PatCon 3: Posner/Epstein Debate on the Patent System

Continuing to liveblog from PatCon 3.  I'll continue updating this post throughout the debate. 

A Debate About the Patent System

The Honorable Judge Richard Posner of the United States Court of Appeals for the Seventh Circuit
Professor Richard Epstein, Laurence A. Tisch Professor of Law, New York University School of Law, and James Parker Hall Distinguished Service Professor Emeritus of Law and Senior Lecturer, University of Chicago Law School

Moderated by Olivia Luk of Niro, Haller & Niro

For another perspective on this debate, check out Lisa Larrimore Ouellette's post over at Written Description.

Judge Posner: wrote "Why there are too many patents in America." 

Longstanding academic interest in intellectual property; since becoming a judge, he's volunteered to handle litigation at the district court, and for the last ten years he has done almost exclusively patent cases.  He's conducted bench trials, Daubert herings, claim construction, and so on.  He's prepared several cases for jury trial, but they all fizzled out before trial.

In his view, we all probably agree that patents should not be granted unless there's a significant invention that, unless patented, would not be developed at all or would be developed much later.  The reason is that a patent is a monopoly and a monopoly causes economic distortions.  Beyond that, the administration of a patent system is very costly.  The reason for this is that a patent right is very unlike a traditional property right.  An invention is an abstraction.  One of his cases involved a patent that had never actually been used to make any product, while the prior art that was being asserted had also never been used to make a product.  So there was an extreme abstraction of the invention involved.

The clearest cast for patents is for pharmaceutical drugs, because pharmaceutical drugs are very costly to develop.  Companies may spend hundreds of millions of dollars to develop a product for sale.  But once the product is sold, the cost of duplication is relatively small.  So here is a situation where, if there is no patent, the drug creator would never be able to recover the cost of its drug.   This is the clearest case.  But it is also relatively rare.

If you look across the economy more broadly, an inventor really doesn't need the patent as an incentive to invent.  Why? 

  • In many areas, the incremental cost of invention is relatively small.  Engineeres will tweak products without the incentive of patent. 
  • In other industries, the cost of duplication are actually quite high.  One example is the learning curve phenonmenon.  Once a product is invented, it's relatively costly at first to produce the product.  But over time, the inventor figures out how to produce the product efficiently.  When a copyist comes in, however, the copyist is going to have to figure out the production learning curve on its own.  And thus will be initially competing at a disadvantage as compared to the inventor.
  • Customers many also adapt to the original product and get accustomed to the original product before the competitor enters the market.  There is an inertia here.
  • Many products have a very short shelf life.  By the time that a competitor realizes that this is a profitable product, and decides to duplicate the product, it may be too late.
  • Trade secrecy may also make it difficult for a duplicator to figure out the way to duplicate.  Keep in mind that trade secrecy is a two-edged sword: it's a cheaper way to protect the invention but it makes it more difficult for the public to learn how the technolgy works.

What he's learned from handling patent cases:

  • The concept of "inventiving around" or partial duplication is not a congenial concept for jurors.  Jurors think that inventing around is a sneaky thing; it's copying.  This is a reason why patentees like juries.  The other reason is that juries like inventors.
  • Because of the attraction of the patent as a source of monopoly power, there has been a huge proliferation of patents.  And these patents are being asserted and wheeled out as a basis to challenge their competitors.  One of the reasons this has become so intense in the software industry is because of rapid change and high volatility.  A company that is dominant today may be gone tomorrow.  Once you believe that your survival depends on agressive assertion of your patents, that will cause your competitors to react in the same way.
  • Patent trolls – had several patent troll cases.  He likes the patent trolls: they're bucaneers, privateers.  Can be very skillful.  In some industries, it can be very difficult to do a patent search.

He has become very conscious of the difficulty of patent litigation for judges.  He's found patent lawyers that he's dealt with to be very cooperative; it's a very elite, capable bar.  Still, there's a tremendous challenge inherent in litigating patent cases.  How do you explain a mathematical algorithm or software or how components of a handheld device work to a jury? 

  • Give the juries an anchor. He's decided that in every jury case he will appoint his own experts, who will be neutral.  That expert will explain the technology and may also have a view on issues such as prior art and validity.  
  • Instructions. Have the instructions conference before trial and rule on the evidence before trial.  100 page instructions with jargon aren't going to work for a jury.  Rewrite into 10 page instructions without jargon. 
  • Patent Pilot Program: 10 year experiment to see if district court judges who volunteer to take on patent cases can make a different in the patent litigation process.

