President Obama on Patent Law

By Dennis Crouch

President Obama provided a one-liner on patent law in his recent State of the Union address:

We know that the nation that goes all-in on innovation today will own the global economy tomorrow. This is an edge America cannot surrender. Federally-funded research helped lead to the ideas and inventions behind Google and smartphones. That’s why Congress should undo the damage done by last year’s cuts to basic research so we can unleash the next great American discovery – whether it’s vaccines that stay ahead of drug-resistant bacteria, or paper-thin material that’s stronger than steel. And let’s pass a patent reform bill that allows our businesses to stay focused on innovation, not costly, needless litigation.

The USPTO (as part of the Obama Administration) has already thrown its weight behind new patent reform efforts as well. The Goodlatte Innovation Act (H.R. 3309) has already passed in the house with a 325-91 vote. In the Senate, Judiciary Committee Chair Leahy has proposed the Patent Transparency and Improvement Act (S. 1720) and that proposal is currently in committee. The proposals would include a number of reforms designed to hamper patent enforcement; provide transparency of ownership; and force more targeted early disclosures in patent cases.

107 thoughts on “President Obama on Patent Law

  1. link to dailykos.com

    All the Republican candidates running for Texas lieutenant governor agree: Creationism needs to be taught in schools.

    At a statewide televised debate Monday, the four Republican candidates said they would like to see the religious theory taught in the classroom, according to videos of the event.

    Just a coincidence that this is the state where the patent trolls love themselves a jury trial?

    Sure it is.

      1. I’d say that it’s pretty apparent, or rapidly becoming more apparent, from the available evidence that irrationality is inherently pro-patent-maximallization, or at least a necessarily condition therefor.

  2. So why then, does current government policy punish the inventor? Like the artist, isn’t he or she entitled to a fair share?

    1. So why then, does current government policy punish the inventor?

      Good question. My neighbor is a garage inventor. He invented “a method of watching a movie on a cellphone, wherein the movie is produced by someone who has seen Barbara Streisand’s sideboob”. Next day some PTO agents swarmed his house. They took him away and I haven’t seen him since. It does seem unfair.

    1. Steve Jobs started Apple in his garage in Silicon Valley. Jeff Bezos founded Amazon in an apartment garage outside Seattle. Stanford students Sergey Brin and Larry Page got Google off the ground in a garage they rented south of San Francisco.

      But a Senate bill supported by these companies and a handful of other deep-pocketed multinational corporations threatens to close the garage doors of small inventors forever. If enacted, it will stifle American innovation and destroy untold numbers of future jobs.

      Oh noes! The mythical class of poor, suffering “garage inventors” who are solely responsible for the fact that we can buy stuff over the Internet! How will we ever hope to evolve if we don’t pander to the rich investors who refuse to share their billions unless it’s risk-free??

      Seriously, according to this kind of inane “logic” we should be subsidizing small, independent labels because … Richard Branson! Or maybe we should be teaching more people how to be anti-semitic because … Henry Ford!

      The reference to Amazon is especially galling. The “one-click” patent remains a poster child for junk patents and how to abuse them. Is that what we need to encourage more of? Give us a break.

      Most people would be perfectly happy just to own a spare garage that they could start any kind of business with. And then when they do what’s going to happen? Oh right: they need to take a license from the guy in the garage down the street. How wonderful! God bless America.

    2. “But a Senate bill supported by these companies and a handful of other deep-pocketed multinational corporations threatens to close the garage doors of small inventors forever”

      First I was unaware that any of the programmers this article mentions were “inventing” in their garage. Certainly Bill Gates got no patents at that time.

      Second, how does the new patent reform bill threaten to close their garage doors? The article never lays out how.

      “When an American invents something useful, the only way he or she can protect that discovery and profit from it is to apply for a patent from the U.S. Patent and Trademark Office.”

      Seems conclusory. I know many people who invent something and profit from it without patenting it. My dad did it this past year and he’ll likely do it again many years to come. My uncle has been associated with several companies of the last few years that invented an apparatus and were profiting from its use prior to patenting it while publicly disclosing it. The evidence just isn’t there to back up this article’s claim.

      “Only true innovations are awarded patents”

      Sounds like an outright lie. It is well known that many patent claims that are not “true innovations” are awarded a patent every year due to failures in the process, like failure of the office to find x art, failure of the Federal Circuit to correctly rule on the law, or any other number of things going wrong currently.

      “But S.1720 and its counterpart in the House, H.R.3309, would go a long way toward tearing our patent system down. They would tilt the playing field in favor of large companies and their armies of lawyers by making it prohibitively expensive for small inventors to file legitimate legal claims against corporate copycats, closing the courts to little guys and encouraging patent infringement.”

      It was either that or get rid of the non-useful arts in the patent system. You guys could have chosen the one, but instead you chose to have congress take mamby pamby half-measures that of course will not work fully.

