’s “Idi0tic Article on Patent Tr-lls”
]]]]”It started off quite interesting, but now it’s becoming idi0tic”, he said.
It’s now day 9 of Patently-O’s Idi0tic blog-thread “Greg Aharonian Discussed the WSJ’s “Idi0tic Article on Patent Tr-lls”
It’s not getting any better…
Well, when I get there on Fri. I’ll take a look, but it looks like they employ around 30 attorneys or so at N&V, I’m pretty sure it was like 200 at just the DC branch of the place I’m going. But whatev, I’m sure they’re really good at arguing at N&J. I mean come on, they have nice linen and you don’t get nice linen from making bad arguments.
And I would hardly consider the venerable N&V “tiddlywinks” my friend.
Well, good luck to you all the same 6k. You may want to bring a few extra bucks for lunch in case the word gets out about you and your acid fashion tongue.
“The fact that people disobey the laws doesn’t mean that aren’t supposed to”
So, we’re back to “supposed to” instead of “tacitly agree to”. You lose, Mr. argue in circles mor0n.
“and sets forth the punishment for those types of murder”
So, if a law sets forth no punishment then there isn’t really any real requirement to obey it, right? Just an intellectual, or ethical one right?
“Honestly, I cannot believe you are so dumb as to be believing the doodoo you are spouting.”
Honestly, I cannot believe that it is impossible for you to make an argument and stick with it. The constant switchero must be a tactic I’ll learn in lawschool, because how you ever plan to end (much less win) the argument with this switching from position to position is going over my head. Since you have no fee restricting your number of replies I suppose you just want to go around and around until I drop over dead and you win by default. But let’s summarize and look at the only real thing of substance you have to say: F with the law enough and it will f with you. Oh, really? Seems to me like the pto has been doing the same ol same ol for a very long time and you and yours think they’re fin with the law. Looks like either: 1. they’re not fing with the law or 2. the law will not f with them. Which is it going to be?
But in any case, like I said, ridiculousness like this is why nonfinal actions go out as proper finals all too often, and we’re glad to have lawyers like you to pay us to look over unamended RCE after RCE (alleged anyway).
Allseeing, I’m not going to JD’s firm. His firm is tiddlywinks compared to the monstrosities I’m looking at. But it would be funny if JD kept an eye out.
You need a vacation Mooney…
“No, it’s very good form to point out that you never actually make a point with your meandering around about bs writings. Saying that living in a country means you tacitly agree to abide by the laws is first ludicrous, and second disputed by innumerable acts of criminal/illegal activity every day, see murder etc.”
Dumb as a stump … that’s what comes to mind when I read your doodoo. The fact that people disobey the laws doesn’t mean that aren’t supposed to. BTW: look at the laws regarding (e.g., murder) in Virginia (i.e., the state in which you work). The law doesn’t say that “thou shall not commit murder.” Instead, it defines the types of murder (e.g., capital murder, first degree, second degree) and sets forth the punishment for those types of murder. You don’t have to obey the law, but try to avoid the punishment once convicted. I’m sure you’ll get a lot of traction telling the guard that he doesn’t have to obey the law when you are sentenced for 30 years in prison.
BTW … the next time you are in Singapore, spit on the sidewalk in front of a policeman. After that, tell him that you aren’t interested in obeying their laws, and he can stick his laws where the sun don’t shine. Heck … I would buy you the plane tickets just to see you do it.
6K, as been evidenced time and time again, you just don’t understand the law. Try to exercise your free will all you want. As long as you aren’t physically constrained, you are capable of doing anything you want, and I’m sure you can violate dozens, if not hundreds, of laws on a daily basis. However, as I said earlier, fcuk with the law, and the law will fcuk with you. That being said, I very much doubt you’ll much luck preventing some former college football player, turned policeman, from putting handcuffs on you and throwig you in jail. Moreover, I very much doubt you’ll have much luck in convincing a judge to not throw you in jail for many, many years for your transgressions because based upon your argument that nobody is required to follow the law.
Honestly, I cannot believe you are so dumb as to be believing the doodoo you are spouting. Then again, you’ve proven me wrong on that account, many, many times.
John, I guess you won’t need a lot of rocket science to figure out the identity of the Examiner with a couple of years of experience who will be interviewing with your firm. I suggest you make him pay for his own lunch.
“However, when the anonymous Frick and Frack of this website feel it is necessary to bust on the appearance of one of the public posters, that is hypocrisy at its very worse.”
His wise cracks to me were uncalled for. He knows he’s a public figure here and what comes along with it.
Oh, so now your brown jacket is out of our league eh JD? Apparently the guys that sell such things sell them for around 800.
link to balaniclothiers.com
My last suit was 600 and doesn’t look quite as good as some they have for sale. But almost does. And I’m sure I could swing the extra 2 if it was worth it. But hey, thanks for putting me on track to a half decent provider.
“Very bad form”
No, it’s very good form to point out that you never actually make a point with your meandering around about bs writings. Saying that living in a country means you tacitly agree to abide by the laws is first ludicrous, and second disputed by innumerable acts of criminal/illegal activity every day, see murder etc. Not to even mention gangs etc. More people that I know my age than I care to think about routinely break drug laws I decided not to put money in a meter the other day. All these are but a few of the legion of examples of why your statements are beyond foolish and you have no basis for them whatsoever. That is, other than something you made up in your mind that you refuse to share with us.
