ALL the Facts: PAEs are Suing Many More Companies

Guest Post by James Bessen

Last summer, the President’s Council of Economic Advisers issued a report arguing that Patent Assertion Entities (PAEs) are responsible for a major harmful increase in patent litigation. That report was based, among other things, on roughly twenty academic studies.

But recently, David Kappos, former Director of the US Patent and Trademark Office, declared that, to the contrary, “the building is not on fire,” in an article titled “Facts Show Patent Trolls Not Behind Rise In Suits.” Kappos dismissed the academic studies as “unhelpful” and “badly distorted” because they did not make all of their underlying data publicly available. Instead he relied only on “facts” from a recent paper by three academics, Christopher Cotropia, Jay Kesan and David Schwartz (CKS) as well as a strained interpretation of one finding in a GAO report (which also did not make its underlying data publicly available).

The CKS paper does, indeed, identify a minor error in the President’s report affecting the period from 2010 to 2012. But the paper does not challenge the data showing that PAEs are responsible for a very large increase in the number of companies sued for patent litigation over the last decade. Nor does the paper’s “granular and transparent” data appear to make any significant difference despite the assertion that it calls prior research into “serious question”: CKS find more or less the same numbers of lawsuits as other studies using comparable definitions of PAEs, despite their claims to the contrary. The CKS paper makes a contribution and it is great that the authors are able to make their data public, but it is dangerous for policy makers to base judgments on highly selective “cherry picked” data that cover only two unrepresentative years or to dismiss a large number of careful studies just because they have not disclosed all of their data.

The CKS paper targets the claim in the President’s report that “Suits brought by PAEs have tripled in just the last two years, rising from 29 percent of all infringement suits to 62 percent of all infringement suits.” While this statement is factually correct, given the definition of PAE used, it could be easily misinterpreted. That is because that two year period from 2010 to 2012 also saw a significant change in the law: the America Invents Act, passed in 2011, has a joinder provision that prevents patent holders from suing multiple, unrelated defendants in a single infringement lawsuit. This is important because prior to this change, PAEs tended to sue more unrelated defendants in each lawsuit. In other words, the 29 percent figure for 2010 represented more than 29 percent of the distinct defendants, while the 2012 figure more or less does represent 62 percent of the distinct defendants. The 29 percent figure is too small for an apples-to-apples comparison.

Ideally, one would want to compare the number of unrelated defendants in different years in order to eliminate the bias introduced by the change in the joinder provision. To make a comparison of that sort, CKS collected patent lawsuit data for 2010 and 2012, categorizing each suit by the nature of the patent holder. A patent holder could be: (1) a University; (2) an Individual Inventor/Family Trust (e.g, GeoTag); (3) a large Patent Aggregator (e.g., Acacia); (4) a Failed Operating Company or Failed Start-up; (5) a Patent Holding Company that appears unaffiliated with the original inventor or owner; (6) an Operating Company; (7) an IP Holding Company affiliated with an operating company; or (8) a Technology Development Company (e.g., Walker Digital).

Although CKS are not the first researchers to categorize different types of NPEs, they seem to think no one else has done it correctly. Specifically, they claim that “Our most basic descriptive findings are inconsistent with and call into serious question the summary data provided by RPX, Patent Freedom, and other academics.” Kappos goes slightly further, completely dismissing all previous research studies, calling them “unhelpful at best, and more likely hurtful by representing as ‘data-driven’ a picture that is actually badly distorted.” However, these charges are simply not true.

Although Kappos claims that previous studies lack a “transparent and appropriately scoped definition of ‘patent troll,’” almost all the previous research papers have extensive discussions of how they identify PAEs. Moreover, using these definitions, it turns out that summary statistics from these sources are rather close to the corresponding estimates from CKS. For example, Patent Freedom counts “non-practicing entities” (NPEs) using a definition that corresponds roughly to CKS categories 2 through 5. RPX uses a definition that includes the first five CKS categories plus category 7 plus operating companies that sue outside of their industry (not counted in CKS). Feldman et al. count patent monetizers corresponding to CKS categories 2 through 5, and 7. We can compare the number of NPE lawsuits reported by these different sources to the roughly corresponding category totals reported in the CKS paper:

Estimates of Lawsuits Filed by NPEs

 

Estimate from Other Research

Estimate Using CKS Data For Corresponding Categories

Difference

2010

     

Patent Freedom

595

689

16%

RPX

765

733

-4%

2012

     

Patent Freedom

2,652

2,687

1%

Feldman et al.

2,956

2,710

-8%

RPX

3,054

2,745

-10%

 

Do these differences show that previous research is so inconsistent with the CKS estimates as to call that research into “serious question”? Hardly. First, there is no evidence of any consistent bias in the comparisons. Indeed, while some of the estimates are greater than the CKS estimates, the Patent Freedom data generate smaller estimates than the CKS data.

Second, the differences are small, especially considering that these different researchers use somewhat different concepts of what they mean by “patent troll.” Although reasonable people might disagree about which actors to include in their studies, the studies still provide helpful guidance about trends and the extent of patent litigation. But the crudeness of these measures means that 10 or 20 percent differences are not significant. Such differences are certainly no excuse to dismiss most of the prior literature on this subject.

More important, such differences are not economically important. For example, as we shall see, PAE litigation has increased by an order of magnitude over the last decade. A 10 or 20 percent difference does not change this conclusion. Nor does such a difference fundamentally alter estimates of the economic impact of PAEs. For example, one of my studies with Mike Meurer found that PAEs cost defendants $29 billion in 2011. If the true cost were $26 billion or even $23 billion, this would not change the conclusion that PAEs impose substantial costs on defendants. These findings cannot be dismissed, as Kappos does, just because he doesn’t have access to the underlying data.

CKS have not shown any actual evidence that their data are significantly inconsistent with other studies. Nor have they shown anything that calls other research into “serious question” despite the gravity of that charge. Nor have they shown any evidence of actual bias in the previous research. Kappos and CKS dismiss a large body of prior research without showing any substantive reason to do so. While much of the prior research is based on private data, researchers have checked these data against other sources. What matters in science is not the access to the data, but the replicability of the results. Without actual evidence of a bias or major inconsistencies across different data sets, there is no reason to dismiss these studies.

CKS’s findings do show that the figures cited in the President’s report are misleading, but, as we shall see, that evidence exists in other sources as well. Recall that we need to compare the number of unrelated defendants sued in different years. To address this, CKS count the number of parties to the lawsuit excluding the patentee, the “other parties” to the lawsuit. They find that between 2010 and 2012 the number of these other parties in lawsuits filed by non-operating companies changed little. For example, in categories 2 through 5 the number of “other parties” in PAE suits went from 5,515 to 5,554.

However, the number of “other parties” listed in lawsuit filings is not an accurate measure of the unique unrelated defendants. For example, a parent company will often be listed as a defendant along with one or more subsidiaries. Fortunately, Patent Freedom has done the hard work of tracking down unique operating company defendants (and, yes, our researchers checked their work) as have several of the other researchers.

