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. No new compositions were claimed

    Not exactly true Ned – the claimed “new” composition was a MIXTURE of existing nodules – an aggregation, as the Court termed it (derogatively).

    And yes, simply “plucking” something from nature does have its problems (but we both know that those problems have to do with you are effectively claiming from the weal, don’t we?)

  2. anon, you have never, not once, told us all what you are talking about. Define software.

    As to the printed matter doctrine exception, does it extent to recipes found in a book. The recipes are functional. But can one patent the book with the new recipe?

  3. I have told you many many many many times.

    Stop pretending Ned. The stench of intellectual dishonesty is ovepowering.

  4. Anon, does a product of nature exception, if it exists, extend beyond minerals and plants cited by Chakrabarty?

    Minerals cannot be made, only found. Plants cannot be made, only found. I can see the problem with claiming such. It has to do with the requirement to describe how to make the claimed composition.

  5. What about my answer makes you think I am trying to fool anyone, Ned.

    What is your definition of software? How does your definition of software stack up against the exceptions to the printed matter doctrine?

    You have (almost) managed to actually avoid a substantive discussion with your attempted derailment (the old, “I am so mad” routine is oh, so very stale).

  6. Diehr was not overruled.

    In Diehr, the math was integrated into the molding process. In Prometheus, the correlation was not.

    Bilski did not say that the MOT was not a test. Prometheus clarified Diehr.

  7. Funk was a law of nature case. No new compositions were claimed.

    However, I think the patent laws require one to describe how to make a composition. If one simply says, go mine it from the earth, or some such, I think there may be a problem.

  8. The words are STILL clear, distinct, unambiguous, and most definitely Ned is STILL trying to, but cannot ignore them.

  9. Been there, done that, Ned.

    What do you think is being discussed as the exception to the printed matter doctrine?

    Stop trying to be so coy, man. Even Malcolm has admitted to understanding the controlling law here.

  10. 101 Integration Expert said “Just remember that process claims in particular are inherently “integrated”.”

    anon said: “No, they are not.” Claims can be easily written that are not integrated, and the use of “inherently” is inapt.

    101 Integration Expert said: Thank you anon for the response. When one takes into consideration the ordinary, contemporary, common meaning of “integration” ; as [Diehr, at 182.] instructs us to do for all terms not otherwise defined, we know that “integration” consist of combining or coordinating separate elements so as to provide a harmonious, interrelated whole, organized or structured so that constituent units function cooperatively. Such are essential ingredients to every process, for without these intrinsic parts the process as a whole could not function.

    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.

    For example, the claims could be an inherently integrated mental process, or an inherently integrated math equation standing alone. Such subject matter is a Court decreed exception to statutory subject matter so those particular process claims would not be statutory despite their inherently integrated nature.

    Furthermore, even if the inherently integrated process claims were new and useful they still would not be statutory subject matter because of the Court created exceptions prohibiting pure mental processes and stand alone math equations as statutory subject matter.

    Now, as far as patentability is concerned it is also possible that an inherently integrated process claim may not be fully described and enabled by the specification so that one of ordinary skill in the art could understand and implement the steps. There may not be clear definitions or antecedent basis of the terms in the process claim, written in the specification so that one of ordinary skill in the art could understand or practice the process. Thus, the inherently integrated process claim could fail 112.

    Likewise the inherently integrated process claim as a whole could have been known, and described, and practiced before in this country or another and thus not be novel. Or the inherently integrated process claim when considered as a whole could be obvious in view of the prior art. In any of the above scenarios the inherently integrated process would not be patentable, but still the claim would be an inherently integrated process.

    That means the claims must be viewed as an “inseparable whole”. To view the claims any other way would require that which is “inherently integrated” to be artificially torn apart, or simply put, dissected. Dissection is expressly prohibited by the Court precisely because dissection is the antithesis of the inherency of integration.

  11. And also, bs on the whole AF’s returning routinely after 3 mo. Nobody around here is taking that big of a workflow hit that badly and the LIE’s aren’t routinely taking their time on AF’s either. I don’t even think I’ve ever see an AF take more than a week to hit my docket since it was filed. And it is very very rare that one goes over 10 days on my docket (or anyone else’s from the no’s that I’ve seen).

  12. “Why would I file an RCE before you respond to my amendment?”

    You just said you knew you were going to be out of town. Jes us. This isn’t rocket science. Either conduct an interview and get the examiner’s go ahead for an allowance, make sure he has plenty of time to respond with that allowance, or file the RCE, or else accept your horrendous workload after vaca without whining about it and telling us how hard it is. You stat deadline is set brosef, you must work around it, and if what you’ve been doing is less than ideal for you, then consider your alternatives. You can also notify your client that you need to have a response by x date in order to fully be able to handle an after final amendment since sometimes you like to be a human being. I’m just saying, you are needlessly complicating your life. There is absolutely no point (usually anyway) to pushing the stat deadline even though I hear a lot of you tolerate it to an absurd degree.

  13. Just imagine where we would be if there were patents when the wheel came about – the technological innovation that would have resulted to today if patents were invented much earlier in human history would have been absolutely astounding. We would be living on Mars right now. Without patents there is now incentive to create and innovate new technology. I hope the newly enacted patent laws will incentivize people to file many more patents – the more patenting we have, the more technological innovation we get: more patents = increased innovation + jobs and wealth creation. I feel so excited to be a part of this wonderful patent law system that we are so fortunate to have in America.

  14. The Supreme Court made it clear that the molding process was one of these kinds of processes because it passed the MOT.

    MoT reality check:

    Bilski: MoT not required
    Prometheus: Mot not sufficient.

    Ned, it is really easy to type this EVERY TIME you misapply the law as regards MoT.

    I suggest that you copy it and past it into all of your replies until you understand the significance of what the Supreme Court has said.

    Please.

    Thanks.

  15. Your statements in the contrary seem to imply

    My statements properly provide the (non-conflated) law of 101 separate from the law of 102.

    See Prometheus.

    It is your hubris that keeps you attempting to do things that the Supreme Court has directly shot down.

  16. where any court found unpatentable a composition of matter that was unknown at the time of its discovery

    Funk.

  17. And Ned, I have schooled you many times on exactly what that holding includes.

    Remember: a case can have more than one holding, and the holding includes those items that are necessary to defeat the argument raised against it.

    The merry-go-round continues with you.

  18.   101, Diehr found claimed subject matter eligible because the ineligible subject matter was integrated into other subject matter, a molding process, that the patent laws were designed to protect.  The Supreme Court made it clear that the molding process was one of these kinds of processes because it passed the MOT.
     
    It is critical therefore in integration analysis to first find underlying subject matter that is otherwise eligible for patenting because of its nature, because is of the kind of subject matter that the patent laws were designed to protect.  Passing MOT is an example.
     
    Once you find that underlying subject matter, you next determine whether the ineligible subject matter is integrated into it.
     
    I think, 101, when you talk about integration, you failed to consider the first step.

     
    Sent from Windows Mail
     

  19.   You talk about exceptions to the printed matter doctrine.  With respect to what?  You haven't even explained what it is that you're talking about.
     
    What is software?

     
    Sent from Windows Mail
     

  20.  anon, water is not patentable because it is known, not because it is ineligible subject matter.
     
    There has never been a case, ever, where any court found unpatentable a composition of matter that was unknown at the time of its discovery.

     
      Your statements in the contrary seem to imply that an unknown chemical is unpatentable on some other basis.
     
    A new, useful, composition of matter is per se patentable under 101.
     
     

  21. I wouldn’t say I was in flyover country, but it’s nice to live somewhere I can actually get around easily without having to sit on the beltway or at every single stop light on Rockville Pike.

    If you’re practicing patent prep and pros in Dogpatch Junction, Nebraska, then the salary range you quoted is probably pretty nice. The hours are terrible, but I found you can’t make a lot of money without putting in a lot of time at work. You gotta choose.

    If you’re making the salary range you mentioned and you’re working in DC/NY/Chicago/LA/SF/Boston/etc., you’re just plain crazy to work that many hours for that (relatively) little pay. Go work at the PTO, especially when the 3 new sattelite offices open and they’re hiring only experienced people.

  22. Just remember that process claims in particular are inherently “integrated”.

    No, they are not.

    Claims can be easily written that are not integrated, and the use of “inherently” is inapt.

  23. Hello Ned:

    And to offer you further clarification on “Integration”, the true purpose and significance of this important legal doctrine being referenced in Prometheus was to exalt “claims as a whole” over dissection, which is the stripping away and ignoring of steps or elements in the concluding analysis.

    As the Government attorney said during Alice Oral proceedings, the claims are to be viewed as an “inseparable whole”. That’s the doctrine of Integration in effect!

    It’s why the Prometheus Court explicitly stated after it’s extra solution activity analysis for preemption of a law of nature, that….

    ( 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 v. PROMETHEUS LABORATORIES, INC 566 U. S. (2012) 3 Syllabus] (Emphasis Added)

    Just remember that process claims in particular are inherently “integrated”.

    Claims as a whole is the law of the land.

    There is no dissection allowed ever.

  24. Is it anything like the controlling law concerning the exceptions to the printed matter doctrine that you attempt to conceal or disguise in your habitual rants against the patenting of software?

    Anything like that, you hypocrite?

  25. dissembling present participle of dis·sem·ble (Verb)

    Verb

    Conceal one’s true motives, feelings, or beliefs.
    Disguise or conceal (a feeling or intention).

    What is it that you think I am concealing or disguising Malcolm?

  26. then why is that you object to repatenting the statue

    The statue is not eligible for patenting in the first place. ( I already mentioned that since you don’t understand this, you cannot hope to understand the law of 101.

    Software, on the other hand can achieve different protections under each of copyright law and patent law, each for different aspects.

    I have been more than clear about this Ned.

    unchanged in any functional way

    Completely wrong Ned. You can even ask your pal Malcolm about the controlling law when it comes to the exceptions to the printed matter doctrine (at least he has openly admitted to understanding what the actual controlling law is in this regard.

