Are Patent Attorneys Overpaid?

In his list of the 10-most-overpaid-jobs, Money Magazine’s Rick Newman includes the following:

Patent attorney ($170,000). We tend to think of patents as the breakthrough insights of revolutionary inventors, but they’re increasingly a form of warfare among corporations seeking to prevent each other from gaining a technology edge. The lawyers who fight those battles are among the highest-paid professionals PayScale surveys.

http://money.usnews.com/money/careers/articles/2013/03/21/the-10-most-overpaid-jobs

Oddly, Newman’s reported average of salary of $170k is well above that actually reported by his cited PayScale results.

384 thoughts on “Are Patent Attorneys Overpaid?

  1. 383

    Ned said: ” The integration must modify the otherwise eligible process to produce a new result. If it does not, it is not integrated.”

    Hey Ned:

    When are you going to provide the exact quote from the Supreme Court that says, “integration must modify the otherwise eligible process to produce a new result. If it does not, it is not integrated.” ????????

    Oh that’s right.

    You can’t provide that quote.

    You can’t provide any cites whatsoever because the Court never held such and therefore the cites do not exist!!

    But you will never admit that because you are too intellectually dishonest and busy shilling and trying to weasel the MoT into every 101 related discussion that comes up on the blog.

    But I will give you a quote:

    ““In Diehr, the overall process was patent eligible because of the way the additional steps of the process “integrated” the equation into the process as a whole. 450 U. S., at 187. These additional steps transformed the process into an inventive application of the formula.” ) MAYO COLLABORATIVE SERVICES, DBA MAYO MEDICAL LABORATORIES, ET AL. v. PROMETHEUS LABORATORIES, INC. (Emphasis Added)

    Did you get that Ned?

    The Court said ““integrated” the equation into the process as a whole”

    “AS A WHOLE”

    Not into the MoT

    Not into any modifications or transformations.

    Not into any sub processes of any kind.

    The Court says you must consider “the process as a whole” NOT into any “otherwise eligible” process as a whole.”

    You can ignore it.

    You can run and hide from it.

    You can call me names and say I don’t know what I am talking about all day long.

    But you can’t change the plain and unambiguous words of the Supreme Court of the United States of America!!!!

    DEAL WITH IT!

  2. 381

    101 Integration Expert 101 Said @ Mar 26, 2013 at 07:46 PM: “I do believe you implied the MoT was still “the’ test and thus in effect required by your post at Mar 26, 2013 at 11:00 AM. If you now want to retract or correct that then please do so explicitly and unequivocally so there is no future misunderstanding.”

    Ned Heller said: ( Nothing )

    101 Integration Expert 101 Said @ Mar 26, 2013 at 07:46 PM: “And I have not misstated the holding in Diehr. If you insist on that point of view please quote my misstatement and then state the actual holding from Diehr that is different. Other wise please explicitly and unequivocally retract that statement of yours as well.” Thank You

    Ned Heller said: “101, I have repeatedly quoted you the holding of Diehr. It includes the MOT, but as an example of a patent eligible process into which the math was integrated.”

    101 Integration Expert: Let the record show that you

    1. FAILED to quote my alleged misstatement statement of the holding of Diehr.

    2. FAILED to state the actual holding from Diehr that is different from my alleged misstatement of that holding.

    3. FAILED to explicitly and unequivocally retract the allegations as requested.

    Now, that the Court explained that Diehr’s process involved a transformation of the type from the iron age, and that iron age transformations are of course traditional patent eligible processes, was not a holding in the Diehr case because the question was never in dispute by either party. Equally important such discussion by the Court does nothing to exalt iron age transformations to any status above any other transformational processes for 101 statutory purposes. In short, there is no Court sanctioned MoT requirement and no MoT “special” significance. And once again, the math equation in Diehr was “integrated” into the process “as a whole”, not into a limited sub process of molding. Note the emphasis on “as a whole”. The fact that you can’t overcome the above argument, or even acknowledge ” as a whole” goes to demonstrate the weakness of your position.

