The PATENT Act of 2015

Earlier today, Senator Grassley (R-Iowa) introduced the bipartisan Protecting American Talent and Entrepreneurship Act of 2015 (PATENT) Act.  The PATENT Act is a revised version of prior proposed legislation that addresses some of the most severe criticisms of those proposals.  It’s also well situated to move forward, as it’s supported by leaders from both parties.  From the bill’s summarv (Sec. 1 is the title and table of contents; Sec. 2 are definitions; if the formatting is messed up, click the link for the original source):

eliminated. Plaintiffs must identify each patent and claim allegedly infringed,
which products or processes are infringing, and describe the alleged infringement.
Allows plaintiffs to describe information in general terms if it is not accessible to
them. Clarifies that pleadings can be amended and allows for confidential
information to be filed under seal. Exempts 271(e) (Hatch-Waxman and biosimilars)
proceedings. Requires plaintiffs to make additional disclosures to the court and the
PTO about the plaintiff and the asserted patents shortly after filing.

SEC. 4. CUSTOMER STAY: Allows a case against a customer to be stayed while
the manufacturer litigates the alleged infringement, provided that the
manufacturer is involved in a lawsuit in the US involving the same issues. The
customer stay is available only to those at the end of the supply chain, who are
selling or using a technology that they acquired from a manufacturer, without
materially modifying it. Allows for a stay to be lifted where it would cause undue
prejudice or be manifestly unjust.

SEC. 5. DISCOVERY LIMITS: Requires a court to stay expensive discovery
pending resolution of preliminary motions—specifically motions to dismiss, transfer
venue, and sever accused infringers. Gives a court discretion to allow limited
discovery necessary to resolve these motions or a motion for a preliminary
injunction, or if it finds that additional discovery is necessary to preserve evidence
or otherwise prevent specific prejudice to a party. Allows parties to consent to be
excluded from discovery limitations. Exempts Section 271(e) (Hatch-Waxman and
biosimilars) cases. Clarifies that timelines for responsive pleadings provided by the
Federal Rules of Civil Procedure are not altered, and nothing prohibits a court from
ordering or local rules from requiring the exchange of contentions.

Judicial Conference to develop rules or procedures to address additional issues
involving discovery in patent cases. These include to what extent each party is
entitled to “core documentary evidence” and if they should be responsible for the
costs of production, and other issues involving discovery sequence and scope. Asks
the Judicial Conference to implement case management procedures for patent

SEC. 7. FEES AND RECOVERY: Provides that reasonable attorney fees will be
awarded if a court determines the position or conduct of the non-prevailing party
(plaintiff or defendant) was not objectively reasonable, unless special circumstances
make an award unjust. The winner must show that the non-prevailing party’s
position was not objectively reasonable and the judge must make a ruling for fees to shift – this is not a presumptive fee shifting rule. Fee shifting extends to cases
where a party attempts to unilaterally withdraw from a case on the eve of a trial.
Keeps 271(e) (Hatch-Waxman and biosimilars) proceedings under current law.
Fee Recovery: Requires a plaintiff to identify interested parties in the litigation,
and provides a process for a court to recover fees where the abusive litigant is
judgement-proof. If a plaintiff cannot certify it has sufficient funds to satisfy a fee
award, it must notify interested parties, who can opt out of their interest. Permits a
court to exempt institutions of higher education and qualifying parties in the
interest of justice.

SEC. 8. PRE-SUIT NOTICE/DEMAND LETTERS: Prevents vague patent
infringement demand letters from being preludes to litigation by requiring that
certain information be included in order for the letter to be considered evidence that
subsequent infringement was “willful”. If the required information is not in the
written notice, the recipient’s time to respond to a later complaint is extended by 30

SEC. 9. ABUSIVE DEMAND LETTERS: Provides that, if someone violates Section
5 of the FTC Act in connection with patent assertion and has engaged in
widespread demand letters abuse, civil penalties for FTC rule violations will attach.
The provision does not impinge on legitimate licensing activity or expand the
authority of the FTC.

SEC. 10. TRANSPARENCY: Requires patent holders to disclose to the PTO
whenever there is an assignment of interest in the patent that results in a change of
ultimate parent entity. If a patent holder fails to disclose, it will not be able to
recover increased damages of attorney fees (unless this would be manifestly unjust).

SEC. 11. IP LICENSES IN BANKRUPTCY: Makes clear that as a matter of public
policy, US courts will not recognize the action of a foreign court to unilaterally
cancel a license to a US patent or trademark if the licensor goes bankrupt. Extends
current protection of licensees of US patents in bankruptcy to trademarks.

educational resources for small businesses targeted in patent suits and to provide
support to companies named in infringement actions. Instructs PTO to create a
section on its website that will list pending patent cases, so that recipients of
demand letters and defendants in lawsuits can more easily identify ongoing
litigation that may relate to their case.

SEC. 13. STUDIES: Provides for three studies on 1) the secondary market for
patents; 2) the possibility of a pilot program for a patent small claims program: and
3) business method patent quality.

SEC. 14. TECHNICAL CORRECTIONS: Technical corrections and improvements
to the AIA.

SEC. 15. EFFECTIVE DATE: Date of enactment except as otherwise provided.

SEC 16. SEVERABILITY: Should any portion of the law be held invalid, this
provision allows the rest to stand.

The full text of the bill is available here:

(Entirely unrelated but also in Sen. Grassley’s Instagram feed: a few hours later he met with my Dean and the Deans of the University of Iowa College of Engineering and Division of Continuing Education.)

165 thoughts on “The PATENT Act of 2015

  1. 14

    Patent law is hardly the only body of law used by unscrupulous sorts for shakedowns. It is just one that has more recently come to the fore…and in most instances, so it seems to me, is being used/abused by persons far removed from practicing the full gamut of patent law (many of whom are not even eligible to sit for the USPTO exam, but get to dabble in the law by virtue of somehow having passed a state bar exam). In a way I liken them to the shakedown artists who abused California’s B&P Code a few years ago until the legislature and State Bar finally got off their duffs and put their feet down to curtail such practices.

    The unfairness of much of what goes on is manifest, but rather than jump to the conclusion “Damnit…we need and must pass a law (not necessarily one we really need, but one that makes us look like we really, really care)!”, I am incllined to ask just what the heck are trial judges doing these days? Why are they allowing abuses to happen? Why are they allowing fishing expedition discovery that unnecessarily runs up costs?

    Quite frankly, as much as I look with disdain upon ambulance chasing opportunists, I am more troubled by the abject failure of so many in the judiciary to keep tight reins on their calendars and ensure that the adversarial process in all matters before them is efficient, timely, fair, affordable, holds counsel and clients alike accountable, etc.

    1. 14.1

      Mr. Slonecker,

      The easy answer is that that just makes too much sense.

      Why focus on the available means and objects within your existing sphere of influence, when such does not reach the ability to reshape the wax nose to your possible philosophical bent?

      Why hold the judiciary responsible for the power they already have?

      Why hold the Patent Office (and examiners) responsible for the power they already have?

      To do so simply will not obtain more power for these entities.

      Who cares if steps are available NOW?

      There is just so much more to be gained by not taking those logical steps.

    2. 14.2

      20 more American companies hammered on this one right now. Not only for the fees, which are absurd enough, but they are also locked in to a potentially years long litigation with large, unknown potential damages at the end- a situation that can erode ability to raise capital, to fund R&D, or to stay competitive with others who have not acquired a vicious parasite. And all for what? To protect “intellectual property” as disclosed in this patent? Alice did little and was quickly neutralized. No judicial action will do anything. This will not stop until Congress acts, but none of the proposed laws will solve the problem either. Nibbling around the edges won’t do. Non MoT Methods and per se software must be eliminated from the patent regime.

