Dr. Michelson Supports Patent Reform

Gary Michelson forwarded the following letter which he has also mailed to members of Congress. Dr. Michelson became a billionaire as a result of a settlement of his infringement lawsuit against Medtronic.

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March 17, 2010

I am writing in regard to the patent reform legislation currently before you.

Abraham Lincoln had it right when he said the patent system was the engine of the American economy. Those few words inscribed by our founding fathers in Article I, Section 8 of the Constitution of the United States says it beautifully “to promote the Progress of Science and the useful Arts.”

All politics aside, one would be hard pressed to find support in our history that government can either tax its way out of a recession, or tax its way out of a budget deficit without crushing job formation -the most pressing economic problem of our time. History has shown that it is possible to have vibrant job growth and to simultaneously reverse deficit spending by growing the economy. You cannot increase productivity by simply telling the man with a shovel to dig twice as hard. But one person with a word processor can replace twenty people with typewriters. That is more work done for the same amount of effort, raises productivity and the standard of living, and makes businesses more profitable so they can employ more people. It may well be that in the 1990s, it was the permeation of computers throughout the business world that substantially contributed to the economic growth of those times.

I would submit to you that the next engine to produce that kind of economic growth is currently trapped in the patent office. The United States now competes economically against the rest of the world. We cannot afford to have technology, that if unleashed and nourished would fuel our economy, labor slowly through the patent office while the rest of the world races on.

Companies will not invest in uncertainty. The power of the patent gives small entrepreneurs and large companies alike the certainty that they require to invest their time and money. This creates jobs and frequently a better way of achieving the same result or a better result. Sometimes the better way is the thing itself.

The United States patent system is in desperate need of the reform legislation presently before you.

Some people have grabbed the pulpit and have claimed to speak for the individual inventor. But, grabbing that mantle for themselves and making such proclamations doesn’t make it so.

I have been an independent inventor for the last quarter century. I am the single named inventor on over 900 issued patents or pending applications throughout the world, and just shy of 250 issued patents in the United States alone. Many of the inventions contained in these patents have resulted in highly successful best of kind or entirely new products. One of my licensees estimated that their sales of products incorporating my technologies would exceed five billion dollars ($5,000,000,000.00) and affect the lives of millions of people. Imagine the number of jobs that must be created to design, manufacture, sell and service these previously non existent products.

I mentioned people’s lives effected. Let me be more precise. I am a board certified orthopedic surgeon fellowship trained in and specializing in spinal surgery. Recently the Paralyzed Veterans of America recognized me as the outstanding medical researcher in the field of spinal disorders. My inventions which are in the field of spinal disorders have made such procedures faster, safer, more effective and less expensive. On occasion they have freed people from wheelchairs, lifted them from disability, allowed them to return to being mothers and fathers and husbands and wives, and to go from welfare to work.

Presently we are blessed with a new Director of the United States Patent and Trademark Office (U.S.P.T.O.) who left a job that was the envy of the intellectual property world. He brought with him a unique understanding of ultra large scale information technologies and computers that is so essential to the present and future functioning of the Office, as well as an in depth working knowledge of best practices from the competitive world of free enterprise. This is what will be required to reinvigorate the Patent Office, and to clear up the massive three year backlog of 800,000 pending patent applications. However, the able and dedicated people who staff the patent office cannot effectively execute the people’s business with their hands tied behind them and lacking the resources to do so.

I strongly implore you on behalf of myself, independent inventors like me, and for the good of our country to support the patent reform legislation before you. And if upon reflection you recognize how truly vital the Patent Office is to the future of our country then I would ask you to do more and to consider the issue of “revenue diversion”.

The U.S.P.T.O. is unique in American government in that it costs the taxpayer nothing while providing the best dollar for dollar value in the intellectual property industry. The U.S.P.T.O. should have the authority to set its fees so that they are appropriate to the services provided and “in the aggregate” sufficient to fully optimize the functioning of that office, and to reasonably budget for the capital expenditures that will be required in the future for it to continue to do so.

There is an old saying that the best time to plant a shade tree was fifty years ago. The next best time is right now. Now is the time to act.

Thank you for your consideration of this vital issue. Please do not hesitate to contact me if I may be of service to you in this matter.

Sincerely yours,

Gary K. Michelson, M.D.

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Dale Carlson writes “Scrap the Patent Bill

139 thoughts on “Dr. Michelson Supports Patent Reform

  1. Ned, I thought I knew what a “compulsoy licence” is. I’m a patent attorney in Europe and I don’t have any idea what you mean by a “mania” for imposing them on patent owners. When was the last time any European country granted a compulsory licence under a patent? I do remember something about a US patent and a threat to impose a compulsory licence on Bayer. Then there was that litigation under another US patent, involving EBay. As far as I know, owners of patents infringed in Europe still get injunctive relief.

    Can you enlighten me further. I’m fascinated.

  2. Max, there are more than one reason why the disclosure has to issue with the patent. You simply ignored what I said about those.

    Cranky is right that the design around also promotes the useful arts — which is one of the most essential reasons for the disclosure — to distinguish what is new from the old. But, providing an enabling disclosure is only for the post-patent period in the US, that is until recently. In the world of compulsory licensing, the period of use of the public begins immediately, not at the expiration of the patent.

    True, the useful arts are benefited from the initial disclosure, but that is not the reason for the initial disclosure at all. It seems to me that Europe has it backwards and this helps explain their mania for compulsory licensing and prompt disclosure — to put the public into immediate possession of the invention in one way or the other.

  3. Max, I’m sure you’re aware of this, but Ned confuses the “public policy in the US” with his own personal views. There’s obviously much more to “promoting the progress” than just the patented inventions themselves. For instance, the courts have explicitly recognized the benefits to progress that result from design-arounds, and from improvements built on top of the enabling disclosures. Ned is simply incorrect that the point of the disclosure is simply to give the public possession of the invention after the term expires. If that were true, then we would could easily have a system like you suggest, where the enabling disclosure is only published at the end of the term. But we don’t, and never have.

    At the risk of offending the true Constitution scholars on here, I also take issues with Ned’s paraphrase of the Patent Clause. The Constitution does not say that “progress is promoted by rewarding inventors by providing them exclusive rights for their inventions.” It says that in order to promote progress in the useful arts, Congress is empowered with a particular tool – the power to grant patents. Progress is promoted, among other ways, by prompting inventors to disclose their inventions by means of the patent grant.

  4. Ned, now I see what you are driving at. In a really good patent system,that promotes the progess better than any other, one would broadcast the claims to the public the day the patent issues, but the enabling description that was deposited at the PTO not until one day before the patent term ends. Now I see where ROW has failed, and why the visceral distaste US inventors have for its system of early publication. Thank you.

  5. MaxDrei: As for FtI, I still think it is incompatible with public policy. If you must impede free competition and impose restraints of trade, by installing a system of patent rights, you should do it in a way that really does promote the progress, by which I mean, get those enabling A publications out there in the open, as fast as it can be done. They deliver a real, effective and immediate deterrent, with their threat of injunction to anybody who misappropriates their teaching.

    Max, it remains abundantly clear that we have a fundamentally different view on what the public policy is in the US. Our constitution states the public policy. It states that progress is promoted by rewarding inventors by providing them exclusive rights for their inventions. It is the inventions themselves that promote the useful arts.

    After the period of exclusivity, the public is free to use the invention — thus the requirement of a description. The patent must also clearly delineate what is new from the old. But the point of the description is to give the public the free use of the invention after the period of exclusivity, not before.

    You seem to think that only a patent description promotes the useful arts; and you do so in a way that suggests that the public is immediately enriched upon publication of the patent specification. Indeed it is in a sense, but the patent is supposed to tell the public what they cannot use, not what they can use.

    Now the public policy in Europe may be to promote early disclosure to enrich the public; but the contrary view is the public policy in the US — until recently that is, when the likes of the Coalition for Patent Fairness (Fairness — a codeword for socialism) began to be loudly heard in the halls of congress so eager to listen to the largest contributors. Only in a world of compulsory licensing — of big companies with broad cross licensing — (and this does describe Europe) does the public policy you promote make sense.

  6. I heard tell Cranky say that NAL doesn’t wear track shoes, but decidedly non-sublime thigh high leather boots.

    Had to stop him there – not my business, really.

  7. “When you have real questions that may impact the flow of the discussion on the board, I may choose to grace you with an answer. Perhaps you should review the scorecard I put together reflecting your past obsession.”

    Careful Noise, if you keep lacing those track shoes up so tight, you may cut off circulation to your little footsies.

  8. …try omitting the phrase and see if you can figure out what I am saying.

    Now that’s advice I can use. Thanks, Noise.

  9. sarah,

    I find your post sublimely insightful.

    And this is one I don’t mind helping Cranky and the other naysayers understand:

    from sublimely“>http://www.merriam-webster.com/dictionary/sublimely

    1a: lofty, grand, or exalted in thought, expression, or manner
    b: of outstanding spiritual, intellectual, or moral worth
    c: tending to inspire awe usually because of elevated quality (as of beauty, nobility, or grandeur) or transcendent excellence

  10. Cranky,

    The following reply should be taken with all of the due respect that you deserve.

