The number of small-shop innovators continues to dwindle. In a sample of recently issued patents,* only 20% claim “small entity” status. Of those, 30% (6% of the total) are held by the original inventors.** According to the PTO Rules, large universities and non-profits still qualify as for the small entity price-break so long as the patents-in-question have not be assigned or licensed to a non-qualifying entity. At least 12% of the small entity patents are assigned to universities or non-profits. These small entities include multi-billion-dollar operations including Battelle Energy Alliance, California Institute of Technology, Princeton University, and the Korean government funded ETRI. The remaining small entity patents are largely held by companies and partnerships such as Audible Magic, PixArt Imaging, and Alverix.
US versus Foreign: Only 45% of the large-entity assignees are US based while 69% of the small-entity assignees are US based and 77% of the un-assigned patents include at least one US based inventor. (See Graph at Right).
- * This data comes from a set of 1700 utility patents issued on April 27, 2010.
- ** I.e., the USPTO has no assignment on record associated with the patent.
Ping is trying to pick up vulnerable chicks on PatentlyO. How very, very sad.
The only thing more pathetic is reciting song lyrics to do it. I believe song lyrics are considered universally lame by all socioeconomic and demographic groups.
Ping
My husbands Computer says this thread has 45 comments. Mine says there are 48 comments. And the only time I get a good connection is when My Lap top is also using Poker Stars. Maybe that is the bridge. And I honestly have to be on that or I lose my connection to my email and PATENTLY O?
Why would one computer say 45 comments and the other say 48 comments?
Must be an invention. Maybe Malcolm Mooneys?
well sarah, I think the court in i4i was on to Microsoft. They knew how they had no respect for patent rights of others based on the testimony. The argument that Microsoft could infringe with impunity and in the end pay only the same royalty anyone else struck home.
If an injuction is an order from doing certain acts… then that should be on both sides. Don’t you think the court would take that into consideration, if there were blame to lay?
In recent seminar, a panelist opined that the only thing that might interest a Supreme Court from the i4i vs. Microsoft case was its injunction. Recall that i4i was a non-practicing entity. Theoretically, damages and an ongoing royalty would have been enough. But still the court awarded an injunction. At the time I found this somewhat remarkable.
Ping
When I contacted you, then there were two addresses to you in my saved addresses.
Maybe the people are trying to keep the loop tied like a knot.
Whenever I use my cell phone and leave a message to a Law firm that mentions a few things that have happened, the cell phone drops my call. If I try to call back it drops the call. If I email a law firm they never email back. One email had a message in my email it underlined DON’T ANSWER. and when i opened the line it said TRYKK HER. And then the message was in German. It was about a Trademark Registration I believe.
So if you really are interested in helping me, then maybe we need to find out who the Email was from to the law firm that I contacted with absolutely no follow up?
I spoke with someone yesterday. And I can honestly say he was more about not listening. He told me to email evidence and he would decide. But the email was sent twice “while I was still writing it.” And believe me it had some really good info in it. And it has a (2) beside it to confirm it was sent twice. And the email AHEMM off his VCARD is invalid. And a funny thing he says he was from Randolph Mass. Which is really close to Brockton, Mass. Also an address that Litman has on Switchboard.com. Connection? And that address is also a part of my Story. Along with the Hull Coast Guard Station.
Okay then my email you didn’t amswer. someone else did? I asked you. And if that’s true that just goes to show. Even my Computer is as HOT as my Phone.Because i asked you on both HOT HOT HOT electronic devices.
PatentLawNewbie: So, in accordance with the principles of equity, you don’t always get an injunction. I guess there’s an argument that this is unconstitutional, because the Constitution grants Congress the right to grant an “exclusive Right” to an Inventor. What we have now is a semi-exclusive right — sometimes exclusive and sometimes non-exlusive as long as you pay a compulsory license right.
Not to rehash a lengthy and heated discussion in two or three other threads, but you might care to re-read eBay bearing in mind that the Supreme Court doesn’t usually do things that are glaringly unconstitutional.
