Calling Patent Attorneys to Pro Bono

The complexity of patent law and the restrictions on who is permitted to practice have served patent attorneys well — with the resulting generous incomes. The problem though is that these same complexities raise a barrier to entry for many small companies and individual inventors. Over the past few years, the USPTO has improved and formalized its pro bono programs. Get involved. (http://www.uspto.gov/inventors/proseprobono/)

166 thoughts on “Calling Patent Attorneys to Pro Bono

  1. Interesting that volunteers have to join the FCBA if they aren’t already members. This limits participants to patent attorneys and not patent agents, but I doubt if many patent agents would volunteer, as the highest paid of us tend to get about the same as a first year law school graduate. Even then, were I retired I might hypothetically want to volunteer, but couldn’t. The pool of possible volunteers seems to be biassed towards litigators, though. There are many patent attorneys who only prosecute (most of them, actually) but surely most members of this organisation are not in that group, as they would mostly be people who have practiced before the Federal Circuit, albeit I have met patent attorneys who belong to the Supreme Court bar but have never tried a case there.

      1. LOL! That might be literally true. Patent attorneys, on average, are paid much more than most other attorneys, so many patent agents probably do get paid more than the average ambulance chaser. I should have said that the highest paid of us tend to get about the same as a patent attorney who is a first year law school graduate. There, that’s fixed.

        1. You make bold statements without any examples. In addition, just because some actors make millions per film does not mean all make millions yet those top level actors skew the average. So your claims about “on average” are meaningless. Give us some substantiated numbers.

            1. No data there. Besides, what may be “average” in DC in a big firm may be many times greater than for a solo in a small town in Idaho or other more rural state. As noted above, “average” is a very misleading number. Again, if you take the “average” of all movie actors, you will get a high number due to the multimillion dollar fees paid to the top stars but vast numbers of actors often have to take a job waiting tables just to survive. Remember How to Lie with Statistics?

  2. I can point to many patents I have done pro bono, solely because I liked the inventors and felt that they could use their cash better than I could. Since it was my time being consumed, this value judgment was mine and mine alone to make. I do not require sanctimony from people who have no clue as to my personal circumstances, resources, and views.

    Tell us Dennis, how many college courses have you given for free?

  3. So, if I draft and prosecute a patent application for a destitute inventor and the patent application is rejected by the benevolent Patent Office and I get sued for malpractice, does the PTO have a Pro Bono malpractice attorney program to help me?

    I didn’t think so.

    What if we loose the malpractice suit? Is the PTO going to bail me out?

    I didn’t think so.

    1. Recent changes in patent law have moved the entire patent system out of the grasp of small inventors and businesses.

      Thanks to the continued erosion of patent enforcement, you can get your client one of two kinds of patents:

      1) Those that have a valuable claim scope – which will be challenged endlessly during prosecution, spend four years waiting for an appeal to overturn a sham 103 rejection, get allowed and immediately challenged via pre-issuance submissions / PGR / IPR / CBM / district court / CAFC / Supreme Court; and

      2) Those that have claim scope that has been narrowed so much that no one wants to license it.

      Large and well-funded clients can drudge through this litany of challenges – and it’s worth their while to do so, because patent infringement damages are in the millions or billions, and because potential infringers who take them seriously will instead license the patent.

      Sole inventors and conventional small clients have no hope of patent enforcement in this environment. There’s still some hope of patent licensing, especially for products that they make; but the utter inaccessibility of enforcement mechanisms significantly diminishes the value.

      We can thank the endless drumbeat of “patent reform” for this consequence of our current patent law.

      1. We can thank the perversion of a system built for things, not ideas.

        Remove software patents from the history of the last 25 years and how would the system look for small inventors? A helluva lot better. How would everything else look? Exactly the same.

        1. Nice completely made up post with zero backing Marty.

          You have already shared that you know zilch about the law – the anti-software patent rant is as baseless as your admitted knowledge.

            1. I think we agree. The hardware is definitely a “thing”. Marty wrote about “a system built for things, not ideas. ” I was pointing out that 101 includes inventions that are not “things”. That being the case, software, which defines a process, is as much allowable under 101 as a screw. As to widgets – they are not patentable since they are imaginary. How would you describe a widget so as to satisfy both parts of 112? ;))))

              1. Being my own lexicographer, I can easily imagine an application that more than sufficiently defines “widget.”

                As to software – i will respectfully disagree that software defines a process as you are using the patent terms. Software being executed may define a process. But you risk confusing those only too willing to be confused by saying that software defines a process. Software is an object – it is a man made manufacture created for some (typically patent law meeting) utility.

                1. You raise one of the big problems wrt software patents. What, exactly, is the software? Is it the CD or DVD or other medium? Is it the set of instructions on the media? Is it the process that the set of instructions define? Is it what is happening when the set of instructions is being executed? Or is it something else? All of these and probably more have been used wrt the term “software”. Sometimes more than one usage appears in the same instance, e.g., document. Worse yet is when multiple usages appear in a court decision or statute.

                  As to the confused, some work hard at being confused. Let us not take away their joy of living in Cloudcoocooland.

                2. tifoso, “it” is whatever is claimed, be that the computer system, the computer readable media, or the method implemented thereby.

                  That’s the problem with disregarding the claim language when analyzing an invention – you end up with nothing to analyze.

                3. bja,

                  Therein lies the power of the “Gist/Abstract” sword: the Court merely dismisses the words of Congress and the fact that the invention – as claimed – and as meeting a statutory category does not matter.

                  So too, it does not matter whether the invention – as claimed – has utility that meets the utility desired in the patent system.

                  Instead, under some “implicit” (or perhaps now explicit with the added word – undefined added word – of “technological”), the Court imagines the 101 test to be deep in the rabbit hole of “it means whatever we want it to mean.”

