50 thoughts on “Executive Action For Patent Reforms

  1. In another thread, I laughingly suggested that a troll is anybody who was not marking, or whose licensee was not marking. But in all seriousness, the ITC has recently ruled that “domestic industry” requires proof that a covered product is being made or sold in United States under the patent. While this is not a requirement for marking, it is very close. It also suggests that the ITC has now gotten on board with the concept that a patent owner who has no products and no licensees making covered products is not entitled to an exclusion order.

    One of the companies that was denied an exclusion order because they did not prove a domestic industry under the new standard was, I believe, Microsoft. This illustrates, I believe, the disconnect in talking about trolls as if large companies did not assert patents aggressively, and are always trying to protect products. In the case of Microsoft, they wanted the ITC to exclude a competitor product, with a patent they could not prove or did not prove they themselves were using.

      1. anon, it is close in that one must demonstrate that the claim covers a product that one is making or that one’s licensee is making.

  2. In case you do not know, check Lex Machina, link to demand.lexmachina.com, out of Stanford, Lemely’s U.

    What appears to be going on here in connection with the requirement to keep ownership up-to-date is to support Lex Machina in its effort to identify real parties in interest to those who received “demand” letters.

    An obvious reason why writers of demand letters must keep their identity hidden as best as possible is because the requirements for DJ action had been lowered so much that any offer of a license can trigger a DJ action.

    Should also be observed that anyone can file an IPR against a patent without knowing who the real parties in interest are. The rules require the patent owner to identify the real parties in interest within a very short period of time after the petition has been given a filing date.

    1. out of Stanford, Lemely’s U.

      You do know the connection is stronger than that, right Ned?
      You do know who started Lex Machina, right Ned?

      Check the Board of Directors of Lex Machina.

  3. Radical thought: since “improving examination” is an eternal goal that never seems to be consummated in any meaningful way, why not go to a registration system? No examination, no presumption of validity. Sue on a patent only after a prior art search is done and opinion of counsel received that claims are valid and infringed to pass Rule 11. The litigants will thresh out validity far more thoroughly than a bureaucratic apparatchik ever will.

    Or we could keep operating under the fiction that the federal government is the expert on everything and is always above average, simply striving to get even better. Call it the ObamaPatent.

    1. “Radical thought: since “improving examination” is an eternal goal that never seems to be consummated in any meaningful way, why not go to a registration system? ”

      For all the btching and moaning it isn’t that bad. And it surely isn’t nearly as bad as registration system is.

  4. given the general distaste among the public
    The public doesn’t care … not one iota.

    You’ve overlooked one of the fundamental rules of politics — follow the money. This isn’t about the public, it is about campaign donors.

    Reap the whirlwind
    Whirlwind? This is more like a zephyr. Here today, forgotten tomorrow.

    1. “The public doesn’t care … not one iota.”

      That’s interesting, because when I ask them they seem to. All you have to do is explain to them that all someone needs to do is dream up a novel non-obvious function for a computer, pay a few thousand dollas, and you’re good to go to troll people for a few years. When they ask what trolling is you’ll generally get a reaction from them.

      ;)

      1. All you have to do is explain to them that all someone needs to do is dream up a novel non-obvious function for a computer, pay a few thousand dollas, and you’re good to go to troll people for a few years.
        You mean you misrepresent the facts (called “lying” is some circles) to them, and then ask them whether they care?

        If you cannot convince somebody of the value of your position without misrepresenting the facts, then you have little hope. Intellectual property is in the bottom 10% of what 99% of people worry about.

        1. “You mean you misrepresent the facts (called “lying” is some circles) to them, and then ask them whether they care?”

          Well if you’d like to expound on just what you think I’m “lying” about then why don’t you go ahead and expose meh instead of prattling on about my “lying”?

          “Intellectual property is in the bottom 10% of what 99% of people worry about.”

          Of course, but not for long if the patent maximalists have their way. Patents for everyone and more patents for all is their mantra! Can you dream up a function for a computer? Got an idea for a business? A patent for you my fine gentleman! Step right up! Ahem, after some thousands of dollars though of course, need a loan? Visit the loanshark down the street of course!

          Keep on going down the road we’re already (or were already thanks to the fed. circ.) and that’s exactly where you end up. That any part of our government has the wherewithal to avoid that PR nightmare for the patent system is dam near a miracle, and whether congress will or not remains to be seen.

