Follow-Up: Professor Chien’s More Nuanced Arguments

Following my discussion of Professor Colleen Chien’s WSJ essay on “ignoring patent demand letters, Professor Chien pointed me back to her 2014 article titled Holding Up and Holding Out that served as the basis for the WSJ essay.

In the hold-out article, Chien explains that, although patentee hold-ups are a systematic problem, so are hold-outs where infringers refuse to deal.

In the abstract, Chien explains:

Patent “hold-out” is a term I use to describe the practice of companies routinely ignoring patents and resisting patent owner demands, because the odds of getting caught are small. . . . When large companies systematically “hold out” [patentees] have no choice but to work with efficient patent enforcers or “trolls.” . . . I argue that considering ‘hold-out” and “hold-up” together provide a more complete picture than focus on either story alone, and that doing so reveals surprising pathways to a better patent system – focused on the design, rather than the doctrine of patent law. Instead of trying to eliminate all technology patents, or to enforce all of them, we should try to price them appropriately and reduce the distortions they produce. Instead of trying to make patent law perfect, we should make it cheaper, more streamlined, and more equitable.

The Chien article particularly addresses the concerns that I had with WSJ essay, which is why I was surprised to see the completely different focus of that WSJ essay.  I thought she had also changed course. According to Chien, the emphasis and framing in the WSJ essay were the result of heavy WSJ editing rather than any backtracking from her prior work.  In particular, Chien noted that the title “do nothing” was not her selection of terms – she suggested at least an internal analysis, forming an opinion, an filing the letter away.  In addition, Chien noted that the essay was geared towards small companies seeking self help, not on the oped page.

That is all-and-good. Unfortunately, tens of thousands of people read the one-sided essay while only a couple hundred have read the nuanced article.

About Dennis Crouch

Law Professor at the University of Missouri School of Law. Co-director of the Center for Intellectual Property and Entrepreneurship.

145 thoughts on “Follow-Up: Professor Chien’s More Nuanced Arguments

  1. So, are there any posts below that actually involve “Follow-Up: Professor Chien’s More Nuanced ArgumentsFollow-Up: Professor Chien’s More Nuanced Arguments”? Or do they solely involve in-fighting among the “regulars”? (You’ll have to excuse me; I only glanced through the first one-third of the posts and saw nothing relevant to the topic.)

    A follow up: Why continue to allow posts, when the vast majority of posts are unrelated to the topic at hand?

      1. Amit,

        Serious question: are you paying attention? I mean, Malcolm’s “exploits” have been running along the very same paths for NINE YEARS and running.

        Well, well, well, before I ever posted here.

        You cannot have an honor system with the likes of Malcolm, who knows no honor.

    1. PB: are there any posts below that actually involve “Follow-Up: Professor Chien’s More Nuanced ArgumentsFollow-Up: Professor Chien’s More Nuanced Arguments”?

      There’s dozens of them. It took my all of three seconds to find them.

      Even your little buddy “Amit” is involved.

    2. In those few cases where a paper sought an opinion piece from me on anything, I insisted on seeing all edits before it was published. If the edits rendered the article no longer my opinion, I told the paper to remove my name.

      Chien’s behavior strikes me as bizarre to say the least and possibly even risky to her as well as to those she represents.

      1. Chien’s behavior strikes me as bizarre

        Just in case you missed it the first time, JM: people have been throwing patent-related demand letters in the trash for a long time after looking at the claims and deciding there is no point in wasting additional time.

        If that strikes you as “bizarre”, it’s probably you who are doing your clients a disservice. Oh but wait! You still make money if you waste your client’s time. If we remember that, your complaint makes so much more sense.

          1. It is bizarre to put one’s name to an opinion piece that does not accurately represent one’s opinion.

            I think Chien deemed the piece to be an accurate enough reflection of her opinion regarding one tiny slice of the world of patents. I’m not aware that the op-ed was ever intended to be a detailed exposition of every one of her opinions about every aspect of patent litigation, in every context and addressing every contingency. How could it be?

            1. I think the “deemed… accurate enough” is expressly not when she comes out and tries to use the excuse that the paper changed things around.

              That’s kind of a rather important point to keep in mind.

              1. The original post by Dennis is about Colleen Chien contacting Dennis, supposedly refining her position.
                But the abstract of the Michigan law review has nothing to do the WSJ op-ed, which op-ed is about small entities attacked by “trolls,” and the response of “do nothing.”
                There are at least two points. First, if Chien fully backed the position in the WSJ op-ed, why the “editing” comments in her communication to Dennis? Second, why bring up an abstract of a law review at all, much less one that offers no defense to the the criticisms of Dennis to the op-ed?

                1. Maybe you want to stop being all “ephemeral” and direct your points to those that I have actually put on the table for you….

                2. Anon says: Maybe you want to stop being all “ephemeral” and direct your points to those that I have actually put on the table for you….

                  Huh??? I am talking about the post by Dennis concerning what Colleen Chien said. What are you talking about?

                3. Huh?? right back at you – you were replying to me.

                  If you had meant to reply to someone else, maybe you should have done so…..

                4. Anon says: use the excuse that the paper changed things around.

                  LE says: First, if Chien fully backed the position in the WSJ op-ed, why the “editing” comments in her communication to Dennis? Second, why bring up an abstract of a law review at all, much less one that offers no defense to the the criticisms of Dennis to the op-ed

                  The LE reply had points directed to “changed things” and further pointed out that apart from the attempted excuse the attempted “nuance” had nothing to do with Dennis’s problem.