                  Those that decry the meeting of the words as used by Congress in a derogatory manner as being “mere nominalists” fail to provide any sense of “fallback” position that allows a NON-nominalist approach to open-endedly gut the entire patent system.

                  Reap what you sew.

                4. Regarding your reference below to a “rabbit hole”, how about another character from Alice’s Adventures in Wonderland? “‘When I use a word,’ Humpty Dumpty said, in rather a scornful tone, ‘it means just what I choose it to mean — neither more nor less.’ “

              2. The point to be stressed here: hardware is equivalent to firmware and is equivalent to software.

                The type of “ware” simply is not determinative in a patent sense – each is an object, a manufacture, and a machine component.

          1. This is M-W’s definition of thing:

            Full Definition of THING
            1
            a : a matter of concern : affair
            b plural : state of affairs in general or within a specified or implied sphere
            c : a particular state of affairs : situation
            d : event, circumstance
            2
            a : deed, act, accomplishment
            b : a product of work or activity
            c : the aim of effort or activity
            3
            a : a separate and distinct individual quality, fact, idea, or usually entity
            b : the concrete entity as distinguished from its appearances
            c : a spatial entity
            d : an inanimate object distinguished from a living being
            4
            a plural : possessions, effects
            b : whatever may be possessed or owned or be the object of a right
            c : an article of clothing
            d plural : equipment or utensils especially for a particular purpose
            5
            : an object or entity not precisely designated or capable of being designated
            6
            a : detail, point
            b : a material or substance of a specified kind
            7
            a : a spoken or written observation or point
            b : idea, notion
            c : a piece of news or information
            8
            : individual
            9
            : the proper or fashionable way of behaving, talking, or dressing —used with the
            10
            a : a mild obsession or phobia ; also : the object of such an obsession or phobia
            b : something (as an activity) that makes a strong appeal to the individual : forte, specialty <I think travelling is very much a novelist's thing —

            link to merriam-webster.com

            For process, see at least 2a, 3a, 9 and 10. For chemical formula, see at least 1a, 2b, 3a, 4b, 7b and 8.

  4. So, if I draft and prosecute a patent application for a destitute inventor and she becomes a billionaire based on the invention and resulting patent do I get a taste, or even reasonable and customary fees?

    I didn’t think so.

    1. If based on your risk / return analysis you would only take on the destitute inventor if she were able to promise at least an x % take on any licensing fees, patent sale proceeds, damage awards, then to the degree the government prevents her from entering into such a contract with you, the government is acting as the only “barrier” to her “access” to patent services… the ones you would have been freely willing (i.e. absent imposition or threat of force, fines, jail by the government) to provide.

  5. “The complexity of patent law”

    Something being complex is not a reason to provide services free in connection with it. This is not persuasive.

    “and the restrictions on who is permitted to practice”

    Restrictions originate with government, which restrictions are purportedly to “protect the public”. Surely the Nanny State, in order to fulfill its paternal role, must continue to restrict/regulate who does what for whom, in the “complex” world of patent (or any other) law. At most this may be persuasive to relax government controls on the practice of law. Not persuasive of charity.

    “have served patent attorneys well — with the resulting generous incomes.”

    A small portion of the story of attorney’s doing well (the largest being due to “ability”) is the degree to which admittance requires an investment in time, effort, and money, which not all people are willing to make given the risks and possible return, hence a workforce with a limited amount of competition. This is true in any industry where a great amount of ability, time, money, and effort are needed to become competitive. As for “generous” incomes, no one is being generous (unless by implication Freedom to do business is a “privilege granted” by the “generous” state and not a Right), attorneys can and should aim at pricing themselves just out of working too much overtime, and keep that rate. Not persuasive. Nice and astute attempt at guilt though, it is the most effective approach but unfortunately as an appeal to irrationality only works with certain “types” of people.

    “The problem though is that these same complexities raise a barrier to entry for many small companies and individual inventors.”

    Small companies and small inventors, should not be restricted, by government, from doing for themselves what they need to do to protect their rights. They should be allowed to draft and file patent applications, prosecute and obtain grant, write letters and petition and present their case in court. TO the extent they are prevented from doing so by government they are being prevented from protecting their rights and hence are unjustly restricted. It should be remembered that they also have the right, should they choose to do so, to hire people with the requisite knowledge to address the problems… like a plumber or a architect, lawyers have special skills. Also, they should have the right to borrow money, seek investment, partnership etc. if what they want to do is a good business decision but requires investment (hiring lawyers, experts, etc.). Of course banks and money lenders are highly restricted/regulated by the State (again for the “protection” of the public) so “access” to freely negotiated lending of money, is hampered by government. Again at most the appeal to “barriers” is an argument to reduce state enforced restrictions in the practice of law and banking sectors in general, nothing persuasive of providing charity.

    “Over the past few years, the USPTO has improved and formalized its pro bono programs. Get involved. (link to uspto.gov)”

    The best solution IN FACT for “small companies and individual inventors” short of an unrestricted market in the provision of legal and financial services in general, is an environment in which NPEs (Non-Practicing Entities) can participate un-harassed where the demand of the marketplace for patent monetization and enforcement dictates.

    1. I’d say at this point that the PTO, Fed. Cir., and SCOTUS have so messed up patent law that none of them have any room to ask for anything from any attorney. We should all be calling for them to be impeached. Certainly a shadow director that was approved by and is likely working with Google right now to end patents has no room to ask anybody (except her anti buddies) for anything.

      1. And if we are going to spend any pro bono time it should be to reform the Fed. Cir., SCOTUS, and to get the shadow director removed.

        1. Technically that would not be pro bono time, but a rational and wise investment by each attorney for his/her own well-being over the long range.

    2. Well said. Given the cost of my undergraduate and law school degrees, my income has been ANYTHING but “generous”. And like you said, from whom does this so-called “generosity” flow?

