By Dennis Crouch
In one of her first acts as de facto USPTO Director, Michelle Lee has proposed a new set of rules associated with patent assignment recordation. The proposal is quite complicated (occupying 18,000 words in the Federal Register) but the general idea is (1) that information regarding who owns which patents should be available to the public; (2) some rights-holders have been taking steps to hide their identity; and therefore (3) the USPTO proposes to require greater transparency. Although the proposal is signed by Deputy Director Lee, it was a White House initiative well before she took office.
The Office is proposing … to require that the attributable owner, including the ultimate parent entity, be identified … on filing of an application (or shortly thereafter), when there is a change in the attributable owner during the pendency of an application, at the time of issue fee and maintenance fee payments, and when a patent is involved in supplemental examination, ex parte reexamination, or a trial proceeding before the Patent Trial and Appeal Board (PTAB). The Office is also seeking comments on whether the Office should enable patent applicants and owners to voluntarily report licensing offers and related information to the Office, which the Office will then make available to the public in an accessible online format.
The recordation requirement would be retroactive and apply to all live patents and patent applications. However, the USPTO suggests that “most additional reporting will need to be done by companies that have complicated corporate structures and licenses, which often include the complex structures used by certain patent assertion entities (“PAEs”) to hide their true identities from the public.” The proposed penalty for failure to comply would have some teeth: abandonment.
Comments on the proposed rules are due by March 25, 2014 and can be emailed directly to: AC90.comments@uspto.gov. The review is being spearheaded by James Engel and Erin Harriman who are attorney advisors in the Office of Patent Legal Administration (OPLA).
Why: Before getting into the details of the proposal, we might pause to consider why the USPTO is proposing this new requirement. The USPTO identifies several potential benefits of a more complete ownership record. According to the USPTO, enhanced assignment information will:
- “[A]llow [competitors] to better understand the competitive environment in which they operate.”
- “[E]nhance technology transfer and reduce the costs of transactions for patent rights since patent ownership information will be more readily and easily accessible.”
- “[R]educe risk of abusive patent litigation by helping the public defend itself against such abusive assertions by providing more information about all the parties that have an interest in patents or patent applications.”
In addition to these public benefits, the USPTO argues that the assignment information will help the office in several ways, such as avoiding conflicts of interest and better identifying double-patenting problems.
The key issues regarding the rules are (1) which rights-holders must be named? (2) Under what circumstances must a parent-entity be named? (3) What is the timeline for providing information to the USPTO? And (4) what would be the consequences for failure to fully comply with the regulations.
Who is an Attributable Owner?: In my 1L property law class, we discuss all sorts of way that property rights can be divided amongst present and future interest holders; lienholders; easement holders; those with equitable rather than legal title; etc. The proposed requirement here identifies three particular class of rights-holders who will be required to record their interest: (1) titleholders (someone who has been assigned title); (2) those with rights-of-enforcement (such as exclusive licensees or others that would be a necessary party to an enforcement action); and (3) entities created in order to temporarily divest (or prevent vesting) of title or enforcement rights (such as a trust, proxy, etc.). One difficulty here is that patent ownership interests are defined by a mixture of local law (state and/or foreign) and federal law. It is quite difficult to create a simple rule that fits to each of the hundreds of potential local jurisdictional mechanisms of operation.
Parent Entities: In addition to the attributable owner, the law would also require the recordation of any “ultimate parent entity” of any of the attributable owners. As a term of art, ultimate parent entity is already defined by 16 CFR 801.1(a)(3) and the USPTO is intending to follow that approach. Chapter 16 of the CFR generally relates to commercial practices and is promulgated by the Federal Trade Commission (FTC). The definition is as follows: “The term ultimate parent entity means an entity which is not controlled by any other entity.” The CFR provides the following three examples:
1. If corporation A holds 100 percent of the stock of subsidiary B, and B holds 75 percent of the stock of its subsidiary C, corporation A is the ultimate parent entity, since it controls subsidiary B directly and subsidiary C indirectly, and since it is the entity within the person which is not controlled by any other entity.