There are some improvements that can be made in the process, but more fundamentally we need to think about the patent law more broadly.  There are some industries in which patents should have shorter terms or no patents at all.

 Richard Epstein (apologies for this not being nearly as Epsteinian as Richard Epstein actually delivered it)

The question of perspective matters a great deal in how you view these things.  Regards litigation as the tip of the iceberg.  His view is focused on how we can establish rules so that as few cases get to litigation as possible.

So how good is the current system?  Hard to say because we're in the midst of a transition.  In his view, the 1952 patent act, for all its limitations, was a great system. 

How do you design the system and what might ought to be done?

No one thinks that a patent system is as easy to operate as a system for land – although here, you must be careful, because land systems can actually be quite complicated to administer.

Similarly, in patents, applying the patent law to different areas of technology can be difficult.  Even in pharmaceutical patents, there can be a great deal of variation. 

How do you work within the patent system? Two basic moves for a patent system to make:

Basic move is to talk about patent eligibility.  Important because it's designed to weed out broad areas from the patent system so you don't have to do a case by case study.

Then you need to think about obviousness: those things that could be easily duplicated by many individuals ought not to receive patent protection because the gain isn't worth it.

Judge Posner argued that there are many areas in which patent protection is not necessary.  This is an argument for keeping the patent system, not for getting rid of it.  This is because the operation of the patent system itself should weed out these areas in which it's not worth getting a patent. 

Applying this to patent improvements: Gleevik. Indian court basically concluded that there wasn't enough of an improvement over the existing technology to justify a patent.  This is the wrong way to think about it.  If you have something that is patented, and that patent has expired, and you now decide to make an improvement, then your patenting of that improvement will not be successful unless the improvement is sufficiently great for it to be commercially successful over the now freely available product.  In this situation, he doesn't see a strong enough case for changing the way these particular patents operate.

Other kinds of patents: software patents. here, the argument is that the patent thicket creates the kind of blockade due to the defensive use of existing patents.  In his view, the patent thicket argument is severely overated.  This is because each patent represents an incremental gain, and is a substitute for the things that are already outthere.  It's like a superhighway that goes over the street. A new patent thins out the thicket by creating an alternative.  In his view, the novelty outweigs the blockade situation. 

The immense number of licenses and cross-licenses also show that the system is working.  Made even more efficient due to the valuation of pools across the pools themselves.  This leads to more accurate pricing. 

He thinks about patent reform from a perspective of how the patent system has become too lax in its protection of property rights.  Two ways in particular:

1) Injunctions. The decline in the use of injunctive relief in the context of ordinary patent disputes.  It's very difficult to measure actual damages to a patent holder; measuing consequential damages is always hard.  The benefit of an injunction is that it avoids the need to calculate damages.

One issue here: When you're granting injunctions, they shouldn't be thought of only in absolute terms.  Injunctions can be varied in two ways: the can be tailored in absolute terms and they can be married with damages. 

If you don't have these kinds of injunctions, you'll have people flee the licensing system and dare someone to sue them. 

2) Limitations on licensing.  The law of licensing in patents isn't just reliant on consensual notions of licensing.  There are all sorts of restrictions on the ability to license.  These, to him, seem to simply increase the costs of licensing.

On the AIA: Not clear that we want to experiment with rules when the outcome is not clearly positive.  That's what the AIA did.  His basic take is that we had a lot of reform that basically put everything in reverse. 

Post-presentation dialogue: Posner, responding to Epstein's position that a patent holder should be entitled to exclusive right.  A patent is both a property right and a weapon to protect something that you've invented.   

Epstein takes the position that small incremental improvements are either not valuable, in which case inventors will not file for a patent or the improvement will not matter in the marketplace because a non-infringing alternative already exists.

Audience questions: 

For Richard Epstein: what are your views on Judge Posner's view on different term lengths depending on technology.   Response: Epstein is not particularly opposed to different patent terms.  The value of a patent in different areas is going to diminish and thus he doesn't have a strong opposition to this.

Ted Sichelman: Would you talk about the roles patents play in incentivizing pre vs. post-invention activity. 

Posner: To the extent that patents play a role in post-invention activity, this strengthens the case for patent protection. 

Epstein: The stuff that you make commercialization contingent on receipt of a patent: the fact that you're dealing with a patented product vs a non-patented product shouldn't make a difference. 