          1. if you’d like to expound
            Your statement that “all someone needs to do is dream up a novel non-obvious function for a computer, pay a few thousand dollas, and you’re good to go to troll people for a few years” is a gross mischaracterization of how easy it is to get a patent and how easy it is to actually “troll” people for money. That … and you have a well-deserved reputation.

            1. The Critic,

              6 does not have the reputation for blatant 1ying. 6 has a reputation of being a ninny and engaging in character suicide.

              While it is close, 6’s mantra of “law is only subjective in the mind” stuff and thus game playing like omissions and mis-characterizations are permitted is subtly different than another poster’s reputation for “intellectual honesty is not required because this is a blog and not a court.’

              I can see why you are confused, though, and it is an easy (and forgivable) mistake to make.

              Of course, the difference being that for one, the knowledge of the right path (i.e. the real controlling law) is known, and for the other, the difference between right and wrong is just not recognized as being a real, objective difference.

              Would you criticize a lemming as harshly as you would someone who was herding lemmings over a cliff? Would you criticize as harshly someone with an IQ of a geranium or someone who has volunteered admissions showing the person know reality, but refuses to incorporate that reality in their policy pursuits?

            2. “s a gross mischaracterization of how easy it is to get a patent ”

              I’ve seen plenty of prosecution histories where someone dreamed up a novel non-obvious function for a computer, scribbled it down in prose, drew some boxes with that prose inside, and then got a first action allowance.

              Sure many people will get rejected. I have no problem telling the people on the street that either. Even those will, according to the current numbers, generally eventually get something. Though I’m happy to admit that we catch some of these fraudsters at the office! If only we had better numbers on catching these folks then we wouldn’t be having today’s convo.

              And I made no statement about how “easy” or “hard” it is to troll people. Let’s just agree that it is hard. So what? That “fact” which we agree to doesn’t bear one little bit on what I said in my statement. You get your patent and you’re good to go on your trolling operation. The trolling operation of course is when the “hard work” of trolling kicks in.

              “That … and you have a well-deserved reputation.”

              Amongst tar ds or whom? I have no reputation for “lying” ya ta rd. Anytime you think I’m “lying” you just go ahead and bring up why you think what I’m saying is a lie.

            3. I’ve seen plenty of prosecution histories where someone dreamed up a novel non-obvious function for a computer, scribbled it down in prose, drew some boxes with that prose inside, and then got a first action allowance.
              Plenty? Start naming patent numbers. I would like to see Dennis do some research on first action allowances in which all claims were allowed. Group it by art unit and over time. You would have to exclude anything that is a divisional/continuation. My guess is that the computer arts probably has one of the lowest percentage of first action allowances. I would also guess that the percentage of first action allowances has steadily decreased over time (perhaps ticking slightly upwards the last few years).

            4. Careful Critic – 6 has been busted many many many times making plainly false statements (making things up as he goes). In fact, I have personally busted him many times.

              I say be careful because you might start mistaking him for the real blatant 1iar on these boards. You know the guy – the one that says that intellectual honesty is not required because this is just a blog and not a court.

      1. How do you like the house bill?
        Yawn.

        I would have hoped that after the AIA … the great “patent reform” bill that took years and years to pass and was about as watered down a “reform” you could ever ask for that you would have learned something.

        There are well-healed supporters on both sides of the issue. Congress is going to milk those cash cows for as long as they can. Moreover, while whatever bill that ends getting signed into law may move the needle a little bit, Congress needs to be able to go back to those cash cows for the next reform bill, and the next reform bill, and the next reform bill. It doesn’t pay for Congress to make radical changes.

        As for the administration, their failure to even nominate a replacement for Kappos for 471 days (assuming that number is correct) should give you a better idea as to the importance they really place on the issue.

        1. “well-healed”

          I swear, you and Ned. Making that same mistake within days of each other. Jebus guys it’s “well-heeled”. As in their heels are nice. On their expensive shoes they can buy because they have a lot of money.

          ” It doesn’t pay for Congress to make radical changes.”

          But it does pay for Congress to keep small business from outright revolt against legalistic nonsense. Keep it up with the scanner trolling and similar and we’ll see just how watered down the legislation is over the next few years.

          “As for the administration, their failure to even nominate a replacement for Kappos for 471 days (assuming that number is correct) should give you a better idea as to the importance they really place on the issue.”

          Getting someone really qualified and interested who isn’t in love with the status quo is easier said than done. Maybe you can toss in a few nominations along those lines?