2. If corporation A is controlled by natural person D, natural person D is the ultimate parent entity.
3. P and Q are the ultimate parent entities within persons “P” and “Q.” If P and Q each own 50 percent of the voting securities of R, then P and Q are both ultimate parents of R, and R is part of both persons “P” and “Q.”
Although not clear from the definition, there is an idea that a parent entity must exhibit some amount of control over the subsidiary. One purpose here is to identify “hidden beneficial owners.”
Penalty for Failure to Comply: Abandonment.
Read the Rules and Comment: 79 FR 4105 (2014).
[…] USPTO has proposed a new set of proposed rules that would require recordation of patent ownership rights, including the ultimate parent entity of […]
Curtis discusses the recording statute in Section 182 of his treatise. There he cites Justice Story for the following:
In 1843, Mr. Justice Story held that” the recording
within three mouths is merely directory, and that, excepting
as to intermediate bond fide purchasers, without notice, any subsequent
recording of an assignment will be sufficient to pass the title
to the assignee.” 1 What he intended to say, it is presumed, was,
that an assignment, if not recorded within three months from the
date of its execution, vests in the assignee a good title as against his
grantor, and a title as against third persons, which he can make effectual
by recording at any time. This mell,ning he made more distinct
in a subsequent case, adjudicated in the same year, in which he
made a more elaborate examination of the subject, and gave to the
statute the construction which has since been generally acted upon.2
1. Brooks v. Byam, 2 Story 525 (1843)
2. Pitts v. Whitman, 2 Story, 609, 614 (1843)
The Pitts case is extensively quoted. Among the things Story had to say was this:
“Suppose the patentee has assigned his whole right to the assignee for a full and adequate consideration, and the assignment is not recorded within the three months, and the assignee should make and use the patented machine afterwards, could the patentee maintain a suit against the assignee for such making or use as a breach of the patent, as if he bad never parted with his right? This would seem to be most inequitable and unjust; and yet if the assignment became a nullity and utterly void by the non-recording within the three months, it would seem to follow as a legitimate consequence that such suit would be maintainable. So strong is the objection to such a conclusion, that the learned counsel· for the defendant admitted at the argument, that, as between the patentee and the assignee, the assignment would be good, notwithstanding the omission to record it. If so, then it would seem difficult to sec why the assignment ought not to be held equally valid against a mere wrong-doer, piratically invading the patent right.”
“Could the patentee maintain a suit against a mere
wrong-doer, after the assignment was made, and he had thereby parted with all
his interest, if. the assignment was not duly recorded? Certainly it must be con·
ceded that he could not, if the assignment did not thereby become a mere nullity,
hut was valid as between himself and the’ assignee ; for then there could accrue
no damage to the patentee, and no infringement of his rights under the patent.
Then could the assignee, in such a case, maintain a suit for the infringement of
his rights under the assignment? If he could not, then he would have rights
without any remedy. Nay, as upon this supposition, neither the patentee nor the
assignee could maintain any suit for an infringement of the patent; the patent
right itself would be utterly extinguished, in point of law, for all transferable
purposes. Again, could the assignee, in such a case, maintain a suit for a subse·
quent infringement against the patentee? If he could, then the patentee would
be in a worse predicament than a mere wrong-doer. If he could not, then the
assignment would become, in his hands, in a practical sense, worthless, as it would be open to depredations on all sides.”
“Why should an assignment be required to be recorded at all?
Certainly not for the benefit of the parties, or their privies; but solely for the protection of purchasers, who should become such, bona fide, for a valuable consideration, without notice of any prior assignment. By requiring the recording
00 be within three months, the act, in effect, allows that full period for the benefit of the assignee, without any imputation or impeachment of his title for laches in the intermediate time. If he fails to record the assignment within the three months, then every subsequent bona fide purchaser has a right 00 presume that no assignment has been made within that period. If the assignment has not been recorded until after the three months, a prior purchaser ought, upon the ground of laches, to be preferred to the assignee. If he purchases after the assignment has been recorded, although not within the three months, the purchaser may justly be postponed, upon the ground of mala fides, or constructive notice of the assignment. In this way, as it seems 00 me, the true object of the provision is obtained, and no injustice is done 00 any party. In respect to mere wrong-doers, who have no pretense of right or title, h is difficult to see what ground of policy or principle there can be in giving them the benefit of the objection of the nonrecording of the assignment. They violate the patent-right with their eyes open; and as they choose to act ill fraudem legis, it ought to be no defence that they meant to defraud or injure the patentee, and not the assignee. Indeed, if the defence were maintainable, it would seem to be wholly immaterial whether they knew of the assignment or not.
