239 thoughts on “Jay Walker: Fix the Licensing System

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    Malcolm

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    “look at me look at me”

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    1. As 6 has pointed out, Sunday is usually a very difficult day for Billy. Looks like he’s losing his shirt even earlier than usual.

      1. MM, it is pretty clear that you just post on top whenever another post on the top holds a view you don’t like.

        MM’s smoke machine gen erates an enormous amount of smoke.

        1. you just post on top whenever another post on the top holds a view you don’t like

          Do you sell your Super Giant Tinfoil Hats or do you just advertise them?

          Either way, you should probably check the patent database first to make sure you aren’t infringing, especially since you’re using an networked text dissemination application as part of your business.

          1. Sure MM. Sure MM. Just a coincidence. Fact is that every time a post is on the top with content that goes against your policy statement sheet you post another one of your j unk posts.

  2. AMDOCS LIMITED v. OPENET TELECOM, INC.

    7. A method of processing [data] comprising:

    receiving [data] from a first source;

    correlating the first [data] with [data] available from a second source; and

    using the [second data] with which the first [data] is correlated to enhance the first [data].

    Try to believe that a piece of miserable cr xp like this was granted by the USPTO.

    And now we’re being told by the self-proclaimed Most Important Innundators Ever that we need more of this stuff and we need to make it less risky (not more) to approach folks and threaten them with litigation unless they take a license to gar bage like this.

    We don’t need more j nk like this in our patent system. We don’t need to make this kind of cr xp easier to obtain or easier to enforce or easier to license. We need to get it out of the system, and quickly.

    After that, we can work quickly to make the patent system useful again for innovators who advance technology as oppposed to the bottom-of-the-pond innundations dredged up by starry-eyed wannabe Internet billionaires trying to sx cker us all into subscribing to another advertising platform (“I claim an information processing method, wherein, in response to a request, a configured computer provides information about the availability of potable drinking water to a community, wherein the community is within 150 miles of one of the Great Lakes, and wherein the community’s regular drinking water supply has been deemed unsafe, and wherein said potable drinking water is delivered individuals at a predetermined drop-off point, wherein said drop-off point is not a gas station, convenience store, or grocery outlet.”)

    1. Try to believe … like this was granted by the USPTO
      I don’t have to believe … I know. I know those claims are getting allowed EVERY DAY. Doesn’t it make you warm inside?

      We need to get it out of the system, and quickly.
      This propaganda was paid for by whom?

    1. What is going on now? Rader’s seat is being auctioned to the highest bidder.

      Will pharma or Google win? My bet is with Google.

      1. What a joke of a democracy we live in when a shadow director can be appointed to the PTO and institute massive changes under the direction of Google.

        1. Uh, no. Because those are the two players that are putting up the money to buy the next appointment.

            1. Kappos is a different topic as anyone that follows patent law knows the environment has changed since the Kappos appointment.

              But, good representation, good on smoke, but there was no insult so I’ll give you a B.

          1. Night Wiper: Google and pharma [sic] are the two players that are putting up the money to buy the next appointment.

            Why do you think these “two” “players” will be unable to agree on an appointment?

            1. >>How many patents does “pharma” own? How many employees >>in “pharma”? Net worth of “pharma”?

              Maybe you aren’t a paid shill but just a very dum(b) bored person with nothing better to do.

        2. Oh yeah, Mor0n Milly (MM). Never feels quite right when I respond to you if I don’t add an insult. Probably because most of your posts include an insult that is about as sophisticated as name calling.

          1. Never feels quite right when I respond to you if I don’t add an insult. Probably because most of your posts include an insult that is about as sophisticated as name calling.

            Or because you’re an id i0t.

    2. Lee is a disaster. Another lie from her is the great advantage of first mover advantage.

      But, you know that isn’t really true absent patents. The reality is that without patents what is going to happen is that copying will become much more efficient. The copied product will come on the market with days of the actual product (or weeks) and negate the first mover advantage.

      We have the shill only telling us the disadvantages without an appreciation of the real complex world of product development. And, yes, I have been a product developer in the real world for real multi-billion dollar tech products.

            1. Uh no. It gives first hand experience of what real product development and innovation is like. As in Lee is selling a fantasy.

    3. I skimmed over a little of it — not a natural speaker. It was like listening to a professor with a reputation of droning on and putting students to sleep.

  3. Much earlier. I asked what Walker thinks is wrong with the licensing system.

    Ned gave me a helpful reply, viz:

    “I think Walker is complaining about the fact that one cannot even send a letter to a a company offering a license without risking being DJ’ed.”

    But Ned, I still don’t understand. Attack has always been the best form of defence. Indeed, depending on the circumstances, I wonder if it might not be a dereliction of duty to the shareholders, not to respond with a Petition for a DJ. So, what could be more normal and rational and indeed reasonable than to respond (if it’s allowed) with a petition to a court for a DJ?

    In Europe, your DJ Petition is entertained however only if you have already been threatened with proceedings for infringement. That seems to prevent disproportionate responses to mere enquiries about taking a licence. Would that fix satisfy Mr Walker, I wonder?

    Of course, there is nothing in Europe to stop a party who has been mildly and unthreateningly invited to take a licence from responding with a vigorous action to have the asserted claims declared invalid. What does Mr Walker think about that? Is he against that too? If so, why?

    1. MaxDrei,

      Perhaps what is puzzling you is the uneven treatment being portrayed as to the enforcement in court of patent rights (bad) versus challenging validity (good).

      Here in the States, the propaganda machine has been in overdrive to portray patents as necessarily evi1. Can you recall even one story of a lawsuit being portrayed as a good thing?

      As to your thought about ability to bring a DJ action (viz “entertain”), I commented below on this exact point, even differentiating the open use of the IPR system (anyone can challenge what they perceive to be an improperly granted patent) with the quite different DJ action/court battle.

      If one takes a step back, it is quite easy to see that this is yet another form of “patent profanity” in that there are natural reactions to court decisions (make it easier to frustrate negotiations through the legitimized use of the courts). What you see as “what could be more normal and rational and indeed reasonable than to respond (if it’s allowed)” is indeed perfectly reasonable to contemplate as a business decision. What becomes unreasonable and irrational is to take a one-sided view of “using the courts (if it’s allowed). The hubabub is all about how certain entities – engaged in using the courts in an allowed matter – STILL are just not right in doing so.

      There is a disparity in “allowed use” that is quite evident. Certain allowed uses appear to be “better” than others. The view from a step back is that the alignment of “better” just happens to be one that aligns with the anti-patent forces. That’s the way that propaganda works my friend.