Mark Lemley: Recent data by Colleen Chien suggests that large numbers of patents are being filed by PAEs and that the suits overwhelmingly get resolved for relatively small amounts of money, much of which goes to pay lawyer's fees.  How do you feel about fee shifting in these types cases?

Epstein: I think this is a serious problem.  I love the German system: it requires the plaintiff to name a number.  You can't go above that.  Then, depending on how much the plaintiff wins of that amount, lets you calibrate the amount of fees.

Posner: The problem with fee shifting in general is that the incentive effects can be ambiguious.  If you think you have a good chance of winning, and there's fee shifting involved, that means that your actual monetary victory is higher than it would actually be, and thus you're going to ask for more than you might otherwise.

Audience question: Would you talk more about remedies?

Posner: There are serious problems with damages remedies.  Many patents are patents on components, not devices.  Trying to value a component can be extremely difficult.  You can do consumer surveys, maybe.  The problem with the injunction is that it can be a disaster.  If you've been found to infringe a component, and now you've been enjoined, that means that your entire inventory is blocked.  You have to throw away a huge inventory or redo your production process. 

Epstein: There is no quesiton that this is a very important difficulty.  There is an advantage to having huge number of components in that you can look at royalty licenses for these components and see the values.  This will help rein in the amount of the damages.  Another thing you can do with injunctions is ask whether this is a marginal component or an integrated component.  In the first case, you would be tough on the injunction while in the second case would not be so tough on the injunction. 

 

 

****

My broader takeaway from Richard Epstein's views on this subject: underlying Epstein's approach to patents is that they are not just exclusive rights, but something like mutually exclusive rights.  In other words, each time an invention is patented, that takes nothing away from what the public already has.  Rather, it instead adds something new that would not have existed but for its creation by the patentee.  For this reason, he is not terribly concerned about the patenting of marginal improvements because if they are truly marginal they will have a disruptive effect on the market because of the pre-existence of a non-infringing alternative.

62 thoughts on “PatCon 3: Posner/Epstein Debate on the Patent System

  1. There have been empirical studies that back Judge Possner conclusion. If you show the ones that back your position then that will be an argument, if not, I think everything will end in an empty abstract discussion.

  2. Nice strawman – the intersection of standards and patents obviously is a slightly different circumstance.

    And yes – you are STILL free to invent a different standard.

    Or did the betamax VHS debate occur before your time?

  3. Whereas a person who tries less to be a smart-@$$ and fails the smart portion would realize that the phrase being turned is what it is.

    You have this powerful addiction to Calvinball face spikes, don’t you IANAE?

  4. I would say that the low level of interferences are the exceptions that prove the rule.

    Whereas a person with a brain would say that exceptions disprove a rule.

  5. Invent your way around it.

    Invent your way around a cell phone communication standard, then we’ll talk. And I guess I mean that literally.

  6. I agree. Patents should be both a carrot and a stick.

    Don’t like what the patent holder is asking for? Invent your way around it.

  7. I’d like Congress to require injunctions in patent cases except if the public interest would be substantially prejudiced. That single fix would solve the damages problem as observed.

  8. An assumption that is proven false every time there is a dispute about about who first conceived of something
    How many interefences are declared, on average, during any given year? Less than 1% of all patent applications? As such, I would say that the assumption holds true quite often.

  9. NWPA,

    There are none so blind as those who wish not to see, and Leopold is right there, proudly brandishing his white cane.

  10. Posner really has no idea what he’s talking about when it comes to patents, why applicants want them, need them, and how they use them.

  11. LB: (boy), try getting your filthy little mind around the fact that Posner has a history of coming up with his models of how people behave and then applying the law based on building his models.

    By the way, (boy), you should read about torture in the 12th century from a legal perspective. It wasn’t torture as far as they were concerned because of the model they build of human behavior. (boy)

  12. “rantings” LB? From your post I can only conclude that you are ignorant. You don’t know what it means to build a model of the world? You don’t know what it means to make “findings of fact” based on that model?

    Well, then I guess you missed the last 2,500 years of human development. I would suggest starting with Plato who would instantly understand my argument.

    And, by the way, LB (boy–yes you lose your manhood. You are know a boy that should be reading and listening and not typing) Posner is famous for building a model of the world of how people behave in economics (if you haven’t bothered to read anything in the last 30 years) and then using that model of people and economic motivation to make findings of fact to interpret the law.

