The White House has pre-announced that it will be making a major announcement on “strengthening the IP system” on February 20, 2014. Speculating, the topic will likely focus on either executive actions (through the PTO) for accomplishing patent reform or perhaps announcement of a USPTO director.

34 thoughts on “

  1. Hmm…well, let’s try for some real predictions: he came out complaining about functional claims, so what sort of executive order would be the dream of a Lemley who seems to be whispering in the ear of O’Bummer.

    My guess is that it will be an executive order. It would be unbelievably arrogant and out of place for it to regard 101 or functional claims. So, I am not sure. It is churning through my head. Will be directed to the PTO? Courts? My guess is that it is going to be directed to the PTO, since that is where O’Bummer’s power is greatest. Maybe towards IPRs? Not sure. What would be an executive order that the likes of dope like Lemley would want? That is probably what we are going to get just like we got appointments stacked with those that don’t know patent law or science.

    What could it be? The problem is that he and his vigilante gang are so ignorant that we can only anticipate their next move by imagining ourselves in their bizarre alternative reality land. Imagine if the likes of Tarantula made the executive order–so unethical and ignorant. Or Lemley malicious.

    Hmmm….still not sure. My gut tells me that it is going to be directed to guidelines for patent applications regarding claim language. But, that seems so in the weeds. But, still, the power of the Lemley is waxing with his psychotically created nonsense. Still….an executive order; wet dream of Lemley, so destructive and ignorant, what could it be?

    1. So, an executive order to the PTO that is supposed to help with functional claiming (that isn’t broken except in psycho land), and help with NPE litigation which isn’t broken except in psycho land.

      Hmm……………it will come to me.

    2. Night, in all seriousness, I was wondering just how a director or the president for that matter can tell the PTO what to allow or not to allow, given that they do not really control the board. From my understanding, the director can only sit as a voting member on a panel. He cannot dictate a result. So how can he dictate the law?

      I recall that once commissioners rendered opinions on matters of law that seemingly bound the office — the whole of it. I don’t know when that practice ended, or why.

      But recall the last time the commissioner tried to intervene to control policy, it lead to some chaos. See In re Alappat. There the commission did not like a panel decision of the board, threw it out, reheard the matter with an expanded panel, and was then overturned by the Federal Circuit.

      But law appears to be in the hands exclusively of the Federal Circuit and the commissioner or director has little power to implement his or her own views.

      But I might be wrong in this. What do you think, Night.

      1. given that they do not really control the board

        Actually Ned, they DO control the board, but that is not the driver you should focus on.

        Alappat‘s intersection with the topic is minimal (especially in the context you are stating, as the overturning had nothing to do with the control of the board – that part of the decision was left alone).

        What the focus you should have is that the executive branch does not write substantive law.

        1. anon, all I was saying is that neither the president nor the deputy director can issue edicts on substantive law that are binding on the Board.

          Once upon a time, the commissioner issued opinions that were binding on the examining corps. But that era seems over.

          1. You are wrong Ned – the Board is an Article I court and you do know who is in charge of that Article I court (and who can stack that court any which way that person wants to).

            Open your eyes.

  2. Actually, my joke about declaring a national holiday on IPRs may not be so far off. It appears from an article written in “Intellectual Asset Management” March/April 2014 http://www.IAM-magazine.com “Trends an Inter Partes Review and Covered Business Methods Review” that two thirds of all IPRs and filed against patents owned by operating companies and only 25% are filed against patent zone by so-called PAE’s. Congress never intended this result, and the article notes that this is one of the “unintended consequences” of patent reform.

    Perhaps Obama could say (by edict) that henceforth IPRs and cover business method reviews can only be filed against PAE’s.

    BTW, when law discriminates and does not provide equal protection, it is unconstitutional. What about edicts?

    1. Perhaps Obama could say (by edict) that henceforth IPRs and cover business method reviews can only be filed against PAE’s.

      Is that part of your joke about the Executive branch basically performing a Coup d’état?