“In furtherance, then, of right and justice, and that apparent policy of the act,
ut res magis valeat, quam pereat, and in the absence of all language importing that the assignment, if unrecorded, shall be deemed void, I construe the provision as to recording to be merely directory, for the protection of bona fide purchasers without notice. And assuming that the recording within the three months is not a prerequisite to the validity of the assignment, it seems 00 me immaterial (even admitting that a recording at some time is necessary) that it is not made until after the suit is brought. It is like the common case of a deed required by law to be registered, on which the plaintiff founds his title, where it is sufficient, if it be registered before the trial, although after the suit is brought, for it is still admissible in evidence as a deed duly registered.”
The Story quotes raise an interesting issue. If an assignment is not recorded, it the patent void to the assignee but not void to the assignor? Who has the obligation to record?
Let’s throw another log into the bonfire: statutory intent.
Justice Story: “Then it would seem difficult to see why the assignment ought not to be held equally valid against a mere wrong-doer, piratically invading the patent right.”
My, how ‘we’ have moved away from the basics in this era of Infringers’ Rights.
Justice Story: “ I construe the provision as to recording to be merely directory, for the protection of bona fide purchasers without notice.”
and
“Why should an assignment be required to be recorded at all?
Certainly not for the benefit of the parties, or their privies; but solely for the protection of purchasers, who should become such, bona fide, for a valuable consideration, without notice of any prior assignment.”
.
Funny that, the ‘public’ (especially competitors) is nowhere in sight as an intended beneficiary, much less academics who would find such information convenient.
(thanks Ned)
You are welcome, anon.
It seems to me that an easy fix is to make assignments effective on recording. If the assignee never records, the patentee still owns the rights against the world. Just as Story said, if the pirate intends to infringe against the patentee, why protect him if he suddenly has to deal with an assignee who records?
Cannot choses in action be assigned without changing title?
Cannot a patent be assigned after filing suit?
This whole project seems not only ill conceived, but amateurish at best. The people behind it need to be ridiculed, even while we derail it.
But we mark who they are for future reference.
Just as we should mark who started the whole “Troll” boogeyman scare – exactly opposite of what Malcolm believes.
“You offend Borg drones with such a comment.”
LOL, anon (and I do mean that in a positive way!) As that great Vulcan philosopher once said, Live Long and Prosper, anon.
I’m curious how many self-identifying “professionals” out there have had experience with the following situation, or if this seems like something that might just possibly be going out there in the “real world.”
Some fatcats set up a entity A (e.g., a corporation or some other limited liability entity). They spawn off a corporation “a1” as a “start-up” and lay out the essentials of the business in couple of patent applications. Shortly afterward a similar but non-identical concept is hatched by corporation A under a third corporate identity, “a2”. The essentials of a2 are set forth in a second set of patent applications (listing different inventors from a2).
The overall purpose of this incorporation and patent filing strategy is to allow A to hedge its bets. The separate in-house counsel for the two (or three … or four … or five … or six …) offspring companies will inevitably be making (or will wish to make) conflicting arguments during prosecution (as some of the applications of one offspring will likely be prior art against the other offsprings’ applications). Presumably any genuine conflicts (such as might lead to litigation or some other costly destruction of an offsprings’ patent portfolio) will be avoided by a licence between the offspring companies or by destruction of one of the companies (at the option of A, who shares board members with one or more of the offspring companies).
Does this seem like an especially unlikely scenario?
Great invention Malcolm: pointless straw.
Does this seem like an especially unlikely scenario?
It does to me. You’ve seen this, or are you making this up?
You’ve seen this
I think I’ve pretty much seen it all. I’ve seen CEO’s of companies I prosecuted applications for end up in prison (where they belong). Nothing surprises me anymore.
