Search Results for: hyatt

Rise in Restrictions

Patent

A recent article co-written by former PTO Director Jon Dudas along with Stepen Maebius and Sean Tu makes a strong statement regarding the rise in restriction requirements:

Restriction practice has clearly grown in the past few years. In 1993, there were only approximately 1,000 restriction requirements in the biotech practice group (out of approximately 32,000 first office actions). However, in 2008, the number of restrictions ballooned to 21,911 restriction requirements in the biotech practice group (out of approximately 42,000 first office actions). Thus, there has been a growth from only 1.5% of patents receiving restriction requirements to over 50% of patents receiving restriction requirements in the biotech practice group.

Squeezing More Patent Protection from a Smaller Budget Without Compromising Quality (2009).

Ariad v. Eli Lilly: Written Description Requirement

Patent,

My recent study of BPAI written description requirement jurisprudence was prompted by reading the US Government Brief in the en banc case of Ariad v. Eli Lilly. In the brief, the government indicated its continued support for a separate written description requirement as a tool that the agency uses to eliminate claims during patent prosecution. In sometimes bold font, the government makes its position clear: that a separate written description requirement is "essential to the operation of the patent system;" serves an "indispensable role in the administration of the patent system;" is "fundamental to the operation of the patent system;" and is "necessary for USPTO to perform its examination function." According to the brief, these conclusions are grounded in the USPTO's "practical experience" in "appl[ying] the requirements of Section 112, ¶1 to more than 400,000 patent applications each year."

During oral arguments, the government attorney was pressed for specific evidence supporting its contention that the separate written description requirement serves a practical purpose. As in its brief, the government did not point to any evidence supporting the conclusory statements. The following colloquy at oral arguments between Chief Judge Michel and Mr. Freeman emphasize this point:

Chief Judge Michel: Why does the patent office care? How many applications that can’t be rejected on other statutory grounds will fail only if we [retain the current written description requirement]? . . . I’m asking about impact. . . .

Mr. Freeman on Behalf of the Government: I don’t know an absolute number, your honor, but I think that number must be high. . . .

Chief Judge Michel: I can’t remember ever seeing a patent office rejection that was based only on the failure of written description. I’m not saying there aren’t any, but the flow of cases that come through this court at three or four hundred a year, it is exceedingly rare that the patent office hangs its case on written description. I can’t remember a single case.

Mr. Freeman: Your honor, I don’t have a single case in mind . . . .

Chief Judge Michel: . . . It seems like the practical impact is miniscule, negligible.

Mr. Freeman: Your honor, with all respect, one cannot assume away four-hundred-thousand applications where the written description doctrine comes into play in a great many of them.

My study is essentially directed to the particular questions asked by Chief Judge Michel — How often does the separate written description requirement actually make a difference in patent prosecution? As the data reveals, Chief Judge Michel’s notional recollections from the bench are much more accurate than are the government contentions. I.e., "the practical impact is miniscule, negligible."

[Download the Study]

These results fit well with those of UMKC professor Christopher Holman that he reported in his 2007 article, Is Lilly Written Description a Paper Tiger?: A Comprehensive Assessment of the Impact of Eli Lilly and its Progeny in the Courts and PTO, 17 ALB. L.J. SCI. & TECH. 1, 62 (2007).

Microsoft Ordered to Stop Selling MS Word

Best Mode, Patent

i4i Ltd. v. Microsoft Corp. (E.D. Tex. 2009)

Texas style, the order from Judge Davis gets right to the point:

In accordance with the Court’s contemporaneously issued memorandum opinion and order in this case, Microsoft Corporation is hereby permanently enjoined from performing the following actions with Microsoft Word 2003, Microsoft Word 2007, and Microsoft Word products not more than colorably different from Microsoft Word 2003 or Microsoft Word 2007 (collectively “Infringing and Future Word Products”) during the term of U.S. Patent No. 5,787,449:

  1. selling, offering to sell, and/or importing in or into the United States any Infringing and Future Word Products that have the capability of opening a .XML, .DOCX, or .DOCM file (“an XML file”) containing custom XML;
  2. using any Infringing and Future Word Products to open an XML file containing custom XML;
  3. instructing or encouraging anyone to use any Infringing and Future Word Products to open an XML file containing custom XML;
  4. providing support or assistance to anyone that describes how to use any infringing and Future Word Products to open an XML file containing custom XML; and
  5. testing, demonstrating, or marketing the ability of the Infringing and Future Word Products to open an XML file containing custom XML.

