Are Patent Attorneys Overpaid?

In his list of the 10-most-overpaid-jobs, Money Magazine’s Rick Newman includes the following:

Patent attorney ($170,000). We tend to think of patents as the breakthrough insights of revolutionary inventors, but they’re increasingly a form of warfare among corporations seeking to prevent each other from gaining a technology edge. The lawyers who fight those battles are among the highest-paid professionals PayScale surveys.

http://money.usnews.com/money/careers/articles/2013/03/21/the-10-most-overpaid-jobs

Oddly, Newman’s reported average of salary of $170k is well above that actually reported by his cited PayScale results.

384 thoughts on “Are Patent Attorneys Overpaid?

  1. Ned: “Price can be applied to produce a physical result, but it is itself in not physical.”

    That’s why in patent law you get a patent on the “application”, and not on the concept itself.

    The “process” of applying “any” concept, not judicially excepted, is eligible.

  2. Ned,

    Still waiting for your replies to my posts at 7:11 PM and 7:12 PM yesterday…

    please don’t tell me that you are going to not answer or otherwise attempt to derail this critical point. After all, the Supreme Court carefully choose those words and all.

  3. Physicality, not objectivity is the clue to eligibility.

    LOL – or do you mean THE clue.

    See Ned – I told you, you are attempting once again to elevate MoT to something it is not.

    Bilski: Mot not necessary.
    Prometheus: MoT not sufficient.

    You are going to have to expand your thinking my friend.

  4. Ned,

    The error is in your question: “something

    You are simply asking the wrong question. You are ASSuming the bias that I am warning you about.

    Stop. Take a step back. Take a deep breath. Think.

  5. Statues when first made may have been eligible.

    No.

    You trip on the very first step. This is why I warn you (repeatedly) whenever you go on one of your frolics and include things like music in your examples. You end up confusing yourself.

    Don’t even go there. Stay with the useful arts and make things easier for yourself.

  6. I don’t, but you obviously do, as you then ask for more (implicitly stating that there is not more).

    My rejoinder is present to simply nip in the bud your agenda of attempting to reinstitute MoT to some (undeserved) lofty status.

    Just my way of herding cats. (I wish I had an exercise patent that I could adopt…)

  7. If price is not eligible, how is a process that produces a price eligible?

    Simple. It is. By definition. See 35 USC 100.

    Your Story-No-Process blinders severely restrict your understanding.

  8. Ned: Price is not physical.

    When applied all prices are physical.

    Ever been shopping without prices?

  9. Ned: “101, I know you stated that BMs are not liberal arts, but that does not mean that thing like price have utility within the Useful Arts.”

    It is if we are talking about a set price, and not just a concept of price. The reason why a set price has utility within the useful arts is that a set price is objective.

    Any questions?

  10. What is ANY word?

    Ned, you are dropping down to a level of semantics and you are being quite ridiculous.

    Please stop.

  11. anon, a spoon with a fancy engraving remains eligible because it is a spoon. But if you file an application for a spoon whose only difference from other spoons lies in the engraving, what is the legal issue? When we re-patent old spoon because of their new engravings, what are we patenting?

    Statues when first made may have been eligible. But the different statute is not patentable if we only change the art.

  12. Ned: When we talk of business, the machines and artifacts of business are eligible. But what about value, quality, price, interest, risk, and the like? These are “abstract” concepts.

    Okay let me break it down for you.

    a) Value as a set price is objective.

    b) Price itself is objective.

    c) Interest, as in interest rates are objective.

    d) Risk is subjective.

    What is objective is generally within the useful arts.

    What is subjective is generally within the liberal arts.

    Ned: The Useful Arts relate to things “manufactured” by man as stated by the Court in Chakrabarty.

    Did the Court limit the “Useful Arts” to things “manufactured” by man?

    If so provide that exact quote please. If not please retract and/or correct your statement.

  13. The Diehr court cited the MOT as an example

    (sigh)

    Once again:

    Bilski: MoT not necessary.
    Prometheus: MoT not sufficient.

    Ned, it’s just a clue.

  14. Useful Arts relate to things “manufactured” by man

    Here we go again down Canard Lane, visiting Story-No-Process-Bias.

    Ned, the categories of patent eligible subject matter do not have two tiers, with “process” a sub-tier to the iron-age categories.

  15. Drafting a good application vs. examining an application is the difference between making an excellent meal and tasting it. Everyone can taste the broccoli is badly overboiled, but getting the perfect al dente consistency is actually hard. Similarly it is hard to learn to swim by eating fish.

    When I started out in the profession I did a fair bit of translations from a great variety of applicants. And I must admit that at the time it didn’t look hard. Then I got to try my hand on drafting an application myself and I realised it is was hard, far harder than I had dreamt of.

    Sure, you can draft a massive independent claim in a tortured language that ends up so narrow in scope the patent is only useful for decoration, if even that.

    Writing a disclosure that discloses the right amount of details is hard. Claiming the full scope of the invention is harder. Doing it in a way that will stand up in court is harder again.

    Yet when it is done right it is often surprisingly brief. And it looks simple.

  16. 101, Why are music, poetry, and the like not considered within the Useful Arts?

    Ned, “ephemeral” has nothing to do with it. Stop kicking up dust.

    Michelangelo di Lodovico Buonarroti Simoni’s ‘David’ does not qualify and it surely is not ephemeral.

