Guest Post: Is there a justification for greater transparency in patent transactions?

by Alan D. Minsk [1]

Introduction

In a recent article [2], Matt Rappaport argues for the need for greater transparency in the "marketplace" for transactions involving patents. Rappaport points out several inefficiencies that may result from a lack of transparency regarding the holdings of an entity that is seeking to license one or more of its patents. These inefficiencies result from a potential licensee being unable to readily obtain information regarding the complete holdings of the licensor, and the resultant uncertainty that may introduce regarding relevant prior art, other assets of interest, preferred negotiating tactics, etc. In general, the author thinks that the lack of transparency that results from the use of "shell" companies or other methods of disguising the actual owner of an asset create difficulties for the negotiation process, cause a failure to provide "notice" of the real party in interest (which may impact negotiations and legal options, as well as prevent knowledge of the true holdings of an entity), and subjects potential licensees to a situation in which they are at a disadvantage before even beginning a licensing discussion. There has been an increasing amount of discussion and proposed actions related to making information available regarding the entire patent holdings of patent buying entities when they seek to license portions of their patent portfolios [3].

Although some may argue that a "level playing field" (or at least a more level one) is not necessarily required for every transaction and is not something that a party is entitled to in a marketplace, this article will discuss some of the reasons why it may be beneficial to introduce a more level playing field into the market for patents. Because of the strong public policies that underlie the creation and administration of the patent system, there is a related public interest in how that system is operated. As a result, this public interest may be sufficient to justify introducing a greater degree of transparency into the "market" for patents. This greater degree of transparency may be achieved via judicial decisions, but may be more effectively introduced through enforcement of competition related laws or even new regulations (in order to produce a desired degree of uniformity in how any new requirements are implemented).

Why Increased Oversight or Regulation May Be Justified

While some may argue that patent aggregators, non-practicing entities (NPEs), or patent assertion entities (PAEs) (collectively, "patent buying entities") represent a business model that is counter-productive to the goals of the patent system or to notions of fairness, such comments seem more of a visceral response or value judgment, rather than a conclusion supported by facts. Instead of arguing about whether such entities should exist, it may be more productive to address the possible consequences of their operational methods when they purchase patents or patent applications. Specifically, how a lack of transparency in their operations can create distortions in the efficient operation of a "market" for patent rights.  Even if it is uncertain whether such entities are operating in a manner that is supportive of the goals of the patent system, there appear to be strong reasons for advocating greater transparency in their operation, as this would be expected to establish a more efficient and trustworthy "market" for patents. An additional benefit is that this will also enable a more accurate determination of whether the existence and operation of these entities support, inhibit, or are effectively neutral with respect to achieving the goals of the patent system.

There are strong public policies behind the creation and operation of the patent system and as a result, both the Federal government and the public have an inherent interest in that system. This clear from the concern for providing protection for inventions that is expressed in the U.S. Constitution [4] and the Federal statutes based on that expression [5]. The Federal government has an interest in seeing that the patent system operates in a way that enables the system to achieve its stated purpose(s), while observing its obligations to the public. The public has a similar interest in seeing that the patent system fulfills its stated purpose(s), since the system is operated by the Federal government as a service for the public.

Because of the strong public interest in the operation of the patent system and its impact on the public, I believe that the exchange of patent rights should not be exposed to the benefits and disadvantages of the free market system without a careful consideration of whether additional controls should be applied to ensure that the market operates efficiently and fairly for the participants, while supporting (or at least not harming) the interests of the public [6].    

That a "market" is being developed for patents and the rights that they enable the owner to exercise is shown by the development of patent trading systems, the holding of patent auctions, and the general increase in attention paid to the value of patents as business assets [7]. However, the asset being traded in such a market is of a different nature than most assets. Patents represent a conscious decision by the Federal government to encourage certain types of behavior by members of the public by creating a new type of property. As a result, patents themselves and the operation of the system that grants them are invested with a stronger government and public interest than is the transfer of most other types of property. This suggests that justification exists for a greater degree of scrutiny into whether the operation of entities that engage in the buying, selling, and licensing of patents do so in a way that supports (or at least does not frustrate) achieving the goals of the patent system.

Should the Patent "Market" Be Considered Part of the Patent System?

A threshold issue is whether a marketplace for the transfer of patent assets should be considered as part of the overall patent system, or instead whether it should be considered a part of the free market system (and as such, evaluated independently of its impact on the patent system). The existence of patent aggregators, NPEs, and PAEs would be expected to have at least some impact on the innovation process; such entities provide an additional exit strategy to enable inventors and companies to recoup some portion of their investment in generating the assets. In addition, the ability to sell a patent may enable an inventor to continue working on other projects, which may lead to more innovation. In general, having a marketplace in which patents may be sold is a positive development, as it may prevent a waste of assets, which is typically a desirable outcome. Therefore, it would seem that having this exit strategy would provide an incentive for at least some additional risk taking and investment in innovation.

At the least, it seems disingenuous to say that the existence of such patent buying entities has no impact on the innovation process or other aspects of the patent system. Given that there is at least a possible impact, I believe that there is justification for considering the still-developing market for patent assets as part of an overall patent system that is intended to fulfill specific goals. And, if the existence of that market is part of a system that is supposed to create an incentive for innovation, then it stands to reason that a properly functioning market is desirable in order to ensure a proper level of incentives and to most efficiently produce the desired benefits of those incentives.

Assuming that there is some impact on the patent system and its operation that can be traced to the operations of patent buying entities, what (if anything) should be done about it? Given the possible inefficiencies or distortions in the operation of a market for patents (and the overall patent system) that can result from a lack of transparency, one could simply accept this as a by-product of exposing patent rights to the operation of a free market system. However, because patents are a property right created by the Federal government for a specific purpose, it may be preferable to recognize a strong enough public interest in the operation of the market for patent rights to justify considering additional controls that would increase the transparency in transactions that occur within that market. This approach seems desirable for at least two reasons: (1) until we can be more certain that such patent buying entities are not having an undesirable impact on the patent system, it is more likely to be in the public interest to err on the side of requiring increased transparency rather than accepting decreased transparency; and (2) since the overall patent system is one designed around establishing and fostering incentives to innovate, it is expected that greater transparency would be more conducive to achieving the proper incentives than would less transparency. If controls that functioned to increase transparency were to be adopted, then such controls would assist in ensuring that the proper incentive structure was in place for an efficiently operating market, and one which presumably would operate more effectively in achieving the goals of the patent system.