      “Unbelievably, these bills would even authorize the director of the patent office to create a national database of the patent-holders who defend their inventions most often — and then to develop a tax-funded program for “training” businesses on the best way to beat these innovators in court.”

      As to the first one, yeah, so what? And as to the second one, I’m unaware of this program, perhaps he could point to it in the bill so we could all see what he is most likely mischaracterizing.

      “Early this year, one prominent garage inventor even had to take the patent office itself to court.”

      I’m not sure I’d call that particular guy a “garage inventor”.

      “. All this inventor wants is a final determination from the patent office, even if it’s a denial of the applications.”

      Also I’m pretty sure even that guy got a final rejection. That’s the office’s final determination on patentability, which is why it is called a “final” action.

      Overall, the author appears dazed and confuzzled about the legislation and likewise uninformed about what the purpose behind each section is. Standard ‘Merican in that respect.

      ^thems my comments.

    3. Section 3(a) of S. 1720 imposes an unrealistic and costly burden on any patent holder who tries to enforce a patent. It adds language to the end of 35 U.S.C. § 281 that requires any patentee who brings an infringement action to list everyone who the patentee knows to have either a financial interest of any kind in the patentee, the patent, or any party to the lawsuit.

      It also requires the patentee to list any other kind of interest that could be substantially affected by the outcome of the lawsuit.

      The source of the added language is odd. It is taken almost word-for-word from the statute that tells federal judges when they should recuse themselves from a lawsuit. See 28 U.S.C. § 455(b)(4). The added language will require every patentee who brings a lawsuit to consider every person or entity that the patentee knows and ask the question, “If that person or entity were the judge deciding my lawsuit, should that person or entity recuse himself or itself?” If the answer is yes, that person or entity must be added to the list. This is potentially an extremely long list. It certainly includes every equity holder in the patentee and every equity holder in every other party to the lawsuit. According to 28 U.S.C. § 455, this includes ones who own a single share of stock or a single partnership unit.

      The list may also include key employees, directors, and managers of the patentee and all of the other parties to the lawsuit. It may also include everyone’s key advisors, customers, vendors, licensees, and licensors.

      Because the list is not limited to those who have actual “financial interests,” it may also include other alleged infringers who are not parties to the lawsuit, as well as their equity owners, employees, directors, managers, advisors, customers, vendors, licensees, and licensors.

      Finally, the list may include everyone’s lenders, subcontractors, and other service providers.

      Such a long list may make sense if the question really is, “Should a judge recuse herself?” We have long decided that we are best served if our judges avoid even relatively remote appearances of impropriety. Moreover, for an actual judge, the task is doable because a single judge has a finite number of financial interests which the judge can evaluate and determine whether one of them requires recusal.

      There is no such public interest in requiring a patentee to list thousands or millions of people and entities. In some cases, the patentee’s customer list alone will number in the millions. The patentee’s burden bears no relationship to any public benefit. Even worse much of required information will be proprietary. Most businesses consider their customer lists, their vendor lists, and their licensee lists to be extremely proprietary. Many also consider the list of their equity owners to be proprietary as well. Many businesses also believe that the processes they use to make their product are trade secrets, and they are right, but if a patentee is required to list all of its licensees, that trade secret could be lost.

      Any conceivable societal purpose behind Section 3(a) can be met by a complete registration and assignment system [which is already in existence and which is already being enhanced by Section 3(b) of S. 1720]. The only additional “benefit” of Section 3(a) is to put a giant hurdle in front of patentees who are trying to use the only path they have to enforce their legal rights.

  3. The president’s conflicting statements cannot be reconciled … says he supports and wants more American innovation … at the same time he wants to weaken American patents and patent owners rights.

    So in effect … innovation is great … as long as you don’t want to protect it … so others can have it for free.

    Another politician talking out of both sides of his mouth …

    1. he supports and wants more American innovation … at the same time he wants to weaken American patents and patent owners rights. So in effect … innovation is great … as long as you don’t want to protect it … so others can have it for free.

      Thank you for providing the simpleton’s view. The adults in the audience understand, of course, that “more patents that are easier to enforce” does not cause “more innovation”. It causes more patents and more lawsuits.

      Still, there are some patent attorneys in the audience who think that this result alone would be quite wonderful and helpful towards paying the mortgages on their summer homes. Their soft, smooth hands are clapping for you.

      Enjoy.

      1. The adults in the room understand that the U.S.A. is the greatest innovative country because of its patent system. The adults understand that all the countries in the world that have a strong innovation engine have a strong patent system. The adults in the room know that China is trying to build a patent system so they too can have innovation. The adults know that …

        Well, you get the idea. Oh, we are talking about adult people not simians MM. That might be your point of confusion.

  4. If you look at the way that Obama prefaced his support for patent reform, he first called out how government research provided the smart phone, etc. Then he said that we need to pass patent reform.