      1. Can you recall even one story of a lawsuit being portrayed as a good thing?

        I can recall quite a few, Billy, mostly written by self-interested, self-important, self-deluded people like your mentor and hero. It’s always a wonderful day when those bad old “copiers” Google and Apple get sued for patent infringement, isn’t it? Or Wells Fargo — because banks are bad and patent lawyer innundator types look so cool when they dress up in their Robin Hood tights. And didn’t Big Jenny publish a long screed recently by some millionaire attorney assuring us all that the American Revolution was really about our awesome right to file patent patent lawsuits? Surely that was a “good thing.”

        So your wonderful stories are being written, Billy. It’s just that most normal people don’t find them terribly compelling.

    2. Max, once upon a time there were no reexaminations or IPRs, and one could not go to court unless one had at least been charged with infringement. Offering a license was not enough.

      We live in a quite different world today where small fry cannot even attempt to license IP without being crushed.

      Now that might seem OK to a Euro who have long existed in a world that protected the high and mighty in all sorts of different techniques, from loser pays costs and fees, to cancellation proceedings without standing. But it is something new to the US.

      1. We live in a quite different world today where small fry cannot even attempt to license IP without being crushed.

        Horse hockey.

          1. It’s Ned doing the “decreeing”, Billy, not me.

            Maybe Ned can tell everyone what exactly a “small fry” is. Regardless, I’m quite certain that many, many “small fry” are successfully licensing their patents regularly without being “crushed.”

            Are these “small fry” becoming instant billionaires as a result of that licensing? Not in most cases. Is that a problem that anybody should care about? Nope.

            Ned’s claim is an extraordinary claim. Let’s see Ned’s extraordinary evidence in support of that claim.

      2. Ned I don’t recognise the “crush the little guy Europe” that you describe. If there is a paucity of start up activity in Europe, the explanation is not Europe’s patent system.

        Business monitors the publication flow out of the Patent Office, to minimise the risk of being caught unawares. If an individual is lucky enough to have filed on something patentable which that industry finds attractive, players in that branch of industry will find it greatly more interesting and sensible to take an exclusive licence than to “crush” the small fry. Attaining the status of licensee or assignee gives it a potentially lucrative edge over its competitors.

        Conversely, if an individual is asserting claims that look like they are invalid, industry will likely ignore the noise, confident that real infringement proceedings will never start but, even if they do, a simple counterclaim will end in a finding of invalidity. So no need to “crush” anybody there either.

        In short, good patents get respect but bad ones don’t. In these days of contingency fees and legal expenses insurance, Loser Pays does not deny the little guy a seat at the table. But, as there is nothing a loser likes less than having actually to pay hard cash into the bank account of the Victor, Loser Pays serves to promote quick wins for those lucky enough to be holding a claim that is obviously infringed, and not obviously invalid.

        1. Max, see anon’s post.

          We have a long history of very tough actors here in the US who are quite willing to use their muscle to win.

  4. I have seen two major differences in licensing in the last half century, and am curious as to impressions of others:
    1. patent licenses offered on newer patents for new technologies to businesses (for that business to consider making) were more predominant in the past, and
    2. Licenses were then more often offered for a relatively low up-front cash payments plus a running royalty % of sales or revenues.
    The latter [2.] began to decline after it became possible to take a low up front cost running royalty license and end those payments by a reexamination or by litigation holding the subject patent claims invalid.
    The former [1.] seems to have become numerically overwhelmed by license offers that are primarily now really infringment assertions of old patents against existing and previously independently developed products of others demanding large cash payments. I do not doubt that this has made many companies over-reactively “gun shy” of even the former [1.] type of license offer. Especially if the license contact offer does not clearly indicate that it does not related to any existing product and is not an infringement assertion of any kind [which will also preclude a D.J. reaction].

    1. One thing I have seen is a great reluctance to do anything given that a letter or telephone call may bring you into a year of an IPR and cost you $500k.

    1. Starting to show wut? That government regulations are likely strangling new startups?

      Frankly I don’t doubt it. But then, it may simply be that less and less people have the means and drive to start new startups than in the 70s. Note the very selective starting point for their data.

      1. You know, actually, the patent system was revered up by Reagon who saw the patent system as a way to get out of the malaise of the 1970’s as described by Carter.

        We are certainly headed back there. I think this is a complicated situation in that there are now new ways of funding companies with the stock market fed zapped free money, but, by and large, the big picture is that we are entering a time when there is no enforcement of anti-trust laws, employment laws, and patents are becoming worthless. We will soon have just one, two, or at most three players in almost every field with a few extraordinary exceptions like Tesla, which was driven by a man with boundless energy and lots of money from a start-up.

        That is the big picture. The shills and clowns don’t see it, but how do you know this accurate? The best indication is things like Goldman Sachs recent investment report saying to invest in monopolies. And, in the fact that companies are becoming more and more proprietary in their technology. If you think about you realize that proprietary stuff only works in monopolies. When you have only have 20 percent market share, then except for rare exceptions you better not use you own stuff or the bigger market will swallow you.

        Anyway, that is reality. The big picture reality.

        1. I would also add that another aspect of this is the capture of the federal government, so our economy is beginning to look more and more like it did before the Sherman Anti-Trust act. This is also true of the income disparity.

          You know, another big picture item is that the income disparity is getting worse and is going to get much worse. And the monopolies are going to get worse. Much worse. Look at finance. They sheered the entire country and come out on top with no jail time, no claw backs, and now an insurance policy that no matter what they do they are covered.

          Who cares you say? Well, you should it costs each of us money in the aggregate.

          1. there is no enforcement of …employment laws

            Where did you dredge up this nonsense?

            there is no enforcement of anti-trust laws

            Since when?

            patents are becoming worthless

            Hopefully that’s true of most computer-implemented j nk but patents on valuable tangible products and methods of making them are going to remain valuable. Where’s the problem?

            1. Again we get Mor0n Milly’s (MM) basement fantasy cut on life. As in, my world down here in my parents’ basement is good. I make $80K blogging on here for pharma.

        2. I do believe that most of the clowns (not the shills) believe that patents are bad. Like I believe that 6 is a clown not a shill.

          MM and Ned are clearly shills.

          1. And, note for MM and Ned the way their policies are all geared toward pharma. We know they are both being paid by phrama through their statements.

            1. Another aspect of this is that people on here constantly say I over state my case. And, yet, I am the one that has been predicting almost exactly what has happened has happened.

              I don’t see any of this getting better anytime soon. My prediction is that there will be effectively no patents for anything but pharma in 10 years. The next BIG battle is going to be to bifurcate the system. Johnson was probably a political gambit by Obama. I think he knew exactly what happened would happen. He wants to divide the two sides as much as possible to get support for legislation to bifurcate.