          1. it does pay for Congress to keep small business from outright revolt against legalistic nonsense
            Patents impact so few “small businesses” that it doesn’t even move the needle.

            Getting someone really qualified and interested who isn’t in love with the status quo is easier said than done.
            The status quo? Who gave us that? Ahh … let me think … oh yeah, the current administration. You do realize who nominated Kappos? You also realize that Kappos probably gave the administration a heads-up before he was to leave so that “471 days” understates how long the administrations has sat on its hands. They don’t care because IP isn’t a hot topic. It is too boring, too nuanced, and impacts far too few people to be of importance.

            1. …and I would add that a few placed “soundbytes” seems to be enough – regardless of the veracity of the soundbytes.

              Just throw the propaganda on a sheet of paper and the sheet of paper a FACT SHT.

            2. “Patents impact so few “small businesses” that it doesn’t even move the needle.”

              As is, but you’re forgetting, according to the maximalists their dream is for patents to affect nearly everyone, including everyday small businesses not engaged in the useful arts what so ever. That is, according to them, patent extortion costs should just be another cost of doing business for everyone, not just manufacturers making new items as is tradition.

              You don’t seem to be very familiar with the maximalist’s playbook brosef. Ask anon about it sometime, he’ll bring you up to speed.

              “Who gave us that?”

              The federal circuit mostly but along with previous administrations and the current one over the course of the last 20 years or so.

              “You do realize who nominated Kappos?”

              Sure do. The problems that are now at hand were barely being discussed at the time.

              If you have someone you’d like to nominate, throw em in bro.

    2. Critic: The public doesn’t care … not one iota.

      Keep believing that. It’s certainly true that except for the invested classes and bottom feeders fixing the patent system isn’t on the top of anybody’s list (heck, it’s not even on top of the bottom feeders list — they want it to be as broken as possible). But people certainly do care about junky patents and bottom feeding patent trolls.

      You should try to get out and meet people for a change.

      You’ve overlooked one of the fundamental rules of politics — follow the money. This isn’t about the public, it is about campaign donors.

      It actually is about the public. It’s not 1995 anymore. It’s 2014. There’s a lot of discussion about the broken patent system and how to fix it and the public is aware of the problems. They are also aware of a certain class of mostly wealthy, faux-libertarian bottom feeding patent attorneys who are trying to spin a ridiculous “David and Goliath story.” You know, guys like Big Gene who puff themselves up like they are the only people who understand “innovation” and how to make it happen.

      That’s not to say that campaign donations don’t influence politics. Of course they do. But it’s equally true that Mitt Romney will never be President in spite of his wealth. It’s not because he was outspent. It’s because as dumb as American people are, they aren’t that dumb.

      Try to keep up with the times.

      Intellectual property is in the bottom 10% of what 99% of people worry about.

      And yet the folks whining about the increased scrutiny and regulation of patents would have you believe that it’s the beginning of the end of advanced human civilization. Kevin Noonan will tell you that every kid that dies of a disease could have been saved if only we’d let nice people enforce patents on thinking new thoughts about correlations. Ron Katznelson believes that making people record their controlling interest in patents is a big step down the slippery slope where everyone has to report all their personal property to the government.

      For some reason, the public doesn’t really buy any of that b.s. But they do worry about being some bottom-feeding attorney sueing them for using a computer in their business, once their business becomes successful.

      Gosh, I wonder why.

      you misrepresent the facts

      As if that’s a big concern of yours.

      1. “Kevin Noonan will tell you that every kid that dies of a disease could have been saved if only we’d let nice people enforce patents on thinking new thoughts about correlations. Ron Katznelson believes that making people record their controlling interest in patents is a big step down the slippery slope where everyone has to report all their personal property to the government.”

        Lulz x 2. Oh wait, more like 2000000000000000.

      2. “But they do worry about being some bottom-feeding attorney sueing them for using a computer in their business, once their business becomes successful.”

        Exactly.

        Didn’t see that one coming at all!

      3. Malcolm responds to “you misrepresent the facts

        with: “As if that’s a big concern of yours.

        LOL – “b-b-b-b-but misrepresenting facts is OK since this is a blog and not a court”

        /eyeroll at the inanity of Malcolm’s self-FAIL.

      4. But people certainly do care about junky patents and bottom feeding patent trolls.
        People also care about bigfoot — actually, probably a lot more people. The fact the some people care doesn’t say anything about the public, as a whole.