This injunction does not apply to any of the above actions wherein the Infringing and Future Word Products open an XML file as plain text.

This injunction also does not apply to any of the above actions wherein any of the Infringing and Future Word Products, upon opening an XML file, applies a custom tranform that removes all custom XML elements.

This injunction further does not apply to Microsoft providing support or assistance to anyone that describes how to use any of the infringing products to open an XML file containing custom XML if that product was licensed or sold before the date this injunction takes effect.

This injunction becomes effective 60 days from the date of this order.

In addition to the injunction, i4i was awarded $200 million in compensatory and $40 million punitive damages based on Microsoft's adjudged willful infringement. 

Notes:

  • Read the Injunction Order: File Attachment: 20090811i4iinjunction.pdf (252 KB)
  • Read the Final Judgment: File Attachment: 20090811i4ijudgment.pdf (257 KB)
  • Doug Cawley and Mike McKool (McKool Smith) lead the i4i team; Matthew Powers (Weil) is lead counsel for Microsoft.
  • Microsoft can presumably fix its patent problem by eliminating the .docx format. According to court records, “i4i has presented evidence that it is possible to design a software patch that can remove a user’s ability to operate the infringing functionality.” Alternatively, Microsoft could buy the patent – although the price will now be substantially higher than it was in 2007.
  • Stays pending appeal: Under ther Federal Rules of Civil Procedure, Microsoft has a right obtain a stay of relief pending appeal after it posts an appropriate bond. However, that right only applies to monetary damages. There is no right to stay injunctive relief pending appeal. On occasions, both District Courts and the Federal Circuit will stay injunctive relief pending the outcome of an appeal.
  • Stays pending appeal: The district court has already denied Microsoft’s motion to stay injunctive relief. “The fact of Microsoft’s infringement causes i4i to suffer irreparable harm for every new XML customer that purchases an infringing Microsoft product. To stay any injunction would only prolong that harm without providing any remedy.”
  • Facing OpenOffice: OpenOffice may well be liable as well. If it comes to pass, i4i’s suits against those users may focus on users because no central entity controls its development and distribution (although Sun is a potential target).
  • Bilski?: i4i’s claim 14 may well fail the Federal Circuit’s Bilski machine-or-transformation test. The claim reads as follows:

A method for producing a first map of metacodes and their addresses of use in association with mapped content and stored in distinct map storage means, the method comprising:

  • providing the mapped content to mapped content storage means;
  • providing a menu of metacodes;
  • compiling a map of the metacodes in the distinct storage means, by locating, detecting and addressing the metacodes; and
  • providing the document as the content of the document and the metacode map of the document.

Bilski’s Patent Application

Patent, , , , , ,

The Supreme Court is reviewing Bernard Bilski’s patent application to consider whether the application appropriately claims “patentable subject matter” under 35 U.S.C. 101 as interpreted by the Supreme Court. Much of the focus in the case is on the Federal Circuit’s exclusive “machine or transformation” test. However, I thought it would also be important to look at the underlying Bilski patent application because of how it may drive the debate at the Court.

Bilski’s application is not published. However, a copy of the 14-page application was included in a joint appendix submitted to the Federal Circuit during the en banc appeal. The application includes one independent claim; eight subsequent dependent claims; no drawings; and a priority claim to a 1996 provisional application. It appears that Buchanan Ingersoll (Pittsburgh) led the prosecution. The BPAI opinion rejected eleven claims – indicating that some amendments occurred during prosecution. (A docket sheet also indicates that drawings were later added.) Amazingly, Bilski’s case is based on an appeal from a March 2000 final rejection.

The Invention focuses on a method of managing consumption risk by commodity trading something that – in 1996 was “not currently managed in energy markets.” According to Bilski there was a “need for a fixed bill product to manage total energy costs including the consumption of risk.” The general idea of using commodity trading as a hedge against risk has been well known for years. However, Bilski proposes that consumers purchase commodities “at a fixed rate based on historical averages.” In a dependent claims, Bilski indicates that the risk to be avoided is a “weather-related price risk.” Later, that risk is drilled-down to focus on temperature shifts (heating and cooling degree days). Another dependent claim spells-out the equation for calculating the fixed cost based on prior fixed and variable costs, transportation costs, local delivery costs, and a location specific weather indicator. Additional dependent claims require specific Monte Carlo simulations and statistical tests to better calculate the fixed rate. In some claims, the commodity being traded is identified as “energy” and the market participants as “transmission distributors.”