  2. Now here’s a patent worth respecting…. not.

    link to washingtonpost.com

    Google received a patent Tuesday detailing how a self-driving vehicle would determine if pedestrians were likely to cross a street, plan its next move accordingly, and then notify the pedestrians of its intent. Since the cars are being driven by a computer, a pedestrian can’t count on a hand signal or eye contact from a passenger to know a vehicle is waiting for them.

    Cars don’t have hands or eyeballs to communicate information to pedestrians. What remarkable solution did the geniuses at Google come up with to solve this sooper dooper problem that was never addressed before in any context???

    The patent describes using electronic screens mounted on the side of the vehicle — including potentially the roof, hood and rear of vehicle — to tell a pedestrians if it was safe to cross. A speaker on the outside of the vehicle might call out alerts, such as “coming through” or “safe to cross.” Perhaps most interesting is the potential use of a robotic hand and eyes to gesture at pedestrians and make them aware that the car “sees” them.

    ROTFLMAO. Try to believe it, folks.

    Worried about lack of respect for patents? Maybe it’s time to something about the ten zillion junky “do it with a robot car” patents out there. After all, nobody could have predicted that the PTO would crank that junk out like there’s no tomorrow …

    1. Let’s set aside the fact that conceptually — at least as conceptually as recited in Google’s awesome claims — cars that signal their intent are really, really old.

      See, e.g., link to youtube.com (0:17 to 0:44; 10:14-10:22)

      That took five seconds. And that’s only 35 years old. There’s older stuff than that — way older.

    2. And supposing the claim is to the implementation, much more than a mere abstract idea? Is 101 the tool to use, to stop the claim issuing? Face the logic. It’s a job for 103, isn’t it?

      1. I’ve never ever suggested that 103 is not an appropriate t00l for getting rid of obvious junk, MD. Sometimes 103 is the only tool that will work.

        1. Conflating 103 and 101 is NOT helpful.

          Not to the jurisprudence of 101.

          Not to the jurisprudence of 103.

          And certainly not to the distinction between common law and statutory law.

          1. Conflating 103 and 101 is NOT helpful.

            I don’t see anyone in these comments is “conflating” 101 and 103. Maybe someone somewhere is mixing anchovies with ice cream. That’s not helpful either. You should find that person and lecture them.

                1. Silly, assume printed matter is non statutory. The only novelty is in the meaning of the printed matter in the claim.

                  How is this handled in the PTO right now?

  3. One more thing. I do dislike the form of words “You need to….” Perhaps others here have grown used to them more than me, and find them meant kindly, but I find them presumptious and rude. Do people these days utter them routinely to their boss, line manager or CEO? I’m curious.

    Not only when directed at me but also when directed to, say, Prof Dennis Crouch.

    They might be intended to be helpful. But there are more courteous ways to make suggestions you suppose might possibly be helpful. And especially when the suggestion is not new but hackneyed, prefacing it with “you need to” makes it boring as well as discourteous. Seriously, do you suppose that Dennis is not aware of the problem and has not already tried various ways of moderating the blog more actively. Trouble is, these ways are either too crude or too time-consuming.

    1. I find them presumptious and rude

      These people believe the world revolves around their personal whims, MD. They’re used to getting their way and it drives them around the bend when their petulant foot-stamping isn’t immediately acted upon. They truly are The Most Important People Ever, in their own minds.

    2. MaxDrei,
      \
      I “get” that you are referencing ‘iwasthere’ in particular, but do you know who else used the very language that you deem “offensive” on this very thread?

      Three people, but we can excuse one of them who said it merely in response to one of the other two.

      Those two people are….

      Malcolm
      Ned

      Go figure, you don’t seem to have any issues when it is those whom you “echo”…

  4. Amit laments that MM writes too much, and that the threads would be better absent his contributions. I disagree. Without incisive active contributers, this blog would be less lively and less useful.

    See below, where MM crosses swords with Night Writer (another power user) over whether 101 or 103 is the correct filter. Night urges use of 103 while MM urges:

    “non-obvious abstractions like “correlations” are (wait for it) non-obvious. 103 doesn’t screen them out because … they’re non-obvious. That’s why we use 101.”

    Now, Amit, how can you say that from MM isn’t a good quality contribution? I haven’t seen any answer yet, that gets anywhere near puncturing Malcolm’s point. All I see is the childish “Come on then. Give me an example of a non-obvious correlation”. When these correlations emerge only after exhaustive study of big medical data, I do not see how one can hand-wavingly dismiss them all as merely “obvious”.

    In Europe, we have the same 101 vs 103 debate. Set aside the “mechanical” task of claim drafting and consider, isolated from that, the question of patentability of a DVD with a new pattern of laser pits which I call “MATRIX”. Is it new over an old DVD with a pit pattern I call “THE SOUND OF MUSIC”?

    It’s a pickle. The thing claimed (clearly and definitely, let us pretend) is a piece of technology. It is new by virtue of its pit pattern, and its new pit pattern was not “obvious”. What to do? And would it make any difference if the pit pattern correlated to new and inventive encryption or image enhancement software? And what if the MATRIX DVD has in it pit patterns which achieve something technical like enhanced images?

    The UK courts use their eligibility filter. The EPO uses its 103 provision (Art 56, EPC). It can do this very effectively, under the rubric of its EPO-specific “Problem and Solution Approach” which no other jurisdiction, world-wide, can yet bring itself to commit to. Thus the UK/EPO argument continues, undiminished, which jurisdiction has the better approach.