Arguments like yours are the reason for unamended nonfinals going on to be finals. I wish that attorney’s would word them like you did, in a sentence or two, and save me the trouble of reading 10 pages to glean one small irrelevant or false assertion from them.
“note how cool and clever they are. And it reminds me how you find all (or at least nearly all) design, mechanical, electro-mechanical and electrical inventions to be non-patentable.”
It’s hard to determine what is “clever” about those objects without looking at them in detail. As for how “cool” they are, well, your mileage may vary. I am sure that you already know that the relationship between “coolness” and “patentability” is non-existent.
The jacket’s not brown. It’s actually linen. From Holland & Sherry. Just a little out of both of your leagues, I’m sure.
Good luck on your interviews. You will clearly need it.
Malcolm (and some others)
I take a look at all of the IDEA: Design Award Winners, 2008
link to images.businessweek.com
and note how cool and clever they are. And it reminds me how you find all (or at least nearly all) design, mechanical, electro-mechanical and electrical inventions to be non-patentable.
6K writes: “I’d better steer clear of brown for the interview.”
MM writes: “I recently saw an episode of One Day at a Time where Valerie Bertinelli’s boyfriend wore that exact same jacket.”
It is one thing to anonymously bust on me since I post anonymously. However, when the anonymous Frick and Frack of this website feel it is necessary to bust on the appearance of one of the public posters, that is hypocrisy at its very worse. Then again, I wouldn’t expect any better from those two.
“pds says: ‘the pto higher ups aren’t required to follow the law, they just should because I want them to and it’s the right thing to do.'”
One thing that your learn from legal writing in law school, if you make it to law school, is not to put something in quotes and attribute to someone when that someone didn’t didn’t say or write what you put in quotes. Very bad form.
“1. A way to “join the country” or “become a citizen” at age 18 or so. Your choice. If you don’t want to join, you don’t have to, but you get no help from our gov. and if you do something physical against someone here you may meet the military.”
There is already a way to do that … just renounce your citizenship and move to a different country. Something I highly suggest.
Sorry, but by just living in this country, you tacitly agree to abide by the rules/laws of this country. However, move to (or even visit) another country, and you agree to abide by their rules. Of course, if you don’t want to, just be prepared to face the consequences.
Again, you might have better luck with an anarchist website.
“I’d better steer clear of brown for the interview. ”
I recently saw an episode of One Day at a Time where Valerie Bertinelli’s boyfriend wore that exact same jacket.
“Of course, there’s always someone with little taste:”
sure … kiss up to the PatentlyO crowd
Interviews at the law firms coming up this week! I only have one really nice suit, I think I might go get another. I was looking at some attorney photos to get a feel for how I should dress. Man look at these guys:
link to nixonvanderhye.com
link to nixonvanderhye.com
Looking sharp!
Of course, there’s always someone with little taste:
link to nixonvanderhye.com
I’d better steer clear of brown for the interview.
pds says: “the pto higher ups aren’t required to follow the law, they just should because I want them to and it’s the right thing to do”
Well ok then, that’s the answer to the question!
Glad to have someone tell us officially.
Let’s be clear though, that’s kind of what I figured. I’m glad to see you agree with guys like this: link to adventuresinlegalland.com
where they go into some detail about how our government is nothing more than a nice form of bullying. I don’t know if I agree with you on that. In my opinion the country just hasn’t developed it’s system of laws sufficiently to provide for two things:
1. A way to “join the country” or “become a citizen” at age 18 or so. Your choice. If you don’t want to join, you don’t have to, but you get no help from our gov. and if you do something physical against someone here you may meet the military.
2. A requirement to obey the laws in order to continue to be a citizen. And some kind of thing for kids.
On a side note, I have an unpaid parking ticket from a long time ago, I wish they would just garnish it out and save me the trouble of dealing with it. If the sheriff wants to come and take my old tv so I have an excuse to get a new flat screen, that’ll work too.
“I still do not see even one portion saying that laws must be obeyed. And thats not saying there isn’t one.”
Nobody is applying “mind control” on you to obey the laws. However, you (or anybody else) just have to face the consequences if you don’t. Sometimes those consequences are minimal or absent altogether, in which case few people have any incentive to obey the laws. However, in many cases, the laws are enforced, and people are forced to face the (sometimes serious) consequences.
You may ask what laws say that you have to obey the law that says that you will go to prison for 1st degree murder. However, when the 250lb guard puts you in shackles and shoves a baton up where the sun don’t shine, you’ll find yourself walking into jail regardless.
You may also ask what laws say that you have to pay some fine imposed by some court. It really doesn’t matter when your wages are garnished and the sheriff shows up at your house to collect your belongings to be auctioned off.
Then again, most fifth graders, after taking social studies, would figure this out. Then again, I don’t think you are smarter than a fifth grader.
I think your logic would find better purchase in a blog full of anarchists.
Fukc with the law long enough, and the law will fukc with you. That is all the law you need to know.