Arguments for Increased Buy-Side Transparency

As noted, the article referred to in the Introduction discusses some of the problems caused by a lack of transparency in the patent licensing operations conducted by patent aggregators, NPEs, and PAEs. However, there is another aspect of the use of shell companies and other factors that reduce transparency that may impact the proper operation of a marketplace for patent assets. This is the impact such a practice has on the buying side operations of these entities; specifically, how a lack of transparency may distort the operation of a market for patents, including by preventing a more accurate valuation of patents. The lack of an accurate valuation (or at least the existence of obstacles to a more accurate valuation) does not serve the interests of those selling patents or those to whom they have a fiduciary obligation (such as venture capital investors or stockholders in a company that is selling some of its patent assets).

For example, by using shell companies and preventing disclosure of the ultimate purchaser (and in some cases the beneficiaries of a purchase) of a patent portfolio, a patent buying entity is allowed to distort the market for the value of the rights they are negotiating to purchase. This is because an inventor or other potential seller of a patent portfolio has a reduced amount of information about who wants to buy their patents and what previously existing agreements are in place between the buyer and other parties.  For example, such agreements might result in the buyer granting a license to a party that might have paid much more for the patents if the seller had negotiated with them directly.

In the case of the seller being an operating company, such agreements may cause the undesired result of granting a license to a competitor with whom the company would have rather negotiated in an effort to obtain an agreement of greater value to the company (such as a joint development agreement, co-marketing agreement, more desirable distribution terms, a patent cross-license, etc.). The use of a shell company and the failure to disclose existing agreements that may impact the licensing of a purchased patent portfolio may therefore place the seller at a severe disadvantage during negotiations. In addition, due to the lack of transparency, a seller is unable to evaluate how their patents fit into the overall holdings of the prospective buyer. This is likely to further impact the seller's appreciation of the potential value of their own patents to the buyer. Investors in a selling company may not recapture the full value of a patent that resulted from a company's investment in research and development (R&D) if the market value for a patent is distorted. Thus, it is in the interests of the investors of the selling company to have increased transparency since it impacts the valuation of the company and may impact how investors view the decisions made by the executives of the company.

The seller's lack of knowledge regarding the actual buyer and any possible beneficiaries of the sale of their patents prevents them from determining the true demand for their asset, and hence its actual value in the marketplace. As is the case with a lack of transparency in other markets, this distorts the valuation of the assets being exchanged and introduces inefficiencies into the operation of a market for such assets. However, in contrast with transactions involving other goods, the lack of transparency may also introduce a need for greater oversight in order to protect the public interest and prevent unfair and/or anti-competitive business practices that act to prevent (or at least lessen) the ability to achieve the goals of the patent system.

Increased oversight may be provided by one or more suitable mechanisms. These include interpreting unfair competition laws to require disclosure of the actual purchaser and any expected beneficiaries of the purchase of a patent portfolio, or by the establishment of new requirements on the transfer of patents as part of the Federal laws that establish and regulate the operation of the patent system. Judicial action may also have a role, such as where a Court decides that proper valuation of a patent cannot be determined without knowledge concerning the actual purchaser and its holdings, or that the validity of a patent that is being asserted cannot be determined without knowing the full holdings of the party asserting the patent.

Other Operational Aspects That May Be of Concern

The previous discussion has focused on the impact of the lack of transparency arising from using shell companies to obscure the actual buyer of a patent and/or beneficiaries of a purchase on the seller of a patent. In addition, there may be other aspects of patent buying entities that should be considered in order to determine if the operations of such entities are supportive of the goals of the patent system.

Consider the situation where a patent buying entity has investors. If the entity is publicly traded, then disclosure obligations will presumably act to make sellers (i.e., inventors or corporations that employs inventors) aware of at least some of the implications of selling their patents to the entity. However, if the entity is private, many of these obligations do not apply and information regarding operational methods may not be available. In such a case, if a patent buying entity has investors, it may be useful to know if those investors have input into what portfolios are being bought. This is because such inputs or direction may act to further reduce efficient operation of the market by hiding the interest of those investors in a particular portfolio. This affects valuation because it prevents a seller from knowing which parties may be most interested in their patents, and hence the potential demand for the assets. It therefore may enable the investors to acquire patents or licenses at less than the true market value of such assets.

Perhaps, more importantly, it may also raise antitrust or unfair competition concerns because the lack of transparency can permit investors to hide behind the buying entity while having their risk exposure to the patent assets reduced. This may reduce competition by (1) permitting investors to cooperate in efforts to reduce their risk by purchasing certain patents at below market value, and (2) providing the investors with a mechanism for asserting the purchased patents against competitors of the investors. Further, if the investment opportunity in the patent buying entity is not open to all, then those excluded may be at a competitive disadvantage relative to those that are able to invest and exercise some direction over how the patents are asserted. Another benefit to investors in a patent buying entity is that they do not have to make the R&D investment that would typically be required in order to obtain the purchased patents.

Note that even if any direction or guidance exerted by investors is indirect or informal, it may still amount to a business practice which is unfair or which alters the competitive environment. This is because the patent buying entity would be expected to act in the interests of its investors with regards to which patents to purchase and against which targets to assert those patents. Thus, the type and degree of direction exerted by investors (in a formal or in an informal sense) with regards to the purchase and assertion of patents is an aspect of the operation of patent buying entities that may need to be considered.

Regardless of the outcome, it seems appropriate to consider whether the operational behaviors of patent aggregators, NPEs, and PAEs are supportive of (or at least devoid of any negative impact on) achieving the intended goals of the patent system. This would help to ensure that the goals that were intended to be accomplished by the grant of an important Federal right are not being harmed by exposing patents to the operation of the free market system. It is likely that patent aggregators, NPEs, and PAEs are themselves not the problem, but only that certain aspects of their operations need to be modified.

The "Bottom Line"

Because the Federal government created the rights at issue and intended for them to be used for a specific purpose, it may be necessary to introduce additional controls into the operation of the developing market for patent rights. If the actions of, or the methods of operating a business that are practiced by, patent aggregators, NPEs, and PAEs are counter-productive to (or even simply unsupportive of) the goals of the patent system, then additional controls may be justified in order to restore the market for patent assets to a more desirable form. If such controls are to be adopted, their form is uncertain but presumably would include fuller disclosure of the entities that would benefit from a purchase of a patent portfolio, such as the actual buying entity and any other parties that would be expected to benefit by having a license to the purchased assets. The controls may also require disclosure of the investors in a patent buying entity and the ways (if any) in which the investors may impact the acquisition or assertion of patents.

While other markets may accept a similar lack of transparency (and the resulting inequities) as part of the free market process, such an approach may be inappropriate where patents are concerned. At the least, it seems desirable to determine if the lack of transparency being practiced by certain patent buying entities is having an undesired impact on the operation of the patent system.

