by Dennis Crouch
Respect for property rights has always been a core American principle. That respect generally means that a government grant of a property rights cannot be cancelled or annulled outside of judicial action. In a set of 19th Century cases, that principle was repeatedly upheld, including in the patent law context (both patents for land and patents for inventions).
See, e.g.:
- McCormick Harvesting Mach. v. Aultman, 169 U.S. 606 (1898) (“[W]hen a patent [issues], it has passed beyond the control and jurisdiction of [the patent] office, and is not subject to be revoked or cancelled by the President, or any other officer of the Government. It has become the property of the patentee, and as such is entitled to the same legal protection as other property.)
- Iron Silver Mining v. Campbell, 135 U.S. 286 (1890) (“[Patent validity] is always and ultimately a question of judicial cognizance.”)
-
US v. Stone, 69 U.S. 525 (1864).
In his 4th Circuit appeal, Carl Cooper now argues that inter partes review proceedings under the AIA violate these principles and are therefore unconstitutional. (Cooper v. Lee) In addition, Cooper argues that IPRs violate patentees Seventh Amendment right to a jury trial on questions of patent invalidity.
Cooper v. Lee began as a lawsuit after Cooper’s patents were challenged in a set of inter partes review proceedings. Rather than awaiting the outcome of the IPR, Cooper quickly filed a civil action in district court arguing that the regime is unconstitutional. However, the district court dismissed the case – finding that it lacked jurisdiction. In particular, the district court held that the AIA provides for particular appellate review and that Cooper must first exhaust the administrative process before raising an external constitutional challenge.
As it did at the lower court, the USPTO largely avoids the merits but instead argues that the appellate court has no jurisdiction over the case – both for the reasons given by the district court and because the case should have been heard by the Federal Circuit rather than the 4th Circuit. [PTO Brief in Cooper v. Lee]. Meanwhile, in May 2015, the USPTO PTAB issued a final order cancelling the challenged patent claims and setting-up a direct Federal Circuit appeal to be filed this month. See IPR2014-00156 (May 14, 2015); IPR2014-00157 (May 14, 2015); IPR2014-00158 (May 8, 2015).
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Incredibly important and difficult Constitutional issues here.
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Briefing appears now complete in the parallel case of MCM v. HP that I previously discussed:
Oral Argument: Friday, Sept. 11.
Perhaps not touched upon with enough paeticularity below (but definitely identified in previous discussions) is the fact that the challenge is timely for no other reason then more than item out of the granted patent’s property rights (there are several sticks to that bundle) are “at play.”
Whether or not the final adjudication on the merits of the patent itself are exhausted through the extant process is separate from – and this is critical – the institution decision, which in and of itself both is not appealable, and constitutes a taking by executive action (the removal of the property stick of presumed validity, as well as the re instituted application of BRI).
This is not (directly) saying that Congress is prevented from makin a law with such a taking, but if that taking violates the constitution, then the law as written fails.
Shall we then again attach the inevitable and necessary result of the choice by Congress to reject the possibility of separability as yet another below the water line hole is blown into the good ship AIA….?
Anon,
These are good points, and there is no substantive reason as to why the 4th Circuit can’t address the constitutional question on the merits. Congress cannot “channel” the question of whether the administrative grant of Article III power is or is not constitutional to a court (or bureau) of its choosing (the underlying logical fallacy should be clear). I thought eCharge pointed this out in the reply; the various Supreme Court and CAFC decisions (i.e., Patlex) addressing the public rights exception demonstrate that these challenges may proceed through a number of potential routes (irrespective of what the statute may or may not say about the matter).
Personally, I’d be disappointed if the 4th Circuit passed on addressing the issue on the merits (perhaps out of a sense of owed deference to a sister circuit?). The CAFC had its opportunity, and both the Patlex and Joy decisions pretty clearly indicate that the CAFC is not interested in taking the issue (or the SCOTUS’s view of it) seriously. It is time that a court explains to the nation how the resolution of IP patent validity claims with finality before an Article I administrator meets constitutional muster. If this is truly an administrative claim, some court needs to explain why.
The USPTO’s aggressive advocacy in terms of avoiding the merits plus pushing the dispute back onto its “home court” seems to suggest that it itself does not have confidence in the underlying congressional delegation of power. If this is clearly constitutional, why all the squirming?