    Ned Heller said: “Your summary of the integration paradigm indicates that you do not fully understand it.”

    101 Integration Expert: Isn’t that like telling Albert Einstein he does not fully understand the special theory of relativity? Certainly one can challenge Einstein on his theories, as well as myself on Integration, but you need to do more than in effect shout, “you don’t know what you are talking about!” To be a creditable challenger you need to reply with facts, logic, and in our case, the law.

    Ned Heller said: “The integration must modify the otherwise eligible process to produce a new result. If it does not, it is not integrated.”

    101 Integration Expert: What you said is conclusory and pure and utter conjecture. The Supreme Court has never said such. Let me break down and correct the false conclusions from your statement.

    1. Integration is not required to modify or transform any process.

    2. Processes need not produce a new result to be eligible.

    It is apparent from your gross legal errors that it is you that do not fully understand the Courts use of “Integration” in 101 jurisprudence.

  3. 380

    You don’t even know what the facts are in Alappat, for example.

    Wrong.

    Seriously Ned, we have gone over the case like a thousand times. And now you want to play with third-grade style accusations…?

    Your lack of intellectual honesty is as glaring as the beat down you are getting in our debate.

  4. 379

    Ned,

    You really don’t get anything about software, do you?

    You really don’t get that the protections afforded by copyright and patent are different, do you?

    I’ve posted on this lesson previously – you will have to search on your own for it.

  5. 378

    Not uncomfortable at all.

    And that’s not “my pet 101 theory” by the way.

    Of course, if you weren’t busy trolling, you would be up on the Supreme Court case. Which reminds me, are you finishing running away from the Supreme Court case that you needed to figure out (and self-defeat) or admit your incompetence with patent law?

  6. 376

    Actually, no. Not quite NYC or LA, but not Colorado Springs either. But the further out the better!!

    I agree with your initial assessment of the low numbers. I’ve never seen anything like the median plus numbers for anything except in house and partners though.

  7. 374

    What has software to do with a machine?  You were talking about it being copyrightable.  All that requires is something readable.

     
    Sent from Windows Mail
     

  8. 373

    A plant is found in nature.   It has the patented gene.  Tell me why that plant does not invalidate a plant patent directed to that DNA if finding a plant in nature is all that it takes to invalidate. 
     
    Please.

     
     
     

  9. 372

    Yeah, sure.  You don’t even know what the facts are in Alappat, for example.  Neither do you know what the issue were.  For these reasons, you have no idea what the holding was.

     
     
     

  10. 371

    (sigh)

    “Configured to” is structure.

    LOL – remember that admission? That is all that is needed to be recited in the claims Malcolm.

    Anything else?

  11. 370

    Another vacuous comment

    Not at all, anon. Just applying your pet 101 theory to the real world. What’s the matter? Are you uncomfortable with the result?

  12. 369

    the lines of code are the counterparts of the cogs and gears of older arts, or more to the point, the counterparts of the transistors, diodes, resistors, capacitors and inductors that they are replacing.

    If the lines of code were “counterparts” of the new cogs and gears of machine claims, the lines of code would be recited in the claim, just as those new cogs and gears are.

    So much for “understanding”, Alun. Anything else?

  13. 368

    No Ned,

    I really like to show how absurd your positions are.

    All of my points stand. You have nothing.

    Well, you do have persistence at least. But that without any valid legal points just will not carry the day.

  14. 367

    Ned,

    It is your agendas “all over the place” that have been exposed.

    MoT is a clue. Nothing more. It cannot be a test when it is neither necessary nor sufficient. You cannot avoid what the Court has actually said.

    The canard that you spout in Point of Novelty is separate, but no less bogus.

    The beat does in fact go on. Are you not tired of being beaten?

  15. 366

    My cites are fully in context and are compeltely accurate.

    If not, you are welcome to show precisely how they are not.

    You will not because you cannot.

  16. 365

    I have answered you completely.

    And you know it.

    The slipperiness is all in your mind.

    It may be pertinent for you to address another word that you avoid at this point: ANTHROPOMORPHICATION.