    I also note that this is yet another thing that you constantly refuse to even acknowledge.

    Why is that?

    You have heard of this thing, right? You have heard of the exceptions to the printed matter doctrine, right?

    Cat got your tongue? Having a difficult time swallowing what the law actually is?

    I scoff at your intellectual dishonesty Ned. As should everyone.

  27. Anon,

    You misquote me and make me say something I do not think. I said “there may be a system that do not rely so heavily on free market”. The “so heavily” here is fundamental.

    “The system you ‘wish’ for that does not rely on ‘free market’ is inherently more skewed than one that does rely on free market.”
    So, you already know the characteristics of a system not yet defined. You have prescience ability, or you rely on unverifiable certitudes ?

    I see pure free market as something not so much better than a jungle’s law (please, note the “pure”) as it is totally alien to humanistic values and will not by itself set a tolerable society. Laws and morals are used to shape the societies we live in. Inherently, they skew free market. A pure free market is merely a philosophical concept, or an economic theory, but not something than we can see applied in the real world. So, we you exhort me to see the world as it is, it seems contradictory with the supporting the ideas that free market (i) rules the world and (ii) is the best ruler we can find.

    “a dream state doomed to failure and misery”
    OK, so that’s it. You’re the classical free market proponent, state adversary, and believer that everybody that does not fully back the idea that free market is an ideal are either naive dreamers that wish to enslave the free market believers in a coercive state doomed to fail. Of course, reality is with you and obviously supports your views. Sorry, a discussion limited to such binary alternatives as good and bad / realistic and dreamer and so on bore me. I guess this is as far we will go, at least on that topic.

  28. Ned,

    You realize of course that Alappat is very much still good (and controlling) law, right ? You realize that Alappat was EXPLICITLY recognized as such in the very first pertinent case AFTER the Supreme gave us the MoT-eviscerating Bilski decision, right?

    Just how many times must you be schooled on Alappat?

  29. Does water belong to the weal of all mankind?

    How about crystals though just discovered? How about living things, though just discovered?

    How about you recognize the timelessness of a true 101 exception and stop trying to squeeze the 101 square peg into the 102 round hole?

  30. Your thinking does not square with the law, Ned.

    You are ignoring the ruling in Bilski, and pulling this ‘presumption’ from some netherworld.

    Stop ignoring the law. Stop making up the law.

  31. We are full aware of your opinion Ned.

    The part that is amazing is that you think your opinion carries any weight whatsoever, since you steadfastly pick and choose only those words from the Supreme Court that you think you can twist to suit your agenda, and you refuse to even acknowledge all the other words.

    Your inability to be honest with the full record denies you any semblance of authority for your mere opinion.

  32. Again Ned you give me nothing to counter the actual words actually used by the Supreme Court.

    Nothing, Ned.

    It is difficult to imagine that you think you can carry the day with absolutely no legal support for your position whatsoever.

  33. 101, I never agreed with you that only Liberal Arts are excluded.

    I think that a process that passes the MOT is a process presumptively within the Useful Arts. If it does not pass, I think the presumption should be against eligibilty.

  34. I thought that I covered it with the “sometimes”. But yes, there are indeed great agents. Most have PHD’s and firm experience, but those aren’t the ones that I was referring to. Obviously.

  35. … and then there’s in-house, the third way that I hadn’t contemplated.

    In house is a good place to be; just not an option for me where I am in flyover country. (my part of flyover country anyway; most people who refer to it as flyover country really have no concept of just how big the world is and how little they are)

  36. Ned said: “101, a process that produces nothing within the useful arts is not a patentable process.”

    We have already established there are processes for liberal arts and processes useful arts and that processes for useful arts are patent eligible.

    Ned said: Price is abstract and is not within the useful arts.

    101 Integration Expert: Again, another conclusory statement. The concept of price is abstract, but the application of the concept of price is not abstract and therefore is within the useful arts.

  37. And yet you don’t seem to understand it – does that mean that MM is not even an amateur bird watcher?

  38. You mean a self taught agent as opposed to the 4 credit course in mixed IP law that law school will let you do without straying outside the sacred ABA syllabus? You protest too much.

  39. Ned: “According to you, 101, price is objective. But it is not physical.”

    First, when did I say this?

    Next, please do as I requested and show me one “thing” that is objective, that is also not physical.

    ::silence::

    Thank You Very Much

  40. Ned said: “101, is a claim to new mathematics a patentable process.”

    101 Integration Expert: No, because disembodied math is a Court created judicial exception which you already knew. So this statement/question is just a dishonest attempt to erect a strawman argument.

    Ned: Just how do you make 1 + 1 = 2?

    101 Integration Expert: There are an infinite number of ways to apply that math equation in the real world. And if new and useful all the applications would be inherently “integrated” and patent eligible. IIRC, I believe it was Judge Newman that argued in the Alice enbanc proceedings that a calculator would be one such application.

  41. 101, Flook is on point here, so is Mayo. An alarm limit is an number. It was useful, no doubt. But it was not enough to find the process of computing the alarm limit eligible.

    Prometheus' correlation was also a number as well. Useful, but not used.

  42. Listen, anon, until the SC holds a claim invalid because of a Product of Nature except, such an exception is not establish law.

    Chakrabarty decide the issue of whether living products were eligible.

  43. Wow!

    Anon you take the cake.

    Flook's alarm limit was just a number.

    Here, I quote the Supreme Court:

    "An "alarm limit" is a number." Parker v. Flook, 437 US 584 – Supreme Court 1978 at 585. link to scholar.google.com

    First, respondent incorrectly assumes that if a process application implements a principle in some specific fashion, it automatically falls within the patentable subject matter of § 101 and the substantive patentability of the particular process can then be determined by the conditions of §§ 102 and 103. This assumption is based on respondent's narrow reading of Benson, and is as untenable in the context of § 101 as it is in the context of that case. It would make the determination of patentable subject matter depend simply on the draftsman's art and would ill serve the principles underlying the prohibition against patents for "ideas" or phenomena of nature. The rule that the discovery of a law of nature cannot be patented rests, not on the notion that natural phenomena are not processes, but rather on the more fundamental understanding that they are not the kind of "discoveries" that the statute was enacted to protect.[15] The obligation to determine what type of discovery is sought to be patented must precede the determination of whether that discovery is, in fact, new or obvious.

    Second, respondent assumes that the fatal objection to his application is the fact that one of its components—the mathematical 594*594 formula—consists of unpatentable subject matter. In countering this supposed objection, respondent relies on opinions by the Court of Customs and Patent Appeals which reject the notion "that a claim may be dissected, the claim components searched in the prior art, and, if the only component found novel is outside the statutory classes of invention, the claim may be rejected under 35 U. S. C. § 101." In re Chatfield, 545 F. 2d 152, 158 (CCPA 1976).[16] Our approach to respondent's application is, however, not at all inconsistent with the view that a patent claim must be considered as a whole. Respondent's process is unpatentable under § 101, not because it contains a mathematical algorithm as one component, but because once that algorithm is assumed to be within the prior art, the application, considered as a whole, contains no patentable invention. Even though a phenomenon of nature or mathematical formula may be well known, an inventive application of the principle may be patented. Conversely, the discovery of such a phenomenon cannot support a patent unless there is some other inventive concept in its application.

    Here it is absolutely clear that respondent's application contains no claim of patentable invention. The chemical processes involved in catalytic conversion of hydrocarbons are well known, as are the practice of monitoring the chemical process variables, the use of alarm limits to trigger alarms, the notion that alarm limit values must be recomputed and readjusted, and the use of computers for "automatic monitoring-alarming."[17] Respondent's application simply provides a new and presumably better method for calculating alarm limit 595*595 values. If we assume that that method was also known, as we must under the reasoning in Morse, then respondent's claim is, in effect, comparable to a claim that the formula 2πr can be usefully applied in determining the circumference of a wheel.[18] As the Court of Customs and Patent Appeals has explained, "if a claim is directed essentially to a method of calculating, using a mathematical formula, even if the solution is for a specific purpose, the claimed method is nonstatutory." In re Richman, 563 F. 2d 1026, 1030 (1977).

  44. Ned: “101, “Everything that is physical is objective” does not mean that everything that is “objective” is physical.”

    Please show me one “thing” that is objective, that is also not physical?

    ::silence::

    And point prove.

  45. Anon, I find it interesting that you talk about Alappat in ways that are remarkably different from the ways that State Street Bank talks about Alappat. Yet Rich wrote both.

  46. anon:”Pure conclusory conjecture Ned.Your statement is empty and meaningless. You are assuming the very fact you must prove.”

    The master is still faster than the student. Or simply put, I owe you a coke!

  47. Anon, seriously. After all, it is you who constantly says that software is copyrightable, meaning that computer instructions written down so they can be perceived by a human, as defined by the copyright act, is what you mean by software.

    So, if you say that a book, a printout or some other readable media having different code is patentable because the code varies, then why is that you object to repatenting the statue if the image it portrays varies. The both cases, the book or other media, like the statue, remains in essence old, unchanged in any functional way from other books.

    But then you argue, the computer instructions are useful when in a computer, in executable form, thus the book containing the instruction is patentable.

    But this means that you could patent a cookbook because the recipes were useful.

    You could patent textbooks because the knowledge they contain is useful in all sorts of ways.

    You could patent the bible, or other holy books, for providing practical advice to a good and holy life.

    You do this all the time with software, Anon. And yet you scoff at me?

  48. Ned: “Price can be applied to produce a physical result, but it is itself in not physical.”

    101 Integration Expert: That’s why in patent law you get a patent on the “application”, and not on the concept itself. The “process” of applying “any” concept, not judicially excepted, is eligible.

    Ned: the output of the process under consideration is price.