I’m interested in hearing more about your arguments regarding separability. In all honesty, the issue is not my bailiwick, but I do know that the Supreme Court has previously recalibrated a number of otherwise unconstitutional admin mechanisms (the most recent example being Stern) in the past without the roof caving in. Perhaps the AIA is truly its own animal, however.
The reasoning on the separability issue is quite simple and has to do with the manner in which the AIA became law.
Given the recent Supreme Court ruling reaching into “intent of Congress,” I cannot see a way that the Court could divide out any single constitution-offending portion. It was Congress’es intent – for whatever reason** – to build its huge ship without compartmentilized bulkheads. It is simply an historical fact now that the idea of making the law separable was considered and rejected by Congress. There just is no possible way to “interpret” your way to the exact opposite result.
I asked Ned Heller to come up with some cogent way of doing this. Not surprisingly, the dialogue went silent.
You have shown yourself to be a fairly thoughtful commentator. Perhaps you can reason a way that a court can rewrite a statutory law to include separability when the history of that particular statute clearly shows the intent to reject separability.
I am all ears.
** I have shared my own cynical views as to why such a self-destruct mechanism was included (it has to do with making the special interest groups come back to Washington once more with their wallets)
… by the way, the very day the separability amendment was rejected, I noted the implications for the then-bill right here on this blog.
To this day, I have seen zero rebuttals to my view that can survive even the lightest critical evaluation.
Surely, if someone can pull off the magic trick of re-writing the AIA and un-rejecting the separability amendment, we would have seen it sometime in the last four or so years, eh?
The silence screams volumes.
Anon,
By rejecting the separability amendment, Congress appears to be playing a dangerous game of chicken — in addition to doubling down on its impermissible usurpation of Article III power. If the AIA will in fact tank as a result of a particular provision being identified as violative of separation of powers, it will take real guts from at least 5 Justices to stand up for the interests of the judicial branch.
In my view, CJ Roberts and others saw this coming. Alice and others weren’t about weakening the patent system; those decisions were about empowering the Article III judiciary to handle the fallout from the pending capitulation of IPR.
Nonetheless, I will review how prior SCOTUS decisions impacted unconstitutional (statutory) delegations of Article III power in the public rights framework and will provide an update.
Anon – see comment no. 10. This seems right; maybe others came chime in identifying the relevant SCOTUS law.
link to ipwatchdog.com
That is laughable.
See the recent Supreme Court case on “intent of Congress.”
You just cannot say that you need a clause stating “this bill is separable” when Comgress unequivocally acted to the contrary by REJECTING (you know, taking a vote to explicitly say “that is NOT what we want”) the idea of separability.
You cannot get more cut and dried here – or more direct and simple. There is just NO room for “spin” here (and hence the screams of silence from my usual petty detractors).
If Congress really wanted to play a game of “chicken,” they would disband the CAFC, remove the appellate authority on patent cases from the Supreme Court and and create a new Article III inferior court that truly can be the last word on patent law.
Let the Supreme Court try to overcome Congress’es constitutional authority to do that!
(And yes, that is another original anon legal insight)
Congress would not do that, the people would have their heads. Perhaps, not metaphorically.
Second, the Supreme Court would rule any such creation of a second supreme court unconstitutional.
It would NOT be a second Supreme Court Ned – clearly.
You need to brush up a bit on the applicable doctrine and the fact that even the Supreme Court is a court of limited powers (patent appeals just are NOT a matter of original jurisdiction, are they Ned?)
Such as I have laid it is FULLY within the writings of the Constitution and abides by Marbury.
If you want to try to poke holes – go right ahead, but please none of the Ned-IMHO fantasy stuff.
You know, anon, you like to use different words for the same thing so as to hide the ball.
A court of a last resort is what, anon?
Not at all Ned.
Read up on “jurisdiction str1pping.”
Read again Marbury and see that it is NOT that the Supreme Court must jar review, but merely that and Article III court must have review.
Your adoration of the Royal Nine blinds you (yet again) as to what is actually written in the Constitution.
As I also said – if you have an actual legal point, backed up with more than just your mere belief, let’s hear it. I am perfectly willing to be persuaded (corrected even – though that won’t be possible here because I know of what I talk).
Your turn Ned – do something substantive with it.
Anon and Ned,
The SCOTUS in Stern did not strike the bankruptcy statute conferring power to the Article I bankruptcy court to rule with finality on a common law counterclaim.
