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/)
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.
Please. Patent agents make way more than most lawyers.
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.
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.
If you want actual numbers, I’m sure you can find some on salary.com
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?
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?
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.
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.
Yay Team Infringement
Hindsight Milly rejoices at these developments.
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.
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.
How is a process a thing? How is a chemical formula a thing?
How is a machine component – be it a screw, a widget, a software module, not a thing?
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? ;))))
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.
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.
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.
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.
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.’ “
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.
As well as a “thing”.
Very true tifoso – we probably agree on a great many things (or even “things”).
😉
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.
It it is still available, raad “What’s a Dictionary For?” by Dr. Bergen Evans.
It it is still available, read “What’s a Dictionary For?” by Dr. Bergen Evans.
but it would not nearly as good as for small businesses that have patents; they would raise the money more easily than “no patents”; that’s the point; you want money, you need patents.
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.
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.
“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.
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.
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.
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.
Cogent and compelling – thanks Anon2.
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?
from each according to their capabilities…
to each according to their needs…
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.
“The needs of the many outweigh the needs of the few, or the one” – Spock
LLAP
Marx and Spock in one thread…. I’m underwhelmed.
LOL – what do you want for nothin?
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”.
Shhhhh – I’m hunting wabbits
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.
Faster than an IPR, more powerful than a computer brain, able leap steps of logic with a single phrase, it’s Hindsight Milly.
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.
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!”
Spock, dead wrong?!? Sacrilege!
Moreover, how can you say that:
link to youtube.com
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.
Dennis, the attached link seems to be directed toward inventors. Interested attorneys will need to apply via the Federal Circuit Bar Association, and it seems that FCBA membership is required.
link to secure.www.fedcirbar.org
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.
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.
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!
Not anymore. I used to though.
I still do some free tax prep.
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.
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).
He’s a big pharma bio attorney silly beans.
“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)
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.
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.
But he does have the stench of a federal worker.
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.
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.
Yes I was a regular student. My contempt was only for MM.
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.
Had sex.
With yourself most likely given the amount of wanking you’re doing on this site.
“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.
If you are so certain that such was his name, why don’t you share that name?