    101 Integration Expert: I do not know what you mean by that statement. I was not aware we were considering any specific process, but instead discussing the “process” category in general, which is essentially all a business method is, according to the Supreme Court.

    Ned: That price can be applied to a useful application is hardly beneficial to the patentability of process that produces prince under Prometheus.

    101 Integration Expert: Again, your above statement is unclear and does not seem to make any concrete, discernible, intelligible point. None the less I will try and break it down to make some sense out of it.

    First of all your statement “price can be applied to a useful application” is repetitive and somewhat circular in reasoning. If “price” is applied it is simply an application, period.

    Second your use of the words “useful application” is misleading and potentially confusing because it implies that some applications in general are not useful. When logically, any applied concept is in effect being used, and therefore useful to at least the person applying it.

    Next, the concluding part of your statement “a useful application is hardly beneficial to the patentability of process that produces prince under Prometheus” is on it’s face logically false, and factually incorrect.

    1. The Court in Prometheus never held such, as above, thus you are incorrect.

    2. The “benefits” of an application of a concept in a process, even one for conducting business, is not a condition of patent eligibility according to the statute and Supreme Court case law. And I stress what we are discussing is patent “eligibility” of processes for conducting business, not “patentability”. So please do not move the goal posts to patentability, until you conceded you have lost the point on eligibility.

    Finally your conclusion that, “when the output of a process is price and price is not within the useful arts because of its abstractness, and the process or producing price is not within the useful arts.” is simply a conclusory statement that assumes the facts you state. For example you assume and therefore conclude:

    1. The application of the concept of price is not within the useful arts.

    2. The output or result of a process for setting a price is abstract.

    3. The eligibility of a process is determined by it’s output or result instead of the steps of the process.

    Therefore you have failed to prove that my following statement is legally invalid:

    “The “process” of applying “any” concept, (including price) not judicially excepted, is eligible.

    And ultimately you have failed to provide any legal foundation for invalidating business methods in general and specifically, business methods that include an application of the concept of price.

    Do you have anything else to argue that you have not already presented? If not please kindly concede, and let’s move on.

    Thank You

  49. Ned,

    Once again you come empty handed. You present nothing to support your view. I have the words of the Supreme Court of the United States.

    Which of us has the better position?

    Answer HONESTLY.

  50. Flook has been cabined by Diehr.

    Price is just “a number” It is ground in a larger economic sense to an actual system of commerce. The alarm limit in Flook (and please read the decision again carefully) was ooutlawed on the basis that the concept of an alarm limit was beign claimed, and NOT an actual number per se. Any indication of “number” was in a vacuum that you do not have with price. Even the label of price cannot be taken in a vacuum. If I say “dollars,” does that mean US, Canadian, Australian, or even some of the South American and African Dollars?

    Sorry Ned, your argument here fails.

  51. On first thought, how about you pay attention to what I say (and not be in such a hurry to say I am using State Street)?

  52. Anon, the only re-install going on here is recognizing that the MOT is a useful test.

    Physicality is the clue, required even, but that latter bit is my opinion.

  53. Still waiting for some (any) legal authority to back up your position, Ned.

    You come empty handed to my posts of 6:57, 7:11 and 7:12.

    Please don’t come empty handed and expect me to be convinced. And please be aware that merely saying “some professor said” is actually worse than coming empty handed (you lose even more credibility points by doing that).

    The ball is STILL in your court, Ned.

    I’m waiting.

  54. As is evident with your postings of today, Ned your agenda is attempting to reinstall MoT is still very active.

    It’s time you let that go.

  55. That price can be applied to a useful application is hardly beneficial to the patentability of process that produces prince under Prometheus

    Pure conclusory conjecture Ned.

    Your statement is empty and meaningless. You are assuming the very fact you must prove.

  56. But physicality is required, I believe, for patent eligibility.

    Can you provide a citation from the Supreme Court that states this requirement?

    Contrast that with what the Court actually DID say in Bilski.

    Thanks.

  57. consistent with your admiration of State Street Bank

    I just finished telling you that I have purposefully avoided directly using State Street and here you ar (yet again) trying to pin me to that case.

    Ned – stop with the intellectually dishonest tactics.

  58. Ned,

    My answer was given: your very question was bogus. I also explain why – clearly, fully and succinctly.

    Why are you now pretending that I have not addressed the point you (incorrectly) tried to make?

    That’s not very intellectually honest of you.

  59. It’s interesting that you refuse to NOT kick up dust and pretend that the nonsense you insist on is a “hard question.”

    Come back to reality if you want to have an honest discussion, Ned.

  60. 101, ""Everything that is physical is objective" does not mean that everything that is "objective" is physical. But physicality is required, I believe, for patent eligibility. I can't think of one claim ever authorized by the Supreme Court that did not involve physicality as an output.

  61. MM, I think the reason also lies in confusion of what Morse actually held, particularly its the statutory basis. Laws of Nature are excluded because they re in the public domain, the common resource of all mankind it is said. But really, every principle involving of a physical phenomena is, in truth, a phenomena of nature.

    Thus the law (section 112) requires the principle be applied to produce something new and useful, and physical. "Wholly preempt" is another way of saying, I think, that the claims are far broader than a particular application and essentially claim the principle itself. That's certainly was the problem with the claims in Funk Brothers.

    Thus Morse, properly construed, is not really a section 101 case, but a functional-at-the-point-of-novelty case. Ditto Funk Brothers.

  62. Good question, Ned.

    I have purposefully ground all of my arguments outside of State Street Bank, so I do not have an answer for you.

  63. Anon, the output of the process under consideration is price. That price can be applied to a useful application is hardly beneficial to the patentability of process that produces prince under Prometheus. In Prometheus, the correlation was quite useful in adjusting the dosage of the concerned drug. However that use was not claimed, and the failure to claim it was fatal.

    Thus, when the output of a process is price and price is not within the useful arts because of its abstractness, and the process or producing price is not within the useful arts.

  64. a statue is an article of manufacture

    No, Ned, it is not classified as an articel of manufacture because it does not even make it into the patent realm.

    Please stop. You are only going to confuse yourself. I have already told you my suggestion: stop kicking up dust, stay away from non-useful art items in your patent discussions, and answer (or at elast acknowledge the coutner points validly raised in discussions with you.

    Your semantics are evident as you can now play the same game with your “art” that you did with “statute.”

    Stop tripping on yourself and stay away from bogus discussions that you will have to leave anyway.

  65. Anon, the issue in Chakrabarty was whether the bacteria in question were patentable because they were alive. A professor posted a note here recently and made that very point that issue on appeal Chakrabarty was not whether the bacteria in question were not patentable because they were products of nature.

    Regardless, there is no Supreme Court case that has ever declared a claim unpatentable because it was claiming an previously unknown product of nature.

  66. Anon, it is interesting how you take the fact that the MOT is not the exclusive test as stated in Bilski and then lead on the thinking that physicality is not required. And yet when I ask you for one example of something patentable that is not physical, you refuse to answer question. However, consistent with your admiration of State Street Bank, you suggest that price is a patentable of a process.

  67. Anon, a statue is an article of manufacture. It's first rendition might be patentable. Later renditions may be patentable if they modify the statue and nonobvious ways. But I hardly think that a statue becomes re-patentable based upon intangible subject matter such as art. Thus if a new statue is different from an old statute only in the art, I can hardly think that she patentable.

    The only question becomes under what legal theory is the improvet statue by reason of new art not eligible for patentability. I would suggest you it is because art is not within the useful arts.

    What is your suggestion?

  68. “So if the total compensation is better in private practice, and the hours aren’t that bad, then why’d you get out?”

    I’m in-house. Making considerably more than the highest number in your range.

    “Honest question: I’m probably about where you were when you left. What changed? Are you living in DC so that transitioning to the PTO was not a big deal?”

    I lived in the DC area for a long time. Personal cicumstances changed. Had an option to go back to the PTO (not as an examiner) and be able to live anywhere I wanted after a couple months of working at the mother ship. The in-house route was a better option. The PTO gig would have been fine, just went a different way.

  69. Luke,

    The system you ‘wish’ for that does not rely on ‘free market’ is inherently more skewed than one that does rely on free market.

    I do not begrudge you your opinion nor desire to have such a thing, no matter how ill-founded such would be. On the other hand, I am not so quick to dismiss reality for a dream state doomed to failure and misery. A true lover of optimization does not close their eyes to how things really are. So, no, you are not where you think you are, and yes, it is naive for you to continue to think so.

  70. Saw it.

    And hey, don’t get me wrong about aspirations.

    But you do need to see and read my posts – not understanding reality – and yes, you are not there – is dangerous. Especially when you project “a problem” beyond yourself as you are doing in this instance.

  71. To Anon
    “Reality intrudes on your ideals. Sorry that your dreams don’t match reality, but better that you look at things as they are.”

    I’m perfectly aware of the difference between my “dreams” as you seem to qualify my opinions, and reality. Still, I see no reasons to give up my “dreams”. Human beings try to shape their destiny as they dream it. Don’t they ? That’s how we came to what we are today: by not giving up when we are not satisfied with the state of things (and creating patent law and patent attorneys when needs arose). See my post of Mar 24, 2013 at 11:40 PM.

  72. Right.

    In that case doing a part A of EQE should not be a problem for you. There are many available in the archives so why not do one (structural features are fine too) and let us see.

  73. In every profession you find people of varying skills, though I must say that my impression of the profession is that of a general high level. Even so we don’t consider ourselves perfect and at least in this firm we have colleagues to read over the applications before filing, just to be sure.

    Occationally I have been working on troubled cases where another colleague has filed a flawed application but these are rare and in any case there could be dozens of reasons why things turned out that way.

  74. Anon:”You state “No, the opposite,” but do so incorrectly. When you say the value is due to context, that IS THE SAME as intrinsic value. Your personal/moral issues, then, are a clash with the reality of this world.”