    Machines do not have minds. Machines do not think. There is no ‘slipperiness’ in machines.

  17. 364

    It is very slippery, and you know it.

    Oh, then it’s also equivalent to wetware.

    I assume that makes everything perfectly clear?

  18. 363

    Ned,

    You are conflating the “found in” aspect.

    See the case concerning the control of nature to produce a certain result (cultured pearls). If people do in fact find the item of Monsanto truly in nature (as in from nature), then we have a different case from that which you are attempting to portray.

    Sorry, but I am FAR more knowledgeable than you in this area of law. Your attempts at semantics will not work. You will not prevail.

  19. 360

    I stand here with scales in hand (and the Heller side of the scales measuring his legal arguments remaining empty), a blindfold on to prevent any taint of the timing argument from 102/103 being infused into the 101 exceptions, and a sword, bloody from the decapitation of Ned Heller.

    (overheard from Lady Justice)

  20. 359

      That software may be a component of a machine does not tell us what software is at all.  It is almost as if I asked you to define what a dog is,   and your definition of a dog is that it is an animal.

     
    Sent from Windows Mail
     

  21. 358

     anon, I am pretty sure that funk brothers did not involve a product of nature exception.  The Supreme Court said it involved a law of nature exception.

     
    Sent from Windows Mail
     

  22. 356

     anon, you have agendas all over the place from denying the MOT as a valid test, from denying that point of novelty is relevant to 101 and 112 issues, from denying that the first thing you one does in determining obviousness is to determine the differences between the claimed subject matter and the prior art, and the beat goes on.

     
    Sent from Windows Mail
     

  23. 355

      Anon, one of the problems we're having is that it is dicta and is not well thought out.  Well thought out comes when an issue has been litigated and fully developed,   with each side is making pro and con arguments.
     
    In Chakrabarty, the issue on appeal was whether living bacteria was patentable subject matter.  A so-called law of nature exception was not at issue on appeal.

     
    Sent from Windows Mail
     

  24. 354

    anon, so if a patented plan is found in nature it does not make any difference, according to you, whether is found in nature before or after the date of the invention.
     
    So how is it that Monsanto's patented plants are eligible once the plants are exposed nature and a spread into the wild?  Certainly people are going to find the patented plant in nature.  If that's all that is required, according to you, then no sexually reproducible plants is patentable.
     
    I don't think you meant that, but I it is the right answer regardless.

     
     
     

  25. 353

    101, I have repeatedly quoted you the holding of Diehr.  It includes the MOT, but as an example of a patent eligible process into which the math was integrated.

     
    Your summary of the integration paradigm indicates that you do not fully understand it.  The integration must modify the otherwise eligible process to produce a new result.  If it does not, it is not integrated.
     

  26. 352

    It is a basic fact that software is equivalent to firmware and is equivalent to hardware.

    No amount of spin can change that fact.

  27. 350

    I think the numbers are on the low side for Washington DC. IME, most firms seem to work on the basis that the highest paid agent should get less than the lowest paid attorney. I am a patent agent at about that point (can’t get more without a JD), and I get a lot more than the low end of this scale, which actually looks about right for an entry level patent agent in Washington OR an entry level patent attorney somewhere way out in the boondocks.

  28. 349

    Or to put it another way, once we can realise everything on a general purpose computer, varying only the code, you wouldn’t want any more patents to issue in the electrical arts. That is the giant flaw behind the PoV that software shouldn’t be patentable. I have seen so much hardware replaced by software in my lifetime, and see no end to it.

  29. 348

    You don’t seem to understand what you call computer-implemented j_nk. If you did you’d realise that the lines of code are the counterparts of the cogs and gears of older arts, or more to the point, the counterparts of the transistors, diodes, resistors, capacitors and inductors that they are replacing.

  30. 347

    ” have a housekeeper in the servants wing and talk about how hard it is to find good help”

    I have one in my apt and I’m just an examiner. AND GOOD GO D is it hard to find good help. Although the fact that I don’t pay them a salary probably doesn’t help in the search.