      Behold the innovation:

      US 6,266,674 B1 Priority Date: 03/16/1992

      1. Method for storing information provided by a user which comprises: in response to user input, receiving and storing information;

      in response to user input, designating the information as data while the information is being received;

      in response to user input, designating at least a portion of the information as a label while the information is being received;

      in response to user input, traversing a data structure and providing an indication of a location in the data structure;

      in response to user input, storing the label at the location in the data structure; and

      associating the label with the data.

      1. 14.2.1

        Today’s lovely drive-by monologue of non-existent wanna-be law brought to you courtesy of the one that does not want to understand real law.


          Not only that, but our local infringer, according to the facts of his case (not legal advice), would not be an infringer had he merely documented and made public his software system at the time when he built the software system. It appears that had Martin taken the time to learn the law then he wouldn’t be in trouble now (and endlessly annoying us.)

          (This is according to the fact pattern that Martin gave us and should not be construed to be legal advice.)

    1. 13.1

      Maybe “tangible” has a different meaning under state law? I mean, it seems if you can steal software and people are angry enough to bring a lawsuit against you for the theft, it’s “tangible” enough.

    2. 13.2

      “Tangible” most likely should tie the “idea” of software to both the patent and copyright contexts.

      It can be critical to grasp the concept that the thought of software is different than software.

      Of course, those that recognize that software is defined to be a manufacture in its own right and a machine component are likely to readily grasp that software is not something TOTALLY in the mind, and will be more mature in recongizing that the different aspects of software gather different protections under the different Inte11ectual Property laws.

      Those that recognize certain aspects of software gather copyright protection, and that tangibility is a requirement for copyright protection can readily grasp that software is tangible.

      Likewise, those that recongize that certain aspects are not covered under copyright law (notably the utility aspects) will readily recognize that these aspects are meant to be covered by patent law.

      1. 13.2.1

        What I find interesting about this is how the anti-patent’s movement characterization of software plays into other areas of the law.

        According to what some of the anti-patent movement says software is nothing but logic rules so how can you be prosecuted for logic rules?


          It goes deeper, as “logic rules” are just math, and you cannot obtain copyright for “just math.”

          Note how the dialogue evaporates when a full discussion is sought on these matters.

  2. 12

    If patent owners are to provide claim charts for every claim and every product, perhaps requiring the filing of 10,000 page complaints, wouldn’t it be fair if infringers were required in the same manner to provide claim charts for counterclaims for invalidity, showing every element in every reference for every claim alleged to be invalid? Now we get to the 10,000 page counterclaim, which of course must be filed within 20 days.


    1. 12.1

      There’s a huge difference between sueing someone for patent infringement, on one hand, and being the target of the lawsuit on the other.

      The plaintiff typically has plenty of time to deliberate and consider strategy before initiating suit. The provisions here are designed to force the plaintiff to actually engage in some thinking prior to filing suit, as opposed to simply filing in East Texas and waiting to see what happens.

      If patent owners are to provide claim charts for every claim and every product, perhaps requiring the filing of 10,000 page complaints

      That should never, ever happen. If that’s happening, then there are far bigger problems with the patent system that need to be addressed.

      wouldn’t it be fair if infringers were required in the same manner to provide claim charts for counterclaims for invalidity, showing every element in every reference for every claim alleged to be invalid? Now we get to the 10,000 page counterclaim, which of course must be filed within 20 days.

      Assuming for the sake of argument that a 10,000 page patent infringement complaint was filed, what’s “fair” about such a requirement? Plaintiff certainly had more than twenty days to figure out the meaning of its own claim terms and its theory of infringement.

      As we know, the game is routinely played by plaintiff’s throwing in the kitchen sink and seeing what sticks. Does anybody have the stats on how many patent claims filed in East Texas are dismissed at summary judgment? And how many of those dismissals result in fee shifting or sanctions (the answer is “not enough”)?

      1. 12.1.1

        MM, the way statute reads, it does seem to require a claim chart for every claim and every product, and if there is a mistake the whole complaint might be dismissed.

        In actual cases, one does not actually have to provide a claim chart for every single product if one can provide a basis for asserting that other products infringe because we know that they include XYZ circuit, for example, or that they must infringe because they comply with XYZ standard or specification.

        As I said, my concern is that the legislation seems to impose a mandatory pleading requirement that essentially involves a claim chart for every claim and every product. This could result in a 10,000 page complaint if taken literally.


          “MM, the way statute reads, it does seem to require a claim chart for every claim and every product, and if there is a mistake the whole complaint might be dismissed.”

          Do you really think a court would interpret the statute thusly Ned? Do you think the federal circuit is going to let that stand?

    2. 12.2

      Ned. If you are a business owner and you are sued for patent infringement, shouldn’t you at least know what is being accused? Is it the copier you use, your payroll system, or your customer service software? Shouldn’t you be able to look at the complaint and have some understanding whether you need contact your copier supplier, or payroll system supplier and what are you doing that they think infringes their patent? Currently, we have a system where the patent owner can file suit by simply stating I have a patent and you infringe without supplying any basis for the allegations. If you are a legitimate patent owner, before you file suit you have done your homework and done your claim charts. To suggest that these complaints need to be 10,000 pages to meet the requirements is unrealistic. Providing some facts and the reason for a suit that will cost millions to defend isn’t so onerous and the bill provides loopholes to address situations where a patent owner doesn’t have all the facts and can still file suit.

      1. 12.2.1

        Carry, what is wrong with simply identifying every asserted claim and every product that allegedly infringes, without providing a claim chart?

        As to whether one needs to file a 10,000 page complaint depends on the number of claims and the number of products, and whether or not the legislation actually requires a claim chart for every product and every claim. I think the legislation actually requires a claim chart.

        As to whether one might have to claim indemnity, that is something particular to a company and their contracts with their suppliers. Almost no supplier will indemnify against contributory infringement. Certainly the Uniform Commercial Code does not require it.


          Because if someone is accused of infringing that could cost millions to defend, they should obtain some reasonable notice of why they infringe. If I am Dell and sell a computer, is it the memory, the processor, is it the operating system or browser, is it they keyboard software, the mouse? Providing reasonable notice of why I infringe through a claim chart isn’t unreasonable. I agree that this shouldn’t be onerous and an we don’t want this provision to be an impediment to valid claims. But every patent plaintiff should be doing a claim chart before filing suit. A defendant ought to be able to figure out from the complaint what exactly is being accused of infringing and why.


            Carry, let us be clear, it is the claims. If the claims cover the Dell computer, Dell simply cannot pass off to its microprocessor supplier responsibility for the infringement claim.


              And it should be obvious why maltreatment of claims – be it through the “Gist/Abstract” sword or perhaps the unwillingness to treat the claim as a whole, that yields the greatest mischief in patent law.

    3. 12.3

      provide claim charts for counterclaims for invalidity, showing every element in every reference for every claim alleged to be invalid? Now we get to the 10,000 page counterclaim, which of course must be filed within 20 days.

      Just to point out the ridiculous hyperbole here – The office routinely files documents which show “every element in every reference for every claim alleged to be invalid.” They routinely do it in under 20 days, and it does not take 10,000 pages.

      That being said, MM is obviously right that there’s a clear asymmetry between the plaintiff and defendant, and it’s ridiculous to suggest that the defendant respond within the 20 day timeframe.

      1. 12.3.1

        Did you mean to be self-conflicted with your “ridiculous” statement, Random…?

