Nobel Prize in Patent Law

Professor Thomas Cotter (Minnesota) has two Nobel Prize related posts on his Comparative Patent Remedies blog.

First, Professor Cotter writes about physics Nobel prize winner Shuji Nakamura who was part of the Japanese team that first developed an efficient blue LED which turned out to be a major stepping stone for the now popular general use of LED lighting for a variety of applications.  Japanese law requires that inventors of high-value inventions be reasonably compensated and Professor Nakamura was able to receive about $8 million from his former employer Nichia Corp. (but only after suing).  Apparently, Japan is in the process of removing this law so that corporate owners can retain a higher profit.

Second, Professor Cotter writes about the economics Nobel prize going to Jean Tirole who has written a number of important patent related articles — focusing primarily on patents relating to technology standards and network impacts.  Most recently, Tirole and Josh Lerner have distributed their article titled “Standard-Essential Patents“.-

114 thoughts on “Nobel Prize in Patent Law

  1. 6

    Is this claim of the Honoree (et. al) patent eligible?

    18. A method for fabricating a high light extraction efficiency light emitting diode (LED) structure, comprising:
    (a) wafer bonding a first optical element, comprising n-type ZnO, to a p-type layer of an LED, to form a wafer bonded structure, wherein the LED is comprised of an n-type layer having an n-type electrode, an active region, the p-type layer, and the n-type ZnO;
    (b) shaping the first optical element into an n-type ZnO cone to extract light emitted by the active region, wherein a base of the n-type ZnO cone is bonded to the p-type layer, and an angle, between a base and sidewalls of the n-type ZnO cone, is a critical angle;
    (c) placing a p-type electrode on top of the n-type ZnO cone; and
    (d) forming an interface between the sidewalls of the n-type ZnO cone and a second optical element, wherein the second optical element’s cross-section is a trapezoid, the interface extracts light emitted by the active region into the second shaped optical element because the second shaped optical element on one side of the interface has a refractive index lower than a refractive index of the n-type ZnO cone on the other side of the interface, the critical angle is determined from the refractive index of the second shaped optical element divided by the refractive index of the n-type ZnO cone, and most light entering the n-type ZnO cone from the active region impinges on the interface within the critical angle for refraction into the second shaped optical element, so that the trapezoid and the n-type ZnO cone provide at least a 500% increase in output power.

    It reads like : Bonding to get desired result; shaping to get desired result; placing (placing is old); and forming to get desired result, no?

    Since the method is not eligible as abstract, the apparatus claim recites nothing more than an assembly of known materials is also abstract. No?

    link to google.com

    1. 6.1

      It reads like : Bonding to get desired result; shaping to get desired result; placing (placing is old); and forming to get desired result, no?

      No.

      Since the method is not eligible as abstract, the apparatus claim recites nothing more than an assembly of known materials is also abstract. No?

      No.

      I hope that’s helpful.

      1. 6.1.1

        It doesn’t read like: Bonding to get desired result; shaping to get desired result; placing (placing is old); and forming to get desired result?

        What did I miss? How where does it not read as I have suggested?

          1. 6.1.1.1.2

            “The entirety of the claim apparently.”

            I guess you haven’t read the new 2014 Patent Act as passed by the SCOTUS. No such thing. No such thing as 102/103/112. There is only 101 all rolled into one with no evidence. The judge just sniffs the patent and proclaims it be good or it be invalid.

        1. 6.1.1.2

          You know this already, but you “missed” all the physical elements upon which the physical acts of “bonding” and “shaping” are performed. That’s more than enough to get us out of the realm of abstractness.

          For what it’s worth, there’s nothing wrong with a claim reciting “an intended result.” The only question is whether that intended result limits the claim in a meaningful way. Here, at least some of those “intended results” are structural relationships that most definitely limit at least the “shaping” operation.

            1. 6.1.1.2.1.1

              apparently they did not get your memo.

              Could you please cite the Supreme Court case which contradicts anything I just said? Thank you.

                1. Your post indicated that “physical elements” was more than enough to survive the labeling of “abstract.”

                  As Alice indicates, this is just not so.

                  You are welcome.

          1. 6.1.1.2.2

            All the physical elements? The work pieces? Its not the bonding that is eligible but the bonding of an “optical element, comprising n-type ZnO, to a p-type layer of an LED” in particular?

