Earlier today, I testified in Congress before the House of Representatives Judiciary Committee’s Subcommittee on Intellectual Property, Competition, and the Internet. [Link] The IP subcommittee will have jurisdiction over any patent reform measures introduced to the House. The other two witnesses were Professor Dan Burk (UC Irvine) and Andrew Pincus (Mayer Brown, representing BSA). The focus of today’s hearing was on the changes that have occurred in patent law since the patent reform process began in 2004. I.e., what is left for Congress to reform? Our written and recorded testimony is available online here: http://judiciary.house.gov/hearings/hear_03102011_2.html.
Questioning was extensive and included questions from subcommittee Chairman Goodlatte (R-VA), Vice-Chairman Watt (D-NC), and Representatives Conyers (D-Mich), Nadler (D-NY), Chu (D-CA), Reed (R-NY), and Adams (R-FL). Representatives Coble (R-NC) and Quayle were also in attendance.
My written Testimony Follows:
Committee on the Judiciary< ?xml:namespace prefix ="" o />
United States House of Representatives
Subcommittee on Intellectual Property, Competition and the Internet
Hearing
“Review of Recent Judicial Decisions on Patent Law”
Prepared Statement of
Dennis Crouch
March 10, 2011
Washington, DC
I. Introduction:
We are likely nearing a turning point in a decade-long process of patent reform. Although there is still clearly a strong demand for legislative measures, much has changed since the landmark FTC and NAS point-by-point criticisms of the patent law system were released in 2003 and 2004 respectively.[1] Likewise, much has changed in the six years since the Patent Reform Act of 2005 was introduced in the House of Representatives.[2] Perhaps in response to these external pressures, the Federal Courts have taken a more active role in shaping patent policy from the bench and have particularly addressed many of the concerns raised by the various patent reform initiatives.
II. The Rapid Developments in Patent Case Law over the Past Several Years:
In most areas of law, court-developed doctrines mature quite slowly. Over the past decade, however, patent law has been a dramatic counter-example. The courts have substantially altered many longstanding patent doctrines in the course of a few short years.[3] Several factors combine to explain this phenomenon. First, unlike most other federal legal questions appealed to regional Circuit Courts of Appeal, virtually all patent law related appeals from across the country are heard by the Court of Appeals for the Federal Circuit (the “Federal Circuit”). The national reach of the Federal Circuit means that a ruling by the court has an automatic nationwide impact in much the same way that decisions by the United States Supreme Court have a nationwide impact. However, unlike the Supreme Court, the Federal Circuit hears hundreds of patent cases each year. Over the past ten years, the funneling of patent appeals to the Federal Circuit has resulted in the court hearing over four thousand patent infringement appeals in addition to its review of patent decisions from the United States Patent and Trademark Office (the “Patent Office”) and the International Trade Commission.[4] The large number of cases provides the court with the opportunity to rapidly shift the law, even when each case presents only an incremental change. In addition to the means to effect change, it is apparent that both the Federal Circuit and the Supreme Court have taken an interest in shaping patent law policy.[5] Finally, unlike many Federal statutes, the Patent Act as codified in Title 35 of the United States Code is a relatively sparse statute that leaves tremendous leeway for interpretation.
Over the past six years, the Supreme Court granted certiorari and issued a number of important patent decisions that:
· Make it easier to invalidate (or reject) a patent on obviousness grounds, KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398 (2007) (eliminating technical hurdles for proving an invention obvious and instead applying a “common sense” analysis for assessing patentability);
· Make it more difficult for a patent holding company to obtain injunctive relief to stop ongoing infringement, eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388 (2006) (holding that even an adjudged infringer should not be automatically enjoined from continuing to infringe; rather an injunction should only issue after consideration of the traditional four-factor test for equitable injunctive relief);
· Make it easier for a manufacturer to obtain a declaratory judgment of non-infringement, MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118 (2007) (holding that declaratory judgment (“DJ”) jurisdiction may exist even if the patent holder could not have sued the DJ plaintiff for infringement; apprehension that patentee will sue for infringement is not a necessary element for Article III jurisdiction);
· Solidify our understanding of the scope of patentable subject matter available for business method patents, Bilski v. Kappos, 130 S. Ct. 3218 (2010) (invalidating Bilski’s claimed invention – a method of hedging against the occurrence of bad weather – as an unpatentable abstract idea);
· Limit the doctrine of export infringement under 35 U.S.C. § 271(f), Microsoft Corp. v. AT&T Corp., 550 U.S. 437 (2007) (holding that Microsoft could not be held liable for exporting software code because the exported source code does not qualify as a “component” under the statute); and
· Provide roadmaps for stronger patent licensing agreements, see Quanta Computer, Inc. v. LG Elecs., Inc., 553 U.S. 617 (2008) (patent “exhausted” under first sale doctrine because patentee did not restrict licensee’s sales to third party purchasers) and Ill. Tool Works Inc. v. Indep. Ink, Inc., 547 U.S. 28 (2006) (holding that in antitrust tying cases, courts should not presume that a patent confers market power).
During this time, the Federal Circuit has also actively addressed patent reform issues with decisions that:
· Attempt to implement venue reform in a way that limits unreasonable forum shopping, In re TS Tech United States Corp., 551 F.3d 1315 (Fed. Cir. 2009) (on writ of mandamus, ordering case transferred out of venue that had no meaningful ties to the patent infringement case);[6]
· Rationalize patent damage awards, Uniloc USA, Inc. v. Microsoft Corp., ___ F.3d ___, 2011 U.S. App. LEXIS 11 (Fed. Cir. 2011) (holding that the 25% Rule for calculating patent damages is “fundamentally flawed” and that total product revenue cannot be considered in the reasonable royalty analysis unless the Entire Market Value Rule applies.) and Lucent Techs., Inc. v. Gateway, Inc., 580 F.3d 1301, 1324 (Fed. Cir. 2009) (requiring a proof that purported “comparable” licenses used for calculating a royalty rate are, in fact, comparable); Wordtech Systems, Inc. v. Integrated Networks Solutions, Inc., 609 F.3d 1308 (Fed. Cir. 2010).