    This passage resumes where we differ, I think. Or maybe we do not differ but simply make different assumptions.
    The question beginning this thread was simply “Are Patent Attorneys Overpaid ? “. There was no precision/requirement regarding according to which criterion they may be overpaid. You say in substance that since they are paid in accordance to the “free market”, they can only be fairly paid. Me denying it can only mean that my reasoning is off the real world. Correct ? what I do not quite follow here, is that with this kind of line, the questions of the overpaid/fairly paid/underpaid are then just meaningless if you assume that the free market applied in the matter and can only be “right” (I take a big shortcut here).
    As for me, when I saw the question, I did assume that there may be a system that do not rely so heavily on free market to adjust incomes, that this system might bring us closer to an optimal society than the free market, and I just let my gut speak. I saw no reason to formulate a motivation to express my opinion. But when I am told that I need a justification based on reason to deviate from what seems considered as an inevitable consequence of the free market, I want to ask an articulated reason on why we should consider the free market or the free market’s answer as optimal/inevitable. My personal position is that so far, we have found no better answer to maintain a society of abundance, but I see no reason why we could not find a better alternative of which the free market may or not be part of (more likely part of as it is remarkably efficient in many ways). I don’t see my position as than of a naive idealist not in touch with reality, but that of a lover of optimization not satisfied with the current way of the things.

  75. “Yes, but Obama nominated an attorney from the DOJ that I believe had something to do with that government brief and Chen who is virulently against patents.”

    You are right NWPA, Obama did not help us one bit here. Hopefully we still have the majority at the CAFC. We will have to see what happens in Alice and Ultramercial. But we definitely need more outcomes like Research Corp, and not any more Cybersource!

  76. Yes, but Obama nominated an attorney from the DOJ that I believe had something to do with that government brief and Chen who is virulently against patents.

    The DOJ has a long history going back to Benson of virulently misrepresenting science and patent law. No one from the DOJ should ever come close to the Fed. Cir.

  77. Why would I file an RCE before you respond to my amendment? I have to pay the same extension of time fee to file the RCE that I do for the appeal.

  78. anon: “LOL – Malcolm trying to resurrect the Prometheus government brief that was brutally shot down in his 9-0 dance a jig baby.”

    Brutal is right. That brief was the only thing even remotely close to his whacky mental steps dissection theories and the Supreme Court drop kicked it to the dust bin/ Then they drove a stake thru the heart of dissection by exalting “integration” 9-0!

    And to add salt to the wound, Mr. Kelly, the Government lawyer in the Alice oral arguments was forced to concede that the Government’s position now is to view claims as an “inseparable whole”, just like Diehr says to do.

    Of course MM will continue to self defeat by bringing up Prometheus at any chance he gets and pretending that case was some kind of victory for his anti patent views.

  79. anon: You are simply asking the wrong question. You are ASSuming the bias that I am warning you about.

    I do not believe you will see Ned make any more comments on business methods in this thread. He has exhausted his usual bag of tricks and the merry go around has come to a halt.

    Now Ned will quietly walk away without having to address any substantive points raised or concede any ground.

    Only to turn up again in the next thread or full moon, and argue the entire litany of invalidated ideas all over again.

  80. Ned said “But one cannot make, use or sell price. ”

    101 Integration Expert: Yes, you can do all three in the real world. Happens everyday in business.

    Ned: Price is not physical.

    101 Integration Expert: Again, the concept of price is not necessarily physical but the application of the concept of price is definitely physical and patent eligible. To date you have not been able to refute this.

    Ned: Physicality, not objectivity is the clue to eligibility.

    101 Integration Expert: Anything that is physical is objective. You can’t dichotomize the two as you are attempting to do here. So you have gained no ground for your position that the application of the concept of price is not within the useful arts. And, since this seems to be your Waterloo in the campaign to find any legal grounds for invalidating any type of business method patents, I say the time has come for you to concede. Agreed?

  81. “Anon, give me one example of something eligible that cannot be made by man?”

    I don’t have a problem with the “made by man” language because you can make a new process.

    Don’t you agree Ned?

    If not please explain you reasoning.

  82. Aside from the possible dust of design patents, what if anything, do you really think is of value to your post here, Malcolm?

    Better trolling please.

  83. Ned said, “101, why is price not abstract. I give you a number: 66. What is that number? Why is that number not abstract?”

    Because a number is not necessarily a price.

    It seems now you have failed at 101, 102, 103, 112, and useful arts to find a way to invalidate business methods. Even your semantic arguments of the word “price” has not given you any traction.

    Ned, do you have other ideas how to invalidate business methods, or are you ready to concede you have no legal basis such a proposition?

  84. 2. You make less than 100k, right? I know because you have no concept of taxes on income over 100k.
    3. You have no family, right? I know because you have no concept of tax deduction phase outs.

    BOOOHOOOHOOOHOOOOHOOOHHOOOOO!!!!

  85. point of novelty…

    LOL

    What a canard.

    Not a canard at all. The sooner you figure that out the less of an idjit you’ll appear to be as time goes on.

  86. Are the concepts the same or is there something really different about “Laws of Nature” that are distinct from functional claiming

    Reciting desired functions and the reciting all practical applications of alleged facts (e.g., “laws of nature”) are both examples of abstractions.

  87. why was a law of nature cited as being the problem when the real problem was the undue breadth of the claims?

    You’d have to ask the Justices who wrote the majority opinion but it probably had something to do with the way the cases were briefed by the attorneys.

  88. anon, a spoon with a fancy engraving remains eligible because it is a spoon. But if you file an application for a spoon whose only difference from other spoons lies in the engraving, what is the legal issue?

    anon is too smart to answer this question and too stoopit to realize that his pathetic dissembling is obvious to anyone with half a brain.

  89. I claim a nail.

    Does my claim prevent all applications of that nail?

    Doesnt matter. If it’s not “different in kind” from a nail found in nature, then it’s not eligible for patenting.

  90. I was in private practice for 13 years and took my share of 1+ week long vacations.

    1+ week long vacations?

    LOL. So awesome.

  91. And you’ll just have to APPEAL EVERYTHING! Amirite Les? Sounds to me like you’re just kind of bad at your job if it is that hard to take a vaca.

    “3 advisory actions came in, all in the 5th month of the statutory period even though you filed your after final response in the second month”

    Shoulda filed your RCE by now bro. I just heard a story of someone that actually let their sht go abandoned because a junior told them he was going to allow the case. Pure ta rds some of you folks are.

  92. “Drafting a good application vs. examining an application is the difference between making an excellent meal and tasting it. ”

    And then having to remake the meal because the cook suxed balls.

  93. “FYI, that means that the attorneys you’re dealing with are much, much smarter than you.”

    He said to the person routinely drafting their claims for them so that they don’t sux balls.

  94. Ned: If price is not eligible, how is a process that produces a price eligible?

    The concept of price is not eligible. But a process that produces a price is eligible by the statute. Please see below and note section (b)

    35 U.S.C. 100 Definitions.

    When used in this title unless the context otherwise indicates –

    (a) The term “invention” means invention or discovery.

    (b) The term “process” means process, art, or method, and includes a new use of a known process, machine, manufacture, composition of matter, or material.

    (c) The terms “United States” and “this country” mean the United States of America, its territories and possessions.

    (d) The word “patentee” includes not only the patentee to whom the patent was issued but also the successors in title to the patentee.

    (e) The term “third-party requester” means a person requesting ex parte reexamination under section 302 or inter partes reexamination under section 311 who is not the patent owner.

    (Subsection (e) added Nov. 29, 1999, Public Law 106-113, sec. 1000(a)(9), 113 Stat. 1501A-567 (S. 1948 sec. 4603).)

  95. Ned: “Price can be applied to produce a physical result, but it is itself in not physical.”

    That’s why in patent law you get a patent on the “application”, and not on the concept itself.

    The “process” of applying “any” concept, not judicially excepted, is eligible.

  96. Ned,

    Still waiting for your replies to my posts at 7:11 PM and 7:12 PM yesterday…

    please don’t tell me that you are going to not answer or otherwise attempt to derail this critical point. After all, the Supreme Court carefully choose those words and all.

  97. Physicality, not objectivity is the clue to eligibility.

    LOL – or do you mean THE clue.

    See Ned – I told you, you are attempting once again to elevate MoT to something it is not.

    Bilski: Mot not necessary.
    Prometheus: MoT not sufficient.

    You are going to have to expand your thinking my friend.

  98. Ned,

    The error is in your question: “something

    You are simply asking the wrong question. You are ASSuming the bias that I am warning you about.

    Stop. Take a step back. Take a deep breath. Think.

  99. Statues when first made may have been eligible.

    No.

    You trip on the very first step. This is why I warn you (repeatedly) whenever you go on one of your frolics and include things like music in your examples. You end up confusing yourself.

    Don’t even go there. Stay with the useful arts and make things easier for yourself.

  100. I don’t, but you obviously do, as you then ask for more (implicitly stating that there is not more).

    My rejoinder is present to simply nip in the bud your agenda of attempting to reinstitute MoT to some (undeserved) lofty status.

    Just my way of herding cats. (I wish I had an exercise patent that I could adopt…)

  101. If price is not eligible, how is a process that produces a price eligible?

    Simple. It is. By definition. See 35 USC 100.

    Your Story-No-Process blinders severely restrict your understanding.

  102. Ned: Price is not physical.

    When applied all prices are physical.

    Ever been shopping without prices?

  103. Ned: “101, I know you stated that BMs are not liberal arts, but that does not mean that thing like price have utility within the Useful Arts.”

    It is if we are talking about a set price, and not just a concept of price. The reason why a set price has utility within the useful arts is that a set price is objective.

    Any questions?

  104. What is ANY word?

    Ned, you are dropping down to a level of semantics and you are being quite ridiculous.

    Please stop.

  105. anon, a spoon with a fancy engraving remains eligible because it is a spoon. But if you file an application for a spoon whose only difference from other spoons lies in the engraving, what is the legal issue? When we re-patent old spoon because of their new engravings, what are we patenting?