              Note the shills on this blog (Ned and MM) mock me to no end denying there is a move to bifurcate or ever was as part of the AIA, but I have first hand knowledge that there was a big move to bifurcate and anyone inside the beltway knows that this is the next battle.

              Of course, the great tragedy of this blog is that Dennis continues to allow shills on this blog to drown out any real discussion on these matters.

              1. Now Ned tell me that MM wasn’t just insulting because of the content. You see Ned you are a Neddles. A worthless shill.

                MM, there was no content in your posts. Just a denial of what I said. So, in other words, your typical smoke machine turns on when someone says anything that is against your views.

                You see, Dennis, this is the type of post you could restrict. It is impossible to post on here anything that MM doesn’t agree with without being drown out with 10’s of MM posts and normally he adds in insults. And, in typical MM fashion his posts are based on his own personal fantasy world.

              2. “The next BIG battle is going to be to bifurcate the system. Johnson was probably a political gambit by Obama. I think he knew exactly what happened would happen. He wants to divide the two sides as much as possible to get support for legislation to bifurcate.

                Note the shills on this blog (Ned and MM) mock me to no end denying there is a move to bifurcate or ever was as part of the AIA, but I have first hand knowledge that there was a big move to bifurcate and anyone inside the beltway knows that this is the next battle.”

                I actually kind of hope so. Though frankly I doubt it.

        3. companies are becoming more and more proprietary in their technology. If you think about you realize that proprietary stuff only works in monopolies.

          Are you high?

          1. Wow, zero content with an insult. I’ll mark that down as a typical MM comment. If you added in some misrepresentation of the facts and law, I’d give you an A, but I am afraid you only get a C for that comment.

            Try harder. You can do it. Earn your money. Misrepresent, insult, and blow smoke. The three MM hallmarks.

    2. One explanation may be the growing thicket of rules and regulations small-business owners must navigate.

      Not to mention the tens of thousands of computer-implemented j nk patent claims that Billy and Jenny expect everyone to wade through if a computer is used in their small business.

      I mean, gob forbid that someone might correlate some data with some other data while doing business before consulting the patent database first! That sort of behavior makes Billy and Jenny cry because it means that one of their beloved “innovators” isn’t getting richer off the broken patent system. Boo hoo hoo hoo.

      Clearly the answer is More Patents, Easier to Enforce, All the Time. Right, Billy? That’s what real Merkins want! Because Billy says so. And we all know we can trust Billy. Right, Billy?

      1. The only problem with your “answer” Malcolm, is that it just does not comport with reality.

        See the Lemley-led data used by a certain government report from last summer.

        1. It’s funny when Billy tries to tell people what “comports with reality” and what doesn’t.

          See the Lemley-led data used by a certain government report from last summer.

          What’s in there that’s so important to your “argument”, Billy?

          Let everybody know, Billy. Nobody likes to play your silly “guess-what-I’m-not-telling-you” games. And nobody ever did, Billy. Learn to write your thoughts out in plain English for a change. Good luck, Billy.

          1. Not to mention the tens of thousands of computer-implemented j nk patent claims that Billy and Jenny expect everyone to wade through if a computer is used in their small business.

            Take another look at who – and what – the lawsuits are about.

            (you know, the lawsuit “boogeyman” of far less than 2% of all active patents – the flea on the tail of the dog wagging the dog)

            1. the lawsuit “boogeyman” of far less than 2% of all active patents

              What on earth point do you think you’re making, Billy? “Look, Mommy! If you divide a number by a bigger number you get a smaller number!” Really compelling stuff there.

              There’s hundreds of thousands of “active patents” out there and record numbers are being filed for and granted every year. And a lot of them are total j nk written by pond feeders like yourself who never saw a pile of computer-implemented hooey that you couldn’t embrace. Meanwhile, you and Jenny are out there crying every day for more, more, more! and shrieking whenever anybody makes it a wee bit harder for you to “monetize” them. And then, as if that wasn’t silly enough, you want us to believe that your patent fantasy world is the key to improving the economy (instead of just another scam to put more money in the hands of already wealthy people).

              Take another look at who – and what – the lawsuits are about.

              There he goes again. Please tell everyone Billy: “who” and “what” are “the lawsuits” about? And how are your bizarro instructions to “take another look” responsive to the fact that, in your d xmbaxx fantasy world, every small business owner needs to hire a patent lawyer lest he/she “gets what’s coming to them”?

              1. Your “grifter” comments are simply dissociated from the actual numbers Malcolm.

                You really struggle with simple English and plain logic, don’t you?

  5. AMDOCS LIMITED v. OPENET TELECOM, INC.
    link to cafc.uscourts.gov

    Nominally this case is about claim construction, but check the claim, below. How is this claim not invalid under Alice?

    7. A method of processing network accounting information
    comprising:

    receiving from a first source a first network accounting record;

    correlating the first network accounting record with accounting information available from a second source; and

    using the accounting information with which the first network accounting record is correlated to enhance the first network accounting record.

    The claim simply gathers related accounting information from two sources and aggregates the data.

    Would prior art that disclosed gathering data from two sources anticipate if the type of data “accounting,” being abstract, could not form the basis for distinction?

    1. 7. A method of processing [data]
      comprising:

      receiving [data] from a first source;

      correlating the first [data] with [data] available from a second source; and

      using the [second data with which the first [data] is correlated to enhance the first [data].

      But clearly the problem with our patent system is not computer-implemented j nk like this, but the defective licensing system that prevented the accused infringer from working out an awesome deal with this brilliant patentee.

      LOL. This is bottom-of-the-barrel “innovating” at its barrel bottomest. What an incredible, phenomenal waste of time, money and judicial resources.

      It’s time to get dredge the pond and get the s c u m out of the patent system.

  6. I think Walker is complaining about the fact that one cannot even send a letter to a a company offering a license without risking being DJ’ed.

    1. Some factual reality, hopefully in a study from Dennis, about the actual number of D.J. actions started against licensing offer companies that were not actually infringement suit allegations, as demonstrated by the usual counter-claim infringement suit, would be very useful here. Especially since the vastly less expensive alternatives of reexaminations and IPRs have became available for material patent or publication prior art [albiet not for non-infringment.]

  7. Does Jay Walker have any specific ideas about “how to fix the licensing system”, or is he just kicking up dust in the hopes that people will stop focusing on what’s really broken?

    1. He didn’t mention any but the low hanging fruit is to re-adjust the standard for declaratory judgement actions.

      We went from one extreme (no DJ jurisdiction unless the patent owner said the magic words (“I will sue you”)) to another extreme (no clear safe harbor when offering to license your patent).

      Now it’s “Sue first, talk later”.