So is it the “recipe for disaster” aspect of that situation that leads you to believe that it is unlikely? Are there ways to maximize the “bet hedging” benefits f0r Company A while minimizing the likelihood of disaster?
“I think I’ve pretty much seen it all.”
Have you seen agenda-driven posters who supposedly are involved in the procurement of patent rights for others who proudly boast that they start their own businesses without performing due diligence of any kind on patents that they might be violating with their new business?
How about supposed lawyers engaged in massive intellectual dishonesty because “blogs are not courtrooms” and engage in the very behavior that cause them to have tremendous umbrage when others display the same characteristics?
That is a very interesting idea. I think it might work, especially given the (reputed) reluctance of the PTO to declare interferences (assuming that the subject matter of the applications was similar).
The new deputy director is making quite a splash, proposing the most radical rules package in the history of the PTO. I wonder if she has the gumption to take on information patents with the same verve? What if she were to propose a rule or guidance that would object to any claim language that included new information as a limitation unless the applicant demonstrate a functional relationship of the information to the underlying subject matter?
Impressive Ned – you actually appear almost ready to discuss the controlling law of the exceptions to the printed matter doctrine.
You do realize of course that functional relationship must exist with software or software could not be used to change the machine and make the machine ‘configured to,’ right? That is, after all, the only reason for the manufacture of software to exist in the first place.
functional relationship must exist with software
Wheeeeeeee! Round and round the circular argument goes.
Nothing circular about it Malcolm.
proposing the most radical rules package in the history of the PTO.
Seriously? More radical than the continuation and claim count limits?
Whew..
Just dodged that piece of blue sky.
Thanks Leopold.
the most radical rules package in the history of the PTO
So “radical” that it will massively impact the patent prosecution strategies of … nobody.
“The USPTO identifies several potential benefits of a more complete ownership record. According to the USPTO, enhanced assignment information will:
“[A]llow [competitors] to better understand the competitive environment in which they operate.””
Why is that a benefit? Doesn’t that benefit come at the detriment to the patent Owner? Why is the PTO looking at this from the side of competitors? Why do competitors need to know who owns an invention? Seems to me, all they need to know is that THEY DON’T own it.
“[E]nhance technology transfer and reduce the costs of transactions for patent rights since patent ownership information will be more readily and easily accessible.”
B.S. – If a patent owner was interested in transferring its technology, it would make its ownership and interest public on its own. There is no need for a requirement with a draconian penalty.
“[R]educe risk of abusive patent litigation by helping the public defend itself against such abusive assertions by providing more information about all the parties that have an interest in patents or patent applications.”
B.S. How does this particular information prevent abuse?
and another:
“Propaganda is not a matter for average minds, but rather a matter for practitioners. It is not supposed to be lovely or theoretically correct.”
That ‘not supposed to be theoretically correct’ sounds an awful lot like Malcolm’s refusal to be intellectually honest because this is merely a blog and not a court of law.
and from the same speech: “It is not the task of propaganda to discover intellectual truths. Those are found in other circumstances“
and another:
“One should not as a rule reveal one’s secrets, since one does not know if and when one may need them again. The essential English leadership secret does not depend on particular intelligence. Rather, it depends on a remarkably stup1d thick-headedness. The English follow the principle that when one lies, one should lie big, and stick to it. They keep up their lies, even at the risk of looking ridiculous.”
Malcolm to a remarkably stup1d thick-headed T.
Trying to learn how to spread pro-patent propaganda from the old timey master eh anon?
Not sure what your point is, 6.
As I have always mentioned, Malcolm is the poster boy for how not to post.
Interesting to see that historical quotes are removed wholesale.
Exactly what in the quote was more offensive than, oh say, “GFY with a rusty chainsaw”?
It surely is telling that the behavior that the quote pinpoints is allowed free reign, but the accurate description suffers censorship.
Les, I agree. IIRC, much of this kind of thinking is straight out of Silicon Valley, certain professors and certain large companies. That the new deputy director used to work for one of these, this looks a lot like private legislation to benefit the few being advanced by former employees…. The stink of corruption is profound.
Say what now? The Executive Office agrees with me? No, I was not aware of that. If the Executive Office agrees with me, why did the Executive Office hire Ms. Lee?