        Read again what you wrote – slowly. See if you can realize the contradiction.


          There’s only a contradiction if you don’t know the law or read what I said. I was simply making the point that a 40 page action is nowhere close to this supposed “10,000 page” invalidity defense. Ned is making it sound like this rule, along with “fairness” will require a ridiculous amount of work that few defendants could prepare and that no judge could reasonably handle. It will not.

          But just because the rejection document is relatively short doesn’t mean that a 20 day window makes sense. You can find art in 20 days, but it probably won’t be the best art. You can map a claimset, but the claimset is subject to a lower standard of review. Most examiners generally don’t engage in legal argument. When they fail, they try again. It’s ridiculous to ask someone to formulate a legal defense to a multimillion dollar action when you won’t even know what the state of the art is until you’re halfway through your window.

          Just because an argument can ultimately be boiled down into a relatively terse document doesn’t mean it’s “fair” to give one side years to prepare an attack and the other side less than a month to respond. The fact that one CAN mount a defense in that amount of time doesn’t mean they should be made to or that it would be just to make them.

          There will not be 10k page counterclaims. That doesn’t mean you should only give someone 20 days to generate it.


            Nice FAIL Random – you cannot have your “logic” work both ways, as the caveats you seek for the one apply fully for the other.


              You’re right anon, the law never distinguishes procedurally between the plaintiff and defendant.

              You’re so intelligent. I’m going to you for all my law questions.


            Random, the examiner may consider 95+ references, but the OA generally uses the best art only. In reexaminations and in court, the infringer generally files scads of “counts,” using large numbers of references and combinations, the more the merrier. By trial, a lot of this is sorted out, but not initially.

            In court, the infringer has to file what are known as preliminary invalidity contentions. These are claim charts just like the claim charts for infringement but mapped against the prior art. These correspond claim charts in IPRs petitions.

            So, with a large number of claims and a large number references, the number of pages for these preliminary invalidity contentions can match in volume the preliminary infringement contentions filed by the patent owner. It may not be 10,000 pages, but it will be quite a few.

            Consider that it might cost $1,000,000 or more simply to prepare the claim charts comparing claims against products. Thus the upfront cost to prepare a complaint could be extremely expensive. Further, if the infringer were required to provide similar claim charts for his counterclaims of invalidity, these expenses could be enormous as well.

            I simply do not see the utility of putting into a complaint what is now put into what we know as preliminary infringement contentions and preliminary invalidity contentions. It simply not necessary.

            Further, by forcing the filing of such expensively produced claim charts in a complaint, one truly sees what is afoot. It is not notice the infringer bar is seeking. It is a barrier.


              I simply do not see the utility of putting into a complaint what is now put into what we know as preliminary infringement contentions and preliminary invalidity contentions. It simply not necessary.

              Well the utility is that you can motion to dismiss prior to any discovery, couldn’t you? The intent is to prevent (whether you’d agree with the characterization or not) “fishing” for infringement, you have to know there’s infringement prior to filing, and thats the intent right? As you say, you’re going to be doing the charts anyway, so it’s not raising the cost of an action you’re going to go forward with anyway.

              I’m not saying its the right call here, I’m smart enough to know I don’t know. I’m simply saying its not without its logic. How would you delineate fishing expeditions? Or do you think they ought to be allowed?

      2. 12.3.2

        The office routinely files documents which show “every element in every reference for every claim alleged to be invalid.” They routinely do it in under 20 days, and it does not take 10,000 pages.

        Uh, given Dennis’s more recent post, didn’t you mean to say that they routinely do it in more like 540 days?

        They also don’t waive their right to make up new rejections later, in case the first ones don’t stick.


          Uh, given Dennis’s more recent post, didn’t you mean to say that they routinely do it in more like 540 days?

          When a case is first up on an examiner’s docket they have 28 days to do it. Most of the time it’s done before that. 540 days doesn’t matter when 510 are waiting in line.

          They also don’t waive their right to make up new rejections later, in case the first ones don’t stick.

          That’s true as I say above.


            When a case is first up on an examiner’s docket they have 28 days to do it. Most of the time it’s done before that. 540 days doesn’t matter when 510 are waiting in line.

            Well alright, then. I’ll just tell the judge, “Your honor, our associate will turn around those invalidity charts in 20 days, after it shows up on his docket in 18 months.”

    1. 11.1

      If these are “good measures,” than why are these not good measures across the board,

      Why the pharma carve out?

      This should be seen for the purely political play that it is: keep the pharma big money interests on the sidelines.

      Can anyone provide an objective, non-political alternative reason why these “good measures” are not being universally applied?

      1. 11.1.1

        Becuase 271(e) is a statutory act of infringement. For at least (a)(3) and (4), there is no generic product available for the brand company to determine which claims of the Orange Book-listed patents are infringed.


          The status of statutory act of infringement is not germane to the point here.

          A for effort, but no objective reach.


            A for effort, but no objective reach.

            What? You asked for an answer as to why certain sections don’t apply to 271(e) actions. You were told that it’s because there is no actual accused product in those cases – therefore it makes no sense to generate claim charts or to do product-related discovery. I’d say that the “status of statutory act of infringement” is quite germane.


              You misaim as to where the carve-out is DanH. The carve-out is for this “anti-Tr011” legislation – and if the “benefits” of this legislation are “so good” it makes no sense to carve out those benefits/responsibilities/reach for the pharma group.

              You have taken your eye off of the ball.


                Anon- I reiterate my post, which was qualified.

                “For at least (a)(3) and (4)… .” I did not comment on the other carved-out sections because I have no idea why they were carved-out for pharma. I merely pointed out that for (a)(3) and (4) there appears to be a logical reason that pharma was carved-out.


                1. Your post no matter how qualified missed the point.

                  Repeating yourself doesn’t make the miss into a hit.

                  (move the goal posts back to the actual discussion point, thanks)

                  “Sheesh!” right back atcha.

  3. 10

    PATENT Act written for Big companies so they can steal from small companies.

    This bill requires a startup to “guarantee” that it has Funds to cover the cost of Goolge/microsoft/facebook lawyers.

    The startup has to provide a certificate to the court that it has the FUNDS to cover Googles/cisco/microsoft lawyer fees!

    It is bad for the small companies, Because a small company will never be able to enforce their patents!

    Before saying it is the good thing. Please go read the Bill.

    link to

    Page 26 Line 7 -15

    Not later than 45 days after being served with an initial state-ment under subparagraph (A), a party alleging infringement shall file a certification that—

    (i) establishes and certifies to the court, under oath, that it will have sufficient funds available to satisfy any award of reasonable attorney fees under this section if an award is assessed;

    That mean if you are a startup: you will never be able to go after Google, Microsoft, Facebook, or any other big company.

    This would be the biggest gift to the Big company Lobbyist from the congress. It is bipartisan because both republican and democrats what these big companies to write checks to them.

    Great day for crony capitalism !

    1. 10.1

      I think you’re missing the next (ii)-(iv).

      Your argument would be stronger if you didn’t leave out parts (ii)-(iv) of an “or” statute.

      1. 10.1.1

        Please read it again ..

        “OR” Applies to only for iii and iv,

        i and ii are required.

        Example: if you are a startup and microsoft/google stole your IP and have made your company bankrupt,

        for (i)how will you come up with a the required certificate “guarantee” for Funds and

        for (ii) what will you say about your bankrupt businees now .. because all you have left is IP now ?


          if you are a startup and microsoft/google stole your IP and have made your company bankrupt



                MM, I’m not so sure I understand your position on i4i’s patent. Why do you think it should not have been granted?

