53 thoughts on “The Patent Song (Musically Calling for More Reform)

  1. 53

    Beaker, you have obviously never had a real job, people that invest money in a start-up want to see proof that it has something of value. It often takes years for a start-up to become profitable, and people need to eat until that happens, which is why start-ups need investors. Go back to your government job, or to posting your open source bug fixes in your mother’s basement, whatever you do with your time.

  2. 51

    Open source types like these are working as patent examiners, there are some primary examiners with less issued patents than fingers. I’ve seen too many start up clients fail because they couldn’t get a patent, because the patent examiner thought that his/her job is to reject patents and not to issue them. It would not surprise me if this was made by examiners at the PTO on the clock.

  3. 50

    Dont forget the concept of indegent filing fees waver and issue fees waver in marketable patent cases only to insure underprivelaged rights. Making payments to uspto is a viable plan to start up small business. Were at a critical incentive to create chrises with a disconcerned congress regressing reform instead of progressive reform IP capitol is at the lowest levels ever with the investors not getting behind the correct inventorship title and the correct concievers not producing only to have their IP stolen as usual

  4. 49

    Post grant revieve cases ive got about 40 infringed patents cases for contingent attorneys paralegals or trolls all have products in production is there an attorney in the house

  5. 48

    Dont forget about minimum 15% of profits for the original conciever and 5% at signing cash otherwise the will never get started in patent creation and marketable business startups and the system and human advancement and jobs go bust like there doing now because of the 40 methods to cheat the inventor at present

  6. 47

    Edison was the murdering thief of the worlds only inventor Isiah Roberts in a murder theft tag team with Carnegie wile on the run from murder warrents in Ohio. He then squandered and stole all the estate money by adopting my grandfather Delbert Roberts the worlds next only inventor then dumping him on other relatives.Tesla never invented anything marketable and Bell never invented anything I invented the telephone in 1955 with my invention of the ring and buzz childs toy telephone at my other invention the dept. store Hudsons downtown detroit.Yhe moral of the story is whereever money is corruption is and justice is always reversed to work against the intrests of justice the aia is another fine example or corruption at work

  7. 46

    They need to establish a indegent inventors assistance program for marketable inventions to hire paperworkers or attorneys or paralegals from the extra money being collected from fee increases. indegents cant even get started there snuffed out buy the inter office corruption stalling the whole system.

  8. 45

    They should be singing atop the uspto interoffice indegent ripoffs of original concievers patents and issuances of infringing pirated fat cats patents

  9. 44

    This article is propiganda by big business who want to crush independant inventors out of business by disallowing trolls who are actually patent patrollers giving the indegent inventor a method of monitizing his patents when the big boys only want to steal them and over spend him in litigation

  10. 43

    Tesla and Edison and Bell were non inventors at all.The moral of our patent system is reward the thieves and regress the incentive to create marketable invention for true concievers until they finally quit trying

  11. 42

    It’s just an expression, gramps

    It’s just an inappropriate expression – and one that Prof Crouch has made known doesn’t belong on the new Patently-O (even if he appears to not to care to enforce what he has stated).

    Is it that hard for you to act like a professional?

  12. 41

    That was actually painful to listen to. Haven’t these folks heard of autotune? And yes, the subject matter was just as off-key and painful as the “singing.”

  13. 40

    Remedies for abuse?

    We have malicious prosecution. But if anyone has the right to file an opposition or for a reexamination, and the PTO has the discretion to order one or not depending on the evidence, then it is hard to say that a particular proceeding is malicious.

    I don’t think, outside the antitrust laws, that there is a remedy for big companies to use legitimate means for ulterior illegitimate purposes. Thus, there would have to a pattern of abuse that amounts to an antitrust violation.

    Netscape was once a victim of MS — but they also use illegitimate means. Had MS means been entirely legitimate, then MS may have gotten away with crushing Netscape.

  14. 39

    IANAE: Now, the latest brilliant scheme is to make licensing or purchasing the garage inventor’s patent essentially a taxable event, possibly up to thousands of dollars per patent.

    I don’t quite get it. How does the US IRS usually treat proceeds from patents?

    Some of the places I know of treat royalty payments similar to interest, and sales as a capital gain. Double taxation agreement address this topic, and countries can levy a withholding tax on license fees paid to foreign patent holders.