  31. 346

    Anon it seems like you are asking me to believe that a failed, or non functioning process is the same as or equivalent to a functioning process.

    Is that your position?

    I do believe there is a difference that is not rooted in mere circular logic, especially for patent law purposes.

    But first I want to make sure I understand you correctly.

    Oh and I understand your battles with Ned Heller and urge you to not blind yourself to our discussion with any topics going on between the two of you.

    Let’s just figure this one out together.

  32. 345

    Asked and answered.

    101 does not have a time aspect that you and Malcolm wish to impart to it. See Prometheus. See Chakrabarty.

    Please tell me that you are not resting your hopes on being saved in this discussion on anything Malcolm says.

    (sigh) well, I did say that Ned might choose the weak derailment option.

  33. 344

    As I said Ned, the examples are illustrative.

    Why are you having so much difficulty with this? The more you struggle, the clearer it is that you struggle in vain.

    It is exceedingly clear that you realize that you are losing this debate.

    Your options are dwindling. You can accept the plain truth as I provide or (weakly) attempt to derail the conversation. If you persist in even a slight modicum of legal reasoning, you must acquiesce to my superior position.

    This is (yet another) Kobayashi Maru for you.

  34. 343

    101,

    Here, there is nothing Ned can do, as clearly Ned is wrong and is merely pursuing his agenda.

    He has been exposed. I fully expect him to attempt to derail the conversation. He refuses to grow up.

  35. 342

    I think not, Ned.

    As I have shown, you are on an agenda with MoT. You always have been, trying (vainly) to somehow have it survive at the level of importance that you grew up understanding it to have.

    Time to grow up Ned.

    Let go. Accept reality.

  36. 341

    No Ned, I cite the Supreme Court in both Bilski and Prometheus.

    What you do is run from the truth because it destroys your agenda to misuse MoT.

    My post is true and accurate. You simply cannot show otherwise.

    Swallow.

  37. 340

    101,

    I urge you not to follow the path of Ned Heller and engage in circular definitions that suit your needs.

    I unerstand you want to believe that a process must function, but that is just not so.

    The real world has way too many examples of failed processes to fit that cribbed definition.

    All you are doing is asking me to believe that if I travel in a circle, I will end up travelingin a circle.

    Sorry. No.

  38. 338

    You are wrong.

    An aggregation is merely SC “codespeak” so they could attempt to bend the law and rewrite it.

    That simply does not change what it actually is.

    A rose by any other name would smell as sweet.

    I advise you not to try playing semantics with me. You will not prevail.

  39. 337

    Ned said : “In Diehr, the math was integrated into the molding process. In Prometheus, the correlation was not.”

    Just a couple of more points of clarification on “Integration”. The math equation in Diehr was “integrated” into the process as a whole, not into a limited sub process of molding.

    And the Law of Nature in the form of a naturally occurring correlation in Prometheus was “integrated” in the process as a whole, however the claim as a whole still pre-empted the use of the naturally occurring correlation. For more in depth clarification please see my post @Mar 26, 2013 at 07:06 PM

  40. 336

    Wrong Ned – I do not consistently quote the dicta.

    i have explained that the rationale I used was in fact holding. It is holding because it is REQUIRED to defeat one of the arguments pressed by the government. If the government HAD WON on that point, the decision would have gone the other way. THAT IS THE DEFINITION OF HOLDING.

    Now, Ned, please stop your B$.

    Thanks.

  41. 335

    There you go again, purposefully miscontruing things.

    Basic set theory refresher needed for Ned Heller please.

    Components of machines can be many things. Each individual things is not necessarily any of the other things.

    That being said, it is well known in the art – and well accepted in the art – that software is indeed equivalent to firmware and is indeed equivalent to hardware.

    Your attempt at snark not only fails, Ned, it blows up in your face.

  42. 334

    Been there, don ethat.

    And you cannot be serious as to no knowing about copyrighting software.

    BE HONEST NED AND STOP THE B$.