Funny Malcolm, you don’t seem to care to comment about the accuracy of those quote fitting your blogging ‘style.’
Shockers.
MM, let’s talk turkey.
Who benefits the most? Google. Who has Google stock options? Hmmm…
Who benefits the most? Google.Who benefits the most? Google. Who has Google stock options? Hmmm…
Spit it out, Ned. You seem to trying to establish some “causal relation” (to coin a phrase).
Does everyone see how it works with the patent txxbaggers? Either the rule they don’t like favors “BigCorp”, in which case the proponents of the rule are surely in the pocket of BigCorp or stand to benefit via the increase in stock value that will inevitable (LOL!) accompany the proposed rule change; or the rule they don’t like is a totalitarian-socialist effort to undermine freedum luvving “principles” and take away everyone’s private property.
The txxbaggers are so deeply invested in their own horsesht and so drunk on their own self-importance that it’s impossible for them to keep their b.s. straight.
“Keep the government out of Medicare!” “Socialists want Google, Apple and IBM to run the world.”
It’s pathetic and sad.
Nice dissembling Malcolm.
You do know that a system can be attacked from multiple angles at the same time, right?
That such attacks are in no way indicative of not “it’s impossible for them to keep their b.s. straight.”
But of course, you already knew that, right?
… competition … Why is that a benefit? Doesn’t that benefit come at the detriment to the patent Owner?
Uh, Les, improved competition is a benefit to the public. You know, those people that the USPTO acts on behalf of. And yes, improved competition does come at the detriment of those who have market power.
Now then, how exactly does knowing who owns a patent improve competition?
Do you mean, If a competitor knows that the patent is owned by a small company, then they can run a D&B on them and determine that they could not afford to enforce the patent so the competitor can go ahead and infringe it with impunity. Could it be that that is what is meant by improved competition?
If not, then please do explain how this ownership knowledge would “improve competition”.
Leopold, I say thee whoa: “ improved competition is a benefit to the public”
Not so fast. It is pertinent to remind everyone exactly who coined the term “Troll” and exactly why: there was no benefit to the public involved.
Leopold, I thought that you were going to abstain from commenting on things you did not know about?
At comment 17.1.1.2.1 above I asked a question, and got an excellent informative reply from LB, why the provisions of the EPC won’t “cut it” in the USA.
It is not as if Europe has no experience of lavishly funded NPE’s quite prepared to take their issues to supreme courts all over Europe. But Europe seems not to have a problem with who actually “owns” DSS or IPCom. My perception is that in Europe it matters less who stands behind the Plaintiff than whether the P has an arguable case and whether it is good for the costs, should it lose the action.
Politics is the art of the possible. I guess the USPTO’s proposed Rules solution is possible, whereas other solutions to the USA’s NPE problem are simply not possible to implement.
LB you write:
“Max, I’m aware that it’s hard for you to believe that we do anything right here in the colonies.”
My position is that no single jurisdiction does everything right, but that they can each get incrementally better, by watching what the others do, and then themselves doing it better.
Max: Politics is the art of the possible.
This slogan does not actually apply here when it comes to recently proposed patent policies. For these, the following quote is more apt:
“Politics is the art of looking for trouble, finding it everywhere, diagnosing it incorrectly and applying the wrong remedies.” –Groucho Marx
MaxDrei has an interesting point: “My position is that no single jurisdiction does everything right, but that they can each get incrementally better, by watching what the others do, and then themselves doing it better.”
Of course, this only goes so far.
National sovereignty does come into play. As does the fact that each jurisdiction does not have the same foundational principles.
And in contrast to Malcolm’s knee-jerk reaction about my providing the insight of Hal Wegner, my personal view is that there is no one-world-wide patent because of the differences in the foundational principles of the individual sovereign nations.
Malcolm leaps too quickly (and of course, leaps incorrectly).
My pal Hal is well known for his desire to coalesce patents systems into a global system. We are not there yet. Further, I doubt that even Malcolm would get it wrong with the observation that the AIA was an attempt (an imperfect attempt to be sure) to take a step closer to a single world norm. My own personal view is not the same as Hal’s – but my own personal view was not involved in my sharing of Hal’s insights. Malcolm’s incorrect judgement not withstanding.