    Obama believes that innovation should come from government and this patent troll issue is a vehicle to get there. First eliminate where most innovation comes from (individuals and small businesses), then when innovation slows and China gets ahead, argue that we need government to fund innovation because free enterprise has failed.

    He wins because he can direct innovation to where he wants it to go (green) and he gets a bigger government with more voters beholden to him and more control over the individual, which has been his trademark.

  5. Boy I read what Dennis posted and it sounded to me as if he was saying, a Patent should be held strong.
    Like lets say someone invents a mouse trap. And then someone else ( sneaks in and devises) makes the same mouse trap but in a different way. It does the same thing. It looks very similar. The second one has a different core because it was taken from the first So why would a patent even be allowed on the same thing? It wouldn’t if things had been above board. It wouldn’t if the first one wasn’t hidden and it’s core switched. And the second one claims it was made 15 years before the first one? And I’m pretty sure the core of the second one was not even around in that time frame.
    What the Prez is saying is, the first one should be strong enough to not even allow the second one to be even patented.
    And is this why you are in China Mr. 12 hour? Did you get into it in 1996? And did you give something to GJL Jr. that you shouldn’t have?

    1. Whatever O’Bummer said we can be sure it was from a politician. Clinton said that NAFTA was one way for the U.S.A. Not a single job would be lost according to Clinton. Tell that to Detroit.

  6. I posted the below in the PAE thread and it was not entered. I am posting it here again to see if the problem is the post or the thread:

    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. Selden 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 let’s 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.

    1. Your lot was easier to deal with when you were telling us that instructions to a computer was really a natural law.

      Now you want to not recognize that the scope of the claims should be the scope of enablement. And, that scope depends on how a person of ordinary skill would read the claims.

      If claims are limited to disclosed embodiments, then the patent system is effectively dead for most art units. It would take 1000’s of pages to describe all the embodiments that an person of ordinary skill knows how to do.

      1. NWPA: “Now you want to not recognize that the scope of the claims should be the scope of enablement.”

        The scope of the patent protection has always been the structure that the applicant invented. Enablement of that structure is only one requirement. Others are description and definiteness. Morse had enabled all ranged printing via electro-magnetism, why was claim 8 struck? It seemed as if the court was worried he was trying to claim the functionality no matter what machine it appeared in. How is a computer claim to a function (citing only a processor) any different?

        I think you’re the one confused about what constitutes an invention…we don’t just give people what they, in their subjective view, think they have invented.

        “If claims are limited to disclosed embodiments, then the patent system is effectively dead for most art units. It would take 1000′s of pages to describe all the embodiments that an person of ordinary skill knows how to do.”

        The courts have never held that the disclosure of other embodiments needs to be in the same detail as the first description. Besides the rule you’re decrying was the rule for what? at least 80 years? And yet the patent system survived.

        1. And now back for some more random nonsense: “The scope of the patent protection has always been the structure that the applicant invented.

        2. RandomGuy: what do you do for a living? Before I take any time educating you, I want to know so that I am not wasting my time with a policy paper paid blogger.

          Scope of enablement. Think about what you wrote RandomGuy. Do some real life thought experiments. Read Deener and other SCOTUS cases before 1950 when much of system became politicized.

      2. ” the scope of the claims should be the scope of enablement. ”

        That’s your personal opinion brosef. It’s not like “set in stone”.

        “If claims are limited to disclosed embodiments, then the patent system is effectively dead for most art units.”

        Oh horse sht.

          1. Telling 6 to read is not enough.

            He has to understand.

            To do that, he would need to put aside his belief system as that is blocking his acceptance of such basic notions as the ladders of abstraction and the doctrine of equivalence (in substantive legal matters) and the reasons why we have a patent system to begin with (as set forth in a policy manner by the Founding Fathers).

            His refusal to accept these First Principles means that merely reading (or what passes for reading in 6’s world) will never be good enough.

    2. All those that wish to burn the patent system down should consider Motorola. Without patents it would have been worth nearly nothing. So, because of the value of those patents we can count on companies to continue to invest in research and patents–not just taking other people stuff.

      The shameful part is that the Obama administration FTC person came out and read the situation in the reverse. Totally ignorant little toad with no real experience.

      Scope of enablment my hirsuit howling friends. Full stop. It is SCOPE OF ENABLEMENT.

      1. Worth repeating:

        So, because of the value of those patents we can count on companies to continue to invest in research and patents–not just taking other people stuff.

        That’s exactly what the Founding Fathers had in mind when they created the patent system and made – from day one – the patent to be perfectly and fully alienable property.

      2. “All those that wish to burn the patent system down should consider Motorola. Without patents it would have been worth nearly nothing.”

        Oh noes! Another company that failed is worth nearly nothing when it fails! Oh noes! Oh noes!

    3. And, Ned, it is very hard to give you any credibility when your arguments for information processing is basically: you can have whatever you want as long as it includes a ROM so your patent is worthless to enforce.

      By the way, that is basically the same ploy the Chinese patent office uses.