Looks like Chaon beat me to it. But, tell you what, since JD seems to believe he can, after having pumped himself up with the “I think I can” method, go ahead JD cite me some Articles. Article 1 Section 8? To make rules for the government and regulation of the land and naval forces? To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the US, or in any Dept. or Officer thereof? All very nice, but I still do not see even one portion saying that laws must be obeyed. And thats not saying there isn’t one.
Tyrone Slothrop discussed Patently-O’s Idi0tic blog-thread “Greg Aharonian Discussed the WSJ’s “Idi0tic Article on Patent Tr-lls”
“It started off quite interesting, but now it’s becoming idi0tic”, he said.
I really like the idea tarring and feathering, but that is just me. [We also have great majestic avenues here in DC to line up alongside and torment the lawbreakers as we force them to parade.]
e6k, are you one of those young whippersnappers who went to school when 4th grade civics class was so sophisticated that they forgot to tell you that good citizens obey the law?
I am starting a rumor:
If McCain wins the election, e6k will become head of the PTO.
If Obama wins, it will be pds.
Paul Morgan “*This same article notes, as a fairly typical example, the fact that Cisco has gone from defending against only two patent suits in 1998, both from actual competitors, to now defending against 32 patent suits, NONE by companies making any products.”
uhhmmm … that is because in 1998 cisco used overinflated stock, mostly to swallow companies – where is the stock now? how have they performed without a dot com bubble? …
more to the point >>> the amount of moneys paid out in settlements and judgments is *unchanged* and ranges around 0.11% of revenues for companies that are part of the “coalition for patent fairness”- including cisco – that doesn’t look like a lot of “shrink” for any business (0.11% !!) let alone those companies which repeatedly LOSE …
it is a lot easier to bet 4-5 mil if you are a big copyists than a small entity with nothing but your patent assets.
did the article note the anti-trust free passes handed out to these same companies by the doj over the past 8 years? the same ones that are being denied in “old europe” which somehow sees anti-trust issues all over the technical landscape where we see none.
did the article mention the number of companies swallowed by cisco which may have had higher premiums if the value of the IP was more liquid or had separate enterprise value – as opposed to being forced to negotiate with a monopsonist? 1998 was the year around which Juniper started (there are no other serious challengers to cisco’s marketshare, are there?)
how about any word on the overlap between doj & issues such as wiretapping? network neutrality? the drop in the US position in broadband deployments? what about the motivations of the cisco “patent troll tracker”?
just curious – patents are values not expenses – you do not see the journal talk about the downside of copyright suits in the same breadth, even trademarks get more kudos? – & you do not see the narrative that at 4-5 mil per patent case these are real deals – did anyone blink when any of the majors litigate each other MSFT ATT? Broadcom Qualcomm? Any mention of the number and pervasiveness of patent pools as quasi-industry standards?
greg gets it right, the narrative is a red herring that obscures all the moneys spent lobbying for reform, fairly simple political battle & yet the more the public understands the less it views the “trolls” and the “small entities” with animus say akin to that afforded the riaa or mpaa …
this is plain politics not innovation – and we can all use the stock prices of these companies as a better ruler – 0.11% infringement pay-outs is not going to move a stock by any significant amount – which is the point of the patent reform act, isn’t it? expense innovation – cap it?
“Uhm, I think it’s called the Constitution, aka, the supreme law of the land. You’ll learn about it in law school. Then again, maybe you won’t.”
—————————-
Where’s the law that says I have to obey the Constitution?
AHA! Caught you the in the icy grip of irrefutable logic!
As an American, I can break the law all day long, as long as I’m willing to pay the consequence.
American officials, who take oaths, on the other hands, are duty bound by their oath.
If an American official breaks the law, s/he is to be held accountable to the highest standard – e.g., public tar and feather, or
“Off with Their Heads: Traitors, Crooks, and Obstructionists in American Politics, Media, and Business”—
link to amazon.com
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“… can’t even show us the law that says the higher ups have to obey the law.”
Uhm, I think it’s called the Constitution, aka, the supreme law of the land. You’ll learn about it in law school. Then again, maybe you won’t.
So wait, enforcement actions have nothing to do with patents? Duh? Wait a minute…
“It doesn’t appear all that LSAT studying is doing any good.”
It doesn’t appear those years in practice and going to law school did any good … can’t even show us the law that says the higher ups have to obey the law. Come on, you can do it JD! Repeat after me, “I think I can, I think I can”.
“I wonder how many of these 32 suits could have been avoided by more carefully designing products to avoid existing patents, by use of reexams to invalidate/narrow third party patents and/or by taking out licenses where the patents were likely to be held to be valid and infringed.”
So, the reason more patents are being filed and issued and asserted by patent holding companies now than ever before is because many previously law-abiding companies decided to become patent outlaws or simply stopped caring one way or the other? That’s a new one. I think you just made Occam’s razor cry.
Nice try Mooney, all your comparison shows is that the change in the “business cycle” has caused many to begin enforcement actions. Is this some kind of revelation? I’d have to give it a rousing “duh.”
“*This same article notes, as a fairly typical example, the fact that Cisco has gone from defending against only two patent suits in 1998, both from actual competitors, to now defending against 32 patent suits, NONE by companies making any products.”