  17. Ned: 101, Why are music, poetry, and the like not considered within the Useful Arts?

    Because “music, poetry, and the like” are liberal arts.

    Ned: A violin is a musical instrument and may be patentable even though it only produces music. But the music it plays is not eligible because the notes are ephemeral. A recorder that records and plays back the words of a poet is patentable, but not the words of the poem. There is a difference.

    Yes, the difference is the violins, electronic recorders are machines or articles of manufacture. The music or words you hear is copyright and is not patent eligible. What the sounds and words ultimately “mean” to you is “subjective” and therefore part of the liberal arts, and not within the “useful arts”.

  18. 101, why is price not abstract.

    I give you a number: 66. What is that number? Why is that number not abstract?

    If I say instead 66 Denari. What is that? What is 66 Denari? Have I changed anything, really?

  19. Ned said: “I think you confuse utility with process.”

    All processes have “utility”.

    The question in patent law is clearly which processes are within the useful arts and which processes are within the liberal arts.

    Business method are not a liberal art as explained above

  20. 101, Price is a number that reflects relative value. It is not physical, though it can be written done in a form the mind can understand.

    But I do note that Bilksi confused what Morse was talking about, over-breath of a claim to a law of nature or a principle, with something that inherently can never be the subject of patent because it cannot be manufactured. When we are talking about Useful Arts, we are talking about everything under the sun that can be manufactured by man and the processes that produce those things. Such things are useful, like tools, to do useful things. They are physical.

    Price is not physical.

  21. Ned:How does one “integrate” price into a process of the type the patent laws were designed to protect?

    101 Integration Expert: As explained before a price is not abstract so you do not ask the question of how price should be “integrated” in a process. That question should only be asked of the Court created exceptions of Law of Nature, Natural Phenomenon, and Abstract ideas.

    Ned: And, what kind of processes are those?

    As explained before “any” process that is not a liberal art is a process that patent laws were designed to protect.

    Ned:The Diehr court cited the MOT as an example. But what else?

    101 Integration Expert: Yes, the process of curing rubber discussed in Diehr, a 19th century industrial process, is one “example”. The Diehr process of curing rubber is not within the liberal arts, therefore it’s within the useful arts. Other examples of processes in the 21st century that are useful arts can include:

    Quality Improvement Processing

    Complex Information Processing

    Brain Efficiency Processing

    And “any” future process one may be able to invent and reduce to practice that is not a liberal art.

    Any more questions?

  22. 101, "This type of process the patent laws were intended to protect is "any" process that is not a liberal art." I think you confuse utility with process.

  23. So if the total compensation is better in private practice, and the hours aren’t that bad, then why’d you get out?

    Honest question: I’m probably about where you were when you left. What changed? Are you living in DC so that transitioning to the PTO was not a big deal?

  24. When we talk of business, the machines and artifacts of business are eligible. But what about value, quality, price, interest, risk, and the like? These are “abstract” concepts. The Useful Arts relate to things “manufactured” by man as stated by the Court in Chakrabarty.

    What I am sure of though, is that business methods are not excluded because they are the common weal of all mankind.

  25. 101, Why are music, poetry, and the like not considered within the Useful Arts? A violin is a musical instrument and may be patentable even though it only produces music. But the music it plays is not eligible because the notes are ephemeral. A recorder that records and plays back the words of a poet is patentable, but not the words of the poem. There is a difference.

  26. Ned said: “But, in practice, what does this mean when one is manipulating abstract concepts such as price?”

    Hello Ned:

    In practice a price is never abstract.

  27. Ned said: “101, in further reply, I think if a law of nature or principle in the abstract or the like is “integrated” into a process of the type the patent laws were intended to protect, in the words of Diehr, then the claims are to patentable subject matter.”

    This type of process the patent laws were intended to protect is “any” process that is not a liberal art.

    Where you make your mistake is construing the statement in Diehr to mean patentable processes are limited to the type of the 1800′s. However the Supreme Court has made it clear that processes are not limited to this type as such a limitation would freeze innovation in time and not promote the progress of the useful arts.

  28. Ned said: “101, I don’t think “business methods” are excluded from patentability because they are the common weal of all mankind. They are excludable because their utility are not within the Useful Arts.”

    Hello Ned:

    As explained before your argument fails because in order for business methods to not be within the Useful Arts, they would have to be classified under the liberal arts ( painting, poetry, philosophy, etc.) These arts are all subjective, and abstract in nature.

    Business is not a liberal art and conducting business, which is the utility aspect, is not subjective. Therefore Business methods are solidly within the Useful Arts.

  29. You’re an examiner? I thought you were private practice?

    75k is the deal to get in now adays, and yes, that’s the hours.

    You make more as you get experience (115-125k or so), but that’s still the hours.

    Some people don’t want to work in DC or Detroit. I haven’t gotten a straight answer: You can’t telecommute to the PTO just starting can you (assuming years of experience in private practice)?

  30. Statutory and shortened statutory deadlines make it difficult to take a vacation 6. Especially those 30 day deals. And, if you do take a vacation, you still have to do all the work you would have done if you didn’t take the vacation. Even if you work in a big firm. No one else is as familiar with case X as you are, so if the Office Action comes in while you are on vacation, it waits for you to get back. And when you get back, the office actions keep coming at the rate that was keeping you busy before you left, but now you have a 2 week additional backlog. Oh, and while you were away, 3 advisory actions came in, all in the 5th month of the statutory period even though you filed your after final response in the second month….and the mail just keeps coming and coming and then its Publisher’s Clearing House week and Sear’s catalog week…

  31. MM, it is good to point out that the claims in Funk Bros. functionally claimed any bacteria that had the property and thus were essentially claiming a non enabled genus. But, then, why was a law of nature cited as being the problem when the real problem was the undue breadth of the claims?