  7. My recommendation would be to simply reform the standard for declaratory judgement actions.

    As result of recent case law, there is too much DJ risk for small businesses or independent inventors trying to monetize patents. Accordingly, more patents flowing to NPEs designed to monetize and their current strategy is “file first, negotiate later”.

    Reform the DJ standard to allow the patent owner to communicate with alleged infringers without triggering DJ actions.

    We went from one extreme (too high a hurdle for DJ actions) to another extreme.

    Fixing that is low hanging fruit.

    1. I don’t mind remedying that DJ stuff. I mean, they should be able to discuss the patent both without putting the other person on notice for triple damages and without outright threatening them with the patent and be aight.

  8. The strange thing about the patent teabaggers and their silly “David and Goliath” mythology is that it somehow never occurs to them that the people they accuse of protecting “big business” are not fans of “big business” at all. On the contrary, most people I know are dismayed by patent trolls and junk patents as well as the crappy behavior of businesses like Google, Apple, Cisco, etc.

    But nobody except the teabaggers themselve believes that there is some horrible scourge of “patent squatting” that is dragging the country down. That’s because (1) there isn’t one and (2) everybody knows that if you give the crybaby attorney jerks who cry about “patent squatting” more patent rights that you’ll eventually end up getting reamed yourself. Who wants that?

    The reason for the teabaggers’ blindness in this regard is simple: they don’t give a rats xxx about the crappy behavior of “big corporations”. All they care about is funneling as much money as they can into their own bank accounts by whatever means are available and screw anyone who tries to stop ‘em. Grifters gonna grift. It’s what they do.

    1. Class,

      Today’s lesson in Malcolm rhetoric:

      Malcolm states: “The strange thing about the patent teabaggers…,

      Class reply: Malcolm, you provided no facts independent studies or certified polls, therefore your statement is poopoo.

      Why? Because Malcolm says so, damnit Gumby.

      Thus ends the RQ/HD lesson for the day.

        1. Did you just call MM a bassoon?

          I figured you’d consider him more of a snare. Or an axe for you to grind. Or perhaps a cymbal of your oppression.

          1. Of course I would have typed in his full simian name, but he cried and whined to Dennis so that I am no longer permitted to use his name anymore. Leave it to IANAE to not be able to figure out the obvious. I do wish you had an extra 50 IQ points so that you would be interesting to blog with.

          2. …and not to sound too sour of a note, but everyone knows that the RQ/HD is really just a poster boy for how NOT to engage in a substantive legal discussion.

  9. designed to hamper patent enforcement

    Um,…. if we hamper patent enforcement, then patents are worth less

    We need to be making enforcement better swifter cheaper and more thorough in order to build patent strength.

    1. We need to be making enforcement better swifter cheaper and more thorough in order to build patent strength.

      Yummy kool-aid!

      Maybe you should step outside of your echo chamber and do some poll testing about what most people want. Start by going to the street in your town where most of the town’s businesses are located and ask the owners if they think that “we need to make it easier” for people to sue them and obtain judgments.

      Be sure to inform them of the number of patents that are being granted every year and where that trend is heading so they have some understanding of what they’re dealing with.

      Or maybe you think that Dennis made that graph up on behalf of some company whose stock appears in his 401K (“the causal relation”)? Let everybody know, TB.

    2. “Um,…. if we hamper patent enforcement, then patents are worth less…”

      OMG that means prezzy o is anti-patent! OMG! OMG!

            1. I’m not trying to be sarcastic “to the president”. I’m trying to be sarcastic to the reading impaired ta rds that think people with an eye to reforming the patent system to shape it up before we have to ship it on outta existence are “anti-patent”.

            2. To borrow a rather pithy phrase, curing the patient does not mean killing him.

              Wake up 6. Pay attention. Your type of ‘friend of the patent system’ is worse than any overt enemy.

              You personally are just way too much of a lemming to understand what is going on about you.

  10. I would think it great that the President is interested in patents. The problem is ignorance and Obama listening to the liberal elite intellectuals about what they think should happen. We see Obama’s recent appointments to the Federal Circuit. Liberal arts majors and a government attorney. His new director–a sideways appointment. Don’t forget that this is how Clinton gave us 2008 by repealing Glass-Steagall and NAFTA and China into the WTO.

    Another disaster in the making as the issues don’t get debated in the light of day and ignorant people make policy.

    1. Clinton gave us 2008 by repealing Glass-Steagal

      Wait – another democrat president serving the Big Business needs…?

      Which definition of “is” is in play…?

        1. Chomsky says that Obama is about the same as Reagon politically. That Obama is really a moderate Republican.

          More accurately, it’s been observed by many that the modern Republican Party would never support Reagan as a candidate for President because he was too liberal. That’s consistent with the precipitious drop in the party’s references to Reagan since the teabaggers came to roost.