· Limit enhanced damages, In re Seagate, 497 F. 3d 1360 (Fed. Cir. 2007) (limiting the potential for treble damages to cases where the adjudged infringer’s actions were at least “objectively reckless”) (see Chart 1);
· Expand the false marking doctrine, Forest Group Inc. v. Bon Tool Co., 590 F.3d 1295 (Fed. Cir. 2009);
· Limit inequitable conduct pleadings, Exergen Corporation v. Wal-Mart Stores, Inc., 575 F.3d 1312 (Fed. Cir. 2009) (requiring that inequitable conduct pleadings include “specific who, what, when, where, and how of [any] material misrepresentation or omission”); and
· Reject Patent Office substantive rulemaking authority, Tafas v. Doll, 559 F.3d 1345 (Fed. Cir. 2009).[7]
As we sit here today, the courts also have a number of important cases pending resolution. Among others, these include:
· A challenge to the presumption of validity associated with issued patents, Microsoft Corp. v. I4I Ltd. P’ship, 131 S. Ct. 647 (2010) (certiorari granted on the issue of whether the presumption of validity associated with an issued patent must always be overcome with clear and convincing evidence);
· A challenge to the patentability of genetic material, See Ass’n for Molecular Pathology v. United States PTO, 2010 U.S. Dist. LEXIS 35418 (S.D.N.Y. 2010) (holding BRCA gene patents invalid for being directed to a law of nature);
· A Constitutional challenge to the False Marking provisions of the Patent Act, Unique Prod. Solutions, Ltd. v. Hy-Grade Valve, Inc., 2011 U.S. Dist. LEXIS 18237 (N.D. Ohio 2011) (holding the False Marking statute unconstitutional) and United States ex rel. FLFMC, LLC v. Wham-O, Inc., Fed. Cir. App. No. 2011-1067 (pending appeal challenging Constitutionality of the statute);[8]
· A question regarding the mens rea requirement for inducing infringement under 35 U.S.C. § 271(b), Global-Tech Appliances, Inc. v. SEB S.A., 131 S. Ct. 458 (2010) (grant of certiorari);
· A major challenge to the implementation of the judge made law of inequitable conduct, TheraSense, Inc. v. Becton, Dickinson & Co., 374 Fed. Appx. 35 (Fed. Cir. April 26, 2010) (en banc order requesting briefing); and
· A challenge to patent ownership rights under the Bayh-Dole Act, Bd. of Trs. of the Leland Stanford Junior Univ. v. Roche Molecular Sys., 131 S. Ct. 502 (2010) (grant of certiorari).
For better or worse, the courts have substantially shifted the playing field over the past six years. And, the cases currently pending and in the pipeline appear poised to continue this process. Of course, the courts have limited power and cannot make statutory amendments or offer funding to the Patent Office. It is safe to say, however, that the courts have addressed (or are addressing) virtually all of the legitimately raised patent reform issues that fall squarely within their purview. Within this dynamic, an important ongoing role of Congress is at least to ensure that the courts are making the right policy choices.
III. Administrative and Practice Changes that have Arisen Over the Past Several Years:
Patent Office Backlog: A key issue of patent law policy that has not been adequately addressed in the past six years is the growing backlog of patent applications pending at the Patent Office. Although the current Patent Office management team is quite focused on reducing the backlog, their efforts have not been overwhelmingly successful to-date. As seen in Chart 2 (below), the overall backlog of patent applications pending at the USPTO has increased more than 30% since 2005. The forced delay is troubling for patent applicants because the exclusive patent right is only enforceable once the patent issues, and typically only against post-issuance infringement. The multi-year prosecution delay is also troubling for potential competitors and customers because the patent right may eventually spring-forth to re-capture exclusive rights that had been in public use for years.
Even more dramatic, is the twenty seven fold (~2700%) increase in the backlog of cases awaiting decision at the Board of Patent Appeals and Interferences (BPAI). (Chart 3). The long and growing backlog of appeals more than doubles the expected duration of the patent prosecution process for the almost 50% of patent applicants that achieve at least a partial victory on appeal.
These backlogs likely cannot be directly corrected by the courts. Instead, every effort must be made to ensure that the Patent Office is enabled and encouraged to right its own ship. In the short term, the Patent Office will need to hire more examiners; re-work its failing information technology system; and apply effective negotiation theories to the examination process. In the longer term, world patent offices must work-share when examining duplicate patent applications that have been filed in multiple countries.[9] In addition, there are some relatively easy steps that can be taken to help ensure that patent applications are filed in a way that make them easier to examine. This may include (1) requiring applicants to better delineate their invention and its purposes and (2) more rigorously enforcing the requirement that claims be clearly drafted in a way that relates to the invention as disclosed.
Obviousness and the Backlog: The bulk of time spent in the patent examination process and in appeals to the BPAI revolves around the issue of obviousness.[10] In other words, the backlogs can be largely attributed to time spent arguing the difficult issue of obviousness. Unfortunately, nothing in the proposed legislation does anything directly to alleviate this burden. Although the process of examining patents for obviousness may seem to be one best left to the administrative agency, the Patent Office is bound to follow the examination processes laid out by the courts in KSR v. Teleflex[11] and Graham v. John Deere Co.[12] Because so much time and energy is spent on this issue during the examination process, it may be one where increased substantive rulemaking authority would allow the Patent Office to create a more manageable approach to the statutory question.
Foreign Inventor Influence on the US Patent System: Through a number of reciprocal international agreements such as Paris Convention, the US has promised citizens of other countries access to the US patent system.[13] Under these agreements, an innovative Japanese company seeking exclusive rights in the US market could obtain US patent protection and enforce those rights in US courts against US competitors. Despite this offer of rights, the bulk of issued US patent have always been based on US originated inventions. This practical statistic meant that, historically, US patent reform primarily impacted US companies and US inventors. Over the past six years, the statistic changed, and for the first time in history, the majority of US patents are now being issued on foreign-originated inventions. (Chart 4).
For some, this decline in US-centric dominance of the US patent system will serve as a sign that US innovation could use additional encouragement. In addition, however, the decline may signal a need to change our outlook on the role of patent rights in US policy. Certainly, the offer of patent rights encourages innovation and disclosure of new inventions. However, this incentive is felt around the world – encouraging companies in Australia or Germany to innovate in their home countries in order to capture an exclusive slice of the US market.[14] In this framework, patent reform is much more than a domestic policy issue. Rather, it becomes an issue of rooted in international trade and international relations. This is not a new concept, but one that should be kept in mind as the legislation moves forward.