  43. 333

    anon: “Just because you claim a process, does not mean the claim as written is necessarily (or inherently) integrated. It may not even make sense. ”

    If the claim does not make sense it’s not a process. I believe a process must function ( or as you say make sense) in order to be called a process. I believe this is implicit in the common meaning and definition of “process” at 100 (b). If you accept that point of view then a process claim is inherently integrated.

  44. 332

    I do believe you implied the MoT was still “the’ test and thus in effect required by your post at Mar 26, 2013 at 11:00 AM.

    If you now want to retract or correct that then please do so explicitly and unequivocally so there is no future misunderstanding.

    And I have not misstated the holding in Diehr. If you insist on that point of view please quote the my misstatement and then state the actual holding from Diehr that is different. Other wise please explicitly and unequivocally retract that statement of yours as well.

    Thank You

  45. 320

    Hello Ned:

    Please allow me to clear up some misconceptions you have about the doctrine of Integration as it has been defined by its application by the Court.

    1. The Court has never held, that ineligible subject matter, or any subject matter whatsoever is required to be “integrated” into any MoT process or test.

    2. The Court has never held that the first step of Integration is to dissect claims into eligible and ineligible subject matter then determine whether the ineligible subject matter is integrated into eligible subject matter.

    As explained @ Mar 26, 2013 at 02:16 PM, all process claims are inherently integrated, and therefore must be viewed as an inseparable whole, as mandated by Diehr. The Court has never overruled this legal mandate from the Diamond v. Diehr case.

    Where you may be confused is in the differences in the analysis between Flook, Diehr, and Prometheus, which exalted integration, and in effect , the claims as a whole mandate, from the Diehr case.

    Flook was a case that turned on the pre-emption of a mathematical formulae, which is a Court created Judicial exception. The additional steps to limit the formula to a particular technological environment did not add significant limitations to prevent the pre-empting of the formulae. This analysis was labeled post solution activity, now referred to as extra solution activity by the Court. Extra solution activity has only been used by the Supreme Court when there is a question of whether a Court created judicial exception, such as a Law of Nature, or mathematical formula is being pre-empted.

    In the Diehr case that followed Flook, the dissent, notably lead by Justice Steven’s sought to elevate extra solution activity to the point of dissection. His approach would have ripped the claims apart and in effect eviscerated patent law. However, the Majority ruled that the claims must be considered as a whole, in effect the claims were “integrated” and could not be dissected. In that case “extra solution” activity analysis was not even required because the claims did not attempt to pre-empt the mathematical formulae itself.

    Prometheus reconciled the two cases by explaining that, “the basic mathematical equation, like a law of nature, was not patentable. But it ( Diehr Court) found the overall process patent eligible because of the way the additional steps of the process “integrated” the equation into the process as a whole. …. And so the patentees did not “seek to pre-empt the use of [the] equation,” but sought “only to foreclose from others the use of that equation in conjunction with all of the other steps in their claimed process.” ( Emphasis added)

    Prometheus applied extra solution activity analysis because the claims, like Flook and Diehr, had a Court created exception, in this case a bare Law of Nature ( LoN) in the form of a naturally occurring correlation. The Court determined that the claims did pre-empt the LoN, and where therefore invalid at 101. The Court did compare Prometheus claims with Flook and Diehr so in a sense there was a comparative analysis to integration. However the actual claim analysis in Prometheus was “extra solution activity” which only occurs when a claim begins with,

    1. A bare Court created judicial exception, (derived implicitly from the Congressional Statute of 101) or

    2. The first element of the claim is a bare Court created judicial exception (derived implicitly from the Congressional Statute of 101) followed by additional steps or claims that apply the judicial exception.

    What the Prometheus Court contributed to the 101 line of analysis was if the exception is limited enough to not preempt, it has what the Court characterized as an “inventive application”. The Prometheus claims of course did not achieve this effect or designation and thus were denied. However, Prometheus claims were “ inherently integrated” as are all process claims, and in the concluding analysis considered as a whole.

  46. 319

    if it exists, extend beyond minerals and plants cited by Chakrabarty?