        1. No doubt you will now be associated (unfathomably) with the person who picks tea leaves and puts them in bags for subsequent processing/shipping, or (equally unfathomably) the person who oversees the shredding of the dried tea leaves into tiny flakes and their placement into the porous filter paper bags in which tea is often sold …

          this of course has no relevance whatever to anything having to do with patents, rights, ability, or need.

              1. Well come on… there should be plenty more “inspiring messages” from the Matrix, or something from Star Wars (TM) … or Disney. I mean Marx and Spock are so… unoriginal. Give me a quote from Bugs Bunny and I’d be more impressed.

                Seriously though, Marx and Spock were dead wrong… completely so with respect to “the good”.

                1. Faster than an IPR, more powerful than a computer brain, able leap steps of logic in a single phrase, it’s Milly. Milly the hindsight blogger.

                2. Faster than an IPR, more powerful than a computer brain, able leap steps of logic with a single phrase, it’s Hindsight Milly.

                3. Faster than an IPR, more powerful than a computer brain, able to leap steps of logic with a single phrase, it’s Hindsight Milly. Beloved by Ned. Able to write a claim to any invention that was with a single post. Hindsight Milly.

                4. Faster than an IPR, more powerful than a computer brain, able to leap steps of logic with a single phrase, it’s Hindsight Milly. Able to write a claim to any invention that was with a single post. Beloved by Ned.

                  Hindsight Milly,”Infringers have no need for fear. Hindsight Milly is here!”

      1. Add to the cost of that license the lost income from the years in law school. Patent attorneys must have a degree or equivalent in engineering or science. With such in hand they can command salaries of at least $50,000. and sometimes $90,000. a year. To obtain the law degree then go through the study for the patent bar usually takes at least 4 years total. So lost income is between $200 and $360 thousand. Add that to the costs.

  6. As soon as my mortgagee goes pro bono, I’ll go pro bono.

    It’s one thing to help people with criminal, landlord/tenant, domestic violence, etc. It’s entirely different matter to do business services for free.

    1. I would ordinarily agree. As someone who went in-house in an unrelated field six years ago and now wants to switch back, these opportunities are to be taken.

    2. It’s one thing to help people with criminal, landlord/tenant, domestic violence, etc. It’s entirely different matter to do business services for free.

      Oh, so you help people with criminal, landlord/tenant, domestic violence, etc.? Good for you!

  7. MM is highly likely a USPTO employee:

    Post 10.2.1.2.2, “Which Side of the Mushroom did Alice Eat From”:

    “That’s the way the softie wofties have been nursed. As we were told here in no uncertain terms, “any skilled programmer” can do the programming once you tell them what the desired function is. Therefore, the softie wofties don’t need to worry about stuff about reciting novel structures, nor do they need to provide any evidence that they have any clue as to what the actual programming would look like. That’s for the little people to worry about, not the sooper dooper genius patent attorneys who “innovate” “new paradigms” at the firm Christmas party with their wives and children.”

    “…as we were told here in no uncertain terms…”

    He is extremely knowledgeable about precedent, more than any examiner (or even most attorneys). So I assume he must analyze cases as part of his job. He probably works for the OPLA or the OGC. Explains a lot.

    1. MM is highly likely a USPTO employee
      That has been suspected for a long time. He shows some knowledge in the biotech area, so he could be practicing in that realm. However, the vast amount of time he spends here would be highly unusual for an attorney in the private sector.

      If I billed the amount of time he spent on this blog, I would be many hundreds of thousands of dollars richer. The only people (I know of) with that much time on their hands are the unemployed and government employees (see 6 and Random).

      1. “He’s a big pharma bio attorney silly beans”

        That’s what he wants people to think. Why would a big pharma bio attorney have such an interest in issues relating to software patents and other hot USPTO issues? Not to mention, pharma prosecution is typically done by large firms which all have an EE + CS group. Why would a lawyer want to see fellow attorneys at his firm crash and burn? Why would a pharma attorney scour every federal circuit and Supreme Court 101 case?

        2.1.1.3.1.2.1: “Nobody has to work for Google if they don’t want to. I certainly don’t want to work for them but if I did I could do so in about the time it takes to make a phone call.”

        Because he can phone up Michelle Lee. Google would hire him right away because of his litigation experience at the USPTO fighting patents. I suspect MM is a lawyer high up at the USPTO (or it could be DOJ but less likely). (just to be clear, these are my own personal opinions)

        1. That sounds about right purple haze. But, he does say a lot of things that makes me believe he isn’t an attorney. His take on some things particularly outside of patent law is that of a non-lawyer.

          I think you are right that he is at the PTO or DOJ (which is by far the most anti-patent in EE/CS as any place in the world). But, I my guess would be that he is not an attorney, but someone who does something like you suggest. I don’t think he is a big shot. But, part of his job is likely managerial in creating policy or guidelines.

          1. The other possibility is that he is a paid blogger. This board advertised for paid bloggers by anti-software patent lobbying group. He may work for them.

            1. The other thing is that I don’t believe he is a lawyer because he loses his cool too easily. If he is a lawyer, then he is one of those picked up a law degree at night examiners at the PTO.

              1. I’m one of those “picked up a law degree at night examiners” if by “picked up” you mean went to class 2-3 hours a night for 4-5 nights a week for 4 years all while working full time.

                I assume you were what we referred to as a “day student” with nothing but mocking contempt.

                1. While I was “just picking up” my law degree at night I often wondered what all the “regular students” did with all their free time.

        2. “That’s what he wants people to think. ”

          It’s also what his name splattered all over a brief said wherein his views were all laid out pretty much verbatim. Gl faking that.