    So sickening dealing with people like you LB. You owe now a big debt to humanity to grow up.

  13. An even better observation from the blind man would be one that a judge who is charted with applying the law should not be one that is making changes to the law from the bench.

    Yes, that is an even better observation. I hadn’t realized that Posner was speaking from the bench during the debate described above. I suppose that changes everything. Thanks, anon.

  14. An even better observation from the blind man would be one that a judge who is charted with applying the law should not be one that is making changes to the law from the bench.

    Watch your step Leopold and don’t trip over the arrows at your feet.

  15. Yes, I suppose it is surprising how often statements regarding whether and how the law should be changed turn out to be “in opposition to the actual law.” Nice observation, anon.

  16. Again your ploy of accuse others of that which you do (in this case, that which you are) is trite and transparent.

    You are the one still running.

  17. You would like it. It has plenty of narscisistic pharma “but-for” elitism and flash of Genius anti-software, you-must-make-patents-hard-to-get stains. Quite in opposition to the actual law of 103 that sought to disband that type of judicial nonsense back in 1952 in reaction to the anti-patent Supreme Court.

  18. You are more than a bit mistaken if you think that Posner’s world view does not affect how he applies the law.

    WAKE UP Leopold.

  19. I would be happy to, NWPA, if I could tell what it was. Posner expressed his opinion about the patent system. He didn’t say a word about that affecting his administration of the law. I don’t understood a word of your rantings about “models” and “findings of fact.”

  20. NWPA,

    You ask Leopold why he does not address the substance of your post.

    For the same reason he does not address the substance of almost anything.

    Leopold would rather jump on Malcolm’s bandwagon, and when was the last time that Malcolm actually posted anything of substance?

    It’s the little circle club of vacuous posting.

  21. I guess electronic products don’t count in your book? Nor the products that you everyday trust your life to.

  22. 6, why do you respond and then not address the substance of what I wrote?

    Tweak? So, new processor design for example can be done by engineers tweaking? After all those plants for making chips are only a few billion dollars. Every engineer can afford one in their backyard.

    Just shameful findings of fact. Posner has lost his way and is now a danger to society.

    I think Posner shows sign of a form of mental illness. He has a complex of trying to solve problems and wants to recreate his minor victory with economics and law. So, now he has created a model whereby if the model were true then some problems could be solved by the application of the law with the findings of fact of Posner.

    Classic psycho.

  23. LB: Posner is the one that needs to get a grip. Get that a judge that just makes up models of the world that suits his armchair notion of the world and then interprets the law based on this model has lost his way.

    A renowned jurist that fabricates elaborate models of the world and then makes findings of fact based on his untested models and contested models does not deserve my respect.

    A judge that has lost his or her way deserves the highest contempt. Those that are given the most power and responsibility by our society and abuse it deserve our highest contempt.

    Get LB that he is fabricating his personal models of the world. Get LB that these elaborate bizarre models are nothing more than a means to violate the law. Why don’t you address the substance of my complaint with Posner.

  24. Judging by how often I hand your head back to you Malcolm, I am most definite that it does not.

    Your head sir,

  25. “And, engineers tweak things when they have access to those things (which costs money) and when they have time (which costs money.)”

    Which is why they usually sell those things they tweaked.

    “My first job was with a tech start-up 30 years ago. I’ve worked at every level of this from hiring people, to taking start-ups inventions, to having inventions taken from my start-up, to being an inventor, and to being a patent attorney. J. Posner’s findings of fact are delusional.”

    Now tell us about your experience in the useful arts, let’s set aside authoring softwares and hiring software authors for a second. Now tell us about your “experience”.

  26. “Tweaking things is their life’s passion. That’s why they’re engineers.”

    You can try to tell this to tar ds all day long, it won’t matter, he’ll still be a ta rd in the morning.

  27. Epstein’s approach to patents is that they are not just exclusive rights, but something like mutually exclusive rights. In other words, each time an invention is patented, that takes nothing away from what the public already has. Rather, it instead adds something new that would not have existed but for its creation by the patentee.

    An assumption that is proven false every time there is a dispute about about who first conceived of something.

    These think-tank libertarian types like Epstein are always a hoot. Whenever they need it to, the magic hand of the “free market” is always there to address any inequities and government shouldn’t interfere. All the problems in the world are the result of lazy people and hippies trying to force government on everyone else when the “free market” should just be allowed to work its wonderful magic. Of course, when Epstein’s clients need a hand, then government action is “good for everybody.”

