Professor Christopher Beauchamp has released his interesting new article titled The First Patent Litigation Explosion.[1]
The twenty-first century “patent litigation explosion” is not unprecedented. In fact, the nineteenth century saw an even bigger surge of patent cases. During that era, the most prolific patent enforcers brought hundreds or even thousands of suits, dwarfing the efforts of today’s leading “trolls.” In 1850, New York City and Philadelphia alone had ten times more patent litigation, per U.S. patent in force, than the entire United States in 2013. Even the absolute quantity of late-nineteenth-century patent cases bears comparison to the numbers filed in recent years: the Southern District of New York in 1880 would have ranked third on the list of districts with the most patent infringement suits filed in 2014 and would have headed the list as recently as 2010.
This Article reveals the forgotten history of the first patent litigation explosion. It first describes the rise of large-scale patent enforcement in the middle of the nineteenth century. It then draws on new data from the archives of two leading federal courts to trace the development of patent litigation from 1840 to 1910 and to outline the scale, composition, and leading causes of the litigation boom. Finally, the Article explores the consequences of this phenomenon for the law and politics of the patent system. The effects of the litigation explosion were profound. The rise of large-scale patent assertion provides a new explanation for patent law’s crucial shift from common law to equity decision making in the middle of the nineteenth century. And at its height, the litigation explosion produced a political backlash that threatened to sweep away the patent system as we know it. Recovering the history of patent law during this formative and turbulent era offers fresh perspectives on the patent reform debates of today.
Read the article on SSRN: http://ssrn.com/abstract=2699964.
[1] Forthcoming in 125 Yale Law Journal ____ (2016).
“And at its height, the litigation explosion produced a political backlash that threatened to sweep away the patent system as we know it.”
And what just happened?
CAFC in MCM:
““there are matters, involving public rights, which may be presented in such form that the judicial power is capable of acting on them . . . but which congress may or may not bring within the cognizance of the courts of the United States, as it may deem proper.” Id. at 281; see also Crowell v. Benson, 285 U.S. 22, 50
(1932). That is, Congress has the power to delegate disputes over public rights to non-Article III courts.”
The academics just aren’t as bright as they used to be.
“anony”: The academics just aren’t as bright as they used to be.
How do you get from your cite to this “conclusion”?
hint: “threatened to sweep away the patent system as we know it”
“anony” hint:
Please answer the question.
are you an academic?
^^^ as if Malcolm ever answers questions put to him….
(Gee, maybe this is “tame” enough to survive the censor’s blot, or maybe I could tame it down like post by patentcat at 3:30 pm – 4 series)
Ooh lookie! “anony” has a special friend polishing his buttons.
So cute.
Maybe between the two of you you can come up with an explanation for how “anony” got from his cites to “academics just aren’t as bright as they used to be.”
Go ahead, kiddies. Surprise everyone.
You don’t seem to be particularly bright. In fact, you appear to be quite ill.
On a positive note old man, unlike the academy, you never were as bright as you used to be.
Now eat your soup.
What?
I can’t hear you.
‘The effects of the litigation explosion were profound. The rise of large-scale patent assertion provides a new explanation for patent law’s crucial shift from common law to equity decision making in the middle of the nineteenth century. And at its height, the litigation explosion produced a political backlash that threatened to sweep away the patent system as we know it. ‘
In the 1800’s Samuel Morse’s telegraph company created enemies with the newspapers of the day as they were unhappy with the rates he charged, or perhaps that they had to pay anything. The newspapers used their papers to dupe the public and government and turned them against Morse and the patent system. The same approach is being used today by powerful and influential large Chinese and multinational corps to use public relations and media in an effort to weaken or destroy the patent system so they can rob and crush their small competitors.
Also, because of recent changes in patent law inventors are now required to file separate cases for each infringer whereas before they could and would commonly include tens or more in a single case. Those who make these unsupported accusations about an explosion do not factor that in and thereby intentionally mislead. While the number of case may be up, inventors and their attorneys will tell you the number of defendants has plunged. Prior to AIA in 2011 the number of cases filed was consistently about 3000 per year. That the number of cases is only now about 5000 per year supports that contention. It is now far more expensive, lengthy and difficult for us to get and enforce our patent rights.