Figure (Above): Number of operating company defendants in PAE suits.
Source: Patent Freedom

The Patent Freedom counts of unique NPE defendants are shown in the figure along with a trend line. The counts of defendants are much smaller than CKS’s “other parties.”

Several findings are apparent. First, there appears to be a surge in multi-party PAE lawsuits prior to passage of the America Invents Act in September 2011. Apparently, some PAEs wanted to get their suits in prior to the new joinder rules that made it more expensive to sue multiple parties.

Because of this surge, any comparison between 2010 and 2012 is bound to be highly misleading. In the Patent Freedom data, the number of unique defendants actually declined during this interval. But it is equally clear that 2010 and 2011 are exceptions to an otherwise steady, increasing trend from 2001 through last year. Claiming that patent trolls have not contributed to the rise in patent defendants by looking only at 2010 and 2012 is a serious misrepresentation.

Moreover, this finding of a large shift is supported by a large number of studies, including research by one of the CKS authors. Jay Kesan (with co-author Gwendolyn Ball) previously estimated that only 4 percent of patent lawsuits were filed by “patent licensing firms” at the beginning of the decade. To compare, the CKS data find that 21 percent of lawsuits were filed by patent licensing firms in 2010 (categories 3-5 and 7). That is a fivefold increase over the decade. The share of lawsuits grew to 45 percent of lawsuits in 2012, after the change in the joinder rule; if we add individuals & family trusts, such as the notorious GeoTag, then the share rises to 52 percent, over half of all patent lawsuits. So these data show not only a dramatic rise in the share of lawsuits filed by patent licensing firms, but also a large share of the lawsuits come from these parties in 2010 and even more in 2012. Given the earlier paper, does Professor Kesan really believe that this latest paper calls into “serious question” the findings of many other researchers that patent trolls have contributed substantially to the rise in patent litigation?

Nor does the GAO report contradict the basic trend seen here. Kappos asserts that the GAO found no “statistically relevant” change in the percent of lawsuits filed by trolls. Those words are very carefully chosen “lawyer words.” In fact, the GAO found a 40 percent increase in the PAE share of lawsuits from 2007 to 2011. However, that difference was not statistically significant given the small size of the GAO sample. The GAO also reported that the number of PAE defendants tripled during these years and PAEs accounted for half of the large increase in patent defendants during these years. The GAO report is entirely consistent with the other evidence that the share of PAE lawsuits and defendants have been rising.

Finally, the figure shows that the PAE litigation has continued to increase after the America Invents Act, more or less right on the trend line established since 2001. The Act has been touted as the solution to the problems of the patent system; the data from 2013 suggest otherwise.

The bottom line is this: based on the overwhelming weight of the evidence, including that in CKS itself, PAEs are filing dramatically more lawsuits against very many more defendants than they did at the beginning of the last decade. This is true despite the decline in defendants between 2010 and 2012; the GAO report further supports this finding. The conclusion based on all the evidence is that the building is indeed burning. Policymakers are right to take action.

= = = = = =

References

  • Allison, John R., Mark A. Lemley & Joshua Walker Extreme Value or Trolls on Top? The Characteristics of the Most Litigated Patents, 158 U. Pa. L. Rev. 1 (2009)
  • Ball, Gwendolyn G. Ball & Jay P. Kesan, Transaction Costs and Trolls: Individual Inventors, Small Firms and Entrepreneurs in Patent Litigation, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1337166
  • Bessen, James and Michael J. Meurer (2014), “The Direct Costs from NPE Disputes,” Cornell Law Review, v. 99(2), 387-424.
  • Bessen, James and Michael J. Meurer (2014 forthcoming), “The Patent Litigation Explosion,” Loyola University Chicago Law Journal, v. 45, 102-145.
  • Bessen, James and Michael J. Meurer (2013), “The Private Costs of Patent Litigation,” Journal of Law, Economics and Policy, 9, p. 59.
  • Bessen, James (2012), “A Generation of Software Patents,” Boston University Journal of Science and Technology Law, 18(2), pp. 241-61.
  • Bessen, James, Jennifer Ford, and Michael J. Meurer (2011), “The Private and Social Costs of Patent Trolls,” Regulation 34(4), pp. 26-35.
  • Chien, Colleen, Of Trolls, Davids, Goliaths, and Kings: Narratives and Evidence in the Litigation of High – Tech Patents, 87 N.C. L. Rev. 1571, 1572 (2009).
  • Chien, Colleen, From Arms Race to Marketplace: The New Complex Patent Ecosystem and Its Implications for the Patent System, 62 HASTINGS L.J. 297, 328 (2010)
  • Chien, Colleen (2013) Patent Trolls by the Numbers Santa Clara Univ. Legal Studies Research Paper No. 08-13 http://ssrn.com/abstract=2233041
  • Chien, Colleen, 2009. “Of Trolls, Davids, Goliaths, and Kings: Narratives and Evidence in the Litigation of High – Tech Patents,” North Carolina Law Review, 87, pp. 1571-1615
  • Chien, Colleen (2012) Patent Assertion Entities, Presentation to the DOJ/FTC hearing on PAEs. Washington, DC, December 10, 2012. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2187314 .
  • Chien, Colleen (2012) . “Startups and Patent Trolls.” Santa Clara University Legal Studies Research Paper No. 09-12 Working Paper Series, 2012.
  • Federal Trade Commission (FTC). “The Evolving IP Marketplace: Aligning Patent Notice and Remedies with Competition.” March 2011.
  • Feldman, Robin, Thomas Ewing and Sara Jeruss. “The AIA 500 Expanded: Effects of Patent Monetization Entities” April 9, 2013. http://ssrn.com/abstract=2247195
  • Feldman, Robin (2013) Patent Demands & Startup Companies: The View from the Venture Capital Community, UC Hastings Research Paper No. 75 http://ssrn.com/abstract=2346338
  • Jeruss, Sara, Robin Feldman and Joshua Walker. “The America Invents Act 500: Effects of Patent Monetization Entities on US Litigation.” 11 Duke Law and Technology Review pp. 357-389 (2012).
  • Lemley, Mark A. “Are Universities Patent Trolls?” Fordham Intellectual Property, Media & Entertainment Law Journal 63, no. 1 (2008): 611-631.
  • Lemley, Mark A. “Software Patents and the Return of Functional Claiming.” Stanford Public Law Working Paper No. 2117302 Working Paper Series, 2012.
  • Lemley, Mark A. and Douglas Melamed. “Missing the Forest for the Trolls” Stanford Law and Economics Olin Working Paper No. 443, 2013.
  • Patent Freedom, Litigations Over Time, https://www.patentfreedom.com/about-npes/litigations/
  • Risch, Michael, 2012. “Patent Troll Myths,” Seton Hall Law Review, 42.
  • Shrestha, Sannu K. 2011. “Trolls or Market-makers? An empirical analysis of nonpracticing entities,” Columbia Law Review, 110, pp. 114-60.