    When you have real questions that may impact the flow of the discussion on the board, I may choose to grace you with an answer. Perhaps you should review the scorecard I put together reflecting your past obsession. You may notice that my answer to your rapid and rabid series of questions was a withdrawal in nearly the same language that you repeatedly used in quotes as well as used by me originally. That withdrawal was what you had asked for in several questions including the eighth time asked.

    Yet after I withdrew my statement, you questioned the manner in which I withdrew and said that you could not understand what I was saying, and then proceeded to post a total of three times after my withdrawal with rather uncalled for and abusive language, escalating to a demand that I admit that I “was wrong” and had a pathological problem for not being able to admit that I “was wrong”. I had given you what you asked for in a withdrawal, but your blood lust was not satisfied. Your eleventh post even included a reference to rope, which was truly confusing, as you appear to have a desire to misappropriate my creative symbolism from prior posts for some twisted purpose that was a mystery to me, except for its spite. Tell me, what drives such malevolence?

    Your continuing duplicitous nature does not go unnoticed. In your follow up post of Mar 19, 2010 at 06:12 PM which incorporates the posts of Mar 18, 2010 at 04:59 PM and Mar 18, 2010 at 05:07 PM, you provide a series of definitions for “doctrine” and ask which of these definitions did I have in mind. You appear to want to understand what I am writing. However, your phrase “I’m not familar with that particular doctrine” indicates that you indeed understand what “doctrine” means, but impliedly, my statement cannot be a doctrine in the “true” sense of the word, since you are having trouble following my argument.

    I will say “no thank you” to stepping into your pile of crap trap.

    Likewise, to your Mar 19, 2010 at 06:14 PM follow up to your Mar 18, 2010 at 08:41 PM post, I will also say “no thank you”. If the word “granular”, or better yet, the phrase “large granular” disturbs you, try omitting the phrase and see if you can figure out what I am saying.

    I will not be making the habit of explaining myself to you whenever you have trouble keeping up with the manner in which I write. Especially if you persist in sidetracking excursions without regard to the substantive topic at hand.

    Your obsession with me belies a more sinister motive than wanting to understand. I do not suffer your foolishness lightly.

  11. Everyone is weighing in on which is worth patenting. Or which will or will not be a boon down the road.
    A Patent Atty. needs to tell the patentee that his idea may or may not fly. And if the patentee says I still want you to go with it. Then you give it the time and the defense it needs to run its course at the PTO. Because after all if the PTO is hiring more examiners. And it is because they can’t keep up with the flow of applications. And those Applications are making money. and because of that . the examiner has a Job. And then there is the trickle down gives others Jobs. Then who is anybody to tell anybody with a dream to forget about it. Only maybe the Patent Atty. Until the dreamer says lets go with it anyway. If it’s a barrett that lights up so when you cross the street you can be seen in the dark. Or a new Television that also watches your children for you while they watch the TV, so you can do the Laundry. That may not seem good enough to you. But it is to the Dreamer. And there isn’t one Agent or Lawyer that has the right to tell the dreamer no. Maybe only to consider it, If they don’t agree. I think that’s called counseling?

  12. ping, I am finding that this bri thing is quite contagious. For example, there seems to be competition on this thread to see who can come up with the most ridiculous scenario.

    And calling somebody out on writing pat instead of app seems a bit ridiculous to me. Let’s go for the substance, shall we? All I am saying is the banal and unremarkable thing, that a scope of protection which is commensurate with the extent of the contribution to the art is the aim and justification of any properly functioning patent system.

    On the one hand, one must strive to see all the things that might possibly go wrong, upon introduction of a new law. But, on the other hand, I’m a fan of the EPO’s Principle of Synthetical Propensity (which can be googled). The ground rule, under the PSP, when construing any document is to do it with a mind willing to understand and seeking to synthesise meaning. I think I don’t need to trouble you setting out the antithesis of that approach. What’s your experience of how bri shakes down, at the EPO as opposed to the USPTO? I say, it’s not inevitable, that people behave in a ridiculous way. We can arrange matters so they are encouraged not to be so silly.

  13. “is that the disclosure should be deserving of the reward that it gets. Otherwise, the reward does not promote the useful arts because the public does not get its due in return.”

    IANAE, we have already covered this – the public gets its due no matter what. 18 months to publish and years to first action. Yea, baby.

    We want the quo. We got the quo. Even the (British) Parliament says so:

    Ow, we want the quo (we’re gonna turn this mother out)
    Give up the quo
    Ow, we need the quo (we’re gonna turn this mother out)
    We gotta have that quo

    The reward is rather meaningless, some may get it, eventually. – publish and take the quo – then stall, reject under bri – biggest ridiculous interpretation, let those that want to spend the cash pay for the RCE or three, bring through appeal and if we lose there, simply reopen with a new search. The new Quid Pro Quo is awesome, baby.

    I know the reply: “Oh ping, behave!

  14. “and the statute requiring examination of ENTIRE patents.”

    Hey everyone – A new law according to IANAE, the statute requires examination of the entire patent.

    And here I had always thought it was the patent application that had to be examined to get a patent. I’ve had it backwards all this time.

    Must be that new Quid Pro Quo – start with a patent, examine it into a patent application.

    Who needs crayons with the explosion of promotion this new law will bring us.

    Hello, New World Order.

  15. Good to know Ned that we have stuff in common, like:

    1. a personal right to continue to use, despite another filing later on the same thing

    2. a definition of the state of the art (available for asserting that the claim includes within its ambit something obvious) that confines attack material to what had already been published before the date of the claim.

    Both these are, of course, sine qua non in the European FtF system. But that’s not surprising, given our agreement that they must be part of any logical patent law.

    As for FtI, I still think it is incompatible with public policy. If you must impede free competition and impose restraints of trade, by installing a system of patent rights, you should do it in a way that really does promote the progress, by which I mean, get those enabling A publications out there in the open, as fast as it can be done. They deliver a real, effective and immediate deterrent, with their threat of injunction to anybody who misappropriates their teaching.

    There is a fundamental misapprehension in these threads, that there would have been no worthwhile technical progress in the USA, if there had been no FtI. The proposition has only to be stated, to reveal its absurdity. If the USA had been running all this time with the substantive patent law of the EPC, its progress would have been all the more striking. Who in these threads has any ideas what goes on in corporations, and between corporations and individual inventor Applicants, as soon as the companies have assimilated the latent threat in those A publications (and the risk that they be acquired by a fierce competitor)?

  16. Max, let me be clear on a few things. Our system is not perfect and a few things could and should be fixed with legislation. I would, for example, eliminate as best as possible “secret prior art” as prior art; confining prior inventors to prior user rights but giving the public no further rights. Only when two patent applicants are claiming the same invention in the same jurisdiction should the contest in priorities be resolved. Typically, the first filer wins interferences. Thus, prior art would, in my idea of the world, include only published information, non published prior use information readily available to the public at a reasonable cost and published patents and patent applications effective as of their filing dates.

    Now, to protect the inventor from subterfuge, we need a grace period where a prior publication can be antedated by proof of prior invention of what the reference discloses, provided that the date of publication is not more than a year prior to the effective filing date of the filing and further provided that the date of invention proven is also prior to the filing date of the reference if the reference is a patent application.

    Note, in none of this do I limit the scope to the US. A readily accessible prior use in India, for example, would be prior art in the US. A foreign patent application publication would be effective as “prior art” against a US application if it is published and if is own filing date is before the date of invention.

    Such a system remains a first to invent system, but eliminates much of the uncertainties of a system where information can both inaccessible to the public and prior art at the same time; while giving non filing prior inventors some security in their prior user rights.

  17. You might have noticed as well, Noise, that I’ve patiently waited almost 22 hours to remind you of my other question to you. Again, my entire post is reproduced below, for easy reference:

    NAL: However, there is a large granular disconnect between fee intake and actual work on a particular application. This is due to the insane idea that any (and all) application(s) are an equivalent fit with a quasi-average widget production unit.

    Dear Noise,
    I read your comment very slowly. But I’m having a little trouble with it. What do you mean by a granular disconnect? What makes the disconnect granular? Do you mean granular in the sense of “consisting of or appearing to consist of granules”? Or perhaps you mean that the disconnect is “finely detailed”? Thanks in advance for any clarification that you can provide.

  18. Sorry, I am not like Cranky to bug you at a rate of once every four hours until you comply, but it would be nice of you to actually comply before re-using your snide comment.

    Gee, Noise, I’ve patiently waited a full 24 hours to remind you of the last question I posed to you. In case you missed it, I’ll repost the entirety of my earlier message below:

    NAL: The fee distribution (entry, prosecution, and post-grant) balances several doctrines, including the desire to have wide open front gates. Ignoring these doctrines – and some purposely ignore because they believe wide open front gates are necessarily bad because patents themselves are evil, only adds to the confusion (dare I say obfuscation?).

    Noise, I truly enjoy your posts. I do have a small question about this one. From Merriam-Webster Online, I get this definition for “doctrine”:

    1 archaic : teaching, instruction
    2 a : something that is taught b : a principle or position or the body of principles in a branch of knowledge or system of belief : dogma c : a principle of law established through past decisions d : a statement of fundamental government policy especially in international relations e : a military principle or set of strategies

    I’m assuming you’re not using the archaic definition. Which of these other definitions do you have in mind when you refer to the doctrine of “the desire to have wide open front gates” (hereinafter, “the wide-open front gates doctrine”)? I’m not familar with that particular doctrine, which may be why I’m having trouble following your argument. Thanks in advance.