[1] Alan D. Minsk is a Patent Attorney and former in-house Counsel for Unwired Planet and Intellectual Ventures. His practice focuses on counseling clients with regard to intellectual property issues that arise during the course of their business operations. He has extensive experience as a patent strategist, concentrating on the development and strategic management of patent portfolios, and has represented clients ranging from start-ups to publicly traded companies. Alan received his J.D. from Harvard Law School (1991), and received a Masters degree in Physics and a Bachelors degree in Astronomy from the University of California, Berkeley. The views, statements, and opinions expressed in this article are solely those of the author, and in no way represent or should be associated with those of the author's current employer or of a previous employer.

[2]Matt Rappaport, "How Hidden IP Assets Hurt the Entire Patent Community", IP Law360 at http://www.law360.com/technology/articles/393963/how-hidden-ip-assets-hurt-the-entire-patent-community.

[3] See "Roundtable on Proposed Requirements for Recordation of Real-Party-in-Interest Information," http://www.uspto.gov/ip/officechiefecon/roundtable_01-11-2013.jsp.

[4] Congress shall have power . . . To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries. U.S. Constit., Art. I, Sec. 8.

[5] The Patent Act, 35 U.S.C.

[6] Note that examples exist of the introduction of federal oversight to establish greater transparency and a more level playing field in other areas, such as the trading of stocks, in order to provide for a more efficient and trustworthy market. With regards to stock transactions, the transparency, disclosure, and insider trading regulations all act to protect the interests of one party (i.e., the public) in a situation in which an imbalance of information exists.

[7] Patents represent more than a collateral output of the product development cycle. Because of the many possible value propositions for a patent, a properly constructed patent portfolio can effectively protect a company's assets and in some cases may be used to reduce operating costs or generate revenue. This perspective on patents as a business asset is discussed in my articles entitled, "Old Model: Patents Protect Products. New Model: Patents Themselves Are Products," Forbes magazine's CIO Central (June 1, 2012), and "Protect Your Company — And Increase its Value with a Strategic Patent Portfolio," Seattle Business magazine (October 2012).

128 thoughts on “Guest Post: Is there a justification for greater transparency in patent transactions?

  1. similarly compelling critiques of Internet content

    Or in Malcolm’s case, empty critiques lacking in content.

    LOL indeed.

    Anytime you feel compelled to return (that is, start) actually talking about substantive patent law (and don’t want to torch your dogmas), please feel free to do so.

    Thanks.

  2. Meanwhile, similarly compelling critiques of Internet content can be found all over the Internet:

    has CNN moved from a news organization to a pure propaganda outlet? Does CNN realize that a good portion of the country is NOT in support of gay marriage, but CNN willfully chooses to completely omit that perspective?

    LOL.

  3. But PAE’s are another animal entirely

    LOL – what was that about smearing…?

    little or no interest in entering beyond the filing and prosecution of the patent application

    And what is the legal justification for this?

    By the way, have you figured out which Supreme Court case it is yet?

    STILL your choice: self-defeat or ignorance.

  4. I just find it a profoundly uninteresting scenario to discuss.

    Ha! Well, I agree with you to the extent that the scenario applies to a very sophisticated and very honest applicant/patentee where such inconsistencies will be minimized or absent if the prosecuting attorneys are doing their jobs.

    But PAE’s are another animal entirely and should their patent holdings become transparent the stubborn and regular assertion of this doctrine will at least drive up their costs considerably. It would likely also apply to non-PAE “bad actors” such as IBM who file in fields in which they have little or no interest in entering beyond the filing and prosecution of the patent application.

  5. 6–

    Wrong. D does more than “just deliver content”, he selects and even edits content, as evidenced by the moderation of the comments.

    When he sees something he doesn’t like–for instance, suggestions that he finds, for whatever reason, objectionable as to the motivations for generating content–he sometimes removes it.

    My guess is that he is in part responding to the wishes of the content-generators.

    Because the site is moderated, it is reasonable to conclude that that which appears on the site, especially the articles, meet with his approval. I’m not saying that he agrees with everything therein, but he has seen fit to permit them to appear on the site.

    So he doesn’t “just deliver content”, he approves of said delivery and moderates the responses thereto.

    And, in my opinion, he has been making some unfortunate decisions regarding both those areas, significantly decreasing at least my interest in the blog.

  6. Malcolm, I agree that Congress authorized patents pursuant to its power granted by the Constitution. But the crafters of the power were our Founding Fathers.

  7. Mooney–

    If you’re going to post ad hominem, you should at least post ad hominem that makes sense.

    I know you can do better than that pathetic failure.

    I really wonder what it is that has driven you off the deep end lately.

  8. Ned: “Is there a better blog than this on patent law?”

    Like I said, the best of the worst.

  9. A patentee or applicant should be able to sit on his patent rights because their his intellectual property not the property of those who want to steal the usage for nothing or patent around or overtop of those inventors who experiance indegency resulting in inability to due diligency other wise the world wont recieve the benneit to human advancement caused by the incentive to create that monitary compensations give and the present systemt try to taketh away

  10. The same patentee cannot possibly be allowed to assert both patents, even serially, once the inconsistency is identified.

    Yes, of course I agree about that, to the extent that each patent depends on its respective argument/assertion for grant/validity. I just find it a profoundly uninteresting scenario to discuss.

  11. (sigh)

    Huge difference between the power of the judiciary review and an activist court writing patent law.

    You rather missed that in the rest of my comment, Malcolm.

    Obtuse. Is it on purpose? (said in the best Andy Dufresne tones)

  12. The fact that you are incorrect about IBP also indiactes that your post was – as usual – pointless (hence vacuous).

    Way to go, Malcolm.

  13. Yet another example of your misrepresentations.

    Malcolm, clearly, what I view as baseless is neither IBP or his comments.

    The fact that you attempt to spin what I say as such is just you being you.

    And yet, you will continue with such. ad infinitum. ad nauseum.

  14. LOL – like you ever point out anything with consideration and supporting facts.

    You don’t even know the difference between facts and spin.

    And that is why you inevitably post in either insult or in self-defeat.

    That is all that you know.

  15. Innuendo and smear?

    Not at all.

    Have you figured out what the Supreme Court case is yet?

    Once you do that, then it will be obvious why IANAE is off-base here.

    Besides which, IANAE’s over-reading of eBay is more of a distraction to the point that you are supposed to be figuring out.

    The ball is still in your court Malcolm. The point is for you to provide the reference (yielding another glorious self-defeat by you), or for you to admit that you don’t know a critical legal point of patent law.

    Either one – your choice.

    Still waiting.

  16. Actually, more to the point is that it gave the legislative branch the right to create patent law.

    Noticeably absent from this grant of power was any grant of power to the Judiciary.