Rise in Patent Reexamination Filings: The US has two primary post-grant opposition processes already in place: (1) inter partes reexamination and (2) third-party requested (or prompted) ex parte reexamination. Prior to 2005, it appeared that many potential defendants and accused infringers were reluctant to use the post-grant opposition processes. That reluctance has largely evaporated – in part because of the USPTO’s successful implementation of a Central Reexamination Unit (CRU) composed of elite and highly trained patent examiners in sufficient quantity to have a high response rate.[15] In addition, patent law professionals have seen that reexamination can be an effective and relatively inexpensive alternative to litigation. At this point, high-dollar patent infringement lawsuits are usually associated with a parallel reexamination of the patents in-suit – so long as the defendant has a credible obviousness argument based on published materials. Table 1, shows the rise in popularity of reexaminations over the past few years.
|
Table 1[16] |
FY2000-2004 |
FY2006-2010 |
Percent Change in Number of Reexamination Requests |
|
Inter Partes Reexamination Requests |
53 |
903 |
1704% |
|
Ex Parte Reexamination Requests |
1,719 |
3,272 |
190% |
A notable limitation of the current reexamination system is that reexaminations are only allowed to consider certain invalidity arguments (obviousness and anticipation) and apply a limited set of prior art (patents and printed publications). Many countries offer broader latitude in their opposition proceedings, although some of those countries completely divide duties between the administrative agency (handling invalidity issues) and the court (handling infringement).[17] The dramatic shift in usage of available post grant options gives me pause to consider whether the proposed reforms in 2005 offered a permanent solution to what was merely a temporary problem.
IV. Identifying Elements of the Reform Measures that have not been Implemented:
A more straightforward approach to issues now before the Committee is to identify elements of prior patent reform measures that have not been addressed by the courts. These include:
(1) Easing the USPTO’s ability to set fees for its services and to retain all fees collected;
(2) Moving from a “first-to-invent” system to a “first-to-file” system;
(3) Expanding prior-user rights;
(4) Requiring that all patent applications be published by the USPTO;
(5) Allowing pre-issuance protests (or prior art submissions) by third parties;
(6) Expanding the scope of post-grant reexamination or adding an additional post-grant opposition proceedings;
(7) Eliminating the “best mode” requirement; and
(8) Easing the rules for assignee submission of patent filings without the inventor’s express permission.
Each of these reform measures have their own potential benefits and detriments that vary according to the implementation approach chosen.
Thank you for this opportunity to present my remarks.
Dennis Crouch
March 10, 2011
[1] Federal Trade Commission, To Promote Innovation: The Proper Balance of Competition and Patent Law and Policy, A Report by the Federal Trade Commission, October 2003; Nat’l Res. Council of the Nat’l Acads., A Patent System for the 21st Century (Stephen A. Merrill et al. eds., National Academies Press).
[2] Patent Act of 2005, H.R.2795.
[3] See William C. Rooklidge & Alyson G. Barker, Reform of a Fast-Moving Target: The Development of Patent Law Since fee 2004 National Academies Report, 91 J. Pat. & Trademark Off. Soc’y 153 (2009).
[4] Federal Circuit Statistics, Filings of Patent Infringement Appeals from the U.S. District Courts at http://www.cafc.uscourts.gov.
[5] Polk Wagner & Lee Petherbridge, Is the Federal Circuit Succeeding? An Empirical Assessment of Judicial Performance, 152 U. Pa. L. Rev. 1105 (2004) (“since its inception, the [Federal Circuit]—with some assistance from the Supreme Court—has moved aggressively in support of its widely perceived mandate”); Paul R. Michel, Assuring Consistency and Uniformity of Precedent and Legal Doctrine in the Areas of Subject Matter Jurisdiction Entrusted Exclusively to the U.S. Courts of Appeals for the Federal Circuit: A View from the Top, 58 AM. U. L. REV. 699, 702 (2009); Craig Allen Nard & John F. Duffy, Rethinking Patent Law’s Uniformity Principle, 101 Nw. U. L. Rev. 1619 (2007); Dan L. Burk & Mark A. Lemley, The Patent Crisis and How the Courts Can Solve It (2009)
[6] The TS Tech decision appears to have had a major impact on patent venue jurisprudence. In the two years since the case was decided, its analysis has been followed by almost four dozen different courts. See, for example, Promote Innovation LLC v. Leviton Mfg. Co., 2011 U.S. Dist. LEXIS 16294 (E.D. Tex. Feb. 17, 2011) (granting accused infringer’s motion to transfer venue from the Eastern District of Texas to the Eastern District of New York).
[7] The Tafas decision was vacated pending rehearing en banc and eventually dropped after the USPTO retracted its planned implementation of rules that would limit both the number of claims that an applicant could file per patent application and the number of continuation applications an applicant could file based on a single invention disclosure. See also, Arti K. Rai, Growing Pains in the Administrative State: The Patent Office’s Troubled Quest for Managerial Control, 157 U. PA. L. REV. 2051 (2009).
[8] Over 1,000 false marking claims were filed in 2009 and 2010. False Patent Marking at http://www.falsemarking.net/cases.php.
[9] See Rai, Growing Pains at note 6.
[10] Dennis Crouch, Understanding the Role of the Board of Patent Appeals: Ex Parte Rejection Rates on Appeal, University of Missouri School of Law Legal Studies Research Paper No. 2009-16 (2009) at http://ssrn.com/abstract=1423922. (90% of BPAI appeals involve a question of obviousness).
[11] 550 U.S. 398 (2007).
[12] 383 U.S. 1 (1966) (setting out the process of the obviousness inquiry as used in both courts and the Patent Office).
[13] Paris Convention for the Protection of Industrial Property, art. 2.
[14] See Commonwealth Sci. & Indus. Research Organisation v. Buffalo Tech., 542 F.3d 1363 (Fed. Cir. 2008) (Australian government entity suing on its US software related patent in the Eastern District of Texas).
[15] Gregory Novak, Concurrent Reexaminations as a Strategic Patent Litigation Defense Tool, 1020 PLI/Pat 797 (2010) (“since the inception of the Central Reexamination Unit (CRU), reexamination proceedings are producing favorable results [for the third-party] in a more timely manner”).
[16] Derived from USPTO Inter Partes and Ex Parte Reexamination Data (December 31, 2010) at http://www.uspto.gov/patents/stats/Reexamination_Information.jsp.
[17] To my knowledge, no one has studied the potential impact of increasing the scope of US reexamination practice or adding a broader layer of post grant opposition.
Actually I think it’s the nobody-except-you-knows-what-you-are-talking-about-pingaling.