                1. It is plainly obvious: the Red Queen has issued her edict. How dare you want more than that.


            One More Example what “Google” did to the Startup company VSL ‘s video optimization IP

            link to

            link to

            Again read up on the case and VSL technology BEFORE you comment with one or 2 lines

            Google / Microsoft / Facebook / Cisco All want this so they can intimidate smaller companies to sell their IP for pennies on the Dollar.

            No one thinks Google is spending $17 million lobbying to make sure mom and pop shops / retail stored don’t get nuisance value demand letters !


              It’s super important to Brian Smith that “start-ups” get to sue Google, Facebook, and Microsoft.

              VSL technology

              Let’s see the claims, Brian.


                As i mentioned before .. read up before commenting with one liners …

                Here is the VSL patent# and claims … European Patent EP 2 026 277

                link to

                Go read it and disassemble for all of us and let us know how anyone lawyer can come up with these claims and how they are obvious or invalid …

                at least try to be original or off script this time ..

                1. At last a decent software patent! It is data compression related. The basic idea is to chop a picture into rectangular pieces.

                  For example the American flag would become 14 pieces:
                  7 red rectangles
                  6 white rectangles
                  1 blue square with stars

                  For the red stripes, instead of sending every red pixel, you send 1 red pixel and the size of the rectangle.
                  For the white stripes, instead of sending every white pixel, you send 1 white pixel and the size of the rectangle.
                  For the blue square you send the whole thing.

                  I am surprised that no one had thought of this before 2002 but the PTO said it was true. JPEG2000 for example uses tiling but all tiles are the same size.

                2. I am surprised that no one had thought of this before 2002

                  Define “this.”

                  People have been saving space by breaking information down and using shorthand/symbols to represent duplicated information for eons. Call it “compression” or call it “using your brain.” It’s just logic. And logic isn’t eligible for patenting.

                  Handing out patents on information processing logic turns the patent system into joke. Again: it’s the main reason that we are seeing all these reforms which the lovers of junky software patents despise. And they refuse to talk about the problem except to smear everyone who points it out as “anti-patent” or “anti-innovation.

                3. MM, “just using your brain”??? So now using your brain to invent is per se ineligible for patentability? Information processing is what you are paid for MM. Information processing machines are projected to replace 10’s of millions of people over the next 10 to 20 years.

                  Information processing is extremely hard. There are probably more people in information processing with IQ over 150 than any other science.

                  But, we know you get paid to push the propaganda of the anti-patent movement. The stuff they generate is geared toward the uneducated.

                4. Let’s use some of that same logic that Malcolm uses in a different art field.

                  Let’s again look at my big box of electrons protons and neutrons.

                  People have been making things using configurations of electrons protons and neutrons for eons. The manner in which these configurations stay together have been the same for eons. And electrons protons and neutrons are not eligible for patenting.


                  (and that is not even noting the fallacy that Malcolm implicitly engages in here by trying to conflate the thought of software with software and his implicit moving of goalposts to claims TOTALLY in the mind, which only he argues about).

                  Same old dissembling C R P Merry-Go-Round yet again….

                5. I wouldn’t get too excited about the patent claims I see (are these from an actual “patent”?). You have to be careful with the EPO Examiners, as they can read the invention into the claims. Doesn’t claim 1 read on JPEG or MPEG? My remembrance of JPEG is that you divide a picture into blocks of pixels. For each block, you determine an average, and they you encode the pixels as differences from the average. If the block is all one color, then you can condense this to basically the just the average plus an indication all other pixels are the average. If you have a lot of blocks of one color, then you can really reduce the stored size. If the blocks contain pixels that are highly variable, then the reduction in size isn’t as much.

                  To me, claim 1 seems very close to what happens in JPEG.

                6. NWPA: So now using your brain to invent is per se ineligible for patentability?

                  Somehow you and “anon” keep managing to confuse

                  patent claims that, on their face, protect information-processing logic


                  innovations that require logic to create (pretty much everything).

                  There’s a huge difference beween the two. I can see the difference. Why can’t you two see it?

                  We all know the answer to that question. You two should take some time off this weekend and think about it.

                7. Information processing is extremely hard.

                  Some of it is.

                  But the overwhelming majority of it is incredibly easy and second nature for most human beings.

                  And a lot of the really hard information processing that people do is ineligible for patenting and always has been, everywhere in the world, and nobody ever seriously questions why that has always been the case. Given that fact, it’s unclear what point you’re trying to make.

                8. More dissembling from Malcolm, as he is the one that attempts to confuse claims by his nigh constant attempts to have claims be on things TOTALLY in the mind.

                9. It is pretty clear that MM attempts to disrupt any discussion that doesn’t fit the policy sheet his employers send to him daily.

                10. You give Malcolm too much credit with the notion of a daily updated policy sheet.

                  He has been stuck with the same stale and trite script for nine years and running.



              I think it’s telling that VSL is refusing to let anyone see the allegedly “incriminating” Post-It notes.

              I’m glad you’re not on the jury, because it looks like you’ve already found for the plaintiffs based on nothing more than their filing.


            Google VS Startup Skyhook

            Google stole their technology, IP, intimidated their customers, made them almost bankrupt, and after 6 years “settled”

            link to

            link to

            Also it would help if you read the history, patents and technology involved before you comment with one liners


              From Brian’s link:

              Two of the four patents [Skyhook] originally asserted were dismissed

              We all know how you guys operate, Brian.

              Try harder, please.


                I am assuming you were not able to comprehend what “two of the four” means ? or do you only know how to count till 2 ?

                This will give you an idea on how BIG companies bankrupt smaller rivals ….

                The 10 Best Emails Exposed In The Google-Skyhook Lawsuit
                link to

                1. The invention:
                  1)GPS Map out the location of WiFi hotspots by driving around in cars with WiFi hotspot detectors which record where the car is when they detect the WiFi hotspot

                  2)Store the GPS and HotSpot data in a database

                  3)Lookup the location later based on what WiFi hotspots are nearby to where your phone is.

                  Was the idea of lookup your position from the location of the nearest WiFi really new in 2004? Storing and retrieving it from a database does not add very much (if anything) to the innovation. It sounds more like the idea for a business rather than an invention.

                2. I am assuming you were not able to comprehend what “two of the four” means ?

                  Keep digging, Brian.

                  Here’s your problem: practicing the claims of junk patents is something that both ordinary people, little companies, and big companies do all the time. How can they help it? They’re are hundreds of thousands of junk patents out there.

                  On the other hand, sueing someone — anyone — on a junk patent or on some other baseless claim is what toxic j rks do. And your beloved little “start up” did that twice.

                3. This will give you an idea on how BIG companies bankrupt smaller rivals ….

                  Also amusing is how Brian seems to assume that his beloved little “start-ups” are innocent angels who would never, ever pretend that they weren’t aware of some prior art or who never ever make an embarassingly ridiculous argument to obtain a junky patent.

                  But pretty much every week the CAFC treats with another pile of Rule 36 affirmances of tanked claims demonstrating that the exact opposite is true.

                4. seems to assume

                  But Malcolm is free to assume the very opposite and lambast “grifters” and patent applicants as base and nefarious abusers on a constant basis without a shred of evidence – and no Malcolm, rule 36 affirmances are NOT evidence of the malfeasance that you accuse.

                  Nine years and running of this type of rampant ad hominem goes unchecked with the perception that open attacks are encouraged. Ahhh, were “pleading standards” tightened equally, we would be free of this type of propaganda taint and actual dialogues might blossom in this “ecosystem.”


