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RK’s post at 188.8.131.52 is worth putting front and center. In response to my post noting Malcolm’s duplicity, [a]t the same time that Malcolm apparently screeches for “evidence” he panned the suggestion that I made that the actual litigation rates be compared to the actual number of active patents out there.
What are the chances given Malcolm’s well-known QQing that “too many patents are being granted” that we actually are in an era of DROPPING litigation-per-active-patent?
Would that not be an interesting and important consideration?
Ron answered (formatting altered):
The rhetoric alleging “explosion” in patent lawsuits has no factual support. [Who needs facts when spin is so much nicer to the agenda?]
It does not take into account the growth in the scale of commercial activity that gives rise to patent lawsuits, and indeed to most civil lawsuits. [The Mossof articles come to mind]
In my presentation at the GCR Conference last month, I presented litigation data for the last 90 years (see link to bit.ly [for active link, see below]).
I show that when normalizing the number of patent suits
by the GDP, or
by the number of all civil lawsuits, or
by the number of patents in force,
the filing rates are actually significantly lower than during other periods in the 1960s or 1930s.
I also show that the fraction of patents in force that are litigated has actually declined since 2000 (with the exception of the post AIA surge which I explain is due to the AIA). [Again – as Mossof shows, litigation and innovation spikes are normal – when people don’t understand how innovation works, they kick and scream at the sky]
Note also that copyright litigation has grown more than patent litigation and yet no one has suggested copyright litigation “reform.” [That’s because the Left and Right Coasts would not like that – duh]
Hmmm the wild and debunked Besson numbers spread through flashy false promos and the truth is ‘conveniently’ ignored. Maybe there is a reason to bash such trash.
“‘The point being though, you blunder on regardless of these feelings”
Oh, yeah for sure, I could give a sht less about their fee fees.
Hmmm, seems like the problem you often project onto others…
Lex Machina March data is out:
link to lexmachina.com
For those who focused on the peculiary “year by year” metric, the March 2014 numbers represent a 25% increase over March 2013 (whoops!). And the April 2014 numbers look set to create a historic record (higher than the April 2013 numbers which were, at the time, a historic record).
Just sayin’, folks. I’m sure the retractions/corrections by the celebrators of the January “dip” will be immediately forthcoming. LOL.
(another case of Malcolm dancing his jig without understanding the context of numbers….sigh)
“the March 2014 numbers represent a 25% increase over March 2013 (whoops!).”
The gall of Malcolm’s duplicity is incredible.
He completely ignores Lex Machina’s own Screaming Headline of “Patent Reform Proposal Sparks Major Jump in New Case Filings” in order to attempt some spin that the standard year over year data analysis is somehow not a standard technique.
How utterly pathetic. Maybe Malcolm skipped the day they covered trend analysis, or maybe he thought that such was just too abstract, but his ignorance shines like a beacon and illuminates his self-FAIL once again.
“All your inventions are belong to us.”
That’s about the size of it. Clever big business propaganda versus inventors. Now, the latter may only see maybe 10% of the settlement, but otherwise they may get nothing atall.
Remember the “Shield Act”? link to knowvention.com
From the link:
“Not exactly scientific and along with that neither the data nor the study has been published.”
Reminds me of Prof. Sichelman and the non-published nature of his data (but trust us as to the conclusions drawn from the data we will not share…)
Data wants to be freeeeee! (except when it does not).
No, but I remember Agents of SHEILD : link to agentsofshield.com
It is just a touch or irony that the Agents of Shield are dealing with the problem of agency capture….
And how is the Executive Office coming along with a properly vetted leader of the patent office (instead of the existing shadow playing?)
Pogo, oh Pogo, where art thou?
Clearly, there’s no big money behind this patent reform effort, LOL.
Lest we think this is a new phenomenon, a little history: link to arstechnica.com
Solution: Troll Insurance.
If the problem is undue leverage on poor start-ups due to the high cost of infringement defense as compared to settling , then remove the leverage. Have deep pockets and defend. If the allegations are unjust, the “troll” will not spend out of pocket to try to enforce “bad patents” and will go away. Just the fact of the insurance makes the problem go away.
Hmmm, very interesting, could even work!
We need to stop bad propaganda. Frankly, i seriously doubt that the facts espoused are accurate. Then there is that subtext, unless one is willing to run a sweatshop in South East Asia ( practice the invention) one is not worthy of asserting a patent – hogwash. What some trolls should do is target a company manufacturing accused devices in sweatshops and make the public see how effective patent litigation can be in stopping unwanted business practices.
“Run a sweatshop in southeast Asia”
LOL, how appropriate considering who the big money backers are here (e.g., Apple).
…but don’t they buy some pretty nets?
We need to stop bad propaganda. Frankly, i seriously doubt that the facts espoused are accurate.