I wonder how many of these 32 suits could have been avoided by more carefully designing products to avoid existing patents, by use of reexams to invalidate/narrow third party patents and/or by taking out licenses where the patents were likely to be held to be valid and infringed.
I also wonder whether the growth and number of products Cisco is selling/manufacturing today compares with those in 1998.
Paul Morgan: “This same article notes, as a fairly typical example, the fact that Cisco has gone from defending against only two patent suits in 1998, both from actual competitors, to now defending against 32 patent suits, NONE by companies making any products.”
AllSeeingEye “There was only a change in the business cycle that had nothing to do with patents.”
One of these commenters is full of it.
This thread is probably too long for anyone to read already. However, let’s attempt to get back to its actual subject, which was a criticism of a Wall Street Journal article.
I think the criticisms of this article are off-point, and do not support many of the above editorials. The point of the article was NOT just another attack on patent trolls, and NOT opposing the sale of patents. It was that major companies [and the Supreme Court] have taken a stronger defensive position againt ALL patent suits, and that this is hurting licensing by legitimate R&D developers or manufacturors.
The article suggests that one reason for this [incontestable] development is that companies actually making or selling products have been burned for huge increases in patent litigation expenses. That is an incontestable fact.* [There has also been adverse media publicity about the quality of some of the patents being sued on]. I.e, the clearly demonstrated fact that there has been hugh increase in the number of patent suit defendants sued by companies [many owned and controlled by litigation attorneys] which do NOT invent, use or sell patented inventions and are formed solely for threatening and bringing lawsuits.
*This same article notes, as a fairly typical example, the fact that Cisco has gone from defending against only two patent suits in 1998, both from actual competitors, to now defending against 32 patent suits, NONE by companies making any products.
It doesn’t appear all that LSAT studying is doing any good.
It doesn’t appear all that LSAT studying is doing any good.
“http://www.opm.gov/constitution_initiative/oath.asp”
So you’re saying if the higher ups support the constitution then they are required to obey the laws?
“But it’s an example of much more than that besides.”
Agreed. They are prime examples of cases you whine about being so obvious, and non-statutory under 101, yet the PTO can’t seem to cobble together a rejection even close to a prima facie case.
BPAI has reversed the examiner twice in 09/193,787. At what point is the PTO going to admit that despite their best efforts, which ain’t saying much, they should issue the case.
Your arguments that the number of inventors listed, the number of continuations filed, the supposed “breadth” of the claim, etc. should be considered when determining whether the claimed invention meets the statutory requirements for patentability are foolish. Even coming from you. If the claims are not patentable, please explain why the PTO can’t make a rejection that sticks.
You won’t, because you can’t. Neither can they.
“In any meantime, please continue whining about how the PTO is denying you a patent on an invention that you refuse to identify.”
I’ve identified two. Neither are mine, but what does that matter?
You really should crawl out of the world of protein fragments, or whatever technical niche it is, that you’re currently ensconced in. It’s a wide world out there. You may find that the PTO’s current disregard for the law extends to more than just “business method” patents. Just hope it doesn’t find its way to your molecules, or whatever it is you supposedly prosecute.
QUESTION: “And why do I care about this case? Why should anyone care about THIS case? You need to be able to answer that question.”
ANSWER: “You should care about this case because it is an example of the lawlessness that pervades the examining corps”
But it’s an example of much more than that besides. That’s why it’s a poor ‘poster boy.’
I wonder why nobody bothers to simply find a good ‘poster boy’ of the sort I described upthread. You know, one that very clearly shows the PTO behaving in an arbitrary way to prevent the issuance of some narrow claims in a non-dubious art. That way we could all get behind the application and maybe force something to happen.
See where I’m going with this?
In any meantime, please continue whining about how the PTO is denying you a patent on an invention that you refuse to identify.
edit from above post
“… you *cannot* get a license …”
“Oh and why does the US not have an ‘obligation to exploit’ requirement that a lot of other countries seem to have. Would this not help in battling the trolls?”
The long-agreed upon quid pro quo is disclosure for a patent, not practice for a patent.
Also, the obligation to exploit (improperly) presumes one is capable of exploiting the invention. If you have a patent that is also covered by a senior patent and you get a license from the patent holder of the senior patent, then you, by law, cannot exploit your patent.
“Nice laws, both of those, now where is the law that says the higher ups must obey the law? Still waiting … ”
link to opm.gov
Oh and why does the US not have an “obligation to exploit” requirement that a lot of other countries seem to have. Would this not help in battling the trolls?
Nice laws, both of those, now where is the law that says the higher ups must obey the law? Still waiting …
Though, to be honest, even in the worst cases of examination both of those laws are being followed. Examination is carried out, and if it appears (to the examiner) that the application is in condition for allowance then it is allowed. If it doesn’t … well you get the picture. So then your argument is that the higher ups do obey the law?
e6k, here is some law you are supposed to obey (notice the use of the word “shall,” which is usually interpreted as being a command):
35 U.S.C. 131 Examination of application.
The Director shall cause an examination to be made of the application and the alleged new invention; and if on such examination it appears that the applicant is entitled to a patent under the law, the Director shall issue a patent therefor.
37 CFR § 1.104 Nature of examination.
(a)Examiner’s action.