Instead, the SCOTUS ruled that “the Bankruptcy Court below lacked the constitutional authority to enter a final judgment on a [common law] counterclaim;” “the bankruptcy court’s exercise of jurisdiction” was unconstitutional. Thus, the rulings on counterclaims became advisory as opposed to final.
As explained by the SCOTUS in Stern, Congress may attempt to revise the statute (as it did post Northern Pipeline), but the statutory provision itself does not fall per the initial SCOTUS determination of unconstitutionality. See also the many Article III land patent cases, and the decades long battle that went on between the legislative and judicial branches regarding the power to adjudicate issued land patents.
Thus, the public right cases demonstrate that where a statute impermissible grants Article III power to an administrator, the remedy is a judicial curtailment of the constitutional authority to rule with finality. As applied to IPR – the statute would remain, and the decisions would become advisory.
If there is a public rights case that says otherwise (and maybe there is), I’d like to see it. Ned, what say you?
No, but there was “consent” in Stern –and there was a right of de novo review by a district court.
In contrast, patent owners are involuntarily hailed into a bureaucrat court, where by statute there is no right of de novo court review at all.
I don’t see how Stern fits this framework.
Consent applied to the proof of claim only, and, in any event, was approved of (of course, pre Wellness) by only 4 of the 9.
De novo review in Stern was completely immaterial to the question of whether the adjudication of the counterclaim was or was not constitutional. The SCOTUS flat out said that non-advisory determination of the counterclaim violated Article III.
You remain in over your head. Less time blogging, more time with head in the casebook.
No, I am done talking with you as you have become one more a hole. Where do you think you get off, you p r * ck?
Ned – I apologize. I was merely trying to make the point that if you are going to argue this in front of the nation’s most important judges, there is work to be done.
Maybe Northern Pipeline is helpful as well. There, the SCOTUS held that (1) unconstitutionality was not retroactive in application, and (2) though the statutory provision was unconstitutional, Congress was given a multi-year STAY to correct the legislation before the judgment went into effect. In the present case, the SCOTUS could do something very similar – i.e., fix the AIA before the IPR provision falls per the expiration of the SCOTUS stay.
Either way, I think it’s safe to say that we can put anon’s “the AIA will tank” argument to bed. Perhaps anon disagrees.
From Northern:
“Having concluded that the broad grant of jurisdiction to the bankruptcy courts contained in 28 U.S.C. 1471 (1976 ed., Supp. IV) is unconstitutional, we must now determine whether our holding should be applied retroactively to the effective date of the Act. 40 Our decision in Chevron [458 U.S. 50, 88] Oil Co. v. Huson, 404 U.S. 97 (1971), sets forth the three considerations recognized by our precedents as properly bearing upon the issue of retroactivity. They are, first, whether the holding in question “decid[ed] an issue of first impression whose resolution was not clearly foreshadowed” by earlier cases, id., at 106; second, “whether retrospective operation will further or retard [the] operation” of the holding in question, id., at 107; and third, whether retroactive application “could produce substantial inequitable results” in individual cases, ibid. In the present cases, all of these considerations militate against the retroactive application of our holding today. It is plain that Congress’ broad grant of judicial power to non-Art. III bankruptcy judges presents an unprecedented question of interpretation of Art. III. It is equally plain that retroactive application would not further the operation of our holding, and would surely visit substantial injustice and hardship upon those litigants who relied upon the Act’s vesting of jurisdiction in the bankruptcy courts. We hold, therefore, that our decision today shall apply only prospectively. 41
The judgment of the District Court is affirmed. However, we stay our judgment until October 4, 1982. This limited stay will afford Congress an opportunity to reconstitute the bankruptcy courts or to adopt other valid means of adjudication, without impairing the interim administration of the bankruptcy laws”
No, given Lockwood, given Granfinanciera, there is no way that people could reasonably rely on Patlex to support IPRs.
As to a remedy, are you suggesting that the courts could simply provide that PTAB final decisions are not final and any decision adverse to the patent owner would have to be taken by the petitioner to district court for enforcement?
What about standing? What you are suggesting is that the petitioner would have to file a DJ action for invalidity where the PTAB decision would only be advisory. Is that what you see as a possible remedy?
Recall also, No, that the government does not have standing in court to challenge the validity of an issued patent. So, if the petitioner drops out, that ends it.