Hal’s point was that this (illegal – and probably so on more than one level) agency fiat, put forth with zero consultation with other patent powers is more a divergent step than a step towards any semblance of unified patent law.
Hal’s point was that this (illegal – and probably so on more than one level) agency fiat, put forth with zero consultation with other patent powers
And my point is that, shameless hypocrite that you are, if a rule limiting patent rights in away way was proposed after “consultation with other patent powers”, it’d make no difference to you whatsoever. You’d be spewing the exact same whining self-serving b.s. here, except you’d be complaining about socialists trying to establish a one-world government or some other mouthbreather tripe.
And your point was simply off.
As stated, my post was a pure reflection of what insights Hal Wegner offered.
You attempted to smear (and do so again) merely because I am the one presenting Hal’s insights (you kind of missed the fact that I note that I do not share Hal’s aim for a global system).
There is no hypocrisy involved – at all.
.
Stop reeling for a moment. Gather your breath (and what little wits you can muster), and try again.
MM: “‘deny damages to anyone who is not the record owner…’ This is not just about ‘litigation abuse.'”
MM, no, it is not. But that does not mean that the simple solution will not effectively force the patent owner to keep the record updated if he is intending to enforce the patent.
Trying to keep the record straight regarding real parties in interest and privies serves no real purpose. Why does the public need to know the beneficiaries of a trust if one knows the trustee?
Re: double patenting, the office simply has to reject the claims. Let the applicant claim the benefit of the exclusion accorded common owners if he wants to.
Regarding estoppels and the like in IPRs etc. the rules currently provide that the parties identify real parties in interest and privies. Why is this not sufficient?
It strikes one that the proposed rules are not only excessive, but excessively excessive, and, to boot, unwise, burdensome and unnecessary; and they serve no good purpose and might do significant damage to the patent system if left unchecked.
Trying to keep the record straight regarding real parties in interest and privies serves no real purpose. Why does the public need to know the beneficiaries of a trust if one knows the trustee?
You’re comparing an entitlement granted by the government and enforceable against the public to a “private trust”? That’s a ridiculous comparison.
Many purposes for making this information readily available to the public have already been identified. Simply because those purposes are not of interest to you, Ned, does not mean that they have no purpose. Moreover, the public who is allegedly being served by this runaway train of a patent system has a right to know who the entities are who are abusing or exploiting the system. Why does the public have a right to know that? Because it’s a public agency. It operates at the whim of the public, in a manner chosen by the public, for purposes determined by the public. To take one simple and easy-to-understand example, the patent system is not just a #$@ toy for some rich axxhole patent attorneys to get richer with at everyone else’s expense.
they serve no good purpose and might do significant damage to the patent system if left unchecked
What’s the “significant damage”, Ned?
the proposed rules are not only excessive, but excessively excessive,
It’s funny. All the people I’ve spoken to about this — including many “innovators” far brighter than the bottom-feeders who tend to yack up their patent luvvin’ furballs here — see nothing at all “excessive” about the proposed rules. But a certain class of deeply invested parties is seems very frightened indeed of having the lights turned on. I wonder why.
ON the damage:
It raises costs enormously at the risk of abandonment per numerous posts here. Who benefits?
Moreover, the benefits have to outweigh the costs else the new requirements damage the system and can and will lead to wholesale abandonments of whole portfolios for no really good reason.
A patent is not an entitlement program. It is property, by precedent and by statute. The government’s role is to assure the grant is measured, measured by the novel contribution. Once granted, the government needs to butt out except to the extent that a patentee is abusing his patent or his patent is an abuse.
Finally, if the government (read the PTO) is going to deprive the patent owner of his patent, the PTO must do so only in accordance law and due process.
What the Government proposes here is not law even if you think there is due process.
It raises costs enormously at the risk of abandonment per numerous posts here
There is zero evidence of an “enormous cost raise.” The hyperventilations of deeply invested patent luvvers to the contrary are devoid of meaning.
wholesale abandonments of whole portfolios for no really good reason
Again, there are good reasons. You may not like them but they are perfectly good reasons.