          I’m not aware of any “moderate” Republicans whose “platform” could be confused with Obama’s. Possibly there’s one or two running on fumes in some really liberal parts of the country.

          1. What you said is not more accurately. Maybe more informative.

            Chomsky meant the Republican party of Reagon’s time of course. So, had Obama been a politician at the time of Reagon, his policies would make him a moderate Republican at that time.

    2. I would think it great that the President is interested in patents. The problem is ignorance and Obama listening to the liberal elite intellectuals about what they think should happen.

      Don’t give POTUS too much (or too little) credit regarding the issue. I doubt very much he really cares much one way or another. Like many political battles, this is between the haves and the haves not. The haves not want what the haves have and the haves want to keep what they have. In this case both sides are haves and haves not. Those with patents want to keep their patents strong and want money from the other side (for using their technology), and the other side wants to use the technology but doesn’t want to pay for it.

      Many of the larger technology companies (think Facebook, Google, etc.) are based upon using other people’s technology. Some of that technology is patented and now they (among many others) are feeling the pain. While these companies have begun significant patent acquisition campaigns, they are still behind the curve as compared to many of the more well-established companies. As such, one of their alternative strategies (besides patent acquisition) is to reduce the effectiveness of patents.

      You have to realize that the people doing the lobbying don’t care about incentivizing innovation or the long-term effects of a stronger/weaker patent system. The people doing the lobbying only care about the bottom line. As such, it is entirely expected for them to lobby for patent policies in a way that they perceive will enhance their bottom line.

      As also to be expected, there will always be a class of individuals that will attempt to game the system — no matter the system. While their are many legitimate NPEs, there are also NPEs that engage in tactics that even a pro-patent person finds questionable. Again, to be expected, those parties with real skin in the game will point to the excesses of a few and hold them up as examples as to how the entire system is a failure and use them in their campaign against the system.

      With regard to intellectual property as a whole, there is a another class of individuals — the ideologicals who are against patents and copyrights because they believe that “information should be free.” Again, as to be expected, those parties with real skin in the game go out of their way to support and nourish this computer-literate and very vocal crowd.

      In sum, while there may be a few individuals that dislike intellectual property out of principle, the real players are merely looking out for their bottom line and will lobby for whatever provisions they believe will positively impact that bottom line. The vast majority (including, IMHO, POTUS) don’t really care about the issue because it doesn’t appreciable impact their lives(money getting transferred from one company to another is not personal to most).

  11. As far back as I can remember, the Republican Party has championed litigation reform of one type or another to reduce harassment of business. We expect that of Republicans.

    Democrats historically have resisted, seeing the value of litigation to champion the rights of the small guy.

    Never would I have imagined a Democrat president backing business interests against the small patent owner. Never. Never.

    Never.

    1. Don’t be so surprised – When the Left and Right conspire to attack the patent system, one should expect such strange bedfellows.

        1. Even under your bridge in the city of Washington DC you should have heard the phrase “Politics makes strange bedfellows

          You might try to figure out what that means.

    2. This really comes down to four little letters: MPHJ.

      Once they started going around attempting to milk small businesses for infringement on those scan-to-email patents, a new round of patent reform became something that most people in Congress could get behind. In politics, small business is big business.

      1. Of course you always have the lowest common denominator to blame. But that doesn’t mean that the next to lowest folks aren’t nearly as much to blame.

    3. Never would I have imagined a Democrat president backing business interests against the small patent owner.

      But suddenly you are imagining it. Why is that, Ned?

      I’ll take a guess: like many people wrapped up in the world of patent law you easily forget that the overwhelming majority of “business interests” in this country quite reasonably have absolutely no use for patents and no interest in them.

      Of course, here we have seen commenters argue that everybody should be thinking about patents all the time and everybody should just accept patent infringement and licensing as a cost of doing business.

      Guess what? The vast majority of Obama’s constituents think that such commenters are, at best, self-interested shills looking to grift off the hard work of other people. And they’re right! I’m one of those constituents, of course. So are all of my friends, almost all of whom are “business concerns”. I have some die-hard Republicans in my family and they also agree with me.

      This may come as a huuuuuuuge surprise to you, Ned, but generally people aren’t impressed by bottom-feeding grifting attorneys.

      The trolls made their bed. Now they can lay in it. Boo hoo hoo hoo.

      1. RQ/HD states “quite reasonably have absolutely no use for patents and no interest in them.

        Get out.

        Get into a field in which you can believe in the work product.

        Seriously – you (and everyone else) will be much happier.

      2. MM, the reason I don’t join the bandwagon is that the assumption that all patents asserted by NPEs are invalid/or not infringed and they need to be stopped.

        I have seen this attitude in my discussions with Professor Hricik who would impose attorneys fees on a losing patent owner regardless that his patent was valid and regardless that the infringement case was close.

        If we have a problem, it is because the PTO is, in fact, issuing a large number of invalid patents with overbroad and indefinite claims that are subject to abuse. We really need to change the focus here to THIS problem.