      1. “Is that part of your joke about the Executive branch basically performing a Coup d’état?”

        Already did that according to republicans. DOMA, the mandate in obamacare for corps to provide coverage etc. etc.

      2. anon, the O-man has announced that he will not wait for congress to do necessary reforms. He has already fixed Obamacare by edict — time and again. So, if a patent reform is not quite working as intended, why not fix it by edict?

        He could, I suspect, order summary reexamination of all patents that relate to CBMs without waiting for a requestor and include 101 grounds. Who would stop him? The law? The appeals of the concerned patent owners would fall on deaf ears.

        He could order IPRs dismissed unless they were against PAE-held patents, citing the intent of congress. He has overridden so many laws recently that we could see some amazing stuff from the man in a few weeks.

        And, like Putin, he could appoint himself become VP in 2016, and then succeed to the presidency upon the resignation of president elected in 2016. There is nothing I would put past the man. Nothing.

        Congress and the Supreme Court have both allowed the man to trample on the constitution. But, not everyone agrees and this is why he can do what he does and get away with it.

        1. “Who would stop him? The law? The appeals of the concerned patent owners would fall on deaf ears. ”

          Don’t. You. Know. It.

          But then, this kind of sht is also how dictatorships develop from republics. Since we have history there might be more than a decent bit of pushback. Though at the least it might jump start congress to get their sht together.

          “And, like Putin, he could appoint himself become VP in 2016, and then succeed to the presidency upon the resignation of president elected in 2016. ”

          lulz.

          “Congress and the Supreme Court have both allowed the man to trample on the constitution. But, not everyone agrees and this is why he can do what he does and get away with it.”

          I would tend to agree. He’s basically acting as arbiter between two huge camps that can’t come together to govern so he’s doing it for them. Which, I have to admit, within reason is not wholly ridiculous to have a pressy doing.

          1. 6, the problem is that we do not tend to object if we ourselves are not harmed and we agree with the overall objective. Growing imperial presidency is a construct of both parties, and it gets “worse” as time goes on. I wonder if the people of the Roman Empire ever really cared that over time their rights to govern themselves were gradually conceded to a growing aristocracy that ruled by fiat.

            First they came for the Socialists, and I did not speak out– Because I was not a Socialist.

            Then they came for the Trade Unionists, and I did not speak out– Because I was not a Trade Unionist.

            Then they came for the Jews, and I did not speak out– Because I was not a Jew.

            Then they came for me–and there was no one left to speak for me.

            1. “6, the problem is that we do not tend to object if we ourselves are not harmed and we agree with the overall objective.”

              Well I kind of see it as a simple matter of what governance really is. Governance generally is an interference with people’s lives from an outside governing body. In our country, the congress doesn’t directly do this interference themselves. They leave that to the president. So anytime the governing body, or more specifically the part that directly intervenes in our lives (the executive, or sometimes the courts) limits itself from intervening we generally do not feel any sort of yolk of tyranny or anything such as that, and are simply pleased to be rid of government interference.

              Now of course there are purists where dat lawl is what it’s all about, in other words the law and its execution are the ends rather than a simple means to an end. And to them such disregard for the law by the executive is simply anathema. But other people see the law and its execution as a means to the end of governance. And to them often the governing body butting out is seen as nothing more than a victory in and of itself no matter how that happened since the rule of law itself is generally a protection against the interference of the government in the first place.

              “Growing imperial presidency is a construct of both parties, and it gets “worse” as time goes on.”

              I don’t know if I agree that it gets worse. As you mentioned some of the “worse” examples of such happened back in the day.

              ” I wonder if the people of the Roman Empire ever really cared that over time their rights to govern themselves were gradually conceded to a growing aristocracy that ruled by fiat. ”

              A great question, but considering that many in the empire didn’t get any kind of vote in any event I doubt many did. The general level of education also no doubt stopped many from caring. Not to mention the relative newness and rarity of the republic form of government anyway.