95 thoughts on “ALL the Facts: PAEs are Suing Many More Companies

  1. Dennis, here’s another classic illustration of the unbelievable unethical reporting by this cartel:

    To argue that the patent laws are grossly unfair to defendants, Lex Machina publishes its research findings implying that the poor defendants only succeeded in 6 out of 997 patent cases in proving a case “exceptional”

    link to lexmachina.com

    Note the intellectual sleight of hand here; mentioning the “997″ judgements, without mentioning who actually won the case, and without mentioning whether a fee request WAS EVEN MADE

    So Docket Reports did an ACTUAL count and found there were 135 cases in the relevant time period where fees were requested BY EITHER PARTY. In 21 of these cases the request was denied. If these numbers are corect, then 21/135 or 15% of cases were “exceptional,” which if anything is way too high given the normal understanding of that term.

    You can read the reporting on this mischief here, which, in typical fashion is being promoted as gospel everywhere:

    link to techdirt.com

    The distortions being spun by this group are amazing. But the press, politicians and public are being told that Judges are not doing their jobs based on yet more false data from the infringer cartel.

    1. The point is still a valid one, even if the denominator was inflated to include patent cases that didn’t belong in the sample. It is very difficult to win an attorneys’ fees motion as a defendant in a patent case, and that’s the subject of the Octane Fitness case before the Supreme Court.

      The reasons for this difficulty are, really, quite simple. The standard is exceedingly tough, and the requirement of a frivolous claim is a deal killer for almost all district judges. But that’s only part of the story. Most district judges do not have confidence in patent law, in part because in non-forum shopping districts, patent cases represent a very small percentage of their docket. The law clerks have to work very hard just to learn the legal basics to confront issues in the case. This fosters insecurity in patent law, which is furthered in no small part by the Federal Circuit’s historical practice of reversing close to 50% of district court claim constructions, and its own ability to promulgate standards that provide any predictability in litigation. The result is that a judge issues a decision in a patent case is not very confident of the outcome’s sustainability, even if he or she thinks it was the right result. And a judge that doesn’t feel like an expert in a subject area is, unsurprisingly, not confident he or she is qualified to declare a case frivolous.

      So I suspect that if the standard were lowered, you’re still going to see fee petitions often rejected.

  2. I do not doubt that PAEs are suing on a large number of patents against a large number of defendants. How is this possible? Are all these patents on pioneering inventions that were widely adopted by industry? I sincerely doubt it. But their presence, I submit, illustrates that their must be a fundamental flaw in our current patent system and I think it relates to broad patents on narrow inventions such that the claims literally cover results — any way of accomplishing a result regardless of whether the infringer is using the invention disclosed or it equivalent. (Other potential problems could be that the claims are covering the earlier inventions of others, or that we have late claiming run amok.)

    Let me illustrate why I think the problem relates to overbroad claims. Take the Selden patent as an example. link to en.wikipedia.org. According to the Second Circuit, the art had long desired a land locomotive, the problem being the weight of the engine. Selden observed a Brayton gasoline engine at a trade show. But even it was too big for a land vehicle. Seldon adapted the engine to be smaller and lighter, and filed an application to cover a land locomotive having a liquid hydro-carbon engine. After 16 years of pendency, the patent issued in 1895, well after the car industry had been established, but using a different kind of engine invented in Germany. link to google.com
    Henry Ford challenged the patent. The district court held the patent to cover every gasoline-engine powered car. The second circuit overruled, confining the scope of the patent to the particular engine disclosed regardless of the broad claim language.

    The public reacted with disgust that the patent office would issue such a broad patent on such little disclosure, but I submit, with non chemical patents, it is the rule today that one can broadly with very little disclosure. The problem of the Selden patent is pandemic, and its results are seen in the growing PAE problem.

    But in the end, what is the difference between a combination claim to a gasoline engine and other elements defining a car and combination claim that claims any engine using gasoline in combination with the other elements. Clearly, the vice in Selden claim was that it was functional at the point of novelty and the remedy was the narrow construction. Today, we recognize the vice as functionality at the point of novelty and the solution as 112(f).

    But now lets pause and consider that the Federal Circuit has been chary about consider claim covered by 112(f) when the magic words are not chosen. May I make a suggestion and it is this: treat all claims functional at the point of novelty as covered by 112(f), and functional would include broad, generic terms that cover more than what was disclosed.

    This would not totally solve the problem of broadly worded claims that have very small scope. Such claims create a zone of uncertainty all by themselves just as Halliburton described. We need to stop issuing such claims regardless of 112(f), and that is one of the reasons that I would like to repeal 112(f). I would prefer claims broader than the disclosure, that cover the independent inventions of others, to be invalid under 112(b). Such a change would, over time, all but eliminate the PAE problem.

  3. Shouldn’t the data have been normalized in some way by the increasing number of patents that are granted every year?

    1. A better norming factor would not only take into account the new patents granted, but would also take into account all of the existing patents (in essence, multiply your point by three) – but such objectivity would wet down the dust and squelch the mob mentality about the evi1s of patents and the evi1s of enforcing patents.

      It would also be wise to keep in mind who coined the term “Troll” and why they coined that term (it was not for the public’s benefit).

      But if viewed through such an objective lens, the witch trials will lose their ‘allure.’

  4. Wow, so Judge Michel writes a good amicus brief for Alice. And here on Patently-o we have to read the a paper that is clearly not even fit for the bathroom.

      1. Uh, Nick, you do know that the files you linked to do not even begin to show that Bessen was paid by Cisco, for the above paper or for anything else, right?

        I’m not a California attorney, but they do still have defamation as a cause of action out there, right?

        1. Let me spell it out for you: Bessen subsidizes RIO with Cisco stock, and he’s been doing it for … years. In fact, he apparently own(s/ed) thousands of shares.

          So let’s ask a few questions:

          which fortune 500 complains about patent owners hurting their financials all the time?

          which “researcher” gets paid by RIO according to how well that company does?

          I think the alignment of interests is pretty easy to see. This is a person with a significant stake in a company that he regularly defends by putting hit pieces out on patent owners. In fact, if you will recall his “research” he specifically points out the drop in stock price as one of those fundamental “direct” costs imposed by “trolls.” If the perfesser insists that stock price change is an indication of a direct effect, then our friend is similarly “directly” paid the same way – through maintaining their stock price.

          1. I think the alignment of interests is pretty easy to see.

            I’m glad to see that you’re smart enough to back off of the direct accusations, Nick.

            Actually, the only thing that’s easy to see is that you’re quite willing to go sleazy to protect your interests. That Bessen once owned $23K in Cisco stock doesn’t really demonstrate much of anything.

            1. LOL – now that’s some nice eye-closing there Leopold, but then again, that seems to be your specialty on selective grounds (just like telling only certain – and the wrong – people to just shut up).

          2. JNG the alignment of interests is pretty easy to see.

            Actually it’s not easy to see at all. All you’ve got is a bunch of weird speculation based on the fact that somebody once owned $23 stock in a Fortune 500 company.