That’s never stopped patent “reform” advocates before…
America has an extremely serious problem with its inability to address critical problems in complex fields – not just IP, but also the financial system, healthcare costs, and political gerrymandering.
Problems in such areas persist because (1) no major entity has any responsibility to fix them or ensure the long-term viability of the system; and (2) the organizations that are most knowledgeable and best situated to fix them also have a strong financial interest in maintaining the status quo. Without viable solutions, these problems worsen to the point of absurdity and collapse.
Such scenarios are ripe for abuse by “reform” advocates who propose legislation with the primary effect of tilting the playing field in their direction. The legislation might have catastrophic side-effects, and might not even address the core problem. No matter – it can be sold to the public under the label of “reform” with an oversimplified, idealized story. A catchy title always helps, too… like the “America Invents Act,” or the “Patriot Act”…
Very frustrating to see lobbyists continue to distort the system under false pretenses, and an ignorant, gullible public fall for a sales pitch.
Such scenarios are ripe for abuse by “reform” advocates who propose legislation with the primary effect of tilting the playing field in their direction.
Of course, it’s entirely possible that the “playing field” has been tilted in the other direction for far too long and the present efforts are simply an attempt to level it out a bit.
It’s also entirely possible that many people interested in reform don’t have a direct interest in the outcome (i.e., they aren’t intending to exploit any “tilt” that might result from reform) but simply wish to avoid seeing an important system head further down the road to “absurdity and collapse.”
“It’s also entirely possible”
Lemley and ties to Lex Machina…
Who exactly coined the term “Troll”….
But anytime someone states that the patent system is under attack by the Left and the Right, Malcolm is there to spew profanities….
These are great posts David. I can see that you are a real patent attorney living in the real world.
The MM and Ned commercials that play here on patentlyo are not to be regarded as anything but propaganda. They are bought.
Jingoism is not just for the patriots…
(just ask Jane)
Night, if you haven’t noticed I was against the AIA, am heavily against the current patent bill, strongly in favor of startups, against re-examination and IPR’s that are filed against the will of the patent owner, and strongly condemned the content of this ad.
I have no idea why you would think that I was anti-patent in any way. I am against business method patents, and I advocate clear and definite claims. That does not make me anti-patent. It makes me anti-patent abuser.
“I have no idea why you would think that I was anti-patent in any way. I am against business method patents”
And software patents – and against the correct understanding of the 1952 Act and the separation of powers in the Constitution, and…
And yes, Ned, this makes you anti-patent. Sorry but that is the way that it is. Do not be confused and think that there is only one flavor of anti-patent.
anon, yeah, sure. Have it your way.
Ned that was not persuasive.
Perhaps if you did not run away from my points all the time….
(btw, how is it going with your personal lack of understanding of the Nazomi case?)
Here’s a question. What percentage of Angle/VC/etc, etc, funding sources consider I.P. protection vital to their decision to invest in any given technology? My guess is 100%.
It depends upon the “personality” of the angel/VC.
If they want to reduce the risk of their investment, they will want IP protection. If the company fails, they can sell the IP to a troll.
If they want to hit a home run (Twitter, Facebook, etc.) they don’t care about IP protection for their investment; those companies dominate their market and don’t need IP protection. They only care about the IP plaintiffs who come out of the woodwork to disrupt their mega initial public offering and reduce the chances that an investment is a home run. Ron Conway is an example.
These proposed patent reforms may be good for small businesses with no connection to patents; but they place a large burden on small innovative companies that rely on patents to give value to their ideas and inventions. If patents become too difficult or expensive to enforce, then their value diminishes and innovation suffers.
You’re catching on. It insulates the big, established companies like Apple, Microsoft, Google, etc. from the little companies with good ideas. That’s why they’re putting so much money behind this misinformation campaign.
The patent system of the 90’s and 00’s incentivized startups with disruptive technologies. Big companies were forced to play ball and acquire or license their technologies, which fed the dot-com IPO craze.
The patent system of the 10’s is moving in the opposite direction. Startups can provide disruptive technologies, but the big players can copy them without significant fear of patent infringement. Conversely, if a small player starts gaining a market edge, a big player can LAUNCH ZE MISSILES!! of its patent arsenal and sue it into smithereens.
This is not an encouraging development for technological innovation.
Ouch – very much on target David.
Great post David. I agree. I see this in my practice. You notice that the haters are always disconnected from reality.
For example in Prost’s dissent she did not even consider the following: what alternative heuristic solutions were known to the inventor at the time of the invention? Just beyond reality.
We live in a time when money rules people’s minds.
If we were able to tweet or share individual posts, this would be the one.
If patents become too difficult or expensive to enforce, then their value diminishes and innovation suffers.
There’s zero evidence that patents are presently “too difficult” or “too expensive” to enforce. Litigation and grant rates are as high as they’ve ever been in the history of the country.