        Courts have long been able to award costs and attorneys fees against a sham litigant. I say, lets not change the law because that will only bar the door against small fry without regard to legitimacy of their claims.

        1. Ned: MM, the reason I don’t join the bandwagon is that the assumption that all patents asserted by NPEs are invalid/or not infringed and they need to be stopped.

          I’m not aware of anyone making that assumption. I certainly don’t. You may wish to believe (for whatever reason) that this assumption is implicit in the proposals made by some people, but it’s not.

          Junk patents are certainly part of the larger problem with our patent system — a big part. But it’s not the only problem.

          Professor Hricik who would impose attorneys fees on a losing patent owner regardless that his patent was valid and regardless that the infringement case was close.

          That seems like a defensible position and it doesn’t appear that he’s assuming that “all patents are invalid.” Quite the opposite.

          Would you prefer a future where most patents are owned by NPEs who never created or sold an embodiment of the claimed invention but who simply troll around for successful businesses to sue, or a future where most patents are owned by companies who create and manufacture products falling within the scope of their patents?

          If it doesn’t matter to you, that’s fine. It matters to some people though. It seems to matter most to two types of people: (1) people who want to be NPEs and who will do and say anything to make it sound like they are the greatest people in the world and (2) and 99.9999% of the rest of population who isn’t interested in playing the patent game (because it’s irrelevant to them).

          This isn’t about “david and goliath”. It’s about whether we want to support and enabling a class of bottom-feeding patent attorney wannabe “inventors” simply because they insist that the world revolves around them. Bona fide “small inventors” who invent non-junk and patent it are going to be just fine.

          If a “small inventor” invents an anti-gravity device, he or she will get all the wealth and riches that he/she or deserves. And likewise if the “small inventor” invents a “new” way to manage a list of Blu-Ray purchases using a virtual remote control displayed on a “notepad computing device”.

          1. MM – how many of the NPE suits not involving computer or business methods have you reviewed and believe are illegitimate? Why should they suffer because the PTO was ordered by the Federal Circuit to suddenly reverse policy and start issuing such patents and did a terrible job getting up to speed? I personally know single mother inventors (since we’re using rhetorical bombs like “bottom-feeding patent attorneys”) who worked very hard developing and patenting their inventions (not with me) where their only realistic hope of monetizing their invention is through an NPE (also, not me). If you think there isn’t “cold patent peace” in a number of industries where the handful of players are happy dividing up their market even if it means they all copy the large players’ innovations and forgo patent protection and/or routinely do cheap cross-licensing. This isn’t black and white: there indeed are “David and Goliath” situations and you seem willing to kill David as collateral damage.

            1. Ned: I personally know single mother inventors (since we’re using rhetorical bombs like “bottom-feeding patent attorneys”) who worked very hard developing and patenting their inventions (not with me) where their only realistic hope of monetizing their invention is through an NPE (also, not me).

              The bottom-feeders are out in the open and have been for quite some time. Remember the patent attorney who hooked up with his boss’ wife at the cocktail party and came up with the idea of inventing a “paradigm” for “making money off the Internet”? That was many years ago now. That was a real patent attorney and the population is growing. We can just watch it grow or we can do something about it.

              Single mother inventors whose “only hope” are NPEs? You said you know one? One. That’s nice. What did she invent that she “worked really hard at developing”? What sort of “monetization” does she think she deserves and why does she believe that?

              there indeed are “David and Goliath” situations and you seem willing to kill David as collateral damage

              Again, inventors with valuable inventions and valid patents on those inventions will be just fine even if we tighten the laws down ten times more than they already are. Will a handful of poor “single mother inventors” find it more difficult to secure a $100 million dollar windfall with the help of some cowboy lawyer from Texas or some giant patent-vacuuming operation like Intellecual Vultures? Maybe. But why in the world would we let that concern trump the damage being done to the patent system when we allow it to become a playground for greedy bottom feeders and gamblers?

              You are literally treating these alleged “small inventors” like they are the second coming (“David”) or some sort of disenfranchised minority group. They’re not. They are smart people (presumably) and they are perfectly capable of finding someone to pay for their work if, in fact, it has any real value outside of the “patent monetization” circus world.

            2. how many of the NPE suits not involving computer or business methods have you reviewed and believe are illegitimate?

              I don’t recall. But the “legitimacy” of the patent or the infringement allegations is not the only issue (and saying that it is the only issue does not make it so). The fact that more and more patentees are not practicing their patents (and in many cases have never practiced the patent or even created a single working embodiment of their invention) creates its own set of issues.

              Similarly, even if it could be proven that every patent granted by the USPTO is incontrovertibly “valid” (something that will never happen), the mere fact that the number of patents being granted is skyrocketing creates its own set of issues.