The Claims do not focus on any particular machine or software implementation. Rather, they are organized as “methods” followed by a series of steps such as “initiating a series of transactions . . . “; “performing a Monte Carlo simulation . . .”; and “continuing to re-price the margin in the transaction until the expected portfolio margin and likelihood of portfolio loss is acceptable.”

No Machine: Even an amateur implementation of these methods would make extensive use of software and computer hardware. However, those elements are not present in the claims. Why did Bilski not include software and computer hardware in his application? My speculation: First, it does not appear – at least from the patent application – that he invented any software application of his hedging theory. Second, perhaps Bilski believed that a computer implementation element would unduly limit the scope of his invention.

Obvious and Not Enabled: The claims are likely obvious based on extensive prior art in the industry. In addition, the claims may well fail the tests of enablement and/or written description (if it survives Ariad v. Eli Lilly). However, the PTO worked-hard to properly couch this case as a test of patentable subject matter.

The abstract reads as follows:

A method is provided for managing the risk-associated costs of a commodity sold by a commodity provider at a fixed price. Such risk-associated costs include the weather-related costs of a fixed price-energy bill. The commodity provider initiates a series of transactions with consumers of the commodity wherein the consumers purchase the commodity at a fixed rate based upon historical averages. The fixed rate corresponds to a risk position of the consumers. The commodity provider then identifies market participants for the commodity who have a counter-risk position to that of the consumers. The commodity provider then initiates a series of transactions with the market participants at a second fixed rate such that the series of market participant transactions balances the risk position of the series of consumer transactions.

Read the application here: BilskiApplication.pdf

Bits and Bytes No. 123: Judge Schall

Patent

IPO Reports that Judge Alvin Schall intends to take Senior Status in October 2009 — opening a vacancy on the Federal Circuit to be filled by the Obama Administration. Three patent law professors have played important roles in the Obama campaign and transition: Mark Lemley (Stanford); Arti Rai (Duke); and Beth Noveck (NYLS; now Whitehouse). At least some patent litigators will push for Obama to nominate an experienced district court judge.

Judge Schall was appointed by the first President Bush in 1992. He spent many years as a prosecutor and DOJ trial attorney after graduating from Princeton (go Tigers) and Tulane Law.

Article: Interlocutory Appeals of Claim Construction in the Patent Reform Act of 2009

Patent

By Ed Reines and Nathan Greenblatt*

The Patent Reform Act of 2009 includes a provision allowing interlocutory appeals of claim construction orders.[1] As drafted, the provision gives the authority for approval of such an appeal to the district courts, without giving the Federal Circuit discretion to decline the appeal.[2] This approach is misguided. Failure to give the court of appeals a voice in the interlocutory appeals process flouts cautions inherent in the final judgment rule since its enactment in 1789, ignores the different institutional concerns of district and appellate courts, and will create problems of piecemeal appeals, undue delay, and crowded dockets that will impair the effectiveness of the Federal Circuit and contravene the purpose for enacting the provision in the first place.

In addition, the perceived problem of excess reversals of claim construction rulings that has motivated the current provision is a function, if anything, of the de novo review standard applicable to claim construction, not the final judgment rule.[3] Thus the proposed solution does not address the true issue in any event – it masks it.

Continue reading the article Interlocutory Appeals of Claim Construction in the Patent Reform Act of 2009.pdf

* The views expressed in this article are those of the authors and do not necessarily reflect the views of Weil, Gotshal & Manges LLP or any of its clients.

[1] See S. 515 sec. 8(b).

[2] Id. (amending 28 U.S.C. § 1292(c)(2) by giving the Federal Circuit exclusive jurisdiction):

(3) of an appeal from an interlocutory order or decree determining construction of claims in a civil action for patent infringement under section 271 of title 35. Application for an appeal under paragraph (3) shall be made to the court within 10 days after entry of the order or decree. The district court shall have discretion whether to approve the application and, if so, whether to stay proceedings in the district court during the pendency of such appeal.

[3] See, e.g., 6/6/2007 Testimony of Mary E. Doyle before the Senate Committee on the Judiciary regarding “Patent Reform: The Future of American Innovation” at 9-10 (arguing that interlocutory appeal is needed because “claim construction rulings are so frequently reversed by the Federal Circuit”).  