    In a sense, Funk Bros. seemed to suggest that when claims are so broad as to cover a genus when only disclosing a species, that one is essentially claiming a principle in the abstract, a law of nature.

    Are the concepts the same or is there something really different about “Laws of Nature” that are distinct from functional claiming?

  32. Neither.

    Anybody with a law degree and qualified for a reg. no. who is working 80 hours per week for $75k is a d#mn f00l. You can start at the PTO as a GS-7 with nothing more than a BS at about $68k and within 5-6 years be a GS-14 making about $113k. Punching a 40 hour clock. And soaking up additional pay through OT and awards after racking up a bunch of abandonment counts rejecting everything by “taking Official Notice that it’s inherently obvious to routinely optimize any and everything in the prior art through routine experimentation” and then inserting the “arguments not persuasive” form paragraph.

    If you have a law degree, a reg. no. and you’re working 80 hours per week for $75k, you deserve to be treated that way by examiners because you’re dummer than a bag of hammers.

  33. 101, in further reply, I think if a law of nature or principle in the abstract or the like is “integrated” into a process of the type the patent laws were intended to protect, in the words of Diehr, then the claims are to patentable subject matter.

    But, in practice, what does this mean when one is manipulating abstract concepts such as price? How does one “integrate” price into a process of the type the patent laws were designed to protect?

    And, what kind of processes are those? The Diehr court cited the MOT as an example. But what else?

  34. anon, let me try again.

    Suppose your conceived invention is attaching two boards together, but your only means for doing so described is a nail, are you entitled to the broad scope that would ensnare every way of accomplishing the result?

    No, and the reason why is declared in Morse.

    But, when claims are also required to particularly point out… The general claim to the broad result without regards to the means disclosed is hardly particular even though the claims might make what infringes clear.

    Methinks, dear anon, that the Federal Circuit and the CCPA before it, has ignored some of the words of 112, p. 2.

  35. You need to quit working for the big guys and take some startups. In my world, they work exactly like they’re supposed to. When I worked for the big guys… yeah, what you described.

  36. Um, no. Many, many areas outside of DC, LA, NY, and Chico are just as expensive for the same type of living accomodations. You’d definitely not be thinking that if you saw how I’m living.

  37. FYI, that means that the attorneys you’re dealing with are much, much smarter than you. Making it seem easy and simple is a sign of mastery. For example, you would write an application that was entirely convoluded and likely missed the point of the invention entirely, but I’m sure that it would go on for 50 pages. I, on the otherhand, would write a 20 page application that would provide a client with real patent protection and seemed straight forward to anyone who read the application. That’s the difference.

  38. If you’re doing strictly prep and pros (maybe with a little opinion work sprinkled in) and working 80 hours per week, you’re doing it all wrong.

  39. No doubt that when government or universities fund research for the benefit of humanity, a lot of inventions will be made regardless of patents.

    After all, the greatest progress in technology seems to happen in times of war.

  40. 101, I don't think "business methods" are excluded from patentability because they are the common weal of all mankind. They are excludable because their utility are not within the Useful Arts.

    But, rather than just deal with that issue straight up, the Supreme Court invented something called "Abstract" that formerly had a fairly well understood meaning. Abstractness generally meant that claims were much too broad, not limited to one practical application as described in Morse. Indefinite, lacking written description and enablement.

    But the way the Bilski court used the term, abstractness seems to have a new meaning, that they did not define. But it seems to be that any method that manipulates abstract ideas, however specific and detailed, is not patentable. But this is really a problem of lack of utility within the Useful Arts.

  41. why you lawlyers consent to working 80 hour weeks is beyond me.

    Also, I think you overestimated a bit on the engineer’s salary at 30 by a tad probably.

    And you seem to be saying the other people don’t get vaca? what’s up with that?

  42. “Too many will be impressed by a full page claim 1.”

    Protip: Draft claim 1 to be a page long, but draft the rest normally.

  43. “I get paid to crack hard nuts like making a good patent application,”

    The last time I saw a particularly difficult to draft application was: never.

    The last time I saw an attorney trying too hard to be clever was: the last application I just did. (along with nearly all the rest before that one)

  44. I feel that I’m overpaid for the “value” I give companies.

    Patents in reality are more like insurance. Patents are like a little kid’s security blanket.

    It might help if you actually thought of them that way, then. The value added by an insurance company isn’t by giving the insured an expectation of profit.

  45. He also has [...] no concept of what life without govn’t benefits costs.

    40 and out with paid vacation is nice huh examiner?

    2. You make less than 100k, right? I know because you have no concept of taxes on income over 100k.
    3. You have no family, right? I know because you have no concept of tax deduction phase outs.
    4. My place here in flyoverville actually costs more than your’s.

    You’re the reason people think we’re overpaid.

    Where do I sign up for that $40k in cash and $130k in benefits?