      We should have a legal regime that encourages the parties to openly discuss without unreasonable risks of a DJ action (for patent owner) or intentional infringement (for the accused infringer).

      We are already had major patent reforms via Congress and the Supreme Court. I’d also recommend focusing on facilitating licensing as the next step.

      1. JB, DJs are only half the problem. IPRs are the other. DJs require standing. IPRs do not. Prospective licensees may bring IPRs against every one of your issued patents and they are known to threaten to do so if one does no comply with their demands. Resistance is futile in the brave new world of patent licensing.

          1. Hi Ned – I agree. We need some type of IPR but the current one likely needs some tweaking and improvements. But reforming DJ standards is low hanging fruit. A simple statute will do the trick and eliminate many wasteful litigations.

        1. Well, the IPRs are definitely the giant weakening that has occurred. And, Ned’s point about going after other patents in the portfolio is directly on point.

          The AIA massively weakened licensing.

          1. The AIA massively weakened licensing.

            Did it weaken “licensing”, or did it weaken the threat presented by patentees wielding j nky claims that never should have been granted?

          1. Please anon don’t confuse things by asking MM (mor0n Milly) to stick to the facts. MM’s bread and butter is misrepresentation.

            In other words, MM, no one asked for a safe harbor. Milly’s smoke machine is on full power.

            1. I think it worthwhile to point out when facts and law “confuse things.”

              But while it might be redundant – just note posts that begin with “MM”, it is fun to watch Malcolm squirm when facts and law are placed before him and he asked to be intellectually honest about these things.

              1. Um, no drinking needed Malcolm – all I need to do is post facts and law and watch you go all spastic in your attempt to defend your pure “policy”/opinion stances.

          2. Which patentees are asking for a safe harbor from attempts to invalidate their patents?

            JB, for starters, directly upthread (you think he’s the only one?). He was objecting to the lack of a “clear safe harbor” for patentees seeking to license their patents. My question was directed to him.

            1. JB asks for no such thing – you evidence a clear misunderstanding of what he is talking about: the going from one extreme to the other in the ability to even talk about licensing without that discussion kicking off the ability to bring suit – one way or the other.

              It is not surprising that you make this mistake, given your predilections that “patents are de facto “bad”” – even as you profess to be in a profession of obtaining these things for your clients.

              You confuse “ability to invalidate” with ability to freely discuss licensing without fear of having to pre-emptively sue in order to maintain a legal advantage of court jurisdiction and venue.

              You ignore reality and then make a derisive comment against patent holders in a gen eral sense – and you wonder why you are tagged with an anti-patent leaning?

              1. you evidence a clear misunderstanding of what he is talking about

                No, Billy, the only person with a “clear misunderstanding” of what is being discussed is you. That’s probably because you are under or over-medicated. Talk to your shrink about your issues. I would take some of your comments that you’ve made here lately to your next therapy session so he/she can give you the help that you need.

                JB: We went … to another extreme (no clear safe harbor when offering to license your patent).

                Plainly, JB wants a “safe harbor” so that “potential licensing discussions” can proceed without fear of a DJ action being brought to challenge the patent’s validity. In JB’s view, these fears cause patentees to “sue first, ask questions later.”

                Of course, if your are so afraid that your patent can be so easily invalidated, then probably you shouldn’t be waving it around at people and asking them to pay you money for it.

                The fact of the matter is that people are negotiating patent licenses all the time, every day. It’s the folks who are wielding computer-implemented j nk patents who whine most often about how they are “forced to sue people”. Then again, those folks whine about everything that gets between their patent and the money they are so sure they are entitled to. Isn’t that right, Billy?

                Of course it is.

              2. @MM (no option to reply below):

                “Of course, if your are so afraid that your patent can be so easily invalidated, then probably you shouldn’t be waving it around at people and asking them to pay you money for it.”

                That’s not the issue I’m referring to. The “fear” is not the patent owner’s “patent can be so easily invalidate”.

                Instead, the fear is being dragged into court to defend a DJ action and possible trigger a full patent litigation.

                Enforcing a 100% “slam dunk” valid, enforceable and infringed patent still can cost millions.

                Independent inventors and small businesses often do not have the funds for litigation.

                Accordingly, that’s the concern I’m referring to.

                Yes, there are patent negotiations occurring all the time.

                However the new DJ standard greatly increases the risks for small entities.

                Therefore many of the negotiations you are referring to likely involved NPEs who are designed and equipped to litigate.

              3. the only person with a “clear misunderstanding” of what is being discussed is you

                LOL – as JB immediately points out that Malcolm is (once again) plain wrong.

              4. JB The “fear” is not the patent owner’s “patent can be so easily invalidate”. Instead, the fear is being dragged into court to defend a DJ action and possible trigger a full patent litigation.

                Again: if you are “afraid” of being “dragged into court” then you probably shouldn’t be waving your patent around at people and suggesting that they infringe. For similar reasons, you shouldn’t wave your gun around in public, i.e., someone might want to take that gun away from you.

                Enforcing a 100% “slam dunk” valid, enforceable and infringed patent still can cost millions.

                Or it can cost a lot less than that. It’s really up to you and how you go about asking for a license, and whether those license terms are reasonable.

                the new DJ standard greatly increases the risks for small entities.

                It increases the risks for everybody.

                many of the negotiations you are referring to likely involved NPEs who are designed and equipped to litigate.

                I’m sure some do. Most of them? I highly doubt that unless you are referring to the subset of computer-implemented j nk which are of dubious validity to begin with.

        1. Not a “safe harbor” for invalidating a patent.

          Instead, a “safe harbor” for either the patent owner or licensee to start discussions without risking a declaratory judgement action or “willful infringement”.

          Currently, it’s sue first and talk later.

          Moreover, one reason many patents are flowing to NPEs is many small businesses and independent inventors are concerned that trying to license themselves can trigger a DJ.

          So the suggested “safe harbor” harbor is for potential licensing discussions.

          Patent owner can say “I think you’re infringing and here’s why”. Other party can say “I don’t agree and here’s why”. They can go back and forth and either agree to license terms or end the discussions.

          There should be no grounds for a DJ unless the patent owner takes further actions that negatively impact the party’s business.

          1. In other words, it appears that you want to tighten the case-or-controversy standard for having standing to bring suit.

            Is that a correct interpretation?

          2. JB, any time you place someone in a position where damages are accruing, they should have a right to a DJ action.

            Of course, in order to place an infringer into a position where damages are accruing, in most cases, one has to provide a notice of infringement, by claim and by product. But until and unless one does make such a charge of infringement, I think the parties should be able to negotiate without the potential infringer either filing a DJ action or filing an IPR.