    LOL! Take it up with this guy:

    link to findagrave.com

  17. You engage in a baseless insult and add nothing to the conversation.

    Whatever insults are present are no less “baseless” than the insults IBP hurled at article. In fact, they are precisely as “baseless” as IBP’s insults. That was my point. You seem to acknowledge the baselessness of those comments. That’s progress.

  18. you know d_@mm well what I mean.

    Right. You are getting at the fact that patent owners constitute a micro-fraction of the public and are nearly always among the wealthiest members of the population. That makes sense.

    Or were you spewing some nonsense?

  19. I pointed out your self-defeat

    Yes you did. Now I will point out with equal clarity, consideration and supporting facts that you like to hide behind bushes and spy on little kids during recess.

  20. You keep on making mistakes.

    Here, even in what mistake you think is being made.

    Clearly, eBay is not what you think it to be.

    Yet another comment with innuendo and smear. What’s the problem, anon? Your English especially poor this week? Did your machine translation program fail you again? If you believe IANAE made a mistake, tell us what the mistake is. Assuming you possess the language skills necessary to do so, of course.

  21. The reality is Warrens attitude is the opposite of the truth. He is buying a used company where the founders completely ignored the fact that the original conceptions involved were never paid for. Ive been stating for years that these companies were all stealing my inventions and he is not reinvesting in new marketable inventions from me with good titlesso he is intentionally going in the wrong direction.lisencing at 4% is the maximum that established companies can bear so thats all I ask.

  22. Waste occurs when they realize the conciever is broke and will likley not have to pay or face triple damages lawsuit so they just startup in competition destroying the saleability of the patent to any legitimate companies. Then the incentive to create is destroyed so the system shuts down and the indegent inventors cival rights are violated and the public never has any of the inventors subsequent inventions to enjoy

  23. It expressly gave the Federal Government the right to create the patent system.

    Actually, more to the point is that it gave the legislative branch the right to create patent law.

    Noticeably absent from this grant of power was any grant of power to the Judiciary.

    That is precisely why the Supremes dance so carefully around 101 issues, squinting to find ‘implicit’ readings of what Congress did write in the Statutes.

    Of course, we can visit the Prometheus case again to understand this dance. If you have any letters that you want explained, that is.

  24. I didn’t think IBP could be this ignorant, but he is

    Nice. You engage in a baseless insult and add nothing to the conversation.

    Hypocrite.

  25. most invested in PAE schemes

    LOL – nice loaded language.

    I’m sorry, did you actually have a point to counter the post above, wherein I pointed out your self-defeat?

    Hmm, thought not.

    Thanks.

  26. And just to be clear, the record is already clear as to who the most loathsome poster is: Malcolm.

    You are playing your favorite game again here: accusing others of that which you do.

    It is you and your little circle of friends that employ the tyranny of the banal, the misrepresentations, strawmen, undeserved insults, and the cutting and running away from actual valid points made.

    Your animosity towards Mr. Quinn is a perfect example. He has never harmed you, has never spoken an ill-word of you, and runs a site that simply checks the wanton misrepresentation of law. It is on that factor alone that both 6 and IANAE have been banned from the site, and MaxDrei warned. As far as I can tell, you won’t even venture there. It is not surprising that these are the characters that you ‘hang” with here. The characters that tend to post in the same manner as you, that hold the same dogmas as you, and that are open to the valid criticisms that I post.

    I have given you the pathway NOT to have your head handed to you.

    That pathway does not include the Crybaby’s Veto (MaxDrei).

    That pathway does include you dropping many of your favorite tactics.

    Sorry, but until you actually engage in intellectually honest conversation, you can look forward to me rubbing your nose in your own c_rrp.

    Have a nice day.

  27. Well, really. That was not the choice of the Federal Government, but of the Founding Fathers whose crafted our Constitution.

    The Constitution didn’t create the patent system. It expressly gave the Federal Government the right to create the patent system. The Federal Government chose to exercise that right.

    Can you feel my wrath, Ned? ;)

  28. I didn’t think IBP could be this ignorant, but he is. Just check out what he wrote.

    This passage speaks for itself, and is only emblematic of a much worse entire article. No matter how much you ask me to waste my time and analyze it for you, I will not.

    My last word on this will be that I consider it amusing that I cannot discern, online, whether you are being serious or facetious. Well-written! There is more to writing well than simply shoving a qualifying “may” before anything you have chosen to not investigate.

    Well, all I can say after reading what IBP wrote is that this passage speaks for itself, and is only emblematic of how ignorant and nonsensical you are, IBP. No matter how much you ask me to waste my time and analyze it for you, I will not. I’m sorry, IBP. You are just that nonsensical and full of sh-t.

    You made a multiplicity of baseless unfounded statements. There are so many leaps of faith that are required to guess at what you are talking about that it becomes impossible to remember them in their cascade, and it becomes easy enough to forget that your entire critique of the article is built on sand.

    My last word on this will be that I consider it amusing that I cannot discern, online, whether you are being serious or facetious.

  29. There’s nothing unethical about making an argument in prosecution that’s inconsistent with someone else’s argument in an unrelated case.

    Agreed.

    Later common acquisition of those two cases doesn’t retroactively make the arguments inequitable if they weren’t already.

    Before getting to the issue of “inequitable conduct, you agree that if one of the arguments/assertions is correct then the inconsistent argument/assertion is incorrect. Therefore, to the extent the arguments in each case were necessary for issuance (that’s the initial premise), then only one patent can be valid. At the very least, if a defendant points out an inconsistency in the patentee’s positions which are necessarily adopted by ownership (this is intellectual property, after all), then at that point the patentee must disclaim one of the two patents. The same patentee cannot possibly be allowed to assert both patents, even serially, once the inconsistency is identified.

    I don’t think it’s as big a deal as you make out.

    Maybe. But consider the situation where you are the owner of hundreds of patents in a narrow area, where those patents were written and prosecuted by competing entities in many cases. You think there aren’t going to be a lot of inconsistent statements?

    Of course, another clue as to whether it’s a “big deal” or not is how those most invested in PAE schemes react to the proposition. Let’s just wait and see.

  30. Just to be clear, MM, my request to Dennis to consider stopping nasty, personal, and unprofessional comments was directed to all such comments; not just yours.

    And just to be clear, I can understand why a person “popping in” and reading the comments here might be confused or troubled by some of what goes on.

    You need to understand the history. This anon character spent years posting here under dozens (hudnreds?) of aliases personally attacking everyone he disagreed with (particulary me and Ned Heller, who disagree on any number of things) and basically trying to derail every thread in which he felt his personal “agenda” was threatened. He denied doing it real time (yes, he’s a ly-ing s0ci0path – more examples can be provided, if you wish) and he went so far as to accuse several commenters as being a “vocal minority” (while trying to shout us down with his s0ckp0ppets).