    So I welcome having the same debate in these threads, provided it is between commentators (like MM) who contribute something useful.

    Justice delayed is justice denied. On sorting out subject matter not fit to patent, I think we have, in recent years, seen a heck of a lot of delay.

    1. Amit wants a productive forum. Laments “power four regulars.”

      Rankings, Amit? Those do not help – as the DISQUS system showed, all you get is Echo feedback – and not any sense of careful and critical thinking.

      The answer, Amit? Same as my answer: don’t let people go on drive-by monologues and merely repeat the same short script items without taking into account he discussion points placed on the table.

      Four years ago now I personally gave this answer to Prof. Crouch.

      The “problem” Amit, and the reason why that does not happen, is to do so would mean that a desired narrative is stopped here.

      That just won’t happen – even if the main speaker of that narrative is the single most offensive person on the blog.

      Double that time frame ago, MaxDrei’s “hero” was doing the same C R P he is doing today: offering mere conclusions framed not in actual law or facts, but only in his desired ends and the typical baseless ad hominems that are the staple of his short script. There is nothing incisive about Malcolm’s posts. Something useful…? Malcolm has given nothing but the banal.

      Speaking of lack of careful and critical thinking, MaxDrei, long the mere Echo of Malcolm’s portion of the “power four regulars” trots out (again) the banality of conflating non-Useful Arts items in a 101/103 discussion. Lively and useful? Sorry MaxDrei, but the dross of drive-by monologues only exemplifies the opposite. There is no mind willing to comprehend when that mind refuses to even acknowledge and integrate the counter points presented.

      1. …..except that I favour the 103 approach advocated by Night and the EPO. I disagree with the 101 approach taken by Malcolm and the English courts on this issue, as regular readers already know very well.

        But in any jurisdiction, you have to go with what you’ve got so, for the USA, stuck as it is with more than 100 years of obviousness jurisprudence, the currently favoured 101 approach might be the only one that is workable. I do see that far.

        1. MD: I favour the 103 approach advocated by Night and the EPO. I disagree with the 101 approach taken by Malcolm and the English courts on this issue

          We all know that the EPO’s “103” approach (aka “inventive step”) includes an analysis of subject matter eligibility in the context of the prior art. The exact reasoning one uses in particular “technological” contexts may differ and may lead to different results in each jurisdiction (i.e., US versus EPO) depending on the facts but the issue being addressed is the same and in many (most?) cases the same result is obtained by a virtually identical analysis. Different words, same concept.

            1. Please respect our sovereign.

              I am perfectly willing to let the English decide what law they want. Same for the EPO.

              Here, we have different law.

              Please recognize this and integrate this into your discussion points.

    2. I don’t understand the issue. Once there is a data storage device, isn’t it obvious to use it for data. The rubber eraser precedent or Morse works (101) if there is a new type of data that has never been stored on the medium or 103 works if the medium has already been used for the proposed type of data.

      It makes no difference whether we address:

      program cards for a Jacquard Loom,

      a roll for a player piano,

      an electromagnetic transmission,

      magnetic storage media,

      tube/valve storage media,

      solid-state storage media,

      optical storage media, etc.

      1. Once there is a data storage device, isn’t it obvious to use it for data

        Depends on whether you were born yesterday or not. After all, “storing baseball card data is completely different from storing football card data.” ( <— typical "argument" made by deep thinking advocates for computer implemented junk)

        The nice thing about 101 is that it eliminates that kind of game playing.

      2. One very important thing you left out, Joachim….

        Functionally related.

        You do not even have to think of software examples. Just use measuring cups and magic hat bands.

        1. ps, it is NOT that the type of functionally related must itself be inventive – that too is important to remember, as that is often deliberately obfuscated.

  5. Denis for the most obvious reasons (MM) you need to put in a ranking system. MM/anon, et al. are destroying your blog.

    1. You are aware that Malcolm and his selfsame tactics have been around for NINE years and running (long,long, long before I ever shoved his nose into his own C R P), right?

    2. I second this. The comments section of this blog has a great deal of potential to be a productive forum of discussion about the posted article.

      Due to poor oversight, it often devolves into conversations between three or four regulars. So each time, I have to scan through comments, ignore their garbage, and occasionally find a productive contribution.

      1. Amit,

        In addition to the above comment at 13.1, one must necessarily realize WHY the droning ad infinitum ad nauseum short script posts by Malcolm are put on the board: repeat something often enough, and it garners some semblance, some perception of “truth.”

        It is a propaganda war – it just does not matter the means to the likes of Malcolm. All that he “cares” about is the End to be achieved.

        1. …and I will also add that for some (unknown) reason, people ‘feel’ that one should be “polite” to the one-way-fingers-in-the-ears posters like Malcolm.

          He does not deserve any such ‘nice’ treatment. It is beyond clear – nine years and running beyond – that he is nothing but an internet ‘bully’ and really just is not interested in ANY form of actual dialogue.

          One does not treat bullies with ‘politeness.’

          You punch a bully in the nose – that is the only thing bullies understand.

            1. I can – and do – figuratively punch him in the nose.

              You want a “more polite” ec(h)osystem here?

              Remove the one-way monologuing.

              It really is that simple.

  6. Some time ago Dennis asked a great question: what do we do with the thousand upon thousands of invalid and ineligible patents out there that were granted when nobody was at the wheel?