            1. Agree on the DJ – not on the IPR.

              The IPR is there as an open invitation – one only need be aware of (and desire to) challenge a patent – any patent.

    2. is he just kicking up dust in the hopes that people will stop focusing on what’s really broken?

      Where is the evidence to support this assertion?

      Why do you assume that Jay Walker’s view must be incorrect?

      Is it a special form of naivete?

      1. Why do you assume that Jay Walker’s view must be incorrect?

        I don’t assume that, Billy. You edited out my complete comment and left out the part where I asked whether Jay had a suggestion for “how to fix the licensing system.”

        Get your meds adjusted, Billy.

        1. I did not “edit out” to the point of changing the meaning of your post.

          Your prologue does not change the actual question you asked.

          I merely removed some of the spin from your post.

          If you wanted merely to ask him for specific ideas, then you could have stopped at your prologue.

          You did not.

          Thus, my reply is entirely proper.

          1. If you wanted merely to ask him for specific ideas, then you could have stopped at your prologue.

            My “prologue” shows quite plainly, Billy, that I am not “assuming” that “Jay Walker’s views must be inccorect.”

            But please keep digging, Billy. That’s what a path 0l0gical l y i n g hack like you is bound to do under these circumstances. [shrugs]

              1. you want me to “keep digging”

                You’ll keep digging whether I want you to dig or not, Billy.

                That’s something we all know about you: you never know when to shut your flapping puss.

              2. You are the one furiously working the shovel while telling others they are “flapping their puss.”

                Lovely AOOTWMD.

                (still the number one item of blight on this blog)

              3. You are the one furiously working the shovel

                No, I’m not working any shovel, Billy. I’m just reminding you that you are a path0 l0gical l y i n g hack.

                the number one item of blight on this blog

                LOL. Sure, Billy. Whatever you say.

              4. Pretty easy to spot the lie here anon. As is usual with pat hological liars it is something that “could” be true, but which there is no reason to believe that it is so.

                “Why do you assume that Jay Walker’s view must be incorrect?”

                MM most certainly does not “assume” that Jay Walker’s “view” must be inco rrect. It could be true that he does, there’s just no reason to believe that. Pretty much par for the pa thological l ying course.

              5. “That is not a 1ie 6.”

                I’m inclined to agree with you, but the professionals are not.

                To me it’s just some random tardation that sprang whole from your mind that *could* be so, even though there is no reason to believe that it is so. The pros simply call this a lie tho.

              6. I’m inclined to agree with you, but the professionals are not.

                You have no clue what you are talking about. There simply is no 1ie in my post. None. Zero. Nada. Zip. Wtf professionals are you talking about?

                Besides which, your are inhaling the dust cloud he is massively attempting to kick up. Read again his sentence – note the structure and what he was really asking – note my response, properly setting aside his lead in prologue and getting to the point that he was really trying to make.

                6 – if you ever want to get into law school, you are going to have to understand how to read what people write. Malcolm was simply busted being Malcolm.

              7. Well anonlooks like the filter caught what I was going to say since you had pa t h o lo gi cal banzored. Since I’m on tablet guess you’ll just have to wait for mod for re. I will say this though, the likelihood that a psychopath like you “busted” mm for saying something is close to 0 regardless of the circumstance. In this circumstance the chance is like negative ten gazillion -even in percent lol.

              8. You really are clueless – and sounding more than a little sour grapes, given as I have busted you for your falsehoods.

                (you know, the ones you try to spin and turn and “embrace”)

              9. “You really are clueless – and sounding more than a little sour grapes, given as I have busted you for your falsehoods.”

                Ahh, now you didn’t just “bust” MM for his “falsehoods” now you busted me for mine as well!

                Lulz lulz lulz.

                All those “falsehoods”! Aren’t we all so lucky to have little billy the pa t hological liar around to “bust” people for their “falsehoods”?

              10. Lucky? meh, – it is not too difficult.

                After all, both you and Malcolm have similar mantras. Malcolm’s mantra is that intellectual honesty is not required for mere blog posts, while your mantra is that anything goes because lawl is just totally subjective in the mind make up whatever you want.

                Neither of you two seem to realize how pathet1c that makes you as you attempt to be “taken seriously” or have anything of merit to add to any real conversation here. It’s like shooting fish in a barrel to take you guys apart on any substantive issue.

              11. Yessir! Shooting fish in a barrel on all the substantive issues you just came out on the losing end of for the last few years in a row! And pointing out “falsehoods”! All the time! Good ol’ anon! We’re so lucky to have a psy cho liar like him!

              12. substantive issues you just came out on the losing end of for the last few years in a row

                Not really, as I am talking about the substantive issues being put on the board. You know – why the decisions in the courts are good or bad?

                (a real discussion – based in understanding of law and fact – not the mindless lemming march rah-rah that seems the extent of your “thinking.”)

              13. And 6, the point of it all is that even with decisions of the courts, the discussions here from your side (the anti-patent side) are still filled with dissemblings and falsehoods.

                You guys act like you’ve never been in the endzone before, and just don’t know what to do with the decisions you have been given. It should be easier for you all to have honest and objective discussions, and yet, you all cannot seem to understand that.

              14. “Not really, as I am talking about the substantive issues being put on the board. You know – why the decisions in the courts are good or bad?”

                Whether a decision is “good” or “bad” are “substantive issues” in your mind? Next you’re going to tell us whether they’re “right or wrong” are also “substantive issues”.

                You’re hilarious anon. Almost beyond parody.

                “And 6, the point of it all is that even with decisions of the courts, the discussions here from your side (the anti-patent side) are still filled with dissemblings and falsehoods.”

                So many dissemblings and falsehoods! They’re just everywhere! Ahhhhh! Run for your lives! Dissemblings and falsehoods!

                I would think that you’re a stand up comedian but frankly I just don’t think you have enough talent to be so comedic intentionally.

                “You guys act like you’ve never been in the endzone before, and just don’t know what to do with the decisions you have been given.”

                Well first:

                link to youtube.com

                And then we lol@u some.

              15. Billy: You guys act like you’ve never been in the endzone before

                Speaking for myself, I’ve been in the endzone plenty of times. I have to admit that most of the time there isn’t some nx tcase like you wiping his feces on the goalpost and claiming victory as the fans storm the field.

              16. I see you two are still not paying attention ( I know, shockers)

                Neither of you two seem to realize how pathet1c that makes you as you attempt to be “taken seriously” or have anything of merit to add to any real conversation here

                After all, both you and Malcolm have similar mantras. Malcolm’s mantra is that intellectual honesty is not required for mere blog posts, while your mantra is that anything goes because lawl is just totally subjective in the mind make up whatever you want.