            That particular bonding step is eligible but the establishment of a shadow account is not eligible? Why exactly?

            Its not the shaping generally, but the shaping of a the first optical element that is eligible?

            But didn’t the Supremes say that limiting to a particular field does not save the claim? Isn’t that just the scrivener’s art?

            Or is it that shaping IS eligible but for some reason “maintaining” (i.e., updating) of a shadow account is not?

            1. 6.1.1.2.2.1

              That particular bonding step is eligible but the establishment of a shadow account is not eligible? Why exactly?

              Well, eligibility is determined at the claim level, but you are correct, a method that includes that particular bonding step is eligible but a method that includes nothing more than the establishment of a shadow account is not eligible. One reason is that a “shadow account” is not a thing. Instead, it’s just a concept.

              1. 6.1.1.2.2.1.1

                A shadow account is not a thing? Webster would disagree:

                1
                a : a matter of concern : affair
                b plural : state of affairs in general or within a specified or implied sphere

                3
                a : a separate and distinct individual quality, fact, idea, or usually entity

                link to merriam-webster.com

                an account, shadow or otherwise is clearly a matter of concern.

                1. Les,

                  I believe that Dan is making the error of not integrating the claims, and judging each element in a manner of dissection as to whether the element is a physical thing.

                2. “1
                  a : a matter of concern : affair
                  b plural : state of affairs in general or within a specified or implied sphere

                  3
                  a : a separate and distinct individual quality, fact, idea, or usually entity”

                  All of those sound like concepts to me just as he said. As opposed to “things”.

                  But more to the point, “subject matter eligibility” is based on the eligibility of the subject matter to which the claim is directed. Intermediated settlement is abstract in and of itself. Including all the sub-methods within that field. Including specifically the shadow account method etc.

                  LEDs and the formation thereof are definitely not abstract in any way shape or form. What so ever. As a simple matter of subject matter under consideration.

                3. 6,

                  You too are missing the understanding of the Alice case – please note what both parties stipulated to in that case – an aspect outside of the case or controversy domain of the Court’s holding.

                4. 6,

                  So a method of making an LED is not abstract no matter what?

                  1. A method of making an LED, the method comprising:

                  providing a substrate;
                  adding a layer to the substrate;
                  doping the layer to have a n-type portion and a p-type portion so that the n-type portion and p-type portion from a light emitting diode wherein the diode emits one of light having a wavelength in the blue, ultra violet, x-ray or gamma-ray portions of the spectrum.

                  Not abstract?

                5. Ned – If you are referring to the claim I presented to 6,:

                  1: I didn’t say it was functional at the point of novelty. I asked 6 if it was abstract. In an earlier post he said it was not possible to have an abstract claim to an LED.

                  2: I think you are mistaken. At the point of hypothetical novelty (blue, x-ray, gamma-ray) the claim merely recites the desired result (blue, x-ray, gamma-ray) combined with old, vague doping steps.

                6. 6

                  In responding to anon, are your referring to what I remember was a stipulation that a computer was required?

                  That is part of the point. The Alice court said adding a computer (“physical” though it may be) was not sufficient to render a claim not abstract.

                  That is part of the wonderful Alice in Wonderland aspect of Alice.

                7. “providing a substrate;
                  adding a layer to the substrate;
                  doping the layer to have a n-type portion and a p-type portion so that the n-type portion and p-type portion from a light emitting diode wherein the diode emits one of light having a wavelength in the blue, ultra violet, x-ray or gamma-ray portions of the spectrum.”

                  Doesn’t appear off hand to be abstract. You’re welcome to try to make a convincing case that it is, but you will no doubt fail save in your own mind.

                8. “In an earlier post he said it was not possible to have an abstract claim to an LED.”

                  I actually never stated such an absurd thing. If the subject matter of the claim is directed to an abstract idea, rather than actually to the LED that happens to be included in the claim, then there most certainly could be one. That simply does not appear to be the case with any of your hypos. You’re just pretending that it is to make a nice reductio ad absurdum argument. But that’s ok Lester, you’ve been doing that for years now, we all see them coming a mile away.

                9. “That is part of the point. The Alice court said adding a computer (“physical” though it may be) was not sufficient to render a claim not abstract.”

