- Sr. Patent Agent – Large Corporation – Madison, N.J.
- Business Development/Patent Attorney – Law Firm – Irvine, Calif.
- Electrical Patent Attorney – Law Firm – Rockville, Md.
- Patent Attorney – Small Corporation – Chicago, Ill.
- Patent Attorney or Agent – Midsized Corporation – Chicago, Ill.
- Patent Attorney – Law Firm – Austin, Texas & the Pacific Northwest
- Patent Attorney – Law Firm – Syracuse, N.Y.
- Patent Prosecution – Law Firm – Los Angeles, Calif.
- Associate Director, Assistant General Counsel-Patents – Large Corporation – Chicago, Ill.
- Intellectual Property Attorney – Law Firm – Fort Collins, Colo.
Wow, # 8 (link to patentlawnj.com… ) is an unholy nightmare. Besides the fact that it includes 202 claims, most of those claims include Markush groups, and many of them include Markush groups nested within Markush groups. First action allowance.
That’s 3,000 claims in just 12 cases.It would seem to be a reasonable assumption that such cases would require vastly more time to examine for compliance with all sections of the patent statute than a case presenting, say, 10 claims. Certainly a law firm would inform a client up front that this would be the case, if the client wished for the claims to be analyzed.In that regard, it would also seem reasonable that the amount of time given to Examiners for such cases should be proportionally increased, and (likewise) the amount of patent term extension granted to applicants should be similarly decreased.
Eh, I’m not sure that’s worth the trouble. The vast majority of the 3-year target period is time during which no actual handling of the application is going on. Even if the excess claims increase the examiner’s work ten-fold, you’re still talking about maybe 20-25 days of work instead of just two. Certainly the examiners’ quotas should reflect the extra work, and the extra fees make sense, but I don’t think it makes sense to adjust PTA by a few days based on claim count. If you’re talking about larger adjustments than that then you’re talking about a penalty rather than a rational adjustment, and there’s no point in incorporating unrelated penalties into the already over-complicated PTA calculation.
The vast majority of the 3-year target period is time during which no actual handling of the application is going on.But that’s because other applications are being handled.The point is acknowledgement of the fact that excessive claims require excessive time. Paying extra fees does not create extra time. You can throw all the fees you want at an Examiner but it still requires time and there are only 8 hours in a day for normal people doing normal jobs that don’t require arguing with lawyers who think they deserve a $100 million dollar patent yesterday. If you’re talking about larger adjustments than that then you’re talking about a penalty rather than a rational adjustmentFirst, I’d say “one to two days” for a complete Examination of a typical claim set, including a write up (and review) which meets the “standards” required by the “appeal everything” crowd is absurd. Second, I don’t think there’s anything “complicated” about introducing this sort of penalty into a PTA calculation. Correct me if I’m wrong, but I think even a powerful computer brain from forty years or fifty years ago would have an easy time of that.The idea is to deter these ridiculous claim sets which s*ck up limited resources, both at the PTO and elsewhere. Make it simple: more than 25 claims, you lose 1 year off your PTA (if there is any). More than 50, two years. More than 100, three years. Etc. Nothing “complicated” about it.
a portable online gambling device; Invented by Jay WalkerSounds like a car accident waiting to happen.
44. An apparatus, comprising: a memory of a portable wagering medium, the memory storing an indication of a game play attribute which, when utilized in association with at least one displayed play of a primary wagering game, alters at least one game play characteristic of the at least one displayed play of the primary wagering game to be associated with the game play attribute; and a communications device of the portable wagering medium, the communications device configured to operate to provide the indication to a gaming device associated with the primary wagering game.Calling Judge Rader! Calling Judge Rader! (“a system claim generally covers what the system is, not what the system does. Hewlett–Packard Co. v. Bausch & Lomb Inc., 909 F.2d 1464, 1468 (Fed.Cir.1990); see also Roberts v. Ryer, 91 U.S. 150, 157 (1875)”).So, let’s see what the claim covers:44. An apparatus, comprising: a memory, and a communications device.It really is great to see Judge Rader focusing on the functional claiming issues that have long plagued the dumptruck arts. Very impressive, Judge Rader.
lulz
Somebody forgot their “claim as a whole” rule of law again…(hmmm, same somebody who is attempting to misrepresent what Rader actually said about importing from the spec into the claim…)
what Rader actually saidI quoted Rader. It’s time for Judge Rader to begin thinking about what he is “actually saying,” for a change.I still have hope for him in that regard, unlike you.
“I quoted Rader”Malcolm – misquoted is more like it. Of course, for one who always thinks “WHATEVER” when it comes to spin, I doubt that you recognize the difference between a quote and a misquote.”unlike you” – Your quip is a vacuous (and quite meaningless) comment.