            1. Platonic perfection reached. A lady named anon demanding the name of another poster.

              MM and 6 are doing public service here. I finally fond some time to learn about Judicial Exceptions to the Printed Matter Rule, and guess what?

              200+ years had it right, and the pro software patent forces got it all wrong.

              Why all the litigation now over 1997 and 1998 vintage patents? Because in the first years after the land rush was opened, anything that could be coded was patented.

              We will now see if the poop can be shoved back in the horse by the courts alone via 101, or if in fact software patents for software per se will have to be banned legislatively. Either way, they are done.

              Look how well this item aged:

              link to groups.csail.mit.edu

              1. You are learning from the wrong source – a law school journal article supported by Dec…?

                You should check out the problem the Supreme Court has with the use of such “facts” (I wonder if the Prof. Hricik post has been fixed yet….)

            2. Because I promptly forgot it. Because unlike your name I don’t care what MM’s name is. Nor do I want to support your efforts to harass him. Though I do remember his first name, his last name evades me.

        3. “Why would a big pharma bio attorney have such an interest in issues relating to software patents and other hot USPTO issues?”

          Commenting is his hobby. As it is for several other posters. You haven’t figured that out yet?

        4. “Not to mention, pharma prosecution is typically done by large firms which all have an EE + CS group. ”

          He’s pretty much def in house last I checked.

          “Why would a lawyer want to see fellow attorneys at his firm crash and burn”

          He’s already said why. He regrets what he did a long time ago. And also, since he’s in house, they’re not his fellow attorneys.

          “Why would a pharma attorney scour every federal circuit and Supreme Court 101 case?”

          To stay up to date? Fun? They’re pretty fun to read. Or at least they were during the great period of trial and tribulation we just went through. Now they’ll just become boring.

          “(just to be clear, these are my own personal opinions)”

          Yeah, we can tell. They’re entirely based on ignorance.

    2. purple: MM is highly likely a USPTO employee:

      Nope. You gotta love the “us versus them” mindset that drives certain folks to make this kind of mistake.

      6: He’s a big pharma bio attorney

      Well, you’re getting warmer at least. Like many professionals, I grew up programming computers (starting with the first ones that were available to consumers and institutions) and eventually got seduced by chemistry and genetics.

      As I’ve said before: I’ve been around a long time and, like most patent attorneys who’ve passed the patent bar and who’ve been around a long time, I’ve done it all. Prosecution, litigation, opinion work, in all kinds of “arts”, for all kinds of clients: big, small, offense, defense, righteous and borderline criminal.

      In fact, some of the worst clients I’ve known actually did a bit of jail time. Well, the CEOs did anyway. Other ones managed to escape that fate even though they surely deserved some cooldown time.

      purple: Why would a big pharma bio attorney have such an interest in issues relating to software patents and other hot USPTO issues?

      Like many people, I have an interest in economic policy generally.

      Patent law is particularly interesting because of the manner in which it necessarily changes (or fails to change) in response to technology, and also because of the bizarre mindset and behavior of that tiny but incredibly whiny group of invariably wealthy attorneys who are most committed to expanding the strength and scope of their ability to sue people based on a piece of paper they bought from a flooded government agency.

      1. bzzzt. try again. You did not program computers. If you did, you’d have some grasp of how hardware, firmware, OS, programming, etc. work. Yet, you consistently show you have no grasp.

  8. He (Rader) also compared the opinion in Alice to the Supreme Court’s opinion in Mayo v Prometheus which he described as “probably the single most disappointing case in world patent jurisprudence”.

    “It causes me great pain to recognise the worst case in patent law history doesn’t come out of India or Pakistan or Vietnam or China even, it comes from the United States as recently as a few years ago,” Rader stated.

    Off topic, but I thought it would cheer up Milly. His Ned is not on today to provide support.

    1. Mayo v Prometheus which he described as “probably the single most disappointing case in world patent jurisprudence”.

      If Rader actually said that than he’s even st00 piter than I thought.

      If Randy is such a compooter expert, then he surely knows how to use the Internet. Let him comment here and tell everyone how he proposes that a patent system should deal with claims in the form [oldstep]+[newthought], or claims that protect the use of old computing technology to process data, where that data is given a new label. Let him explain how his proposal results in a better patent system that better serves the public than, e.g., the holding in Prometheus.

      By doing so, Randy could distinguish himself from the so-called “expert” patent attorneys that have spewed their self serving “everything is ineligible!” drivel here in the past.

      Or someone else who shares Randy’s views could step up. Doesn’t matter much to me because I know it’s not going to happen. And I also know why.

      1. >By doing so, Randy could distinguish himself from the so-called “expert” >patent attorneys that have spewed their self serving “everything is >ineligible!” drivel here in the past.

        Remember Mills we are members of the Ge stapo according to you.

        1. we are members of the Ge stapo according to you

          Uh … what? It was your buddy Billy who compared the PTO to the Ge stapo, here and elsewhere.

          Nice try, clown.

  9. Are any of the computer-implemented j nk loving crybabies who “can’t understand” what’s eligible and what isn’t ever going to tell us exactly what subject matter they’d keep ineligible when their fantasy comes true and they rewrite patent law and remove the ability of the Supreme Court to interpret that law?

    Or are they just going to keep whining and crying forever like a bunch of entitled, coddled toddlers?

    It’s just a hoot watching these self-proclaimed “experts” and master patent attorneys pretend on, one hand, that they simply have no idea (no idea!!!) how to interpret these recent decisions and apply them to claims and then, on the other hand, complain that everyone who has a clue about what’s going on (really not that difficult) is “naive” or somehow lacking in intelligence.

    And they wonder why their sad little movement to make everything eligible again isn’t gaining traction.

    Clowns.

    1. Lovely day for a thread hijack – let’s just repeat a post that is nothing but nonsense from another thread….

      Y
      A
      W
      N

        1. And apparently so does the shill MaxDrei, who thinks that Malcolm’s “arguments” being strong are why they are met with such disdain.