              You’re linking to Mueller‘s blog as if it’s in any way a credible source of information?! Good lord, man, before you criticize ANYBODY for not doing their research, look into the qualifications of the people you’re citing. Mueller‘s opinions have been known to be for sale since the Groklaw days.

              At least Law360 is reputable, but a lack of interest in a paid subscription is preventing me from seeing more than just the intro.


          I don’t think that’s correct.

          it say, “(i)…; (ii)…; (iii)…; or (iv)….” doesn’t it? What am I missing?


            Jane, your analysis seems correct to me. So, you could meet the following if you’re a startup:

            (ii) demonstrates that its primary business is not the assertion and enforcement of patents or the licensing resulting


              So what happens when Google / Microsoft have stolen your technology and made you bankrupt .. and IP is the only thing left on the table for the startup ?

              What do you say to the investors in that company ?

              That the US court system will not help you ?


                So what happens when Google / Microsoft have stolen your technology and made you bankrupt

                You come here and cry.

                1. NO you Sue them


                  let them hire MM to cry on these boards about how a billion dollar multinationals are being help accountable for their stealing


                Brian, I’m not arguing with you. I’m just pointing out that this particular section can be read differently than the way you’re reading it.

                I think that attempting to target NPEs probably also will target some start ups. I’m not sure how to handle that.

                1. Given that being an NPE is perfectly allowed under the law and that separation of ownership from the inventor is a foundational aspect of US patent law, people should be troubled by the “per se” targeting of NPEs.

                  The kool-aid drinkers are winning with this legislation.

                2. This is a reply to Anon. I’m not anti-troll per se. As a former in-house attorney for a (large) company that was sued by a troll, I can see why people are against trolls. Having said that, whenever anyone tries to target one class of entities or claimants, other entities who are not patent trolls are also likely to get affected.

                  I was also at a law firm where one of the attorneys used to work for another large company. He told us of a story of yet another large company extorting his former company based on patents. They wanted license fees. Is that worse than patent trolls? If so, why all the emphasis on patent trolls? If you have a large patent portfolio and use it to browbeat people into paying fees, why is that better than a troll that sues people over validly procured patents? They both affect the economy, yet licensing is “good” and patent trolls are “bad”.

                3. PatentBob,

                  You ask questions LOADED with assumptions.

                  Whether or not “people are against ‘Tr011s'” is quite beside the point and indicates MORE a level of kool-aid and LESS a fundamental understanding of the U.S. Patent system.

                  To that extent, you appear to miss the point that targeting of the so-called ‘Tr011s’ is likely troubling in and of itself. And that is whether or not any other entity is “caught up” in the definition.

                  The notion of “extortion” already is covered under existing laws.

                  If the problem is extortion, then the answer already exists under those laws (in other words, here too is a clue to watch for kool-aid).

                  NOT all types of licensing activity are equal – clearly.

                  Beware those wanting to focus on the who.

    2. 10.2

      There may be other ways to deal with this issue. But this does have an interest of justice exception. We all know what this provision was meant to deal with. It is the lawyers and trolls who form shell companies with no assets to assert frivolous patents. In those cases they should need to certify that they have funds if their positions are not objectively reasonable. A pretty darn low standard. Personally I have some reluctance on fee recovery, but not for the same reasons many others will have. While we can debate the standard, I believe Rule 11 isn’t sufficient disincentive for plaintiff’s to file frivolous suits. When a plaintiff imposes substantial expenses on a defendant for positions that are not reasonable, shouldn’t there be some costs imposed? Absent some interest of justice (such as sole inventor) shouldn’t they have some obligation to show they can pay instead of hiding behind a shell corporation?

    3. 10.3

      if you are a startup: you will never be able to go after Google, Microsoft, Facebook, or any other big company


      And never mind the facts that the patents manipulated by these “start-ups” are almost always junk that should never have been granted in the first place.

  4. 9

    Think we could add a clarification to 35 USC 101/100 to make it clear to the courts that process means process, no, really processes, all processes are patentable?

  5. 8

    This bill is a reasonable common sense way to deal with a number of problems.

    SCOTUS has realized through Twombly that a complaint should provide a reasonable amount of information to show that the plaintiff is entitled to relief. Unfortunately, the federal Circuit has said that Form 18 is all th at is required even though it does not comply. What is so wrong with letting someone know what you are accusing and why? If you are a troll seeking to extract extortion settlements you might not like it. But for others who are seeking to protect their intellectual property this shouldn’t cause the demise of the patent system.

    If you are going to use demand letters to attempt to treble damages, shouldn’t a patent owner need to explain what they are accusing and why? I don’t see that causing the demise of the patent system.

    If your business buys a copier and you are sued for using the copier along with the manufacturer, isn’t it reasonable to stay this suit until resolution by your copier manufacturer. Demise of the patent system? I think not.

    Should we not have a patent system where you know who owns the patents? Is a bill that discourages hidden ownership the downfall of patents. Not really.

    I don’t defend this bill as perfect. But the reality is that the bad acts of a few (read some plaintiff attorneys, trolls and ED Tx) are the cause for some minor reforms to the patent system. I don’t think these amendments will crater the patent system.

    1. 8.1

      Carry On, one might ask why the Supreme Court adopted notice pleading in the first place?

      I actually litigated a number of cases in state court. There one spends a time filing and fighting demurrers. Not very pleasant, and a waste of time.


          Carry, the asserted reason was to make sure that one could not get into discovery, very expensive in an antitrust case, without some assurance there was at least smoke there.

          Patent cases are similar in that discovery can be expensive. But what are sufficient facts? Claim charts in a pleading?

          Can one show infringement of product X and generally accuse similar products?

          What this invites is extensive litigation at the start of a case just about the sufficiency of the complaint. This is beyond foolish. It is going to raise the cost of patent litigation tremendously and it is clearly intended to be a high barrier one has to cross just to get into court.

    2. 8.2

      Carry-on, I hope you can answer the question as to whether one has to provide in effect a claim chart for every claim against every product just to proceed?

      Imagine 10 claims and 1000 products. Do plaintiffs have to provide in effect 10,000 claim charts just to get past the pleading stage?

      If one does not know the answer to this question, how can anybody support this legislation except if they want to cripple the patent system.

  6. 7

    For those of you who lament this bill, I want you to consider why we are here. I give you one word, the AIPLA.

    This organization brought you through Judge Rich and Mr. Rose a new and improved patent statute. Among the improvements was so-called authorization of functional claiming. Among the other improvements was 103. This latter was a doozy, because it brought subjectivity into the process of determining patentability. It also brought the separation of 101 and 102/103 that led Rich to argue that 101 was a preliminary consideration that did not involve 102/103.

    All through the subsequent decades, the AIPLA has been a consistent advocate of functional claiming, and has been against any reasonable limits on indefinite claims.

    All through the subsequent decades, the AIPLA has been consistent advocate of Judge Rich’s position that 101 is a separate issue from 102/103, not to be mixed.

    All through the subsequent decades, the AIPLA has been a consistent advocate of expansion of patentable subject matter beyond the statute.

    All through the subsequent decades, the AIPLA has been consistent advocate of software and business method patents.

    The AIPLA brought you reexaminations. It brought you IPRs.

    In every instance here, the AIPLA has been wrong. But, it does represent the interests of the patent bar and a big business. We must keep this in mind when AIPLA speaks. It has become the problem, not the solution, because as a result of its advocacy we have a patent system that consistently issues invalid patents, with broad and functional claims, that are unclear, if not indefinite, and on subject matter that clearly is not within 101, particularly business methods.