    Of course. The quote from Chakrabarty was illustrative and by no means the ends of what is covered. The quote spans very simple structures (how much simpler can you get than crystal latticies?) to complex (a living thing is pretty complex). And of course, minerals can very much be made. It is quite ridiculous for you to say otherwise. Likewise with plants, (and other living things). And no, the problem is not how you want to shoehorn it into this conversation (how to make). That’s a bogus red herring. The problem is quite clear from the words of the Court, and you yourself have used them (and IN FACT is the very point of initiation of this topic on this thread).

    Time to stop running away from what I am telling you Ned. Time to stop and listen. Time to accept the plain truth I share with you.

    Time to be honest with yourself.

    You will thank me (someday)(again).

  47. 318

    Ned,

    It is not I that is waging a war (or crusade, if you will).

    I recognize fully what MoT is: a clue.

    I also recognize fully what the Supreme Court has said about MoT:

    Bilski: MoT not required
    Prometheus: Mot not sufficient.

    Please commit this to memory.

    Why are you fighting this? It is a losing and hopeless battle for you. Accept what the Court has said. Let your Crusade end.

  48. 317

    If software is like a recipe

    Ned.

    repeat after me:

    exception to the printed matter doctriine.

    Now.

    PLEASE STOP YOUR B$.

    Thanks.

  49. 316

    (sigh)

    You need to read what I actually wrote ned: Funk involved a new aggregation or micture or composition.

    Sorry. You lose.

  50. 315

    You many times have told me that the dicta in Alappat is its holding

    Wrong Ned – you have that backwards. It is you that do not understand the holding and it is you that calls it dicta.

    Would you like another round on the Merry-go-round?

  51. 314

    Already done Ned: a machine component.

    Why are you having such difficulty understanding this?

  52. 312

    does it extent to recipes found in a book

    More dust kicking Ned.

    Are you seriously saying that you do not know what the exceptions to the printed matter doctrine are?

    Honestly?

    Yes or no, Ned.

    Time for you to stop your little games and act like you want to actually have a conversation. Even Malcolm has admitted he understands controlling law on this matter. Or you more ignorant than Malcolm? More intellectually dishonest?

  53. 311

    I daresay that you are kicking up a lot of dust, Ned.

    Can you get a copyright on software? Yes or no.
    Can you get a patent on software (and yes, I include beauregard claims in this category)? Yes or no.

    Sorry, what was that Ned?

    Didn’t hear you. Speak up son.

  54. 309

    If software is like a recipe, then cookbooks are eligible for patenting because the recipes they describe are patentable processes. But you would say that software is eligible but a cookbook is not. This is not a consistent position.

  55. 307

    You haven't told me at all what the holding of Alappat was, anon. You many times have told me that the dicta in Alappat is its holding. In that you are consistent.

  56. 305

    anon, I don't know what you mean by software. I have describe how a computer operates. I have describe its instructions located in program memory. They have a sequence and order. But I daresay you do not think such instructions so located for execution in program memory comprise software.

  57. 304

    No one – especially me – ever said Diehr was overruled Ned.

    The rest of your post at 5:15 is vastly inferior to my post at 11:54 (which you are STILL misapplying).

    Bilski: MoT not required
    Prometheus: Mot not sufficient.

    Please commit this to memory.

  58. 303

    Therefore, when specifically talking about a “process claim” it is entirely appropriate to describe the claim as “inherently integrated”, even if the claim is not inherently statutory or patentable.

    Sorry 101, but the answer is still “NO.”

    Just because you claim a process, does not mean the claim as written is necessarily (or inherently) integrated. It may not even make sense. For a pedestrian example, please consider:

    A process, comprising
    taking two eggs,
    riding a bicycle,
    boiling a kettle of fish,
    trimming the nosehairs of Ned Heller, and
    feeding horses.

    Now, that’s not to say that constructed processes can easily be integrated – but that’s a different kettle of fish. And this has nothing at all to do with how you are to evaluate claims. It is just a comment that your statement went too far.

  59. 302

    There is absolutely nothing self contradictory about my comments.

    Please explain – and be specific.

    Or are you just trying to derail the conversation (again).

Comments are closed.