Ned,
Agreed re Patlex. The discussion was whether there was validity to the AIA-will-tank fear mongering. There is not.
Also, Joy, not Patlex, represents the latest iteration of the CAFC’s view on the public rights rule (so don’t overlook it). Without question, it is the broader statement.
In terms of your questions, I will tell you what is constitutionally permissible:
Any party make seek an advisory opinion at the Article I level. As you have correctly pointed out, where private (or public) rights are involved, Congress may not legislate around constitutional requirements governing the operation of the Article III judiciary. Thus, where no standing, no enforcement of the advisory opinion. This of course will impact the significance of IPRs moving forward.
In any event, consider this my retirement. Best of luck to you, keep fighting the good fight.
Goodbye, no.
Congress has power under Article I to establish bankruptcy courts. Congress has no power under the constitution to establish courts to adjudicate the validity of an issued patent for the purposed of revoking it. See, e.g., McCormick Harvesting.
I do not understand how congress could validity create even statutory jurisdiction for IPRs. They do not have the power to do so.
No,
You get short an criticize Ned…? All you have done is hand wave – you have offered NO sustainable logic. Your position boils down to “well, other things were not deemed unconstitutional and were separated, so therefore the AIA must too.”
Wrong.
Find one of the bmakruptcy laws that discussed, debated and voted to be inseparable, and then you might begin to have a case. You also cannot conflate a land patent issue for the same reason – this law (the AIA) was formed in a particular manner and you know this (as witness by your wondering above what was Congress doing). You do NOT get to simply close your eyes and ignore that fact. You also do NOT get to rewrite the law and make the decisions of the PTAB merely advisory, as that too is clearly not what Congress did. Such can only be termed extreme legislation from the bench.
You STILL have not addressed the critical issue before you.
Maybe it is you that needs both better blogging AND more time in the case books – but let me tell you now, you will not find a case to support what you want the outcome to be. In fact, as I have already indicated, the latest case from the Supreme Court regarding “the will of Congress” works directly against what you want.
You retired much too early as your hand waving has been rejected.
With respect to IPRs generally, In re Cuozzo was decided today and the CAFC affirmed the use of BRI in the proceedings. Petition to rehear en banc was denied.
More here: link to patentlyo.com (comments 4 and 4.1)
Here is brief filed by Robert regarding : “Cooper reply to the USPTO”
Would be interested in everyone’s views.
link to docdroid.net
Hi Dennis,
May be you can download both the documents I have uploaded on “docdroid” and put them as a link in your article itself from. Folks won’t have to search for all of them in the comments section.
Like you did for MCM.
thx
Brian,
The more I think about this, the more I become convinced that there are only two foreseeable outcomes resulting from this challenge(s):
(1) either patent validity is again designated a public right and becomes a purely administrative claim over time;
[the implications for Article III aside]
(2) or patent validity is designated as a private right by either the 4th Circuit, CAFC, or SCOTUS, and IPR and reexamination are recalibrated (per the requirements of a private right before administrative agencies) as advisory bodies.
It appears that the nation’s patent system is a major crossroads — but perhaps others see it differently.
A potential third option would be: (3) patent validity is again identified as a public right, and the balance between the PTAB and the Article III courts remains status quo.
It seems to me that once Congress figures out that the claim is purely administrative per the public rights definition, the balance will tilt.
Your rather constrained outcome set does not even come close to contemplating the most likely – and largest – impact.
What’s up with that?
(4) the entire AIA tanks because anon is convinced it is the necessary result sans severability clause?
I just noticed this, so my apologies for the delay.
If you want to be glib about the necessary implications of Congress having before them a separability amendment – and rejecting it, that is your business. But please stay away from the obnoxious fallacy of trying to make the issue merely one of “anon says.” That is a C R P deflection, unworthy of your usual thoughtful inputs.
No, the courts have not declared patent validity to be a public right.
What did the CAFC say about patent validity in Patlex?
How is the claim of patent validity currently before the PTAB if not previously identified as a public right by the CAFC?
No, Patlex declared a patent to be a public right for two reasons:
1: Patent validity was a public concern; and
2. Patents were created by statute as opposed to the common law rights involved in Northern Pipeline.
Everyone involved in this issue is now on board with this interpretation of Patlex.
This broad declaration sweeps the whole of patent litigation under the control of Congress. Obviously, the Federal Circuit didn’t understand the public rights doctrine.