    Statues when first made may have been eligible. But the different statute is not patentable if we only change the art.

  106. Ned: When we talk of business, the machines and artifacts of business are eligible. But what about value, quality, price, interest, risk, and the like? These are “abstract” concepts.

    Okay let me break it down for you.

    a) Value as a set price is objective.

    b) Price itself is objective.

    c) Interest, as in interest rates are objective.

    d) Risk is subjective.

    What is objective is generally within the useful arts.

    What is subjective is generally within the liberal arts.

    Ned: The Useful Arts relate to things “manufactured” by man as stated by the Court in Chakrabarty.

    Did the Court limit the “Useful Arts” to things “manufactured” by man?

    If so provide that exact quote please. If not please retract and/or correct your statement.

  107. The Diehr court cited the MOT as an example

    (sigh)

    Once again:

    Bilski: MoT not necessary.
    Prometheus: MoT not sufficient.

    Ned, it’s just a clue.

  108. Useful Arts relate to things “manufactured” by man

    Here we go again down Canard Lane, visiting Story-No-Process-Bias.

    Ned, the categories of patent eligible subject matter do not have two tiers, with “process” a sub-tier to the iron-age categories.

  109. Drafting a good application vs. examining an application is the difference between making an excellent meal and tasting it. Everyone can taste the broccoli is badly overboiled, but getting the perfect al dente consistency is actually hard. Similarly it is hard to learn to swim by eating fish.

    When I started out in the profession I did a fair bit of translations from a great variety of applicants. And I must admit that at the time it didn’t look hard. Then I got to try my hand on drafting an application myself and I realised it is was hard, far harder than I had dreamt of.

    Sure, you can draft a massive independent claim in a tortured language that ends up so narrow in scope the patent is only useful for decoration, if even that.

    Writing a disclosure that discloses the right amount of details is hard. Claiming the full scope of the invention is harder. Doing it in a way that will stand up in court is harder again.

    Yet when it is done right it is often surprisingly brief. And it looks simple.

  110. 101, Why are music, poetry, and the like not considered within the Useful Arts?

    Ned, “ephemeral” has nothing to do with it. Stop kicking up dust.

    Michelangelo di Lodovico Buonarroti Simoni’s ‘David’ does not qualify and it surely is not ephemeral.

  111. Ned: 101, Why are music, poetry, and the like not considered within the Useful Arts?

    Because “music, poetry, and the like” are liberal arts.

    Ned: A violin is a musical instrument and may be patentable even though it only produces music. But the music it plays is not eligible because the notes are ephemeral. A recorder that records and plays back the words of a poet is patentable, but not the words of the poem. There is a difference.

    Yes, the difference is the violins, electronic recorders are machines or articles of manufacture. The music or words you hear is copyright and is not patent eligible. What the sounds and words ultimately “mean” to you is “subjective” and therefore part of the liberal arts, and not within the “useful arts”.

  112. 101, why is price not abstract.

    I give you a number: 66. What is that number? Why is that number not abstract?

    If I say instead 66 Denari. What is that? What is 66 Denari? Have I changed anything, really?

  113. Ned said: “I think you confuse utility with process.”

    All processes have “utility”.

    The question in patent law is clearly which processes are within the useful arts and which processes are within the liberal arts.

    Business method are not a liberal art as explained above

  114. 101, Price is a number that reflects relative value. It is not physical, though it can be written done in a form the mind can understand.

    But I do note that Bilksi confused what Morse was talking about, over-breath of a claim to a law of nature or a principle, with something that inherently can never be the subject of patent because it cannot be manufactured. When we are talking about Useful Arts, we are talking about everything under the sun that can be manufactured by man and the processes that produce those things. Such things are useful, like tools, to do useful things. They are physical.

    Price is not physical.

  115. Ned:How does one “integrate” price into a process of the type the patent laws were designed to protect?

    101 Integration Expert: As explained before a price is not abstract so you do not ask the question of how price should be “integrated” in a process. That question should only be asked of the Court created exceptions of Law of Nature, Natural Phenomenon, and Abstract ideas.

    Ned: And, what kind of processes are those?

    As explained before “any” process that is not a liberal art is a process that patent laws were designed to protect.

    Ned:The Diehr court cited the MOT as an example. But what else?

    101 Integration Expert: Yes, the process of curing rubber discussed in Diehr, a 19th century industrial process, is one “example”. The Diehr process of curing rubber is not within the liberal arts, therefore it’s within the useful arts. Other examples of processes in the 21st century that are useful arts can include:

    Quality Improvement Processing

    Complex Information Processing

    Brain Efficiency Processing

    And “any” future process one may be able to invent and reduce to practice that is not a liberal art.

    Any more questions?

  116. 101, "This type of process the patent laws were intended to protect is "any" process that is not a liberal art." I think you confuse utility with process.

  117. So if the total compensation is better in private practice, and the hours aren’t that bad, then why’d you get out?

    Honest question: I’m probably about where you were when you left. What changed? Are you living in DC so that transitioning to the PTO was not a big deal?

  118. When we talk of business, the machines and artifacts of business are eligible. But what about value, quality, price, interest, risk, and the like? These are “abstract” concepts. The Useful Arts relate to things “manufactured” by man as stated by the Court in Chakrabarty.

    What I am sure of though, is that business methods are not excluded because they are the common weal of all mankind.

  119. 101, Why are music, poetry, and the like not considered within the Useful Arts? A violin is a musical instrument and may be patentable even though it only produces music. But the music it plays is not eligible because the notes are ephemeral. A recorder that records and plays back the words of a poet is patentable, but not the words of the poem. There is a difference.

  120. Ned said: “But, in practice, what does this mean when one is manipulating abstract concepts such as price?”

    Hello Ned:

    In practice a price is never abstract.

  121. Ned said: “101, in further reply, I think if a law of nature or principle in the abstract or the like is “integrated” into a process of the type the patent laws were intended to protect, in the words of Diehr, then the claims are to patentable subject matter.”

    This type of process the patent laws were intended to protect is “any” process that is not a liberal art.

    Where you make your mistake is construing the statement in Diehr to mean patentable processes are limited to the type of the 1800’s. However the Supreme Court has made it clear that processes are not limited to this type as such a limitation would freeze innovation in time and not promote the progress of the useful arts.

  122. Ned said: “101, I don’t think “business methods” are excluded from patentability because they are the common weal of all mankind. They are excludable because their utility are not within the Useful Arts.”

    Hello Ned:

    As explained before your argument fails because in order for business methods to not be within the Useful Arts, they would have to be classified under the liberal arts ( painting, poetry, philosophy, etc.) These arts are all subjective, and abstract in nature.

    Business is not a liberal art and conducting business, which is the utility aspect, is not subjective. Therefore Business methods are solidly within the Useful Arts.

  123. You’re an examiner? I thought you were private practice?

    75k is the deal to get in now adays, and yes, that’s the hours.

    You make more as you get experience (115-125k or so), but that’s still the hours.

    Some people don’t want to work in DC or Detroit. I haven’t gotten a straight answer: You can’t telecommute to the PTO just starting can you (assuming years of experience in private practice)?

  124. Statutory and shortened statutory deadlines make it difficult to take a vacation 6. Especially those 30 day deals. And, if you do take a vacation, you still have to do all the work you would have done if you didn’t take the vacation. Even if you work in a big firm. No one else is as familiar with case X as you are, so if the Office Action comes in while you are on vacation, it waits for you to get back. And when you get back, the office actions keep coming at the rate that was keeping you busy before you left, but now you have a 2 week additional backlog. Oh, and while you were away, 3 advisory actions came in, all in the 5th month of the statutory period even though you filed your after final response in the second month….and the mail just keeps coming and coming and then its Publisher’s Clearing House week and Sear’s catalog week…

  125. MM, it is good to point out that the claims in Funk Bros. functionally claimed any bacteria that had the property and thus were essentially claiming a non enabled genus. But, then, why was a law of nature cited as being the problem when the real problem was the undue breadth of the claims?

    In a sense, Funk Bros. seemed to suggest that when claims are so broad as to cover a genus when only disclosing a species, that one is essentially claiming a principle in the abstract, a law of nature.

    Are the concepts the same or is there something really different about “Laws of Nature” that are distinct from functional claiming?

  126. Neither.

    Anybody with a law degree and qualified for a reg. no. who is working 80 hours per week for $75k is a d#mn f00l. You can start at the PTO as a GS-7 with nothing more than a BS at about $68k and within 5-6 years be a GS-14 making about $113k. Punching a 40 hour clock. And soaking up additional pay through OT and awards after racking up a bunch of abandonment counts rejecting everything by “taking Official Notice that it’s inherently obvious to routinely optimize any and everything in the prior art through routine experimentation” and then inserting the “arguments not persuasive” form paragraph.

    If you have a law degree, a reg. no. and you’re working 80 hours per week for $75k, you deserve to be treated that way by examiners because you’re dummer than a bag of hammers.

  127. 101, in further reply, I think if a law of nature or principle in the abstract or the like is “integrated” into a process of the type the patent laws were intended to protect, in the words of Diehr, then the claims are to patentable subject matter.

    But, in practice, what does this mean when one is manipulating abstract concepts such as price? How does one “integrate” price into a process of the type the patent laws were designed to protect?

    And, what kind of processes are those? The Diehr court cited the MOT as an example. But what else?

  128. anon, let me try again.

    Suppose your conceived invention is attaching two boards together, but your only means for doing so described is a nail, are you entitled to the broad scope that would ensnare every way of accomplishing the result?

    No, and the reason why is declared in Morse.

    But, when claims are also required to particularly point out… The general claim to the broad result without regards to the means disclosed is hardly particular even though the claims might make what infringes clear.

    Methinks, dear anon, that the Federal Circuit and the CCPA before it, has ignored some of the words of 112, p. 2.