            Let’s say Bessen still owns that stock. He writes an article that correctly documents a trend in the number of infringement lawsuits filed by the shell companies of patent attornyes who have previously been sanctioned and/or slapped down for asserting junk patents or otherwise behaving badly in federal court. Then what? How in the heck does that equate with “Cisco buying an article” from Bessen? You think the stock price goes up as a direct result of that article in the same way that a company’s stock price goes down when a junk patent-wielding PAE starts making noise about sueing that company or actually files the suit? Seriously? And even if that was the case, how much money are we talking about here?

            Bottom line is that we’re just seeing the usual false equivalence from the patent teabaggers. In part, this is because they assume that everyone is exactly like them: grifters driven purely by self-interest.

            putting hit pieces out on patent owners

            You want to see a “hit piece”, Nick? There’s a great one by Judge Patel I can show you. She takes this patent attorney to the woodshed. It’s pretty incredible. Even better is that the patent attorney in question was presented with the document in question and just blew it off. Absolutely no remorse or shame. As if the behavior described by the judge was perfectly normal. Go figure.

        2. Leopold,

          I think you want to be careful throwing around ‘defamation’ action hints given who your ‘friends’ are on this blog are and what they do on a regular basis.

          1. I think you want to be careful throwing around ‘defamation’ action hints given who your ‘friends’ are on this blog are and what they do on a regular basis.

            Would you care to be more specific, anon?

          2. I think you want to be careful throwing around ‘defamation’ action hints given who your ‘friends’ are on this blog are and what they do on a regular basis.

            Why should he be careful, anon? Are you going to escape from the asylum and pee on the side of his house?

      2. JNG –

        The filing shows that J.Bessen’s organization (Research on Innovation) received $23,000 in contributions — 100% of that funding came from J.Bessen himself. I don’t see how this supports your conclusion that Bessen is some kind of puppet for Cisco or other large corporations.

        1. I read what you say, and I might agree if it were a random or one time thing.

          But you can see from his filings over the past 10 years that Bessen’s contributions come primarily from “donating” Cisco stock, year after year. In fact he repeats this same exercise, to “fund” his organization, which, as you can also see, consists entirely of paying himself.

          Let’s revisit the facts: he writes and complains extensively that patent holders cause “direct” damage by impacting stock prices. He has a huge investment in Cisco, a company whose stock is directly impacted by the same thing he complains about. I think that might be considered by most reasonable persons as a clear path to bias.

          He has tied his fortune to their performance, clear and simple. How can one be ethically suggesting they are doing “objective” research about patents/patent holders when they have a clear self interest to maintain the value of an ownership interest in one of the parties under discussion?

          I have no problem with Mr. Bessen owning Cisco. He can write about the patent “trolls” too if he wants.

          What I do have a problem with is his not telling the public honestly in his work that he has a vested interest in the outcome. You and I both know that no objective entity (i.e., a Judge) would keep stock ownership in a party to a lawsuit they were covering. It would be cause for removal or censure.

        2. Dennis, one last point

          You may not be in a position to comment on the unethical “stink” in all of this, but that doesn’t mean I won’t point it out. The whole “WHY ARE THERE SO MANY PATENT LAWSUITS” rhetoric from the fake academics is about as believable as them asking why you are wet from walking in the rain after they’ve stolen your umbrella.

          The present situation was brought about precisely by the likes of Lemley, Bessen and similar patent squatter defenders who, eager to get more of the legal fee pie, whined incessantly until the courts reduced the threshold for DJ actions. Up until that point, and for more than 25 years, there was a reasonable give and take between parties who had opposing views on a patent, and it rarely required court intervention. As this article aptly points out:

          “This new standard dramatically lowered the threshold for such jurisdiction so that most patent demand letters, drafted in accordance with traditional practices, will create declaratory judgment jurisdiction.”

          link to iptoday.com

          so what is the primary advice this reasonable attorney gives to patent owners?

          “1. FILE SUIT PRIOR TO SENDING A DEMAND LETTER”

          Anyone with an ounce of ethics or integrity knows that the present situation was caused by patent defense litigators looking to save their starving practices when the economy was in a toilet (2007 – 2008). Medimmune was their gift from the SCOTUS; they no longer had to wait for a lawsuit… they could just …make one up!

          They remind me of rats eating at the insulation of a house then complaining about how cold it is getting.

          Now that they got the natural result of their heart’s desire, they blame everyone but themselves, gin up hyperbolic boogeyman stories about unreasonable patent owners, and collect big fees conducting studies pretending to be pontificating about how mysterious it is that there is this explosion in patent lawsuits.

          At best case these “academics” are fools; at worst, grossly unethical.

  5. I’ve said it before but it’s worth pointing out again: the fascinating thing about defenders of patent trolls is that almost invariably invested, directly or indirectly, (wait for it) in the “business” of patent trolling. They know that this makes them look like a bunch of entitled rich whiny lawyer crybabies and so they invoke a classic rhetorical strategy of accusing everyone of their critics of being just as “biased” as they are.

    Of course, anybody who’s paying even the most half-hearted attention to the evolution of the patent system over the past ten or fifteen years can see that these assertions are just a pathetic attempt to wave off any criticism or study of what’s happening.

    Here on planet Earth, universities and “think tanks” and their employees perform research and publish their findings. In some cases, these institutions accept support from people who might have interest in the outcome of that research. But unless the outcome is genuinely controversial — as in “this is stunning and beyond what any informed person would have considered to be the actual state of things” — there usually is no reason to dismiss the findings as paid-for hackwork …. unless of course you don’t want those findings to be discussed, period.

    Is anyone surprised that there has been a great increase over the past decade in the number of people being sued by PAEs? Anyone? Of course not. Would people be surprised to learn that the major reason for this is not that some bottom-feeding patent attorneys have realized that there is money to be made by simply “monetizing” leftover junk (and doing nothing else), but rather that the increase is caused by a huge increase in the number of “patent squatters” who intentionally infringe valid patents? I think people would be surprised to learn that. Thankfully, there’s no evidence for that. It’s just the typical self-serving baloney we hear from patent trolls.

    The patent trolls won’t ever face the music because they know that the public disgust with the patent system is just as much about about them as it is about the incredible mind-numbing volume of junk patents being granted across the board (to both patent trolls and to the “big corps” who battle each other as well as the trolls). That’s why all the trolls’ eggs — the awesomeness of every patent, the PTO’s conspiracy to deny them their rights, and their “right” to shakedown the “patent squatters” (hilarious term, by the way!) wherever they are hiding — are in the same basket. They’ll never give an inch on any of these things.

    More PAE suits? That’s good! Corporations are stealing ideas from “little guys” (who also are very wealthy, but so what? Are you a commie?). More junk patents being granted than ever before? Good! That’s all healthy innovation and they are all presumed valid so stop criticizing them.

    We can only take solace in the fact that judges and lawmakers are finally starting to see the light and the best lawyers with the best arguments will cease stooping to help these bottom-feaders grift off a system they’ve been milking for far too long. For instance, I really did enjoy reading the excellent reply brief recently filed in the WildTangent case on January 9. It’s nice to see some really smart professionals doing a great job and doing their part to get us out of the present mess.

    link to scotusblog.com

    1. Sorry but you are wrong NWPA.

      Malcolm is not just opinionated. That would be one thing. Opinions are not bad in and of themselves. Everyone has them. But it is what he does with his opinion – and what he does NOT do with the simple questions asked of him – and his utter lack of a sense of shame or intellectual honesty that sets him apart.