I doubt that you recognize the difference between a quote and a misquote.I doubt you recognize the difference between your mouth and your ar se. Nobody else can.
I doubt that you recognize the difference between a quote and a misquote.I doubt you could explain the difference to anyone without sticking your foot so deep in your mouth that it comes out your other end.But please give it a try. It’s Tuesday and we could all use a laugh.
Jason, I love the list. Love it so much, in fact, that I summarized each of these cases in a paragraph at link to schottpc.com…. It won’t give your students an edge in class but it might be a helpful Cliff Notes to a non-lawyer.
excellent, much-improved list
Chaing’s article clarifies the distinction between interpretation and construction and how the Federal Circuit is confusing the issue and not drawing the proper distinctions. These battles rage every day in District Court, and the ITC and in the Federal Circuit without ever articulating what the real principles are and what the objective is.Historically, courts of construed patents and not just claims. There is a reason for that. Fundamentally, patents are awarded to protect inventions. The invention must be described. The patent can only legally cover that invention and equivalents. To the extent that the literal language is broader than the scope allowed by the disclosure, there is a problem. The question is how the address that problem: Hold the claims invalid for one reason or another, or to construe them to be limited to the invention disclosed and equivalents?Hstorically, the Supreme Court has adopted both approaches. For example, in Perkins Glue, the court held the claims invalid where the discovery actually made by the inventor was not in the claims. But in Westinghouse v. Boyden Power Brake, the court construed the claims to cover the corresponding structure described in the specification and equivalents.It seems to me, that the simplest approach is the approach mandated by Westinghouse unless the claims are so egregiously indefinite that one cannot tell what the corresponding structure is.
It seems to me, that the simplest approach is the approach mandated by WestinghouseThere is nothing “simpler” about that approach compared to the “historical” approach (that I can see anyway).Unfortunately, the Westinghouse approach is also the approach that (1) renders claims superfluous and (2) leaves the public at least as much in the dark about the “invention” they need to worry about infringing, compared to the “historical” approach (where claims are interpreted to mean what they say and invalidated when they are too broad).
Jason, I’m interested in claim construction. I should be interested in American critiques of the English position as set out by Judge Hoffmann in the Kirin Amgen case:link to bailii.org…link to en.wikipedia.org…in which judgement the key quote (in para 34) is:”The question is always what the person skilled in the art would have understood the patentee to be using the language of the claim to mean.”Do we agree, that patents are addressed, not to a philologist, lawyer or judge, but to a person (engineer or scientist) of skill in the relevant art, to define and describe a contribution to their art, and that the addressee is to be imputed to have a hungry mind, willing to understand precisely what the author of the claim was using the words of the claim to mean to that addressee?Merits of the English approach include i) to business people, investors, inventors, engineers and scientists it is nothing more than common sense ii) it frustrates litigators trying to get other constructions up and running and iii) it renders a Doctrine of Equivalents superfluous. Is there anything wrong with the English approach to claim construction though?
“Do we agree, that patents are addressed, not to a philologist, lawyer or judge, but to a person (engineer or scientist) of skill in the relevant art…”Not in the US. First and foremost, patents are legal documents. They are most decidedly not technical journals, of which the person of skill in the relevant art would be the primary target.add: MaxDrei, please do not confuse purpose and context (PHOSITA is a tool, a means, and not an end)
Legal docs? Sure. For the court to construe I think (Markman). Also in England, since before 1791. But (pace Phillips, but also in England) does not the court don the mantle of the skilled man, when working out what the claim means?
Max, your “English approach” seems similar to the way that many American jurists (and lawyers) understand claim construction to work (the term “hungry mind” is rather redundant and silly, though).One problem with the approach, of course, is that many (most?) patent claims aren’t drafted by people striving with all their abilities to describe the invention in terms that are as clear and precise as possible to the skilled artisan. Claim drafters are striving for something else in many cases, particularly with their independent claims.The other problem is that people make mistakes when drafting claims. Mistakes are correctable, of course, and the system provides many opportunities for correction. But should they be correctable by claim construction in court after the patentee has taken aim and pulled the trigger on a particular defendant? It seems fair at that stage to hold the patentee responsible for his/her mistake, regardless of how a “hungry minded” artisan might have understand the claim.
Yeah, “hungry” was a bit silly, i suppose. I was thinking of the baker reading the Chef America patent, curious to discover how to make tastier bread.Inappropriate claim drafting? Yes, that same Judge Hoffmann in STEP v Emson reminded the English judges that a claim is a unilateral definition with words freely chosen by the drafter. If there is a limitation in there it will be given deference, and effect. So, whether the “mistake” is correctible in court depends on the nature of the “mistake” I think.