  129. You need to quit working for the big guys and take some startups. In my world, they work exactly like they’re supposed to. When I worked for the big guys… yeah, what you described.

  130. Um, no. Many, many areas outside of DC, LA, NY, and Chico are just as expensive for the same type of living accomodations. You’d definitely not be thinking that if you saw how I’m living.

  131. FYI, that means that the attorneys you’re dealing with are much, much smarter than you. Making it seem easy and simple is a sign of mastery. For example, you would write an application that was entirely convoluded and likely missed the point of the invention entirely, but I’m sure that it would go on for 50 pages. I, on the otherhand, would write a 20 page application that would provide a client with real patent protection and seemed straight forward to anyone who read the application. That’s the difference.

  132. If you’re doing strictly prep and pros (maybe with a little opinion work sprinkled in) and working 80 hours per week, you’re doing it all wrong.

  133. No doubt that when government or universities fund research for the benefit of humanity, a lot of inventions will be made regardless of patents.

    After all, the greatest progress in technology seems to happen in times of war.

  134. 101, I don't think "business methods" are excluded from patentability because they are the common weal of all mankind. They are excludable because their utility are not within the Useful Arts.

    But, rather than just deal with that issue straight up, the Supreme Court invented something called "Abstract" that formerly had a fairly well understood meaning. Abstractness generally meant that claims were much too broad, not limited to one practical application as described in Morse. Indefinite, lacking written description and enablement.

    But the way the Bilski court used the term, abstractness seems to have a new meaning, that they did not define. But it seems to be that any method that manipulates abstract ideas, however specific and detailed, is not patentable. But this is really a problem of lack of utility within the Useful Arts.

  135. why you lawlyers consent to working 80 hour weeks is beyond me.

    Also, I think you overestimated a bit on the engineer’s salary at 30 by a tad probably.

    And you seem to be saying the other people don’t get vaca? what’s up with that?

  136. “Too many will be impressed by a full page claim 1.”

    Protip: Draft claim 1 to be a page long, but draft the rest normally.

  137. “I get paid to crack hard nuts like making a good patent application,”

    The last time I saw a particularly difficult to draft application was: never.

    The last time I saw an attorney trying too hard to be clever was: the last application I just did. (along with nearly all the rest before that one)

  138. I feel that I’m overpaid for the “value” I give companies.

    Patents in reality are more like insurance. Patents are like a little kid’s security blanket.

    It might help if you actually thought of them that way, then. The value added by an insurance company isn’t by giving the insured an expectation of profit.

  139. He also has […] no concept of what life without govn’t benefits costs.

    40 and out with paid vacation is nice huh examiner?

    2. You make less than 100k, right? I know because you have no concept of taxes on income over 100k.
    3. You have no family, right? I know because you have no concept of tax deduction phase outs.
    4. My place here in flyoverville actually costs more than your’s.

    You’re the reason people think we’re overpaid.

    Where do I sign up for that $40k in cash and $130k in benefits?

  140. Yes, I work with patents. I feel that I’m overpaid for the “value” I give companies. Most patents I get issued for clients are never used, or are ever litigated – the products they supposedly cover are eventually changed due to customer feedback. The reality is that most products in stores are NOT covered by any patent. I’ve been working in patents for over 20 years and I really feel that the patent field is a complete waste of time, but people feel that they need them for their business – the false sense of need is very persistent, and I oblige them with my patent services – that’s life. Patents in reality are more like insurance. Patents are like a little kid’s security blanket. Patents do not work in the real world, like academics and patent lawyers seem to think.

  141. And this guy is apparently and examiner…. not surprising that he’s so clueless.

    He also has no concept of what is actually charged for patent work, and no concept of what life without govn’t benefits costs.

    40 and out with paid vacation is nice huh examiner?

  142. 1. No one said that.
    2. You make less than 100k, right? I know because you have no concept of taxes on income over 100k.
    3. You have no family, right? I know because you have no concept of tax deduction phase outs.
    4. My place here in flyoverville actually costs more than your’s. Most of us work in metro areas that are every bit as expensive to live in as DC, if not more, especially with a family.

  143. the question whether a reference is analogous art is irrelevant to whether that reference anticipates

  144. The nerve! Many of us can barely afford to have our spats polished these days! You poors don’t know how good you have it!

  145. On the contrary, if no one has ever fastened two tiems together, the claim is merely broad.

    You commit the classic mistake of confusing breadth for indefiniteness.

  146. This is the funniest part of this thread. Jiggy and Bad Joke trying to explain how it’s nearly impossible to make ends meet with $170k even in “flyoverville”, when the median salary in flyoverville is something like $40k. You poor attorneys are so oppressed!

  147. Yes, patent attorneys are way way wayyyyyyy overpaid. Whether the median is $170k or $130k that’s still entirely too much. For that kind of money their clients should at least be getting someone who knows how to argue persuasively.

    “Mr. Client, the art that this 102b rejection is based on is not analogous art. That will be $10000.”

  148. anon, agreed.
     
    If one invents a nail, and claims a nail by describing it, then the claims covered the nail and equivalents.  Preemption is the purpose and effect of patenting the nail.  There is no vice in such a claim, it is limited to what one invented.

     
      In contrast, if one invents a nail and claims means for fastening two items together, such a claim is indefinite in less it is limited in some fashion to disclosed structure.
     

  149. Agree; but with the important proviso that you have enough knowledge to make such a decision (thinking here about independent inventors).

    A great atty is worth far more than they charge.

    A terrible one may be worth little or nothing.

    The big problem in this regard is that many if not most independent inventors don’t know what they don’t know.

    When it comes to patenting, that’s a very dangerous place to be indeed.

  150. I too get great pleasure from helping people start and grow businesses. Sounds like he’s either on the wrong side of it, or just in the wrong line of work.

  151. (nearly tragic) lot of money for those of us who are as ignorant of patent law as some of the comments here indicate

    Speak for yourself. Oh wait, you are.

    See bja’s comment (and my reply) above.

  152. to amplify:

    wihtin a profession (any profession, ALL professions) there is a mix of those who are overpaid, justifiably paid and underpaid.

    Nothing in this thread indicates otherwise.

    Methinks that a different question was meant to be asked.

  153. And neither include the thousands who graduated in teh last 5 years and are unemployed or out there trying to scrape by writing horrible applications.

  154. Most people don’t understand what happens to taxes when you cross the 100k mark. They’re making 70k-90k as a family and paying essentially zero taxes. They don’t understand that due to phase outs and rate increases the tax curve is exponential at about 110k.

  155. I also refer to it as fly-over-country. It helps keep the CALI, NY, DC, CHICO crowd away. You don’t really want them messing up your neighborhood do you?

  156. $170K just doesn’t go as far as it used to, […] a hot young wife that likes shoes

    According to the graph above, 170k corresponds roughly to one standard deviation. If yours is women’s shoes, that’s your business.

    Still, it’s an awful (nearly tragic) lot of money for those of us who are as ignorant of patent law as some of the comments here indicate. And no, you don’t know who you are.

  157. Personally, I start businesses.

    So businesses are like cancer? Yeah, I’m not following.

    Maybe this guy would be happier in North Korea or Sudan?

  158. Let’s compare:

    Accounting: 4 year degree. At 30 years old, you’re in a firm making about 100-150k working 40 hours most weeks, and 60 during tax time. You’ve been working the whole time at 50k plus, so you’re way ahead of the game.

    Doctors: 10 years. At 30 years old, you’re working for someone or in your own practice at about 100k-300k working 40-60 hour weeks. You’ve spent a ton on school, so you’re about even.

    Engineers: 4-5 year degree. At 30 years old, you’re making 100-115k working 40-50 hour weeks. You’ve been working the whole time at 50k plus and short weeks, so you’re WAY ahead of the game. Plus, you have VACATION TIME!!!

    Lawyers: 7-8 years training. At 30 years old, you’re making 75-125k working 80 hour weeks and you spent a ton on school. You’re way, way behind.

    Comparatively, you’re full of it.

  159. They seem way, way, way out on the high side.

    It’s probably a self reporting type thing.

    I know most firms are starting new guys at 75k and topping at 115k-125k in the mid levels. Bonuses possible, but unlikely for prosecutors. Of course, the scale for litigators is completely different.

  160. “hefty sums for sometimes quite poor added value.”

    So you’ve never seen a self filed application or an application from a self taught agent huh?

    I pick up a LOT of prosecution when someone else has dropped the ball. I usually charge more for that than writing an original application because it’s more work. I’m handling something that someone else nearly destroyed due to incompetence; I’d say that’s a decent value add.

  161. The difference is whether they ever make it to market for the benefit of the public. Without a patent? Usually not. With a patent; there’s at least a chance for investors and a new business.

    That’s what the commies like Patent Warlord miss.

  162. And that’s a good thing; protecting the public from someone as incompetent as you. It’s sad what agents do to people sometimes too. Some people just don’t understand the gravity of the wording they’re using in a patent application.

  163. You’re comparing average with median. The average is probably being pulled up by those making Millions at the top of the scale.

  164. Well, at least a few of us are feeling the pressure from people proposing to offshore much of our work. Offshoring mail scanning and assistant work was the thin edge. Patent drawings and prior art searching were the next.

    These days I am competing with competitors who have outsourced all the heavy lifting abroad. Legal is some countries, probably not legal in the US, the market pressure is nevertheless felt everywhere.

    It doesn’t help that few clients are able to udnerstand if the work done is of a high quality or not. Too many will be impressed by a full page claim 1.

  165. Quik(or lack of)wit,

    You seem to be having trouble with the point that IF your view was indeed correct, there would be empirical real word results to back it up.

    There are not.

    Time to wake up and stop fantasizing. The real world calls.

  166. To amplify: it is your perception that is in error. The “privileged” notion is a “you” thing.

    Reality intrudes on your ideals. Sorry that your dreams don’t match reality, but better that you look at things as they are.