Don’t fall for the lies of thieves.
staff; The newspapers used their papers to dupe the public and government and turned them against Morse and the patent system. The same approach is being used today by powerful and influential large Chinese and
And then I stopped reading and started laughing.
Any “innovators” out there wondering why it keeps getting “harder” to monetize your junk? The answer is right there in staff’s comment.
“And then I stopped reading and started laughing.”
I am quite sure that the irony goes over Malcolm’s head with (yet another) example of Malcolm’s favorite rhetorical technique…
Ah, so you’re on the board with the “Chinese are duping the public” explanation for patent reform.
Great to know. But you’re a very serious person. Sure you are.
Ah, maybe pay attention to what I actually stated.
Then again, you are on record as “Believing” that there are no forces from either the Left or the Right that do not like patents and want to diminish them.
Very “serious” indeed, you are (right back atcha)
“anon” you are on record as “Believing” that there are no forces from either the Left or the Right that do not like patents
Actually I’m on the record as saying that you’re a path0l0gical liar and you’ve just provided additional evidence. I’ve never said any such thing, on or off the record. Or perhaps this is just another example of your reading disability? Oh, so many mysteries to ponder.
maybe pay attention to what I actually stated.
What you “actually” did was spew out an insult, presumably because you agree with “staff”‘s silly conspiracy theory. But go ahead and come up with some other awesome excuse.
Actually you are the one that is the l i a r.
Ad nauseum
Ad infinitum
You can “say” such without saying it expressly – and do so here – when you mock ANY indication that even the concept of such has plausibility.
Your relentless mantra is what makes you the l i a r.
You can “say” such without saying it expressly
That wouldn’t qualify as a statement “on the record”.
you mock ANY indication that even the concept of such has plausibility
What I have questioned is (1) the conflation of “not liking patents” with “not liking the patent maximalist direction towards which the patent system is (was?) heading”; and (2) the implication that “not liking the patent maximalist direction towards which the patent system is (was) heading” isn’t a view shared by vast numbers of people of all political leanings, including the center.
You really don’t get what “on the record” means, do you?
We have traded exchanges often enough concerning the Left AND the Right for your position to be clear.
You engage in nothing but banalities when it comes to the fact that certain philosophies are not only adverse to strong patents, but are very much active in making patents as weak and as useless as possible.
For you to take ANY other position here and now is nothing but disingenuous dust kicking.
“anon” : You really don’t get what “on the record” means, do you?
It doesn’t mean what the aliens in your fillings are telling you it means, “anon.” Thanks for the laughs, though.
B_b_because (short scr1 pt says) “al1 ens”…!
Thank you for that “wonderful” contribution to the “ec(h)osystem.”
What mindless dr0ss, Malcolm.
For more information please visit us at link to aminventorsforjustice.wordpress.com
or, contact us at tifj@mail.com
I wonder if a considerable part of the U.S. patent suit explosion in the 1800’s was due to the incredible number of really fundamental and widely used inventions and their improvements as the industrial revolution exploded in the U.S.? Telephones, electric lighting, sound recording, mass steel making, petroleum products, vulcanized rubber and many new chemicals, camera film, typewriters, sewing machines, automobiles, indoor plumbing, and an endless list of other inventions for which there was far less “prior art.” As a recent author noted, these were not mere “social media” software products being invested in back then.
(1) As if information processing is summed up with only “social media,” and
(2) Bizarre that we continue to see the disparagement of technology that is generating massive numbers of jobs (and replacing massive number of jobs) and is changing the way we all live.
And yet, there are those smarty pants that just know it is garb@ge–somehow, ’cause they are smarter than we are. I guess. I get the feeling an apt nickname might be the hindsight smarty pantsers.