    Last year anon’s s-ckp-ppetry was outed by Dennis. anon’s response was simply to continue his same asinine behavior under a single name. That behavior, again, includes daily smearing and innuendo, mostly concerning the victim’s ignorance and/or the victim’s “agenda”. When pressed for details to support the assertions, anon will invariably cut and run, usually leaving a trail of insults in his oily wake (e.g., “the fact that you need me to explain shows how ignorant you are”).

    For the record, I’ll just say it again: I think Gene Quinn’s blog s–ks and that’s partly because of the way he runs his comments section. There are certain quarters where “civil discourse” is imagined to include all sorts of incivil behavior (e.g., willfully misrepresenting a person’s views over and over again, regardless of how many times they correct you; goalpost moving; strawman; attacking the person’s credentials (“you must be an Examiner”)) but gob forbid you use a “naughty” word. Quinn’s blog is definitely one of those places. But it clearly needs to be that way in order for Gene to enjoy it. And if that’s what you need, then you know where you can go.

  31. Just to be clear, MM, my request to Dennis to consider stopping nasty, personal, and unprofessional comments was directed to all such comments; not just yours.

  32. You keep on making mistakes.

    Here, even in what mistake you think is being made.

    Clearly, eBay is not what you think it to be.

  33. Yes definately need more transperancy in eliminating uspto interoffice corrupt file insertions that make parent conceptions look like yesterdays news then disqualify issuance. Eliminating secrecy files and replacing it with immediate novelty checks will spur filings from those to smart to get riped off in the present corruption

  34. When you buy the patent, you buy the whole package, including all the arguments that went into obtaining those claims (prosecution history and application disclosure).

    That’s all well and good, as it relates to the patent you’re buying. But I don’t think the effect would be as severe as you think if the applications were not co-owned at the time the statements were made.

    There’s nothing unethical about making an argument in prosecution that’s inconsistent with someone else’s argument in an unrelated case. Later common acquisition of those two cases doesn’t retroactively make the arguments inequitable if they weren’t already.

    I think the patentee might still have trouble suing the same infringer on both patents together, unless the statements can be reconciled, but apart from that I don’t think it’s as big a deal as you make out.

  35. a patentee can perfectly well simply sit onhis patent rights and not do a d_@mn thing with them.

    My mistake. We haven’t all read eBay, apparently.

  36. C’mon Malcolm, you should know the Court case that held that a patentee can perfectly well simply sit onhis patent rights and not do a d_@mn thing with them.

    The point is for you to provide the reference (yielding another glorious self-defeat by you), or for you to admit that you don’t know a critical legal point of patent law.

    Either one – your choice.

  37. You can stop clutching your pearls now.

    LOL, I am sure that Malcolm can justify ANY response to ANY person. Even cancer survivors, or respected posters who wish to honor their recently departed fathers.

    Hey, I have made it more than clear how Malcolm can cut back on the posts I make in response to his banality. That power rests in his hands too.

    As for your lecture, Malcolm, you are off-point. Completely. I was talking about the Quid Pro Quo and the proper relation of patent law and the constitution. You don’t happen to like what I say (in all probability, because you know it is true and it sm@cks your agenda something fierce). But instead of actually addressing the point I made with ANY reasonable intellectually honest counter, you did what you usually do: throw out a smarmy, and off-point insult.

    I have provided ways to curb the poor quality blogging and all you could do Malcolm was [shrug] and stand by.

    But please, insult anyone who disagrees with you. You have already accused me of doing that and we all know that is one of your favorite games: accuse others of that which you do.

  38. It’s not important who prosecuted them.

    meet

    made during the prosecution of co-owned patents

    meet

    Malcolm self-defeat. Oh, you’ve met before? Many times? So nice.

  39. What we have in the current post is that implicit assumption the big boys do the “real” innovation; and that the small inventors are like fleas on a dog, to be swatted and suppressed in the interest of what? The big boys.

    Careful Ned, you risk the wrath of Malcolm, who might think that all of sudden you have English as a second language and need to see a doctor.

  40. “made during the prosecution of co-owned patents”

    You also missed (even though I have shared it several times) the Peter Zura article showing the targeted “Trolls” simply do not prosecute patent applications.

    No, I didn’t miss that. It’s not important who prosecuted them. It’s important who owns them and who pays the maintenance fees. When you buy the patent, you buy the whole package, including all the arguments that went into obtaining those claims (prosecution history and application disclosure). If you think those arguments or assertions were unethical or those arguments were wrong or those arguments completely undercut and contradict arguments made in your other patents, then you should not be buying that intellectual property. Nobody should be allowed to sue somebody successfully and not be bound by the arguments and assertions they made under oath, in court.

  41. Dennis — do we really have to put up with reading personal attacks like this; from anyone?:

    “Not sure you beat your wife.”

    Dear Ms. Sensitive Sockpuppet,

    The phrase “when did you stop beating your wife” is a classic example of a “logical fallacy”. Specifically, it’s the quintessential example of a loaded question. As such, reference to that quintessential example is a perfectly appropriate resonse to an insulting loaded comment such as anon’s.

    You can stop clutching your pearls now.

    I’ll bet I speak for a measurable number of your readers who’ve had it with this kind of thing.

    The commenter who goes by the name “anon” uses such logical fallacies frequently and often to insult and smear any and every commenter here who is perceived to have an “agenda” that anon finds “offensive”, regardless of the content of that person’s comment. This behavior is very well-known and well-documented. It happens on a daily basis. It happened in this thread, directly above. Anon brought up the Constitution to support his view that patentees were being mistreated by someone, somewhere. I pointed out that the Constitution doesn’t guarantee any patent rights at all. anon responded that my comment was a non-sequitur (completely false). I could have told anon to go eff himself at that point. Instead, I kindly pointed out an obvious truth: anon doesn’t know what a non-sequitur is (either that or he’s just an —hole). Then anon started with the smears, innuendo and loaded comment.

    Could it be time to institute comment rules; perhaps something akin to what Gene Quinn has done?

    Question: if it’s so wonderful over there in his comments section, why not knock yourself out? What I’ve seen is that Gene acts a lot like anon would act if anon actually had the power to do anything. That’s pretty sad. But it seems like your thing, Ms. Sensitive Sockpuppet. You and anon can knock yourself out talking about the “actual” law instead of worrying about us uncivilized communists and our nefarious agenda to destroy the patent system and steal all your ideas MOOHOOHOOHOHAWHAWHAWHAHW!!!!!!!