          Too bad 6 does not share his little psychoanalysis book and diagnose the truly depraved on this site.

  10. Getting back to the intended topic, one inhibition to doing pro bono patent work is wondering if it has malpractice insurance protection.
    It would be interesting to see an a posting on the extent of malpractice liability for providing pro bono legal cousuling, especially on a subject like patent law, where one is helping someone to get something that can be alleged to have had a signicant fiscal legal value by small inventor, and it is small inventors who are the most likely to sue for alleged malpractice. [When attorneys for large corporations make mistakes, the in-house attorneys and management usually do not want to admit that they made the mistake of hiring them.]

    1. My biggest inhibition is that pro bono help is needed for truly indigent clients facing onerous liability at the hands of a judicial system that is highly tilted toward the well-funded. How can we ethically justify giving pro bono time to patent applications who, at the root of things, are engaged in a profit-making venture.
      As I remember from my pro bono days, legal clinics are not permitted to pursue plaintiff cases, regardless of the potential damages: We could only defend. How then does the PTO justify pro bono for activity where profit is the main objective.
      And how might it be fair to the patent attorney when the investors show up, pay a pittance for a patent from an indigent inventor who thinks 10K is a windfall, and make millions? In that case, the pro bono system has done little more than support the venture capitalists who need no help.

      1. And in all of this, you’ve donated that original 10k. So the guy coming up with the idea walks away with 10k, and the guy doing the work walks away with nothing except a week spent working for free.

        Not seeing how this is a good idea.

  11. With respect to the comments below – Most of my clients (none in Pharm) are driven to innovate by the competitive pressures of the marketplace and would not slacken even if there were no patent system. At least that’s what they tell me. They often regard patents as a cost of doing business, and not as a driver of innovation.

    Also, I’ve yet to have a conversation with an inventor on a software application who is in favor of software patents. Not even their own. In terms of driving innovation, they don’t see our patent system as a good fit for what they do.

    I appreciate that in other technical areas (e.g., developing new drugs) things may be very different.

    1. “Also, I’ve yet to have a conversation with an inventor on a software application who is in favor of software patents.”

      I could introduce you to dozens. Consider this real world example (but I have changed the technology). Client has received millions in venture capital to develop technology to improve the STL file which is transmitted to a 3-D printer used to print the article, the improvement being the file is modified to reduce the amount of plastic required to print the article without a visual difference. The technology has already been licensed to a large 3-D printer manufacturer. The inventors just don’t have the means to introduce the technology on their own.

      Now, the blanket 101 rejections suddenly come (which have never been an issue in this art unit before) with examiners saying “we are told this is how it now is going to be.” Licensee sees this and doesn’t feel obligated to pay royalties any longer (since patent license requires the patents to be valid). If the applications are really all non-statutory,then 5+ years of research and investment are down the tubes and the inventors lose everything they have worked so hard for. Millions in investments are also lost as well.

      Far fetched? This has happened! What the USPTO has done to honest, hard working inventors that aren’t involved in business methods is simply disgusting in the name of “fighting patent trolls.”

      Michelle Lee, are you happy?

      1. pl,

        so sorry to hear that, but you are simply the collateral damage that those with an agenda are willing to take – after all, to these folk, the ends justify the means.

        1. <ito these folk, the ends justify the means

          Tell everyone who “these folks” are, Billy. Name some names. And tell everyone what their nefarious “means” are.

          Go ahead, Billy. Don’t be a coward.

      2. Another whining crybaby: improve the STL file which is transmitted to a 3-D printer used to print the article, the improvement being the file is modified to reduce the amount of plastic required to print the article without a visual difference.

        Last time I checked, “files” aren’t statutory subject matter.

        Let’s see these claims. I don’t have much sympathy for “inventors” or investors trying to claim “new data files” functionally and “cash in” on 3-D printing technology. That sounds like what your bttm feeders were trying to do.

        If the applications are really all non-statutory,then 5+ years of research and investment are down the tubes

        If that’s true, then all these people are really a bunch of grifting wankers. What did they do with the money? Spend it on advertising trying to get a more s ckers on board?

        the inventors lose everything they have worked so hard for.

        Again, if that’s true, it’s really the fault of the “inventors” and the attorneys hired by these “inventors” to protect their alleged “innovation.”

        Millions in investments are also lost as well.

        Explain to everyone where this money disappeared to.

        Far fetched? This has happened!

        You know what else happened? A bunch of self-entitled grifters started whining and crying when their gambling schemes and habitual abuse of the patent system got derailed.

        Go change your diapers and grow up.

        1. >>Go change your diapers and grow up.

          MM you have no clue about anything other than if you push for an end to patents you will collect $$.

        2. As I said, the technology has been changed in the example. The point is, the value is gone without the potential for patents. I’d love to show you the real claims, but I can’t. But your response is real presumptive without all the facts. To you all software inventors are “grifters” and startups based around software (that apply for patents to protect their technology) are gambling schemes? WOW

          MM, I’ve always felt you were very knowledgeable about patent law and precedent (despite your detractors, I will remain objective), and I assume that’s why Dennis hasn’t banned you despite some of your inappropriate attacks on others. But your 4.2.2 response is really devoid of anything useful.

          1. I’d love to show you the real claims, but I can’t.

            Then your whining is nothing more than whining.

            Go whine to your mommy. Go whine to http://www.whiners.com.

            Why whine here? It’s impossible for anyone to judge whether your whining has any merit whatsoever. What’s the point?

          2. To you all software inventors are “grifters” and startups based around software (that apply for patents to protect their technology) are gambling schemes?