  19. Ned I’m not sure whether anybody is asking you to abandon ship. But I do see the difficulty of making a step change. After all, the UK still drives on the left hand side of the road even though Europe, as such, drives on the right.

    Then again, not long ago the UK did abandon the good ship LSD (12 pennies in a shilling, twenty shillings in a pound; and 21 in a guinea, the currency in which professional fees used to be billed out). Can you tell me something about the relative trading volumes per day in London and in NYC, how big a proportion of the GDP of the UK is generated by the finance sector in the City of London, and how big it would have been today, if London were still on board the good ship LSD?

    There are a lot of intelligent mice in London, and even more in the USA. There are a lot of unintelligent ones as well, mind.

  20. “… requiring examination of ENTIRE patents.”

    IANAE,

    I am still waiting for your breath-taking plain language rendition wherein examination means partial or arbitrarily selective examination.

    Sorry, I am not like Cranky to bug you at a rate of once every four hours until you comply, but it would be nice of you to actually comply before re-using your snide comment.

  21. I half recall a Supreme Court case that held that prior invention is prior art outside the context of an interference; although there was some controversy about this point in In re Bass, where the dissent suggested that prior invention was not prior art.

    Can anyone cite the Supreme Court case?

  22. MaxDrei, when we are asked to abandon ship, the intelligent mouse asks first whether the ship on fire.

  23. I’m reminded of GM, every time I read stuff (plenty of it in this thread) about patent rights which in effect asserts “What’s good for ME is what’s good for America”.

    Yes, it’s a major, major theme in this thread.

    Can I interest you in some chocolate-covered cotton?

  24. Thanks Guys, for lots of laughs. I’m reminded of GM, every time I read stuff (plenty of it in this thread) about patent rights which in effect asserts “What’s good for ME is what’s good for America”.

    All this sky-falling-in stuff about American inventors and their advisors being totally unable to adjust to a world without a grace period is fascinating. One definition of “intelligence” is “ability to cope with change”.

  25. Simply because “first” is not present doesn’t mean that the rights afforded by the Constitution can be just willy nilly handed out to anyone such as whoever gets to the PTO first.

    Gosh, you’re right! And that means that Section 102(a) is unconstitutional, to the extent that it ignores prior knowledge or use of an invention in other countries. And Section 102(b) is unconstitutional, to the extent that it ignores public use or sale in a foreign country prior to the US applicant’s so-called “ivnention.” And Section 102(d) is unconstitutional, to the extent that an unpublished foreign application filed before a US inventor’s invention date, but less than 12 months before the US inventor’s application, is not a bar to a patent. And Section 102(g) is unconstitutional to the extent that it allows a second inventor to be awarded a patent simply because the “true” inventor wasn’t diligent.

    And Section 103(a) is unconstitutional to the extent that it relies on Section 102. It goes on and on!

    You would have thought that somebody would have brought this up before. Thanks, foggy bottom!

  26. “had a very arguable case why he didn’t violate any rights at all?”

    Shouldn’t intent be measured by the facts at the time of the infringement decision versus at the time of putting on the defense? The strength of the defense is certainly evidence of a lack of intent to infringe a valid patent, but is it always dispositive?

  27. What really matters is: what did Jefferson Davis think?

    We should do the same for patents. Who cares what’s written in the spec? Put the inventor on the stand and ask him what he thinks he invented and what he meant to claim.

    We could even let the inventor add words to the patent at trial, as long as he put them in all caps. That would look great alongside the constitution securing to FIRST inventors and the statute requiring examination of ENTIRE patents.

    Just so long as we don’t let infringers add words to the claims. That would weaken the patent system, and that leads directly to the end of civilization as we know it.

  28. The question here is whether the first inventor is more deserving of a patent than a subsequent inventor. The constitution is completely silent on the point, because it applies equally to them both. The deciding factor is how the statute determines novelty, which is at the discretion of Congress.

    Undoubtedly true.

    But you know how the teabaggers are. What really matters is: what did Jefferson Davis think?

  29. Thus “to secure to authors and inventors” requires an inquiry into who the inventor is. That would be the person who was first to invent the thing.

    Anyone who invents the thing is an inventor. If two people independently invent the same thing, they are both inventors.

    First-to-file countries still require that the applicant be (an assignee of) an actual inventor. They don’t just give patents to “whoever gets to the PTO first”. They don’t render the right meaningless, because you still have to invent something and disclose it in a patent application to get the patent on it.

    The question here is whether the first inventor is more deserving of a patent than a subsequent inventor. The constitution is completely silent on the point, because it applies equally to them both. The deciding factor is how the statute determines novelty, which is at the discretion of Congress.

    Oook.

  30. It seems to me, that incenting invention is what promotes the useful arts.

    Obviously in Europe and to IANAE, promoting disclosure of inventions in patents is what promotes the useful arts.

    What really promotes the useful arts is the combination of those two things. People need to invent, and then disclose their inventions in a manner deemed sufficient by the patent statute.

    Lessen the reward in any way, one lessens patents and thereby disclosure. Emphasizing disclosure over reward obviously lessens patents.

    Increase the reward in any way, and one strengthens patents and thereby disclosure. Right? How about injunctions and treble damages for everyone? Invalidity no defense to infringement?

    You need to come up with better than “what’s good for the patentee is good for America”. The patent system is supposed to be a balance between the patentee and the public.

    Europe and I aren’t saying that disclosure is more important than the reward. What we’re saying (assuming Europe agrees with me, I haven’t asked it) is that the disclosure should be deserving of the reward that it gets. Otherwise, the reward does not promote the useful arts because the public does not get its due in return.

  31. your argument doesn’t hold water Mooney, er, INANE, but then what else is new.

    Simply because “first” is not present doesn’t mean that the rights afforded by the Constitution can be just willy nilly handed out to anyone such as whoever gets to the PTO first. Under general rules of construction, you can’t interpret something in a manner that would render the right meaningless. Thus “to secure to authors and inventors” requires an inquiry into who the inventor is. That would be the person who was first to invent the thing.

    But you go ahead, in your usual course, and create your fanciful world…

  32. IANAE, Max: as to what promotes the useful arts, why don’t we quote the constitution and see what it actually says,

    To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

    It seems to me, that incenting invention is what promotes the useful arts.

    Obviously in Europe and to IANAE, promoting disclosure of inventions in patents is what promotes the useful arts.

    The two are indeed closely related, but not the same thing. Disclosure results from patents; but patents result from inventions and the reward for disclosure in exchange for exclusive rights.

    Lessen the reward in any way, one lessens patents and thereby disclosure. Emphasizing disclosure over reward obviously lessens patents. But that is the European way and the way of the folks like IANAE.

    If one loses sight of the forest while counting trees, one soon loses his way.

  33. Or maybe that’s just the literal language of the Constitution itself…

    Or maybe it’s not. Since the literal language says “inventors” and not “first inventors”.

    If two people invent the same thing, which of them is entitled to the patent is left completely up to Congress.

    If FTF were even borderline unconstitutional, I’m sure we’d be hearing more about it.

  34. “But maybe it is simply the case that it appeals to our sense of fairness to allow the earlier inventor to prevail.”

    Or maybe that’s just the literal language of the Constitution itself…

  35. The statute eliminates willful infringement for cases where the defendant presents a close case in court regardless of the pre-litigation conduct.

    It’s reasonably debatable whether willful infringement should be found in close cases. I recognize that such finding would benefit the independent inventor who is being oppressed by the large corporation that used to be an independent inventor. Even so, how appropriate is it really to impose punitive (as opposed to purely compensatory) damages based on intent to violate the patentee’s rights when the defendant had a very arguable case why he didn’t violate any rights at all?

    On balance I do agree with you that pre-suit conduct should be a major factor in willfulness, but by the same token I don’t think “more profitable for the patentee” should be the sole controlling factor in what patent law we choose to have.

  36. All I know is that if the big boys succeed in killing the patent system with “reform,” which has successfully outsourced corporate R&D to the public and the world at large for the last several decades, they will have to internalize R&D costs to keep new products in the pipeline when the market starts to crave a new round of next generation product development. That is, if they can find any creative people left in their soul stifling bureaucratic organizations. Maybe that explains the big turnaround in sentiment of the CPF.

  37. Maybe first to invent made more sense as a policy consideration before we had 18 month publication. I’m just thinking out loud, so to speak, but maybe the principal concern was that an inventor of limited resources might prefer not to file rather than risk that a later inventor had already filed. Back in the day, it was not possible to see what had been filed. Now that we have 18 month publication and a huge backlog, we can see most of what has been filed, so the inventor can at least see that no one else filed more than 18 months ago.

    But maybe it is simply the case that it appeals to our sense of fairness to allow the earlier inventor to prevail. I mean, isn’t it also just as appropriate to argue that an inventor of limited resources might prefer not to file rather than risk that an earlier inventor might file later?

    It just seems hard to say that one policy or the other is going to be more effective at inducing the first inventor to patent, simply because the inventor has no assurance whether or not he is the first inventor, and no way to ascertain that information with any certainty.