Law Firms That Appeal

Academic Studies, BPAI, Patent

A patent applicant has several options after receiving a final rejection from a patent examiner. “After final” practice is a matter of strategy, tactics, and art. The primary approaches are (1) abandon the application; (2) appeal to the Board of Patent Appeals and Interferences (BPAI); (3) file a request for continued examination (RCE) arguing against the rejection; or (4) concede scope and narrow the application (probably through an RCE). Each of these approaches differs in cost, timing, and likelihood of success. Of course, success may depend upon whether broad claims are important. And, in the background, applicants know that alternate claims can later be pursued in continuation applications (for a fee).

BPAI Appeals are generally thought to have a higher up-front cost – both in terms of PTO fees and attorney costs. However, if you win, appeals have the benefit of dramatically changing the course of the examination. Often, an applicant’s successful appeal results in an issued patent soon thereafter.

In this study, I looked at law firms involved in ex parte appeals to the BPAI that were decided in the calendar year 2008. Of the 4000+ decisions, only about 75% of the decisions mentioned the law firm name in the case caption. Using those names, I constructed the following table of the firms associated with the most decisions during 2008. It is interesting to compare Oblon Spivak and Sughrue Mion – both firms handle over 3000 patents each year – many of them involving electronics owned by non-US entities. Oblon, however, appears to have taken the strategy of appealing while Sughrue may be using alternate strategies. Foley & Lardner is regularly listed in the top-ten firms in terms of the number of patent grants – however, that firm does not make the list of having the most appeal decisions.

Some words of caution on the numbers game: (1) These are ordinarily dominated by lower cost electronics and software patents. (2) Some clients request that docketing go through their office – in those cases, the firm name would not show up here. (3) Focusing on appeals, it may be that some firms not on the list actually filed more appeal briefs. It turns out that in most cases, examiners withdraw their final rejections in the face of a high quality appeal brief.

2008 Rank

Law Firm

Number of BPAI Decisions

Primary Location

1

OBLON SPIVAK

62

VA

2

FISH & RICHARDSON

46

MA

3

NIXON & VANDERHYE

42

VA

4

KENYON & KENYON

38

NY

5

TROP PRUNER

38

TX

6

GREENBLUM & BERNSTEIN

36

VA

7

CARLSON GASKEY

35

MI

8

FINNEGAN HENDERSON

34

DC

9

GIFFORD KRASS

33

MI

10

SUGHRUE MION

32

DC

11

BROOKS KUSHMAN

29

MI

12

TOWNSEND

29

CA

13

SCHWEGMAN

28

MN

14

HARNESS DICKEY

27

MI

15

PATTERSON & SHERIDAN

27

NJ

16

ARMSTRONG TEASDALE

23

MO

17

BAYER MATERIAL SCIENCE

22

PA

18

RYAN MASON

22

CT

19

FULBRIGHT JAWORSKI

21

TX

20

ALSTON & BIRD

19

NC

21

BARNES & THORNBURG

19

IN

22

WILLIAMS MORGAN

19

TX

23

BIRCH STEWART

18

VA

24

BLAKELY SOKOLOFF

18

CA

25

CAREY RODRIGUEZ

18

FL

Troll Tracker, Defamation, and Splitting the Bar

Patent,

Rick Frenkel – who until recently was known only as the Patent Troll Tracker – has now been sued for defamation by two Eastern District of Texas lawyers: Johnny Ward, Jr. and Eric Albritton.  Frenkel recently revealed himself as an IP Director at Cisco Systems. Cisco is also a named defendant in the lawsuit. Ward has represented many plaintiffs in E.D. Texas patent cases and is the son of Federal Judge John Ward of the Eastern District of Texas.

The whole case seemingly stems from a Patently-O posting on October 16, 2007. That post, titled “Patent Office Has Stopped Examining Patents with 25+ Claims,” included a short blurb about a seeming “preemptive strike” by the patent holder ESN:

From Patently-O: In another preemptive strike, on October 15th, ESN sued Cisco for infringing Patent No. 7,283,519.  Unfortunately, the patent did not issue until the 16th of October. [Link] 

ScreenShot039Of course, a patentee has no standing to sue until after the patent issues, even if you know that the patent will issue the next day. The Patently-O post included a link to ESN’s complaint that had an October 15 electronic time-stamp and a civil cover sheet dated October 15.  Ward and Albritton were involved in this case, apparently serving as local counsel for the McAndrews firm.