            The incontrovertible point is that if you allow people to claim information processing “machines” functionally then you create an environment in which bttm feeders and grifters will thrive. The reasons for this are obvious, as is the evidence that such people exist, as is the evidence that the entire patent system has been dragged down by their behavior.

            You can pretend that it’s not true. You can “judge” me for “judging” these people and the present (slowly repairing) state of the patent system. That’s your right. You can even pretend that “innovators” of “new” data files are The Most Important People Evah and unless they have patents so they can s cker in these billionaire “investors” that innovations in computer technology will grind to a halt.

            I don’t buy any of that and I’m hardly alone. On the contrary.

            The major difference between twenty years ago and today is that these discussions no longer occur in a vacuum where all issues are resolved in the direction that favors “more patents, all the time, easier to enforce.” Like other changes in our society, that’s primarily due to the Internet, the creation of which depended on functionally claimed j nk patents like a fish depends on a bicycle.

            1. Oh noes !!!

              The anti-grifter patiently waiting at the edge of the fields of rye will save all of us from his decreed calamity.

              Machines will not be allowe to think – not on Malcolm’s watch.

      3. “STL file”

        You’re telling me it took a million dollars to “improve” an STL file?

        “Now, the blanket 101 rejections suddenly come (which have never been an issue in this art unit before) with examiners saying “we are told this is how it now is going to be.” Licensee sees this and doesn’t feel obligated to pay royalties any longer (since patent license requires the patents to be valid). If the applications are really all non-statutory,then 5+ years of research and investment are down the tubes and the inventors lose everything they have worked so hard for. Millions in investments are also lost as well.”

        Bad investments happen. And that sounds like a really really bad investment to me. Why in the f someone would give someone else millions of dollars to “improve an STL file” is quite beyond me. But, investors are investors and the whole econ floats on dumb money.

        “Far fetched? This has happened! ”

        I’ll sure bet it has.

        “What the USPTO has done to honest, hard working inventors”

        Well, “inventors” anyway.

        Besides, why not go ahead and argue you’ve “improved the machine” since it now uses less material?

        “that aren’t involved in business methods is simply disgusting in the name of “fighting patent trolls.””

        I can perhaps somewhat agree with that. But then, that’s the over-reaction that took place once the fed circ done screwed this pooch.

        1. 6,

          As I said in my post, I changed the technology. I can’t post a non-published claim. Suffice it to say, it is not in the (gasp) business method unit and values in the claim correspond to physical things. Maybe simply “changing a file” isn’t the best example.

          “Bad investments happen” — maybe you don’t see this side of things, but investors commonly want to see patents (even pending applications are sometimes OK) as part of their due diligence in a company. I’m sure you can understand this. Seems unfair to change the rules midstream and now take away this property, leaving nothing left to license and everyone out in the cold. What if you bought a house and then the gov’t suddenly for one reason or another took it away from you? Maybe then you’d understand.

          “Besides, why not go ahead and argue you’ve “improved the machine” since it now uses less material? ” – wow, we might actually agree on something. Yes, of course we will try to argue the claims are statutory and amend as needed. But when the examiner tells you that “I’ve been examining these types of inventions for 10+ years and I don’t think it’s abstract, but now I am told I have to reject everything under 101 but perhaps one day I will get some clarity from someone around here and be told what I can actually allow”, that just seems a tad unfair, don’t you think? If you’re answer is “no”, then you must really be a robot because any human would at least see some inequity in this situation.

          1. “and values in the claim correspond to physical things. ”

            Oh woooooow. I’m super impressed.

            Look if you changed the whole tech then we may as well forget the whole thing unless it is like directly analogous. Directly.

            “Maybe simply “changing a file” isn’t the best example.”

            Hah, thought not.

            ‘“Bad investments happen” — maybe you don’t see this side of things, but investors commonly want to see patents (even pending applications are sometimes OK) as part of their due diligence in a company.”

            That’s been my exp with startups actually. Everyone would love to have a gov granted entitlement to their own little niche.

            “Seems unfair to change the rules midstream and now take away this property, leaving nothing left to license and everyone out in the cold.”

            Do you even give a second thought to how the people that were previously prevented from doing x via these patents will now be free to do x? I mean, like, even a little bit? I’m talking seriously now. I can appreciate both sides to the issue. Can you?

            “What if you bought a house and then the gov’t suddenly for one reason or another took it away from you? Maybe then you’d understand.”

            I can understand what you’re saying. I totally can.

            “that just seems a tad unfair, don’t you think?”

            Yes, I do. But then, that’s also why I’m a strong advocate for examiners applying the law rather than taking marching orders. If you will recall, it was back in the day when software patents etc started coming out when examiners started to lose their autonomy and became slaves to the everyday policy whims of the higher ups via a corps of super examiners outside the regular supervisory role. End the super examination, end that problem. I doubt you’re for that though. Or at least I doubt you were for that. Maybe now you’ll change your tune on that one.

            1. But then, that’s also why I’m a strong advocate for examiners applying the law rather than taking marching orders

              (guffaw)

              What a load of CRP.

  12. So, we should give to pro bono work when Obama stacks the Fed. Cir. with judges that will invalidate claims based on their personal feelings toward the claims, when CJ Smith has stacked the board with “death squads,” and when law professors publish articles about things like functional claiming that have relationship to patent law but to judicial activism.

    If we give any time to anything, it should be to clear up Dodge. Give time by filing an ethical complaint against Mark Lemley. Lobby Congress to expressly over-turn SCOTUS 101 nonsense. Etc. The fact is that the forces are working to burn our system down are winning.

    1. Or what about the great irony of shadow Director Lee asking people to give time when she is doing time to collect her $20 million in stock options.