To continue Night Writer’s thought, say you use various information to gauge traffic flow through some area involving, say, multiple stoplights, stop signs, merging traffic, etc. By analyzing that data and applying a new and useful algorithm to it, one can determine a better light timing, perhaps one that varies over the course of a day. By implementing the determined light timing, it saves you 5, 10, 15 minutes that you’re no longer in traffic on your way to work. This is data analysis, and who is to say it’s better or worse than a typewriter or other “invention” from the 1800s? Considering that typewriters no longer exist save for in museums, I’d say the traffic invention is much better.
But — gasp! — the traffic invention is an “abstract idea” that results merely in data (subsequently implemented via traffic light timing) and therefore must be condemned.
You could try to claim the invention using the same language as McRO (Planet Blue) v. Activision Blizzard:
obtaining a first set of rules that defines a sequence of traffic light duration signals as a function of the number and speed of cars which have passed a plurality of traffic speed sensors at previous times
obtaining a plurality of measurements of the number and speed of cars which have passed a plurality of traffic speed sensors at previous times
generating a sequence of traffic light duration signals by applying said first set of rules to the measurements of the number and speed of cars which have passed a plurality of traffic speed sensors at previous times
And of course this would thrown out as an abstract idea by Judge Wu (control traffic automatically).
However if you disclosed the algorithm, for example:
For each block controlled by a signal
Compute the block load (number of cars * average car length / block length )
Compute the block to block flow (more formula)
Compute max flow ( more formula)
Determine traffic signals by (some big formula using load, flow etc)
You would have a useful invention tied to a physical result and controlled by physical data, in fact it looks like Diehr! Not abstract at all!
Plus if your algorithm is truly inventive it may well be will be hard to design around and you will have a valuable patent.
Plus you preempt nothing, your algorithm is clearly only one of many possible ways to control traffic.
Slashdot: you have no idea what you are talking about. Just the same nonsense of saying a claim is witch, of you smartie pants telling us what the quantum of invention is, and you smartie pants reverse engineering a rejection.
Slash>”You would have a useful invention tied to a physical result”
And you know the invention isn’t useful how?
And, if it is so broad why wasn’t 102/103 used to anticipate or render it obvious?
And, there is a word that describes your behavior. It is one that is out of use with the recent Google judges. It is hindsight reasoning.
This is rich:
>hard to design around
>Plus you preempt nothing
LOL! Right. It is black and yet very bright and actually white depending on my current argument.
The first way Slashdot reader claims it, it has the same issue as Morse’s claim 8.
I am sure that Night Writer is aware of this (although the Blight will of course try to obfuscate), but there MUST be a certain recognition and understanding of the Ladders of Abstraction whenever anyone is discussing patent claims.
See (among many others) Slusky.
Is Slushy a case or just someone’s opinion on how to draft patents?
And that reply was censored…
W
O
W
Maybe because you’re a complete asshole when you reply and rarely answer besides “I’ve already answered it before somewhere else.”
That you “don’t like me” is not only completely immaterial to the content here, but smacks of whingy-gee-you-need-your-hand-held-and-cannot-handle-a-little-sharply-worded-BUT-ACCURATE posts.
Here’s some advice: grow some and “f1ght back” with some knowledge on the subject matter.
Lol, you’re accurate in your own mind only, little guy.
And in the real world too, “little guy.”
Don’t like it? Then come back with some facts and law and “put me in my place.”
Oh wait, you would rather whinge.
Gotcha.
“anon” the content here
Kondratieff waves!!! Kondratieff waves!!!
We’re all decimated.
^^^ and your point is what, Malcolm? Ig nore the teachings of innovation experts?
Please, put yourself on the record, instead of the mindlessness you so typically engage in. You know, for the health of the “ecosystem” and all….
Facts?
The recent Supreme Court decisions seem to be enough to contradict your claims that “there MUST be a certain recognition and understanding of the Ladders of Abstraction”.
Sure, if these cases get overturned, I’ll concede this point. But you just keep presenting your opinions/the opinions of others as fact, when the recent SC decisions show the law clearly isn’t on your side.