      RQ/HD is also driving an agenda to deprive others of rights. He leaves behind and untouched the first principles of law and refuses to acknowledge facts in order to target a specific art field and to remove that art field from patent eligibility by WHATEVER means possible. He sticks his head in the sand and whips out his vapid AOOTWHD (Accuse-Others-Of-That-Which-He-Does).

      His catcher in the rye self glorifying view of his ‘profession’ justifies (at least in his own mind) the complete lack of any responsibility for behaving ethically himself.

  6. I started digging into this article and skipped over the author name. About half-way thru my skepticism started to grow.

    I scrolled up to see that the author is Prof. Bessen.

    I stopped reading the post. After the “$29 Billion” article that he co-authored, he has no credibility with me.

  7. I find the stated assumption that enforcement of patents harms the people in general, without any qualifiers, unnacceptable. We all will agree that enforcement of invalid patents does in fact do harm. We all will also agree that patents with broad/indefinite claims create a zone of uncertainty that harms. I would like to see a link between one of these known problems and PAE before we assume that enforcement causes public harm. Otherwise, the accusation against PAEs is a smear against anybody enforcing patents even where the patents are valid and the claims are not indefinite.

    We really need to fix the patent system in at least two ways, IMHO. The first and most important is the fix claims so that they are both clear and definite.

    But second, I think we need a new standard of invention to replace 103 — a standard that is objective and that relates to functionality as opposed to anything that is unobvious. If the claimed invention provides new functionality, different in kind and not degree, not in public use and not taught by published literature, one should be able to get a patent.

    Asking whether any difference is obvious without regard to what kind of difference, does not ask the right question. The difference has to be with regard to functionality. If the functionality is new, different in kind, the next question should be is whether that functionality is taught by the published literature — a variant of TSM but limited to publications, period.

    1. Ned casually states “We all will agree that enforcement of invalid patents does in fact do harm.

      I have not yet met an infringer that did not claim (and swear) that the patent they were infringing was valid.

      Then he commits the very same Leopold joke about confusing breadth and indefiniteness…

      You really need to recognize the propaganda of the Infringers’ Rights crowd, Ned.

    2. Ned: I find the stated assumption that enforcement of patents harms the people in general, without any qualifiers, unnacceptable.

      Where was that assumption stated? What was the context in which saw this assumption being stated?

      We all will also agree that patents with broad/indefinite claims create a zone of uncertainty that harms. I would like to see a link between one of these known problems and PAE

      Ask yourself this simple question, Ned: in which field is it easiest to obtain broad/indefinite claims and “monetize” them? In which fields are PAE’s most active?

      There’s your “link.” For cripesake, Ned, your PAEs are right here in these threads day-in and day-out fighting every attempt inject some sanity into the types of patents that are being granted. Why do you think that is? Altruism? jeebus.

      1. MM, you and I have both noted the PTO is issuing a large number of software/business method patents that are on their face obvious. Independently of this, the PTO is generally issuing a large number of patents that have indefinite claims. But you and I also know that the vast bulk of these indefinite claim are associated with software and business method patents. The PTO and the law are primarily to blame. We need a fix.

        1. The PTO and the law are primarily to blame. We need a fix.

          Sure, but you must understand that once you (or anyone else) have identified a problem with the patent system that leads to too many patents (vague, indefinite, ineligible, obvious, whatever), you’re “anti-patent” and “anti-inventor” if you want to “fix” it. And by “fixing it” you’re just helping” big corp” and other “patent squatters” steal other people’s rightful “property.”

          Any of that sound familiar? It should. That’s the PAE script.

          Never mind that these accusations of being “anti-patent” are incredibly silly, right up there with the gun nuts attacking everyone who thinks just maybe we can do a little more to regulate the sale and use of firearms in this country. The other obvious parallel is that many gun nuts walk around with a fantasy of using their guns to heroically defend their property against some “unlawful trespasser” but instead manage to kill innocent people on a daily basis.

        2. Ned,

          While you are busy writing love letters in the sand, the simple questions I have asked of you remain unanswered.

          So here are a few more: why are you stalling? Why do you run from every conversation just when the conversations get good? Is it difficult to breathe with your head so buried?

          Don’t like these? How about answering questions related to actual cases then? Without the guile and deception please.

          Start with the logic (and no, not any dust-kicking) on the Nazomi case and the ever-so-clear parallel to the Grand Hall experiment.

      2. Malcolm claims “our PAEs are right here in these threads day-in and day-out

        What? Where is your proof of such a statement? I don’t even see any polls on the matter.

        Further I will remind you that I was the first to affirm that my posts are completely personal in nature and fully in accord with the posting rules.

        Funny, when I asked several others (including you) to make them same affirmation,
        You.
        Ran.
        Away.

    3. Replacing 103 with a standard that looks at whether the invention provides a new functionality seems totally absurd. So inventor #1 develops structure #1 that performs a new function, and then inventor #2 comes along and develops structure #2 that performs the same function but is wildly different in structure and far more efficient than structure #1, but only inventor #1 can obtain a patent? What incentive is there to improve on a device that performs a certain function when such improvement would never be patentable? Wouldn’t this system you propose essentially allow an inventor to monopolize a function, which arguably provides far broader protection than the current system?

    4. Ned states “Otherwise, the accusation against PAEs is a smear against anybody enforcing patents even where the patents are valid and the claims are not indefinite.

      Similar to the new thread on tax treatment is the notion that the law provides a presumption of validity to granted patents. One must presume that a granted patent is valid and the claims are not indefinite – by law.

      Yes, I do not doubt that there are patents that can (and should) be challenged – on any number of grounds. And we have plenty of mechanisms to do that.

      But that is a far cry from unilaterally declaring patents are bad and that the proscribed legal path for enforcing patents (heavens to betsy, actually filing suit) is de facto bad – as this piece of CRP propaganda thread simply ASSumes and implicitly takes for granted.

      .

      As to your ‘functionality is new’ thoughts… I will remind you that the function in Diehr itself – curing rubber – was not new, that using the Arrhenius equation to do so was not new, that thermocouples provide a continuous data stream was not new. The “Point of Novelty,” to co-opt your use of the phrase, was the software control of the process.

  8. Who is being sued matters not.

    How many are being sued matters not.

    What percentage of suits are by PAEs matters not.

    The Constitution, our laws, our judges, and our juries decide which suits have merit … and which do not.

    If they do, the infringers should have to fairly and reasonably compensate the patent owners.

    If they do not infringe, they should not.

    The problem with Mr. Bessen and other misguided and misinformed folks like him is that the building they think they see burning … is not the building they should be paying attention to.

    1. Shorter Ind Inventor: “You guys are dumb because … Constitution!”

      Who else haven’t we heard from? I guess we still haven’t heard the troll defenders tell the critics to shut up and use the “official channels”. But the day is young!