(1)On taking up an application for examination or a patent in a reexamination proceeding, the examiner shall make a thorough study thereof and shall make a thorough investigation of the available prior art relating to the subject matter of the claimed invention. The examination shall be complete with respect both to compliance of the application or patent under reexamination with the applicable statutes and rules and to the patentability of the invention as claimed, as well as with respect to matters of form, unless otherwise indicated.
(2)The applicant, or in the case of a reexamination proceeding, both the patent owner and the requester, will be notified of the examiner’s action. The reasons for any adverse action or any objection or requirement will be stated in an Office action and such information or references will be given as may be useful in aiding the applicant, or in the case of a reexamination proceeding the patent owner, to judge the propriety of continuing the prosecution.
“How does that catch-22/mexican standoff get resolved?”
Get rid of the current corrupt mismanagers, i.e. the political appointee hacks and lifers.
Replace with people who understand it’s not their job to pick and choose which applicants and applications they like and don’t like, and who have respect for, and will obey, the law.
“Presumably, the USPTO’s opinion is that they are.”
I’m sure they do. But given their (mis)understanding of the law (take your pick – the current continuation and claims rule fiasco, the proposed Markush rules, etc., etc., etc.) their opinion is beyond meaningless.
Remember, these are the same people who were told, in several hundred comments, that they don’t have the authority to limit continuations and who responded, “Yes we do. See Bogese and Symbol Technologies IV.”
These legal masterminds are running the PTO.
Good grief.
John, I agree with you. One thing I can’t get my head around is the whole “adherance to the law/breaking the law” argument.
It’s your opinion that the USPTO are not complying with the law. Presumably, the USPTO’s opinion is that they are. How does that catch-22/mexican standoff get resolved? There is always the BPAI option, although it seems to me that it’s fairly common for the BPAI to back up the examiners.
When you read the comments from e6k, who, lets face it, has about as much intelligence as a sack of hammers, and seems to enjoy saying no for the sake of saying no, it’s not hard to see how you have ended up in the position you are in.
JohnDarling — you are correct “The PTO’s job is to search the application, examine the application, make a prima facie case of unpatentability, and if they can’t, issue the patent.”
If they had been doing this the past five or so years the backlog would be decreasing, not increasing.
“Maybe not but it sure would help. And why do I care about this case? Why should anyone care about THIS case? You need to be able to answer that question.”
You should care about this case because it is an example of the lawlessness that pervades the examining corps and is the result of the mismanagement by those who do not regard adherence to the law to be part of their job requirement.
As I said, the law is clear. The PTO’s job is to search the application, examine the application, make a prima facie case of unpatentability, and if they can’t, issue the patent.
The PTO doesn’t get to decide if they like the subject matter of the claims, or the number of inventors who are listed, or the number of applications claiming priority to, or from, the application and then break the law if they don’t like any of those factors.
You should also care because the corrupt mismanagement of the PTO keeps telling us that the backlog and pendency are 100% the fault of applicants and the patent bar. But how many applications are the examiners of these two cases not examining because they are churning these two over and over and over and over?
It’s simple: search the application, examine the application, make the best case of unpatentability that can be made, let BPAI decide. If affirmed, hurray for them, if reversed, issue it. Let it be subjected to your fool proof invalidity defense of, “Oh, come on your honor, this is clearly invalid!!! It’s so obvious nobody ever even bothered to write it down!!!”
“They would never do it to one of my cases. Seriously. It would never happen because I wouldn’t let it happen. I do not know what it is going on with those particular cases but even the worst prosecution histories and PTO clean-up incidents I was unfortunate enough to have witnessed look nothing like that.”
That’s nothing more than the usual silly bravado we get from you.
I’m starting to believe pds is right. I don’t think you’ve ever prosecuted a patent application.
Keep up the hilarious posts.
Are you trying to backpeddle Mooney MacMonkey?
You always talk about a “patent bubble” but there never was a patent bubble. There was only a change in the business cycle that had nothing to do with patents. There will be no “cleanup” because there is nothing to clean up, except for your noxious presence.
pds :: bravo !! can someone point out where their clients’ products are manufactured? How about the % requirements artificially imposed by governments & incumbent trade groups to meet a “made in …” “swiss made” … “made in china” label – gee – bubba – here is a trade name argument – is it really made in switzerland if the movement of the watch uses only 20% of parts actually made in switzerland by one company, say ETA??? last i checked over 70% of all value in equity in our stock exchanges (American) is attributable to intangibles not tangibles – is is made elsewhere … and … caveat … lots of the intangibles are held overseas for tax efficiency … taxation without representation … if the inventors can be fairly identified as the tax payers, the folks who make things here including invention, say IC mask sets, who is representing them?
equity means you work for yourself … debt means you work for someone else
“Hmmmmm … what about companies that buy a strip mall and get money (in the form of rent) from the tenants? The owners of the strip mall didn’t create or sell anything. Shouldn’t we treat them the same way as patent holders that don’t make the patented product??
As for the difference between those create the technology and those that make/sell the things, in the USA, I think we should be more concerned about those that create the technology. The making/selling of things are likely going to happen overseas. As such, if the USA loses the competitive advantage with regard to innovation (by watering down the patent system), then the ones who will most likely benefit won’t be from the USA.”