The Supremes explicitly stated in eBay that patents grant an exclusive right (making infringement a cause of action), which does not necessarily entitle the patentee to any particular remedy (e.g. injunction). I know you say you’re “not an academic”, but the distinction between rights and remedies can seem academic sometimes (lay people always want the remedy to be the right), so you might want to put yourself in that frame of mind.
If you don’t like that particular holding, write your Congressman. Nothing is stopping Congress from making injunction an automatic remedy once infringement is proven. It’s just that they haven’t.
“Ping you already said no. So what up?
What’s your game?
The thought occurs to me that some lucky bast_rd out there was propositioned by the lovely sarah because she thought that person was me.
And the dude said no? There’s someone who’s out of the loop.
sarah, you haven’t asked me. yet.
PLN,
You must be a newbie, cause you missing the joke about Constitutional discussions. Go back on the archives here and look at the threads with more than 300 posts.
Glad you found that 283 law, cuz I be too lazy. What be the rights secured by patent that the prinicples of equity be preventin violation of?
Is the rights have anything to do with making money? Or be those rights something to do with excluding others? I aint be askin about the equity portion, my main man IANAE has already laid the law down on equity. I just trying to understand the rights portion that that equity be addressin.
As far as pullin – after you read the mega threads, you’ll see that you be in some very like minded (and like-actin) company.
ping,
The Constitution definitely doesn’t give any one a right to a patent or to exclude others from their invention. The Constitution gives Congress the power to do that. Article I, Section 8, Clause 8 (“The Congress shall have power … To promote the Progress of Science and useful Arts, by securing for limited Times to …Inventors the exclusive Right to their … Discoveries.”
35 USC 283 states that “The several courts having jurisdiction of cases under this title may grant injunctions in accordance with the principles of equity to prevent the violation of any right secured by patent, on such terms as the court deems reasonable.”
So, in accordance with the principles of equity, you don’t always get an injunction. I guess there’s an argument that this is unconstitutional, because the Constitution grants Congress the right to grant an “exclusive Right” to an Inventor. What we have now is a semi-exclusive right — sometimes exclusive and sometimes non-exlusive as long as you pay a compulsory license right.
Under that analysis, Section 283 would be unconstitutional because Congress can only grant no right or a completely exclusive right, and not something in between. Or does the grant of greater power include the lesser power?
Of course, I’m not an academic, and I’m just pulling this out of my arse.
I thought I remembered reading somewhere that the right granted in a patent is not a right to make money, but a right to exclude. I thought maybe I even read that on a patent once or twice.
Makes me wonder how harm can happen to the right that I may actually have with a patent.
Am I irreparably harmed when money profits do not intersect with my actual right? Am I harmed when my right to exclude is violated?
Can any of those great Constitutional scholars out there help me remember?
Note: This is an open invitation for a multi-hundred comment thread.
What if I lose some money every time I make and sell one of these ?
Then you want people to infringe and steal your market share. Think of the money you’ll save!
What “practicing invention” has to do with money profits ?
The same thing profits has to do with irreparable harm.
““I make money every time one of these is sold” is generally good enough to get your non-NPE injunction.”
Definitely not. Even NPE’s make money this way through volume licensing terms.
“The whole thing stinks like Mooney’s dirty socks”
Suggestion: stop letting Malcolm borrow you rred pumps.
“I would think a defensible statement to the effect that “I make money every time one of these is sold” is generally good enough to get your non-NPE injunction.”
Hillarious
What if I lose some money every time I make and sell one of these ?
And can’t produce any sizable quantities for that reason ?
What “practicing invention” has to do with money profits ?
Was Bob Kearns from the movie “Flash fo genius” practicing his intermittent windshield wiper invention in his basement or not ?
In my world he was practicing, 100%
can’t economically produce large quantities domesticaly
Is there a “domestic industry” requirement to be a practicing entity now? I thought that was only for ITC proceedings.