  46. Yes, I work with patents. I feel that I’m overpaid for the “value” I give companies. Most patents I get issued for clients are never used, or are ever litigated – the products they supposedly cover are eventually changed due to customer feedback. The reality is that most products in stores are NOT covered by any patent. I’ve been working in patents for over 20 years and I really feel that the patent field is a complete waste of time, but people feel that they need them for their business – the false sense of need is very persistent, and I oblige them with my patent services – that’s life. Patents in reality are more like insurance. Patents are like a little kid’s security blanket. Patents do not work in the real world, like academics and patent lawyers seem to think.

  47. And this guy is apparently and examiner…. not surprising that he’s so clueless.

    He also has no concept of what is actually charged for patent work, and no concept of what life without govn’t benefits costs.

    40 and out with paid vacation is nice huh examiner?

  48. 1. No one said that.
    2. You make less than 100k, right? I know because you have no concept of taxes on income over 100k.
    3. You have no family, right? I know because you have no concept of tax deduction phase outs.
    4. My place here in flyoverville actually costs more than your’s. Most of us work in metro areas that are every bit as expensive to live in as DC, if not more, especially with a family.

  49. the question whether a reference is analogous art is irrelevant to whether that reference anticipates

  50. The nerve! Many of us can barely afford to have our spats polished these days! You poors don’t know how good you have it!

  51. On the contrary, if no one has ever fastened two tiems together, the claim is merely broad.

    You commit the classic mistake of confusing breadth for indefiniteness.

  52. This is the funniest part of this thread. Jiggy and Bad Joke trying to explain how it’s nearly impossible to make ends meet with $170k even in “flyoverville”, when the median salary in flyoverville is something like $40k. You poor attorneys are so oppressed!

  53. Yes, patent attorneys are way way wayyyyyyy overpaid. Whether the median is $170k or $130k that’s still entirely too much. For that kind of money their clients should at least be getting someone who knows how to argue persuasively.

    “Mr. Client, the art that this 102b rejection is based on is not analogous art. That will be $10000.”

  54. anon, agreed.
     
    If one invents a nail, and claims a nail by describing it, then the claims covered the nail and equivalents.  Preemption is the purpose and effect of patenting the nail.  There is no vice in such a claim, it is limited to what one invented.

     
      In contrast, if one invents a nail and claims means for fastening two items together, such a claim is indefinite in less it is limited in some fashion to disclosed structure.
     

  55. Agree; but with the important proviso that you have enough knowledge to make such a decision (thinking here about independent inventors).

    A great atty is worth far more than they charge.

    A terrible one may be worth little or nothing.

    The big problem in this regard is that many if not most independent inventors don’t know what they don’t know.

    When it comes to patenting, that’s a very dangerous place to be indeed.

  56. I too get great pleasure from helping people start and grow businesses. Sounds like he’s either on the wrong side of it, or just in the wrong line of work.

  57. (nearly tragic) lot of money for those of us who are as ignorant of patent law as some of the comments here indicate

    Speak for yourself. Oh wait, you are.

    See bja’s comment (and my reply) above.

  58. to amplify:

    wihtin a profession (any profession, ALL professions) there is a mix of those who are overpaid, justifiably paid and underpaid.

    Nothing in this thread indicates otherwise.

    Methinks that a different question was meant to be asked.

  59. And neither include the thousands who graduated in teh last 5 years and are unemployed or out there trying to scrape by writing horrible applications.

  60. Most people don’t understand what happens to taxes when you cross the 100k mark. They’re making 70k-90k as a family and paying essentially zero taxes. They don’t understand that due to phase outs and rate increases the tax curve is exponential at about 110k.

  61. I also refer to it as fly-over-country. It helps keep the CALI, NY, DC, CHICO crowd away. You don’t really want them messing up your neighborhood do you?

  62. $170K just doesn’t go as far as it used to, [...] a hot young wife that likes shoes

    According to the graph above, 170k corresponds roughly to one standard deviation. If yours is women’s shoes, that’s your business.

    Still, it’s an awful (nearly tragic) lot of money for those of us who are as ignorant of patent law as some of the comments here indicate. And no, you don’t know who you are.

  63. Personally, I start businesses.

    So businesses are like cancer? Yeah, I’m not following.

    Maybe this guy would be happier in North Korea or Sudan?

  64. Let’s compare:

    Accounting: 4 year degree. At 30 years old, you’re in a firm making about 100-150k working 40 hours most weeks, and 60 during tax time. You’ve been working the whole time at 50k plus, so you’re way ahead of the game.

    Doctors: 10 years. At 30 years old, you’re working for someone or in your own practice at about 100k-300k working 40-60 hour weeks. You’ve spent a ton on school, so you’re about even.

    Engineers: 4-5 year degree. At 30 years old, you’re making 100-115k working 40-50 hour weeks. You’ve been working the whole time at 50k plus and short weeks, so you’re WAY ahead of the game. Plus, you have VACATION TIME!!!

    Lawyers: 7-8 years training. At 30 years old, you’re making 75-125k working 80 hour weeks and you spent a ton on school. You’re way, way behind.

    Comparatively, you’re full of it.

  65. They seem way, way, way out on the high side.

    It’s probably a self reporting type thing.

    I know most firms are starting new guys at 75k and topping at 115k-125k in the mid levels. Bonuses possible, but unlikely for prosecutors. Of course, the scale for litigators is completely different.

  66. “hefty sums for sometimes quite poor added value.”

    So you’ve never seen a self filed application or an application from a self taught agent huh?