Maybe “the Big D” himself can explain what he allegedly showed you.
O that’s right – this is the I-have-no-clue-I-Cant-even-read-what-I-just-wrote-Sunshine.
Wow dude – heavy meds.
You keep bringing this “low quality” “as shown by the Big D” up. What are you referring to?
“Do examiners currently spend much time checking that claim terms/limitations are supported in the specification; I’ve never heard of such a thing?”
I do. It’s so easy to avoid any potential appeal if they don’t have support for their amendment, all of their arguments against any prior art rejections are effectively mooted for a round of prosecution unless I decide to be generous and allow an AF to correct the WD. We’ll just coast right straight on into abandonment/RCE. I had to 112 1st this one dude’s always new amendments for a year and a half (3 actions with an rce in there) until he finally abandoned this month.
Supposedly though GS-9’s (and maybe gs11’s too?) and below are not responsible for reviewing for 112 1st WD issues at all though.
I would say conservatively that 1/3 of all the amendments I look at have some WD issue. Astounding I know, but that is how it shakes out. Between 112 1st and 2nd I’d say that only half of the amendments I look at will even make it to the point that a prior art rejection is even truly called for even though we have to make them anyway.
Sunshine, Ya taking reading lessons from 6 again?
“of what constitutes a “substantial” rule change seems quite rational to me.”
Ya missed my stellar real world legal definition of the day:
BTW:
vacate: To annul, set aside, or render void
On what part of VOID are ya pinning your “reasonableness” to?
Thought so.
“It’s something we’re very familiar with in the chem/bio art units.”
Appearently ya need to – given the record low quality in that “grown-up” art as shown by the Big D (and further lower in order to maek up for Sunshine’s near perfect “quality”).
ping What didnt happen is you making any semblance of a rationale position.
Why did you ask me to cite “it” then? I don’t catalog my comments by citation. Do you?
In an event, characterizing the Federal Circuit’s decision in Tafas as a reasonable description of what constitutes a “substantial” rule change seems quite rational to me. As I recall, they were briefed extensively on the issue. I think they knew what they are talking about.
Do examiners currently spend much time checking that claim terms/limitations are supported in the specification; I’ve never heard of such a thing?
It’s something we’re very familiar with in the chem/bio art units.
Dennis wrote, “there are some relatively easy steps that can be taken to help ensure that patent applications are filed in a way that make them easier to examine… (2) more rigorously enforcing the requirement that claims be clearly drafted in a way that relates to the invention as disclosed.”
I’m interested to know why Dennis thinks this would help or if some research has shown it to help. Do examiners currently spend much time checking that claim terms/limitations are supported in the specification; I’ve never heard of such a thing?
“And that means what exactly?”
It means that irl lawlyers who are not tar ds (and I mean this literally as opposed to figuratively) do not share your anonymous point of view. Sure, they could be wrong, but at least they’re not relying on something as stup id as the PTO supposedly needing to “bring this up again” in court to backup their ridiculous position. The government is making rules to govern the procedure before the office as it is want, and probably even directed, to do. I’m sorry that you think that their ability to make rules is somehow thwarted by a district court ruling. Because I have some news for you, it isn’t. And your wishing it to be, despite your knowledge that it isn’t, will not change that.
Go ahead, spend 5 minutes finding other lawlyers opinions on the issue. See what you come up with.
“And you’re already living past that point.”
Ping seriously, you’ve got to do something about this jealousy of yours.
No need ta wish 6 – it be there.
you wish lulz.
“What didn’t happen, pingaling?”
lolz Sunshine – need your meds checked again.
What didnt happen is you making any semblance of a rationale position. Just more hand-wavy be otchin that ya be accustomed to.
BTW:
vacate: To annul, set aside, or render void
Ya might want ta catalogue the legal definition in your “fluff” collection. Who knows, if ya ever make it outa the “grown-up arts” ya might need some real world real legal knowledge.
Just an observation.
Cite, or it didn’t happen.
What didn’t happen, pingaling?
And by cite, I do not mean cite to decisions that have been vacated.
Ya do know what that means, dontcha Sunshine?
Cite, or it didn’t happen.
Or in this case, your conclusory statements (as usual) dont mean anything.
Couple of reasons – like the one I done observe.
O yeah!
And that means what exactly? That lawyers could be wrong? You already keep saying that. Why change now? O wait – cause ya found one ya like.
6, your ability to exhibit your own very special brand of critical thinking will take you jut as far in your legal career as you deserve.
And you’re already living past that point.
Also tard I figured I’d let you see an article amongst the many you can find on the subject where a real lawlyer, whom I have reason to believe is not as much of a tard as you, NAL or the eskimo (the only irl named person who I’ve found willing to put their name on your particular brand of retardation):
link to wistechnology.com
“Ask yourself this – why then the big deal with vacatur?”
Couple of reasons, but for one because it would be easier to not have to come up with a creative way of implementing the same ol’.
Tard.
Sorry, ping. You’re wrong. Again.
6,
Do you even understand law?
O wait. That’s right – you are 6. Of course you do not.
Lolzappolula
Ask yourself this – why then the big deal with vacatur? C’mon man put both of those logic cells together and try to come up with an answer.
As our favorite president (for different reasons) says:
“Well, there you go again.”
Sunshine, stop projecting – let’s face it – ya got nailed tryin to fluff the law.
“Something about Stare Decisis that ya gotta learn about there 6 – The USPTO cannot bring this up again in any other DC,”
Lulz. The USPTO can try to make any rules it wants to. It’ll be up to the person that tries to sue them to stop them to “bring this up in another DC”. Tard.
That’s the problem with reigning in the gov. They’re always free to keep on trying.
“In case ya wasnt payin attention, that’s why it was so important that Dr. Tafas held his ground and refused to bend to the vacatur push.”
Oh I was paying attention, and so were other lawlyers who post openly on the subject. There are many more than those linked by MM above who feel the same way. You can find their comments quite easily online. It is far from being so well decided as you and tard NAL would like to have us believe. However, as you well know, there are many many many ways to skin the same cat as those rules that were enjoined, and the office is free to make any of those myriad attempts to make those rules and argue them to be procedural.
And this you well know. But you’d rather not think about.
pingaling we both know that presentin decisions as law when we know they not be is an ethical violation (oopsie).
Shorter ping: “I’m a sad loser.”
IBP,
“It’s called eloquence, Ping.
Must be defiend by the same USPTO yahoos that defined “Quality.”