  42. There still is no “we” or “us.”

    I know, just you and your sockpuppets. Same as it every was. It’s been a real winning strategy for you. Keep digging.

  43. did your famed ‘archive’ ability fail you Malcolm?

    No it didn’t at all. You brought up some Supreme Court case with your usual innuendo and smearing. Now you refuse to tell us what you were talking about.

    Keep digging, Smearboy. Like most s0ciopaths, you seem most comfortable when you’re neck deep in your own bullsh-t.

  44. Dennis — do we really have to put up with reading personal attacks like this; from anyone?:

    “Not sure you beat your wife.”

    Could it be time to institute comment rules; perhaps something akin to what Gene Quinn has done?

    I know it might mean a big drop in the number of comments, but isn’t quality better than quantity?

    I’ll bet I speak for a measurable number of your readers who’ve had it with this kind of thing.

    PatentlyO’s better than this.

    Hope you’ll consider it.

  45. Sorry, MM.

    There still is no “we” or “us.”

    You. Are. Alone.

    Since you clearly and obviously don’t speak for all who read and comment here, please use the intellectually-honest “I” or “me” whenever you feel the misplaced urge to type “we” or “us.”

  46. Is there a better blog than this on patent law? If so…

    I personally like debate where we go behind the letter and investigate the policy. This post is, to me, a bit misleading in that it argues from the premise that the Federal Government chose to create a patent system…..

    Well, really. That was not the choice of the Federal Government, but of the Founding Fathers whose crafted our Constitution. The purpose of the patent system, according to them, is to incent invention by rewarding inventors with exclusive rights. It is clear from this that the better we reward inventors at the expense of infringers, the better the patent system will promote the advance of the Useful Arts.

    What we have in the current post is that implicit assumption the big boys do the “real” innovation; and that the small inventors are like fleas on a dog, to be swatted and suppressed in the interest of what? The big boys.

    This is more disenguous propaganda that seeks to disquise the wolfe’s purposes in sheep’s clothing. However, like all good folk, we can see through your disguise. You fool no one.

  47. My last word on this will be that I consider it amusing that I cannot discern, online, whether you are being serious or facetious

    As I mentioned previously, you obviously have not read Malcolm’s post to any even moderate extent, as you would not be so confused. While he indeed intends to be serious, he merely achieves being seriously facetious at his own expense. That’s why the laughter is not WITH Malcolm.

  48. The first recording statute required assignments to be filed within three months or be void. Story essentially held that this was unreasonable, and construed the statute to mean that an assignment was good against the world if recorded within three months. Congress, ashamed, rewrote the statute in its current form.

    Story. One might read his words. He, I think, is a greater luminary in patent law than an infringer lobbyist whose only real intrest is in promoting patent infringement.

  49. The following is, I think, my favorite part of the article:

    “At the least, it seems disingenuous to say that the existence of such patent buying entities has no impact on the innovation process or other aspects of the patent system. Given that there is at least a possible impact, I believe that there is justification for considering the still-developing market for patent assets as part of an overall patent system that is intended to fulfill specific goals. And, if the existence of that market is part of a system that is supposed to create an incentive for innovation, then it stands to reason that a properly functioning market is desirable in order to ensure a proper level of incentives and to most efficiently produce the desired benefits of those incentives.”

    This passage speaks for itself, and is only emblematic of a much worse entire article.

    No matter how much you ask me to waste my time and analyze it for you, I will not.

    My last word on this will be that I consider it amusing that I cannot discern, online, whether you are being serious or facetious. Well-written! There is more to writing well than simply shoving a qualifying “may” before anything you have chosen to not investigate.

  50. MM–

    Honestly, I can’t tell if you’re being serious, or facetious.

    If you are serious, I am absolutely astounded, and mortified.

    Again, the author forges ahead with his paper, without proving in any way that the effort is in any way either meaningful or even justified.

    The author makes a multiplicity of baseless suggestions of fact and suggestions for working assumptions, which are never investigated–hence the 44, or the bulk of the 44, “may’s”. To proceed with the article requires nothing less than an investment of faith–an investment that no knowledgeable and intelligent reader should be willing to make, given the absolute cascade of possibles they are asked not to question.

    To say that one must suspend disbelief would be to put it mildly, because it requires more than that…there are so many articles of faith that are required that it becomes impossible to remember them in their cascade, and it becomes easy enough to forget that the whole article is built on sand.

  51. Did your famed ‘archive’ ability fail you Malcolm?

    Or is this just another example of how you want to stay away from a substantive point of law because it will torch one of your little dogmas?

    I’ll even give you a hint: think early twentieth century.

  52. LOL – for others that would be psychosis, for Malcolm, that would be [shrug] and stand by.

    The word: ‘Hypocrite’ rings out.

  53. made during the prosecution of co-owned patents

    You also missed (even though I have shared it several times) the Peter Zura article showing the targeted “Trolls” simply do not prosecute patent applications.

    You might start recognizing that when you speak without understanding what it is that you are talking about wrecks your ‘credibility’ from the get-go.

    Your ability to self-defeat is awesome.

  54. Especially the games that show that I in fact do know what I am talking about and show you caught (again) in one of your blatant lies.

    Those are such fun games.

    Your head, sir.

  55. Do you seriously get 0ff on comments like that?

    Do I “get off”? If you mean do I enjoy pointing out when a fantastically petty criticism is made of a very well-written article that was plainly trying not to present assumption as fact, I guess I do “get off” on that a little bit. Sorry, man.

  56. LB To the extent that a patent can encourage and help protect investments that ultimately provide the market with useful products and services, then an unused or abandoned patent could indeed be a wasted asset.

    Interesting. That sounds reasonable … but as you stated, there is an underlying presumption that I’m not sure is widely applicable. If I understand what you’re saying, in some instances a “useful” (in the patent sense) product or service that has been enably disclosed to the public will remain undeveloped because investors will not fund the cost of bringing the product/service to market without monopoly power, at least for the short term.

    It seems to me that the greater “waste” in that situation is the waste of resources devoted to an attempt to bring to the public something that the market does not, in fact, demand. To put it another way, I’m an investor and someone publishes this “useful” idea. People really want this “useful” thing/service but … not enough to pay market value for it so … screw it. I’m going to spend my money on something else. How is that a “waste”?

    It also seems to contradict the constant assertions of the PAE cheerleaders that all their patented ideas are being ripped off by “Big Corp”. Apparently this “Big Corp” and their shareholders are happy to risk patent infringement and gleefully copy the disclosures of “small inventors” and “small businesses” but if the patents are abandoned or those “small businesses” fail, then suddenly Big Corp isn’t interested in providing that “useful” good/service? Hmmm ….