    He’s a hack when it comes to patents, just like he’s a hack when it comes to the climate change. Nobody could have predicted.

  28. LOL – Leopold,

    That doesn’t work for Malcolm. What makes you think it will fare any better for you?

    Instead of jumping on the Malcolm wagon (as is your want), you would be better served by paying attention to what is going on about you.

    (and you want to lecture NWPA about credibility??? – using Malcolmisms is no way to have any credibility, son).

  29. The fact that not once, not a single person has ever brought forth even a single example shows the power of true illumination that cuts through the massive dust-kicking engaged when certain ideological factions push their agendas.

    HUMPTY DUMPTY HAS SPOKEN! BOW DOWN!

  30. You really need to get a grip, NWPA. Now it’s criminal to have an opinion? Or is just uninformed opinions?

    You call a renowned jurist “boy,” a criminal, and scum, and then have the nerve to talk about his credibility?

  31. Posner has become too smart for his own good, and the good of the judiciary.

    Lady Justice requires blindfolds – not someone who brings their own agenda as to what patents should cover.

    He has far, far, far too much “but-for” mentality to interpret the “law as is” and to be able to keep his desired “law should be” out of his decisions.

  32. “Delusional nonsense Judge Posner. You know nothing about product development, you know nothing about the real corporate world of incentives, and you know nothing about technology.” I agree

  33. Welfare is a property right. Goldberg v. Kelly, 397 U.S. 254 (1970),

    1. Welfare benefits are a matter of statutory entitlement for persons qualified to receive them and procedural due process is applicable to their termination.[2]
    2. The interest of the eligible recipient in the uninterrupted receipt of public assistance, which provides him with essential food, clothing, housing, and medical care, coupled with the State’s interest that his payments not be erroneously terminated, clearly outweighs the State’s competing concern to prevent any increase in its fiscal and administrative burdens.[3]

    The court held in Goldberg that government benefits and entitlements are a type of property vested in the individual, and that therefore the individual has a right to that property which is the same as any other right guaranteed by the Constitution, assuming the individual qualifies for such benefits. Thus, if the person qualifies for food stamps, he or she has a Constitutional right to food stamps in the same way you have a right to possess your own property guaranteed by the Constitution. Do you believe you have a “right” to own a house guaranteed in the Constitution? If so, where and why? Then by that same argument, people who qualify for public welfare have a “right” to those benefits, under the holding in Goldberg, that gives them property rights to their entitlements.

  34. Just one more thing Posner: hindsight. Delusional minds like yours that think they can build models of the world without testing them always way under estimate the effect hindsight has on our perception of how easy it is to invent.

    I can tell you deluded boy that some of the inventions that know I am sure a deluded boy like you would say were obvious were not at the time. I worked on inventing products with many ph.d.’s and one of the best corporate research labs and I can tell you once you’ve been through the process and then see that someone else comes up with an invention—it floors you—you think how in the world did I not think of that!!! And, then in a month everyone that hears of it thinks of that is obvious. But, you and 1000 other people working the space know it was not obvious. You know only in hindsight does it appear obvious.

    But, then deluded boys like you don’t care about reality. Just your private models in your head that go untested–a form of mental illness I think. DSM-V should have a category for judges that build delusional models and then make findings of fact based on their delusions. You appear to me to have a form of mental illness of the hero complex. You want to solve our problems and your ego is so strong that it plots out reality in the form of delusional models that would give you the opportunity to solve the problems in your private delusional mind.

  35. The more I think about people like Posner thinking that he can build his own private model of the world and then impose law based on it is so audacious to make any sane person shake with fear.

    What is the matter with your mind Posner that you believe that you have the experience or knowledge to build a model of how innovation works in this country?

    At least with Lemley it is clear that he is a product of Silicon Valley that mainly implements others inventions, and it is clear that he is an amoral human that believes the end justifies the means.

    But, you Posner–you–what in the world would possess you to build bizarre delusions in your head? Maybe some desire to control the world and solve its problems.

  36. Phhhfffft.

    Your ability to mis-aim is incredible Leopold.

    You don’t really understand the “argument” at all, do you?

    My asking of that question is a counter, an open invitation, to anyone who spews the mantra of some greater good being served with the abolition of intellectual property law.