    And then we have the issue of reexaminations and IPRs and this bill as the solution for the problems AIPLA has created in the law. All these new procedures do is undermine the patent system as a whole, and undermine the basic structure of the American Constitution that divides power among three branches. The PTO has no business being both the judge and the jury. Patents, once issued, are property of their owners and they have rights to have their day in court before their patents are revoked.

    For those of you who agree with this in any measure, and who are members of the AIPLA, you should do something about this organization. It should be called to account for its misdeeds over the decades. Central to its heresy is its consistent view that the Supreme Court is the problem with patent law. Until this sentiment is totally erased from this organization, the AIPLA cannot help but cause further damage to the patent system.

    1. 7.1

      F and N lose the anti-Rich bias already Ned.

      It is ultimately unseemly for you to chase that windmill so incessantly.

      1. 7.1.1

        anon, no it is not. The thinking that the Supreme Court is the problem pervaded the run up to the ’52 Act, it motivated Rich, and it is endemic to the AIPLA.

        Unless we identify the problem, we cannot fix it.



          The problem HAS been identified and yet you refuse to accept it: the problem is the Court wanting to write patent law.

          They simply do NOT have the authority to do so under our constitution.

          In any manner, way, shape, or form.

          If the words of Congress run into a true constitutional problem, the Court is simply NOT at liberty to rewrite the words of Congress to their own desired ends.

          Common law simply does not reach to the changing of statutory law as has been explained to you.

          Yes, congress does have the power to share its “writing” ability, and does so with clear language and clear limitations, under well-recognized rubrics. 35 USC 101 does not contain ANY such sharing rubrics.

          Trying to “fix” a problem by clenching tight your eyes to the separation of powers transgressions is simply and completely NOT an acceptable way to “fix” whatever problem you think exists.


          The ends simply do not – and cannot – justify such means.


            anon, congress has the power. congress has the power. congress has the power.

            So what?

            In the beginning, Christianity brought the concept that all men were created equal to the Empire. It worked to better the legal conditions of slaves and ordinary people. Then it got involved with politics, becoming a state religion under Constantine. It was then part of the problem, not part of the solution.

            By the time of Martin Luther, that power was totally corrupt. It took someone like Luther to stand up and speak the truth to power. Unfortunately, that power not only did not listen, but began a series of religious wars that wracked Europe for centuries.

            I was just wondering how the patent bar got itself inserted itself into drafting the ’52 Act. What congress wanted was a codification, not a repeal or an overrule. What it got was something fundamentally different from what it wanted.

            The ’52 Act was revolutionary in nature — a departure. The overrules were all ill thought out at best.

            So much for arrogance, thinking one can do it better than the Supreme Court that decides issues in small bites, case by case, over decades, centuries.


              With all due respect Ned, your version of history is wack and out of line with reality.

              You continue to show an unhealthy and unreasonable feality to a single branch of the government who simply was NOT provided authority to write patent law.

              You my friend are disregarding the highest law with your slavish adoration. That is the arrogance on display.


              Slightly OT, but worth noting to Ned and his adoration of the Nine (and without taking sides to the tangent issue):

              With a title like “A Horrifying, Embarrassing Day at the Supreme Court,” one has but to wonder….

              link to


                Anon, clearly, attitudes about whether there should be a death penalty at all color the eighth amendment debate. Nothing Roberts can do can bring consensus on this issue.

                Patent law should not divide the court because I believe that most Americans and all of the justices understand the importance of the patent system to technical progress and to American jobs. There is no reason that a debate over patent law issue should be a proxy for debating some other fundamental problem in American society.

                I contrast this with the obvious rancor surrounding the ’52 Act, where it was perceived by many that the liberals on the bench were against the patent system in principle. The same people eventually tried to impeach Justice Douglas. What was the guys name who led the effort? He eventually became president and was widely recognize for his “intellect.”

                Because I do not believe that there is split in the Supreme Court where one side is trying to get rid of the patent system and will do anything to cripple it. I don’t see why the patent bar should assume that the Supreme Court is against the patent system. It is not.

                It is time to bury, once and for all, the politics of the 20th century that for so long colored the debate about the role of the Supreme Court. The series of 9-0 decisions last year shows that Supreme Court is on the same page regarding patent law. It is time to put politics aside and began to listen to what the Supreme Court has to say.

                1. You absolutely miss the point Ned.

                  9-0 makes no difference to that point.

                  You STILL need to wake up to the fact that the Royal Nine are messing up statutory law – law expressly outside of their reach by design of the constitution.

                  You seem unable or unwilling to grasp a fundamental concept here.

                2. anon, “messing up?”

                  The premise assumes that a particular construction of the statutes is correct.

                  Moreover, you assume that your construction of the statutes is correct.

                  However, under our constitution, only the Supreme Court’s construction is correct. If their views about a statute are not what many in Congress intended, a mistake was made — by Congress. There is a remedy, for this, anon.

                  What is that remedy?

                  The Jerry Ford remedy?

                  The Federal Circuit overrule?

                  Or something else?

                3. Absolutely false Ned – there is NO place for an interaction of ambiguity that you attempt to do here.

                  Your premise that an assumption and an errant one at that is at the foundation is simply WRONG.

                  You are faced with the direct signs of an addiction to power and refuse to see those signs.

                  Wake up son.

                4. Money is politics, politics is money, patents is money, thus patents is politics.

                  Most especially so when they regulate an explosive form of expressing human ideas; per se software.

                  People laughed at the EFF’s Alice amici position that there are First Amendment problems with many patents, but when you limit expression thru massive, draconian, capricious financial penalties, all kinds of bad things can happen. Bad Political things too.

                  Patents and politics are inseparable. This mess is mostly the fault of the US Congress. The system needs major reform- in the courts and at the USPTO. They can speak louder than a dozen Federal Circuit courts – if they can speak at all.

                5. Your inability to understand law hampers you severely here Mr. Snyder.

                  While you may recognize the notions of “politics” and “money,” your seemingly fervent desire to not accept the terrain of patent law (probably induced by your Belieb system), leaves you ever stumbling through this terrain, tripping over those things you do not understand and thus unable to differentiate among the elements of “politics” and “money.”

                  Being informed will likely require you to give up on some your tightly clenched Beliebs. But being informed is the price of admission, as it were.

                  You are always free to choose to not be informed, but you are not then free to choose to avoid the consequences of that choice.


                Also slightly OT, with a different issue, but with the same take-away that the unaccountable nine should NOT have unchecked reign on writing patent law (yes, statutory law designated for only one branch of the government to write by the constitution):

                link to

                The only direction I would add to William Falk’s missive is that the sham is certainly NOT limited to close decisions.

    2. 7.2

      We’re here because of AIPLA?!?! Ned, you never struck me as a conspiracy theorist.

      The real reason we’re here is because of the Federal Circuit, period. They have shown a conscious unwillingness to tackle any of the problems of our modern patent system. You can lay almost all of the excesses of the current system at the feet of result-oriented Federal Circuit decisions, including the expansion of subject matter eligibility (State Street, but it started even before that), the expansion of patent venue and the resultant rise in rampant forum shopping forum shopping (caused by the VE Holdings decision), the sheer uselessness of obviousness as a defense (basically every Federal Circuit case pre-KSR), skyrocketing damages demands (remember “rule of thumb?”), the inability to get prevailing party fees (all cases pre-Octane), the unpredictability of claim construction (as evidenced by the morass of conflicting decisions), the morass of anti-defendant rules about proving invalidity through prior art (too many to list), and the list goes on and on and on. And when they get into areas outside patent law, they screw things up even more (like the Oracle case). Sometimes they try to cut back on some of the excess (like damages and venue abuse), but they do it in a limited way that doesn’t curb the abuse.