                  Right, because tacking on the computer is a transparent attempt to still claim the abstract idea in a somewhat smaller field of use (computers). We’ve been over this a gaz illion times but you don’t appear as if you’ll ever understand this very straightforward logic.

                10. Let me write this out for you very simply.

                  Mom (the courts) says you cannot eat a cookie (ineligible subject matter). Mom says that you instead may only have bread (eligible subject matter).

                  You, wanting a cookie, take two pieces of bread and put them around a cookie you want to eat and say “see m a? I’m not eating a cookie, I’m eating bread!”.

                  Mom says sh ut up and go to your room without the bread or the cookie (your patent is invalid).

                  That’s all this is about Lester, you wanting cookies, and the court saying you cannot have them. You cannot have them even if you dress them up with bread. You can of course have bread. You might even be able to get away with having some bread with some pieces of cookies baked in (Diehr) on occasion so long as they are not so pronounced as to have the bread be practically a cookie.

                  It is really no harder than that.

                11. “Right, because tacking on the computer is a transparent attempt to still claim the abstract idea in a somewhat smaller field of use (computers). We’ve been over this a gaz illion times but you don’t appear as if you’ll ever understand this very straightforward logic.”

                  Abstract Idea : Doing X

                  Claim A : A computer that does X.

                  Claim B: An LED that does X

                  Why is the computer abstract but the LED is not?

                12. Les,

                  The logic that the use of functional claiming was greatly expanded by the Act of 1952 is a valid counterpoint that will not be integrated into the discussions here.

                  Note my discussion on this very topic with Ned Heller using his own source of Frederico. Note how he disappeared from the conversation when I quoted Frederico as admitting to the great expansion. Note that the use of language that is functional is NOT limited to 112(f). Note that all of these valid points of law that I have put on the table for discussion are never accepted and integrated into the arguments put forth by those who would wish to see “objective structural claiming” be viewed as the ONLY legal method of claiming (of which, while a perfectly good option, is CLEARLY not so constrained by law).

                13. anon, you do appreciate, do you not, that I think that functional claiming of old elements is entirely permissible and should be encouraged?

                  The problem with the Federal Circuit is that it does not distinguished between old and new, but merely applies 112(f) to all functionally claimed structure regardless.

                  I also agree with you that 112(f) is purely optional — the Feds should never construe a claim according to that statute unless clearly invoked. But they have it that if a claim element is functional, it must be construed according to 112(f) regardless of whether it is claiming new or old structure. Why, one must ask? If that claim element is not at the exact point of novelty, the Supreme Court would have no problem.

                14. Ned,

                  Your “old elements” is equivalent to the canard of your use of “Point of Novelty” and simply fails to recognize the valid counterpoint that I presented to you during our discussion of the Act of 1952 and the very quote from Frederico.

                  You also continue to avoid discussing the FACT that functional language is broadly allowed by more than just 112(f), and that it is the claim as a whole that acts as the “point” when you have elements sounding in functional language.

                  You do need to realize your improper dissection propensity saturates your “PON” version of the law – and importantly how I have presented your own favorite commentator of the Act of 1952 as evidence that my point is correct.

                  You lean – in error – on 112(f), when that is one mere option of using functional language in claims (for example, in re Orthokinetics) – and clearly – under the law as written by Congress – the full legal intent of the use of functional terms in claims surpasses the viewpoint that you have chosen to champion – as well as the viewpoint that ONLY objective structural term claiming is allowed under the law for valid claims.

                  It is one thing to be “polite” and acquiesce to the point I make – it is quite another to disappear from conversations when they become “inconvenient” and it is very much quite another to ignore the valid points and refuse to integrate them into the discussions going forward.

                  Dialogues Ned – not recurring monologues please.

                15. Your view of 112(f) shows clear legal error.

                  You say “optional” but your writing shows the wrong type of “optional.”

                  An inventor does have the option of invoking 112(f), but importantly (as shown by Frederico – and case law) can STILL use functional language outside of 112(f).

                  I read your proposal here as merely stating that if an inventor options to use functional language (at your dissected PON perhaps), then the inventor MUST use 112(f).

                  That is simply NOT the law as written by Congress.

                  I see too that you attempt to bootstrap the Supreme Court into the equation on this point – and I fully – and respectfully – reject that attempt and remind you that our constitution allocates authority to write patent law to one – and only one branch of the government, and that branch is not the judicial branch.