You’re too much of a namby-pamby to even answer a simple yes-or-no question (see above), yet you complain about “1nte11ctua1 h0nesty”.
And you bring up pseudoscience that isn’t really accepted (Kondratieff waves) to try to back up your points. You might as well be using astrology to try to justify your positions.
“And you bring up pseudoscience”
Anon’s entire world view is based on pseudoscience. It’s because of his science poor background.
You do realize (I hope) that just because the Supreme Court says something, that does NOT make it a fact, patentcat examiner friend of mine. The scoreboard is broken and you want to point up and the broken scoreboard…
As for “namby-pamby,” nothing of the sort. I just dont play that “repeat the entire detailed argument over and over and over again” game. Don’t like it? Pay attention better (and also entreat your pals not to play their drive-by monologue game of repeating things ad nauseum and ad infinitum without recognizing, addressing, and integrating the counter points presented.
I notice that you are all for one side, but d3athly silent on the other. How “namby pamby” of you.
As for “pseudoscience,” please, you have no c1ue as to the thinking of innovation leaders. Who would you recommend? Anyone?
“anon” The scoreboard is broken
Right. It must be broken because “anon” is definitely winning in his own mind and that’s all that matters. Charlie Sheen told him so.
Malcolm is the one choosing to ig nore the teachings of leading innovation experts, and then posts this deliberate mindless and baseless C R P.
Great ec(h)osystem Prof. Maybe you want to apply whatever Star Chamber** “rules” you have in a more objectively even manner….?
**once upon a time, the posting rules for this site were prominently and easily linked to. Not only has that changed, one has the objectively reasonable perception that there is NO uniform set of rules.
Hey, I “get” this is your blog and you can do whatever you want, but that power to do what you want does NOT come with the power to not accept the direct consequences of what you do and do not allow through the application (read that as even and consistent enforcement) of “what you want.”
You just don’t get to have it both ways. Apply the rules – whatever they are – evenly and consistently, or accept the consequences for not doing so.
The claim is fine. Try scope of enablement or pick up any information processing book that will tell you abstract terms are used to represent the solutions presented.
I have made specific references to information processing books that say that expressly. Patent law is supposed to give you the scope of enablement in view of what is known and the specification.
Again, just nonsense from the anti-patent lot.
Here is how you can identify their nonsense: It always takes some portion of the claims and says they are an X.
Moreover, if they are so “abstract” as you claim then why can’t you find a 102 or 103?
Lemley is to blame for this nonsense about abstract claims. A claim does not have to be at a level to be directly applied.
See even Deener where the SCOTUS in the 1800’s realized that a method of processing grain could apply to multiple different types of grain —-and—-now try to read this fairly boys and girls—–that the way a step was implemented did not matter. What mattered was that the functional part of the step was carried out. They said it didn’t matter, for example, how the grain was blown by a fan, only that the grain was blown.
Of course, we have gone backwards and now deal with psychotic statements from the anti-patent crowd.
Just make life easy for yourself. Read the claims. Match claim elements with prior art. If you can’t get them all in one reference see if combining references makes sense. That is all. Over and out.
Deener: A process is a mode of treatment of certain materials to produce a given result. It is an act, or a series of acts, performed upon the subject matter to be transformed and reduced to a different state or thing.
For our purposes, I suppose, we are transforming traffic data into traffic signals by rules.
Using Deener here is circular reasoning. ‘by rules’ means the same thing as ‘act or series of acts’ . (Or at least I don’t see a difference)
So the claim literally becomes ‘Transforming traffic data into traffic signals by an act or series of acts.
This claim is not a process because it does not say what the acts are.
You could add ‘on a computer’ but Deener says that the transformation ( for example breaking a material into a powder) is what is important, not the specific means so the computer could be replaced by any other machine once you filled in the ‘act or series of acts ‘
I assume ‘hindsight smarty pantsers’ is a term of art in patent law. Maybe it is only used in oral arguments at CAFC. But I like the question.