        There’s a lot of discussion about the broken patent system and how to fix it and the public is aware of the problems
        There is probably a lot more public discussion about who is the greatest Pokémon character. Don’t confuse what is important to the people who run in your circles to what the public cares about.

        yet the folks whining
        We’ve certainly heard a lot of whining from you.

        But they do worry about being some bottom-feeding attorney sueing them for using a computer in their business, once their business becomes successful.
        Hardly. It is very low-level concern for most businesses (particularly small businesses).

        As if that’s a big concern of yours.
        6 is a big boy. He can take care of himself.

        1. …and keep in mind the special place that Malcolm’s “public” has in his mantra.

          You know, it is the same “the masses” that Jane Fonda had in her mantra, or the Peoples Republic of China…

        2. People also care about bigfoot — actually, probably a lot more people.

          Go right ahead and deep kicking up the dust and pretending that the problems don’t exist.

          It makes it easier for the rest of us to address and fix the problems when the only people whining about the fixes are uninformed ignoramuses or deeply invested exploiters of the broken system.

          1. No one is pretending that “problems don’t exist.” Stop with the strawman.

            The problem people have with your rants is the disassociation between the problem (any problem) and your unsupported-policy-my-way-by-fiat approach to resolving the problem.

            When you have the law on your side, pound the law.
            When you have the facts on your side, pound the facts.
            When you have neither, pound the table.

            All you do – all you ever do – is pound the table.

            The rest of your AOOTWMDs post is just so easily dismissed as yet another meaningless post by you.

  5. Band-Aids and recycled old ideas.

    Higher Quality Patents? Yawn … that one is as old as the hills

    More transparency? Oh yeah … shaming people making $$$$ is going to stop them

    Crowdsourcing? Been there, done that

    Training for Examiners? how about fully funding the USPTO for once?

    Pro Bono Legal Help? Ha ha

  6. What we need is a new definition of troll. First, we define every record patent owner a troll. Put out a list. Next, we remove owners from the list in exchange for an annual “fee” to be contributed to a “charity” know as the Good Guy shake down PAC, the officers of whom are appointed by the president (provided they are democrats) and who may contribute (and are expected to contribute) to the democratic party presidential campaigns.

  7. The PTO’s website is giving legal advice to non-legal members of the general public about what infringement is, and what to do when accused of infringement. That is forbidden under the Unauthorized Practice rules of every state.

  8. Is that like the same whirlwind reaped by those who openly proselytize that intellectual honesty is not required on blogs because they are not courtrooms?

    LOL – yeah, thought so.

    1. those who openly proselytize that intellectual honesty is not required on blogs

      There’s plenty of room in the clown car. It’s arriving to pick you up shortly.

  9. Hal Wegner has a (real simple) addition to the meme:

    It has now been 471 days since Under Secretary Kappos announced his resignation. 471 days!

    Do someone say “Action!“…?

  10. Improved examination with more and better categorized prior art available to better trained examiners is the key in my opinion.

    1. What? That’s not new and revolutionary. That idea has been around forever. Nothing that simple could POSSIBLY be a solution.

    2. User fees; you M0r0n.

      Let’s start with a reimbursement for all the taxes on innovators that got pulled out of the Patent Office and went to general funds…

      1. let’s start with reimbursement for all the taxes on innovators

        Sure. Run with that. Call your congressman. Maybe ask him/her to impeach some judges while you have them on the phone.

        They really love you patent teabagger guys. They know you have your finger on the pulse of the country.

    3. Fish – The USPTO has gone all-in on the CPC system. The US classification system had been allowed to waste away and was too far gone for saving, but the Europeans created their nifty ECLA system. So we’ve relabled ECLA with the word cooperative (aka CPC).

      The only downside is that most of the hand wringing about examination and quality is in the art areas where ECLA (and now the CPC) wasn’t very well fleshed out. Since Europe has different laws, they never really created a good classification system for business methods and software.

      But the two patent offices are trying and they are getting the rest of the IP5 on board eventually as well, so there is hope for better categorized prior art, at least on the patent side.

      With regard to NPL, that will always be tough due to the hundreds of different databases in which this information lives and need for profit by the owners of those databases. There are consolidators of information (Dialog, STN) that span individual databases, but consolidation adds layers of cost.

      1. and need for profit by the owners of those databases

        Shouldn’t ‘data’ be free?

        Free the Data !

        (let’s start with Lemley’s Lex Machina)

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