                  Congress spoke in 1952. You really do need to accept everything that they said – including especially the broadened power to use functional language (at your beloved “PON” or otherwise).

                16. “Why is the computer abstract but the LED is not?”

                  Nobody ever said that the “computer is abstract”. Why do you insist on these straw men? Nobody will ever say that a computer, itself, is abstract. They DO say that the SUBJECT MATTER of the claim (or sometimes they just shorten that to “the claim”) is abstract in some instances of computer claims.

                  “Abstract Idea : Doing X

                  Claim A : A computer that does X.

                  Claim B: An LED that does X”

                  You will likely never find “an LED that does an abstract idea x” being claimed. But if you do, be sure to bring it to my attention so we can all have a good ol guffaw at the ta rd attorney that drafted the claim. Like I said, it is not impossible. It can happen. For instance, I had a claim to a “solid physical device in the real world” other than a computer (or LED for that matter) last year that I gave a 101 to because the claim for it involved some judicially excepted subject matter to the extent that the claim was directed to the judicially excepted subject matter. Wasn’t a big deal, the applicant just amended the claim to make it proper and went about his day. Simple as that. No problemo. 1 out of a hundred or so normal old school useful arts applications will have this problem.

                  On the other hand, you don’t have to barely even conduct a search and you’ll find computers “doing” abstract idea x that have been claimed and had a patent granted for them. Now they’re officially nixed (or should be) and barely anyone will miss them.

                17. anon, Ned –

                  Kindly do not hijack my thread off onto a 1952, 112(f) tangent.

                  Ned et al have argued that claims of the form vague hardware configured to do a function are abstract and not patent eligible when the hardware is a generic computer.

                  Here we have a similar format, but the hardware is something other than a generic computer. The hardware is instead generic LED structure. Ned thinks this claim is ok and I would like to explore why.

                18. Les, Why? Because there is nothing inherently wrong with functional claiming combinations. You might want to actually read Faulkner v. Gibbs – a case that I have cited and quoted here many, many times.

                19. Why what Ned?

                  I know there’s is nothing wrong with functional claiming.

                  It is you that is usually on the there side of that debate.

                20. Ugh! Les, Les, Les.

                  Please read more carefully what I wrote and please read Faulkner v. Gibbs.

                  I most emphatically do not agree with functionally claiming an invention.

                21. 6

                  You said: “You will likely never find “an LED that does an abstract idea x” ”

                  But, for the reasons given at 6.1.2.2.2.1, the claim at 6.0 is such a claim….

                  ” so that the trapezoid and the n-type ZnO cone provide at least a 500% increase in output power.”

        2. 6.1.1.3

          No,

          It does not. It contains a lot of details. Whether they are 102/103 bad is another story, but there is plenty of detail there.

          1. 6.1.1.3.1

            Details? Maybe. But any details describe the desired result. There is precious little describing how to achieve the desired result. If I’m wrong, please show me where.

      2. 6.1.2

        Les, very little of this claim is couched in terms of results to be achieved, and even that (e.g. one is “to extract light emitted by the active region”) is tied directly back to concrete physical structure (the person following the method must shape the optical element into the recited cone type).

        If I wanted to complain about this patent, I’d complain that the other recitation that smacks of “results to be achieved” has no referent in the claim and that the claim is therefore indefinite:

        “…so [as to…] provide at least a 500% increase in output power.”

        5X power output over what, exactly?

        I’ve heard it said that the cheese stands alone, but a patent claim claiming comparatively should need its comparator – in the claim, not in the spec – I would think.

        As an aside, does anyone else find it odd that they are still filing IDSs in the case years after it granted? To what effect? Public notice?

        1. 6.1.2.1

          – (apologies for any confusion, my reply was intended to be 6.4 from Les’s original, not 6.1.2 from DanH’s)

        2. 6.1.2.2

          very little? Below I bold all that I think is desired result:

          18. A method for fabricating a high light extraction efficiency light emitting diode (LED) structure, comprising:
          (a) wafer bonding a first optical element, comprising n-type ZnO, to a p-type layer of an LED, to form a wafer bonded structure, wherein the LED is comprised of an n-type layer having an n-type electrode, an active region, the p-type layer, and the n-type ZnO;
          (b) shaping the first optical element into an n-type ZnO cone to extract light emitted by the active region, wherein a base of the n-type ZnO cone is bonded to the p-type layer, and an angle, between a base and sidewalls of the n-type ZnO cone, is a critical angle;
          (c) placing a p-type electrode on top of the n-type ZnO cone; and
          (d) forming an interface between the sidewalls of the n-type ZnO cone and a second optical element, wherein the second optical element’s cross-section is a trapezoid, the interface extracts light emitted by the active region into the second shaped optical element because the second shaped optical element on one side of the interface has a refractive index lower than a refractive index of the n-type ZnO cone on the other side of the interface, the critical angle is determined from the refractive index of the second shaped optical element divided by the refractive index of the n-type ZnO cone, and most light entering the n-type ZnO cone from the active region impinges on the interface within the critical angle for refraction into the second shaped optical element, so that the trapezoid and the n-type ZnO cone provide at least a 500% increase in output power.

          …additionally, I submit that what is not bolded is not novel and/or is math.

          1. 6.1.2.2.1

            ooops missed a bit. this should be bolded to:

            wherein the second optical element’s cross-section is a trapezoid, the interface extracts light emitted by the active region into the second shaped optical element because the second shaped optical element on one side of the interface has a refractive index lower than a refractive index of the n-type ZnO cone on the other side of the interface, the critical angle is determined from the refractive index of the second shaped optical element divided by the refractive index of the n-type ZnO cone,

          2. 6.1.2.2.2

            Les, there is no problem in putting explanatory language in a claim to explain what is going on. The problems begins when the sole novelty is in one of these explanations.

            I see a lot of positive steps, including some implicit steps in the wherein clauses. Since I really do not know what is new or old, I cannot say that the claim is claiming the invention in an abstract way and otherwise filling out the claim with the old and conventional that add nothing.

            1. 6.1.2.2.2.1

              I agree, there is nothing wrong with functional claiming.

              The point I am making is that here is a perfectly legitimate claim by a Nobel laureate that the Supreme court would call abstract.

              Each of these claim elements uses very general terms to describe the step followed by detail regarding the desired result.

              For example, it says : wafer bonding without explaining at all how to form that bond. Elmer’s glue? welding? super glue?

              Instead it describes some aspect of the desired result.

              It seems all forms of bonding are encompassed / preempted.

              Shaping? How? with your fingers? a chisel? A grinder? etching?

              It seems all techniques for shaping are encompassed/preempted

              placing? it seems any manner of placing is encompassed/preempted.

              forming and interface? what does that even mean? placing two things next to each other? How? It doesn’t matter, as long as an interface is formed.

              It seems that all manner of forming an interface are encompassed/preempted.

              The claim is directed to the abstract idea of making an led.

    2. 6.2

      Les, you seem to believe that verbs are all necessarily abstract. You do know that “abstract” means “existing only in the mind”, right?

      I have done real-world bonding, shaping, placing, and forming when I built a picnic table. That was a lot of work, and certainly didn’t exist only in my mind. I still have the table to prove it.

        1. 6.2.1.1

          Except it isn’t the supremes making up wild assertions about the instant claim. It’s just you Lester.

              1. 6.2.1.1.1.1.1

                Each element of the claim, but for the old placing of the electrode on top (and even that is pretty desired resulty), is described by its desired result. Therefore, the claim as a whole merely recites a desired result.

                How do you arrive at some other conclusion?

          1. 6.2.1.1.2

            “…about the instant claims”

            That’s only because the instant claims have not yet appeared before the Court.

            History repeats.

      1. 6.2.2

        You do know that “abstract” means “existing only in the mind”, right?

        You do know that software is not something that exists only in the mind, right?

        (Let’s not confuse the thought of software with software)

        1. 6.2.2.1

          Anon: “You do know that software is not something that exists only in the mind, right?

          Well, of course I do. It’s the meaning being assigned to data that’s abstract.

          “Anon: “(Let’s not confuse the thought of software with software)

          Fine by me. But Les’ question (and my answer thereto) was not about software.

          1. 6.2.2.1.1

            The meaning assigned to anything is abstract – even purely physical things like “kitchen table” – right?

            (My use of software as an example has multiple levels of impact)

            1. 6.2.2.1.1.1

              (before you respond Dobu, draw your very physical kitchen table, and I will draw mine – what are the odds that our drawings will match?)

            2. 6.2.2.1.1.2

              “The meaning assigned to anything is abstract . . .”