AGREED rent should come to inventors who successfully patent that which can be sold as products and services … the true innovations become industries in and of themselves … the time lag between “good patents” & revenues worth litigating is worth a looky-see …
our patent system is our industrial policy & making sure the real innovators get protection is not a terribly difficult concept to understand in light of historical precedence and the huge success of the US system even with the “harmonization” of 1995 & 1999 …
caveat … random thoughts … let alone attribution for their contribution & time value & opportunity cost in getting it right “enough” for others to follow – competition IS good & the patent becomes public domain in a 20 year time limited period – so all cannot be lost even with the silliest & worst patents – i’ve had worse educators compared with reading what some call “bad patents” – luck, serendipity, flash of genius, if we knew the hits … we could just take orders and sell …
Bubba?? “A common theme on this and other blogs is that the count system screws things up and provides incentives for gamesmanship.
The Trademark office has examiners, office actions, final refusals, appeals etc. and does not seem to be so plaqued by the same problems that the patent side does. Anyone care to comment as to why? What could the patent side learn from the trademark side that would be useful?”
well generally – a patent is used to encourage public disclosure by an inventor who believes his metes & bounds have yet to be disclosed by another using the standard of novelty & non-obviousness in meeting definiteness & description requirements (this is oversimplification) … he discloses (she is her own “lexicographer”) because of the consideration the government provides for that disclosure, presumably – why define or teach anything that you have 20 yrs of protection for? and, how long does trademark protection last?
And, what is the cost of trademark litigation? Better yet, where does employment and industry creation come from primarily? naming? advertising? which 50% of that advertising has anything to do with the innovation embodied by a patent?
… so are you saying that we should apply a “confusingly similar” standard (again, oversimplification) to reject “defensive patents” filed in alleged response to innovative disclosure of “good patents” (insert some definition here)? – so, who is “confused”? a PHOSITA? or better yet, make companies who have large staff filing said defensive patents to show diligence in doing prior art searches that are commensurate with their own filings in their entirety? you know using lots of different firms who do not know what other firms representing the same party at interest are doing?
more simply – there may be no “trade” yet ! (a trademark examiner would probably reject on that basis alone, no?) – there is no product or service that can be identified or alleged to be confusingly similar to “consumers” – or is it a PHOSITA …
how much public policy is spent on protecting trade names versus invention … open question for the academics out there that talk about these very confusingly similar concepts …
“There was an economic shift around 2000, but it appears by the many graphs posted on PatentlyO that there was no change in the number of filings.”
Yes, that’s why I said the cleanup would take 50 years.
Oh and congrats on “tardlicking.” I’d not heard that term before you brought it to my attention and I suspect you’ve heard others say the same thing.
“the bubble burst… blah… blah… blah”
Mooney, there WAS no bubble, or do you have a problem reading graphs? The number of patents has been on a fairly unremarkable trend of expansion for the last 4 or 5 decades and possibly more. There was an economic shift around 2000, but it appears by the many graphs posted on PatentlyO that there was no change in the number of filings.
When will you tire of your shrill hyperbole, and narcissistic tardlicking? We all have.
Every revolution begins with a guy on a street corner holding up a sign.
Maybe.
Actually LH the code specifically identifies gov. employees as having to pay taxes. Now, so far as I can tell if I didn’t work here I might not have to. The gov. makes a big enough stink about you not paying them that it’s worth it though.
“In response to your last post, everyone is required to obey the law. Why would you assume otherwise?”
I assume we’re all people living on earth. You’re the one assuming we are all required to obey the law.
Leopold:
I am working on a response to a Final Rejection where the examiner essentially said only that all of her prior rejections were repeated. She did not respond to any of my prior arguments where I had argued for some of the independent claims that specific limitations were not taught and for other of the independent claims that other specific limitations were not disclosed in the references as she contended.
HONK! HONK!
HONK!
Malcolm,
Sorry if my whining bothers you.
pds, with regards to your advice, I appreciate it. At the risk of being accused of whining, however, it’s the “repeat as needed” that is driving up costs for my client. My guess is that it’s a lot easier to do the cut-and-paste job that some examiners like to do, where they simply copy an old office action and splice in a new secondary reference for some unimportant feature. Then they say that my previous arguments explaining why the primary reference teaches exactly none of the features of the claimed invention are “moot” in view of the new grounds of rejection. Honk if you’ve seen this before… Of course, since I’m not posting an application number, I’m probably just making all of this up.
“I guess you have no problem with the PTO’s handling of this case. So you wouldn’t mind if they did it to one of your cases.”
They would never do it to one of my cases. Seriously. It would never happen because I wouldn’t let it happen. I do not know what it is going on with those particular cases but even the worst prosecution histories and PTO clean-up incidents I was unfortunate enough to have witnessed look nothing like that.
99.999% of prosecutors do not get themselves into such situations. What is that guy’s problem?
e6k,
You are not one of these crazies who thinks he has no obligation to pay income tax, are you?
I WANT MY PATENT GODDAMMMIT!!!!!!!
/inventor of five-sided shift key off
e6k,
In response to your last post, everyone is required to obey the law. Why would you assume otherwise?
“It just makes me laugh that anybody would hold up that ‘337 app as some wonderful example of a poor inventor being treated oh so unfairly by the big bad PTO.”