    The answer is certainly not “respect them.” The answer is “expunge them as quickly as possible”, with extreme prejudice against the people who are trying to milk every last penny out that junk, at everyone else’s expense.

    That’s what’s happening now. If you don’t like it, then find another playground because it’s going to take years. And in the meantime, it’d be nice if the PTO and the Federal Circuit moved the process forward instead of putting on the breaks and blowing sunshine up people’s behinds.

      1. link to patentlyo.com

        “What to do About All These Invalid Patents?”

        Over the past few years, the Supreme Court has uncovered a few glaring errors in the patent records. Namely – hundreds of thousands of patent claims have issued that are – in fact – not patentable. These problematic claims either lack eligible subject matter under the patent common law and 35 U.S.C. § 101; are indefinite under 35 U.S.C. § 112; or are obvious under 35 U.S.C. § 103. … Prior to these decisions, the USPTO had been issuing patents under more lenient standards. See, e.g. State Street Bank (Fed. Cir. 1998).

        Live and learn, “anon.”

        1. A different standard” is NOT the same as “nobody at the wheel.”

          Quite in fact, “ A different standard” and “patent common law” speaks very much to the broken scoreboard that is the Supreme Court changing statutory law – in violation of the separation of powers.

          Live and learn indeed – just not the way you “think.”

          1. “A different standard” is NOT the same as “nobody at the wheel.”

            That would depend on the “standard” in question. State Street was a dead letter. The PTO, as most people appreciate now, was — at best — completely clueless about how to deal with the inevitable Great Grab that followed.

            That’s why we’re having this discussion. You know: the discussion that you tried for years to squelch with your hundred-s0ckpuppet-a-day cl0wning. Or did you think we all forgot about that, too?

            Oh but wait: you’d like to go back to those wonderful pre-Prometheus days. That’s never going to happen. Please keep trying though! We can all use the laughs.

            1. That would depend on the “standard” in question.

              Absolutely not.

              State Street was a dead letter.

              Great, now move the goalposts back and realize (as I have emphasized to Ned), that I have never used State Street or relied on that case, instead relying on the actual words of Congress, the congressional record and the writings of the two most knowledgeable men concerning the Act of 1952 (Rich and Federico).

              You smokescreen of “sockpuppets” is especially misplayed – as YOU are the one who uses them most often, or shall we (again) visit Dr. Noonan’s transparency challenge to you? Yea, thought so.

              as for Mayo, you have YET to square that with its precedents….

              Those laughs you here are NOT laughs with you Malcolm.

  7. People who pretend to be concerned about “respect for patents” should have been speaking up against the worst patents, the worst judges, and the worst patent attorneys in the history of the system long ago when it might have helped. But instead these same people cheered those judges and patent attorneys on they did somersaults to defend those junky patents.

    The best part: those people were warned about the damage being done to the system but they were having so much fun shoving cash into their pockets all they could do was stick their fingers in their ears, hurl invectives at their critics, and pretend that everyone else was just jealous of their awesome cleverness.

    Reap the whirlwind, folks.

    1. I gaze upon the C R P that Malcolm has posted today and see absolutely nothing but his mindless and endless “class warfare” type of mantra.

      Maybe you want to actually address some legal point along the way, Malcolm, and not just engage in your usual “somebody was trying to make money” rant…

      Just a thought.

      1. “anon”: Maybe you want to actually address some legal point along the way

        Okay. Anybody who believed that Diehr prohibited one from taking into account the prior art when looking at the eligibility of a claim didn’t know what they were talking about then and they shouldn’t have been allowed anywhere near a patent, then or now.

        Need me to explain why for the billionth time? I’m happy to do so.

        1. What exactly is the point that you are attempting to make with the Diehr case, Malcolm?

          You know, the case that you swear was awfully decided and all…

      1. NW: what we had said was 103 was the right tool.

        That is what you said.

        And it’s a sentiment that is just as whacked, braindead and miserably ign0rant now as it was back then.

        Do I need to explain why for the ten billionth time? Just let me know.

        1. Maybe you want to try for the first time (and in that explanation, try to square the conflicting Supreme Court cases..)

          What? Lacing up your track shoes already?

          1. Maybe you want to try for the first time

            No, I’ll just do it for the billionth time: non-obvious abstractions like “correlations” are (wait for it) non-obvious. 103 doesn’t screen them out because … they’re non-obvious. That’s why we use 101.

            There you go. Pretty easy to follow. Are you lost already? Of course you are. Start pounding the table now and kicking up dust. That’s what “respectful” patent worshippers like you always do, after all.

              1. Troubled: Could you provide and example of a non-obvious correlation?

                I could provide a zillion of them but for the purposes of this discussion all you need to do is recognize that the PTO considered the correlation recited in Prometheus’ claims to be non-obvious. That’s why they granted the patent.

                Here’s an idea, Troubled: next time you have a point to make, assume your facts, state your assumptions, state the basis for those assumptions and make your point. For instance, if you believe that all correlations are “obvious”, explain why.

                1. MM,

                  I did not understand your use of the phrase, “non-obvious correlations” in view of the billions and billions to which you alluded. It was a simple request for an explanatory example. My assumption was that you could provide one, which you did. However, as I recall, the CAFC found the Prometheus claims to be obvious and did not need to resort to 101.