  167. Unfortunately, we are in parallel, but you make a separate point here worth addressing.

    You state “No, the opposite,” but do so incorrectly. When you say the value is due to context, that IS THE SAME as intrinsic value. Your personal/moral issues, then, are a clash with the reality of this world. You say “shortcomings” as if a different “perfect” world was possible. Sorry, but you have to accept what is real. The world does not care for non-real dreams. Justice too, does not live in a fantasy land. There is more damage caused by those trying to impose an impossible dream state (think Marx and Lenin).

    Finally, you couldn’t be more wrong in thinking that the reasoning is roughly the same in both cases. That’s why I used that example (I don’t have anything against professional sports). One is related to actual property, albeit legal property. The other is simply “entertainment.” One is akin to ‘bread,’ the other to ‘circuses.’

    I hope you can see that your own idealism is what is causing you to misunderstand the situation, and I hope that you are capable of learning and accepting the lesson that reality offers.

  168. they feel entitled to bill

    There you go again – why are you persisting in this “entitled to” mindset?

    If you really understood market dynamics, you would not be doing so.

    Everyone pushes the upper limit as to what they can earn. The market decides. If I ask too much, you can go elsewhere. If you agree to pay me what I ask, then you have decided that what I ask is fair market value.

    It’s that simple. There is no “entitled to.”

  169. Or look at violin technology of Stradivarius and Guarneri, which is lost because they could only protect their competitive edge by keeping the technology secret.

    This point of debate actually has merits on both sides. Lots of inventions are made (and made public) without the incentive of patents, but many others would not be if the patent incentive were lost. A balance would seem approriate.

  170. When I quit my career as an engineer about a decade ago to begin as a training patent attorney, I took a pay cut of nearly 50%.

    It took about five years after qualifying before I was back to a comparable level.

    If I had stayed on my original career path, and moved into consulting or management, I would have a job that bored the living daylights out of me, but could possibly be earning twice what I am now. And that would be without any additional formal training or qualifications.

    No, I don’t think patent attorneys are overpaid. Especially in view of the highly specialised combination of skills we bring to the role.

    But for those who are posting comments about how you get “no enjoyment” from your career, or are plagued by “self-doubt”, this is not because of any inherent problem with the profession. It is because you are in the wrong career for you. If you seek happiness, rather than wealth, you need to bite the bullet and make a change.

    Mark

  171. Really?

    I get to meet a lot of interesting people such as creative inventors, optimistic applicant/entrepreneus wanting to create new jobs, students looking into IPR, the occational odd Examiner and interesting colleagues.

    I get paid to crack hard nuts like making a good patent application, see how the craftmanship stand up against Examiners, in Oral Proceedings and in Court.

    I make a lot of people happy when I get the applications granted and even small victories are celebrated.

    I get to assist my clients when infringers pop up, the pleasure of seeing most cases solved amicably and the enjoyment of hammering infringers planning on steamrolling my clients.

    I enjoy seeing my clients get their recognition and commercial success built on their patented inventions.

    I haven’t seen the salaries mentioned here but I certainly feel a lot of enjoyment from my career.

    If you feel no enjoyment I wonder what kind of work you do.

  172. > Who is this guy Newman?

    Clearly a person skilled in the art … of making headlines.

  173. Where is my short list (of one) of all those modern advanced countries that have seen the light and chucked all bankster-controlled fiat currency?

    Just because all countries use it doesn’t make it right, or good for society.

  174. Inside a given profession, yes, I tend to agree. It is when we compared professions with each other that I think that lawyers are privileged compared to most others.

  175. “Long story short: you are basically saying that the intrinsic value provided by lawyers is high.”

    No, the opposite. I say that most of their value depends on the context they’re in. Yes, THIS can be applied to any profession. Still, as explained in the previous post, attorneys are more privileged than most professions in this “context” thing.

    “Of course then, with high value comes high pay – as it is normal under well understood, well accepted and well reasoned market dynamics.”

    Yes. Although I have personal/moral issues with the market and its shortcomings, I have yet to see a better way to make a society work properly.

    “Yet you seem to cry about that. Why? (and please base your answer in reason).”

    With reason, it will not be easy. It has more to to with a sense of justice. I guess I could go on trying to argue that more justice = better feeling in the population = better society, but it’s probably a hard case and in any event difficult to implement in the real world. As stated above, I have yet to see a better solution than market to driver a society.

    “if you want to question pay and value, you might want to first look at professional sports.”

    I could, but the topic started with attorneys, and the reasoning regarding pay and value is roughly the same in both cases.

  176. Yes, I understand what that means. And I understand that there is competition between lawyers. Still, they feel entitled to bill hefty sums for sometimes quite poor added value. The only justifications I can find for this are more related to the way our societies work and the compulsion that clients feel to hire the priciest lawyer they can afford than in the intrinsic value of the quality of the lawyer’s job. In that sense, yes, I think that attorney are overpaid. Of course, there are other ways of thinking that justify their pay.

    anon, it seems we are going to run one after another in parallel threads. Let’s stop this one.

  177. Luke,

    And more to the point of my comment that you reference, what an individual is paid relative to what that individual should be paid (taking into account the aforementioned reasonableness of well understood market dynamics) there is a spectrum of individuals that are paid more than they should be, that are paid what they should be, and are paid less than what they should be. In this regard, patent attorneys are indeed EXACTLY like any and all professions.

    Thanks.

  178. Argh – post eaten.

    Long story short: you are basically saying that the intrinsic value provided by lawyers is high.

    Of course then, with high value comes high pay – as it is normal under well understood, well accepted and well reasoned market dynamics.

    Yet you seem to cry about that. Why? (and please base your answer in reason).

    Thanks.

    ps: if you want to question pay and value, you might want to first look at professional sports.

  179. Ned said: “Next we turn to business methods.”

    Hello Ned:

    You have said you believe new and useful business methods are not an exception and should be examined further under 102, 103, and 112.

    You also agreed in principle that the doctrine of integration applies in those later sections as well.

    Now, this ( Integration) means that the Government’s rejected invitation in Prometheus to in effect strip away and ignore certain steps or elements at 102, 103 can’t legally apply either. That would in effect be dissection. Integration is the antithesis of dissection. And indeed the Government changed its position from the proposal of ignoring certain steps or elements as proposed in Prometheus, to viewing the invention as an “inseparable whole” as declared during the Alice Oral arguments.

    So in light of these facts, how do you plan now to legally eliminate business methods?

    Or, have you changed your mind and given up this agenda?

  180. No.

    The problem is in your thinking that anyone gets anything by simply declaring so. Lawyers work in a market economy.

    Do you understand what that means?

  181. $170K just doesn’t go as far as it used to, even in fly-over land. It’s not like were eating gold leaf on foie gras every night here, have a housekeeper in the servants wing and talk about how hard it is to find good help. Maybe English major there needs to get a mortgage and a hot young wife that likes shoes and then comment…

  182. You misundertood me, I haven’t been clear. THEY declare that they are “rightly entitled to”. It is not MY opinion. Sounds better to you ?

  183. I would not say like EVERY other profession Anon.
    Attorneys in general practice one of those activities that, at times, you cannot avoid to deal with and whose results can go way farther the effort you put in because they have a very strong lever effect. As a consequence people, companies or entities cannot easily allow themselves to go cheap, due the potentially dire consequences of the slightest error. If I’m not happy with my plumber, I’ll just try another one and at worst, I’ll have some badly repaired water leakage. When it comes to matters dealt by the attorneys, both investments and consequences of a failure are on other scales than most of professions. Thus, attorneys are in an ideal position to ask for wages that other professions cannot reasonable ask for.

  184. the price they declared to be rightly entitled to

    LOL, let me guess, Luke, you have no clue what you are talking about and have never worked outside of the government job that you have. Right?

  185. “It’s actually a shame that the world values people that make transactions and property and the such more than the people that meaningfully contribute to the world.”

    So true. And some people call it right because a consequence/necessity to maintain the “holy free market”. One may argue the guys that do the transactions help the other ones… but I tend to think the price they declared to be rightly entitled to is well too high.

  186. I claim a nail.

    Does my claim prevent all applications of that nail?

    Can you apply it at all if you do not obtain it first?

  187. as the concurrence points out

    LOL – Malcolm trying to resurrect the Prometheus government brief that was brutally shot down in his 9-0 dance a jig baby.

  188. artificially low because your beloved “exception to the printed matter doctrine” isn’t being recognized often enough

    LOL – nice dust cloud you are kicking up.

    Are you done with your tantrum and ready to read what I actually wrote?

  189. your spin here of the Office struggling to examine properly

    My spin? You regularly assert that better examination is needed. Is your position that the office isn’t granting enough computer-implemented j-nk? You think the allowance rate is artificially low because your beloved “exception to the printed matter doctrine” isn’t being recognized often enough?

    You’re entitled to your opinion, of course. It’s consistent with the fact that you never saw a claim you couldn’t wrap your lips around until you saw Myriad’s claim. And in that case your primary motivation seemed to be your weird belief that if Myriad’s j-nky claims were tanked it would represent some sort of comeuppance for me.

  190. Wel, 6 is over paid.

    MM should NEVER be paid.

    But a good Patent Attorney is worth their weight in gold.

  191. “I often wish I had gone into engineering instead of law”

    I hear that bro, but I got conned into it :( Well, the psuedo-law that we deal with at the office anyway.

    “At this point, I can’t bring myself to declare three years of law school, three years of grinding at a law firm, and over a $100k in education spending a total loss to attempt a transition back to the engineering world. ”

    And I can’t see myself foregoing the overpayedness of a patent agent or lawyer to do the same. But, meh, that’s life eh?

    It’s actually a shame that the world values people that make transactions and property and the such more than the people that meaningfully contribute to the world.

  192. Your salary is “controlled by law or regulation” because I can’t practice lawl legally without spending bank.

  193. USPTO struggles to examine properly

    LOL – what is controlling LAW concerning the exceptions to the printed matter doctrine?