    I pick up a LOT of prosecution when someone else has dropped the ball. I usually charge more for that than writing an original application because it’s more work. I’m handling something that someone else nearly destroyed due to incompetence; I’d say that’s a decent value add.

  67. The difference is whether they ever make it to market for the benefit of the public. Without a patent? Usually not. With a patent; there’s at least a chance for investors and a new business.

    That’s what the commies like Patent Warlord miss.

  68. And that’s a good thing; protecting the public from someone as incompetent as you. It’s sad what agents do to people sometimes too. Some people just don’t understand the gravity of the wording they’re using in a patent application.

  69. You’re comparing average with median. The average is probably being pulled up by those making Millions at the top of the scale.

  70. Well, at least a few of us are feeling the pressure from people proposing to offshore much of our work. Offshoring mail scanning and assistant work was the thin edge. Patent drawings and prior art searching were the next.

    These days I am competing with competitors who have outsourced all the heavy lifting abroad. Legal is some countries, probably not legal in the US, the market pressure is nevertheless felt everywhere.

    It doesn’t help that few clients are able to udnerstand if the work done is of a high quality or not. Too many will be impressed by a full page claim 1.

  71. Quik(or lack of)wit,

    You seem to be having trouble with the point that IF your view was indeed correct, there would be empirical real word results to back it up.

    There are not.

    Time to wake up and stop fantasizing. The real world calls.

  72. To amplify: it is your perception that is in error. The “privileged” notion is a “you” thing.

    Reality intrudes on your ideals. Sorry that your dreams don’t match reality, but better that you look at things as they are.

  73. Unfortunately, we are in parallel, but you make a separate point here worth addressing.

    You state “No, the opposite,” but do so incorrectly. When you say the value is due to context, that IS THE SAME as intrinsic value. Your personal/moral issues, then, are a clash with the reality of this world. You say “shortcomings” as if a different “perfect” world was possible. Sorry, but you have to accept what is real. The world does not care for non-real dreams. Justice too, does not live in a fantasy land. There is more damage caused by those trying to impose an impossible dream state (think Marx and Lenin).

    Finally, you couldn’t be more wrong in thinking that the reasoning is roughly the same in both cases. That’s why I used that example (I don’t have anything against professional sports). One is related to actual property, albeit legal property. The other is simply “entertainment.” One is akin to ‘bread,’ the other to ‘circuses.’

    I hope you can see that your own idealism is what is causing you to misunderstand the situation, and I hope that you are capable of learning and accepting the lesson that reality offers.

  74. they feel entitled to bill

    There you go again – why are you persisting in this “entitled to” mindset?

    If you really understood market dynamics, you would not be doing so.

    Everyone pushes the upper limit as to what they can earn. The market decides. If I ask too much, you can go elsewhere. If you agree to pay me what I ask, then you have decided that what I ask is fair market value.

    It’s that simple. There is no “entitled to.”

  75. Or look at violin technology of Stradivarius and Guarneri, which is lost because they could only protect their competitive edge by keeping the technology secret.

    This point of debate actually has merits on both sides. Lots of inventions are made (and made public) without the incentive of patents, but many others would not be if the patent incentive were lost. A balance would seem approriate.

  76. When I quit my career as an engineer about a decade ago to begin as a training patent attorney, I took a pay cut of nearly 50%.

    It took about five years after qualifying before I was back to a comparable level.

    If I had stayed on my original career path, and moved into consulting or management, I would have a job that bored the living daylights out of me, but could possibly be earning twice what I am now. And that would be without any additional formal training or qualifications.

    No, I don’t think patent attorneys are overpaid. Especially in view of the highly specialised combination of skills we bring to the role.

    But for those who are posting comments about how you get “no enjoyment” from your career, or are plagued by “self-doubt”, this is not because of any inherent problem with the profession. It is because you are in the wrong career for you. If you seek happiness, rather than wealth, you need to bite the bullet and make a change.

    Mark

  77. Really?

    I get to meet a lot of interesting people such as creative inventors, optimistic applicant/entrepreneus wanting to create new jobs, students looking into IPR, the occational odd Examiner and interesting colleagues.

    I get paid to crack hard nuts like making a good patent application, see how the craftmanship stand up against Examiners, in Oral Proceedings and in Court.

    I make a lot of people happy when I get the applications granted and even small victories are celebrated.

    I get to assist my clients when infringers pop up, the pleasure of seeing most cases solved amicably and the enjoyment of hammering infringers planning on steamrolling my clients.

    I enjoy seeing my clients get their recognition and commercial success built on their patented inventions.

    I haven’t seen the salaries mentioned here but I certainly feel a lot of enjoyment from my career.

    If you feel no enjoyment I wonder what kind of work you do.

  78. > Who is this guy Newman?

    Clearly a person skilled in the art … of making headlines.

  79. Where is my short list (of one) of all those modern advanced countries that have seen the light and chucked all bankster-controlled fiat currency?

    Just because all countries use it doesn’t make it right, or good for society.

  80. Inside a given profession, yes, I tend to agree. It is when we compared professions with each other that I think that lawyers are privileged compared to most others.

  81. “Long story short: you are basically saying that the intrinsic value provided by lawyers is high.”

    No, the opposite. I say that most of their value depends on the context they’re in. Yes, THIS can be applied to any profession. Still, as explained in the previous post, attorneys are more privileged than most professions in this “context” thing.

    “Of course then, with high value comes high pay – as it is normal under well understood, well accepted and well reasoned market dynamics.”