I never held them up as poster children for some wonderful example of a poor inventor beign treated oh so unfairly by the big bad PTO.
I cited them as poster children for the endless loop of withdrawn rejections being followed by equally bad, or worse rejections.
For somebody who blows a gasket whenever he feels he’s been misquoted, you got a funny habit of doing the exact thing to others.
Thanks for answering my questions. I guess you have no problem with the PTO’s handling of this case. So you wouldn’t mind if they did it to one of your cases.
Oh, I’m sorry, I forgot, you’re the only patent attorney who’s ever filed an application for an actual invention. And who’s never filed a continuation. And who’s never committed inequitable conduct.
Preach away, brother Malcolm.
e6k,
Examiners are required to follow the law like everyone else. It appears thatyour issue is that there is no apparent mechanism to ensure compliance.
There are no patent police. If you don’t follow the laws you will continue to perform incompetently and you should ultimately be fired. The BPAI is generally pretty good about following the law and you will get smacked down.
So … what exactly is requiring us to obey the law? Can you point me to that law or where it is otherwise required? Perhaps you are source of this requirement for the office to obey the law?
In your 65 mph example I’m pretty sure (I’ve seen the one for VA) that there is a law that specifically states that it shall be unlawful for motorists to operate their vehicle over the posted speed. Where is the analogous law for the PTO higher ups or examiners?
“Hmmmmm … what about companies that buy a strip mall and get money (in the form of rent) from the tenants?”
What about sticking to the subject. Geezus.
“You don’t have to like the invention, the claims, the inventors, the number of continuations, or whatever to conclude that the PTO’s handling of this case is despicable.”
Maybe not but it sure would help. And why do I care about this case? Why should anyone care about THIS case? You need to be able to answer that question.
Or come up with better cases. I suggest coming up with a LOT of better cases.
Good luck with that. In the meantime, I’ll just sit here and let the examples of absurdly broad claims (asserted to be inventive by knowledgeable applicants UNDER OATH) continue to simply fall into my lap. Remember the application file a couple years ago by lawyer with 958 claims that read on sonar? That was funny.
“How about a company that does nothing EXCEPT buy patents and assert them against companies that do manufacture and sell products to the public? How should the public “perceive” that sort of company relative to the companies that are actually making and selling things? I view this as a rhetorical question.”
Hmmmmm … what about companies that buy a strip mall and get money (in the form of rent) from the tenants? The owners of the strip mall didn’t create or sell anything. Shouldn’t we treat them the same way as patent holders that don’t make the patented product??
As for the difference between those create the technology and those that make/sell the things, in the USA, I think we should be more concerned about those that create the technology. The making/selling of things are likely going to happen overseas. As such, if the USA loses the competitive advantage with regard to innovation (by watering down the patent system), then the ones who will most likely benefit won’t be from the USA.
pds is correct. The law of the almighty count is the only thing examiners are answerable to.
“While you’re at it, please explain how the number of inventors has anything to do with the examination of an application.”
We weren’t talking about examination of applications. We were talking about “poster boys” for bad PTO behavior. Did you ever hear the story about the poster boy for Issue du Jour where the poster boy turned out to be a child murderer? There’s a reason for that.
It just makes me laugh that anybody would hold up that ‘337 app as some wonderful example of a poor inventor being treated oh so unfairly by the big bad PTO. Try a little harder, mkay? Or maybe just reconsider the premise.
e6k,
The answer to this is fairly obvious. Examiners and higher ups are required to obey the law. Whether they are compelled to obey the law is another matter entirely.
Simple example: I am required on most highways to limit my speed to 65mph. I am not compelled to do so. If I do not obey the speed limit, I will be fined (or perhaps worse). This does not compel me to obey the speed limit, but merely gives me a reason to do so.
Unfortunately, nothing at the moment hinders the PTO examiners and higher ups from not obeying the law. You should choose to do it because it is your job to do so.
A common theme on this and other blogs is that the count system screws things up and provides incentives for gamesmanship.
The Trademark office has examiners, office actions, final refusals, appeals etc. and does not seem to be so plaqued by the same problems that the patent side does. Anyone care to comment as to why? What could the patent side learn from the trademark side that would be useful?
“As a practical matter, I do not see any way to force someone to do their job if I have no ability to affect that job.”
Au contraire my friend, appeal and when the examiner reopens prosecution with a worse reference, put them back again (repeat as need). Eventually, the examiner is going to get really, really tired of writing responses and not getting any counts. A count is the life blood of an examiner. Ensure that the examiner doesn’t get any counts for crappy work, and the examiner will eventually come along.
It may not be “forcing” the examiner, but it can be a very powerful persuasion.
JD: “It’s very clear that the current crop of political appointee hacks and lifers who are (mis)managing the PTO believe that they are not required to obey the law,”
Me: “Can you point me to the law that says that they must obey the law? ”
JD: “To answer your question, there’s nowhere you can go to actually compel the examiner to follow the law.”
Ok, so, just so we’re clear, examiners aren’t required to obey the law, but the higher ups are? At what specific level does one become high up enough that you are required to obey the law?
“Yes, that’s a great poster child for bad PTO behavior. LOL!!!!”