    Some countries do have provisions favoring patent transactions, which I suspect may have been designed to facilitate revenue transfers between multinational subsidiaries…

  15. 38

    There is nothing wrong with granting all patent requests because the free market will weed the trash out automaticaly.Clasifying the patents is the clue we need to avoid excess clutter. Designations such as marketable or unmarketable will seperate out the trash. We need to grant all patents presently deemed obvious because its a detriment to human advancement to deny them and discourage filing and a fraud against the inventor to allow the usage after rejection to the manufacture requesting obviousness retraction

  16. 37

    “Why are we capitalizing Entrepreneur, by the way?”

    For the same reason we capitalize ” Actual Inventor”.

    By the way, we do not need a new check box. We just need to make sure that processes that are beneficial to business and industry are given the same presumptive patent eligibility, as a machine, composition of matter, and article of manufacture.

    Then you will see a spike in innovation, new patents, and the inevitable creation of new jobs.

  17. 36

    But Leopold, if you truly understand history you would recognize that you have to be pro-patent biased. The only alternative is being wrong.


  18. 35

    How about if we only charge the fee-tops for those patents that aren’t issued to new Entrepreneurs?

    You mean only charge it to people who want to license out or sell their patents to large entities? Yeah, I think I could be on board with that.

  19. 33

    How about if we only charge the fee-tops for those patents that aren’t issued to new Entrepreneurs?

  20. 31

    I agree that this would work

    Nobody is disputing that it could be implemented, and generally the honor system (plus threat of unenforceability) is sufficient for enforcement.

    My point, which I apparently have to draw a picture of, is that everybody complains about how unfair the AIA is to the poor garage inventor with no capital who is just trying to make a buck. Now, the latest brilliant scheme is to make licensing or purchasing the garage inventor’s patent essentially a taxable event, possibly up to thousands of dollars per patent.

    Not to mention that such fee top-ups are not necessary to cover the PTO’s operating expenses because large entity fees are set accordingly, and it’s completely nonsensical to retroactively revoke a discount eligibility that was valid at the time the payment was made. We don’t go billing recent graduates for all the student discounts they took advantage of over the years but are no longer entitled to, do we? Charge the former McDonald’s cashier for all the free or discount food she’s enjoyed over the years?

    It’s a pointless transaction cost at the expense of people who can least afford it, which is why the discount exists for their benefit in the first place. It will cost them licenses and sales, and it will force them to license/sell below market rates to absorb the difference in cost, because why would a for-profit large entity buyer pay a total price of more than the patent is worth to him? Not to mention that it will add risk to any purchaser of such patents, and it will require any purchaser of any patents to take more time (at several hundred dollars per hour) to check the entity size of all the fees ever paid on any patent it wishes to purchase or license from anybody, just in case.

  21. 30

    Anon, I agree that this would work – it would essentially be a deferred payment scheme. At the time of transaction, the small-entity-owned patents would be worth a bit less because they have back-taxes due. Simple calculation and the only problem is enforcement, which is currently done with threat of unenforceability.

  22. 29

    Maybe they meant “less” as in weaker or smaller. As in — “According to the jury, the value of Samsung’s patents is less than the value of Apple’s patents.”

  23. 28

    And you are so “adept” at trying to make a poor that is not there. Plain and simple, your “counter” of impact on alienability does not fly. How can I miss what is not there?

    But you never seem to tire of your attempts at trolling.

  24. 27

    anon, you’re so adept and consistent at missing the point that it’s hard to believe you don’t put conscious effort into it.

  25. 26

    We could be more thankful if such comments were simply omitted (or deleted), as they add nothing of substance to the discussion, and only smack of personal feelings that have no place on the new Patently-O.

  26. 25

    The cost would be borne by the large entity for its ownership of property that was previously charged in a way that reflected ownership by a non-large entity.

    There is no impact to the concept of alienability by simply equalizing the asset cost if the basis for the discount no longer applies.

    If you are going to attempt to troll me you might want to put some thought into your comments first. That way, you might be adding something of substance to the thread (per the new Patently-O posting guidelines).


  27. 22

    Please keep us up to date on your gastrological condition. We can only be thankful we are not in the same room as you.

  28. 21

    Great comment, Red Monkey.

    Often, I don’t agree with prescriptive grammar rules, but in this case, we the distinction between less and fewer should be preserved.