    Yes. Although I have personal/moral issues with the market and its shortcomings, I have yet to see a better way to make a society work properly.

    “Yet you seem to cry about that. Why? (and please base your answer in reason).”

    With reason, it will not be easy. It has more to to with a sense of justice. I guess I could go on trying to argue that more justice = better feeling in the population = better society, but it’s probably a hard case and in any event difficult to implement in the real world. As stated above, I have yet to see a better solution than market to driver a society.

    “if you want to question pay and value, you might want to first look at professional sports.”

    I could, but the topic started with attorneys, and the reasoning regarding pay and value is roughly the same in both cases.

  82. Yes, I understand what that means. And I understand that there is competition between lawyers. Still, they feel entitled to bill hefty sums for sometimes quite poor added value. The only justifications I can find for this are more related to the way our societies work and the compulsion that clients feel to hire the priciest lawyer they can afford than in the intrinsic value of the quality of the lawyer’s job. In that sense, yes, I think that attorney are overpaid. Of course, there are other ways of thinking that justify their pay.

    anon, it seems we are going to run one after another in parallel threads. Let’s stop this one.

  83. Luke,

    And more to the point of my comment that you reference, what an individual is paid relative to what that individual should be paid (taking into account the aforementioned reasonableness of well understood market dynamics) there is a spectrum of individuals that are paid more than they should be, that are paid what they should be, and are paid less than what they should be. In this regard, patent attorneys are indeed EXACTLY like any and all professions.

    Thanks.

  84. Argh – post eaten.

    Long story short: you are basically saying that the intrinsic value provided by lawyers is high.

    Of course then, with high value comes high pay – as it is normal under well understood, well accepted and well reasoned market dynamics.

    Yet you seem to cry about that. Why? (and please base your answer in reason).

    Thanks.

    ps: if you want to question pay and value, you might want to first look at professional sports.

  85. Ned said: “Next we turn to business methods.”

    Hello Ned:

    You have said you believe new and useful business methods are not an exception and should be examined further under 102, 103, and 112.

    You also agreed in principle that the doctrine of integration applies in those later sections as well.

    Now, this ( Integration) means that the Government’s rejected invitation in Prometheus to in effect strip away and ignore certain steps or elements at 102, 103 can’t legally apply either. That would in effect be dissection. Integration is the antithesis of dissection. And indeed the Government changed its position from the proposal of ignoring certain steps or elements as proposed in Prometheus, to viewing the invention as an “inseparable whole” as declared during the Alice Oral arguments.

    So in light of these facts, how do you plan now to legally eliminate business methods?

    Or, have you changed your mind and given up this agenda?

  86. No.

    The problem is in your thinking that anyone gets anything by simply declaring so. Lawyers work in a market economy.

    Do you understand what that means?

  87. $170K just doesn’t go as far as it used to, even in fly-over land. It’s not like were eating gold leaf on foie gras every night here, have a housekeeper in the servants wing and talk about how hard it is to find good help. Maybe English major there needs to get a mortgage and a hot young wife that likes shoes and then comment…

  88. You misundertood me, I haven’t been clear. THEY declare that they are “rightly entitled to”. It is not MY opinion. Sounds better to you ?

  89. I would not say like EVERY other profession Anon.
    Attorneys in general practice one of those activities that, at times, you cannot avoid to deal with and whose results can go way farther the effort you put in because they have a very strong lever effect. As a consequence people, companies or entities cannot easily allow themselves to go cheap, due the potentially dire consequences of the slightest error. If I’m not happy with my plumber, I’ll just try another one and at worst, I’ll have some badly repaired water leakage. When it comes to matters dealt by the attorneys, both investments and consequences of a failure are on other scales than most of professions. Thus, attorneys are in an ideal position to ask for wages that other professions cannot reasonable ask for.

  90. the price they declared to be rightly entitled to

    LOL, let me guess, Luke, you have no clue what you are talking about and have never worked outside of the government job that you have. Right?

  91. “It’s actually a shame that the world values people that make transactions and property and the such more than the people that meaningfully contribute to the world.”

    So true. And some people call it right because a consequence/necessity to maintain the “holy free market”. One may argue the guys that do the transactions help the other ones… but I tend to think the price they declared to be rightly entitled to is well too high.

  92. I claim a nail.

    Does my claim prevent all applications of that nail?

    Can you apply it at all if you do not obtain it first?

  93. as the concurrence points out

    LOL – Malcolm trying to resurrect the Prometheus government brief that was brutally shot down in his 9-0 dance a jig baby.

  94. artificially low because your beloved “exception to the printed matter doctrine” isn’t being recognized often enough

    LOL – nice dust cloud you are kicking up.

    Are you done with your tantrum and ready to read what I actually wrote?

  95. your spin here of the Office struggling to examine properly

    My spin? You regularly assert that better examination is needed. Is your position that the office isn’t granting enough computer-implemented j-nk? You think the allowance rate is artificially low because your beloved “exception to the printed matter doctrine” isn’t being recognized often enough?

    You’re entitled to your opinion, of course. It’s consistent with the fact that you never saw a claim you couldn’t wrap your lips around until you saw Myriad’s claim. And in that case your primary motivation seemed to be your weird belief that if Myriad’s j-nky claims were tanked it would represent some sort of comeuppance for me.

  96. Wel, 6 is over paid.

    MM should NEVER be paid.

    But a good Patent Attorney is worth their weight in gold.