              You’re so close, Anon. Sooooo close.

              You can assign meaning to the digital contents of a computer’s memory (e.g., shadow account balance), just like you can assign meaning to how many legs your table has (e.g., the number of margaritas that will fit in your blender). The meaning exists only in the mind, and is inarguably (yeah, I’m taking a chance picking THAT word) abstract.

              Kitchen table – I have one, supporting a pile of papers, a few books, and a dead (dead-ish?) potted plant. If it was abstract, all these things would all be on the floor.

              1. 6.2.2.1.1.2.1

                I am more than “so close” Dobu – much more.

                How is that kitchen table drawing coming along?

                (and as far as I can tell, your papers books and plant are also just as abstract as the table – and software)

                And just as importantly for the patent context, just as nonabstract.

                1. How many books can you stack on top of a shadow account, Anon? Can you stub your toe on it? Will it get wet if you spill water on it?

                2. Dobu –

                  Even if the book stacking test were pertinent, which it is not, the subject claims were not directed to shadow accounts. The subject claims were directed to a METHOD of intermediate settlement that involved the establishment and maintenance of shadow accounts.

                  You can stack books on a method of making Crestor, but I think even you would agree that a method of making Crestor is patentable.

                  Any rule that finds one of these methods eligible and the other not is purely arbitrary and without a justifiable reason.

              2. 6.2.2.1.1.2.2

                Why do I always miss-type the important words.

                … You CAN’T stack books on a method of making Crestor…

                1. no problem Les – your message came through – as did the error of wanting each and every element to be a physical element – and such is simply not a requirement when the law dictates that you judge by the integrated claim as a whole.

                2. You are confused. I want no such thing. I think the laureate’s claim is fine. I am nevertheless pointing out that under the logic of recent Supreme Court analysis, the claim preempts every method of making the LED because it relies on desired result to describe what is claimed and would be found to be abstract.

    3. 6.3

      Les, it is hard to tell exactly what is new in the claim simply by looking at it.

      Perhaps if you could review the prosecution history and tell us what is new, we could better answer your question.

      But if the novelty in the claim is not claimed in terms of a result, I see nothing fundamentally wrong with this claim on its face.

      1. 6.3.1

        Ned –

        There is nothing in the claim but desired result. Is there?

        Whatever the “point of novelty” is, it must be claimed as the desired result.

        So, in your view the claim is not valid, right?

  2. 5

    “Apparently, Japan is in the process of removing this law so that corporate owners can retain a higher profit.”

    As an alternative thesis, perhaps Japan is doing this to allow the “corporate owner” and the “inventor” to act on their own judgment as to the value of inventions the inventor can make in the context of the employment relationship, rather than being based on the arbitrary whim of a bureaucratic government official to determine what is “reasonable”.

    If the inventor is better off outside of the employment context (and the R&D lab) as a free lance inventor he should pursue that. If he is better off in the employment context he should pursue that. If he would be better off going to business school and not being an inventor by all means….

    If he wants a guaranteed minimum wage backed by force of law of a nanny state and independent of the taint of free judgement of the values exchanged between him and his employer he should move to the US and work for a fast food chain…

    1. 5.1

      Good points Anon2.

      I think part of the answer comes from the realization akin to unenforceable contracts of adhesion: the dynamics of employment do not have a level playing field between those who would employ and those who would be employed.

      Of course, this concern is larger (much much larger) than the mere result here in the patent context.

      1. 5.2.1

        On the contrary Lionel. The decision by the Japanese government to repeal a law which violates rights is laudable as the repeal of any unjust law is.

        So Huraaaahhhh!

          1. 5.2.1.1.1

            Here we may diverge (as I may diverge with the vast majority who may happen to read this). I answer because you have asked… even though it is not directly related to patents.

            Without snark:

            The proper role a government (of the unruled) is the prevention of the initiation of force (fraud etc.) upon individuals by use of its power of retaliatory force, which force is morally delegated by the individual. E.G. a man walking peacefully past another, or voluntarily trading with another is unmolested by government whereas a man initiating force on another e.g. engaging in theft, is met with retaliatory force (met with physical intervention, arrested etc.) by government which is performed on behalf of the non-aggressor (which the non-aggressor, but for his delegation of that power to government, would have been morally correct to use).