Good poster children for ‘baseless’ rejections would involve narrow non-obvious claims without the barest hint of a 101 issue, one or two inventors, and an Examiner who’s understanding of the law was axx-backwards to even non-patent attorneys.”
What does the number of applications claiming priority to 09/077,337 have to do with the PTO’s treatment of that particular case?
And what 101 issue are you talking about? While you’re at it, please explain how the number of inventors has anything to do with the examination of an application.
Nice straw men. Pretty weak. Even for you. Then again, you do manage to top yourself on just about a daily basis. I’m sure we’ll see even weaker from you in the not too distant future.
Let’s see, the first time an appeal brief was filed, the examiner withdrew the rejections and re-opened. But the rejections weren’t baseless, right? Rock solid, lead pipe cinches they were I’m sure.
The next time an appeal brief was filed, the examiner actually answered. And got reversed. The BPAI spent about 9.5 pages of a 10 page decision summarizing the examiner’s super awesome rejections and then about two sentences explaining why those rejections didn’t pass muster.
The claims are so obviously obvious, but the PTO some how can’t cobble together something that they either feel confident taking to the BPAI, or that can actually get affirmed. But everybody knows that sh#t ain’t patentable, right? It’s so old and well known, nobody ever bothered to write it down. That’s the ticket. Why didn’t the PTO just go to the BPAI with that argument? It’s clearly a winner. Mooney uses it every day here. How many patents have you got invalidated with that argument? The number must be legion.
I don’t see any comment from you on the two suspensions of actions, and the bullsh$t request for information, which was in violation of the actual rule, and the PTO’s own policies as set forth in the MPEP. Let’s not forget about the first suspension and the outcome of the mysterious interference that was going to have an impact on the prosecution of the case, but which turned out to be a big fat lie. Oh, and how about the second suspension?
How about the fact that applicants responded 14 MONTHS ago and the PTO has done nothing in response?
All of it completely against the rules. But hey, rules are meant to be broken, right? PTO don’t need no stinkin’ rules. Rules are for s#ckers. Like applicants.
You don’t have to like the invention, the claims, the inventors, the number of continuations, or whatever to conclude that the PTO’s handling of this case is despicable.
“Asserting a patent as a non-practicing entity should have no consequence as how your company is viewed perceived by the public.”
the reality is that we live by the narrative & die by the narrative – “patent troll”? respectfully, so-what, it was coined by folks at a well-known IT company, some of them are engaged in the practice today – the older term that can be used in response is “patent pirate” (1845?). ask anyone what a pirate is and they get it … see below about napster in that context
whether they are copyists, vulture capitalists, car salesmen, ambulance chasers, nouveau riche, does it really matter if the truth always lies somewhere in between? there is lots of money involved and there are “words that work” (frank lutz) – it cannot be denied … i mean what is the difference between blog & journalism?
pointing out the positives – like the fact that inventors actually create jobs & getting that message across is far more likely to get the public to understand just what a patent is & more importantly why the US patent system has been a boon for all of America.
again and again, there is no RIAA or MPAA for inventors … there are groups whose interests rightfully deal with attorneys & agents but how many large firms actually take on small entities these days? why not? how about 10% of billable hours given to individual inventors? on a local scale, even with local focus on industries that may have local competitive advantages – better ski boarder innovation – emphasize in CO & WY in areas near sky resorts? what about efforts by firms to make the MPEP more readable to any inventor? that seems to always fall on deaf ears as it is not “law” but without some objective manner to make the knowledge accessible – words matter more …
with all kinds of ridiculous academic studies that allege better patent processes based on theories that are divorced from the reality of the system as argued and debated by practitioners & examiners here & else where … you would think that making the system more approachable to the people & their elected representatives would be the most basic and easiest message to manage – entrepreneurs take risks and create jobs, they need protection against those who infringe – litigation is cheaper than r&d, etc etc
we have ourselves to blame but then again who knew much about copyrights (or still do) when napster captured the front page for many many publications for days & weeks at a time …
“Asserting a patent as a non-practicing entity should have no consequence as how your company is viewed perceived by the public.”
I don’t know if it should or shouldn’t. That’s up to the public.
And again: I’m not aware of anyone saying that any company is a troll that doesn’t practice X but asserts a patent that claims X. I think there’s more to it than that.
How about a company that does nothing EXCEPT buy patents and assert them against companies that do manufacture and sell products to the public? How should the public “perceive” that sort of company relative to the companies that are actually making and selling things? I view this as a rhetorical question.
Most Americans will assert that they prefer capitalism to the alternatives. But most Americans work for a living at jobs that are not easily characterized as “money-making schemes for clever opportunists.” When such clever opportunists appear, most Americans are intrigued but that honeymoon doesn’t last long. The bubble burst almost a decade ago. The clean-up will take fifty years, probably.
Malcom, I agree the term is devoid of legal significance. But that is not the issue. The issue is the term is used by the media to evoke a negative inference on the company labeled as such.
As for “who cares” whether you are a troll or not, it appears that many that comment on this board do (as well as the community). Otherwise there wouldn’t be so much fuss about the word and its implication,
Asserting a patent as a non-practicing entity should have no consequence as how your company is viewed perceived by the public.