Thanks for the follow-up, good luck to you and your students!
No the initial document disclosure plan needs to return with only complete conception required. High technical perfection application means stolen patent subject matter due to expionaging and the inability of 99% of citizens unable to use the patent system
This coment does not want to stay in here have you got any glue Dennis. Yes we need to bring back the initial document disclosure program. The technical perfection requirements of the Kapos regeim are thefting original parent conceptions from true concievers and not even allowing a reasonable % for complete conceptions. This provision denies 99% of filers their cival rights to obtain a patent and shuts down the system of top marketable conceptions and associated revenues jobs and exports.
The reality of PAEs in practice has been quite diferant than what they should be in theory. In the first place you cant even find one except Muthvold and he is broke from investing in bad patents. PAEs popup whenever a espionager steals a patent usually from me. The patent investors PAE or invention conciever direct dealers dont know where to find legitimate IPs to invest in but when they do find one they want to steal it for pennies on the doller and that can be low enough to destroy the incentive to create. They need legislation to ensure fair compensation to concievers 33% to 66% would ensure that concievers could become PPEs and more patents will keep coming for the future if done in coperation with eliminating the 40 methods of cheating inventors in the AIA and previous legislations and corruptly ignored critical provisions not adressed in The AIA The system could roar back to life again
PAEs are essentially contingent attorneys that dont pay the true concievers peanuts but pay now ,not wait for trial outcomes. PAEs are the only thing that keeps the incentive to create alive for invention concievers as they level the playing field against big pocket corps who want to pay concievers nothing, PAEs dont level that field very well though.
hi, really? I thought that was the point of the study — to find out such things — how inventors or their original investors were compensated. However, may I ask what would happen if the FTC were to declare it unlawful to sue on a patent where one was not making a covered product? Just what would happen to startups?
If the FTC were to make it unlawful for NPEs to file then startup inventors couldent become practicing entities denying their cival rights to be issued a patent. By selling a few patents they can gain startup capitol theoretically but thefts and frauds using 40 diferent methods usually startup to cheat them of that right. Also NPE invention concievers provide business with their only source of new products so if denied the right to file then established businesses cuts their own throats as far as producing new jobs revenues and exports
By selling a few patents they can gain startup capitol theoreticallyOr they could actually do some work to “gain capital.” Or they could ask someone for capitol. Not every “invester” demands the filing of patents in exchange for capital.You need to recognize that the ability to monetize j*nk patents is part of the reason that certain “investers” like to see patents. It means that when all else fails and it turns out they “invested” in some incompetent or unlucky people, they still have a shot at the patent casino where they can sue someone who was actually successful. It’s this latter “attraction” that needs to be shut down.
We need to keep top inventors working on top marketable new products that advance humanity. If your good at something then keep doing that. top Marketable invention is rare and precious and we need to ensure justice and proper credit is given even in passed invention situations where true concievers have been cheated. Yes awarding patents postumiously will stop the patent casino because the purchasers dont want to pay twice
Yes the patent casino needs to be shut down because it involves my stolen patent conceptions that have been taken using every dirty trick in the book. The ones that are sucessful are the ones who wont pay or pay the wrong persons. The indegent like myself never had a chance due to the money monopoly and dirty tricks to even get started
The thing to do to reduce or eliminate the nessity of patent trolls is tighten the system to eliminate all the other methods of cheating the true conciever. Like establishing early who the IP conciever is by immediate novelty check and Lockering on filing,for companies claiming they had the invention previous to the applicant. Also disallowing startups unless the companies have negotiated patent usage contracts with concievers to stop income losses from exclusive market destructions by allowing infringments. Forcing partnerships immediatly means no nessity for troll actions that suck down profits for both parties the the thieving infringer and patentee victum
Forcing partnerships immediatly means no nessity for troll actionsThere is very little distinction between “troll action” and an “invention conceiver” who sits around “conceiving” of patent claims that can be asserted against a company who actually makes and markets a successful product.
Malcolm, I would agree that people who sit around and think up business method patents describing conventional ways of doing business are not really inventing.But there are others who figure out better circuits, for example. I think of the guy who invented the NAND flash cell. His company is now called SanDisk.Name the inventor.
Theoretically if its anything significant I invented it in parent form or its major subinventions in most cases. Sitting around thinking up inventions is very important and your just jelious because you cant do it.
If its never been done before its inventing and if its any good its involved with me.
Without the invention conciever the company wouldent be marketing any product at all as in nonexistant conception = nothing!