      People who practice in D.C. will tell you that the Federal Circuit has become the laughing stock of the federal judiciary, and they have a long way to go before the Supreme Court or other courts will have any real respect for them.

      1. 7.2.1

        Lode Star, I do not disagree. But the AIPLA was part of the problem because it lead the way to “fix” things up in ’52, naming Rich to lead the charge. Thereafter, these same folks engineered Rich’s appointment to the CCPA, and in large measure, the failures of the CAFC can be laid directly at the feet of Rich. But not only that, the AIPLA has been a cheerleader for and an advocate of the positions that Rich advanced, particularly on patentable subject matter.

        All this has lead to a corrupted patent system easily abused because the kinds of patents the PTO must issue, not to say, the PTO itself is not part of the problem for not challenging the CAFC more and taking its nonsense to the Supreme Court.

        The Federal Circuit needs a radical attitude change, just as does the AIPLA. They are bringing discredit to the patent system and are causing both the President and Congress to be concerned. When Republicans and Democrats both agree that the patent system has become a problem, then we know there is a problem.

  7. 6

    But this is not the death knell? This is why we have patents? In litigation today, right now.

    US 6,698,759 B2

    What is claimed is:

    1. A method of playing a wagering game, comprising:

    placing a first single part wager to participate in a casino three-card poker-type game;

    a dealer dealing a hand consisting of three cards to each player who placed a first wager; and resolving each player’s three card hand according to a predetermined hierarchy of poker hands.

    1. 6.1

      Seriously? Leaving aside the validity, who is the infringer of this claim?

      Unless I’m missing something, I smell sanctions…

    2. 6.2

      Yay and yippie for another “gee-one-bad-patent-means-we-should-year-down-the-entire-system” nonsense posting….

      Mr. Snyder, in what possible way is your “today’s find” remotely linked to the subject of this thread?

      Existing mechanisms are more than enough to deal with your example.

      Once again, you should be aware that the examination system – as a whole – was NEVER meant to be perfect (even granting that this example is a pretty egregious miss).

      1. 6.2.1

        “gee-one-bad-patent-means-we-should-year-down-the-entire-system” nonsense posting

        Putting in safeguards to prevent the owner of one bad patent from running around extorting people is not the same as tearing down the entire system. If you have a better means of doing it, go ahead and propose it.

        Existing mechanisms are more than enough to deal with your example.

        Except clearly not.


          What about someone in the office who reviews issued patents, randomly (with maybe a slight emphasis in certain units…)

          Anyone who signs off on a patent like this is fired.

          Would that help or just reduce morale?


            Go Arthur, I have several times suggested that the PTO allow public comment on issued patents with feedback to the examiners and to the examiner’s bosses. These bosses should have authority to do something about mistakes, particularly if the mistakes are consistently made.


              Once again I ask: What is the mistake here? Which hurdle does this claim not meet? Is there a 101 problem? 102? 103? 112? Make you case.



                You can figure it out. You’re a smart guy. Even Anon isn’t defending these claims!

                1. I typically don’t jump into the briar patch of minutia, go.

                  Almost all of the anti’s arguments are defeated at the law level.

                  I think that you are reading TOO much into the situation here.

                2. No Arty, I can’t. You give me too much credit.

                  Oh, I understand you are rolling your eyes and you think at a gut/emotional level this claim should not have been allowed.

                  But I do not understand, at an objective level, according to the law, why you think this claim should not have been allowed.

                  ……….so, please explain.


            Hahaha well that’d certainly stop the issuing of patents. Hey you give someone signatory authority and tell them to do a certain amount of work and that’s what you’ll get.

            If you ask people to fully dispose of 4 cases a biweek you’d have to imagine that occassionally you’ll put someone in a situation where they have one day to deal with an entire application, and this is what happens.


              Rubber stamp either way is not your Fn job.

              DO your Fn job.

              Stop trying to make your internal issue of “gee, I have time constraints” an external excuse for you not doing your job properly.


                Rubber stamp either way is not your Fn job.

                Yawn. Maybe you should force the office to promulgate a standard of “it’s done when it’s done” and not an artificial time within which an analysis has to be completed.

                I think you’re confusing the job I was hired for with the job you want me to have.

                1. You might want to stop yawning and pay attention.

                  What you think that you were hired for and your internal measurement systems are YOUR problem. Look again at the the offering to my clients: flat fee for a given service.

                  It may be callous, but I just don’t care about your problems and you should not be making your problems my concern.

                  Do your Fn job.

                2. “It may be callous, but I just don’t care about your problems and you should not be making your problems my concern. Do your Fn job.”

                  I’ll tell you what, when you become Commissioner for Patent or Undersecretary of Commerce, feel free to hire a squad of goons with baseball bats and go “Tony Soprano” on all the examiners every count Monday and yell at the top of your lung: “WHERE IS MY FN COUNT!?” and “DO YOUR FN JOBS!”.

                  Until that day comes, you’ll just have to live with the fact that examiners are like attorneys: imperfect human that you want 110% but could only count on for 80%-90%.

                  BTW, prosecuting attorneys should really follow Rule 1.1 “Competence” and Rule 1.3 “Diligence” when representing their clients: by diligently performing a preliminary survey of available prior arts and competently informing their clients the reasonableness of what they want to claim.

                3. Richard,

                  With all due respect, you quite miss the point.

                  I just don’t care what you, your Union and the Office do – Soprano, baseball bats or whatever.

                  That is YOUR problem.

                  I have to live with the Officr offering a set service for a set price and my obtaining that very thing for the agreed upon price and guaranteed times.

                  And you are simply WRONG about Rule 1.1 and Rule 1.3 as there is NO legal requirement for a search, thus you seek to impute a duty that does not exist.

                  I won’t argue that such is a “best practice,” and I do push for my clients to do a search to the best degree they can afford, but please don’t try to make up a white horse to ride that is just not there.


          go ahead and propose it.

          Asked and answered already – there are mechanisms in place.

          Pay attention.

      2. 6.2.2

        Yea, the existing mechanisms will either a) cost from $100K to $3M to “deal with” the problem or b) force some number of businesses to pay x dollars into what amounts to a racket to avoid the pain of a)

        Every one of these patents I post I find in daily litigation report I get via email. That means that real people are getting really hurt on the wrong side of these joke patents, of which there are apparently hundreds of thousands (or more).

        Shake a haystack and needles start flying out, yet the apologists see no link between these examples the laws being proposed to “deal” with them…..


          The means to your desired ends really do matter Mr. Snyder.

          You seem only too willing to forget that rather important point.

          BTW, tell me again what percentage of active claims possible do theses examples of litigation represent?


          Do you know?
          Do you care?


            BTW, tell me again what percentage of active claims possible do theses examples of litigation represent?


            Well part of the problem is that there isn’t litigation, there is extortion instead of litigation. Another problem is that with 3m active patents with an average of lets say 20 claims means that there’s 60m claims, and .01% of them still leaves 60k claims running about causing 100k lawsuits.


              For arguments sake let’s take the 0.01% number for a second.

              You are aware that the system is simply NOT designed for a 99.99% correctness efficiency, right?

              Show me ANY government system that comes ANYWHERE close to that.

              I won’t be holding my breath.

    3. 6.4

      I’m sorry, why is this claim a problem?

      Is there prior art for the claimed game?

      Does the claim preempt all card games?

      Is it directed to a natural law?

      Is it a product of nature?

      Does it recite mental steps?

      Does it merely recite “do it on a computer”?

      Is it directed to a abstract idea? If so, what abstract idea is that?

      1. 6.4.1


        Have you met patent you don’t love?