Its not so much hindsight as logic. Could there ever be a claim of the form below which was not an abstract idea? (assuming that this is the complete claim 1)
Form of the claim:
obtaining a first set of rules that defines how to transform A into B
obtain A
generate B by applying said first set of rules to A
For example, making penicillin from bread mold:
obtain a set of rules which describe how to process moldy bread to produce penicillin
obtain moldy bread
produce penicillin by applying the first set of rules to the moldy bread
I say that all claims in the future in this form are too many rungs up on the ladder of abstraction. This is not hindsight. It is also not hindsight to apply the same logic to claims in the past.
What does “too many rungs” mean?
slashdot : However if you disclosed the algorithm, for example:
For each block controlled by a signal
Compute the block load (number of cars * average car length / block length )
Compute the block to block flow (more formula)
Compute max flow ( more formula)
Determine traffic signals by (some big formula using load, flow etc)
You would have a useful invention tied to a physical result and controlled by physical data, in fact it looks like Diehr! Not abstract at all!
Same junk, different words. And Diehr had something that this claim didn’t: an allegedly non-obvious combination of a thermocouple and a rubber curing vat. Traffic lights using processors and algorithms are old, and using math to optimize the flow of material is really really really old.
The commenter “BobM” talks about “saving 5 minutes of time.” Let’s assume the junk was eligible. Is “saving five minutes” going to make that algorithm non-obvious? What about “saving five microseconds”? Who examines the math in view of all the prior art math dealing with optimzing the flow of material through a system? The PTO? Haahahahahhahahahahahahhahahaa! Serious question that needs a serious answer.
Or we can continue to pretend that “algorithms” are just like “typewriters” because it makes some Internet shriekers happy.
Software is not math.
Then again, you already knew that….
You certainly raise a variety of issues!
Using math to optimize the flow of materials is certainly old, but the hypothetical claim here hypothetically includes a complete algorithm which is new. If the abstract idea is ‘control traffic using a set of rules’ then adding the complete algorithm makes it less abstract.
The claim transforms traffic signals from red to yellow to green which is a useful clue to its validity
Now that we are past 101, we can move on to your other objections 🙂
‘Saving 5 minutes’ is not part of the claim so I don’t think it matters for obviousness.
Examining math prior art would be the job of the PTO. If the PTO could not understand the invention initially, I suppose they would just try harder, seek outside help etc.
Slashdot: the hypothetical claim here hypothetically includes a complete algorithm which is new. If the abstract idea is ‘control traffic using a set of rules’ then adding the complete algorithm makes it less abstract.
No, it doesn’t, at least not if your “algorithm” is merely describing additional “logic” using more specific terminology. It’s the same problem that arises when you try to claim “use a correlation to determine something.” That doesn’t become “less abstract” when you put ten decimal points on the correlation. At least not as far as the patent system is concerned.
‘Saving 5 minutes’ is not part of the claim so I don’t think it matters for obviousness.
In fact, the result of an obvious method matters for obviousness. You haven’t recited any actual algorithm, as you presumably are aware, and you also haven’t stipulated that the algorithm is non-obvious.
Examining math prior art would be the job of the PTO.
Haahhahaahahahahahahahahahahahahaahha! When is that going to happen? And exactly how? Serious questions. Do you have an answer? Because you’re a serious person, right?
they would just try harder
Deep stuff, Slashdot. Maybe you should try harder. You can find comfort in that you’ll be in a long line of people who think the massive systemic problems presented by patenting algorithms go away because you wish they would go away. Something else is very, very likely to go away long before you solve the problem. Want to guess what that it is?
And you guys are so intellectually dishonest. If you are a technical person then you know exactly what set of solutions are enabled by those claims in view of the specification.
The whole idea is that if you claim it too broadly, then you can lose the claim if someone comes up with something nonobvious that your claim reads on, and you risk a too broad claim with 102 / 103.
But, I am sure the anti-patent crowd won’t bother to waste a single brain cycle trying to understand this.