            IF government were to interfere with the man peacefully walking by another, or with a man trading voluntarily with another, or in any situation where is no initiation of force or fraud, i.e. where no rights are being harmed, such becomes initiation of force BY the government on the individuals. This is not protection of individual rights, this is the violation of rights: the right to freely choose how to deal and trade peacefully and voluntarily with other men, the right to be free to live by one’s own moral judgement. In this particular context: the interference with those rights comes in the form of imposing extra-relational, extra-contract, (i.e. external) “reasonable” compensation requirements on an arrangement between voluntary traders. This imposition of force on a peaceful voluntary arrangement is a violation of their rights.

            1. 5.2.1.1.1.1

              Thanks Anon2,

              And yes, we will disagree as government as you indicate does not exist and the fact that you do not take into account is that ordered society is not limited to the preventative aspects you portray, and that you further seem not to take into account the proactive regulatory aspects that we – as a society – have decided to employ (regardless of the individual who may not agree with those rules).

              Your notion of “extra” is far too loose, your notion of the individual is far too strong. This is not a “value-judgment” (as I personally like the strong individual bias), but an objective comment based on societal structure.

              Thank you for sharing your view.

  3. 4

    You can slice and dice numbers all you want but that paper by Learner is load of nonsense.

    The key is forcing the members participating in standard setting to sign real contracts for FRAND before they are allowed to participate. R. Stern was talking about this a couple of weeks ago on here.

    1. 4.1

      Albiet being personally clueless as to all the math that pervades the cited Toulouse economics article on standards settings, it seems focused on the FRAND license RATES? Getting agreements to that in advance would be practically impossible, and might even raise some antitrust concerns. The article even indirectly admitts at one point that there is no way to calculate the relative importance to the use of the standard of the various and variously owned patents that may be FRAND subject.
      There is also no recognition of the fact that many if not most of the standard-setting bodies are run by, and participated in by, scientists and engineers with no such background in economics, much less law. Which is why some of them had such poorly drafted participation rules, although that is now improving.
      Nor was there any mention of the two important recent U.S. District Court decisions developing methods of judicially determining the FRAND rate where the FRAND subject patent owner and the accused standard user could not agree on a fair and reasonable royalty rate.

      1. 4.1.1

        Paul, the point was not the rates, but rather that currently there are no contracts actually signed by the participants. That tight contracts for participating would end the gamesmanship. That without this fundamental problem in the transactions being fixed all their entire paper is nonsense.

        That was R. Stern’s point (and a point I have made as well, but Stern developed it several weeks ago on this board.)

  4. 3

    “Apparently, Japan is in the process of removing this law so that corporate owners can retain a higher.”

    Japan to remove the best thing about its patent laws. Sad. Lawyers all the time ruining patent systems.

      1. 3.1.1

        I would agree with you except for the fact that it is always the lawyers in such businesses with such ideas. “harmonization” etc. etc.

          1. 3.1.1.1.1

            Fine maybe so. I’d be interested to know why the business people, who have been at this for a long time, are suddenly making this push.

            1. 3.1.1.1.1.1

              6,

              It’s not that sudden – as it has never been the attorneys – but the clients that call the shots.

              Your “tendencies” should be objectively reviewed.

              1. 3.1.1.1.1.1.1

                Anon you’ve been so pleasantly absent this last month or so, don’t break your good streak on my account.

                1. Not sure how your post leads to meaningful conversation 6 – can you try again?

                  (…as I am certain that it was not your intent to post a mindless insulting putdown)

                2. “Not sure how your post leads to meaningful conversation 6 – can you try again?”

                  Hopefully it does so by persuading you to be pleasantly absent from said meaningful conversations.

                  That’s the best way :)

                3. Sorry 6, but please try again, as all I can see is the type of baseless insult that is not supposed to be posted in this new world order.

                  I certainly believe that you want to ‘do your part.’

                4. “Your “tendencies” should be objectively reviewed.”

                  ^looks like an insult to me. Or you trying to make an insult without making it overt because you now fear the wrath o the banhamma. You seem to be wanting to talk about insults and lack of substance for some reason today. You and NWPA, always crowing about how we insult you, or post without substance etc. etc. Of course that’s after you insult us etc. etc. It’s a fun game you guys play. We know.