I would think a defensible statement to the effect that “I make money every time one of these is sold” is generally good enough to get your non-NPE injunction.
The whole discussion about so-called “non-practicing entities” in high-tech is ridiculous, in view of the fact that many if not most large tech producers actually don’t produce anything other than blueprints – they outsource their entiree chip production to some foundry in Taiwan
The list includes such fabless tech household names as NVidia, Quallcomm, Broadcom, Xilinx and many many others
So what if I build and use a single prototype unit in my garage but can’t economically produce large quantities domesticaly to justify the selling price and cannot outsource to China
Should the definition of “practicing” entity be changed to “practicing in China (or Taiwan etc)” entity or practicing in your US-based garage is suffucient
The whole thing stinks like Mooney’s dirty socks
Get rid of the small entity “discount.”
I don’t mind getting rid of it for maintenance fees, but I like the idea (even if it is somewhat illusory) that the PTO’s front door is open to the impecunious inventor with a really nifty idea.
IBP: I think Dennis gave enough information to figure all that stuff out. Probably. I mostly wanted to know if it was happening to any significant extent, by any measure.
FWIW, sounds like ~100 un-assigned applications at small-entity level and ~25 at large entity level. A not-insignificant split. Also, not-un-hyphenated.
I may be wrong on this, but I’m not aware of any requirement of recording an assignment to sue for infringement.
Recording is supposed to be used to avoid an inventor from selling the patent multiple times. If you don’t record the assignment and the inventor resells and the second buyer records, your tough luck.
Am I missing something?
This analysis doesn’t take into consideration the new reality of the non-practicing entity who is perfectly happy to have no assignee appear on the patents leaving the inventor to claim small entity status until some large entity infringes their patent they have an interest in.
The NPE and other “off balance sheet entity” for the lack of a better term change the whole meaning of the analytics and associated analytics of using PTO data to figure out what’s going on out here.
By the way, have you ever tried to figure out how many patents Intellectual Ventures has an interest in using the USPTO data? It doesn’t come anywhere near the claimed 30,000 patents being thrown around in the trade press.
Get rid of the small entity “discount.”
IANAE
It’s a Civil Rights thing. I thought you were a very intelligent person. I read every thing you had to say, until you flip flopped with the IBP Issue about what you had in numbers relating to the small Inventor. .I am sad that I hung on your every word. Ebb and Flow is the Tide. Not Law.
Or is the unstated assumption that only small entities have unassigned patents?
IANAE–
Yes, that I understand.
But DC’s response said that 25 of the entire sample of 1700 were unassigned and paying the large entity fee.
The entire sample of 1700 includes large entities, does it not?
Weren’t you asking about the fraction of small entities unassigned but paying large entity fees?
If some individuals are paying large-entity fees, the number of small-entity filings is not necessarily a good indication of how many actually-small entities (geniuses in their garage) are filing.
I wouldn’t give much credence to the small-entity filings as an indication of individual inventor filings anyway, since so many bigger organizations dedicated to research also qualify for the small-entity level, and they’re not the kind of applicants we usually think of when we talk about the poor, oppressed small entity.
DC & IANAE–
Please, why is that, without more, particularly interesting?
IANAE asked the interesting question: Are (m)any of the un-assigned patents being maintained at a large-entity level?
Answer: Yes. Out of the 1700 patents in my sample, about 25 of them were unassigned but paying the large-entity fee.
You must all be smoking weed.Or you are out of the loop?
I’ve been a fan of Sarah’s non-linear, kaleidoscopic commentary for a long time.
“Strange, but I feel privileged to have been included within Sarah McPherson’s orbit.”
IBP, most everyone is included within sarah’s orbit – it is really way out there.
The feeling privileged part comes from knowing just how special sarah is.
Jupiter by way of URANUS
Strange, but I feel privileged to have been included within Sarah McPherson’s orbit.
Don’t you want to find out what planet she’s on first?
Incidentally, Dennis, are (m)any of the un-assigned patents being maintained at a large-entity level?