              In either event, I wouldn’t resort to “the sky is falling” talk just yet when we don’t even know what he’s going to say. Maybe he’s just going to instruct the PTO to pull its head from its behind re functional language and 101 issues, along with possibly a 103 or 112 issue. If so, the world will not end and all that will happen is a fight with the judiciary eventually requiring congress to step in.

      1. Click your heels three times as you chant “the end DO justify the means, the ends DO justify the means”

        (and your little dog too)

        1. anon, think about Roosevelt. When faced with a recalcitrant Supreme Court, he was going to pack it to bend it to his will. He served four terms and died with his boots on.

          Lincoln too was viewed as a tyrant. Sic semper tyrannis was shouted by Booth and many agreed. Time and again he flouted the constitution to preserve it.

          How one views Lincoln and Roosevelt depends on whether one agreed with their actions and their purpose. Obama is doing what he thinks right. This is enough for a lot o people.

          1. “anon, think about Roosevelt. When faced with a recalcitrant Supreme Court, he was going to pack it to bend it to his will. He served four terms and died with his boots on. ”

            Lulz.

            “Lincoln too was viewed as a tyrant. Sic semper tyrannis was shouted by Booth and many agreed. Time and again he flouted the constitution to preserve it. ”

            Actually kind of true, I was hearing about some of that stuff on NPR not a year ago.

  3. Cool.

    Imagine that the O-Man is like King Arthur, able to decree the weather in Camelot. I can think of a few things he might do:

    Order that all patent applications be examined on expedited basis.

    Grant every inventor a 50% interest in all royalties or damages obtained from his patent even if previously assigned.

    Grant every spouse a 50% interest in their partner’s patents. Why limit the benefit to community property states.

    Decree that henceforth the government will pay the expenses of all patent suits and retain 50% of the proceeds — the other 50% going to the inventor or his spouse as the case may be.

    Nationalize all foreign-own patents, place them into a trust and use the proceeds to pay for Obamacare subsidies.

    Declare a national holiday for all reexaminations and IPRs. Dismiss them all with claims confirmed.

    Declare all patents valid as a matter of edict.

    Did I miss anything?

    1. A few more things Ned:

      The Prez should assure us that if you like your patent, you can keep your patent.

      He should also address the disturbing inequality in the distribution of patents. Have you noticed that no one except inventors ever gets a patent? This is rank and unfair to the inventively challenged.

      1. Great idea Tour. In order that every kid have equal opportunity, why don’t we grant each kid a patent on graduation from grade school. Take the patents from the rich for this purpose, and redistributed them to the poor. If there are not enough patents to go ’round, simply divide the ownership equally among all.

      2. Another thing the O-man might consider are incentives for illegal aliens to become legal. If they declare themselves, and apply for citizenship but go to the end of the line like good immigrants, they also get a free patent, or coownership if the number of patents taken from the rich is not sufficient

      3. “The Prez should assure us that if you like your patent, you can keep your patent.”

        As long as it isn’t necessarily enforceable I’m sure that’s fine lol.

        1. “6”, suggest you educate yourself about patent examination. Patents are presumed valid because, as any patent examiner could tell you, the Patent Office does a bang up job of search and examination. Obviously you are unfamiliar with reality. Do drop by the Patent Office and chat up a few of the experts there. It is in Alexandria, VA.

  4. Let me make a guess based on Obama’s recent appointments: he will strengthen the IP system by appointing Mark Lemley to head the USPTO. “Mark will be a fine leader. He has ten of thousands of gallons of gasoline and a blowtorch primed and ready for any art unit that doesn’t claim a molecule. We are confident that Mark will strengthen our IP system. President Obama is a strong believer in the IP system. Just as President Bush was a great environmentalist, President Obama is a great believe in IP rights. He is looking forward to roasting marsh mellows in the forthcoming conflagration.”

    1. You had me until “bush environmentalist”. He’s a pretty good conservationist.

      Why not go with something more obvious like “Bush the great peacemaker of our time” or “Clinton a champion of women’s rights”?

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