True “eloquence” has nothing to do with forcing anyone to read between the lines. The fact that you make this mistake speaks more to your lack of “eloquence” than to any deliberate harshness in content or style I may choose to effect.
You might try “being right” sometimes. It would be a refreshing change of pace for you.
Ned,Frank, does any jurisdiction, apart from the USA, have “best mode”. Does any jurisdiction not have a requirement for enablement?
If you want a patent with scope a mile wide, should you not be required to enable that mile-wide territory? After that, what further duty should the inventor have towards the public, thoroughly to map within the protected territory, and then disclose that mapping? Best mode is an anachronism, that is honoured more in the breach than the observance. To many outside the USA, who take very seriously indeed the requirement to enable over the claimed scope, it is ludicrous.
Sunshine,
Nice try.
And what is the Law – the final decision as held in Tafas?
Was that nice linky to a decision that is law? I think not (and we boths know it full well) – further, ya can thank your lucky stars that this be a mere comment section on a blog, cause we both know that presentin decisions as law when we know they not be is an ethical violation (oopsie). Gosh-be-willikers – wrong in both law and in ethics. Shockers (NOT).
“Of course, but pingerdoodle thinks that the DC opinion will hold some sway as to what the lawl is. Of course he’s wrong”
Something about Stare Decisis that ya gotta learn about there 6 – The USPTO cannot bring this up again in any other DC, as they were a party to the Tafas DC. There will not be a next dc to decide the issue. The issue has been decided. The Office has lost. In case ya wasnt payin attention, that’s why it was so important that Dr. Tafas held his ground and refused to bend to the vacatur push.
In other words – SOL, buddy. And it aint pity from teh director that matters here. Wise up son.
“Of course, what matters is what is “substantive”, and in that regard the USPTO kicked Tafas’ hiney:”
Of course, but pingerdoodle thinks that the DC opinion will hold some sway as to what the lawl is. Of course he’s wrong, and the next district court that needs to decide the issue will either a. rely on the Fed. Circ. decision or b. do their own analysis and then the Fed. will step in on appeal and do the same analysis they did before.
But let pingerdoodle dream man. For now he can just be glad we have a director that takes pity.
So let’s be clear, you had specific measurements that there was evidence that your client thought were the best mode of the invention and yet you’d dismiss them out of hand as trivial details?
Amazing display of why out patent system doesn’t function as it is supposed to. You think you can arbitrarily define “the invention” and then decide what is trivial and what is not relative to your own arbitrary definition rather than simply disclosing the best mode which is plainly what we want. How hard is this to understand people?
Forgot the linky:
link to foley.com
Of course, what matters is what is “substantive”, and in that regard the USPTO kicked Tafas’ hiney:
The Federal Circuit next addressed the question of whether the proposed rules were, in fact, procedural or substantive. To make this determination, the Court had to draw a line between procedural and substantive rules.
The boundary the Federal Circuit adopted differed significantly from that drawn by the District Court. The District Court had held that any rule that affects individual rights and obligations was substantive.
The Federal Circuit, however, rejected this broad definition. The Court recognized that procedural rules frequently affect substance. Relying on the D.C. Circuit’s analysis in JEM Broadcasting Co. v. FCC, 22 F.3d 320 (D.C. Cir. 1994), the Federal Circuit held that procedural rules may affect the timing and manner in which the applicants present arguments to the USPTO, but may not change the substantive standards by which the USPTO examines an application. In other words, as long as a procedural rule does not deprive an applicant of an effective opportunity to present applications for examination, it is proper.
Applying this standard to the New Rules, the Federal Circuit determined that each of the rules was procedural. The Court held that the New Rules limiting the number of continuation and RCE applications were procedural because an applicant who diligently presents all amendments, arguments, and evidence during the examination process will not be limited by the rules. The Court recognized that the impact of these New Rules will depend upon how the USPTO applies them and suggested that case-by-case challenges to the USPTO’s decisions on those petitions might be appropriate.
Similarly, the Federal Circuit upheld the New Rules limiting the number of claims that can be filed without providing an ESD and establishing the contents of the ESD. The Court recognized that these New Rules, while potentially imposing large burdens of production on applicants, do not (on their face) change the burden of persuasion — an examiner must still set forth a prima facie case of unpatentability. The Federal Circuit recognized that the USPTO might interpret some of the ESD requirements — particularly the search requirement — in ways that would make compliance practically impossible, and invited case-by-case challenges in such situations. The Court also set aside concerns, expressed in amicus briefs, about the exposure to inequitable conduct charges and prosecution history estoppel arising from statements made in an ESD, stating that those concerns were irrelevant to the USPTO’s authority to require an ESD.
“Still we lost.”
Iza sure that many who have seen you saunter up to the foul line thinking that ya gonna shoot some free throws as the game continued down the court can figure out why ya still lost Ned-O.
Personal opinion. But I think many share it.
“Also, I think it overstates Tafas to say that it holds that the PTO lacks any substantive rulemaking authority.”
I think that you are wrong. That is precisely what Tafas holds.
On best mode, I think the primary and real reason is that the Europeans do not have such a requirement and their patents, drafted by European agents, often have best mode problems.
That said, I lost an interference once on best mode grounds. What we failed to disclose were particular measurements for a mechanical structure in a particular application. Now, had anyone asked me in drafting the application whether to include these measurements, I would have said no, that they were trivial detail hardly necessary either to understand or implement the invention in any particular environment, as the measurements would change depending on the application as anyone of skill would know.
Still we lost.
To this day I am aggravated by the decision and believe it wrong. So, in truth, I am no fan of “best mode” as it has been implemented and construed by the courts and by the BPAI. I think that anything that is “critical” to enablement must and should be disclosed, but beyond that, no.
Personal opinion. But I think many share it.
In the bill the Senate passed, what is the status of (1) changes to damages; and (2) elimination of best mode requirement?
What is the reasoning for eliminating the best mode requirement?
A couple quibbles about Prof. Crouch’s summary. It is true that KSR removed technical hurdles to finding obviousness, but its major impact is to make the obviousness analysis more vague and arbitrary. Also, I think it overstates Tafas to say that it holds that the PTO lacks any substantive rulemaking authority.
Here is a similar story
The U.S. Senate today passed the patent reform bill, S. 23, now named the “America Invents Act.” As we reported in our February 2011 Client Alert, the bill contains several important provisions impacting U.S. patent law, including adding a “supplemental examination procedure” that can be used to cure potential inequitable conduct, moving to a “first to file” system, and adding post-grant review procedures.