      1. Malcolm self-fails with “Shorter Ind Inventor: “You guys are dumb because … Constitution!”

        What he (obviously) intended as a slam quite backfires as he should know that all law must find its roots in the Constitution.

        Maybe he needs a primer on what this country’s legal foundation means. I heard that some bonafide award winning researchers have expounded on the nature of this country’s patent system at the RQ/HD’s sockpuppet spawning ground of PatentDocs (hint: search the site for Dudas).

        LOL – what are the chances that Malcolm will inform himself instead of just hurling insults at such First Principles?

  9. “Claiming that patent trolls have not contributed to the rise in patent defendants by looking only at 2010 and 2012 is a serious misrepresentation.”

    yup, keep looking for the right “cause” Prof Bessen – we all know who pays you to come up with the answers

    it would be too painful I suppose to accept the simpler explanation, namely the number of defendants grows because defense counsel gives bad advice and encourages more and more serial patent squatters

    Oh, and if this is a “serious misrepresentation” then I suggest there isn’t a rug large enough to sweep this $29 BILLION worth of “real” misrepresentation under:

    link to papers.ssrn.com

    “… this paper estimates the direct costs to defendants arising from NPE patent assertions. We estimate that firms accrued $29 billion of direct costs in 2011.”

    Looks like someone made another stupendous EXCEL error

    1. Here’s an idea for you, JNG: hire some clown to come up with some data that proves that “patent squatting” is a really important problem that the public needs to address because people like you aren’t getting their fair share of the wealth.

      Seriously. Wouldn’t that be a really helpful paper for you to cite to, JNG? Maybe you can share with everyone your own income and net worth so we can all get some sense of the terrible injustice that’s taking place when you are forced to sue someone and watch your patent get flushed down the toilet in court. Obviously that’s just one data point but possibly representative of the (gag) class of “small inventors” on whose behalf you speak so persuasively.

    2. keep looking for the right “cause” Prof Bessen – we all know who pays you to come up with the answers

      Who pays him to come up with the answers? Please finish the thought, JNG, unless that’s too difficult for you.

      1. Malcolm (again) demanding answers from others (and gets it – right between the eyes, see below) – and yet basic simple questions of law and fact that go to the heart of the software patent discussion remain asked of RQ/HD remain unanswered.

        (let’s all act surprised)

        1. Oh lookie! The President and Secretary of the JNG Fanclub showed up to cheerlead!

          Malcolm (again) demanding answers from others (and gets it – right between the eyes, see below)

          I don’t see the answer to the question that was asked. I see a repeat of the same baloney. Maybe you can answer the question for JNG since the cat seems to have his tongue. Who is paying Professor Besson to “come up with answers”?

    3. JNG –

      I don’t actually know who pays J.Bessen to write this?

      Am I right that your substantive disagreement is basically that the cost “imposted” by Patent Trolls is justified (since they invented & got a patent). Or do you argue that the $29B figure is also wrong?

      1. Greetings Dennis!

        I don’t think I have to “argue” the $29b number, its so farcical that even Bessen no longer tries to defend it.

        Bessen tries to publish under this facade of “scholarship” – but a simple review of his citations shows its the same corporate lackey group engaging in mutual cross linking to make themselves appear “scholarly” – Look at them:

        Lemley is a paid hack for a number of large tech companies.
        link to durietangri.com

        Colleen Chien is sponsored openly by anti patent interests:
        link to scu.edu

        Feldman’s org is subsidized by a number of industry groups, including that lover of antipatent rights, the National Venture Capital Assn…, prominently listed on many of her “publications”

        Its one giant ….circle jerk. Again, they can buy all the veneer they want, it won’t cover up their spots.

        As to who pays Bessen? The “Research on Innovation” – that esteemed institution on a dirt road in Harpswell “Maine” under which he publishes his work is listed as a “non profit” – true, they don’t list their list of sponsors openly as they probably should, but a look at the list of their publications and papers tells you all you need to know about who is paying their bills. Where’s there’s smoke, there’s fire. Its not people who respect patent rights, its large corporate interests trying to pay their way out of wholesale daily infringement. He’s free to publish his list of sponsors and donors if he thinks it shows otherwise.

        1. JNG: The “Research on Innovation” – that esteemed institution on a dirt road in Harpswell “Maine” under which he publishes his work is listed as a “non profit” – true, they don’t list their list of sponsors openly as they probably should, but a look at the list of their publications and papers tells you all you need to know about who is paying their bills.

          Huh. Seems like JNG is still having great difficulty following up on his original thought.

          Does Research on Innovation take PayPal? I know plenty of “non-corporate interests” who’d love to contribute if it helps shove a giant permanent sock in the mealy mouth of the typical patent teabagger.

          Of course, JNG would have you believe that his critics are all “jealous” or “patent squatters” because we find his, um, business model rather pathetic (to say the least). Thank goodness he’s not biased though or part of some “circle jerk.” No, he’s like some great Robin Hood prancing around in his own li’l Sherwood Forest, the borders of which he dreams up and re-draws ad infinitum depending on who he thinks he might catch “trespassing” there. So cute! Why can’t we all learn to love him? Then he won’t have to try to obtain discovery on us and get slapped down by a very well-regarded jurist. Isn’t that right, JNG?

        2. JNG: large corporate interests trying to pay their way out of wholesale daily infringement.

          Translation: James Bessen is taking money that should be given to me instead!

          ROTFLMAO

        3. Colleen Chien is sponsored openly by anti patent interests:

          First question: so what?

          Second question: what precisely is “anti-patent” about not being fond of, e.g., a patent attorney who files junk claims and threatens people with them? Where does the “anti-patent” part come in?

        4. Lemley is a paid hack

          Exactly what is he paid to do and why is he being paid to do it?

          You behave as if he’s being paid to provide arguments and data that will be used by jurists and lawmakers to negatively impact patent trolls and the ability of PAE’s to extract money from people who actually make stuff.

          Can you tell us why people should actually care that he’s being paid by someone to do this? And by “people” I don’t mean people that want to get in on the trolling game of, e.g., writing claims that they can use to sue Netflix. I mean normal people who work for a living. Why should they care that Lemley is being paid by, say, a bunch of big competing companies and a lot of smaller companies to punch a big hole in the sickly inflated tire of the US patent system?

          Really curious about your answer. I sure hope it doesn’t involve some stale baloney about Tommy Edison.

        5. The “Research on Innovation” – that esteemed institution on a dirt road in Harpswell “Maine” under which he publishes his work is listed as a “non profit” – true, they don’t list their list of sponsors openly as they probably should …

          Pretty slimy, there, Nick. What do you mean “as they probably should”? Are you suggesting illegality, or just impropriety?

          In fact, the tax paperwork for Bessen’s foundation that you provided shows that the only “sponsor” in 2011 was Bessen himself. Is that the best evidence of wrongdoing that you’ve got?