ScreenShot040By October 18, the PACER filing information still reflected that the case had been originally filed on the 15th, but the PACER complaint filing date now indicated October 16. (See thumbnail screenshots.)  This date became potentially important because, in the meantime, Cisco had filed a declaratory judgment action against ESN in Connecticut.  (First-to-file with standing usually wins venue.)

On October 18, the Troll Tracker posted what are seemingly his most pointed comments about the case:

“I got a couple of anonymous emails this morning, pointing out that the docket in ESN v. Cisco . . . had been altered. One email suggested that ESN’s local counsel called the EDTX court clerk and convinced him/her to change the docket to reflect an October 16 filing date, rather than the October 15 filing date. I checked, and sure enough, that’s exactly what happened – the docket was altered to reflect an October 16 filing date and the complaint was altered to change the filing date stamp from October 15 to October 16. Only the EDTX Court Clerk could have made such changes. . . . This is yet another example of the abusive nature of litigating patent cases in the Banana Republic of East Texas.”

In a different post, PTT mentioned that Ward and Albritton represented ESN and that they might not “play well” in a Connecticut court.

Moot Point?: Since then, ESN v. Cisco has been dismissed by agreement of the parties, and the original filing dates have become meaningless and moot. However, Ward and Albritton remembered Frenkel’s comments. Within three days of Frenkel’s “outing” a defamation lawsuit had been filed in Texas state court. At this point, none of the parties are discussing either case in public except that Cisco “continue[s] to have high regard for the judiciary of the Eastern District of Texas and confidence in the integrity of its judges.” 

Seeing an opportunity, the Howrey firm has now declared that it “absolutely won’t represent trolls.”  Is the patent bar in the midst of a split? [Joe Mullin has the Howrey Advert]

Documents:

  • File Attachment: Defamation Complaint filed by WARD (383 KB)
  • File Attachment: Defamation Complaint filed by ALBRITTON (452 KB)
  • Original ESN v. CISCO complaint 

    • Notes:

    • Although I have not always agreed with Frenkel’s opinions, he has been a great addition to the public debate over patents and patent reforms. His analysis has always been fresh. On several occasions, I double-checked the factual basis of his reports, and each time found them spot-on.  I do hope that he’ll be back with more caustic analysis. I’ve been sitting on this story for a while now. Although not a named party, my name appears in the filings. Craig Anderson (DailyJournal) apparently broke the story in a hardcopy version.

    • This case may serve as a caution to Patently-O “anonymous” commentors. A defamed individual may have ways to figure out your identity.

    • ESN has explained that it actually filed the complaint at 12:01 am on October 16.

    • A couple of days after posting the comment above, PTT deleted the above quoted material and replaced it with the following: “You can’t change history, and it’s outrageous that the Eastern District of Texas may have, wittingly or unwittingly, helped a non-practicing entity to try to manufacture subject matter jurisdiction. Even if this was a “mistake,” which I can’t see how it could be, given that someone emailed me a printout of the docket from Monday showing the case, the proper course of action should be a motion to correct the docket. (n.b.: don’t be surprised if the docket changes back once the higher-ups in the Court get wind of this, making this post completely irrelevant). EDIT: You can’t change history, but you can change a blog entry based on information emailed to you from a helpful reader.” [Mullin]

    • Reporter, Joe Mullin has more background — According to his report, Ward filed the complaint in November and had been in the process of unmasking the troll.  

    • Joe Mullin Reports on the Case

    • Legal Blog Watch

    • Legal Pad reports on the Case

    • Forbes has a quite flippant view

    • Zura Reports

    • Mark Randazza

    • Robert Ambrogi

    Board of Patent Appeals and Interferences (BPAI)

    BPAI, Patent, , ,

    Eight Reasons: I am undergoing a project to better understand the role of the Board of Patent Appeals and Interferences (BPAI).  There are several reasons why BPAI is now receiving more limelight than ever. Here are eight such reasons: (1) every proposed patent reform bill includes an expanded role for a patent administrative court, such as the BPAI; (2) as various technology centers make patents more difficult to obtain, more cases are appealed to the administrative court; (3) under the proposed rule changes to limit continuation applications, more cases will likely be appealed; (4) as the value of patent rights continue to grow, important cases will continue to be challenged; (5) the publication of patent applications means that BPAI decisions can now also be immediately published; (6) the current large batch of examiners without much experience requires a serious check on potential abuses of naiveté; (7) under Judge Fleming, the BPAI has begun to open up to more public input and scrutiny; and (8) BPAI decisions are now available via Google search and Westlaw search.