NW: we continue to see the disparagement of technology that is generating massive numbers of jobs (and replacing massive number of jobs) and is changing the way we all live
No, you’re seeing disparagement of junky patents and a system that is being corroded away from inside of the patents because entitled narcissists like you can’t see further than your wallet.
Correction: “from inside of the patents” should be “from inside by those patents”
What we are seeing MM is the continued dismantling of our patent system by the international corporations that want to maintain their monopolies.
Somehow our system is supposed to be broken except for all the facts. Like the greatest innovation engine, no rise in the litigation when normalized, etc.
There is an active and intentional attempt to NOT recognize the Kondratieff waves of innovation.
Any inte11ectually honest person though will no doubt recognize the historical trend of repetition of wave of litigation that perfectly syncs with the Kondratieff innovation waves.
Kondratieff innovation waves.
Every wave of innovations lasts approximately until the profits from the new innovation or sector fall to the level of other, older, more traditional sectors. It is a situation when the new technology, which originally increased a capacity to utilize new sources from nature, reached its limits and it is not possible to overcome this limit without an application of another new technology.
the continued dismantling of our patent system
The patent system isn’t going anywhere. Patents are still being pumped out. Patents are still being licensed, every day.
All that’s happened is that the value of a patent portfolio is being diminished in direct proportion to the amount of junk in the portfolio. And some moneyed interests who were banking on a different scenario have to eat a bit less quail. Boo hoo.
“no rise in the litigation when normalized, etc.”
Which reminds of the “litigation” Tr011 boogeyman and the propaganda from the Executive Office.
Criminy, it is now nearing mid December and there is nary a hint of a scent of a whisper of the l o n g overdue response to Ron Katznelson.
I guess no one cares about an ecosystem around that narrative…
/off sardonic bemusement
there is nary a hint of a scent of a whisper of the l o n g overdue response to Ron Katznelson.
Maybe you try sniffing around the White House dumpster.
Too clever by half, Malcolm.
The dumpster comment can easily speak to two different scenarios.
A) What the White House wrote in reply to the Ron Katznelson request for de-propagandizing the “Tr011” narrative is what is in the dumpster becasue the White House reply is nothing but C R P, or
B) The White House is digging through that dumpster trying to piece together a defense of that “Tr011” propaganda.
A better place to start would be the OMB, who earlier that same summer posted an analysis that had the opposite conclusion of the “Tr011” narrative.
I do hope that ANY response from the White House (if ever one is forthcoming) remembers certain executive orders already in place and remembers what the government already said about the so-called “Tr011s.”
“for which there was far less “prior art.”
Sounds exactly like the laments of the anti-software patent folks…
“anon” Sounds exactly like the laments of the anti-software patent folks…
If that’s what you believe then you really need a remedial reading class.
Nothing of the sort Malcolm.
Maybe you want to read that 1968 paper submitted to the US Supreme Court….
The prior art to tank nearly every patent on information processing logic is out there. It’s just not in the PTO’s hands and the PTO is both (1) clueless about how to apply the art and (2) hamstrung by a series of ridiculous CAFC decisions that purport to eliminate previous disclosures of logic in contexts that are deemed “not relevant” because logic, in the CAFC’s fantasy world, is context specific.
That’s why the PTO finds itself treating “editing a baseball game” to save time as a totally different step than “summarizing a movie” to save time when, in fact, there’s no distinction. Information is information. Editing information to save time isn’t “innovation” because information has been edited as long as there have been brains around to edit it. That’s a long time. It takes some deep deep sand to protect one’s head from that kind of knowledge but that’s what the courts and the PTO managed and they’re still embedded up to their waists.
Top that terrible habit off with the CAFC’s unworkable “strict TSM” and State Street Bank and you’ve got a guaranteed disaster that has no historic precedent. That’s the disaster we’re dealing with now.
You really need to move the goalposts back and R E AD what I stated.
You trying to backtrack here and change the focus does NOT help you.
“Nobody understands me!” <— "anon's" perpetual lament
?? There is no indication whatsoever that such is my “lament.”
“anon” You trying to backtrack here and change the focus
ROTFLMAO