          1. Leopold (apparently still cheerleading Malcolm) asks “Are you suggesting illegality, or just impropriety?

            I am shocked – why do you reach for these two concepts when the ‘good of all’ concept is right there at hand? Shouldn’t all information be freely available? Do you have something to hide? Why do you accuse Nick of ‘being slimy’ when you remain perfectly quiet as the government wants unfettered access and publication of personal property owners data?

            There is something slimy alright: double standards for selective items coinciding with ulterior motives.

            And open your eyes to another point – the evidence provided was not for ‘wrongdoing.’ (nice dust-kicking) – it was for showing a causal link that was asked about.

            More of your asking the wrong people to shut up Leopold – that this aligns with RQ/HD is not surprising.

            1. I am shocked – why do you reach for these two concepts when the ‘good of all’ concept is right there at hand?

              Uh, because Nick felt it necessary to put “non-profit” in quotes and explicitly said that Bessen or the non-profit corporation didn’t do something that he “should” have. You’re not very bright, are you?

              Shouldn’t all information be freely available?

              Huh?

              Why do you accuse Nick of ‘being slimy’ when you remain perfectly quiet as the government wants unfettered access and publication of personal property owners data?

              What on earth are you babbling about now?

              More of your asking the wrong people to shut up Leopold…

              Shut up, anon.

      2. one last comment Dennis: I have no trouble with people getting paid for their work, in fact, its the cornerstone of patent rights as well

        what I do think is wrong is the complete lack of transparency and ethical fog we see on behalf of certain”academics” in this country, who are taking in private interest corporate $$ in one hand and then pushing out supposed “objective public interest papers, that are in fact riddled with gross errors, questionable methodologies and biased/sponsored results-oriented analysis

        just read this little reality disconnect in his note above:

        “…provided by RPX, Patent Freedom, AND OTHER ACADEMICS”

        Wow, the “Patent Freedom” group, which charges subscribers to try and attack patent holders, is elevated to the lofty category of “academic” ! The reality distortion field is strong with this group.

        If “Research Innovation Org”, Lemley, Feldman, Chien and “Patent Freedom” publishing their daily, predictable, one-sided anti-patent research are “academics,” I submit we need to change the definition or alert the rest of America to their bastardization of the term.

        1. Academics has long struggled with the taint of how they police themselves and the heavily socialistic leanings of what is deemed not merely acceptable, but dogmatic in their ranks.

          For all the ills that accompanied McCarthy, historical records do reveal one thing that he was correct on: an active and highly successful infiltration of communists into the academic world. The anti-property leanings have been passed on generation to generation as part of the lack of meritocracy in the academic world and the ‘peer-review’ groupthink indoctrination.

          There is no doubt that the patent system is under attack from both the Left and the Right.

          Let RQ/HD let loose another stream of obscenities if I dare post the confirming view of others on this position. Let him kick up dust to try to hide this basic fact. Let him stick his head in the sand and ignore reality.

          1. For all the ills that accompanied McCarthy, historical records do reveal one thing that he was correct on: an active and highly successful infiltration of communists into the academic world.

            Dennis, you better check under your bed tonite!!!

            1. LOL – a smarmy reply does not change historical facts Malcolm.

              Try a little actual research in the matter instead.

              Or maybe, you can just ask Jane.

        2. just read this little reality disconnect in his note above: “…provided by RPX, Patent Freedom, AND OTHER ACADEMICS” Wow, the “Patent Freedom” group, which charges subscribers to try and attack patent holders, is elevated to the lofty category of “academic” ! The reality distortion field is strong with this group.

          You really are a tool, aren’t you, Nick? The little “reality disconnect” you mention is a quote from the CKS paper, not from Bessen. CKS is on your side, remember?

          1. I don’t know what you mean by “my side” – last time I checked, none of these guys was being paid to support patent inventors, instead of tearing them down. AFAIC they’re part of the same club. The fact that the “Patent Freedom” group is described as academics by others as well just proves my point further about how far the distortion field has reached.

            1. The fact that the “Patent Freedom” group is described as academics by others as well just proves my point further about how far the distortion field has reached.

              No, your “point” was that Bessen was disconnected from “reality,” and nothing you’ve said proves that point. All you’ve done is sling mud and innuendo. Which proves a point, alright.

            2. All that you have done…

              Sort of like when Malcolm blatantly 1ied and said that he did not engage in innuendo (right after engaging in innuendo) and you upvoted that,…

              …right Leopold?

              Careful with those points, my friend – you and your friend that lives in the glass shards ‘palace’ are bleeding all over the place.

    1. Quite the echo chamber

      So says the blogtroll who spent years here hiding behind an army of sockpuppets who echoed his views and joined him in insulting every commenter he disagreed with. And pretend that he wasn’t doing that right up until the moment he was outed, of course. And then he blamed everyone else for his own behavior (gee, that sounds familar …).

          1. Your reading ‘skills’ still svck 6.

            Anthropomorphication

            Just because a word is used that humans also use does not mean that the word means the same in the two different contexts.

            Machines really do not think. Nor do they really fall asleep and dream.

            And machines and manufactures are still explicitly patent eligible categories.

            Wake up son.

  10. I can’t find where these reports compare the number of suits to the number of issued patents. If suits go up and the number of issued patents also go up, is that a problem?

    If it is a problem, I can’t find where these reports identify a root cause. If the number of suits is going up what is causing it? Has the value of patents been damaged (eBay, KSR, AIA, etc) enough that inventors cannot get funding and are forced to enforce their rights? Perhaps infringers fearlessly flood the market with infringing products forcing the inventor to litigate because patents are very weak.

    1. PM Perhaps infringers fearlessly flood the market with infringing products forcing the inventor to litigate because patents are very weak.

      And there it is, like the crowing of the rooster at dawn: it’s the accused infringer’s fault that they are being sued!

      Gosh, that didn’t take long. Hilarious.

      If suits go up and the number of issued patents also go up, is that a problem?

      I suppose one’s answer might depend on whether one is directly benefitting from the increased number of patents and patent lawsuits.

      What percentage of the population of the United States do you suppose benefits most from this trend? Take a moment to think about the answer.

      Has the value of patents been damaged (eBay, KSR, AIA, etc) enough that inventors cannot get funding

      Let’s see if we can follow this argument. The value of patents is “damaged” by reasonable changes in the law so … people are forced to file lawsuits asserting that their patents are super broad and awesome so fork over millions of dollars. Hmm.

      And then there’s this business about “funding.” Funding to do what? You think the patent attorney who files a patent on a new method of “ranking movie choices in a list” really just wishes that he could start his own movie-renting business but boohoohoohoo he can’t because … patents are damaged so, oh well, he’s forced to sue NetFlix? That’s pretty funny.

      If you’ve got a patent-worthy idea and you’ve hired a competent attorney to protect your idea, you’ll get your funding. What happens next should be a combination of luck and business skill. And by business skill I mean skill at creating, marketing and selling your products and processes, not skill at hiring bottom-feeding patent attorneys to “monetize” some abstract micro-mental “improvement” that simply grifts off the hard work of people far more skilled than you’ll ever be.