But, let us assume arguendo, that patent validity and patent infringement can be divided in two like the babe in the Solomon tale. Do you think that the Supreme Court would approve of forcing patent validity litigation into the USPTO, thereby ignoring the statutory presumption of validity, the high burden of proof, and the constitutional right to a jury trial — viz Lockwood? I hardly think so. But that is where we are with IPRs.
If one looks at it this way, the whole point of IPRs is to strip patent owners of rights, to lower the burden of proof, to use BRI and to deny a right to jury trial.
Ned – you are in over your head.
Not really, No.
Wow, that brief is great. Without question, you should win, if (big IF these days) the Fourth Circuit decides to uphold the Constitution. A couple of thoughts:
Star chamber. I would mention that the Patent Trail and Appeal Board – is more political favor factory than administrative court – because the Commission herself (and two hand picked lackeys) is the Board. See link to law.cornell.edu. So even if the Court wants to save the IPR – it should not save THIS IPR – with the star chamber court.
PTO is Rouge. All other administrative courts resolve the overlapping jurisdiction question (putting aside the 7th amendment argument) by strict application of administrative estopple – tax court, court of fed employee, contract court, etc etc, so PTO is rouge. The rouge agency argument always appears to resonate with the non-patent type judges – like SCOTUS. Even PTO started out this way with In re Perne and Wichardly.
You Should Be Ashamed to Call Yourself a Judge. Of course Hayburn’s Case. This hybrid beast created by the AIA – cannot stand. IPR’s make a mockery of the Art III courts. If this gets thru ‘Katie bar the door’ all the Agencies will make a run for this power.
You might find FCC V. NEXTWAVE PERSONAL COMMUNICATIONS INC. (01-653) 537 U.S. 293 (2003) of interest. Here the FCC was attempting the ‘correcting a mistake’ argument to get jurisdiction over a spectrum license won by Nextwave (technically issuing a ‘new’ license to another party). SCOTUS dismissed that ‘we are not touching the Nextwave license’ agency reasoning and slapped them back.
Having read Patlex over the years – I wonder if sub silento 35 USC 145 – was the Constitutional safety valve that allowed it thru. With 145 in place at the time, one could argue that PTO, if the patent owner sued out the patent after an adverse board decision in district court – would have de novo review – and the board decision would be merely advisory to the court. That might have passed muster. Of course 145 does not apply in IPR, and i think it was repealed, at any rate. If this were the case then you could say the holding of Patlex is moot, 35 USC 145 have been repealed and it is a now a case of first impression. But i suppose it was affirmed in lockwood.
Best of luck.
iwasthere, on the de novo review point, we address that in our reply brief.
The Patlex district court decisions upheld reexaminations because of de novo review. I have no idea why the Feds ignored this and went off on a lark, overruling McCormick Harvesting, and making a hash of the public rights argument.
Had they done so a the time, IPRs would have been created with a de novo review opportunity, if at all.
Ned,
De novo review only works where the underlying adjudication on the legal question is advisory in nature. You cannot have one without the other. An Article I administrator cannot rule on a private right with finality provided that de novo review remains discretionarily available to the potential appellant. The advisory opinion is merely that, and it must be reviewed by an Article III court de novo. If you believe otherwise, please provide the relevant public rights SCOTUS case with pincite.
Note: Article I FACT-FINDING may be resolved with finality provided that de novo is available. See the distinction? Questions of law (e.g., patent validity) relating to private claims must be advisory subject to de novo review; fact-finding may be entered with finality provided that de novo remains available.
Suggesting that IPR can exist status quo provided that its decisions are reviewed de novo is misleading. Compare with Stern, and its holding that the private right counterclaims must become advisory — subject to waiver by the individual litigant. As with the “Stern” counterclaims before the Article I Bankruptcy court, findings of law on private rights before the Article I PTAB must also become advisory.
A big problem with IPRs is lack of standing for a petitioner and with the government intervening if the petitioner drops out.
Now we know from cases like McCormick Harvesting that the government has no standing to challenge an issued patent. Where do they get standing to even be present on an appeal?
So, I think a good restructure would be for the court to assume full control over IPRs, such that the petitioner would file in court, the court would rule on preliminary matters, e.g., 315(b), determine whether there is a reasonable likelihood of success and whether there is a real case and controversy, refer the matter to the PTAB for their 1yr trial, and then assess whether there is new evidence or not for a trial de novo on return of the case. This way we can get the opinion of the so-called experts, three senior patent attorneys.