    People with money who want to invest it are going to invest it in something. How about we figure out a way to discourage investors from gambling on the ability of a team of laywers to puff life into a morass of otherwise dead patents? That’s what seems like a waste to me. That’s coming from a patent lawyer. I’d like to see investment in businesses (and yes, their patents) that make new products and provide jobs to the vast majority of people who aren’t lawyers and who don’t belong to this very weird micro-community of extremely self-important “small inventors”.

  57. You can feel free to submit your own articles IBP, D is just delivering us content. He makes no garuntees as to the quality thereof.

  58. p.s.–sorry for the caps, I was trying to work around a filter. It seems, although I’m not sure, that the monikers IBP and Inviting Body Punches aren’t able to get through…

  59. Do you seriously get 0ff on comments like that?

    The only thing you’ve done is to have made another expression of your BlAS.

    If you’re advocating on behalf of a client, you’re not doing a very good job of it–and if you’re not, then you’re just PATHETlC…

    …”Mooney”.

  60. Yes revealing the single inventor concievers name is integrity in the system and concieling it is evasive for trying to establish true conceptions and properly crediting of chain of title.The new reform conceils the the identity in the inventorship determination stage through corperation filings. There should be a provision that the true identity is available to top top IRS or pto officials the reason being improved security for inventors against thieves and estate roberies

  61. What you and many others dont realize is that in the last 10 years the system is actually shutting down due to frauds and thefts from actual concievers so innovation spending that produces jobs revenues and exports will continue to fall to zero because of crooked legislators producing retartive legislations to add to the previous retartive legislations

  62. Yes the dirty backroom deals need to become public knowledge for the lien rights of those cheated of the original conceptions and to see where the money is going for legal recoveries. Also notices of upcoming sales and distributions need statutory periods for leins to be filed and inclusion in distributions in sales and aquisitions.Watten buffett thinks I am a crook about the fact that I concieved all the IP that he ownes and wasent paid for truley a very bad system in need of repair

  63. This concept of “asset waste” isn’t applicable to patents. There is no “waste” when a patent is abandoned. In fact, from the public’s perspective, the opposite is true. The “waste” occurs when the owner doesn’t practice the invention and prevents others from doing so.

    I think you’re on to something, but I don’t think your first and second sentences are correct. To the extent that a patent can encourage and help protect investments that ultimately provide the market with useful products and services, then an unused or abandoned patent could indeed be a wasted asset. Your last sentence is interesting, though, and I think it’s probably correct.

  64. LOL – just like you said about other terms

    And I’ll continue to do so whenever you make it clear that you don’t understand the meaning of the terms.

    We could play that game again

    We all know you love games, you cute little s0ciopath.

    Not sure why you have a penchant for being embarassed

    Not sure you beat your wife.

  65. on point to the actual comments made by Malcolm.

    His comments about what the actual US law says if you both refrain from practicing your invention and refuse to let anybody else practice it?

    If it was even half as on point as eBay, and way older, I guess eBay must have overturned it.

  66. the archives have a Supreme Court case on point

    Oh look, Perfesser Innuendope has arrived with more of the same! We all love your “actual” law, Perfesser. Please tell us the name of the Supreme Court case, the relevant facts, the holding and cite the text that is “on point” and which contradicts my statement.

    Thanks, Perfesser!

  67. LOL – way older than eBay, IANAE – and on point to the actual comments made by Malcolm.

    And you are welcome.

  68. LOL – just like you said about other terms, until I started included the actual definitions with my posts pointing your transgressions…

    We could play that game again if you want to.

    Not sure why you have a penchant for being embarassed so.

  69. (the archives have a Supreme Court case on point – check into it)

    We’ve all read eBay v MercExchange, but thanks for the friendly reminder.

  70. The “waste” occurs when the owner doesn’t practice the invention and prevents others from doing so

    Unless of course, you subscribe to actual US law…

    (the archives have a Supreme Court case on point – check into it)

  71. I am the largest producer of valuable conceptions yet my income is 0 from the top 10000 conceptions of all time except for a few from my 3 grandfathers.So their is where justice stands presently in America the land of the frauds and the home of the brazen

  72. Not so the reverse is true. Valuable patents that are tho only ones that matter are not abandoned by their conciever are not abandoned they are unable to proceed with due dilligence patents due to non investment. So not awarding them a uspto status of unactive due to indegency neans the awarding to other parties is the theft of an intellectual property and the shuttering of the incentive to create and the shutdown of the system. Ive got a 35 billion doller portfolio in this status and I am looking for an attorney or troll to take on the goons so full economic recovery can be realized

  73. so full of innuendo

    unsupported statements

    complete waste of time

    Still waiting for the specific examples, Smearboy.

  74. your beloved Infringers’ Rights

    Not sure what you mean.

    Are you getting at the fact that patent owners constitute a micro-fraction of the public and are nearly always among the wealthiest members of the population?

  75. Wrong.

    Another thing that if I have to hold you rhand to explain, you wouldn’t be able to grasp the concept.

    But hey, keep flailing.

  76. then we have yet another explanation for the historically slow recovery from the Great Recession

    LOL while you are at it, how much is that tea in China?

  77. the word “may” appears 44 times in the body of the text.

    I come here for the deep insights of PAE cheerleaders.

  78. incapable of understanding what I would be showing you.

    LOL. No doubt Matt Rappaport feels the same way about you. Your description of his article perfectly describes your own comment.

  79. atent law does not need further weakening that benefits Big Corp

    There’s a big difference between weakening “patent law” and restricting the rights granted to patent holders. Let me know if you need further explanation.

  80. patents in the last ten years have massively increased spending on innovation. I am sure this true.

    Because of the huge number of new businesses and hiring binges by competing tech companies over the last ten years compared to 1993-2003?

    If companies are indeed spending massive amounts of money on “innovating” awesome technology like methods of shutting off a kid’s credit card account with the help of a POWERFUL COMPUTER BRAIN, then we have yet another explanation for the historically slow recovery from the Great Recession.

  81. Careful IBP, you are on the verge of incurring Malcolm’s wrath.

    Since when did you have English as a second language? Perhaps you should see a doctor for that…

  82. Seriously?

    If I have to hold your hand for that exercise, you are incapable of understanding what I would be showing you.

    Some minimum level of intelligence is required from you.

    Try – please try to meet that level.

  83. Restrictions post grant can NOT strengthen and can only weaken.

    C’mon Malcolm, at least try to appear to be rational.

  84. The Constitution doesn’t guarantee patent rights to anybody. You were saying?

    How is this non-sequitur even remotely relevant to the conversation?