PAEs are the only thing that keeps the incentive to create alive for invention concieversPure unadulterated horse hockey. Also, these “invention conceivers” you refer to … what is it that most of them are “creating”? Methods of shoving an ad in my house? Methods of “allowing me” to communicate information with a computer? Methods of taking information from me and “monetizing it”? Who’s asking for this “creation”? I can tell you for sure that I’m not asking for this stuff to be created. Pretty much nobody is. Why is that? Because nobody needs to ask for it. Companies will find ways to make money. That’s how capitalism works. We don’t need a class of pathetic lazy “invention conceivers” to sit around and come up with “ideas” about how companies can make money, just so they can turn around and sue any company that actually does make money.And by the way: who are you to speak for “invention conceivers” anyway? We’re all “invention conceivers” in this day and age, when an “invention” is apparently anything you can imagine doing with a computer that hasn’t been described exactly as you describe it.they level the playing field against big pocket corps who want to pay concievers nothingAgain: that’s a just a bunch of cr*p. You have a patent that is being infringed? Hire an attorney and file the lawsuit. Nobody is stopping you from doing that now and nobody is trying to stop you from doing that. If you’ve got a valid patent, you’ll get your license and damages.PAEs are essentially contingent attorneysCompletely false.PAEs …. dont pay the true concievers peanuts but pay nowThat’s not a “contingency attorney.”
What invention concievers create is everything made by the hands of man and without them the world would be primative as it was in 1953 when I began concieving the top 20000 inventions of all times. and my three grandfathers concieved everything before that to the 1804-5 invention of fire and metal
Oh boy, this has a familiar ring.
Yup but still no justice just more hogwash from big business thieves
yes I thought you knew you were talking to Michael R Thomas. “concievers” should have tipped you off.
Allot of the invention of today involves previously sucessful business methods with new twists. I invented all methods of advertizing in parent form but some are putting new twists on the old to make money I think that is how capitolism works and the best methods win except I never got paid for the parent conceptions
Lazy pathetic invention concievers? Hogwash!. Disgusting! ingratitude truley pathetic and you couldent have picked a whorse person to portray that too. I am the worlds only inventor of significance so immagine the world before my great great grandfather George lived in. Just dig a hole in the ground to be your house and your water well at the bottom then forage for grubs and snakes all day to survive I am sure you wouldent like it.
Hire an attorney? thats why we need trolls the indegent concievers dont have any money so the big pocket corps wont deal with them only steal from them
Well ya there not contingent attorneys because the uncertianty and corruption of the litgation in patent law is so bad and only getting whorse with every new law that contingents wont take the case. It is a legal partnership with a court representative based on a patent so very similar to a contingent
Hogwash! wile your not asking for new inventions your not obligated to buy it either so what is it hurting you and why do you feel you have the right to deny it to those who do want to use the new inventions. Some of the inventions are better than others and the free market will find out the true value of the invention to human advancement The courts shouldent be involved in condeming it it discourages concievers from performing their vital function of filing and the inventions existing instead of nonexistance
FTC wants to know: How do PAEs engage in assertion activity (i.e. demand, litigation, and licensing behavior)? After what Scotus did in Medimmune, if a patentee does NOT sue first, he risks being the defendant. Maybe if Medimmune got reversed by legislation, the parties could have a business discussion without a pending lawsuit.
American, I think there was also another case, I can’t recall the one, but it was from the Federal Circuit, that held that if one received a license offer from a NPE, that one could sue on that alone?But don’t worry. Standing is not an issue with IPRs. No conversation, however innocuous, can keep a licensing entity out of the PTO.
Let’s start with increasing the quality of issued patents. This requires a first class data base of prior art (including literature prior art), a first class classification of the prior art, and well-trained examiners.
We’ve been “starting” that for at least the last 5 years. I haven’t noticed too much of a shift in the cases I see on PO in terms of quality.
Huh, only 5? Try, forever instead.
I could only speak for however long I’ve been here. But yea I figured it’s been more or less forever.
Lets go the oposite direction and return to the initial disclosure document program. The technical perfection program is haulting human advancement because there is to few who have the knowledge to write technical reports and it tips the secrecy of non devulgement due to having to research that is subject to espionaging and it cuts 99% of citizens right out of their cival rights to a patent
With patent quality improvements comes corperate domination of invention thefts ability and cival rights violation of 99% of citizens. Return to the initial document disclosure program means true concievers wont need a degree in every field they want to file in that could take 3 lifetimes to obtain.
Shouldn’t the concept of “troll” include the concept of doing something illegal?
I thought patent infringement was against the law?