      1. See this video of Michelle Lee:

        link to youtube.com

        @11:53, “Patents are not the only drivers of innovation. The first entity to bring a product to market has a first mover advantage that provides an incentive to innovate on its own, whether or not a patent is sought or granted. Some firms opt for an open source model where they benefit from the network effects of widespread adoption of the technology they’ve developed. We also know that reputation and branding with or without a trademark, plays a large role in facilitating innovation and of course large numbers of innovations are protected by trade secrets and copyrights, but not patents.”

        Yes, that last sentence says, “…BUT NOT PATENTS.” So we have a “Director” of the USPTO that touts the open source model and not filing patents. Shocking.

        While everyone here has their own opinion as to what test should be used for 101 (and I respect everyone’s opinion here since this is still an open question), the fact remains that Alice v. CLS was very limited in scope. It didn’t add anything new that wasn’t already in Bilski (fundamental economic practices are abstract ideas) and Benson (a computer doesn’t make an abstract idea patentable). The USPTO is now usurping this opportunity to do away with most software patents (examiners are instructed to issue 101s across the board in some non-business method art units that historically never even had 101 issues).

        I can’t prove it, but I blame Michelle Lee. Focarino is a USPTO lifer and has never exhibited an anti-patent bias. Same for Hershfeld. Only the “Acting Director” would have the authority to pull cases after the issue fee was paid to issue “bulk” 101 rejections which exceed the scope of Alice to suit her agenda.

        1. From what I’ve heard from friends at the PTO it is shadow Director Lee that is behind this. She is a Google shill. I would bet a large some of money that after she leaves the PTO that Google gives her at least $10 million dollars. I am not sure why this is surprising given what we have seen in finance. Also, after watching the PBS special on Google I understand why they are so desperate to end patents.

          Google wants to be able to copy anything anyone else does. That is why. They say there only competitive advantage is their large sunk costs in infrastructure. They also admit that within months they could lose all their revenue to a cite that came up with a better way to search or present results to users –without being able to copy them.

          1. Do you think Google’s search is merely an IDEA?

            It’s a massive distributed machine made up of thousands of tons of silicon and millions of amps of electricity – nobody is going to “come up” with anything like it with just a keyboard and mouse…..

            And imagine, all that, no patents….how is it possible?

        2. >>>of course large numbers of innovations are protected by trade secrets

          And, I’ll say it again. What is going to happen is that the engineers are going to be locked up with trade secrets. When the game is trade secrets you don’t get to publish a paper about what you did. You don’t get to leave the company you are at and move to anther company. They will sue you. Sue you. Sue you. That is the way it was developing in the 1980’s before patents came along and blew away all the trade secret stuff.

          We don’t want trade secrets. Terrible. Horrible. Gosh, I can’t believe that we have sunk so low that we have a Google shill as director of the PTO who is pushing trade secrets. NO ONE who has worked under trade secrets (as I have) would want to go back to that. NO ONE.

          1. First, you are not correct about the “NO ONE” aspect. The very people that Malcolm likes to target – the 1% owners – the very ones feeding their workers the Kool-aid that software patents are bad – very much love to be able to compete on first mover advantage and trade secret tie-ups (and amazingly, the ones that like to pride themselves on their “technical” abilities, fail to grasp the logic at play).

            Second, the point that is missing in the video is perhaps the most critical point for the client – and the fact that this cost factor is overlooked must be met with suspicion: a patent right obtained – but not able to be enforced – is nigh worthless for the client. This amounts to yet another way of obtaining the Quo for minimal Quid. What care does the Office have (really) for inventors when they have obtained their end of the bargain?

            I don’t mind so much the implicit aspect in the video that better applications are desired. But better applications are only half the equation in any equal exchange – even when the applications are done well (as with my and many of the patent attorneys’ work) the client must be prepared for the after-grant costs in order to actually reap the reward for their end of the bargain. By not even bothering to acknowledge this reality, this promo comes across as a nothing more than a slick propaganda piece for the benefit of the Office, highlighting a lack of focus on a mutual benefit for all involved.

            1. That’s right anon. By no one, I meant no worker bee.

              Also note that your other comments are very good, and I would add that she does not appreciate or care about how some of the laws make patent applications worse. For example, the entire funcational claiming nonsense from Lemley encourages bloated applications. There are many other examples, but my guess is that she doesn’t even understand a patent application and couldn’t write a decent one if her life depended on it.

              1. And yet our community organize appointed a person that couldn’t write a patent application and probably couldn’t read a patent application to be in charge of an agency of 8,000 people whose primary purpose is to examine patent applications.

                No wonder she wanted to wax poetic about why we don’t need patents.

              2. the entire funcational claiming nonsense from Lemley encourages bloated applications

                Oh noes! It takes too long to describe what I actually “innovated”! Waaaah!!! Waaaah!!!!!

                1. >>Oh noes! It takes too long to describe what I >>actually “innovated”! Waaaah!!! Waaaah!!!!!

                  No Mills. It is not in anyone’s interest to force the patent applicant to describe what is old. The functional claiming doctrine by Lemley is plainly nonsense, and we can tell it is nonsense because Lemley will not engage in any real world examples.

            2. I will ask Lemley again to tell us how he is protecting the IP of his start-up. I believe it is with trade secrets that enable the employer to lock up an employee. (which is another thing that Google wants to be able to do.)

              1. trade secrets that enable the employer to lock up an employee

                Go ahead and argue that trade secrets are unconstitutonal if it bothers you so much.

                Nobody has to work for Google if they don’t want to.

                I certainly don’t want to work for them but if I did I could do so in about the time it takes to make a phone call.

                [shrugs]

                1. >>I certainly don’t want to work for them but if I did I could >>do so in about the time it takes to make a phone call.

                  What? OK. Great for you Milly. Google wants you. You probably already work for them in the propaganda department or public relations department. From what I’ve seen of your knowledge of patent law, you sure aren’t a lawyer.