    But, if you are going to have a grace period, then I guess first to invent really is needed to assure an inventor who already disclosed that another who was not an inventor at all, and who is trying to steal their invention, will not prevail by pretending to be a subsequent inventor. But if you do away with the grace period, it is hard for me to see any strong policy reason for first to invent.

  38. INANE is the new Mooney… the new most tiresome and much to pervasive poster ever (and most likely the same asswhole).

  39. Max,

    ping, or Ned, can you clarify something for me: does the Bill abolish wilful infringement and the triple damages that follow the event? If not, what is it in the Bill that emasculates the tort of infringing a valid patent claim in the USA? Not FtF,surely?

    The Senate draft does. Willful infringement is required to increase damages. The statute eliminates willful infringement for cases where the defendant presents a close case in court regardless of the pre-litigation conduct.

    The pattern of conduct of the “Coalition” is consistent, bringing everything about the pending bill into question.

  40. I just said that commoners turning into business people and entrepreneurs is what makes this country so successful. And you said that removing the grace period would eliminate that.

    Huh. I don’t remember saying that. Could you provide a link or a quote to one of my posts where I said that?

    It only SECURES to the inventor that which the Constitution affirms that he is entitled to.

    Don’t start the constitutional argument again. You know you’re wrong, and it’s been discussed to death and back.

  41. IANAE, also, please read the Constitution. The govn’t doesn’t pay or give anything. It only SECURES to the inventor that which the Constitution affirms that he is entitled to.

  42. Well, there we go. The strongest argument against first-to-file is apparently that I am in favor of it. Sounds like the death knell for the American small inventor.

  43. IANAE, thanks for proving my point.

    “The need to file before you go telling everyone is not the most complex aspect of any patent system. It could easily be explained to any businessperson that his information is only valuable until he starts giving it away for free, and in particular the government only pays him for telling the public if the public doesn’t already know.”

    I just said that commoners turning into business people and entrepreneurs is what makes this country so successful. And you said that removing the grace period would eliminate that. I’m glad you agree.

  44. How many reasons do you want?

    The patent system is supposed to promote prompt disclosure of inventions, because that’s what actually promotes the useful arts.

    And that’s why we give patents purely for disclosure – that’s what IANAE says is the Quid Pro Quo.

    The patent system should reward the inventor who takes the initiative to give the invention to the public, not the one who keeps it secret.

    Dam those provisions that punish keeping things a secret. Oh, um, isn’t the argument here about punishing small entities who talk before they file? Talking is tantamount to keeping things a secret? Must be – IANAE give this answer.

    There is no constitutional or logical basis why the first inventor should be preferred over any subsequent inventor.

    I always liked subsequent invention. It’s so much easier than actually doing the work to borrow from someone else and say I subsequently invented it. Plus this eliminates that awful litigation error that I cannot use the defense of innocent infringement. What’s that about strict liability? No clue – IANAE hasn’t given that answer.

    The rest of the world is first-to-file, and even if nothing else is worth harmonizing surely the question of who is entitled to the patent should be the same everywhere.

    Yes – there we go you have it – the “if nothing else” substantial argument – How can you go wrong with that? If nothing else, IANAE is a genius.

    First-to-file relies on objective facts like when a document was filed at a government office, thereby making priority easy to establish.

    And we know that the true answer is that we need to have an easy system. But you better not file in crayon. I don’t know why, but that’s what IANAE says, so it must be objectively true.

    The rest of the world still exists, despite the horrific abomination that is first-to-file.

    Never mind that the rest of the world does not have our Constitution – we have already established that no patent right flows from the Constitution. Better yet, we should just get rid of our Constitution and adopt the rule of law that all involved, disinterested, no ax to grind, love of country and innovation motivated global people are adopting (Don’t ask me what that is – I already told you I don’t give answers).

    These are great reasons for disturbing the most potent (and therefore valuable) IP rights in all the world in order to make those most potent (and therefore valuable) IP rights in all the world even better, just more like IP rights in all the world, because everyone knows that rights that are the same as those all over the world are always better than those rights in all the world. Because IANAE says so – and he gives the answers.

  45. Small, sole inventors or even guys at small companies don’t realize that, or want to bounce their ideas off someone before they start spending money on legal representation. That’s why the 1 year grace period exists.

    It’s also because the grace period exists.

    The need to file before you go telling everyone is not the most complex aspect of any patent system. It could easily be explained to any businessperson that his information is only valuable until he starts giving it away for free, and in particular the government only pays him for telling the public if the public doesn’t already know.

    People who are at all interested in getting patents should know the rudiments of the system. Not every detail, but the very basics. Like, you have to file a patent on something new, and it’s not new if everyone already knows about it because you told them. They shouldn’t get complacent about the statutory grace period, because the grace period is mostly there in case something goes wrong or someone misses a date by accident, and anyway they couldn’t get the same grace period in other important countries.

    Look at the proposed amendment, which I think makes things worse because it looks like there’s still a grace period but it’s virtually impossible to take advantage of when another publication intervenes. I would abolish the grace period except in the case that someone else disclosed what you invented without your consent, or similar. If your information is valuable and important to you, take proper care of it.

  46. Sorry Max, I do not give answers. That’s for fools and only invites “naysayers”.

    Also, I don’t think Ned wanted a question of what emasculates, he wanted to know what in the Bill made the most potent (and therefore valuable) IP rights in all the world even stronger. In other words, why change?

    That’s not an invitation to a question, it’s a question to be answered. Like I said – Homey don’t do that.

    Ned, IANAE gives the answers – listen to him (or naysay him – whatever your preference).

  47. Max, Ianae, the problem with your system, and indeed the European system is that removing the grace period can ONLY help the big sophisticated players. They know that they have to file before any disclosure. Small, sole inventors or even guys at small companies don’t realize that, or want to bounce their ideas off someone before they start spending money on legal representation. That’s why the 1 year grace period exists. You guys need to get outside of the IP circle a little bit if you think that everyone will automagically know that they have to file before they talk to their neighbor this weekend.

    The US has more small businesses, medium businesses, and large businesses than anywhere else for a reason. Our system was set up to promote entrepreneurship. Tearing that down is not smart. Doing so in a depression (or to create one) is downright [insert your choice here].

  48. You know readers, to me that from IANAE reads like something from an involved but disinterested person who has no axe to grind, one motivated out of love of country, technology, innovation and the Rule of Law.

  49. Ned: Because the large companies file abroad, they are already on a de facto first-to-file system themselves. Thus they advocate the same for all of us,

    What would you call these people. They call themselves the coalition for patent “fairness.” We really need a better term.

    They want everybody on the same system? The system they’re forced to be on regardless of US law? The system that rewards the person who actually discloses the information first? Sounds like a good name to me.

    Besides, Ned is asking for reasons why disturbing the most potent (and therefore valuable) IP rights in all the world should be done with the switch to FtF, and you don’t provide an answer.

    How many reasons do you want?

    - The patent system is supposed to promote prompt disclosure of inventions, because that’s what actually promotes the useful arts.
    - The patent system should reward the inventor who takes the initiative to give the invention to the public, not the one who keeps it secret.
    - There is no constitutional or logical basis why the first inventor should be preferred over any subsequent inventor.
    - The rest of the world is first-to-file, and even if nothing else is worth harmonizing surely the question of who is entitled to the patent should be the same everywhere.
    - First-to-file relies on objective facts like when a document was filed at a government office, thereby making priority easy to establish.
    - The rest of the world still exists, despite the horrific abomination that is first-to-file.

  50. ping, or Ned, can you clarify something for me: does the Bill abolish wilful infringement and the triple damages that follow the event? If not, what is it in the Bill that emasculates the tort of infringing a valid patent claim in the USA? Not FtF,surely?

  51. But is the “while Europe has no mega-damages and no wilful infringement” a benefit or a detriment?

    Seems that such laxity favors the entrenched.

    Besides, Ned is asking for reasons why disturbing the most potent (and therefore valuable) IP rights in all the world should be done with the switch to FtF, and you don’t provide an answer. You have introduced a non-sequitur and proclaimed – look at my non-sequitur.

    He is not going to like that.

  52. Yeah Ned but it wasn’t FtI that created one jurisdiction of 360 million people while in Europe there are 37 (and thirty or so different languages). And it wasn’t FtI that is responsible for industry in the USA going in fear of being found to have infringed wilfully, while Europe has no mega-damages and no wilful infringement.

    Switch to FtF and I warrant the jurisdiction and the damages will remain undisturbed, to leave US patent rights still the most feared, in all the world, whereby the possession of a valid and infringed claim of a US patent will continue to be one of the most potent (and therefore valuable) IP rights in all the world.

  53. However, there is a large granular disconnect between fee intake and actual work on a particular application. This is due to the insane idea that any (and all) application(s) are an equivalent fit with a quasi-average widget production unit.

    Dear Noise,
    I read your comment very slowly. But I’m having a little trouble with it. What do you mean by a granular disconnect? What makes the disconnect granular? Do you mean granular in the sense of “consisting of or appearing to consist of granules”? Or perhaps you mean that the disconnect is “finely detailed”? Thanks in advance for any clarification that you can provide.