                2. Troubled: My assumption was that you could provide one, which you did.

                  You could have provided one yourself and saved everyone time.

                  as I recall, the CAFC found the Prometheus claims to be obvious

                  I don’t recall the CAFC making that finding. Happy to be refreshed on that point if you can provide support for your assertion.

            1. Hmmm, the word “correlations” in quotes seems to signify that you mean something else.

              Why not use those short declarative sentences you are always on about and speak directly?

              You do know that software is not “correlations,” right?

  8. ” Instead of trying to make patent law perfect, we should make it cheaper, more streamlined, and more equitable.”

    OK.

    We learned recently that one could intend to infringe by copying a product known to be patented. So why is it so hard and expensive for the likes of Apple to get damages, let alone enhanced damages and an injunction from a pirate like Samsung who copied Apple’s products knowing they were patented?

    The system currently is not fair, nor cheap, nor right. Deliberate pirates need to face certain enhanced damages and certain injunctions. Attorneys fees also need to be awarded if the patent owner is going to be made whole in the face of deliberate piracy.

  9. Apart from the noted issue that WSJ readers are not going to law review articles to explore subtle points (recall Obama saying no one reads them), the referenced 2014 Michigan article abstract is not about small entities victimized by trolls, but does mention small patentees aligning with trolls, to deal with large entity infringers.

    1. The alignment is a natural occurrence; and the so-called coining of the term “Patent Tr011” (as has been pointed out) was directly attributable to the (less then public-benefit) concern of Big Corp.

      Anyone (yet) hear what the Executive Office has come up with in reply to Ron Katznelson’s calling out of the propaganda…?

        1. While the additional information is interesting, your circular and self-referencing posts merely repeat the same error and lack of understanding of the current level of denigration of the term / it very much is a Big Corp coined term for the connotations for which that term is pertinent in discussions in patent law.

          It’s as if you want to turn a blind eye to the actual propaganda use of the term….

    2. In the post by Dennis: Chien noted that the essay was geared towards small companies seeking self help, not on the oped page
      In the abstract of the 2014 law review mentioned by Chien: Patent “hold-out” is the practice of companies routinely ignoring patents and resisting patent owner demands because the odds of getting caught are small. (…) When large companies systematically “hold out” on patentees, they have no choice but to work with efficient patent enforcers, or “trolls.”

      The abstract of the law review does not seem to explore nuances relevant to the WSJ op-ed, which is advice to small companies accused of infringement by “trolls.” The abstract of the law review is not much of a defense to the problems in the op-ed identified by Dennis, for which problems the op-ed authors should shoulder accountability.

      As to the origin of the word “troll,” Detkin did not “coin” the word, as its use in this context already existed. There has been a shift to a more perjorative meaning, which is not a denigation of the term, but a change in a meaning of the term.

        1. In the 1994 video, the “patent troll” is strategically positioned to collect patent licensing revenue, unbeknownst to his “victim.” [from greentarget, citing to Wikipedia]. Detkin may have significantly heightened the contrast, but the mere use of the term troll in 1994 in the patent context placed a negative spin on the practice.

          Greentarget also noted: “The Patents Video” was sold to thousands of universities, governmental entities and law firms. The coining of the term was hardly buried.

          In passing, as to the internet, the general definition of trolling is an act where the troller makes sarcastic, false or rude remarks intended to annoy innocent individuals.

          1. You are still being obtuse to how the word has evolved and the player that pushed that evolution.

            (fyi, another “root” for your consideration: link to quora.com )

            In the meantime, I do have to wonder why you are trying so very hard to not recognize the propaganda effect that is so very obvious.

            Are you just tr011ing me?

            1. Helpful hint: railing against the term “paten tr0lls” isn’t helping you or the patent tr0lls that you and your cohorts habitually coddled for the past ten years.

              It doesn’t matter who coined the term or why. It’s a great term for describing people like you. Maybe try changing your behavior instead of whining about how people perceive you.

              1. Railing…?
                Whining…?
                Cohorts…?

                Nothing of the sort – try to not dissemble and ‘spin’ what is going on here.

                Helpful hint; try adding something to the conversation. Here, clearly, the conversation is being quite constructive as I guide Lawrence to an appropriate appreciation of who is doing what and why.

                Funny, that for all of your anti-G-g-g-grifter mentality, you here want to take issue with the real G-g-grifters on the scene.

                Oh wait, those real G-g-grifters don’t align with your pure-anti-patent views, so you (somehow) want to defend them

                Go figure “folks.”

                1. the real G-g-grifters on the scene.

                  Tell us who they are, “anon.”

                  Share your awesome beliefs with everyone using declarative sentences instead of your silly innuendo.

                  Who are the “real grifters”? Let everyone know.

                2. Right. The “real grifters” is Big Corp.

                  Someone better run and tell Stevie Brachmann. For some super mysterious reason he’s really impressed by all their innovation activities …

                3. Your rather peculiar 0bsession shows itself again.

                  I neither know – nor care – what someone who does not even post here may have to say in our conversation.

                  Besides which, you do know that people can use a system at the SAME TIME that they are trying to wreck it, right?

  10. At the end of the day, Professor Chien put her name on the article. Professor Chien MUST take full responsibility for the artile (FULL!)

    Outrageous that Prof. Chien wants to say that she is not responsible for an article with her name on it. She had the option to say to say do not print it.

    Just unbelievable.

    1. As Prof. Risch points out, the “core” of the message still comes through.

      Sadly, that core is a fundamental lack of respect for patents.