                  >>Go ahead and argue that trade secrets are unconstitutonal

                  Wow! So that is the standard for the environment we are trying to set up for American workers is it. That if it isn’t unconstitutional then there is no basis for criticism.

                  You should like a slave master. Come now Milly. It is about time to fess up that you work for Google’s public relations department. Ned will still love you.

        3. PL, I don’t find that quote as damning as you do – in the sentence that immediately follows she says that patents have a place. But I find disconcerting her statements a few minutes later that patents provide monopolies and enable patent owners to charge “supra-competitive” prices. She should know that that’s rarely the case: usually there are alternatives in the marketplace that prevent monopoly pricing. (And she should also know that, conversely, lacking a patent doesn’t preclude high prices for a product: the popularity of the i-phone does not seem to suffer, despite being priced significantly higher than comparable devices made by others.)

          1. Bob, the fact that a new director would be saying any of this is outrageous. She should be focusing on improving her agency. The decision as to whether or not patents should exist is Congress. She is there to implement 35 U.S.C. She isn’t there to give us propaganda about why patents shouldn’t exist.

        4. Are you misreading that sentence? She meant that many innovators are choosing to protect their innovations with trade secrets and copyrights instead of patents, which is true and has been true for a long time.

          As for exceeding the scope of Alice v. CLS Bank, we don’t know what the true scope is. The only way to find out is to further query the courts, and since we have a strictly adversarial legal system, the only way to do that is to reject claims and induce applicants to appeal.

            1. This isn’t the promulgation of rules, though – it’s about the interpretation of law, in accordance with our quasi-judicial role in patent examination, fully consistent with the rules already in force, and consistent with the law as we best understand it.

              If the courts say that our rejections of certain claims under 101 go too far, then we have an additional bound on the possible interpretation of Bilski and Alice. That’s what we really want, so regardless of whether the courts affirm or reverse those rejections, we win either way.

              1. The Executive branch does not have the “interpretation of law” power that you seem to think it has.

                fully consistent with the rules already in force

                That’s the rub – it is not.

                as best we understand it

                Another rub – hence the Tafas reference (you – the royal you – did not understand the law there either).

                Partaking in power you do not have is NOT a win.

            1. >>You wouldn’t know the true scope of a 101 case if it chewed >>your face off.

              That explains a lot. So, Milly, you chew your face off.

          1. She meant that many innovators are choosing to protect their innovations with trade secrets and copyrights instead of patents, which is true and has been true for a long time.

            It’s true of most innovators — especially in business — and it’s always going to be true.

            But the patent t e a b agg ers just can’t bring themselves to admit that. Their script says that the world must revolve around patents and anybody who disagrees, well, you know: communist, G estapo, Amish, whatever. That’s how they think. That’s how they act. Human s cum.

            1. And let’s see Lemley man up and post a copy of the employment contracts he makes his employees sign for his start-up.

              Come on Lemley. Man up.

        5. the fact remains that Alice v. CLS was very limited in scope. It didn’t add anything new that wasn’t already in Bilski

          LOLOLOLOLOLOL

          Keep dreaming.

          1. >>LOLOLOLOLOLOL

            Keep up those substantive posts. By the way, there were links to some of the more respected commentators who said as much. But wait, that was over a week ago, so you would need this to be re-proven to you.

    2. CJ Smith has stacked the board with “death squads,”

      Rhetoric like this only reinforces the notion that people like you are morally bankrupt sleezebags.

      Radergate didn’t teach you a thing, did it?

      1. >>Rhetoric like this only

        That’s right Milly stick to the policy sheet. Don’t address the substance, but go after the person.

        1. Do “death squads” have anything to do with the topic being discussed here, Billy? Because your brotard Night Wiper brought ‘em up.

          And we all know who coined the phrase as applied to the USPTO, don’t we?

          Yup. The disgraced Dandy Randy.

          1. Um, “Radergate” has to do with a particular set of circumstances – and ZERO to do with the topic here.

            Do you really need to be told that?

    1. I watched a PBS program on Google. It was interesting in that Google said and the PBS program emphasized that Google is vulnerable to losing all their revenue because almost all their revenue is from advertising.

      So, their biggest fear was someone coming up with a better search strategy/engine then they have and losing their traffic, which would mean all their revenue.

      Fits with their strategy of not wanting patents.

      1. their biggest fear was someone coming up with a better search strategy/engine then they have and losing their traffic, which would mean all their revenue. Fits with their strategy of not wanting patents.

        That makes no sense whatsoever.

        The idea that Google as the main driver of patent reform in the so-called “computer implemented arts” is perhaps one of the most re txrded ideas floating out there. I suppose that explains why you’ve seized on it like a pitbull.

        1. >>That makes no sense whatsoever

          This coming from Joe Bozo that knows nothing about innovation or computers?

          >>The idea that Google as the main driver of patent reform

          Really? I’ve linked to articles about Google’s lobbying efforts and K Street big $$$. But, wait, that was over a week ago, so I’d have to re-prove that to you.

          1. knows nothing about innovation or computers?

            First line in the patent t e a b a g g er script.

            Keep working it, Night Wiper. You’ve had great success over the past few years with that strategery.

            Billy and Big Jenny are longtime fans of that approach as well, as I recall. Pretty soon Kleenex is going to call Big Jenny and ask him to do some ads. That’ll be fun.

      2. Yeah but that’s just in their search division. You may not have noticed but they have diversified since whatever oldschool program you were watching.

          1. The financial numbers I see from google themselves don’t seem to indicate what you’re saying. But, I could be misreading those since I’m not a finance guy. However here’s an infographic in easy terms for all of us to understand.

            link to blog.hubspot.com

            Note that search is 5.6 billy, however their display network is 24 billy.

        1. Actually one of the most remarkable things about Google is how incompetent they are in development of anything other than search.

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