TINLA, I agree with you that Dennis either has a blind eye with respect to opinions contrary to his own, or he has taken sides.
Regarding the Supreme Court, it is what it is and we have to live with it. But when Dennis says things like “reexaminations” reduce litigation costs, etc. etc. etc. he fails to note all the abuses of the system that reexaminations have spawned. It’s not like the people of his own blog have not been pointing this out to him for quite some time. He must be aware of the problems, but chooses either to ignore them or to side with the infringers, the big companies.
staff, I must admit that this whole section (on reexaminations) from Dennis’s testimony is so one-sided, taking only the defendants point of view on the so-called “benefits” of the examinations and totally ignoring the complaints of patent holders about the abuse of process that is occurring with serial re-examination’s, with broadest reasonable interpretation, that in total it amounts to a lie, even though it is laced with statistics that are true.
Dennis, you should be ashamed of yourself for publishing this propaganda. Even if this is your personal opinion, you should at least have said that patent holders have a strongly different view.
Clearly we need to transition to a first to disclose after time ending system with the guarantee of a patent issue for sharing the invention with the world.
In gram vs john deere you should realize that was my conception also they the next farm down from my adopted grandfather
You should realize that that conception was mine and not associated with any tinkering just being threatened with get out of the car in downtown detroit as a terrified child. There is no such thing as obviousness because the invention would still not exist today.
With reguards to the seagate issue I think you have only two choices not four unnotified infringment or infringment known or unknown the first deserves 1x plus intrest the second deserves 3x plus intrest the patent office should investigate and send reg. mail on complaint of inventor or assignee or owner.
“it’s OK to say it’s obvious if a person of ordinary skill in the art [b]could have[/b] arrived at the invention by tinkering.””
tinkering as such is not a problem. It is only tinkering in the manner which the supremes laid out that is a problem.
“What a bunch of intellectually dishonest malarkey.”
I’ve said since I first got on this site that 103 was a real btch. People just didn’t believe me at the time because they had a flawed interpretation.
“Where has that “always” been the standard for obviousness?”
The 1952 act?
INANE: “No, what KSR does is negative patentability by the manner in which the invention could have been made by a person of ordinary skill in the art. Which has always been the standard for obviousness. ”
Really? Where has that “always” been the standard for obviousness? EPO? No, the EPO has the standard below:
“Is there any teaching in the prior art, as a whole, that [b]would, not simply could[/b], have prompted the skilled person, faced with the objective technical problem formulated when considering the technical features not disclosed by the closest prior art, to modify or adapt said closest prior art while taking account of that teaching [the teaching of the prior art, not just the teaching of the closest prior art], thereby arriving at something falling within the terms of the claims, and thus achieving what the invention achieves?”
And when was it the test in the U.S.? I mean, the Flash of Genius test did require that the inventor have the invention come to him in a flash of genius, and not as a result of tinkering. But how does it follow that Congress’s 1952 Patent Act that contradicted Flash of Genius merely said “You can’t say it’s obvious if the inventor actually arrived at the invention by tinkering, but it’s OK to say it’s obvious if a person of ordinary skill in the art [b]could have[/b] arrived at the invention by tinkering.” That’s just some bizarro logic from planet loony right there. And that’s what has happened with KSR. Now the invention is obvious if it’s just “too easy,” even though there is no evidence that a person having ordinary skill in the art [b]would have[/b] adapted the closest prior art to arrive at the invention. The mere ability to do it without the [b]requirement[/b] for a flash of genius makes it obvious. What a bunch of intellectually dishonest malarkey.
6,
Still on that Techdirt Cause-or-correlation kick are ya?
And like it or not – the graphs don’t lie. Accounting for such things like D E L A Y E D – E F F E C T S (‘member the beating I gave ya with that?), the curves match up.
I leave it to you to come up with a better explanation.
Maybe the courts were feeling generous that day -lololololol
Maxi,
I may need to check my meds, but I side with Ned on this.
“The answer” may lie somewhere in between, but here, that answer for all intents and pruposes lies much closer to the (small) inventors. “Sport of Kings” is a phrase bandied about quite liberally. It is a phrase that should be anethma to all but the very wealthy and those who consider themselves “Elite” (but not in the important ways). Such “wealthy and Elite” are not what this country is about.
As for “promote”, Iza be sure that both “promote”. It comes down to which promotes better.
It be easy to observe the right answer to that question.
I tended to like 10 apps this week already. I’m quite done thx.
So let me get this straight, we’re supposed to “flip” the graph of allowances, presumably then view the new flipped graph, and then superimpose the graphs of filed patents and the appeal backlog and then magically see some sort of correlation, as opposed to causation. Correlation which will supposedly lead us to suspect, as opposed reasonably be certain, that an office that is literally incapable of doing the thing under discsussion to itself did in fact do it to itself?
That sir is some sarah mcpherson sht. But nice try. Next time try bringing some evidence of causation eh? I mean, you can at least try to make your case.
Ned, GM used to say that what was good for GM was good for the USA. You say the opposite, that what is good for inventors is good for the USA. As with anything in real life, the answer lies somewhere in between. The patent law is supposed to promote the progress of useful arts. That is, even today, what’s good for the USA, no?
“No case yet made for first to file…” Indeed, to the extent a case has been made, the arguments are ridiculous.
Again and again again I have challenged any proponent of FTF to identify any reason FTF is better for inventors than FTI. They really have nothing to offer, which tends to reveal their cards. FTF is not about the inventors, it is about the infringers who want clear cut opinions on validity so that they can pirate the patented invention with less risk of willful infringement. If the best prior art is less than a year old, there is no reliable way to determine whether the inventor invented before the prior art. Thus the risk.
The whole point of FTF is to favor established companies. They can afford to file on inventions before it is clear which is the product and which is the dead end. They can afford to file on iterations as new developments are made. They can afford… That is the key to their favoring first to invent.
Then we add oppositions and more inter partes proceedings against all patents. Reduce costs is the alleged reasons. Reduced for whom?
Congress rejected oppositions in the 1940s because it was recognized that the small inventor could not afford them. (There’s that word again.) They considered appointing public defenders; but that was deemed ridiculous. The study made it clear that oppositions were a vehicle where the wealthy could win even if they did not have the right.
But as we all know, that might makes right. It always has and it always will.