              17. Malcolm’s mantra is that intellectual honesty is not required for mere blog posts, while your mantra is that anything goes because lawl is just totally subjective in the mind make up whatever you want.

                And Billy’s mantra is “I get to make sh t up because I’m Crazy Nxtcase Billy.”

  8. There is something wrong with a patent system that issues large numbers new patents only a few years after original filing that are widely infringed.

      1. BJA, yeah, we really fixed it, didn’t we? 103 does not seem to be able to do the job when so many people can patent the prior art, particularly if they involve programmed computers.

        1. Gee Ned, and yet your ignored my post saying one of the ways to fix 103 is to have left it at TSM. TSM was a great tool for an administrative agency to examine patents. Now, the standard is ’cause.

          A interesting paper would look at the number of TSM rejections today vs. 10 years ago. I remember when almost every OA I looked at the basis of the argument was TSM for 103. Now I don’t think I have seen one in years.

        2. 103 does not seem to be able to do the job

          Why not?

          particularly if they involve programmed computers

          I thought your view was that if the claim involved the computer (a machine), then your dislike of software patents disappeared.

          Or was that just a throw-away to stop talking about software as a manufacture and machine component?

  9. Call me naive, by all means, but can somebody tell me what is wrong with “the licensing system” and what needs to be done to mend it? You see, from where I sit, it is simply not apparent that anything is wrong.

    All those patents he sees, that are not licensed. Perhaps they are simply unlicensable j unk which, like j unk DNA, is just cluttering the system. Perhaps he himself is the owner of many of them?

    In particular, isn’t there in fact too much licensing going on? I’m thinking of all those owners of covetous patent claims of dodgy validity who demand a licence “or else”. Even if they ask softly, so long as they have taken the precaution of arming themselves with a big stick they get their licence all too easily, don’t they?

    So what does Mr Walker want? What does he think will improve matters?

    1. Max, call me old school, but it is rare that any individual could ever come up with a state of the art advancement in technology that would be of any interest to the high tech community.

      Real inventors come up with something different entirely. They do so in developing new products and services. They then seek out and obtain venture financing to establish their business.

      Universities may do the same thing as real inventors. But they need someone with business savvy to take their inventions to market. This is where licensing might be useful. Most U’s do have licensing departments.

      Big companies and the government use U’s to do critical research. Valuable inventions often result. Perhaps here too, licensing is important.

      1. Ned, I work with start-ups. Certainly by any measure they are state-of-art.

        They want patents so they won’t get copied. The patent app they file discloses. This makes it accessible and it gets in journals and other publications.

        Then they invent from this. The virtuous cycle.

  10. This all sounds good and all, but I don’t really see what he’s proposing specifically, or how it will directly lead to “more jobs etc”.

  11. Fix the licensing system? I’m all for that. However, that would mean strengthening patents, which is a taboo topic for many.

    This is typical of what happens to a patent owner after he/she gets a patent.
    They identify actual infringers and ask them to take out a license. They may also take their invention to people in the industry who are better able to make/market/sell the products. These approaches almost always yield no results.
    The patent owner is then forced to sue, which is not any easy task. Few people have several million $ lying around, so you need to find contingency fee firms to take them on or somebody else to fund your litigation. Unless your case has potential for high $ returns, you are out of luck.

    Assuming you do get into the litigation phase, you are then labeled a troll. Depending upon the technology, you’ll get the infringers crying to the courts/congress that their business sector is “special” and these types of patents should not exist. A couple of years later (and after the requisite Federal Circuit appeal) (and perhaps more years if a reexam is involved) then perhaps you’ll get paid. However, because of all the work that needs to be performed, the inventor gets a small cut of that actual payment. Instead, the lawyers/financiers take a very healthy cut.

    Nobody wants (or is willing) to take licenses from the little guy. Odds are if that you fight, the little guy will back down and/or go bankrupt trying to fight back. Based upon the current system, it doesn’t make good business sense to take out a license.

    On the other hand, it is much easier for big guys with big patent portfolios to get licensing revenue. When somebody comes to you and says I think you are infringing my 1000+ patent portfolio, there is not much you can do except pay up.

    The recent (and proposed) patent reforms don’t appreciably impact the ability of the big guys to realize revenues from their patent portfolios, but much of the reforms make it harder on the little guy. Patents are the sport of kings, and the patent “reforms” I’ve seen so far have only reinforced that.

    1. In other words, set up a system that enforces valid patents quickly and economically, and sweeps away invalid patents quickly and economically?

      But that’s not reforming the licensing system. To the contrary, that would be to reform the way patent infringement and validity is litigated

    2. This is typical of what happens to a patent owner after he/she gets a patent. They identify actual infringers and ask them to take out a license.

      What ever happened to all those companies who used to obtain patents primarily to protect their own products and methods of manufacture? Is that sort of thing old-fashioned now?

      1. primarily to protect their own products and methods of manufacture?
        If protect, do you mean an injunction?

        Is that sort of thing old-fashioned now?
        If you meant getting an injunction, then yes, that is old-fashioned now. You cannot protect you own products/method of manufacture when a judge very rarely issues an injunction. Instead, at best, you can attempt to extract some compensation from the infringing party.

        No protection — just compensation (which you’ll fight tooth and nail for).

        1. If you meant getting an injunction, then yes, that is old-fashioned now. You cannot protect you own products/method of manufacture when a judge very rarely issues an injunction. Instead, at best, you can attempt to extract some compensation from the infringing party.

          That overstates the situation. It’s certainly true that judges very rarely issue injunctions to patentees who don’t practice their own patents and/or who have licensed the patents to others. The calculus changes when an infringer is copying a patentee’s patented product. In eBay, there were two concurring opinions, signed onto by a total of 7 justices, that suggest quite clearly that injunctions should still be available for the latter scenario.

          1. The calculus changes

            Why?

            Did the right that was being transgressed all-of-a-sudden change?

            A careful analysis on what the right is under scrutiny, and the best manner of remedy that most closely (and easily) matches that right is what is needed.

            Unfortunately, the cramped view that “injunction” is too severe is taken as a starting point with most of those who do not understand the foundational aspects of what a patent actually is.

            Using “calculus” when simple set theory will get the job done is an indication that the “calculus user” is aiming for a pre-determined end, rather than wearing the blindfold that Lady Justice offers.

            1. the cramped view that “injunction” is too severe is taken as a starting point with most of those who do not understand the foundational aspects of what a patent actually is.</the cramped view that “injunction” is too severe is taken as a starting point with most of those who do not understand the foundational aspects of what a patent actually is.

              Tell everybody what a patent “actually is”, Billy.