  54. “Even if (arguendo) the disconnect is due to an insane idea, that doesn’t make the fee structure a bad one.”

    First declare that you were wrong, that you were pathologically wrong, that you always will be wrong, that your first born son will always be wrong.

    oops sorry got stuck in channeling Cranky.

  55. MaxDrei, the most valuable patents in the world are US patents; and yet currently the cost in obtaining and maintaining them is modest. European patents cost far more to obtain coverage in markets equivalent to the US economy; and, as we have seen, European patents can hardly be enforced by anyone who doesn’t have a lot of money. As a result, US patents are worth far more than European patents even when the cover equivalent markets.

    So, when it comes to discussing patents and patent systems, the US system is still the Cadillac system, so far as US inventors are concerned. If one has an important US patent in a world industry, a small company usually has enough protection to get his or her business off the ground, or to justify the investment expense. The same obviously is not true or as much true in Europe or anywhere else in the world.

    So, we need to be very very careful that we not kill the goose that lays the golden eggs for inventors in favor of any system outside the US that is NOT demonstrably better for inventors in any way.

  56. I call these people members of the interested circle. They are just as likely to be asserting their own patent as they are to be defending against patent rights being asserted against them by a competitor. Like me, who on Monday is defending a patent against an Opponent trying to terminate it, for all Europe, in one fell swoop at the EPO and, on Tuesday is leading the assault on a patent wrongly issued by the EPO.

    Such people want a strong patent system, by which I mean one that gives fair protection to inventors but reasonable legal certainty for the public. This is mandatory in Europe, under Article 69, EPC.

  57. MaxDrei:

    “I’m not an infringer Ned, but I argue it. I argue it because FtI encourages slowness to the PTO, which is not in the public interest and contradicts the objective of any properly functioning patents system, to promote (ie accelerate) the progress of science and useful arts.

    Or am I an infringer? What do you mean by “infringer”?”

    MaxDrei, obviously, I should amend my remarks to include people outside the US such as yourself.

    In the US, those favoring FITF, outside of patent attorneys, are largely found in the Coalition for Patent Fairness. These are large companies who complain about bad patents and trolls. How would you label these companies?

    Because the large companies file abroad, they are already on a de facto first-to-file system themselves. Thus they advocate the same for all of us, without doing any analysis as to how it would benefit or harm independent inventors or small businesses who do not at present need to file abroad, but who are more interested in patenting when their invention is sufficiently developed.

    These same large companies are behind reexaminations, oppositions and the like — means they can use to keep the trolls litigating in the patent office at little or no expense to themselves while taking advantage of the PTO’s BRI to force unnecessary amendments that reduce their exposure to past damages.

    These same large companies are behind the effort to reduce damages and remove injunctive relief for anyone not like themselves. Their enemies are small business, individual inventors and their representatives. The pejoratively refer to these folks as trolls.

    What would you call these people. They call themselves the coalition for patent “fairness.” We really need a better term.

  58. However, there is a large granular disconnect between fee intake and actual work on a particular application.

    However, insurance companies do that all the time, with a much bigger disconnect, and they have no problem with it. They’re quite profitable, for the most part. The disconnect isn’t even “due to” the idea that all files cost them the same, since they calculate their rates with full knowledge that their widgets are wildly and randomly different. The PTO would probably set its fees using much the same math.

    Explain again why you think the PTO should scrap the flat fee structure. Even if (arguendo) the disconnect is due to an insane idea, that doesn’t make the fee structure a bad one.

  59. Sorry. What you actually said was that the flat fee was due to the “insane” idea that all applications cost the same to examine.

    compare to

    However, there is a large granular disconnect between fee intake and actual work on a particular application. This is due to the insane idea that any (and all) application(s) are an equivalent fit with a quasi-average widget production unit.

    You are in such a hurry.

    Slow down.

    Take a deep breath.

    Read.

  60. Can you name some of these people who believe that “patents themselves are evil”

    Me, probably. I don’t mind the idea of a ticket booth at the front entrance (special discount rate for entities less than this tall), a guard at the exit, and a suggested donation box for people who enjoyed the show. You can see how that makes me rabidly anti-patent.

  61. I’m not familar with that particular document…

    I mean, of course, that I’m not familiar with that particular doctrine… My apologies.

  62. NAL they believe wide open front gates are necessarily bad because patents themselves are evil

    Can you name some of these people who believe that “patents themselves are evil” and who have discussed the PTOs fee system in a confusing or obfuscating manner?

  63. The fee distribution (entry, prosecution, and post-grant) balances several doctrines, including the desire to have wide open front gates. Ignoring these doctrines – and some purposely ignore because they believe wide open front gates are necessarily bad because patents themselves are evil, only adds to the confusion (dare I say obfuscation?).

    Noise, I truly enjoy your posts. I do have a small question about this one. From Merriam-Webster Online, I get this definition for “doctrine”:

    1 archaic : teaching, instruction
    2 a : something that is taught b : a principle or position or the body of principles in a branch of knowledge or system of belief : dogma c : a principle of law established through past decisions d : a statement of fundamental government policy especially in international relations e : a military principle or set of strategies

    I’m assuming you’re not using the archaic definition. Which of these other definitions do you have in mind when you refer to the doctrine of “the desire to have wide open front gates” (hereinafter, “the wide-open front gates doctrine”)? I’m not familar with that particular document, which may be why I’m having trouble following your argument. Thanks in advance.

  64. Ouch – the good doctor missed freshman English!! (“I mentioned people’s lives effected.”)

  65. Why do you mis-characterize what I said?

    Sorry. What you actually said was that the flat fee was due to the “insane” idea that all applications cost the same to examine.

    I already explained why you can’t infer a flat cost model from a flat fee structure (the “due to” part of your statement) in the very post you take issue with, but feel free to ignore that.

  66. “Why do you characterize a flat fee structure (not counting excess page and claim fees) as “insane”? There is nothing wrong with flat fee structures”

    Why do you mis-characterize what I said?

    Gee no surprise there.

    What is insane is the quasi-average widget system.

    Read before jumping IANAE.

  67. And of course for certain “technology” areas you don’t actually have to do invest any money or time except to scribble out a flow chart and file because “everything is enabled”. You know, like a method for playing a song on a computer,

    Even in the mechanical arts, most anything short of a perpetual motion machine is self-enabling as long as you file enough crayon sketches of it. You could basically file a design patent spec with a design patent claim and fill in the rest later.

  68. “The more shared, the more humanity has its possession. ”

    “The notion of “deterring filings” should be anathema to the very essence of why the Office is in place – and leads to the “Duell” mindset, and to the mindset that the customer is the enemy. ”

    According to your best buddy Boundy we already have a system in place that deters filing applications. According to him, if we go to FTF then companies will be FORCED to file more applications. Obviously if they’re not filing those applications currently then the number of applications filed now is less than it would be if we had FTF. FTI therefore has the net effect of deterring applications.

    So are you an advocate of FTF? No, I bet you’re pro-application deterence.

  69. IANAE At a certain price point it becomes so cheap to file an application and get it searched that people don’t even bother considering whether their application has merit. Those meritless applications get examined, but never issue and never incur maintenance fees. They cost the PTO more in examiner resources than the good patents, and hold up the queue for everybody.

    And of course for certain “technology” areas you don’t actually have to do invest any money or time except to scribble out a flow chart and file because “everything is enabled”. You know, like a method for playing a song on a computer, wherein the song is played on the computer user’s birthday upon starting the computer, and wherein the song is selected from a list of songs written by artists born on the same month and day as the user, and wherein the list is retrieved from an electronic database using a powerful computer brain.

    You know, new and useful stuff like that that which anyone can think up in five seconds or so.

  70. However, there is a large granular disconnect between fee intake and actual work on a particular application. This is due to the insane idea that any (and all) application(s) are an equivalent fit with a quasi-average widget production unit.

    Why do you characterize a flat fee structure (not counting excess page and claim fees) as “insane”? There is nothing wrong with flat fee structures. Look at insurance companies. They have a huge variance between the essentially flat fee they charge their individual customers and the resources those customers cost them (typically either a huge amount or zero). They have no illusions that each customer costs them an equivalent amount of time, money, or resources. They even deal with a strong adverse selection bias that the expensive customers are more likely to seek insurance. As long as they set the flat fee at an appropriate level, they turn a profit and everything is fine.

    Well, other than their reject-reject-reject culture, but that’s another show.

    As to the notion that maintenance fees in themselves are a deleterious influence on the patent office because they create an incentive for the Office to create patents – this merely feeds the anti-patent propaganda machine.

    I’m surprised it doesn’t bother you at all to invoke the “anti-patent propaganda machine” and the “reject-reject-reject culture” to support fee diversion away from the PTO. Taking money generated from patent prosecution away from the organization that examines patents while complaining that their examiners don’t have the resources to handle the complex applications seems, well, somewhat anti-patent.

    One problem often put up in rebuttal to IANAE’s position of “meritless applications” is that NO ONE can truthfully determine (on any scale that matters) which applications are truly meritless and which will be a boon far down the road.

    Ooh, another straw man. If it only had a brain!