This whole project of the big companies is a fraud. Its ethos is “might makes right.”
We need to recognize it for what it is.
It’s called eloquence, Ping.
You should try it sometime. Unfortunately on this blog, vulgarity often carries the day.
Seriously 6? Ya cant figure out what “unfinished business” be? It be that mountain of 1.2 MILLION applications ya need ta tend to instead of playin on the internetz.
It just dont look good for you when ya try to insult somebody and you be the clo_wn. Ya be takin Sunshine lessons there, have ya?
ping, you’ll know when they “catch up to her” because you’ll mysteriously wake up in an all white padded room in a straight jacket.
And BY the BY, no. How could I have a comment on what amounts to jibberish? The “insane allowance curve” is the last thing in your whole diatrabe that even remotely makes sense, even when attributing the drivel to you and accounting for leaps of faux logic. Superimposing the “curves for unfinished business”? W tf are those? Are those the missing evidence that you need to establish your vaunted Duf as Effect? By which I mean the effect which we must presume is merely you showing yourself to be a duf as?
Of course you should keep those rights for yourself. But, as the world would have it, the employers would simply have every would be inventard by the balls and none of them could retain the rights to their inventions at all.
And I don’t know where you came up with that retarded statement about corporate profits. When did the corporation come about in its modern corrupt form? When did the patent system come about? Compare and contrast.
Which is the larger view and which is a subset of the larger view:?
“Patentability shall not be negatived by the manner in which the invention was made.”
“Patentability was negatived by the manner in which the invention was made – by a person of ordinary skill in the art.”
Sorry my main man
“Don’t do it, Anakin…I’ve got the high ground!”
The Law says not do to something. It dont care abouts the who is not to do something – the law includes everyone in that order.
“And my other favorite was the “spin” that Bilski’s claim was going to go up in flames.”
yep – you sure showed them Diehrbots who’s who.
Bilksi 42-37-8-8 hut hut hut.
Circle them chucklewagons ya clo_wn.
Not sure if I observed anything on the product-by-process claims (and I be pretty sure they aint interpreted as methods (a whole nother claim class). Nor am I memberin anything abouts signal claims – not that a good discussion on them wouldnt set ya straight (e.g. show me anything that is not transitory – anything).
How could I be wrong when Homey dont do answers? Get with it Sunshine.
My favorite bit of “spinning” was when I explained why product-by-process claims must be interpreted as methods. And then the Federal Circuit took the issue up sua sponte and fell for it hook, line and sinker.
And my other favorite was the “spin” that Bilski’s claim was going to go up in flames. Likewise with those signal claims.
Try not to be bitter, pingaling. It could be worse. For example, you could be wrong 100% of the time instead of just 90% of the time.
What KSR actually did was circumvent the 1952 Patent Act’s explicit provision that the patentability of the invention shall not be negatived by the manner in which it was made,
No, what KSR does is negative patentability by the manner in which the invention could have been made by a person of ordinary skill in the art. Which has always been the standard for obviousness. KSR has nothing to do with whether the actual inventor came to the invention in that manner.
What would a patent blog be without its “sppin”
Like a child’s toy, if spin is removed, the item would tumble and fall.
That is why the likes of Sunshine and the rest of the horsemen will alwasy be welcome here.
“while Michael was surfing you know what.”
Um, the inventions his three grandfathers perfected…?
or perhaps trying to identify the probable candidates from vintage footage?
Dennis, I congratulate you on having the ear of the US Congress at this crucial time.
Regarding: “Make it easier to invalidate (or reject) a patent on obviousness grounds, KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398 (2007) (eliminating technical hurdles for proving an invention obvious and instead applying a “common sense” analysis for assessing patentability);”
I think your parenthetical appears incomplete, and unduly minimizes the true effect of KSR. What KSR actually did was circumvent the 1952 Patent Act’s explicit provision that the patentability of the invention shall not be negatived by the manner in which it was made, and introduced a standard directly contrary to that legislative provision that, in effect, requires “unexpected reults or flash of genius.”
Form the parenthetical, it almost appears you are in favor of KSR, and are putting a spin on it to make it seem that it corrects a bad thing by merely “eliminating techical hurdles.”
uspto should be looking for and identifying the inventors new useful and valuable intellectual property weather technically correct or not and allow expanding on that only by the original conciever not the thefting by others who gain the knowledge throuth unprovable doubious mean then improve on and file as alleged independant concievers.
It would appear that the Michael personality has become dominant for now. I’m sure Sarah will reemerge eventually, and complain about all the computer viruses that infected her computer while Michael was surfing you know what.
You say that now, but I’m willing to bet that, in the instance of the invention mentioned above you’d be all “but he has to assign his rights to the company because of this other contractlol!”. Wouldn’t ya?
Well, yes. My not-so-subtle point was that if you want a percentage you should keep the rights for yourself instead of selling a whole year’s worth of inventions to a company in advance for a fixed price.
You say that, but we do it all the time for damages right?
Yes, except that when it comes to litigation damages you have no choice but to try to prove what the infringement is worth to one party or the other. It’s still a lengthy, messy, and inexact analysis. You certainly wouldn’t want to have to do it if you invent a couple dozen patentable features a year, and you certainly wouldn’t want to have such an adversarial relationship with your current employer. That’s why you decide in advance that your general inventive faculties are worth so much a year, and your employer absorbs any positive or negative deviation from that value. And of course, you’d expect the employer to slightly underpay because he’s the one assuming that risk.
do you want inventions, as we presume the gov does, or do you want to back corporate profits?
The entire point of patents is to turn inventions into corporate profits.
“Read between the lines.”
Shouldn’t have to – maintain the right perspective and ya wont havta search for the real meaning.
“At base, their job is to reject bad applications, to focus on the “unpatentable”.”
At base, you are wrong again.
Your line of thinking is what lead to the Reject-Reject-Reject culture.
That line of thinking has been wrpped in newspaper (along with teh fishheads) and tossed in the trash.
“should be allowed to pay for the grant of patent rights.”
That’s a funny translation of “A person shall be entitled to a patent unless…”
Thanks for the chuckles IBP, now go see a doc as you’ve caught a few to the head.
Mikey–
Read between the lines. The necessarily implied corollary to “reject unpatentable inventions” is “not reject not-unpatentable inventions”.
i.e. allow patentable inventions.
Their job is to decide, according to legal principles, which applicants should be allowed to pay for the grant of patent rights.