If there is a demand for a jury trial, the court could simply keep the case itself.
B&B Hardware.
I know Roberts, Scalia and Thomas are hardliners on this issue. But Roberts fell into dissent in Wellness.
B&B Hardware suggested that de novo review was sufficient. But I do agree that Stern v. Marshall suggested otherwise.
Ned – I saw the discussion regarding de novo review in B&B as well. However, B&B was not a public rights case, it was a collateral estoppel case. Stern establishes the rule – any discussion to the contrary is pure dicta.
As an aside, it’s interesting that the Quinnbots did not raise Article III issues in the TTAB / Redskins cancellation case. After B&B, that challenge seems preordained.
The consumer electronics association just put an ad on my pandora telling me to contact my local representative to have him pull the plug on trolls. Where they state that trolls extort more than 80 billy a year from the econ. Seems like an idea.
Idk if NWPA’s thinking this is all google is quite right tho.
There are definitely multiple parties that want to end patents or turn them into the sport of kings/queens.
I think we could solve about 90% of our problems with better searches at the PTO.
Maybe they could contract a company who built their business on doing searches to design a search system for them?
*ducks and runs*
(Sorry, couldn’t resist the irony, given the content of the thread)
But watch out for software support issues…
(Bada boom)
Well, under our new realm of the Royal 9, maybe the problem is that we have to entice a huge monopoly to write the software for the PTO. Maybe we are becoming like Europe with little or no software industry because they don’t allow patents.
Just unbelievable stuff. Who needs a Congress when we have the Royal 9.
Not really sure that follows.
The government has been contracting for software since the first computer was built. I’m sure they contracted someone to write the current search software they have, if any. I would expect them to contract out any revamping of the system as well.
I would expect the three companies to have the qualifications to bid on this to be Google, Microsoft, and Yahoo (in alphabetical order). If the PTO announced they wanted to revamp their search system, I don’t see any of these 3 not bidding on it. It would be a very high profile kind of project, plus all three would have a vested interest in making sure any search system at the PTO worked as well as it could.
MDT, I am not sure who would be the best contractor. But, if you were in another country that didn’t allow software patents, you would most likely have to contract it out to a U.S. firm or a firm that uses U.S. software. That is the point.
But, besides that, it is mind boggling that the PTO has billions of dollars and they have not focused in on creating better software tools for their examiners to do their job and have not created a competitive system for doing office actions.
Ridiculous. But, then when the likes of Lee who never did any prosecution is put in charge of 8,000 people that do examination it is not a surprise. It indicates that political agendas take precedent over the actual work. Lee is probably working her best to burn it down.
I’ll disagree with you on the statement [i]if you didn’t have patents you’d have to contract to a US company[/i] because I don’t think patents have jack all to do with people accepting money to write software, anymore than people who are paid to design a car care about the patent, or the people who are paid to build your house care about patents. The people that end up owning those patents, most of the time, are corporate entities, not the guy who spent 90 hours with a clay block sculpting the new car’s look. While there may be some people caring about it, if your country doesn’t have software patents, then those companies there are working for contract pay, and don’t care about patents.
Now, I do agree it’s outrageous that the PTO doesn’t have a state of the art search system.
MDT, there are some big picture reality checks like how come the U.S. has the most advanced software industry in the world by a factor of 10 and has software patents?
I write software patents for start-ups that then receive millions in financing from VCs that look very carefully at the applications I’ve written.
But, MDT, the reality is that you have to educate yourself. There is so much to this issue including disclosure, funding, copying, etc. I know it may seem like they have nothing to do with it, but the more you work in this industry the more you realize they do.
I think you miss my point.
Posit 1 : Country has no Software Patents
Posit 2 : Country has software programmers
Programmers in that country don’t care about patents, because they don’t use them. It would be insane for them to care about patents. It would be like me worrying about screen acting credits when I cook dinner. I’d be insane to bother with worrying about it.
EPO does not issue patents on Software Programs, and has a very developed software industry (I know, I’ve actually worked there).
I am not saying that software patents have not become a big commodity in the US.
I am saying that if they didn’t exist, people would still write software because they make money doing it. People will always do a job that they get paid to do if enough money is sent toward them. If not, nobody would work on radioactive contamination cleanup.