              We really need your deep wisdom right now more than ever.

              1. Odd question Malcolm.

                Is there a point somewhere in there? coming soon? ever?

                Or are you still struggling with the notion that there is no “use” requirement to having a patent? That little tidbit kind of wrecks your day, doesn’t it?

        2. If protect, do you mean an injunction?

          No, I mean “Our lawyers advised us it would be bad idea to copy X’s product because he/she has got a solid patent covering that product and they aren’t interested in licensing. We’ll need to design around the patent if we want to offer a similar product, or we’ll need to focus on some other product.”

          That kind of protection.

          1. Our lawyers advised us it would be bad idea to copy X’s product because he/she has got a solid patent covering that product and they aren’t interested in licensing
            Competitors doing extensive due diligence? Not something I would rely upon.

        3. You cannot protect you own products/method of manufacture when a judge very rarely issues an injunction.

          As DanH notes, getting an injunction is a lot easier when your patent covers your products/methods and more difficult when it doesn’t.

          As it should be.

            1. why should it be so [getting an injunction is a lot easier when your patent covers your products/methods and more difficult when it doesn’t]

              At least part of the reason it should be so is because patents on products that aren’t being offered for sale provide minimal or no benefit to the public.

              From the concurring opinion in eBay v. MercExchange:

              “An industry has developed in which firms use patents not as a basis for producing and selling goods but, instead, primarily for obtaining licensing fees. … For these firms, an injunction, and the potentially serious sanctions arising from its violation, can be employed as a bargaining tool to charge exorbitant fees to companies that seek to buy licenses to practice the patent. … When the patented invention is but a small component of the product the companies seek to produce and the threat of an injunction is employed simply for undue leverage in negotiations, legal damages may well be sufficient to compensate for the infringement and an injunction may not serve the public interest. In addition injunctive relief may have different consequences for the burgeoning number of patents over business methods, which were not of much economic and legal significance in earlier times. The potential vagueness and suspect validity of some of these patents may affect the calculus under the four-factor test.”

              1. At least part of the reason it should be so is because patents on products that aren’t being offered for sale provide minimal or no benefit to the public.

                I see that you still do not understand the core basics of patent law and the Quid Pro Quo.

                Having trouble (again) understanding that 1908 Supreme Court case that explained this notion of Quid Pro Quo?

                Try to actually pay attention to the legal concepts involved.

              1. That sure is a pretty word.

                But, um, do you mind explaining how you think it fits the situation? As it is, your statement is more than just a bit conclusory and, well, rather meaningless.

                Try to put together a cogent argument that supports the pretty word.

              2. “But, um, do you mind explaining how you think it fits the situation?”

                Yep, I do. JADEing is bad thing to flirt around with doing near an OCPDer like yourself.

              3. LOL – so no explanation – just a pretty word.

                That’s not going to cut it.

                Of course, you already knew that, didn’t you? You could have said any word at all if you were not willing to explain yourself. Better yet, you could have said no word at all – and avoided looking like the cowardly f001 that you are.

              4. LOL – fitting that you seek your typical “soapbox and ignore” strategy as I seek the typical “have a true conversation to progress understanding” strategy?

                This says far more about you then you apparently realize.

              5. ““have a true conversation to progress understanding” strategy?”

                Have a “true conversation” that is nothing more than a never ending tweaking of the issues. On and on … forever …

                I wonder why a given normal person wouldn’t want to do that? Lulz. OCPDers are so funny.

              6. Have a “true conversation” that is nothing more than a never ending tweaking of the issues. On and on … forever …

                An odd view.

                When you wake up and realize that lawl is NOT totally subjective make up whatever in the mind, you might just grow up enough to have an actual conversation. A real one.

              7. Your “professionals say” – which is just the latest wrinkle in the med-accusation and runaway from discussion tactic is more than a bit transparent here 6.

                You running away again… you described that symptom before you know.

      2. Patents only to protect products went out way before 1908 (even though that was the year that the Court “clarified” that fact.

        Some still have their head in the sand about it though.

    3. Nobody wants (or is willing) to take licenses from the little guy.

      Please define “little guy”.

      Also, I’m quite sure that there are lots of people willing to license a solid patent from just about anybody. Of course, the price has to be reasonable.

      The patent owner is then forced to sue, which is not any easy task.

      Is it really that hard to file a patent suit? I seem to recall earlier this year that some guy filed over a hundred suits in one day.

      When somebody comes to you and says I think you are infringing my 1000+ patent portfolio, there is not much you can do except pay up.

      Maybe we should put a cap on the number of patents that can be owned by a single controlling interest.

      1. Please define “little guy”.
        In this context, it means a company that can afford to spend at least $5M on a patent litigation without batting an eye over the cost.

        Also, I’m quite sure that there are lots of people willing to license a solid patent from just about anybody. Of course, the price has to be reasonable.
        As would I at $1/patent/year. However, what is reasonable to the infringer is rarely reasonable to the patent holder.

        Is it really that hard to file a patent suit? I seem to recall earlier this year that some guy filed over a hundred suits in one day.
        I said hard, not impossible. The fact that a hundred suits was filed doesn’t change the calculus. It is like printing a book. Printing copy # 1 is the hardest party. Copies #1-#1000 are easy after that.

        Maybe we should put a cap on the number of patents that can be owned by a single controlling interest.
        Maybe we should limit how much money any one person can have. Maybe we should limit how much land any one person can own. Maybe we should limit how much market share any one company can have. Sounds like perfectly reasonable propositions if you live in a commune state.

        1. I said hard, not impossible.

          Hard? A 10-second Google search will get you a copy of Form 18, which a reasonably clever person with a high-school education can fill out in 10 minutes or so. Thanks to FRCP 84, you’re then immunized from Rule 8 challenges. All that’s left to do is to find the clerk at the closest Federal District court.

          1. Hard? A 10-second Google search will get you a copy of Form 18, which a reasonably clever person with a high-school education can fill out in 10 minutes or so.
            If you think filing a lawsuit involves nothing more than filing a complaint, then I don’t think you really understand the issue(s).

            1. If you think filing a lawsuit involves nothing more than filing a complaint, then I don’t think you really understand the issue(s).

              I think your point has less to do with the difficulty of “filing a patent lawsuit” and more to do with the alleged difficulty of determining who to sue and whether it’s worth it.

              But in the case where you are reasonably wealthy and have nothing except your gambling money to lose because your patent doesn’t protect any products or methods that you are practicing (e.g., because you are a lawyer and/or a patent tr0 ll whose only contribution to society is the filing of patent lawsuits) it’s not that difficult. Just set up your office in Texas, identify the most compliant targets, and file away.