    BPAI is a Busy Court: It is important to recognize that the BPAI is deciding 3,500 cases every year. Thousands more are ‘settled’ prior to a BPAI decision either because the patent examiner withdrew a rejection (and likely re-opened prosecution) or the patent applicant filed a continuing application or abandoned the case. The BPAI usually sits in three-member panels, although there are occasionally ‘stacked’ panels for important cases such as Lundgren or Bilski.  In my one-year sample, over seventy different Administrative Patent Judges (APJs) authored opinions. 

    As part of my initial study, this week, I created a database of information on recent BPAI decisions and coded them by issues discussed.  My database is derived from decisions available on Westlaw. Consequently, it is missing some decisions. In particular, Westlaw decisions do not include appeals associated with unpublished patent applications.

    The table below looks at board decisions for each technology center. The relative numbers are interesting — showing a low affirmance rate for rejection of business method cases (TC 3600) and a high affirmance rate for chemistry cases (TC 1700). The BPAI offers its own calculation of these numbers based on all of its decisions that are roughly parallel. [LINK] ScreenShot037
    (Note, the table does not add-up to 100% because I excluded decisions to remand and deny rehearing).

    Independence of the BPAI: One serious question about the competence of an internal patent appeal board is whether that body can act independently from the examining corps. Most of the BPAI judges are former examiners and they all work for the PTO Director. Although not conclusive, the above numbers give me some cause for hope that the BPAI does act independently. Over the past several years, many of the art units of TC 3600 has been notoriously difficult on applicants (especially e-commerce and business method groups). The BPAI’s low affirmance of rejections from that technology center may indicate that the Board has taken an independent stand against overzealous rejection practice.  There are many other explanations, including some selection bias or difference in quality of attorneys. In addition, there is a skew of judges — i.e., Judges with a technical background related to a particular technology center are more likely to judge cases from that technology center. The BPAI rightfully does this to ensure that every case has at least one administrative patent judge (APJ) who is prepared to understand the technology at issue.

    Issues on Appeal: Far and away the most decided issue is that of nonobviousness. Almost 80% of decisions involved a discussion of nonobviousness and 30 U.S.C. 103(a).  Unfortunately for patent applicants, nonobviousness decisions were also the most difficult for applicants to win. In my study, decisions involving Section 103(a) were affirmed 63% of the time; decisions involving anticipation under Section 102 were affirmed 55% of the time; and decisions involving Section 112 were affirmed 52% of the time. As more issues are added to an appeal, the chance of affirmance goes down, and the chance of a split (reverse-in-part) decision goes up.

    As might be expected, split decisions tend to be longer than others: 4500 words for split decision vs. 3500 words other decisions.  If a short decision arrives at your desk, you may assume it is a remand.

    Notes:

    Patently-O Bits and Bytes No. 18

    Patent
    • JOLTDIGESTHarvard’s Journal of Law & Technology is generally considered on of the top two academic journals focusing on Law & Technology (along with Berkeley’s TLJ). JOLT recently increased its online footprint with the JOLT DIGEST where they regularly cover important new cases.
    • Software Patents: Although in Bilski, the CAFC is not likely to consider software patents per se, there is a strong and growing movement to eliminate all software patents. The descriptively named “End Software Patents” group is led by Ben Klemens (Author of Math You Can’t Use) and is continuing to move forward. Interestingly, Microsoft Explorer crashed when I visited their site. [See LegalPad’s article]
    • Software Patents: On the more academic side, two serious patent dataheads (Iain Cockburn and Megan MacGarvie) have analyzed economic results of software patents in various industries. Their results: (1) When patents are held by those currently market, it is more difficult for a startup to get financing; and (2) When a startup holds patents, it has a greater chance of obtaining financing.  [LINK] DDC Comment: This is, of course, exactly how we would expect the market to react.
    • Auctioning the Right to File a Patent Application: Ayres and Parchomovsky have an interesting, if misguided, paper on patent rights. They see a problem with too many patents and suggest a “cap.” The right to file patent applications could be auctioned and then traded or sold in a secondary market. [LINK]
    • Kempton Lam has an interesting discussion on patents and other matters with Mike Dillon GC of Sun. [LINK]