On the other hand, there’s lots of evidence that junky patents are being obtained and asserted on a regular basis. Such patents do not promote innovation, as you know.
small innovative companies that rely on patents to give value to their ideas and inventions
Companies, large and small, will continue to innovate and protect their innovations with patents. Will some less innovative companies fall by the wayside because their “innovations” are no longer worthy of coddling by the patent system? Of course. That’s great news for everybody.
LOL – the duplicity cannot be hidden.
At the same time that Malcolm apparently screeches for “evidence” he panned the suggestion that I made that the actual litigation rates be compared to the actual number of active patents out there.
The rhetoric alleging “explosion” in patent lawsuits has no factual support. It does not take into account the growth in the scale of commercial activity that gives rise to patent lawsuits, and indeed to most civil lawsuits. In my presentation at the GCR Conference last month, I presented litigation data for the last 90 years (see link to bit.ly ). I show that when normalizing the number of patent suits by the GDP, or by the number of all civil lawsuits, or by the number of patents in force, the filing rates are actually significantly lower than during other periods in the 1960s or 1930s. I also show that the fraction of patents in force that are litigated has actually declined since 2000 (with the exception of the post AIA surge which I explain is due to the AIA). Note also that copyright litigation has grown more than patent litigation and yet no one has suggested copyright litigation “reform.”
Where are the academics on this…?
“worthy of coddling by the patent system”
LOL – what are you suggesting be the new guidelines Malcolm?
You still show no signs of understanding how innovation actually works in the real world.
There’s zero evidence that patents are presently “too difficult” or “too expensive” to enforce. Litigation and grant rates are as high as they’ve ever been in the history of the country.
Litigation and grant rates have nothing to do with the difficulty or expensive of enforcement. Why did you even bring it up? Also, when is the last time you attempted to enforce one of your client’s patents via litigation?
Unless you have a couple (if not significantly more) million dollars in the bank, you are left attempting to engage law firms that advertise at bus stops. Also, contingency fee law firms don’t take any case that comes in the door — they are far more selective (or at least the good ones are).
If the value of the infringement is 7 figures or less, IMHO, the patent owner is SOL. The potential return doesn’t justify the cost/risk of litigation if you are paying on an hourly basis . Moreover, few contingency firms are going to want to go all the way to trial for just 7 figures — not enough ROI. Sure, some law firm may be willing sue in the hopes of getting a minimal settlement — but they have no desire to go all the way to trial.
For solo inventors or small companies, it is extremely difficult to assert your patents. To say that there is “zero evidence” requires one to close both eyes, sticking your fingers in your eyes, while chanting “nah, nah, nah.”
“To say that there is “zero evidence” requires one to close both eyes, sticking your fingers in your eyes, while chanting “nah, nah, nah.””
You have hit on one of Malcolm’s more positive talents.
Exactly. I have a case like that right now. Small company with traction, but not many millions. If a big company copies them, what do they do? If we write a letter, we can expect an IPR filed and will need $500K per patent to defend the patent —that I just got them — at the patent office.
Think about that. It has turned into a registration system for the small players. Get it for $15,000, then if you want to assert against big player, pony up $500K for the real stuff.
Don’t think the big players didn’t know this while the AIA was being drafted.
“Don’t think the big players didn’t know this while the AIA was being drafted.”
Look again – the big players basically wrote the AIA.
Under the rhetoric of a ‘simpler system,’ we now have:
– more expensive processing
– slower processing
– more uncertainy over duly granted rights
(not to mention that we will have two running systems side by side for the next 20+ years, given that most everything in the queue will still be decided under the pre-AIA law)
I previously asked Malcolm to explain his view that these things (the AIA in general) made the patent system stronger.
Naturally, he ran away.
Don’t forget the new “First-to-File” aspects of the AIA. Another critical factor in reducing the power of small entity inventors. Notes and records kept no longer carry the weight nor provide “inventorship” .
“If we write a letter, we can expect an IPR filed and will need $500K per patent to defend the patent”
I’m sorry, but are you saying with the above-quoted text that you expect to charge $500K to defend a patent at IPR?
Here in Europe, innovative companies large and small, engineering, tech, chem, bio, boast to the public how many patents they’ve got. A new AUDI has in it more patented technology than does NASA, etc. The public likes to know that. Is that not also the case, in the USA?
Although also in Europe we have PAE’s and NPE’s that are making money, and winning injunctive relief and big damages awards, virtually nobody has any notion of what is a “patent troll”. The concept of a troll seems to be unique to the USA.
May I ask, who in the USA will be viewing this advert, aside from readers of this blog and the CEO’s of companies who operate manufacturing sites in the USA ?
It is anti troll but (or do I misunderstand) it is not anti-patent as such: or is it?