              You have to ask yourself what we want the US patent system to achieve for the US. It’s never going to function as some sort of “wealth distribution” program, as some apparently believe it should. And it’s surely not going to promote progress in the useful arts if it costs the average small business a year’s worth of profits to figure out if they are infringing or not. So what’s the purpose? To put more money into the hands of patent attorneys? Or create a class of “patent insurance salesman”?

              Those are the policy concerns Obama is alluding to. And kudos for the promotion of basic research that benefits everybody and promotes critical thinking. I’d like the see that part of the budget go up about ten fold and the military/security budget shrunk proportionally. More towards public education, too.

          2. “I’m not aware of anyone making that assumption. I certainly don’t. You may wish to believe (for whatever reason) that this assumption is implicit in the proposals made by some people, but it’s not.”

            I know right? I don’t know where Ned dreams this stuff up.

            1. 6, the Supreme Court has held that one cannot award attorney fees and costs against a plaintiff for unless his action is a sham and he knew it was a sham. Why? We have a 1st amendment right to petition the government for redress of grievance that routinely awarding attorneys fees and costs would unduly burden.

              But Professor Hricik wants to award such costs against patent filers if they lose and whether or not their actions were a sham. The intent is clear: to deter the small pockets filer and the implicit assumption is that the small pockets filer is committing some sort of abuse — that the patent he asserts is invalid or not infringed. There can be no other basis for not following the Supreme Court law on this point.

              Time and again I hear justifications to clamp done on the “bottom feeders” sound in “abuse of process.” But the process is abused only when the patents are invalid and are not infringed. Otherwise, they are not bottom feeders. One cannot have it both ways.

              Trust me, 6, the mania about PAEs critically assumes the patents they are asserting are not valid and are not infringed.

            2. Jeb us it’s hard to make a comment on here sometimes.

              “We have a 1st amendment right to petition the government for redress of grievance that routinely awarding attorneys fees and costs would unduly burden.”

              That’s a call for the congress to make, not you or even the SCOTUS, should the congress deem to make it.

              “he intent is clear: to deter the small pockets filer and the implicit assumption is that the small pockets filer is committing some sort of abuse — that the patent he asserts is invalid or not infringed. ”

              If that “intent” is “clear” to you you’re an id iot.

            3. ” There can be no other basis for not following the Supreme Court law on this point.”

              Really? Try thinking really really hard and you might come up with one. Should take about 5 fr akin seconds for anyone with a brain.

              “But the process is abused only when the patents are invalid and are not infringed.”

              Hardly. That’s tantamount to asserting that PTO process is abused only when the patent should have been allowed. There are many ways for process to be abused regardless of what the ultimate outcome should have been or what it turns out to be.

            4. ” Otherwise, they are not bottom feeders. ”

              You don’t seem to understand that one can bottom feed with a completely valid patent. Sorry Ned, that’s your view. Reasonable people can, and will, see that there is a great deal of “bottom feeding” going on with perfectly “valid” patents nowadays, especially with the Federal Circuit fi n up the lawl right and left.

              I don’t think you really understand what bottom feeding is if you think it takes an invalid or not infringed patent to make a bottom feeder.

              Go with definition #2.

              link to urbandictionary.com

              Or no. 3

              link to merriam-webster.com

              It basically describes just about anyone who bought a patent to “monetize” without ever actually practicing the invention, amongst many other classes of people involved in the patent system.

              I think your problem is you just didn’t understand the terminology.

              “Trust me, 6, the mania about PAEs critically assumes the patents they are asserting are not valid and are not infringed.”

              As a person who helped stoke said mania I don’t agree Ned. Anyone informing you of that is simply narrow minded in their justifications.

            5. Something is the matter with my links in the comments

              ” Otherwise, they are not bottom feeders. ”

              You don’t seem to understand that one can bottom feed with a completely valid patent. Sorry Ned, that’s your view. Reasonable people can, and will, see that there is a great deal of “bottom feeding” going on with perfectly “valid” patents nowadays, especially with the Federal Circuit fi n up the lawl right and left.

              I don’t think you really understand what bottom feeding is if you think it takes an invalid or not infringed patent to make a bottom feeder.

              Go to urban dictionary and find the second definition for bottom feeder.

              Or to merriam webster and read the 3rd definition.

              It basically describes just about anyone who bought a patent to “monetize” without ever actually practicing the invention, amongst many other classes of people involved in the patent system.

              I think your problem is you just didn’t understand the terminology.

              “Trust me, 6, the mania about PAEs critically assumes the patents they are asserting are not valid and are not infringed.”

              As a person who helped stoke said mania I don’t agree Ned. Anyone informing you of that is simply narrow minded in their justifications.

            6. 6 states: “It basically describes just about anyone who bought a patent to “monetize” without ever actually practicing the invention

              Funny thing that. What you QQ about is the way our patent system HAS ALWAYS BEEN from day one- that was a feature, not a bug. Your mancrush Dudas even shared the award winning historical reference that proved it.

              Funny too, that you and Malcolm are on the same planet with this twisted view of patents. Too bad that planet is not the planet Earth.