Wholesale abandonments of whole portfolios? Even if that ever happens, if it was a good faith mistake I don’t see why it wouldn’t be a fixable error.
A patent is not an entitlement program. It is property
Food stamps are property, too. There is no contradiction between a government entitlement program and the (relentless abused) concept that patents are “just like any other property”.
Once granted, the government needs to butt out
The government, last time I checked is “we the people.” I’m quite confident that the vast majority of people welcome increased transparency with respect to the patent system which is a public agency, working on behalf of the public, at the whim of the public, in the manner in which the public decides.
The fact that you guys protest this much just gives your game away. Keeping track of who owns a patent isn’t so hard. What’s hard for you to accept is any changes to the “hide the ball” game that is being played with respect to the public who is at the mercy of an increasingly zealous and greedy group of patent collectors.
“Food stamps are property, too”
LOL – tell me again of the Quid Pro Quo for foodstamps.
“working on behalf of the public, at the whim of the public, in the manner in which the public decides.”
You see Malcolm, you are missing the point being stressed here – “law” like this rule should be contemplated by Congress, not written by fiat.
“The fact that you guys protest this much just gives your game away.”
LOL – more of that ‘darling’ you must of something to hide logic.
Your mantra is wearing mighty thin.
“You see Malcolm, you are missing the point being stressed here – “law” like this rule should be contemplated by Congress, not written by fiat.”
Perhaps but with the congress all but useless nowadays it seems that the president has “discovered he has a pen and a phone” (if you read the news these last few weeks).
MM, on this issue, I think you are being a little unreasonable. There is a simple and elegant solution that is in use in Europe. We should not think we can do things better unless there are known problems with the European system.
While I still disagree with First-to-File, we adopted it primarily because the Europeans standardized on it. Had Europe standardized on First-to-Invent, we would have not moved to First-to-File.
I support the European approach — but by a change in the statute.
Ned We should not think we can do things better [than Europe]
So much for American “innovation.”
“A patent is not an entitlement program. It is property, by precedent and by statute. ”
Well of course not Ned, one single patent isn’t an entire program. But the patent system itself is an entitlement program. By statute.
If you don’t like it, because, oh, I don’t know, your political leanings are against entitlement programs, then you should lobby congress.
“Once granted, the government needs to butt out”
Really? So you don’t want the ability to go to court to enforce your patent?
You’re like that old man with the sign stating “keep government out of my medicare!”
You’re like that old man with the sign stating “keep government out of my medicare!”
Why do you think we call them “patent txxbaggers”?
Who is “we?”
This is stunningly poor rule making from an ivory tower with no real-world perspective at all.
Transparency hardly accomplishes anything meaningful and has a drastic penalty.
To all you patent prosecutors out there, your malpractice insurance premiums will sky rocket if this gets passed.
To all you patent prosecutors out there, your malpractice insurance premiums will sky rocket if this gets passed.
LOL. Any prosecutor practicing for more than two years has probably heard this same whine from the patent teabagger crowd twenty times.
It’s bullsht.
This is stunningly poor rule making from an ivory tower with no real-world perspective at all.
Right, because in “Patent Prophet’s” “real world” you’re not allowed to look behind the curtain until the patent troll says so.
It’s obvious that you are a very frustrated person.
You seem to know just enough to rant about patents (and insult posters at random), but are not talented or smart enough to actually be successful at whatever it is you do.
Hence, your bitter attitude.
In addition, any one successful enough would simply not have enough time to litter this blog with the volume of junk that you do.
I’m not a hater. Just know that every time you post, my pity for you grows.
Lastly, this will be the last time I reply to you. You really don’t matter.
“It’s obvious that you are a very frustrated person.”
You and yours obnoxiousness will do that to people 🙁
The most relevant paragraph in the statute regarding the proposed rule is
Ҥ 261. Ownership; assignment
Subject to the provisions of this title, patents shall have the attributes of personal property. The Patent and Trademark Office shall maintain a register of interests in patents and applications for patents and shall record any document related thereto upon request, and may require a fee therefor.” (My emphasis).