      And please, all you “Ends justify the Means,” stow the “mantra” against software and business method patents as if the drum beat against those types of innovation is not part and parcel of the problem (and NOT, as you would desire, the “solution”). The wanton rampage against those forms of innovation is the very thing of disrespect.

      1. This group is close to saying, yes I trashed the patent system, but it was good for my career. Once I get the full-professorship and the millions in the stock fund, I’ll reevaluate everything.

        Unbelievable that people like this are hired by universities.

      2. anon: The wanton rampage against those forms of innovation is the very thing of disrespect.

        Oh noes! Somebody “disrespected” software patents and patents on methods of encouraging consumers to buy cr p!

        It’s a “wanton rampage” because everyone knows those patents represent the best aspects of the most bestest patent system ever. How could it be otherwise? The Most Important People in the Universe need those patents or else we’ll like those Amish copyists. Or something.

        1. The paid posts march on…

          I will say that MM is ground breaker. He perhaps one of the first paid bloggers going back to the spring of 2005 on patentlyo. Not sure when the paid bloggers started, but probably not before 2000.

          MM would you be willing to be candid about your employment as a paid blogger?

          1. MM would you be willing to be candid about your employment as a paid blogger?

            Sure. I’m not a paid blogger.

            Can you and your bff “anon” tell us more about how people critical of the US patent system are like the fundamentalists killing people in Iraq? That’s how we know you and “anon” are super serious people, after all.

            We’re coming to get your “do it on a computer” patents! Booga booga! And then we’re coming for your guns! So scary!

            1. Oh come on MM after 10 years of this can’t you come out and admit you are a paid blogger?

              The “like” is (1) ends justify the means, (2) impossible to have an intellectually honest debate with, and (3) motivated by ideology and not objective facts. Seems like there is a pretty good comparison there.

              Come on MM. Just come out and admit it. If you admit it this once, I promise never to bring it up again.

            2. I have not made any such comparison to fundamentalists killing people in Iraq.

              LOL. You “merely” high fived your bff immediately after he made the comment.

              I told you I wouldn’t forget it. And I won’t. Ever. Do you want me to reproduce the exchange for everyone again?

              Please make my day.

                1. “anon” what is going on here

                  Tell everyone what you believe is “going on here”. Use straightforward declarative sentences and provide some names.

                  In short, grow a pair and learn how to write in English.

                2. You are doing that “stop digging while you hold the shovel” thing again.

                  It’s not me that needs to “grow a pair.”

                  It is you.

              1. And you think that because your behavior is so heinous that people would compare you to fundamentalist is a badge of honor, MM?

                The “like” with judicial activist is (1) ends justify the means, (2) impossible to have an intellectually honest debate with, and (3) motivated by ideology and not objective facts. Seems like there is a pretty good comparison there.

  11. “That is all-and-good. Unfortunately, tens of thousands of people read the one-sided essay while only a couple hundred have read the nuanced article.”

    Manufacturing Consent is the only reason to buy a newspaper franchise. The eyeballs keep buying the truth as the editor sees to portray it. One can always trust the fox and the scorpion to act natural.

  12. One of the problems of willfully infringing a patent is that there are employees that know about this. What are the ethics of “hiring” an employee working in a particular area of a company in order to find out whether that company is infringing and perhaps willfully infringing one’s patent? Can the fact that that one is infringing the patent of another be considered confidential information of the infringer such that they can threaten to sue the employee for threatening to disclose that information to the patent owner?

    1. Employee confidentiality agreements frequently cover working for a competitor, tho are trumped by state law (eg California is pro-employee). Contracts on confidentiality may have carve-outs for court testimony.

        1. From forbes.com: the bills explicitly say that they don’t preempt state laws. Thus, the bills would preserve all of the existing state law complexity–and then exacerbate the complexity by adding a new legal rules that will require a new body of judicial interpretations. Collectively, the extra complexity is likely to increase litigation costs for both plaintiffs and defendants, with little countervailing benefit

          1. I am aware of the forbes and that discussion.

            This discussion is different.

            This discussion has focused on the States’ version being overridden by some new (and different than the Forbes dialogue version) federal mandate that is not in fact the worthless and mere additional layer of costly complexity that you allude to here.

            The only way that any piece of federal legislation IS effective, is to be preemptive of state laws.

            Hence, my comment to align with that version of “federalizing” with the concerns expressed of late (the two Chien threads) and the point that your “State laws trump” well, just won’t.

            1. Other than the EEA, which is not relevant to this discussion, there is no current federal law on trade secrets. Forbes discussed two pending bills, which explicitly do not pre-empt state law on trade secrets.

              Returning to Ned’s questions, one (perhaps in California) might hire an employee of a competitor. As to — Can the fact that that one is infringing the patent of another be considered confidential information of the infringer such that they can threaten to sue the employee for threatening to disclose that information to the patent owner? — if the alleged infringer were to assert the infringement was a “trade secret,” and threaten suit against the former employee, that could have some interesting implications as to intent to infringe.

              1. Lawrence,

                You continue to be obtuse.

                Yes, there is no federal law on trade secrets on the books now,/i>.

                Yes, the Forbes article was discussing the rather “weak” addition of a federal law that would not trump any State laws (and would have the effect as you have noted).

                Clearly though, the discussion on these boards is just not limited to that instance of a federalized trade secret legal environment.

                Please pay attention.