  97. “I often wish I had gone into engineering instead of law”

    I hear that bro, but I got conned into it :( Well, the psuedo-law that we deal with at the office anyway.

    “At this point, I can’t bring myself to declare three years of law school, three years of grinding at a law firm, and over a $100k in education spending a total loss to attempt a transition back to the engineering world. ”

    And I can’t see myself foregoing the overpayedness of a patent agent or lawyer to do the same. But, meh, that’s life eh?

    It’s actually a shame that the world values people that make transactions and property and the such more than the people that meaningfully contribute to the world.

  98. Your salary is “controlled by law or regulation” because I can’t practice lawl legally without spending bank.

  99. USPTO struggles to examine properly

    LOL – what is controlling LAW concerning the exceptions to the printed matter doctrine?

    C’mon Malcolm, everyone knows you know – you have even voluntarily admitted knowing.

    So your spin here of the Office struggling to examine properly is shown for what it is: spin.

  100. The qualities of these bacteria, like the heat of the sun, electricity, or the qualities of metals, are part of the storehouse of knowledge of all men.

    And just so we’re all on the same page, the claims at issue in Funk recited merely the desired qualities of the bacteria. The claims were not limited to and did not recite any specific strains which possessed the desired qualities. Hence, functional claiming at the point of novelty. The claiming of a composition as an abstraction rather than describing a new structure. That’s death under 101 or, more preferably, as the concurrence points out, under one of the other statutes (e.g., 112).

  101. LOL

    Ned, even if for arguments sake we assume without deciding that that is dicta, how is it ANY different than any other Supreme Court pronouncement on the subject?

    Do you have ANY legal reference – any at all – at any level – that supplies an even remotely compelling view against what was said in Chakrabarty?

    Any?

    Any at all?

  102. I think Rick wishes he’d been able to hack it as a science or engineering major in college so he could now work as a patent attorney.

    You don’t need any technical degrees to litigate. For that matter, a technical degree isn’t really necessary to understand or write about giant swaths of computer-implemented j-nk that the USPTO struggles to examine properly. An advertising, business major, math major, accountant or amateur bird watcher is probably in a better position to examine most of that j-nk.

  103. Or in the failed attempts of Marx and Lenin…

    Is it any surprise at all that one of the descending bastions of that ideology is also one of the two forces against patent law?

  104. Not really, anon.

    Preemption is a legal theory that prevents claims to all useful applications of subject matter that is the property of all. Le Roy v. Tatham and Funk Bros. said this was the principle behind limiting claims to Laws of Nature and natural phenomena to particular applications.

    Morse also suggested that the reason we cannot have claims to principles in the abstract, was because the laws demanded we describe and enable what we claim. The functional claiming of a principle claims all applications — but the statutes involved are not 101, but 112 that require written description, enablement and particular claiming.

    Benson’s ultimate holding was based on preemption. But this assumed that mathematical algorithms are the the common storehouse of knowledge available to all mankind. That assumption is plainly, and demonstrably incorrect.

    Next we turn to business methods. Bilski was based on preemption. But that assumes that business methods, at least the one before it in that case, cannot be claimed because they are legally like laws of nature. But that is obviously false and Bilski even held business methods are not excluded subject matter.

    Abstract? That goes back to Morse, and like I said, the problem identified in Morse about claiming principles in the abstract was not that such principles were the common property of all mankind, but because they were claimed so broadly to cover the inventions of others that did the same thing functionally. That is not a 101 issue, but a 112 issue.

  105. LOL – another sign the warlord is a fraud.

    C’mon man, what’s taking you so long to give me my list?

  106. LOL

    This would be a great place Ned to include the other things that belong to the warehouse of nature, and thus, to the common weal of all mankind.

    You know the quote. It’s from Chakrabarty, and deals with the range from simple to complex, from minerals to plants.

  107. Malcolm, I have advised you plenty of times to seek a profession that you can believe in what you are doing.

    (all kidding aside, I know this is not Malcolm, and is more likely to be the frequent imposter who tries to malign the profession by pretending to be a member of the profession but whose posts give obvious clues that he is an imposter)

    Here, the lack of critical thinking that exposes the imposter is the analogy to a doctor and cancer. Real patent attorneys know that what they do is create the legal instrument that becomes the patent right. To analogize to doctors and cancer is to get the very premise of what a patent attorney does completely wrong.

    Hey, where is my short list (of one) of all those modern advanced countries that have seen the light and chucked all IP law?

  108. I refer to

    “The qualities of these bacteria, like the heat of the sun, electricity, or the qualities of metals, are part of the storehouse of knowledge of all men. They are manifestations of laws of nature, free to all men and reserved exclusively to none. He who discovers a hitherto unknown phenomenon of nature has no claim to a monopoly of it which the law recognizes. If there is to be invention from such a discovery, it must come from the application of the law of nature to a new and useful end.”

    Funk Bros. Seed Co. v. Kalo Co., 333 US 127 – Supreme Court 1948

    link to scholar.google.com

    Laws of Nature and Natural phenomena are part of the storehouse of all mankind. Common weal is another way of expressing this thought.

  109. I’ve been having the same self-doubt since I started, and I’ve only been practicing (litigation) for three years. It seems for all the long hours we put in, we don’t produce anything of use. I feel more like an obstacle than a spur. The idea that we support a system that encourages innovation is all well and good in theory, but it doesn’t do much to sate the desire to generate something tangible (at least for me), and the empirical evidence behind that theory isn’t exactly concrete.