              1. But in the case where you are reasonably wealthy
                Ah … back to my point about patents being the sport of kings and the current “reforms” trying to make it the sport of emperors.

        2. Maybe we should limit how much money any one person can have. Maybe we should limit how much land any one person can own. Maybe we should limit how much market share any one company can have. Sounds like perfectly reasonable propositions if you live in a commune state.

          Sounds like perfectly reasonable propositions if you live in a non-commune state, too. I’m not suggesting that everybody has the same amount of stuff. All I’m suggesting is that reasonable limits are put on the amount of wealth a single person can accumulate.

          But yes I understand for a certain type of person the worst thing ever is to contemplate a world where you can’t grow up to be a multi-billionaire. I mean, what’s the point of living in an oppressive society like that?

          1. All I’m suggesting is that reasonable limits are put on the amount of wealth a single person can accumulate.
            Sounds commune-state-like to me.

            But yes I understand for a certain type of person the worst thing ever is to contemplate a world where you can’t grow up to be a multi-billionaire. I mean, what’s the point of living in an oppressive society like that?
            Philosophically, I’m all for the wealthy paying a higher share of the tax burden. IMHO, they have the most to lose if anarchy breaks out. They use the “system” more than anybody else. However, I don’t believe in a “top limit.”

    4. Correct. And the big boys got 90% of what they wanted. It is not hard to imagine PTO Lee promulgating a loser pays IPR regulation. Now that would be mind blowing. And to the Big Co. infringer, that would be fixing the licensing system.

      1. strengthening patents, which is a taboo topic for many

        It’s not “taboo”. It’s just that fixing the patent system is far more important than coddling the stakeholders who are deeply invested in maintaining its dysfunctionality.

        Let’s dredge the muck out of the system first and then we can talk about strengthening the patents that remain.

        1. It’s just that fixing the patent system is far more important
          You mean that the patent system has gotten more sophisticated such that inventors can now get paid despite being fleas to the 800lb gorillas — and that needs fixing so we can return, to the 800lb gorilla, their natural right to act however they want without consequence?

          The system needs “fixing” when technology companies (e.g., Google, Facebook, etc.) cannot continue to ride, for free, on the coattails of technology that they implement but did not invent.

          This is all about one person wanting what the other person has — it always will be.

          Let’s dredge the muck out of the system first
          See 102/103 — designed for that very purpose. Those that advocate employing other tactics intend — not to carefully cull the weak from the strong — to clear cut as much as they can because they are against patents and/or certain technology spaces. If you don’t think 102/103 is accomplishing what it should accomplish, direct your attention to the USPTO.

  12. “Over two million patents are sidelined, producing no new jobs.”

    Because of our “broken” licensing system? So, all we have to do is get those two million patents licensed?

  13. If he is sincere, then be careful for what you ask for. I wouldn’t want any of the current lot of politicians involved in anything I was doing particularly Obama.

    1. particularly Obama.
      I ask this of you many times — so far, I don’t think you’ve given me a response. Who gave us Dudas? Who gave us Kappos? What does that say?

      Also, consider who was (supposedly) up for nomination, Philip Johnson — supposedly, somebody pro-patent. Whatever you think about Obama on other issues — don’t think that he has screwed us on patents — particularly if you consider that Obama gave us Kappos and tried to give us Johnson.

      1. You are right that it may be worse with a Republican. But, Obama is stacking the Fed. Cir. with shills, Shadow Director Lee is a disaster, CJ Smith is a disaster, and the AIA is a disaster.

        Clinton was a disaster for financial deregulation.

        Once the money starts to flow to get something done from big corp it usually happens.

        The only counter indicator was the Johnson appointment. My guess is that pharma had to be appeased. Burn it down but let the pharama patents stand. We see that in some of the shill Fed. Cir. judges.

        Still it may get much worse if a Republican is put in office.

  14. I’ve always wondered why some patentees are “punished” by the patent system when damages are calculated. If a pantentee licenses his patent at X% a couple of times, does that necessarily mean that he should only be awarded that percent if he wins an infringement suit? Patentees are choosing to not license and hold out for lost profits, which is easier to prove if you don’t license your invention.

    1. “Patentees are choosing to not license and hold out for lost profits, which is easier to prove if you don’t license your invention.”

      Sounds like we need more laches up ins of those cases.

    2. I am very interested to hear people’s opinion on whether a license agreements are artificially high because of anticipated litigation. (I give companies A, B, C, D, a license at X% because I want X% for a reasonable royalty if I win in Court.) I would like to see, to promote settlement and licenses, licenses to be less expensive and litigation at higher percentage.

      To accomplish that, one must ask… should license agreements not be considered at all in calculating a reasonable royalty?

      1. With the caveat that I understand that established royalties has been used since the beginning of the patent system…

        1. J If the patent owner thinks his negotiating partner is infringing, he can either license, sue, or forfeit his rights.

          Unless you insist on patentee capitulation as a necessary option, there is no escape from the concern of anticipated litigation.

      2. The problem with the reasonable royalty system is that it should be modified to “reasonable royalty assuming a 100% change of winning in litigation.” After all, in this situation you have won already, and most licenses should be discounted a certain percentage based on the possibility of the patent being invalid, the device not actually infringing, etc.

        1. Thanks Alex and Help. I don’t know if it is possible to know if businesses refuse to license because they don’t want to limit the damages available to them if they win a patent suit. I would guess that it doesn’t.

          But if we can fix the licensing system and promote patentees to license, then it would do much to help the courts figure out patent damages. Because patent damages is a mess.

      3. The use of the phrase “artificially high” is artificial itself.

        (you insert a foregone conclusion into your question)

            1. Billy is the World Master at inserting foregone conclusions into other people’s comments.

              But, like everything else with Billy, that’s a one-way street. Billy doesn’t like it when you ask him direct and obvious questions about his own bizarro world statements, not does he appreciate it when you point out that he has inserted another l i e into one of his troubled screeds.

              That’s just Billy being Billy.

            1. LOL – the person caught the second most amount of times on these boards prevaricating is charging at the red cape of “anon said.”

              (hint, 6 – read the words in black and white here – you pick an odd case to try to ‘protect’ someone who obviously was not paying attention to what was said)

              1. LUlz – caught “prevericating”. Hilarious. Could be true, though there is no reason for anyone to think it.is so mr. p a t h o lo g ical liar.

                He just can’t stop! He meets his former lies with still more on top! Hilarious to see it in action!

              2. though there is no reason for anyone to think it.is so

                No reason? Now why would you say that when it is obvious that you have every reason to do so?

                Could be true

                Oh, it is far more than “could be.”

                As to the 1ies on top of 1ies – you got your projecting thing on full power there.

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