    Most inventions admit of at least a preliminary assessment of whether they’re worth the cost of filing, or how complete you’d like your application to be before filing. Even a cursory glance at the most easily-available prior art could have a profound effect on how you draft your claims, which would save you at least one scandalously-underpriced widget worth of examiner time. But why bother, if the examiner will search your application for basically free? If it turns out your invention isn’t patentable, just abandon it. It didn’t cost that much anyway, and someone else did all the work. If it is patentable, then hey, free patent.

    It cannot reasonably be disputed that the PTO already receives applications faster than it can examine them. Maybe it should get its house in order before trying to manage applicant behavior, especially in an attempt to make things worse.

    Don’t come running to me when you throw open the PTO doors and start seeing a lot of applications filed in crayon.

  71. Re MaxDrei’s and “we” think it’s a disaster, don’t we? – Actually, the fee structure is already quite similar to as MaxDrei indicates, as there are not only separate fees for different work, but there is also fees for extra claims and for length of application.

    However, there is a large granular disconnect between fee intake and actual work on a particular application. This is due to the insane idea that any (and all) application(s) are an equivalent fit with a quasi-average widget production unit. MaxDrei, didn’t you recently refer to the law if unintended consequences?

    As to the notion that maintenance fees in themselves are a deleterious influence on the patent office because they create an incentive for the Office to create patents – this merely feeds the anti-patent propaganda machine. There is a separation between the Office making money by pushing more patents (and the subtle intimation that the Office is not interested in only putting out good and worthwhile patents) and what the Office actually keeps. That is why the budget process is as it is with excess fees going back to the general coffers. While fee distribution amongst the elements making up the patenting process is not an easy task to manage, it should be noted that it is NOT done in order to promote any and all applications into patents. This poppycock has been put forth repeatedly in an era of obvious reject-reject-reject culture that its very notion should be suspect. To advance that any fee, much less the maintenance fee in particular, incentivizes the Office to act improperly is balderdash.

    The fee distribution (entry, prosecution, and post-grant) balances several doctrines, including the desire to have wide open front gates. Ignoring these doctrines – and some purposely ignore because they believe wide open front gates are necessarily bad because patents themselves are evil, only adds to the confusion (dare I say obfuscation?).

    One problem often put up in rebuttal to IANAE’s position of “meritless applications” is that NO ONE can truthfully determine (on any scale that matters) which applications are truly meritless and which will be a boon far down the road. This notion is already captured in the doctrine of having a wide open front gate, for it is much better to have “more”, even if that “more” has more flotsam, than it is to have “less” with less flotsam. Small and seemingly inconsequential applications may be the butterfly effect for future grand endeavors. The decision apriori of merit may also tend to disproportionately disadvantage the less sophisticated pro se inventors. Open gates are meant to make the patent arena less the sport of kings. The more shared, the more humanity has its possession. The notion of “deterring filings” should be anathema to the very essence of why the Office is in place – and leads to the “Duell” mindset, and to the mindset that the customer is the enemy. Kappos is diligently working to eradicate this concept (something the naysayers on this board find difficult to swallow). That is not to say that prudence should be absent, but the easy path of “Limited places at the dinner table” is one of those thoughts that guarantees unintended consequences will be inapposite to the goals of the Office.

  72. Yes, and Bush caused crop failures, crop circles, hurricane Katrina, cows that won’t milk, and Obama’s present miserable popularity rating.

    Yes Bush is the cause of all problems of the past and future.

    Your Mom called Mooney, she said to tell you to “get a life” and stop being a bitter and petty partisan hack.

  73. IANAE, that was my point about going to a strictly royalty setup. There is a happy medium on filing fees and all other fees.

  74. “We could use more train stations and more trains and more train tracks. That would create jobs and reduce our dependence on cars and foreign oil.”

    I agree, Malcolm.

  75. Malcom, I’m suggesting that Bush’s tax cuts were across the board and disproportionately beneficial for those of us making less money (greater reduction in marginal and effective rates).

  76. Max, or we could just stop literally TAKING resources (i.e., money) away from the PTO for blowing on pet projects. Just a thought.

  77. How about a fee for filing, one for a PTO search, then a hefty one for examination on the merits and, finally, a big one for the granting stages? The more resources you take from the PTO, the more you have to pay.

    But no, that’s no good, is it? The EPO tried that already, and “we” think it’s a disaster, don’t we?

  78. Also, removing the filing fees would provide a decent reduction in filing costs, prompting more filings, increasing the number of cases up for allowance.

    You want to have some up-front expenses. Not so much that you deter filing for the sole inventor who thought up something really clever, but enough that people consider whether their invention is worth the expense.

    At a certain price point it becomes so cheap to file an application and get it searched that people don’t even bother considering whether their application has merit. Those meritless applications get examined, but never issue and never incur maintenance fees. They cost the PTO more in examiner resources than the good patents, and hold up the queue for everybody.

  79. BJA Malcom, I usually don’t read your posts, but that “tax cuts for the wealthy” line gets me every time. Thanks for the laugh.

    You are suggesting that the tax changes which occurred under the Bush Administration resulted in the richest Americans paying *more* taxes than they had been paying at the beginning of his Presidency? That seems odd, given that everyone else seems to agree that letting the Bush tax cuts expire is going to result in an increase in the top tax rates.

    Speaking of suckers, are you one of those gullible people who believe that increasing tax rates on the wealthiest is somehow going to hurt the vast majority of people guy making $30-50k/yr?

  80. Malcom,

    Yes, maintenance fees do provide a bit of that. However, there’s a difference of scale here. Also, removing the filing fees would provide a decent reduction in filing costs, prompting more filings, increasing the number of cases up for allowance.

    Also, there’s the accounting issue. I don’t like the feds having that kind of profit taking and auditing/suing authority over every private company. By the same token, you’d clearly have a LOT of cheats. It would create the need for an entirely new accounting department at the PTO just for auditing patent holder’s sales and licensing numbers.

  81. BJA Malcom, if you gave the PTO a financial interest in every patent, you’d have a lot more to complain about.

    I see where you’re coming from. But they already have such an interest, don’t they, by virtue of maintenance fees?

  82. Malcom, if you gave the PTO a financial interest in every patent, you’d have a lot more to complain about.

    On the fees note, the good doctor says we need to lower fees and then in the next paragraph that we should give the PTO fee setting authority. Uh, what? You think they’d REDUCE their own fees? How exactly does this work out?

  83. Dr. M The U.S.P.T.O. is unique in American government in that it costs the taxpayer nothing while providing the best dollar for dollar value in the intellectual property industry. The U.S.P.T.O. should have the authority to set its fees so that they are appropriate to the services provided and “in the aggregate” sufficient to fully optimize the functioning of that office, and to reasonably budget for the capital expenditures that will be required in the future for it to continue to do so.

    Another approach would be to require those who license their patents or who sell patented products to pay the PTO some nominal percentage of the profits (say 0.1% annually) from those licenses or products, until the term of the patent has expired.

  84. I have been known to complain about misinformed or wishful thinking posters appropriating the “we” form. Now I’m going to have a go at Ned for using the “not one person” form. Ned writes:

    “I like first to invent. No one argues why this is a bad system or why FTF is a better system, except for “infringers.”

    I’m not an infringer Ned, but I argue it. I argue it because FtI encourages slowness to the PTO, which is not in the public interest and contradicts the objective of any properly functioning patents system, to promote (ie accelerate) the progress of science and useful arts.

    Or am I an infringer? What do you mean by “infringer”?

  85. Malcom, I usually don’t read your posts, but that “tax cuts for the wealthy” line gets me every time. Thanks for the laugh.

    You realize that the 10% tax rate on the first 20k or whatever, is part of Bush’s “tax cuts for the wealthy” right? Obviously not, or you wouldn’t throw down that oxymoron so flippantly.

  86. PT Barnum: “There’s a sucker born every minute.”

    Dr. Michelson accounts for one of those minutes. If there are any scam artists out there looking for a mark, I think you’ve found one.

  87. OO: This free floating itch for “change” was what brought us disasters like the present Obama Administration.

    Right, had nothing at all to do with Bush II taking a budget surplus and turning it into a massive deficit by miring us in a war in Iraq which was predicated on l.i.e.s., leading to the demise of hundreds of thousands of innocent people, including thousands of US soldiers, and at the same time cutting taxes on the wealthiest people and corporations.

    Instead it was just a “free floating itch for change.”

    That’s why you see so many Republicans now embracing the awesomeness of the Bush Administration. Right?

  88. “I strongly implore you on behalf of myself, *independent inventors like me*, and for the good of our country to support the patent reform legislation before you.”

    How many independent (or dependent) inventors can report a net worth of 1.5 billion dollars ?

    My guess is not too many…

    BTW, the dude got his billion from Medtronic in 2005, and EBay happened in 2006

    It’s good to be lucky SOB

  89. MaxDrei said:

    The good news is, what FtF requires as the necessary “enabling” disclosure, is minimal. Everybody knows how sketchy are the promtly-filed apps written in Europe. Are they enough to enable the PHOSITA? Yes sir. Are they so poor that Europe revokes them for insufficiency? No sir.

    Do corporations get development work done out of house, before they file? Routinely. Does it adversely affect validity? No sir.

    I am sure the US will not adopt simple enablement as part of the package. Neither will they loosen the requirement for support in priority documents (Section 119). That leaves us with full written description support and enablement and best mode in order to get a “filing date.”