                1. Ned’s questions were in the present tense (e.g., What are the ethics of “hiring” an employee working in a particular area of a company in order to find out whether that company is infringing and perhaps willfully infringing one’s patent? )

                  As the CAFC noted in Straight Path IP: The query required by the claim language asks
                  if the callee “is” online, which is a question about the
                  status at the time of the query.

                  At the time of Ned’s inquiry, contract law, as interpreted in terms of relevant state statutes, informs the answer.

                2. Lawrence,

                  Please stop tr011ing.

                  It seems that you are purposefully conflating current controlling law for some unknown case and the discussion here as I pointed you to.

                  Not sure why you are having such a difficult time with this.

                3. The current controlling law for confidentiality agreements is state contract law, as limited by state statutes. There is no relevant federal law which has pre-empted this. You are referencing non-existent federal law.

                  Perhaps you should listen to Huxley’s myna birds: The Palanese are so intimately connected with the reality of the moment that they even have taught the local myna birds to say “Attention” and “Karuṇā,” to remind the people to stay focused on the here-and-now.

                4. Lawrence,

                  The discussion is NOT about the current state of the law, but rather, the ideas being bandied about for <i<changing that current state of the law.

                  Please, please, please – pay attention.

                5. Ned’s questions were in the present tense. Perhaps you and Bill Clinton can debate the meaning of the word “is.”

                  Also, as far as I know, there is no pending federal legislation on trade secrets that would pre-empt state law. There are proposed bills that explicitly do not pre-empt existing state law.

                  It might seem your comments are purely ephemeral, and have zero to do with Ned’s questions.

                6. Lawrence,

                  You really need to try to pay attention and not be soooo hung up on the verb tense.

                  I gave you a direct link. CLEARLY Ned is simply not talking about the same thing that you want to talk about.

                  Not sure why you are having a hard time grasping this.

                7. (the ephemeral person here is thou)

                  Any time you “might seem” to join the conversation started by Ned, you can try to do so and ‘get over’ the tense of verbs in his post and look to the substantive content of his posts (you know, the literal opposite of ephemeral).

                8. The post of Ned referenced in your link states:


                  I believe that a primary purpose for Federalizing trade secret law is to end run California’s polices and statutory limits on trade secret protection.

                  BUT the only pending bills for a federal trade secret law explicitly do not pre-empt state law, so this remark, and your remarks, do seem ephemeral. Name any proposed federal bill that would end run California on trade secrets and non-competes. You are setting up straw men divorced from current reality.

                9. Larry, I agree that the new legislation would not apply to purely intrastate transactions.

                  The problem arises when a California company hires an employee from a company located in a different state. While venue may be proper against the hiring company in the “from” state, because most companies do business in all 50 states, it will normally not be proper with respect to the employee who has relocated.

                  For this reason, today such trade secret lawsuits have to be filed in the California court, or in a district court if there was complete diversity. California courts apply its own law to determine the outcome in the case due to strong policy issues exhibited by the California statutes in question.

                  I believe the thinking of the bill crafters is that if one can bring a case in federal court using a federal statute and not a California trade secrets statute, that the company from which the employee was hired could argue that the law at the federal level should be the “general law” as opposed to being specific to California. In this manner, the law of “inevitable use and disclosure” could be imposed upon California against its will.

                10. “Larry” – See Ned’s comment and please note that I have created no “strawman.”

                  You seem simply intent on not addressing the different concerns that have been brought up in discussion.

                  Not sure why.

                11. As to text — I believe the thinking of the bill crafters is that if one can bring a case in federal court using a federal statute and not a California trade secrets statute, that the company from which the employee was hired could argue that the law at the federal level should be the “general law” as opposed to being specific to California. In this manner, the law of “inevitable use and disclosure” could be imposed upon California against its will.–

                  As a first point, there is no such federal law now, so any discussion is purely theoretical.

                  As a second point, if the “the thinking of the bill crafters” were along the lines you indicate, why would the present bill crafters explicitly say in the bills that state law is not pre-empted?

                  As a third point, your fact pattern requires the employee come from “outside of California.” One suspects the matter of “which law” applies (California vs. original state of employee) has already been resolved. If California law applies, is the California statute a defense to a hypothetical federal action?

                  My earlier comment assumed California law.

                12. Returning to the question posed in sub-thread 5 (which is not really about Chien’s WSJ op-ed), the question was whether a past employer could go after an ex-employee who knew about the past employer’s infringement of the present employer’s patent claims under a confidentiality/trade secret theory. One suspects that such a claim against the ex-employee might not work well in the willful infringement context. Separately, there has been discussion of inevitable disclosure, which is a concept in trade secret law (not all confidential information can be protected as trade secrets); under this rule, “a plaintiff may prove a claim of trade secret misappropriation by demonstrating
                  that defendant’s new employment will inevitably lead him to
                  rely on the plaintiff’s trade secrets.” But if the “trade secret” is knowledge of infringement, that would mean the former employer had steps in place to conceal the infringement. Is any former employer going to play with the idea that “knowledge of infringement” is a trade secret?

                13. Lawrence, in a conflict of law case where contacts are equal, the court that decides the issue generally applies its own law, especially if there is a strong state policy.

                  Other states may have an opposite state policy — to protect the trade secret owner.

                  So if a Federal Court were to decide which law applied, they might apply the law of the state of the employer — especially if venue could be stretched to include a lawsuit against the relocating employee in the former employer’s home state.

                  FYI, I have actually been involved in trade secret cases where conflicts of laws issues were litigated and decided.