They examine claims for unpatentability, the entire disclosure for fulfilment of technical requirements, and applicant conduct for compliance with legality and disclosure requirements.
Once an NOA is issued, it is subject to withdrawal from issue at the initiative of the PTO or on request of the applicant, even in the interval of time between payment of the issue fee and the actual issue date.
At base, their job is to reject bad applications, to focus on the “unpatentable”.
They need to get better at not rejecting what is a valuable new improvement to advance everything. It is a right to protect ones property from theft not allow and promote it as the office and this new legislation is doing in various ways These senators certainly dont read patently-o or they would be in touch with reality and go the right direction with reforms.
That is how YOU think, 6, not me.
“0$ US”
Don’t quit your day job 6.
Hmm, on the other hand, please quit your day job.
“The PTO’s job is to reject unpatentable inventions, and they need to get better at it.”
Exactly WRONG.
Their job is to examine applications. Those that merit a patent should get a patent. Those that do not merit a patent should not get a patent. By mererly focusing on the “unpatentable” you presume all such are unpatentable and give no credit to the patentable ones that get dragged in with the 95% reexam greenlight (DMV indeed – that be like a greenlight invitation to Dim Light to once again come out with his “Registration Only” schtick.
Biasing one way or the other is equally wrong.
Hmmm, Howz come there are no academics probing this glaring 95% indicator that the examiners are failing in the first instance. Shouldn’t this be a higher priority (special dispatch anyone?)? You would expect that at least the go ahead percentage would reflect, oh, maybe, the clear and convincing rule of thumb percentage, wouldntcha?
By your own logic CTAaKA, every application for which reexam is granted – that a substantial question of patentability arise should result in rejection. The corroalary to your question , then, is how many claims are allowed or are allowed with insignificant changes?
“Though it’s amusing to hear a PTO examiner tell private companies about retention.”
First nominee for best line of the day.
6 will be giving lessons in this and how to avoid making the big bucks by being too busy being retained to actually go out and get the money.
Can Tell: “The PTO’s job is to reject unpatentable inventions, and they need to get better at it.”
Exactly.
“The PTO grants 95% of requests.”
Maybe 95% of asserted patents have undisclosed prior art that presents a substantial question of patentability. In granted reexams, how often do all the claims come out unamended?
“The PTO is viewed as hostile to inventors in large measure. It is the Patent Rejection Office.”
They should be even more hostile. The PTO’s job is to reject unpatentable inventions, and they need to get better at it. The PTO is unnecessary if your goal is just to check formalities and issue patents. The DMV could do that. Maybe if the PTO was a bit more hostile to inventors in the first instance, they wouldn’t have to grant so many reexams.
“e have no Judge Rich. Rich understood the value of information processing patents”
0$ US?
Be srs for a second NWPA, what did D say against info processing that’s got you all rilled up?
Aint sarah, but whatev happened? Did they finally catch up to her?
bye the bye – no comment on my actual post?
“You can’t retain everybody all the time”
Says you.
“Though it’s amusing to hear a PTO examiner tell private companies about retention”
Lulz.
“The idea here is that once you’ve bought something outright, you shouldn’t need permission from the seller to exercise any rights associated with what you’ve bought.”
Maybe you should consider buying something next time rather than contractually obligating someone to give you their invention and then relying on apparently nothing but that contract to get er done.
“The inventor is always the first owner, and is free to negotiate whatever price he can”
You wish IANAE. You wish.
“It seems like most inventors who choose to work for large companies do so in part because they get the same money every month regardless of how many things they’ve invented that month, how well their inventions do, or how long it takes for that to happen. ”
Yep. Thas true. But also irrelevant to the topic at hand.
“Anybody who wants a high percentage of the proceeds of his invention is free to take his patent and license or practice it. ”
You say that now, but I’m willing to bet that, in the instance of the invention mentioned above you’d be all “but he has to assign his rights to the company because of this other contractlol!”. Wouldn’t ya?
Bottom line, it works for Wapan and the wapanese are recognized the world over for their innovations despite them only being a tiny island in the pacific. Somehow it seems like there is a good chance it might work for us too.
” Even so, good luck proving what 10% of “anything that comes from your invention” amounts to when your invention is a metaphorical cog in a metaphorical Rube Goldberg machine.”
You say that, but we do it all the time for loldamages right?
“Or, more likely, your invention never makes it into production but you still got paid while you were inventing it.”
Annnnnnnddddddd????!?!?!!? I’m waiting for the whole logical basis for your illogical position of “give them less, that’ll spur what we want to happen hur”
The question is, IANAEerdoodle, do you want inventions, as we presume the gov does, or do you want to back corporate profits?
No offense, but do you really think you are qualified? Isn’t that the problem we are having? No one that we can trust to explain patent law.
We have no Judge Rich. Rich understood the value of information processing patents and understood through his practice prior to becoming a judge the value of patents to our economy. J. Rich also had integrity. Now we have either flitty stars like Lemley who lack substance and integrity or inexperienced academics that clearly do not have the experience, or special interest groups that want to kill patents to further the big corporation squash of life on earth.
You are a fine person, no doubt, but you do not have the experience to be an expert in this field.
Maybe next time they’ll look into what is known as “retention”.
You can’t retain everybody all the time, no matter how valuable they might be or how wonderful your company might be to work at. Though it’s amusing to hear a PTO examiner tell private companies about retention.
The idea here is that once you’ve bought something outright, you shouldn’t need permission from the seller to exercise any rights associated with what you’ve bought.
If we really want to spur invention, give inventors a mandatory 10% of anything that comes from their patented invention.
The inventor is always the first owner, and is free to negotiate whatever price he can. It seems like most inventors who choose to work for large companies do so in part because they get the same money every month regardless of how many things they’ve invented that month, how well their inventions do, or how long it takes for that to happen. Let the employer take the risk that any particular invention may or may not pan out, and let the employer assume the cost of waiting while the market decides whether or not to buy its product.
Anybody who wants a high percentage of the proceeds of his invention is free to take his patent and license or practice it. So long as he hasn’t already sold it to his employer. The problem is, you can’t generally reap that reward without also assuming the risk that there might not be any reward.
I do hear tell that some companies have bonus structures based on patent filings and the like. Even so, good luck proving what 10% of “anything that comes from your invention” amounts to when your invention is a metaphorical cog in a metaphorical Rube Goldberg machine. Or, more likely, your invention never makes it into production but you still got paid while you were inventing it.