    If we were to adopt such a system, and reform the priority requirements to be more like the current proposal for prior disclosures, that sure would go a long way to lessen my concerns.

    Still, I like first to invent. No one argues why this is a bad system or why FTF is a better system, except for “infringers.”

  90. JAOI It sounds to me like you’d like to close the PTO barn door after you got yours.

    Closing the door on those who follow you is a core feature of the patent system.

    Moreover, why should Michelson care about anyone else, JAOI? This is America, right? It’s not some hippie commune where entitlements are given to anyone who can hold their hand out …

  91. Was it Ping? Or was Ping perhaps quoting an earlier contributer? Anyway, being told one has “nailed it” is a nice compliment, yes! So, Yes, are we to take it that the machine is indeed malfunctioning?

  92. From all available information, (medical) doctor Michelson is a quintessential “patent troll” of the worst variety – not producing anything other than “paper patents” and extorting huge sums of money from poor large manufacturers of real goodies…

    Go figure…

  93. Ping you nailed it: “So, who in the world does know where exactly to chalk the white cross on the colossal but malfunctioning patent machine?”

  94. From Body comes the useful utterance:

    “Critics here of FtF and FItF are concerned with the time during which an inventor is working on an invention, but before the date on which a useful 112-sufficient disclosure is ready.

    Again, during this stage large institutions can do much more in-house, whereas the small guy needs external partners and therefore external disclosure.”

    Excellent. Set me thinking. Bit like in copyright, the difference between the idea and the expression of that idea. Not sure why I (representing society) should have any interest in rewarding an “inventor” until he can tell me how he would realise his idea.

    The good news is, what FtF requires as the necessary “enabling” disclosure, is minimal. Everybody knows how sketchy are the promtly-filed apps written in Europe. Are they enough to enable the PHOSITA? Yes sir. Are they so poor that Europe revokes them for insufficiency? No sir.

    Do corporations get development work done out of house, before they file? Routinely. Does it adversely affect validity? No sir.

  95. “http://www.forbes.com/lists/2008/54/400list08_Gary-Michelson_LC7M.html”

    LOLOLOL

    I’m pretty sure douchebag is spelled:
    D r . M i c h e l so n

    Hah and the funniest thing is that I can say this without one ounce of jealousy. If I could choose to have a billion dollars and be this guy, or be myself I would choose the later. Hands fing down.

  96. Too bad all that money couldn’t pay someone to proofread his letter. Such a shame to send a letter blowing your own highly educated horn that has typos and grammatical errors in it.

  97. IANAE: “It logically follows that any aspect of anything American that has been around for a while is directly responsible for that success, especially where it conspicuously differs from the corresponding system in Lesser Nations. That’s why it’s so important to never ever ever change anything American that is out of step with the rest of the world.”

    I’m sorry, but there’s nothing logical about your statement.

  98. Passing Through–

    While your characterization of the institutional process accords with my own experience therewith, your analysis seems to miss the mark.

    Sure, it may be possible to submit something on behalf of an individual inventor within a week–but that assumes that there is something worth submitting!

    Critics here of FtF and FItF are concerned with the time during which an inventor is working on an invention, but before the date on which a useful 112-sufficient disclosure is ready.

    Again, during this stage large institutions can do much more in-house, whereas the small guy needs external partners and therefore external disclosure.

    THAT is the situation from where arises the differential effect of newly-contemplated prior art, and the problems of proving derivation.

  99. “When I die, let earth and fire mix:
    It matters not to me, for my affairs will be unaffected.”

    Yeah, right

    This should be written on all US dollar bills, instead of “In God We Trust”

  100. Jules,

    Truth be known – I despise the Austin Powers movies and all things British. My overplay is designed to rankle enough people so that all things British are banned for reasons of decorum.

  101. This free floating itch for “change” was what brought us disasters like the present Obama Administration. Sometimes doing nothing is the right thing to do.

    As others have observed, the good doctor has not really presented any reasons whatsoever why the reform measures should be passed. He is like one of those white coat prop doctors that Obama has been fond of using to try to violently shove socialist healthcare down the throats of an unwilling electorate.

  102. Max, America is the greatest country in the world. Everyone with an American flag in his front yard knows that to be true.

    It logically follows that any aspect of anything American that has been around for a while is directly responsible for that success, especially where it conspicuously differs from the corresponding system in Lesser Nations.

    That’s why it’s so important to never ever ever change anything American that is out of step with the rest of the world. Sure, the eponymous empire has scrapped the imperial system of weights and measures, but America could never have succeeded without it and it would be suicide to change it now.

  103. I laughed out loud when I got to the posting that says, in effect “Don’t you realise, Dr Michelson, that this Bill is only going to help big American corporations”. Wasn’t it one of those that had the money to pay the good Dr Michelson, private inventor that he is, millions of USD for his IPR? I should have thought that all American private inventors should be implacable in support of anything that strengthens the hand of that part of corporate America that values IPR so highly.

  104. Dale Carlson writes “Scrap the Patent Bill”

    Funny how this merits barely an afterthought, when an article in support of patent reform gets a whole post to itself.

    I support Dr. Michelson. It isn’t the future yet, but it soon will be. It’s already too late for the past. Now is the time to act. The patent reform bill, if passed, will be an act. I rest my case.

  105. Ah, I get it: “Apres moi le deluge”

    Alternatively:

    ἐμοῦ θανόντος γαῖα μιχθήτω πυρί·
    οὐδὲν μέλει μοι· τἀμὰ γὰρ καλῶς ἔχει.

  106. “But one person with a word processor can replace twenty people with typewriters. That is more work done for the same amount of effort, raises productivity and the standard of living, and makes businesses more profitable so they can employ more people. It may well be that in the 1990s, it was the permeation of computers throughout the business world that substantially contributed to the economic growth of those times.”

    At least the dude realizes (unlike SCOTUS and CAFC members) that “software” inventions are real and useful to society

    However, I am at loss: How on Earth would current pending patent reform legislation , if enacted, facilitate his hard-won settlement with Medtronic, for example

    Ah, I get it: “Apres moi le deluge”

    Nice of (medical) doctor Michelson

  107. Dr. Michelson,

    I am an independent inventor and the failure to provide us with the tools we need to thrive in this patent environment in the latest version of the Senate bill 515 is eminently clear.

    We need relief from excessive fees but you and I will not receive that from this bill. We need to be free of maintenance fees until (and if) the invention is taken up for development and sale but you and I will not receive that from this bill.

    We need the rights of First to Invent but this bill will strip that right from us thus advantaging large entities with money to waste on speculative patent filing.

  108. Excuse me, ping, you’re playing out that Austin Powers bit just like NWPA played out the b*boon bit. It was a funny movie, but you’re ruining it. Give it a rest.

  109. I agree with Dale Carlson (and definitely not Dr. Michelson): scrap the current so-called “pantent law reform” legislation and start over. The provisions on so-called “first to file” with “weak and ambiguous grace periods” alone create tremendous upheaval for no benefit (and potentially huge downsides) to American innovation and small business. Like Oxley-Sarbanes which did nothing to prevent the Wall Street meltdown, but has made IPOs for American small business virtually nonexistent, this so-called “patent law reform” is another American small business “killer.”

  110. I want to know where that masked man is? The man who only spoke directly with me ( although he did apologize to me after a double hard glove slap >ksh >ksh)after I said Jon Dudas was an honest man. and that was after I was constantly led to believe he was EVIL!!!! The same one that uses that word we don’t say anymore since he disappeared. The same one that made my head spin when he called Moonie a NAZI! And that was just FLUFF for more Obsfucation directed at me. and I truly felt my head literally twist completely around. And that HURT! I love that word. Someday I will tell you all about that statement. Hopefully after I sift through all this Obsfucation. I honestly feel like it is as thick as in the opening scene of House of Ushers. The scariest movie ever. I wish I had a compass.

  111. So, who in the world does know where exactly to chalk the white cross on the colossal but malfunctioning patent machine?

    IANAE has the answers. Let’s listen.

    (brought to you by sharks channeling NAL)

  112. What a useless letter. He goes on about how great the patent system is, then says it needs reform, and doesn’t say why or what kind of reform it needs. *facepalm… or :Picard: to those in the know*

    Oh, and Mr. Riley, Kappos ftw. Would you have preferred another Dudas? Kappos is one of the few good choices made by the Obama administration.

  113. “Don’t listen to those other people with the hubris to claim the pulpit to speak for independent inventors when I’m around to do it!” Oy, vey. How about a poll?

    Really, we haven’t a clue if he supports anything else in the reform bill except the portions concerning fees — maybe he does, or maybe he just thinks that trumps all.

  114. Mr Riley, are you there? I was wondering, is Dr Michelson a member of your organisation, for fostering the interests of inventors like him? If not, I’m wondering why not. If he is, I guess you will now be having a quiet word with him.

    Just out of interest (and remembering that you are good with figures) how many billionaire inventors are there exactly, and how many of them do you count amongst your membership? You see, I’m thinking about i) invention support/exploitation (scam) operations and ii) genuine inventor support organisations. I understand the feature they have in common: they both take money off private inventors. I want to be clear on the differences, and I expect that you are keen to tell us.