    The fact that not once, not a single person has ever brought forth even a single example shows the power of true illumination that cuts through the massive dust-kicking engaged when certain ideological factions push their agendas.

    Your invitation here says far more (about you) than you might really wish to say. Once again, you are simply too clever by half.

    Better trolling please.

  37. There is a reason why the founding fathers decided exactly who to give the power to create (that is – to WRITE) patent law – and that such was not given to the judiciary (and its unaccountability).

    This activism to shape patent law by fiat is extremely dangerous.

  38. And, Posner, I would ask you to seriously consider whether or not your behavior is criminal. You building wild models of the world and then trying to impose law based on these wild models that you have built–based by the way on no experience on your part. Findings of fact that are unsupported or supported by unreliable sources.

    That isn’t much different than witch trials is it? Or the Catholic torture of witches in medieval Europe?

  39. You know LB it really isn’t funny. These putz brains think they can just put forth some model of the world or people’s behavior and we are supposed to swallow it. What scum.

    Posner: you have gone from a half respectable human to someone that does not care about the truth. Shame.

  40. Hey anon, you should try your “Show me one advanced country that has abolished IP law” argument on Judge Posner.

  41. Another thing about Posner’s nonsense is that this notion that the products and inventions that have been developed are somehow mere tinkering. Tell you what—boy—and yes Judge I mean you—try to develop a product yourself. It would be great to see your miserable failure and humiliation. It might teach you to respect inventors and engineers. Many of your “tinkerings” are the result of many years of trying and many thousands of failures and many millions of dollars in R&D.

    Just shameful the way people like you behave. You think that you can build a model of how things work in your head without testing the model and then make your findings of fact based on your little delusional model. Well, try boy the scientific method. Test your little model of the world boy and see how wrong it is.

    And, yes, it hurts to call a respected Judge boy, but you have lost all credibility in your model building.

  42. We need the patent system, so that inventors will invent, and so that I can get paid Scrooge McDuck style.

  43. The last paragraph by Epstein, what does it mean to be “tough (or not so tough) on the injunction”? Can someone explain? Thanks.

  44. IANAE: no kidding IANAE. And doctors heal people all the time. So, we don’t need to pay doctors. And, engineers tweak things when they have access to those things (which costs money) and when they have time (which costs money.)

    Seriously, IANAE, try to man up to these arguments. Be a real human and engage the argument. Get that J. Posner is farce of what he was. He is fabricating a narrative that is delusional in every sense of the word. He has no experience in these matters and yet has no problem making findings of fact.

    I have lots of experience at every level of this. My first job was with a tech start-up 30 years ago. I’ve worked at every level of this from hiring people, to taking start-ups inventions, to having inventions taken from my start-up, to being an inventor, and to being a patent attorney. J. Posner’s findings of fact are delusional.

  45. Delusional nonsense Judge Posner. You know nothing about product development, you know nothing about the real corporate world of incentives, and you know nothing about technology.

    I have spent my life working in technology and law. I have been a product manager. I am a patent attorney. I have work for a fortune 20 company. I have been a researcher.

    And in all that time, you’ve never met an engineer?

    Engineers tweak things all the time. Even if nobody is paying them for it. Even if someone else has a patent. Tweaking things is their life’s passion. That’s why they’re engineers.

  46. I can’t even read what you wrote Judge Posner without being angry. What audacity you have to write the nonsense you do. Maybe you should actually work as a real person in business in product development and then rethink your views.

    And, you know, the other thing that you are terrible ignorant about is how much it costs to develop products—not copy. It is very expensive and involves hiring many people and spending years of investment. It is easy to copy products.

  47. >>Engineeres will tweak products without the incentive of >>patent.

    Delusional nonsense Judge Posner. You know nothing about product development, you know nothing about the real corporate world of incentives, and you know nothing about technology.

    What always amazes and shocks me is that you judges make factual findings like this with no evidence and no experience. A corporation will not hire people to make tweaks if there are no patents. What do you think the Apple v. Samsung row is about? It is about copying. And, do you think Microsoft would have hired all those researches without patents? Do you think that any corporation would hire researchers without patents?

    Frank, Judge, you are offensive. You have no experience in this area. I have spent my life working in technology and law. I have been a product manager. I am a patent attorney. I have work for a fortune 20 company. I have been a researcher. Your view are fabricated with no basis in reality.

    You make the classic mistake of looking at the costs of the patent and do not examine the structure that the patent creates.

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