            7. “Funny thing that. What you QQ about is the way our patent system HAS ALWAYS BEEN from day one- that was a feature, not a bug.”

              And I hear you anon. I hear Dudas. I simply don’t think it is a feature of law that we should keep. Ala slavery, dueling, etc. etc. etc. the list goes on for miles.

              And here’s the thing, I don’t complain so much of the bottom feeding as other people. I don’t personally find it nearly as repulsive as say, the expansion of the patent system out of the traditional useful arts, and the failures in patent jurisprudence to reign in functional claiming. Imo those are and should be the first legislative priorities to end the carnage.

            8. Malcolm reveals: “As a person who helped stoke said mania

              Yes, we all know that in Malcolm’s mind he is the Catcher in the Rye and his job is to as nauseum ‘stoke’ the mantras of the crusades – no matter what, and by any and all means (including especially those without intellectual honesty).

              As is evident, my past description of Malcolm et al as a lynch mob mongering mentality is dead nuts accurate.

          3. “If a “small inventor” invents an anti-gravity device, he or she will get all the wealth and riches that he/she or deserves.”

            How about a gravity detector? I happen to know of such a guy, his patent app should publish in a few more mo.

        2. We USED to have that problem. These are all older patents that are being asserted by ‘trolls’. Now we just call any plaintiff a troll – see also the Google case just decided.

        3. “If we have a problem, it is because the PTO is, in fact, issuing a large number of invalid patents with overbroad and indefinite claims that are subject to abuse. ”

          If that be the case I would counter that it is largely a product of the federal circuit’s decisions on 101, 102 and 112 along with possibly even 103.

          1. …or maybe it was just the Foundign Fathers’ fault for a having a patent system in the first place. A patent system built to have patents be personal property (not some odd little notion of private laws). A patent system built to have that very same personal property be fully and freely alienable. That very same patent system built so that patent rights never actually had to have products made.

            Wow. Imagine that.

            Oh wait – I don’t have to because that is the reality here on Planet Earth.

            1. I wonder if Malcolm is still searching for that 1908 Supreme Court case…

              (well, probably not, as it is still controlling law, and everyone knows how Malcolm runs from controlling law)

      3. ” the overwhelming majority of “business interests” in this country quite reasonably have absolutely no use for patents and no interest in them.”

        Gramps, this isn’t the horse and buggy days. Turn off the grammophone and talk to some modern “heP’ kids who are “groovin;” on the latest “jive” in business. Turn your hearing aid up to max (turn it as far righty tighty as you can).

        1. Won’t help to those who are ‘tone’** deaf.

          ** – ‘tone’ being the first principles of law and evident facts such as software is equivalent to firmware and is equivalent to hardware.

          1. Features, not bugs, make the system better, not worse.

            The invitation to you and like-minded Malcolm to abstain from all the modern fruits of innovation remains open 6; the Amish await you eagerly.

            1. The invitation to you and like-minded Malcolm to abstain from all the modern fruits of innovation remains open 6; the Amish await you eagerly.

              Awww, we won’t give li’l anon his “strong patents” so he’s threatening to take away all our shiny toys.

              As if.

            2. Take them away…?

              LOL – nice spin. Try again – it’s a simple matter of equity – you don’t think them important enough to protect, why should you enjoy the benefit of the innovation?

              You should try some of these character building exercises.

              (Character in the good old fashioned moral sense)

    4. The Republicans are fissuring somewhat between the U.S. Chamber/Koch Bros/Big Biz and the Tea Party. Immigration reform is another issue where they split.

      1. Republicans have not really been a viable national party, it seems, since Teddy and Taft split. They have held the White House now and then, but their hold on Congress has been fragile and short lived.

        They need another Roosevelt more than they need another Reagan.

        But the way Obama talks about Republicans is just a bit funny. He seems to think of them as gun totin’, bible-thumpin’, bigots who could care less about the little guy. According to the O’man, George Patton is your typical Republican: Good enough to lead the troops in battle, but that just about it.

        1. Ned says “But the way Obama talks about Republicans is just a bit funny. He seems to think of them as gun totin’, bible-thumpin’, bigots who could care less about the little guy

          Um,… when you say Obama, you mean Malcolm, right?

        2. “George Patton is your typical Republican: Good enough to lead the troops in battle, but that just about it.”

          Good thing Merica’s enemies disagree!

          “Field Marshal Gerd von Rundstedt stated simply of Patton, “He is your best.””

            1. From all accounts he probably would have slapped her and brought her home to her kitchen, and then taken all her shoes so she couldn’t leave. lolololololol

            2. You truly are a backwards child, aren’t you 6?

              Traditional Useful Arts (sort of like the guest post on these boards that quashed the myth that business method patents are a modern occurrence, right?)

              Your belief system is getting in the way of you understanding and accepting reality again.

              Now try to respond without the mysigionic undertones.

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