    I often wish I had gone into engineering instead of law, although that may be just typical “grass is always greener” second guessing. At this point, I can’t bring myself to declare three years of law school, three years of grinding at a law firm, and over a $100k in education spending a total loss to attempt a transition back to the engineering world.

  110. To amplify:

    Question concerns overpaid

    Answer is yes, no, maybe,…
    …and most importantly all of the above.

    Just like ANY other profession.
    Just like EVERY other profession.

    Methinks a different question was meant to be asked.

  111. I work in patent law, and make a very good living doing it – I don’t have to like the IP system or be a proponent of the IP system – it clearly exists and must be dealt with. Just like a cancer doctor helps patients deal with and survive cancer, the doctor obviously doesn’t “like” cancer because it gives him employment – everybody including the doctors wishes it didn’t exist. There are plenty of other diseases and other things a doctor could deal with if cancer didn’t exist, and still make a good living. (And yes, I’m essentially equating IP laws = cancer, although a man-made, self-inflicted evil that society could do well without.)

  112. So… if you protect someone who stole someone else’s property you are ethical? Maybe that’s why you are depressed.

    You need to protect the innocent inventor whose dreams were shattered when the large, rich, fat, greedy corporation stole his invention and now won’t talk so much as discuss it with him.

    You need to sue the bstrds! Then you’d feel like you are ethical and had a truly just purpose.

    Go forth! Fight for justice! Jump over buildings! Fly faster than a speeding bullet!

  113. Makes sense to me Ned.

    Might you be willing to consider applying your excellent free market logic to the sale and monetization of patents, e.g.:

    “Otherwise, if how much one receives for a license or sale of their patent is set by the market, such an amount is never too high … even if such amount is obtained by a PAE who’s bought the patent from another … including when necessary via legal litigation”?

  114. Agree or disagree…

    101 preemption exists to prevent patents on excluded subject matter, such as Laws of Nature, Phenomena of Nature, which the courts have determined to be the common weal of all mankind. When Laws of Nature, Phenomena of Nature or other subject matter that are not the common weal of all mankind are claimed, 101 preemption should have no relevancy because it is the nature of patents to accord exclusive rights to inventions.

    When subject matter that is not the common weal of all mankind is claimed, the law only requires that the claimed subject matter be enabled for the full scope claimed, and that the claims be definite (implicating functional claiming).

  115. I’m an inventor, the guy who pays your freight one way or the other.

    I have to say that some of you are definitely overpaid. I recently found one twice as expensive but he’s cheap compared to the last joker.

    If you’re good, no apologies are required.

  116. @NedHeller: You’re confusing the issue: Using others’ ideas and/or building upon them, wherein the other people themselves did the same thing with “their” and other ideas is different than physically taking possession of someone else’s physical property, like a car, radio, etc., which is actual theft. One cannot own an idea. You do not harm someone else by using or building upon ideas. Physical objects, devices, like cars, wrenches, lipstick, whatever, can be “owned” – ideas cannot. Ideas are not property. Ideas can be shared without harm – cars can be owned and taken possession of – and be stoled, which would then harm the actual owner – which is obviously bad. I recently explained this concept to a four year old and he got it – it’s very simple really.

  117. Patent, I should say “whatever” because your argument says nothing about whether patent attorneys are overpaid.

    Regarding the merits of a patent system, the question really should be whether law, which creates legal property rights, is an effective way to order private property. Without the protection of patents, history has shown us that inventors either do not invent or if they do, rely on secrecy. Take a look at the history of patents and the trade screts of the Venetian glass blowing industry.

    The idea that inventions will appear and be shared with all mankind by some sort of magic is an idea that sounds in some kind of alternative reality where people act for the interests of all and not for their own interests. Such a world exists only in the minds of the denizens of acedemia.

  118. I think Rick wishes he’d been able to hack it as a science or engineering major in college so he could now work as a patent attorney.

  119. I don’t mean to be a “negative Norman” – but I have had lots of self-doubt about my chosen career path and this legal specialty for years. I would like to think that what I do matters as a patent practitioner, but I don’t think it does – and I’m not alone thinking this, unfortunately – the literature and various studies also show this too. I’m too old and encumbered (i.e., mortgage, wife and kids, etc…) to change careers – but I would like to think that I practice “ethical patent law”, that is something more like “defensive” patent law, not suing other people, but helping clients deal with (let them use technology without interference) and navigate the patent system that we (our society), unfortunately, have been saddled with.

  120. Please tell me I’m earning my money!

    Well, when you consider that patents are a net negative to society, patent lawyers are actually leaching wealth from society – we should be very, very thankful for earning out money doing what we do. I have more respect for used car salesman – they actually do something useful. There is no credible peer-reviewed study that definitively indicates that patent law increases innovation – NOT ONE. I dare anybody to show one credible source that shows patents increase innovation – even patent shill Gene Quinn couldn’t show one when challenged. All of the credible studies show that the patent system unequivocally hinders innovation or is inconclusive.

    I actually work in patent law, so as long as we have this screwball patent system, we should all get paid well while the party lasts at least.

  121. Overpaid?

    One is overpaid if salaries are controlled by law or regulation and the salary is set above the market.

    Otherwise, if one’s pay is set by the market, one is never overpaid.

    Who is this guy Newman? Some sort of anarchist?

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