I thought patent infringement was against the law?Last time I checked it still is. Of course, laws that never should have been passed in the first place are routinely broken by (1) people who have no reason to believe that such a law could ever exist because the law is so absurd and (2) people who realize that the “law” is a joke and any attempt to enforce the law will result in the law being stricken from the books.Put another way: I have a computer. It’s programmable. I use the computer to receive, process and transmit information. I will program that computer any way that I want to, to communicate with anybody that I want to about anything (e.g., who my friends are, who I “like”, what products I like, etc), and nobody is going to tell me that they “own” that method. Or rather, they can tell me whatever they want but in return they are going to get a middle finger in their face and nothing else.
You are right that all intellectual property serves as a form of regulation against what you can do with your physical property. So is your point here that you are against all intellectual property or regulation regarding what you do with your physical property?
So is your point here that you are against all intellectual property or regulation regarding what you do with your physical property?Neither, in fact. I’m against regulation that prevents me from using my computing devices for their intended purpose(s), e.g., to receive, process, store and transmit any and all kinds of information legal information more quickly and efficiently than is possible without that computer.There are few things that are analogous because, as far as I can tell, there aren’t reams of folks lining up (yet) trying to patent methods of, e.g., using my car to drive to particular places, at particular speeds, past certain “checkpoints”, carrying certain objects, etc. Most of the insanity is taking place in the so-called “computing arts” in part because of some impossibly shallow and legally meaningless hoo-haw about the “essence of electronic structure.”
I’m pretty sure that his point here is that, when it comes to methods of using machines that were already capable of performing whatever intended use you wish to put them to via instruction from yourself to actually do it, those are not part of the valid domain of a restriction on what you can do with your physical property via intellectual property laws.
6, anon still has not explained what Rader was talking about in his Alice opinion when he said that “putting” an abstract idea on a computer was not patentable under 102/103, or did he mean 112 or 101? The central dispute between anon and me is boils down to just this: is one using the computer or is the computer “permanently” programmed such that it operates differently.I suspect that even Rader must agree that “using” a computer (or any old calculating machine) to calculate something abstract (i.e., that is not used for anything) is not new. But what statute shall we use…….?
“6, anon still has not explained what Rader was talking about in his Alice opinion when he said that “putting” an abstract idea on a computer was not patentable under 102/103, or did he mean 112 or 101? “How about thanking your lucky stars we have had a break from anon for the last little while? “But what statute shall we use…….?”I use 102. And occassionally 101, 112 and 103.
102/103 still exists.
Malcolm, on freedom of thought and expression, we agree. Suing doctors, for example, because they “know” of a correlation seems to be an invasion of fundamental liberty that will not long be tolerated.Lawmakers know not to pass laws that people will not obey. Such laws undermine the rule of law itself.
Shouldn’t the concept of “troll” include the concept of doing something illegal?Because why? Because only currently “illegal” activities merit criticism?
Malcolm, the word troll is bandied to defame and to prejudice. It implies that the person is doing something unethical. It is used in court by big infringers to bias juries. It is use in congress to pass laws that entrench the powerful and discourage startups.These rich and powerful folk who label all patent holders who might sue them trolls do so with a purpose.Troll needs to be limited to attorneys and firms who are acting in an unlawful manner in some respect. Asserting patents with no reasonable basis for infringement might be one of them. But the defamers targets are not so limited. See anything in the FTC mandate regarding anything illegal or unethical? No. The FTC seems to be targeting anyone who asserts patents regardless of the merits of their patents or of their infringement claims.
The FTC seems to be targeting anyone who asserts patents regardless of the merits of their patents or of their infringement claims.They are trying to collect information.
Yes it should be called patroller not troll and all who try to obtain justice from infringing thieves should be called criminals in a reverse justice world
Joe Mullin discussed the events leading up to this here:link to arstechnica.com…If the FTC does move ahead and collect more information on this issue—and its unlikely the directors would have publicly said they support it if they didn’t have support on the Commission—that doesn’t mean all the information listed above will become public. Rather, the FTC will create a public report with aggregated and averaged information, so anyone looking for a spreadsheet detailing the finances of every patent assertion entity will be disappointed.Having said that, much of the information listed above really should be public. Patents are monopolies granted by a government agency that should represent citizens first; courts have long been too obliging about allowing both PAEs and operating companies to keep information secret about patent assertion. Patent owners are fond of using metaphors about owning land when they want to win a lawsuit, but have strongly resisted providing the kind of disclosure available to the public in real-estate records.Given the documented propensity of the typical troll to lie under oath when it matters and is easily detected (e.g., in court), we can expect the responses to these subpoena’s will be deeply “massaged” by the responders.