  85. This blog seemed to have started out with good intentions, but the wheels seem to have come off recently.

    There is still some good content in some articles, but the recent dominance of the chaff over the wheat will drive away readers and comment contributors like myself, with only so much time to devote to various media.

    Unfortunately, patently-o might still represent the best of the worst.

    The contrast between articles and case write-ups written by Dennis and those written by these guest authors is in part what makes those guest articles stand out as incredibly poor in quality.

  86. patent law does not need further weakening that benefits Big Corp

    Restrictions on the activities of PAEs would not “weaken patent law” but strengthen it.

    Also, please define “Big Corp”, since the battle with “Big Corp” appears to be an incredibly important talking point for the PAE cheerleaders.

  87. the holder of a single patent may also be the owner of additional (and should-be-separately-considered) patents.

    Courts have held that equitable considerations may estop patentees from relying on arguments and assertions that contradict arguments and assertions made during the prosecution of co-owned patents.

    This is another reason for increased transparency, of course, and it’s one of the reasons that the cheerleaders for patent aggregators want the least amount of transparency as possible.

  88. The objective rational for patents is already met with the fact that patents are published.

    Anything more is not required to meet the constitutional objectives.

    The Constitution doesn’t guarantee patent rights to anybody. You were saying?

  89. small inventors

    Reminds me of some data I’d like to see: the average worth and average income of these poor, downtrodden “small inventors” who can’t afford to litigate their awesome and “presumably valid” patents.

    They seem to be doing quite well. The food served at their annual banquets is truly delicious, according to some sources.

  90. Well, I got through half of it before having been buried under qualifiers, assumptions, possibilities, and suggestions.

    For instance, the word “may” appears 44 times in the body of the text.

    The author forges ahead with his paper, without proving in any way that the effort is in any way either meaningful or even justified.

    What else can I say? Knowledgeable and intelligent readers will quickly apprehend the value of this article.

  91. Great article. Re the following:

    In general, having a marketplace in which patents may be sold is a positive development, as it may prevent a waste of assets, which is typically a desirable outcome.

    This concept of “asset waste” isn’t applicable to patents. There is no “waste” when a patent is abandoned. In fact, from the public’s perspective, the opposite is true. The “waste” occurs when the owner doesn’t practice the invention and prevents others from doing so.

  92. They spend their money on trying to patent things that ten years ago no one would have bothered about just in case someone else does and uses it against them.

    Your moniker is ill-chosen, as alternatives (much much cheaper ones) to patenting have existed and have been augmented in the AIA.

  93. “I still haven’t seen an article about how patents in the last ten years have massively increased spending on innovation.”

    And you probably won’t be seeing one anytime soon, because they haven’t. Lawsuits may have increased spending on patent filings and prosecution, but that doesn’t mean that spending on innovation has increased. Companies today are more worried about building a defensive portfolio than breaking new ground. They spend their money on trying to patent things that ten years ago no one would have bothered about just in case someone else does and uses it against them. So instead of spending our money on creating better products, we’re spending it on lawyer bills to see if it’s ok to display our icons in a row on the right side of the screen.

  94. You’re giving up all of the information on one side, and none on the other. What about the sales contracts for the allegedly infringing article? That’s kind of a large part of the negoatiations, just like the prior license information. The proposition here is a holdup, not an information exchange.

  95. And sorry, but Matt Rappaport’s involvement must be set aside – it’s his business to inject this rhetoric, and is simply not objective. The Law 360 article is so full of innuendo and unsupported statements as to be a complete waste of time (i.e. merely a paid commercial).

  96. Wouldn’t pricing sales and licenses be easier

    That depends. Do you want more information than the item already known and under discussion? Why? Easier to do what, exactly? See my post above at 8:26.

  97. Are patent licensees so unsophisticated that they cannot request/obtain this information on their own?

  98. I read that too. The real point here is to find out how much financial backing the real party in interest has, and how many other patents they have so that larger infringers with deep pockets can decide:
    1) whether the holder will be able to secure the services of contingent fee litigators;
    2) how many claims the real party in interest has against the infringer; and
    3) whether the real party in interest has the financial means to win an infringement suit barring contingent representation.

    No thanks. The negotiating position of small inventors and small companies is already weak enough.

    Now if you wanted to make license deals public such as through a recordation database like assignments, then I might agree. That would discourage trolling while allowing small inventors/companies who want to approach large entities for licensing or production deals to assess their risk of being ripped off. It would tell you the company’s history.

  99. The objective rational for patents is already met with the fact that patents are published.

    Anything more is not required to meet the constitutional objectives.

    There is either a basic ignorance of what the Quid Pro Quo means, or a wanting of more than that historical deal that is afoot.

    Let’s not confuse “nice to have” with “need to have,” especially, when the unstated “nice to have” deals with large firms deciding whether or not the trampling of patent rights brings risk because the holder of a single patent may also be the owner of additional (and should-be-separately-considered) patents.

    There is an inherent bias from the author based on his portfolio experience. I know this because I deal in the same realm.

    However – aggregation of patents should not be a driver for patent law itself. Quid Pro Quo is unrelated to what other personal property the owner may or may not have.

    I will grant that perhaps a more appropriate forum (or path) for these ideas may be found in antitrust law. But patent law does not need further weakening that benefits Big Corp and “rational infringement.”

  100. I still haven’t seen an article about how patents in the last ten years have massively increased spending on innovation. I am sure this true. That innovation spending is way up because of all these law suits.

    But, overall, I don’t see anything wrong with having to disclose license agreements and ownership of patents. That is a reasonable course to take given the odd nature of patents, and I agree since the overall purpose of the patent is to encourage innovation that analyzing the entire system and figuring out how to structure patents to best encourage innovation is correct.

    But, let’s also make sure that all sides of this are being analyzed. I am on the front lines and know that these law suits have goosed everyone to innovate and file patents, and to DISCLOSE. Again, my problem is that most of these papers evince such a vast ignorance of the innovation cycle that they are not deserving of consideration.

  101. Well written. Wrong, but well written (e.g., by law, patents have the aspects of personal property and the inserted and inflated notion that they are ‘more special’ is simply without a legal basis).

    (said in the best Orwellian tones)

  102. Patents represent a conscious decision by the Federal government to encourage certain types of behavior by members of the public by creating a new type of property. As a result, patents themselves and the operation of the system that grants them are invested with a stronger government and public interest than is the transfer of most other types of property. This suggests that justification exists for a greater degree of scrutiny into whether the operation of entities that engage in the buying, selling, and licensing of patents do so in a way that supports (or at least does not frustrate) achieving the goals of the patent system.

    Nicely done, Alan. Although a few here will have trouble with this notion, believing the above (which seems almost self-evident to me) does not make one “anti-patent.”

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