  29. 20

    I would have no problem with a “pay-up” doctrine that anytime a large entity obtains a patent right that has had only small (or micro) fees paid, that there should be a “pay-up” by the large entity of the difference in costs.

    You would impose an extra transaction cost every time a small entity sells or licenses a patent? Don’t we still believe in alienability of property in this country?

  30. 19

    Shouldn’t the Office just concern itself with the merits of the application and not worry about who owns the resultant patent?

    After all, we still believe in alienability of property in this country, right?

    (and yes, I “get” the small and micro entity discounts, but I would have no problem with a “pay-up” doctrine that anytime a large entity obtains a patent right that has had only small (or micro) fees paid, that there should be a “pay-up” by the large entity of the difference in costs. Logisitics on this might be problematic, but I do not see a problem with the concept)

  31. 18

    They should put a check box for that on the Application Data Sheet, so that the PTO can more easily identify those new Entrepreneurs.

    Why are we capitalizing Entrepreneur, by the way?

  32. 16

    The bug analogy is apt, but if PTO reviews are like a fly swatter for the small guy’s patent then litigation is like a sledge hammer. It is obviously an advantage to have deeper pockets in many situations.

    As for abuse, you’re right, but what systems can’t be abused?

    The question is how best to deal with abuse. Aren’t there are remedies available against those that abuse the system?

  33. 14

    Anon, those good folks, having read Rousseau and Marx, might also say that all private property is evil because it leads to inequality.

    They might go one step further and say that government is evil because it restrict our freedom and only leads to wars.

    We should exist, they would say, in that utopia envisioned by Jean-Jacques and Karl, where we all share.


    But, what if there were bullies?

  34. 13

    All IP laws need to be abolished. Read “Against Intellectual Monopoly” by Boldrin and Levine. IP laws are EVIL.

  35. 12


    Congress can lower the official fees ad nauseum, but when the small guy is swatted like a bug when he emerges from the PTO through unending oppositions and ex parte reviews that he cannot afford, they soon will stop trying.

    A system that can be abused, will be abused. That is a law of nature.

  36. 11

    Epilogue: the man of means acquired the remaining pieces of Small Fry’s patent portfolio for a song and a dance, and figured out a deal Big Business couldn’t ignore.

    Small Fry went back to being small fry.


    Once we could afford to obtain patents that would protect our inventions, but they no longer exist for us little guys.

    Tell me, according to you, when was that “once”?

  37. 10

    “Please mister, give me some gild that I might build the better mousetrap.” Mr. small fry inventor pleads.

    Replies the man of means, “But what is to prevent my friend there from copying your design after you, with my money, have established a market?”

    “But, mister, I don’t know what do. Once we could afford to obtain patents that would protect our inventions, but they no longer exist for us little guys. Big businesses oppose every patent that issues to us. We cannot afford expensive litigation before our businesses get off the ground. Most of us no longer even try to get patents.” Mr. small fry inventor explained. “Can you help out of the kindness of your heart?” he begged.

    “No.” replied the man of means. Do you think I am a fool?

  38. 9

    And perhaps we could stop issuing patents to anyone other than new entrepreneurs as well, right?

  39. 7

    Edison as a hero of the patent system?

    He was the one who invented the modern industrial lab, with salaried employees working of focused research, and an expansive patenting strategy. (He did quietly buy out a bothersome light bulb patent before it caused any trouble).

    In any case both Edison and his rival Tesla eventually lost their inventions to capital, which scooped up all patents in the emerging electrical power field, and managed to build on them nice little conglomerates.

    Another 19th century hero, Alexander Graham Bell, also obtained a flaky patent in dubious circumstances, which are now well documented. With that ill-acquired property capital was obtained and a vast monopoly was created.

    Moral? The patent system isn’t there to reward inventors, but to protect investors from competition.

  40. 6

    Since it remains a proven FACT on this blog that every patent granted to a new Entrepreneur creates at least one new job, we need MORE patents not less.

  41. 5

    Less has been used to refer to countables since at least 888, by no less a figure than King Alfred the Great in his own translation of a Latin text. The modern “rule” only dates to 1770 and is not very strongly reflected in actual usage.

  42. 2

    Haven’t listened to it yet, but I don’t expect much from people who use “less” when they should say “fewer”.

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