      1. Malcolm quips “If you’ve got a patent-worthy idea

        LOL – but wait, it has to be the ‘right kind‘ of ‘patent-worthy,’ passing the Malcolm says so standard of patent-worthiness (which obviously is not according to the actual laws we have in this reality).

        Oh, how so very Carroll.

    1. Man, what a connection indeed! She’s like getting super old now too! Finally growing into that cantankerous personality she has.

  11. Personally, I don’t think all the talk about lawsuits filed is particularly useful in determining how much of an impact PAEs are having on the business landscape. More important – and likely much harder to track – is patent assertions that never touch the docket of a court because the accused infringer decides to settle rather than litigate.

    1. More important – and likely much harder to track – is patent assertions that never touch the docket of a court because the accused infringer decides to settle rather than litigate.

      That’s like saying it’s much harder to track the number of centipede legs touching a trashpile when we can only see the backs of the centipedes.

      Based on longstanding business behaviors, we can be pretty confident tht the number of discussions that lead to settlement is far greater than the number that leads to litigation. Indeed, the trolls themselves always brag about the number of settlements they’ve obtained because somehow that’s been deemed relevant to evaluating the junkiness of the patents (why such a fact should be deemed relevant to obviousness is anybody’s guess; perhaps some jurists who had little real-world understanding of the patent or legal system came up with it to lend a helping hand to some sympathetic patentee). Nevermind that these massively licensed patents are junked on a regular basis, year after year.

      The bottom line is that there is an observable trend. It’s not something that has been “made up” by “biased parties” who are being “paid to lie” by their “corporate masters” as some commenters would argue (a stock response, by the way, to any and all discussion that focuses on perceived problems with the state of the patent system). Any of the gamblers out there want to bet on a sudden dive in 2014 back down to 2006 levels?

      1. …because trying to enforce patent rights is the second worst thing EVER (right behind having patent rights..

        /eyeroll

        Bessen as guest chummer – perhaps an invitation to Ron Katznelson for ALL of the facts would be in order – including the destruction of the tainted Bessen methodology of pandering on the amount of damages incurred from these d@m patent lovers…

        1. because trying to enforce patent rights is the second worst thing EVER (right behind having patent rights..

          Not at all. I fully support a functioning patent system with strong, carefully-considered patent rights given to those who deserve them.

            1. What about the controlling law?

              LOL – do you know what the controlling law is regarding the exceptions to the printed matter doctrine?

              You volunteered this admission once upon a time, then spent gobs of energy trying to dissemble and act like you never made such an admission. On top of it, you still post arguments as if the controlling law did not exist.

              That controlling law (for starters – next up we can discuss Alappat) – lol, yeah like that will ever happen – like you won’t run away or dissemble or post some vacuous reply like ‘*click*’ or “Kenneth” or some such other typical nonsense of you sticking your head in the sand and being a Coward.

            2. Well, let’s first start with some intellectual honesty from you.

              Answer the question you have been running from.

              What’s the matter, Coward?

              Afraid?

              Afraid, that I will use your own words against you?

              Afraid that I will post your admission right there next to quotes from you denying and dissembling about that admission?

              LOL.

              Lol lol lol.

              .

              No wait.

              .

              lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol .

              ahhhhhhh.

              You know, you could always try that intellectual honesty thing.

        2. anon: the destruction of the tainted Bessen methodology

          Maybe if you typed this in all caps and bold it might come true for you. Give it a shot! I mean, it’s worked so well for you in the past.

          1. Malcolm nice dissembling there: you say ‘might come true’ as if it has not already been shown to have come true.

            Try intellectual honesty (really, give it a try).

            1. “intellectual honesty” would seem to be a tall order for someone who purports to work in this field, but his main claim to fame seems to be that he can cut/paste and post a lot of nonsense round the clock

              His predictable shallow comments confirm that he has never actually worked on any significant patent or any meaningful litigation involving patent rights. So far his qualifications seem to be that he’s a legend in his own mind – a kind of patent hate “groupie” that craves attention and recognition for a career of accomplishing ….nothing. A “paid” shill would be a step up, so I suspect that’s why he appears here daily looking for another anti-patent entity to suck up to.

            2. His predictable shallow comments confirm that he has never actually worked on any significant patent or any meaningful litigation involving patent rights

              Classic stuff from the patent teabaggers. Anyone who disagrees with them is always ignorant of the technology or the law. Isn’t that convenient?

              I can assure you, Nick: you’re very wrong. And if you think you are helping yourself by coming here and insulting people who disagree with you and baselessly accusing your critics of being paid hacks, then you are very much mistaken. All you’re doing is just proving a point that I’ve been making for quite some time now.

            3. RQ/HD states “All you’re doing is just proving a point that I’ve been making for quite some time now.

              And the irony meter factory just went ka-blooey.

  12. Great article. I didn’t know that Kappos had joined the crowd of reality-deniers but I’m not surprised.

    Kappos goes slightly further, completely dismissing all previous research studies, calling them “unhelpful at best, and more likely hurtful by representing as ‘data-driven’ a picture that is actually badly distorted.”

    Really, the only reason anyone pays any attention to David “Design Patents are the Future” Kappos when he spouts off on behalf of his clients is that he once worked at the USPTO. And what did he do while he was there? He turned the spigots up to eleven, apparently believing that all that patent goodness would “trickle down.”

    Meanwhile, after his brief performance as a “public servant”, he’s returned to membership in the comfortably enbubbled class of 0.1% top-income earners and, unsurprisingly, defending the mess he helped create for the benefit of grifting patent attorneys and to the detriment of everyone else (e.g., the little “jealous people” who don’t understand all the awesomeness that is created each time a patent is granted).

    PAE litigation has continued to increase after the America Invents Act, more or less right on the trend line established since 2001

    And now we’ll be told by the same reality-deniers that nobody could have predicted that because the data wasn’t available. LOL!

    The bottom line that should be obvious to anybody who has been paying attention for the last decade is that the people invested in the status quo will not accept any facts that they find potentially damaging to the maintenance of the status quo. For these folks, the only thing “new” under the sun is the junk they are filing and trying to enforce. NPEs asserting reams of junk against anyone and everyone were always an important part of the system, they’ll tell us, and they are more important now than ever not because some bottom-feeders have spotted a broken system and are rushing in to exploit it but simply because … the “defense bar” makes them do this! If only everyone would just license their junk and stop “stealing” it then everything would be so awesome again.

    We shouldn’t be questioning these brilliant patent attorney who are trolling the landscape on behalf of “small inventors” (who are quite often patent attorneys, oddly enough). We should be admiring them for not giving up! It’s the American way. After all, they’re not doing anything illegal (most of the time) … they’re just harassing people for money with junk patents that are “presumed valid.” And, hey, some of those patents are licensed so that means they are more likely to be non-obvious … right?

    1. didn’t know… not surprised…”

      LOL – you mean that you ‘just happened’ to have been engaged in a long running smear campaign against the former director (and his need to say that Quality does not equal reject in the face of the unparalleled – and quite factual – era of Reject Reject Reject…) ?

      Um sure, like that’s believable.

      /eyeroll

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