    C’mon Malcolm, everyone knows you know – you have even voluntarily admitted knowing.

    So your spin here of the Office struggling to examine properly is shown for what it is: spin.

  194. The qualities of these bacteria, like the heat of the sun, electricity, or the qualities of metals, are part of the storehouse of knowledge of all men.

    And just so we’re all on the same page, the claims at issue in Funk recited merely the desired qualities of the bacteria. The claims were not limited to and did not recite any specific strains which possessed the desired qualities. Hence, functional claiming at the point of novelty. The claiming of a composition as an abstraction rather than describing a new structure. That’s death under 101 or, more preferably, as the concurrence points out, under one of the other statutes (e.g., 112).

  195. LOL

    Ned, even if for arguments sake we assume without deciding that that is dicta, how is it ANY different than any other Supreme Court pronouncement on the subject?

    Do you have ANY legal reference – any at all – at any level – that supplies an even remotely compelling view against what was said in Chakrabarty?

    Any?

    Any at all?

  196. I think Rick wishes he’d been able to hack it as a science or engineering major in college so he could now work as a patent attorney.

    You don’t need any technical degrees to litigate. For that matter, a technical degree isn’t really necessary to understand or write about giant swaths of computer-implemented j-nk that the USPTO struggles to examine properly. An advertising, business major, math major, accountant or amateur bird watcher is probably in a better position to examine most of that j-nk.

  197. Or in the failed attempts of Marx and Lenin…

    Is it any surprise at all that one of the descending bastions of that ideology is also one of the two forces against patent law?

  198. Not really, anon.

    Preemption is a legal theory that prevents claims to all useful applications of subject matter that is the property of all. Le Roy v. Tatham and Funk Bros. said this was the principle behind limiting claims to Laws of Nature and natural phenomena to particular applications.

    Morse also suggested that the reason we cannot have claims to principles in the abstract, was because the laws demanded we describe and enable what we claim. The functional claiming of a principle claims all applications — but the statutes involved are not 101, but 112 that require written description, enablement and particular claiming.

    Benson’s ultimate holding was based on preemption. But this assumed that mathematical algorithms are the the common storehouse of knowledge available to all mankind. That assumption is plainly, and demonstrably incorrect.

    Next we turn to business methods. Bilski was based on preemption. But that assumes that business methods, at least the one before it in that case, cannot be claimed because they are legally like laws of nature. But that is obviously false and Bilski even held business methods are not excluded subject matter.

    Abstract? That goes back to Morse, and like I said, the problem identified in Morse about claiming principles in the abstract was not that such principles were the common property of all mankind, but because they were claimed so broadly to cover the inventions of others that did the same thing functionally. That is not a 101 issue, but a 112 issue.

  199. LOL – another sign the warlord is a fraud.

    C’mon man, what’s taking you so long to give me my list?

  200. LOL

    This would be a great place Ned to include the other things that belong to the warehouse of nature, and thus, to the common weal of all mankind.

    You know the quote. It’s from Chakrabarty, and deals with the range from simple to complex, from minerals to plants.

  201. Malcolm, I have advised you plenty of times to seek a profession that you can believe in what you are doing.

    (all kidding aside, I know this is not Malcolm, and is more likely to be the frequent imposter who tries to malign the profession by pretending to be a member of the profession but whose posts give obvious clues that he is an imposter)

    Here, the lack of critical thinking that exposes the imposter is the analogy to a doctor and cancer. Real patent attorneys know that what they do is create the legal instrument that becomes the patent right. To analogize to doctors and cancer is to get the very premise of what a patent attorney does completely wrong.

    Hey, where is my short list (of one) of all those modern advanced countries that have seen the light and chucked all IP law?

  202. I refer to

    “The qualities of these bacteria, like the heat of the sun, electricity, or the qualities of metals, are part of the storehouse of knowledge of all men. They are manifestations of laws of nature, free to all men and reserved exclusively to none. He who discovers a hitherto unknown phenomenon of nature has no claim to a monopoly of it which the law recognizes. If there is to be invention from such a discovery, it must come from the application of the law of nature to a new and useful end.”

    Funk Bros. Seed Co. v. Kalo Co., 333 US 127 – Supreme Court 1948

    link to scholar.google.com

    Laws of Nature and Natural phenomena are part of the storehouse of all mankind. Common weal is another way of expressing this thought.

  203. I’ve been having the same self-doubt since I started, and I’ve only been practicing (litigation) for three years. It seems for all the long hours we put in, we don’t produce anything of use. I feel more like an obstacle than a spur. The idea that we support a system that encourages innovation is all well and good in theory, but it doesn’t do much to sate the desire to generate something tangible (at least for me), and the empirical evidence behind that theory isn’t exactly concrete.

    I often wish I had gone into engineering instead of law, although that may be just typical “grass is always greener” second guessing. At this point, I can’t bring myself to declare three years of law school, three years of grinding at a law firm, and over a $100k in education spending a total loss to attempt a transition back to the engineering world.

  204. To amplify:

    Question concerns overpaid

    Answer is yes, no, maybe,…
    …and most importantly all of the above.

    Just like ANY other profession.
    Just like EVERY other profession.

    Methinks a different question was meant to be asked.

  205. I work in patent law, and make a very good living doing it – I don’t have to like the IP system or be a proponent of the IP system – it clearly exists and must be dealt with. Just like a cancer doctor helps patients deal with and survive cancer, the doctor obviously doesn’t “like” cancer because it gives him employment – everybody including the doctors wishes it didn’t exist. There are plenty of other diseases and other things a doctor could deal with if cancer didn’t exist, and still make a good living. (And yes, I’m essentially equating IP laws = cancer, although a man-made, self-inflicted evil that society could do well without.)

  206. So… if you protect someone who stole someone else’s property you are ethical? Maybe that’s why you are depressed.

    You need to protect the innocent inventor whose dreams were shattered when the large, rich, fat, greedy corporation stole his invention and now won’t talk so much as discuss it with him.

    You need to sue the bstrds! Then you’d feel like you are ethical and had a truly just purpose.

    Go forth! Fight for justice! Jump over buildings! Fly faster than a speeding bullet!

  207. Makes sense to me Ned.

    Might you be willing to consider applying your excellent free market logic to the sale and monetization of patents, e.g.:

    “Otherwise, if how much one receives for a license or sale of their patent is set by the market, such an amount is never too high … even if such amount is obtained by a PAE who’s bought the patent from another … including when necessary via legal litigation”?

  208. Agree or disagree…

    101 preemption exists to prevent patents on excluded subject matter, such as Laws of Nature, Phenomena of Nature, which the courts have determined to be the common weal of all mankind. When Laws of Nature, Phenomena of Nature or other subject matter that are not the common weal of all mankind are claimed, 101 preemption should have no relevancy because it is the nature of patents to accord exclusive rights to inventions.

    When subject matter that is not the common weal of all mankind is claimed, the law only requires that the claimed subject matter be enabled for the full scope claimed, and that the claims be definite (implicating functional claiming).

  209. I’m an inventor, the guy who pays your freight one way or the other.

    I have to say that some of you are definitely overpaid. I recently found one twice as expensive but he’s cheap compared to the last joker.

    If you’re good, no apologies are required.

  210. @NedHeller: You’re confusing the issue: Using others’ ideas and/or building upon them, wherein the other people themselves did the same thing with “their” and other ideas is different than physically taking possession of someone else’s physical property, like a car, radio, etc., which is actual theft. One cannot own an idea. You do not harm someone else by using or building upon ideas. Physical objects, devices, like cars, wrenches, lipstick, whatever, can be “owned” – ideas cannot. Ideas are not property. Ideas can be shared without harm – cars can be owned and taken possession of – and be stoled, which would then harm the actual owner – which is obviously bad. I recently explained this concept to a four year old and he got it – it’s very simple really.

  211. Patent, I should say “whatever” because your argument says nothing about whether patent attorneys are overpaid.

    Regarding the merits of a patent system, the question really should be whether law, which creates legal property rights, is an effective way to order private property. Without the protection of patents, history has shown us that inventors either do not invent or if they do, rely on secrecy. Take a look at the history of patents and the trade screts of the Venetian glass blowing industry.

    The idea that inventions will appear and be shared with all mankind by some sort of magic is an idea that sounds in some kind of alternative reality where people act for the interests of all and not for their own interests. Such a world exists only in the minds of the denizens of acedemia.

  212. I think Rick wishes he’d been able to hack it as a science or engineering major in college so he could now work as a patent attorney.

  213. I don’t mean to be a “negative Norman” – but I have had lots of self-doubt about my chosen career path and this legal specialty for years. I would like to think that what I do matters as a patent practitioner, but I don’t think it does – and I’m not alone thinking this, unfortunately – the literature and various studies also show this too. I’m too old and encumbered (i.e., mortgage, wife and kids, etc…) to change careers – but I would like to think that I practice “ethical patent law”, that is something more like “defensive” patent law, not suing other people, but helping clients deal with (let them use technology without interference) and navigate the patent system that we (our society), unfortunately, have been saddled with.

  214. Please tell me I’m earning my money!

    Well, when you consider that patents are a net negative to society, patent lawyers are actually leaching wealth from society – we should be very, very thankful for earning out money doing what we do. I have more respect for used car salesman – they actually do something useful. There is no credible peer-reviewed study that definitively indicates that patent law increases innovation – NOT ONE. I dare anybody to show one credible source that shows patents increase innovation – even patent shill Gene Quinn couldn’t show one when challenged. All of the credible studies show that the patent system unequivocally hinders innovation or is inconclusive.

    I actually work in patent law, so as long as we have this screwball patent system, we should all get paid well while the party lasts at least.

  215. Overpaid?

    One is overpaid if salaries are controlled by law or regulation and the salary is set above the market.

    Otherwise, if one’s pay is set by the market, one is never overpaid.

    Who is this guy Newman? Some sort of anarchist?

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