Strange, but I feel privileged to have been included within Sarah McPherson’s orbit.
IBP a silent wish… TO THE MOON ALICE!
Ping you already said no. So what up?
What’s your game?
DC–
If by “proportion” you mean relative to large entity patents, that wouldn’t really tell me anything. Are the filings in the same proportion? Are the allowances in the same proportion? What is the gross number of small and large entities patenting, and what is the average number of applications or patents held by each of the same?
Without more, it wouldn’t say anything worth repeating.
If by “proportion” you mean proportionate to the total U.S. population, that still wouldn’t say much, without more information–i.e. if it applied to applications as well, one could say that, all other things being equal, there are perceived and/or real barriers to small entities filing an application, IF AND ONLY IF that same proportion is not evidenced among large entities. That type of information can be useful in policy-setting or policy-analysis.
In analysis, it could reflect a form of either a social democratization, or a social centralization of power and control–which it goes without saying is an interesting thing to consider.
It would assume that all small entities are American.
Any idea what proportion of small entities are American?
Justin: Thanks for correcting the typo – ETRI is the Korean Government funded institute.
IANAE: Good point regarding one-day of data. It is usually not good practice to extend one-day’s worth of patent data because there is often “clustering” of issuances. So, take this for what its worth.
Body Punches: I believe that we would find that the absolute number of small entity patents has risen over time even though the proportion has dropped over time. What does that tell you?
I think that a more meaningful statistic would be the annual number of small entity filings per capita in the entire U.S. population, treated historically.
Yes, good point. It might be that large entities are driving down the numbers by filing more.
First of all, I wonder how statistically valid these samples are of patents issuing on a single day. I wonder if small-entity filings even issue at the same rate as large-entity filings, since decent prosecution is way more expensive than the fee differential.
Second, you’d think that anyone who expects to license to a large entity would be paying the large-entity fees. Better to pay a few extra bucks than to forget to update your entity status and lose the patent, right? And every small entity thinks their patent is the Next Big Thing, right?
For all we know, the larger “small entities” might be uncertain about their entitlement to the fee discount, in addition to it not being such a big deal once they’re paying a decent firm for prosecution. Or they pay at a large entity level as a matter of policy because they know they want to license everything they can.
I’m not ready to say the sky is falling just yet, until this data is somehow correlated to “dwindling” individual inventor filings.
I think that a more meaningful statistic would be the annual number of small entity filings per capita in the entire U.S. population, treated historically.
Also, the annual number of small entity NOA’s and issuances per capita in the entire U.S. population, treated historically.
Those 3 graph lines would give a better indication of historical patterns of small entity filing and patenting.
Finally, annual small entity NOA’s and issuances per filing vs annual large entity NOA’s and issuances per filing (4 lines), to see if both the “desire” and the “means” to patent still exist among small entities.
It’s just no good anymore since she went away
Now I spend my time just making rhymes of yesterday
Denis,
For “the Korean government funded ETSI” ETSI should be corrected to ETRI.
Electronics and Telecommunications Research Institute (ETRI) is a government-backed research institute according to WIKIPEDIA.
Yeah, thanks for the info,
But we know it already without your blog
we are being f\/@ked big time !!!
Have a nice week
Where is Giles Sutherland Rich when we need him so desperately. That man should be your leader, your teacher, your aspiration….
Good analytical blog actually. I think small entities are always give rise to big. these all are the base of the new technologies. we keep promote to them also.
If the Silicon Valley “masters of the universe” from Coalition of Patent Pirates have their way, this will continue and accelerate. One little-publicized fact is that Countrywide Financial was a founding member of the Coalition for Patent “Fairness” – it looks like the Wall Street “masters of the universe” and their Silicon Valley counterparts have a lot in common. Then they can infringe anything they want and pay their $50,000 apportioned-damages check for lifting the technology and go on their way.
Great blog! The information you provide is quiet helpful, why I was not able to find it earlier. Anyways I’ve subscribed to your feeds, keep the good work up.
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The once and future sport of kings.
Yup.
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