“Upon request” is upon request of the applicant – not of the PTO. The proposed rule, however, makes submission of documents for recording mandatory. It likely overreaches the statutory authority by ignoring the statutory directive that “patents shall have the attributes of personal property” and by imposing a mandatory collection of information in violation of the Paperwork Reduction Act. By this proposed executive action, patents would effectively cease to be treated as personal property, ostensibly for the interest of “transparency” and “streamlining.” Next we perhaps should make public a complete list of every entity’s property holdings so that everything is “transparent.” Only those who have something to hide would disagree, right?
The mandatory disclosure requirements will have very serious chilling effects on patent filings – if Congress wanted to force such disclosure under the Patent Act, there would not have been the most recent efforts to legislate “the real party of interest” provisions now proposed in the Congress. This is an agency action that would likely fail APA scrutiny.
The logic and questionable justification behind these proposed rules, if accepted at face value, would also be applicable to agency changes in corporations law to remove the ability to have ANY hidden assets. After all, patents are not the only objects that prevents complete knowledge on a competitive basis, and streamlining public disclosure of personal property and corporate structure would have additional benefits of streamlining tax and SEC enforcement as well – right?
An example of this breathtaking and extreme overreach is on Federal Register page 4110 “Hidden Beneficial Owners:”
“Information required to be reported would also include identification of entities that are trying to avoid the need for their disclosure by temporarily divesting themselves of ownership rights through contractual or other arrangements. The Office deems the beneficiaries of these temporarily divested rights to be attributable owners.” (my emphasis). The PTO is rewriting Corporations law all on its own.
Need I say more?
Actually, that’s a pretty nice collection of the various points that I have made along the way.
Thanks Ron.
(Umbrellas open for the Malcolm CRPfest to follow)
Actually, that’s a pretty nice collection of the various points that I have made along the way.
Hey, Ron, you’re cheerleader is here to remind you that he thought of everything first. Just in case you forgot, you know.
If you like FULL DISCLOSURE, start by using REAL NAMES on this blog…..
Now that (Malcolm’s post at 21.1.1) is a sign of petty jealousy.
Which substantive point is it that you think that I have not already provided?
Um, you do know what a substantive point is, right?
Hey Malcolm,
As you don’t seem to like what Ron Katznelson had to say about this proposed rule, why don’t you try reading the article I wrote on Granville T. Woods (“The Black Edison”): link to ipwatchdog.com and link to ipwatchdog.com Some soothing reading might calm your jangled nerves.
Ron Katznelson: Next we perhaps should make public a complete list of every entity’s property holdings so that everything is “transparent.”
Oooooooh!!!! So scary!!!! Sure, Ron. It’s a really slippery slope from (a) requiring a relatively microscopic number of entities to disclose their controlling interest in a government granted entitlement that can be used as a basis to sue any member of the public, to (b) requiring everybody in the country to list their personal property.
Its this sort of predictably inane and hysterical shrieking, Ron, that gives your game away. Not that there was any question about where you were coming from in the first place.
“Its this sort of predictably inane and hysterical shrieking, Ron, that gives your game away. ”
LOL – because one type is personal property and the other type is personal property…
Um, wait.
It’s because Malcolms says so, oh how very Carroll of him.
““Upon request” is upon request of the applicant – not of the PTO”
o rly?
Lessee now…an 18,000 word opaque government regulation to invent a problem and then solve it in part by instituting the draconian penalty of loss of property rights that will surely penalize far more innocent mistakes than root out the imagined evil.
Governance by misdirected sledgehammer is how we do things now in America.
Yes, but did you notice how many times they repeated the buzzwords of the Whitehouse propaganda piece…?
Prof. Crouch: “In my 1L property law class, we discuss all sorts of way that property rights can be divided amongst present and future interest holders; lienholders; easement holders; those with equitable rather than legal title; etc. ”
Do you cover the history of alienability of property? Or how US jurisprudence has always promoted such alienability?
Perhaps a crossover with the notion of freedom to contract under US jurisprudence might provide an interesting starting point for some of the regulars who seem to have forgotten many of the basics of legal understanding in their crusades.
btw – really like the added feature of numbering the independent comment threads!