Patently-O Bits and Bytes by Dennis Crouch

By Dennis Crouch

  • Prioritized Examination: Yesterday, I wrote about the PTO’s implementation of a prioritized examination program (Track 1). Although the notice published by the PTO indicated that the Office was proceeding “with immediate implementation,” the notice also refers to an “implementation date.” I contacted PTO officials for some clarification and can report that Track 1 is not yet available; that the implementation date has not been set; but that the expectation is that the program will be implemented in May or June of this year.
  • Story Suggestions: My student (and future patent attorney) Lawrence Higgins has been writing these bits and bytes posts lately. He’s planning to write about interesting cases, bits of patent law news, moves made by patent law thought leaders, upcoming events, jobs available, etc. If you have topic suggestions, e-mail him: Lawrence.Higgins@patentlyo.com.
  • End Patents?: Eric Johnson, Professor of Law at UND has released a draft of his article: Intellectual Property’s Great Fallacy. In the article, Prof. Johnson attempts to explain why, except for some specific circumstances, patents and copyrights are completely unnecessary. “Using recent advances in behavioral economics, psychology, and business-management studies, it is now possible to show that there are natural and intrinsic motivations that will cause technology and the arts to flourish even in the absence of externally supplied rewards, such as copyrights and patents.” http://ssrn.com/abstract=1746343

16 thoughts on “Patently-O Bits and Bytes by Dennis Crouch

  1. 16

    So “immediate implementation” means “whenever we get around to it.”

    No, you have to read “immediate implementation” in the context of other terms like “Notice of proposed rulemaking” and “Comment Deadline Date”. There’s still more stuff to do before they can immediately implement it.

    If it’s any consolation to either you or your client, the ESD route will still be faster, even when Tier 1 is implemented.

  2. 15

    lol – fish

    Iza think ya have hit on the academic panacea of pure socialism.

    We be such good folk that we all do everything for free.

    If only Congress would outlaw evil money, everyone would be happy.

    /off sarc

  3. 14

    “Using recent advances in behavioral economics, psychology, and business-management studies, it is now possible to show that there are natural and intrinsic motivations that will cause college level teaching and research to flourish even in the absence of externally supplied rewards, such as salaries and benefits for professors

  4. 12

    So “immediate implementation” means “whenever we get around to it.” I mean, to go so far as to publish this in the Federal Register and then say that you won’t get around to it until May is pretty irresponsible. I have a client who has done accelerated examination (which is a torture for the attorney) and was debating over whether to do it again and now is gung ho for priority 1.

    Now I have to tell him to wait a few months- or I get to do another accelerated examination support document which is as much fun as root canal…

  5. 11

    That was exactly what I was thinking Broje. But I doubt we’ll shut down. They’ll do those continuing resolution things that make us just keep having our old budget. They did the same thing last shut down iirc.

  6. 9

    Does anybody know what the USPTO would do if there was a government shutdown on March 4th? They worked straight through the ’95 occurrence, but the funding situation isn’t the same anymore…

  7. 8

    ” Eric Johnson, Professor of Law at UND has released a draft of his article: Intellectual Property’s Great Fallacy. In the article, Prof. Johnson attempts to explain why, except for some specific circumstances, patents and copyrights are completely unnecessary. “Using recent advances in behavioral economics, psychology, and business-management studies, it is now possible to show that there are natural and intrinsic motivations that will cause technology and the arts to flourish even in the absence of externally supplied rewards, such as copyrights and patents.” ”

    Yes, they will flourish, but as to how much disclosure we’d have… well, that is another story.

  8. 7

    Academics like the above author should do some research into, for example, what kind of sad, impoverished and often pathetically shortend lives even famous talented musicians and authors led before there was effective copyright protection, i.e., before the 19th Century.* [There is better documentation for that than for inventors who could not get their inventions commercialized.]

    *[Not to support the presently greatly extended copyright term lengths.]

  9. 6

    Patents and copyrights are definitely not needed for creation

    They are needed in some fields, where creation is expensive and copying is cheap. Without pharmaceutical patents, there would be a very strong economic disincentive to develop any new drugs ever, to the point that even skilled people who desperately wanted to would never be able to.

    Everyone wants to be the next aerosol can guy.

    That’s probably a big part of it. Patents let everybody dream that they might someday get rich if they buy a ticket. The important detail that they forget, and that we all forget when we talk about capitalism, is that the system is designed for all to try but very few to succeed. Primarily because success is measured by how much better you have it than the guy who didn’t bother trying at all.

    Still, the system thrives on creativity, ambition and hope, so all that is probably a good thing on balance even if (as it happens) very few individuals actually bother applying for or enforcing patent rights.

  10. 4

    More precisely get a document, that allows you to get paid without fear of competitors ripping you off.

  11. 3

    These aren’t new arguments. Patents and copyrights are definitely not needed for creation and that was not their historical purpose. However, overall, I still believe it’s the simplest motivator. Create something, share the technology, and get paid. Everyone wants to be the next aerosol can guy.

  12. 2

    Lack of copyrights & patents would just leave things like trade secrets to protect IP. Without such protections, why would anyone invest in the research when they could just invest in the reverse-engineering & copying as done by China?

    MVS

  13. 1

    Eric Johnson’s insight into the mismatch between why copyright and patent began and the way we justify them today makes me wonder what other laws we take for granted have an after the fact justification for existence.

    I think a better justification (but still ex post facto) is not so much motivation to be creative but motivation to invest in other people’s creative achievements so they can be enjoyed by all. It’s harder to raise money for building a big business without patent protection.

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