  5. 2

    The “inventor compensation” systems that various other countries have by statute, and some U.S. universities and companies have by contract, have too often turned into more of a revenue stream for lawyers than inventors, as as well a source of co-worker fights to get named on patent applications for other than proper patent law reasons.

    But of course many if not most Nobel Prizes are for unpatenable basic discoveries or theories anyway.

  6. 1

    Does compensating inventors of high-value inventions encourage invention? Encourage the disclosure of inventions? Is it a good law/practice?

    1. 1.3

      What if the Nobel Prize goes to the first to publish, but the interference goes to the first to invent?

      Actually happened.

      1. 1.3.1

        Yes, and it also almost happened with C60 AKA Fulerine AKA the “Buckyballs” form of carbon. The PTO disgracefully mishandled that incipient political “hot potato” from that application not naming the same inventors as the Nobel Prize winners by throwing the application into the first other application they could find that mentioned that material even though that other application was only claiming a very specialized application of it and had never claimed to have invented the material itself, The Board proceeded with the “interference” anyway. However, I would like to think that the facts the other party put into the interference record eventually resulted in the application not issuing.

        1. 1.3.1.1

          More details. This patent application was not by the three scientists who won the Nobel Prize. It was filed by two other people, Donald R. Huffman and Wolfgang Kratschmer, several years after the initial publications by the Nobel Prize winners (which were made of record). {Apparently, none of the Prize winners themselves filed any applications on anything until years later.} Huffman and Kratschmer filed their first U. S. application on 8/30/90 as US SN 575,254, and a CIP of that on 9/10/90 as US SN 580,246.
          {There may well have been a divisional application with process claims pending also.} Then, the examiner, apparently realizing he had a “hot potato” application on his hands, requested an “interference”. An “interference” No. 103,281 was declared by the PTO with that CIP application on 12/2/93, over the objections of all the parties, who never had, and never could have had, the same or similar claims, and furthermore, had no priority or invention dates contest whatsoever! When the parties refused to actively fight each other over patentability issues, as the PTO apparently hoped, the PTO finally filed its own unpatentability motion.

        2. 1.3.1.2

          When I first joined the staff of CDC, I was told the story of an acquisition CDC had made that included some patent applications filed, IIRC, in the late ’50s. The applications were in an interference with the nobel prize winners for the invention of the maser (laser) link to nobelprize.org.

          Due to the cost of the interference, apparently CDC sold the applications to the inventors, who continued with the interference and eventually won. Then the inventors went around obtaining royalties from companies who had already paid handsomely for a license to the original maser patents — probably because they had received the Nobel prize.

          Every time I see or hear of the Clint Eastwood movie “A few dollars more,” I think of CDC’s decision to quit.

          But the complicating factor for CDC was this — it was widely cross-licensed. Winning the interference was not going to advance its cross licensing position, and CDC was not then in the patent enforcement business.

          1. 1.3.1.2.1

            Yes, and the PTO managed to cause and/or allow the pendancy of three of those Gould laser patents to drag on for nearly 20 years, to then finally issue and cover [suprise!] laser makers and users for another 17.
            Thanks to the current patent term laws, and the AIA gradual elimination of long costly and time consuming interference litigation, we should no longer see such long delays in deciding invention ownership and the patent enforcement period for ancient inventions.
            Except, apparently, for the still-pending ancient applications of Gilbert Hyatt with their hundreds of “re-greening” added new claims. How is his NV D.C. lawsuit against the PTO going?

            1. 1.3.1.2.1.1

              paul- i do not think that you can “lay blame” on the interference proceedings (nor ignore the fact that those same mechanisms have largely simply been rebranded (without material change) in the AIA.

              You mention his suit – and it should be noted that the suit is seeking to FORCE the Office to take action.

              The better question here is why is a government agency allowed to be so selective in the application of its duties?

              Selectiveness – and unequal treatment – are the bane of objectivity and fairness.

              Across the board.

    2. 1.4

      Fish, if ABC corp. offers hot-shot engineers/scientists a good salary and bonuses depending on company performance, and XYZ offers these same hot shots the same salary and instead a piece of the upside on their patented inventions, which do you think will win the competition to get the hot shots?

        1. 1.4.1.1

          Paul, takes me back to the time before law school when I was offered those large stock options. Ugh! I chose instead to go to law school and stay in So. Cal. near a girl I was then dating. The offer was up here in Silicon Valley.

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