  13. Dennis,

    Colleen’s article, as published, is absolutely what a recipient of a demand letter should do.

    As you well know, the sender of these letters overwhelmingly isn’t engaged in furthering the “respect” of intellectual property, but is engaged in a game of arbitrage. The entire business model is predicated upon cost-of-defense, which has no bearing whatsoever on the underlying patent right.

    So I would shift the focus of your narrative/attack on Chien from “respect of patent rights” to “business strategy.” It isn’t disrespectful of patent rights to ignore a demand letter. That’s why the laws include things like default judgments and, let’s pause, lawsuits in the first place. There is zero obligation to respond to a demand letter. But obviously, a non-response to a demand letter will be used by trial lawyers to give juries your narrative of “lack of respect of patent rights.”

    So a non-response actually turns into a trial asset for plaintiffs.

    I’m one of the most sympathetic thinkers of patent law on the plaintiff side. And even I find your attack on Chien a somewhat uncalled-for exploit of your popular platform.

    1. Amit: It isn’t disrespectful of patent rights to ignore a demand letter. That’s why the laws include things like default judgments and, let’s pause, lawsuits in the first place.

      This.

      The weird thing is that Dennis himself has published some of the most one-sided “editorials” ever — editorials that did readers a far greater disservice than Chien’s.

        1. The only “exemplar” that comes to mind is that dastardly Vast Middle Ground…

          Oh wait, that was not a one-sided editorial, that was THE LAW.

        2. Amit: can you please provide an exemplar of Dennis’s “one-sided ‘editorials’ ever”?

          They weren’t written by Dennis. They were written by others and published here.

          See, for instance, any one of the many editorials in the run-up to Prometheus v. Mayo and afterwards disparaging the decision without any consideration whatsoever for the actual facts in the case or the obvious (absurd) ramifications of ignoring the prior art when considering the subject matter protected by a patent claim.

          I’m not going to link to them because the don’t deserve to be linked to, for any purpose. They deserve to be forgotten and ignored.

          1. See, for instance…… I’m not going to link to them…”

            WAY too funny the comedy of the dissembling Malcolm.

            Gee, let’s take a “test” that he himself has F A I L E D to square with the Court’s own precedents as some type of (un-annunciated) litmus test, because, well, because that C R P decision is the “highlight” of Malcolm’s Ends-reched-regardless-of-means.

            This is the “exemplar”….

        1. …that’s where the drive-by monologues come in…

          Repeat the mantra long enough, often enough, and ig nore any and all counter points presented….

        2. Dennis isn’t widely read by a lay audience likely to misread his advice.

          Assuming that’s true, is that a valid excuse?

          Patent attorneys read this blog. And some patent attorneys remain completely clueless about subject matter eligibility, how the analysis works, and why it works the way that it does. In part, that’s because of the incredible misinformation put out there by people who can’t bring themselves to acknowledge fundamental facts about our patent system and basic logic. Much of that misinformation was put out there by editorials published here. It might not have originated here, but it was propagated here.

          Now go ahead and ask me how I know that some patent attorneys are deeply confused about subject matter eligibility and how it works.

          1. because of the incredible misinformation put out there by people who can’t bring themselves to acknowledge fundamental facts

            LOL – Malcolm in his full “glory” of accusing others of that which he does.

  14. It’s a strange world when one has heavy editing of an opinion piece. Whose opinion is being reflected and is there proper attribution of authorship?

      1. Interestingly, quick Google search shows Prof Chien has used the phrase “do nothing” as “often the best strategy” for start-ups who receive a patent demand letter:

        “Some lawyers are reluctant to advise you to do nothing. Yet, that is often the best strategy.” Chien, Startups and Patent Trolls, at A-8 (2012)

      2. Another certain irony is that you don’t to go far to hear the “desired narratives” repeated ad nauseam.

    1. Perhaps you’ve never written one. Editing of op-eds is a giant pain:
      1. They always cut a bunch of words – usually the words that balanced and nuanced your argument
      2. They like “bang,” not analysis. Strong positions, one point

      It’s one reason why I hate doing op-eds and only write them very rarely.

      1. Of op-eds: Of or being a newspaper page, usually opposite the editorial page, that features signed articles expressing personal viewpoints. The idea is that the op-ed expresses a PERSONAL view; if not so, perhaps the entities “signing” should not give permission for publication.
        Also, op-eds express viewpoints that may not agree with those espoused by the editorial board, rather than being modified by the editorial board to
        conform to their desires.

        1. True enough, but it doesn’t answer the point. Perhaps it is a shame that folks “sell out” by allowing their nuanced views to be simplified into a simple bullet point. But the core viewpoint is usually intact (you don’t hear Colleen backing down from her general view that it is better not to engage in some cases), and as Dennis notes, the op-ed gives a platform for that general view that a blog post just doesn’t.

          1. But the core viewpoint is usually intact

            Actually Prof. Risch, that is precisely why the original post said that Prof. Chien’s piece was a disservice: if indeed the core viewpoint was left intact, that core viewpoint is rubbish.

            The tendency to be anti-patent runs deep in Chien’s works.

            Also, being co-opted for a propaganda mouthpiece bit is very much a less than stellar piece of “journalism.”

            Guidelines for op-eds (similar to original “rules” for certain blgo pages) stressing that opinions are personal really should be respected – and enforced AS personal.

      2. And yet you decide if you want your name on it. Your responsibility (FULL) for the content that is printed with your name.

        Unbelievable.

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