“Is that not also the case, in the USA?”
MaxDrei, here in the States, media capture is a bit different.
“The concept of a troll seems to be unique to the USA.”
Once again, it is important to point out exactly who coined that term and exactly why.
Hint: it was a Big Corp and it was not for the benefit of anyone except Big Corp.
The lemming march will not be stopped.
Soundbyte “Journalism” at its very worst.
Max, the two countries in Europe that generate all the innovation are DE and UK. Both have strong patent systems.
And———guess what———-what is the one area that both are completely lacking in————–think it over————–here’s a hint————what area do they not allow eligibility?———————SOFTWARE!!!!!!!!!!!
Yes, so here we have perfect example of the patent system working marvelously in Germany and the UK, but the one area they don’t allow is anemic at best in both countries. And, who has made those inventions eligible and dominates the world? YES. GOOD JOB. The USA.
Reality. Try to live in reality. I know people like Posner who is set for life and can go off on his psychotic rants without consequence to HIM, but if we want a good future for our children, let’s try to live in REALITY.
Also consider the history of the innovations in the bio field and how the lack of coverage elsewhere drove that innovation to the US.
It is truly amazing how little critical thinking is applied when those that want a weaker patent system run rampant with their propaganda.
You will want to see this post from over at PatentDocs:
link to patentdocs.org
But really, why would we want to align the patent system with such?
(that last question was meant as a sarcastic jab to the anti-software patent advocates, who at the latest tally still have zero people willing to give up the benefits of innovation that they would deem not protectable under the patent system – so much for integrity and being willing to put their money where their mouths are)
Here is a great article on the topic published yesterday. Clearly, innovation, and inventors are NOT the reason for AIA. link to venturebeat.com
Content aside, I kind of get exhausted with any commercial before the 60-second mark, even if it is as jumpy and fidgety as this one.
The jumpiness here is in stark contrast to your efforts.
Pay attention – this is pure marketing schlock – but it works. This is aimed NOT for those trained to be able to carefully scrutinize something and critically think about content. This is a pure hatchet piece replete with false and debunked soundbytes aimed at those whose attention span is maxed out at the jump level.
It is nothing more than a huge helping of Kool-Aid to motivate the lemmings for their march.
Any professional (and for this point, I would include the academics 😉 ) in this field should be deeply, deeply offended that this is the state of the discussion on patent law.
Hard to be offended while cashing checks.
Has anyone looked into where these patents owned by the “patent trolls” originally came from? I wonder if most are from small business themselves? So many assumptions with the “patent troll” argument, I just hope that Congress uses some empiracle thought before they go out and start messing with the marketplace.
Just gotta love the media blitz against trolls, paid for and sponsored by, of course, big business, with special attention to diverting attention from IP profit centers run by big corporations such as IBM.
Bad patents are a direct result of Congress’ Patent Fee Diversion policy over the last 20 years.
I have to ask, why the title “Stop Bad Patents”? Where in this video is there evidence that any of the alleged patents are “bad”? Quite misleading to simply state that title and link it to “Trolling” without further proof. In actuality one has nothing to do with the other and any so called “bad patents” don’t go away if trolling as they describe were to stop. Further, how might a patent owner go about enforcing their property rights? Simply not producing a product makes one a “Troll”? Wouldn’t elimination of all patents provide everyone with the “freedom to innovate” as so many pledge they cannot do because of the big, bad, patent Trolls? How far will this go in the end?
You’re way overthinking this. You’re treating it like an argument when it’s propaganda. You’re just supposed to absorb propaganda, not think about it.
Clearly it is propaganda, hence, the questions then become rhetorical. There in lies the problem, too much propaganda and too little facts and answers.
Birkenstock should check out that list of ad sponsors.
FYI, the listed sponsors:
1176 ( a Microsoft founding partner organization)
American Apparel and Footwear Association
American Gaming Association
American Hotel & Lodging Association
Application Developers Alliance
Coalition for Patent Fairness
Competitive Carriers Association
Computer & Communication Industry Association
Consumer Electronics Association
Electronic Frontier Foundation
Engine (The Engine Group – an advertising agency?)
Information Technology Industry Council
Internet Infrastructure Coalition
Main Street Patent Coalition
National Restaurant Association
National Retail Federation
Printing Industries of America
The Internet Association
U.S. Travel Association
1176 should read 1776
Don’t you think that this is a problem that has driven this country to ruin—that there is no one to speak for patents. Just as there is no one to speak for bridges or bank regulation or science or treating the poor well.
So, we get this bashing of patents and there is no counter argument presented. Shame of Fox (as usual) for not providing a counter arguments.
Professor Ted what about you taking up the cause of the bashing of patents? Or you are happy with your tenured position that Lemley got you and don’t care?
Ted cannot even be bothered to address the short list of facts I asked him to address.