    Dr Katznelson, I wonder, do you too want to offer any insights on the position Dr Michelson takes? If you are right, then the last thing in the world that folks like Dr Michelson should be espousing is any tinkering with the law as it stands. How could that misguided fellow Michelson (self-made billionaire notwithstanding) get it so completely wrong, and be so easily led up the garden path. He obviously doesn’t need the money. If it were the UK, I would suspect that he’s been promised a peerage. In the USA, what’s the equivalent to being ennobled?

  115. Nice comment from Heller. Michelson says how wonderful the patent system is, but then says it has to be reformed. Searching his letter, for what exactly is wrong with the system as it is today (and which made him a rich man) we search in vain.

    So, who in the world does know where exactly to chalk the white cross on the colossal but malfunctioning patent machine? And is that person astute enough to frustrate the Law of Dreadful Unintended Consequences.

    Nobody ever got fired for buying IBM. Nobody should get fired, for buying in the EPC, as is. That will cut to a minimum the Unintended Consequences. In the globalised, world-wide economy of today, the combination of the substantive law of the EPC, and US attitudes to litigation, would make an American entrepreneur like Gary Michelson even richer, even faster.

  116. There is absolutely nothing wrong with the current patent code – written by Giles Rich, I might add. If there is/was any problem, it is/was with the Patent Office (but, of course, this has been written many times before).

  117. Dr. Michelson sings a song about his victory over MDT $$ on YouTube:

    link to youtube.com

    Apologies if you have to copy and paste the link into your browser (or just search YouTube for “Gary Michelson song”). I have no idea if he created the song himself, or if this is the work of an admirer, but a high quality and entertaining production.

  118. He spends his entire letter telling us why the current patent system has been good for America, then simply states, reform it.

    What?

    Why?

    In a companion thread I asked the same question, why? What is so desperately wrong with the current system that we should abandon ship and dive into the swirling seas of the unknown?

    Never do I receive an answer to this question. It really gives one pause — especially since those of us defending the current system have given detailed and exhaustive explanations as to why the current system is better than what is on the table.

  119. IMHO, people over-estimate the effect of first-to-file.

    From my experience, working with both very small clients and large institutional clients, a small client is much more likely to get an application filed in a short period of time than a much larger entity.

    A small client can call me up, say “hey, I’ve got a great new idea and I’m presenting it next week, so I need something filed.” In a week, it is filed.

    However, inventions from the big companies typically have to be written up in a formal disclosure document. The disclosure document then goes to some type of review board, which decides whether or not the disclosure is worth filing on or not. The disclosure then gets in the hands of inhouse counsel who has another 10, 20, 100 disclosures that need to get doled out to outside counsel. Outside counsel finally gets a hold of it, and then puts it into the queue of the rest of the applications filed by “big company.” All told, the average length of time from initial disclosure to actual filing can take several months. Sure, inhouse counsel can cherry pick a few applications and put them on rush. However, in most instances, discosures from the big companies don’t mature into filed patent applications from anywhere to 4-6 months.

    Also, inhouse counsel doesn’t have the desire to lean on outside counsel to hurry up any given application. There are just too many applications and there are just so many times somebody can “cry wolf.” A smaller client, on the other hand, can literally be on the phone every day asking when the application is going to be filed.

    This is the difference between a “lean and mean” small company and many of the pondering beheamoths out there. It is usually much easier to make something happen when you are small than when you are big.

    Of course, it doesn’t always happen this way, but in my experience, the time from disclosure to filing is usually much shorter with a small client than a large client — the caveat being that the small client is somewhat patent saavy and knows that when they have an inventive idea, they need to file on it.

  120. Dr. Michelson has probably been duped. Obviously the USPTO has serious operational problems. He refers to those problems as a reason to promote Patent Deform and HARMonization, both of which are being pushed by big corporate interests who pirate others’ patent property rights.

    I am wondering if Kappos is behind this and I think I can probably find out. The reason I suspect this is that I received a report that Kappos strong armed UIA, pointed out how useful he was to their interests, followed by UIA backtracking on First to File. Kappos has been buttering up inventors with promises of free legal help. He also made a great offer to inventors that if they give up 50% of their inventions and the money they have expended to file patents on those invention that they will get expedited service, probably even faster rejections then before. We can’t have upstart startup companies tangling with IBM and Microsoft, can we? With friends like Kappos inventors don’t need any enemies. I have a better idea, IBM should dump 75% of their pending patents to allow small business to get better response times!!

    What really tees me off is the way IBM appears to be running the USPTO by proxy.

    IBM is a joke and a ghost of its former self. Remember when Microsoft demanded patent reform five years ago, and a month later IBM followed in Microsoft’s footsteps? Who would have thought that IBM would be following Microsoft like a puppy?

    How is it that IBM and Microsoft are so well represented in the Obama Administration $ ?

    It has always been hard to mobilize inventors before the fact but it is a fact that it will be easy to mobilize them if this crap passes either the Senate or the House, just in time for those inventors to create interesting times in the next election :)

  121. “If this dude is creating a typical software ‘invention’, then the number of new jobs that ‘must be created’ to distribute the invention is, in most cases, zero.”

    You can say that about most products that already fit within a pre-existing distribution chain — nice try, thanks for participating, better luck next time.

    Besides, poorly designed software creates so many in-house IT jobs and call-center jobs.

    Also, an FYI about Dr. Michelson and “his infringement lawsuit against Medtronic.” This is somewhat of a mischaracterization of the dispute. Medtronic already had a license(s) with Michelson for a large portion of Michelson’s patent portfolio. The dispute was, in large part, over what patents were covered by the license and what patents were not. A good portion of the billion dollars was money that Medtronic likely knew they already owed Michelson. However, given the extent of the potential licensing royalties, and what a difference just a couple percent can make, it was not surprising that the lawyers got involved.

  122. “one person with a word processor can replace twenty people with typewriters.”

    Love this logic. He’s trying to make the case that patents create jobs and he uses an example that eliminates 19 jobs. Um, did those 19 typists then move to China so they could start making word processors?

    Every day it becomes clearer that the interests of neither corporations or patent holders coincide with the interests of the American public. It would be interesting to see how many jobs this guy’s 250 patents generated. $1 billion out of the economy, so what did we get in return?

  123. As this letter is quite without specific content, it is my guess that someone other than the good doctor penned the letter, and had him sign his name because they believed that he would be a good spokesman for their cause.

    I’ve done “letters to Congress” before.

  124. And I’ll bet that those shade trees he is sneaking around and planting are on orchards. Next to train stations, no doubt.

    We could use more train stations and more trains and more train tracks. That would create jobs and reduce our dependence on cars and foreign oil.

    Nah. Makes too much sense.

  125. Dear Gary K. Michelson, M.D.,

    It sounds to me like you’d like to close the PTO barn door after you got yours.

    How selfish is that?

    Please stick to doctoring, inventing or something else that is productive.

  126. Dear Gary K. Michelson, M.D.,

    I am sorry to say that I wasted my time reading your letter regarding patent reform.

    With all due respect, I have between little to no respect for you or your pompous letter.

    Here’s why: It sounds to me like you’d like to close the PTO barn door after you got yours.
    How selfish is that?
    Please stick to doctoring, inventing or something else that is productive.

    I could be wrong now, but I don’t think so.

    Take my advice and two Asperina, you’ll feel better in the morning.

  127. With all due respect to Dr. Michelson,

    But if he has so many patents, and he isn’t creating the jobs himself (NPE) and has become a billionaire as a result of suing an infringer who actually makes products, should we really be following his advice? IANAE – get NAL to get a case cite against this guy. This has got to be unconstitutional.

    Why, just look at one thing he says: “But one person with a word processor can replace twenty people with typewriters.” I bet the inventor of the word processor is relishing that 20 to 1 reduction in jobs. And I bet that that one job isn’t even being done in the US anymore. And I bet that inventor doesn’t even make word processors. He probably is an NPE too.

    And I’ll bet that those shade trees he is sneaking around and planting are on orchards. Next to train stations, no doubt.

  128. Dr. Michelson made a number of important, worthwhile, and welcome points.

    That said, his general statement to, “… support the patent legislation before you.” ; because he does not provide the specific ‘reforms’ he would like to see enacted (or not enacted); will do little but provide support for virtually any type(s) of ‘reform’ these folks would like to see.”

    Bills change all the time before being enacted.

    Today’s reform bill may not be yesterday’s … or tomorrow’s.

    Statements like, “Why; just look here! Even an esteemed inventor like Dr. Michelson supports what we’re trying to do!” are the likely result of this letter.

    The specifics are what matter.

  129. Imagine the number of jobs that must be created to design, manufacture, sell and service these previously non existent products.

    If this dude is creating a typical software “invention”, then the number of new jobs that “must be created” to distribute the invention is, in most cases, zero.

    Of course, if it’s a really poorly designed and couter-intuitive application, then you can create a few new jobs at help desk somewhere, but it probably won’t be in the United States.

  130. If you (Dr. Michelson) have received any significant portion of 5 billion dollars, then you are truly nothing at all similar to an average independent inventor. But then again, you specifically wrote “would exceed” (not “did” exceed) so maybe this is just puffery.

  131. Am I missing something or did he really not give one single REASON to support the Act?

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