        Regardless, we could destroy this patent under several theories you just proposed.

        From a broader perspective: the patent does not “promote the Progress of Science and useful Arts.” The public is in no way benefited by the grant of such patents. It just a private monopoly to enrich some guy. Other than patent attorneys and a few of their clients, most people find that distasteful.


          1) if you can destroy the patent under several of the “theories” I listed, please do that.

          2) Promoting the progress of Science and the useful arts is preamble language directed at the system as a whole and is not a requirement of individual patents.

          3) The public need not be benefited by an individual patent.

          4)The public IS benefited in the same way the public is “benefited” by the patents covering Crestor. Investments in new gaming /entertainment techniques are protected and therefore made. If no one was interested in playing this particular game, there wouldn’t be infringers.

          5)Anyone not interested in “enriching” the patent owner monopolist can go play 5 card stud or blackjack.



          Don’t be obtuse.

          It is NOT about “loving the patent.”

          It has NEVER been about “loving the patent.”

          It is about the ends and means and the fact that there already exists mechanisms for dealing with such results of lack of efficiencies that a system – as designed – does not yield 100% perfect efficiency.

          Please stop the incessant cheerleading of the “gee-one-bad-patent-let’s-burn-down-the-system” crowd.



            I hear you, I don’t even completely disagree with what you’re saying. You may have noticed, but I’ve generally laid off the “gee-one-bad-patent” thing.

            Here, however, we’ve found a guy who actually defends the worst-of-the-worst patents! Truly incredible and there is nothing wrong with pointing that out.

      2. 6.4.2

        I’m still waiting for someone to explain who the infringer of this claim could possibly be.



          I have no idea.

          But I assume it is a casino or a slot machine vendor as a contributory infringer for inducing a player in conjunction with providing the dealer or perhaps the deal rotates to various of the players.


          Also, I think there is an argument to be made that “placing a wager” can read on what the house does when it accepts a bet or an anti.

          If that interpretation is valid, then the casino or the owners/operators of the slot machine might directly infringe…

    4. 6.5

      Jezzus H. Cryst. What an invention. The three-card poker hand.

      Yikes, why I just made a new invention. The two-card poker hand.

      Another, just now. A four-card poker hand.

      Wow, I’m on a roll.

      I thought of a new one, just now. A six card poker-hand.

      I once had and partner in a SF law firm tell the disk drive industry that he thought it was quite legitimate to claim a conventional disk drive with an improved disk drive dimensional parameter, varying the housing size or the diameter of the disk, millimeter by millimeter, from the current size on down to zero. You see, the patent office had been issuing such patents, and the owners of patents were pursuing disk drive companies who were making disk drives having the claimed housing size or disk diameter, or a particular number of tracks per inch or some other arbitrary dimension that was simply a number chosen because it was on the progression of smaller-sized disk drives that was a result of improved disk drive technology. However, it was not required that the patent actually disclose anything new in terms of technology. The invention, assertedly, was in the improved size; and the PTO didn’t see the problem.

      1. 6.5.1

        Ned –

        Unless I am mistaken, it appears you are using sarcasm to imply that you think the claimed method was obvious at the time of the invention.

        It appears that the Examiner was convinced otherwise and you have not really made your case.

        Also, I would note that no one had thought to do it previously, or there would have been prior art to prevent the patenting.

        Additionally, now that the method has been disclosed, it appears that there is an infringer, implying a long time deep felt need..

        so…. you know….


          Holes Rules of Games, 1983, includes the rules of three card poker. Wow that took all of ten seconds to Google “three card poker.”


            Your googler seems to work difernt than mine:

            Your search – “Holes Rules of Games” – did not match any book results.


              Auto correct butchered it. Let’s see if you can figure it out. What well known card company has a name similar to hole.

              The answer is hoyle, btw.


          Les, it is a matter of criticality. What fricken difference does it make regarding the number of cards in the hand.

          Consider the car. I claim a car 22.54 feet in length. Should I get a patent? And if not, why not?


            According to the spec, some players are put off by a higher number of cards and multiple stages of betting.

            This is a simpler game for the novice or timid gambler.

            I guess that is the criticality.


          billy is on point (as he makes an easy case) and Ned remains in the weeds.

          Clearly Ned, the number of cards IS absolutely critical in the given context. It is quite evident that you have never played a handful of different types of poker games (and your attempt with car lengths simply miss the point about what is important contextually).


            Billy may have a point. However, I can’t find this book and my search results do not align with his. Further, Billy has not provided the allegedly disclosed rules, so we don’t know that they align with those of the claimed method.

            What I found was a wiki that says:

            The casino variant of Three Card Poker was first “invented” by Derek Webb in 1994. He had a vision for a game that combined the excitement of poker and the speed of regular casino games. It was important to Webb that he got the mix of three important factors for any casino game correct; the game rules were easy to understand, the payouts were large enough to attract players and the house edge was enough that casino owners would be interested in adopting the game.

            link to



              Take a step back and read what I wrote.

              I am not diving down to the minutia and prosecuting this thing.

              I state that billy is on point because he is. He is properly addressing the points you have raised.

              Likewise, Ned is in the weeds (still).

              Give credit where credit is due (to billy) and jeers where that too is due (Ned).


                Thanks for the clarification:

                Hoyles calls for three rounds of betting:

                link to

                Which I would assert is clearly NOT the INTENDED meaning of claim 1, although I concede that an argument can be made that claim 1 reads on three rounds of betting.

                1. Comprising leaves it open for multiple rounds of betting. It simply has to have an ante (i.e. the wager required to have a hand dealt)

                  Having just the ante and no subsequent betting would be absurd, as it would just be a game of luck.

                  The rules don’t specifically call for an ante, and thus would not be 102 art, but I imagine an ante may be present in the introduction, and should be very easy to find along with motivation (i.e. playing to the sunk cost fallacy to encourage play)

                2. It is a game of luck. That’s the point. Its a game for a slot machine or perhaps a game for gamblers who don’t want to deal with the strategies involved in 5 card stud, or blackjack.

                  Some of the dependent claims do recite additional betting. For example, a separate/additional bet can be made with specific regard to the dealers hand.

                  But, Hoyle’s game is not intended to be covered by the claims, though again, I admit that there is an argument to be made that claim 1 reads on Hoyle.

    5. 6.6

      The only way this patent is allowable is if Anon gets into OPLA and completely deletes the part about “not importing limitations from the spec into the claim language”. Apparently this is his cause to be a martyr about, which is fine, just don’t expect me to give any type of weight to “predetermined”.

      1. 6.6.1

        Why are you trying to mischaracterize my views on this “importing into the claim”…? Again?

        Do you know know that I talk of law, not of the minutia that Mr. Snyder loves to drench himself in?

        You oddly want to not have any meaning to the word “predetermined” which is IN the claim already…

  8. 5

    In thinking about section 13, I do believe that not all of the studies mandated by the AIA have been completed yet.

    Should someone be reminding the Office of this?

  9. 2

    Seems like an only slightly less vile form of the House’s “Innovation” Act, with its “carve-outs” on the corporate “veil-piercing” for 1) universities, 2) assignor-inventors, and 3) those who invest in a company that luckily gets deemed a “non-troll” (by some standard TBD).

    After a recent hearing by the Senate’s small business subcommittee, with bipartisan agreement about the problematic aspects of the House bill, I was getting hopeful that this kind of anti-inventor/anti-entrepreneur stuff wouldn’t have legs.

  10. 1

    IPWATCHDOG has the views of this bill from the perspective of a couple of Congress people. This bill is the death knell of patents.

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