Besides, in my experience in the industry, they’d be more likely to go contact a software shop in India before they contracted with a US company if they wanted to build something whole cloth. That’s especially true after all the Snowden leaks. I know most of the companies I work with in the US export work to India.
MDT,
You have deluded yourself, losing the view that “per se” and “as such” have In fact NOT prevented the EPO from having software patents.
Your foundation is wrecked. Your edifice crumbles.
(and I do “get” your other point that things exist without a patent system – but that point rests fully on the “but for” canard. Patent systems simply do NOT exist for this “but for” condition. Yes, the “but for” is one of the reasons to have a patent system, but much like Ned and Malcolm’s malinformed manipulations of single options of various claim forms (Jepson, ALL objective physical structure), portraying the option as “the only” is simply engaging in a fallacy.)
There are a lot of delusions in the thread.
History will decide who is delusional. 🙂
Even if we had perfect search – and only the most meritorious patents on the books – you would still have the same complaints – trolls – broken system – must be reformed – etc etc. Because that is in the infringer’s (google, China, Inc., etc.) economic interest. To be sure, it would be easier to make that point if PTO took some pride in their work product.
You’ve got kool-aid dripping on your chin there 6.
Received a PACER alert that the eCharge reply has been filed in the 4th Circuit. Appears to put the dagger in IPR.
Clean shot beneath the water line of the good ship AIA…?
Which reminds me, does anyone know how much was spent on the half dozen or so years leading up to the AIA?
Paul, to those who now understand the law in this are a bit better thanks to Dennis’s blog, the eCharge brief should be easy to understand.
The government position is non existent. Principally, they defend Patlex which as most here can see is all but indefensible. The wealth of Supreme Court jurisprudence in this area since Patlex, together with Lockwood, all but seals the deal.
BTW, a key reason IPRs are so strongly disliked by many patent attorneys is their high % of negative outcomes* [with more than 1000 killings of litigation attorney fee billings already]. IF IPRs are erroneously over-killing claims with petitioners newly presented prior art, then IPRs must logically be getting lots of Fed. Cir. reversals on the appeals from those PTAB IPR decisions, right? In fact, PTAB IPR decisions have reportedly had a continuous record of some 30+ Rule 36 summary affirmances, and, only recently, one single reversal. [That sole reversal was for over-broad claim construction in the inter partes review, sending it back to the PTAB for reconsideration. Microsoft v. Proxyconn.] Compare that Fed. Cir. reversal rate to the much higher Fed. Cir. reversal rate of D.C. claim validity or invalidity decisions!
*That is, a high percentage rejection of the relatively LOW percentage of the TOTAL number of patent claims in all pending patent suits in which defendants found better patent or publication prior art than the examiner did and presented it in an IPR petition which got accepted for PTAB trial.
Be fair, though, and mention the different standards, preponderance and BRI, and the fact the patentee can’t amend the claims. IPRs are in effect another round of prosecution with $200K spent on a search and with no claim amendments.
IPRs are in effect another round of prosecution with $200K spent on a search
Here’s a great idea: spend a thousand dollars on a search before you file your application, and hire a competent attorney who isn’t going to blow sunshing up your behind to tell you what your chances of obtaining an enforceable patent really are.
Actually, $1,000 is unlikely to do it. And, how about stop trying to shift the burden of patentability from the PTO to the applicant.
stop trying to shift the burden of patentability from the PTO to the applicant.
Stop ignoring reality and stop expecting people to respect the junk patents you file and obtain after you “appeal appeal appeal!!” silly procedural issues that would never have arisen in the first place if you had an ounce of integrity.
>>“appeal appeal appeal!!” silly procedural issues that would never have arisen in the first place if you had an ounce of integrity
Now you are just fabricating nonsense, which is not worth responding to–what a surprise from you.
Fact is what I wrote is right. Searches outside the PTO are ridiculously expensive and difficult to obtain good results. The IPRs are essentially a burden shifting mechanism. It boils down to we are very close to a registration system and what you are advocating is a registration system. You are saying, applicant find all the relevant art and then write your claims to be non-obvious over the relevant art. That is a registration system.
The PTO needs to be the ones to find the art. It just doesn’t work for applicants to find it. It is too expensive and too error prone.
Searches outside the PTO are ridiculously expensive and difficult to obtain good results.
Depends on the claims.
I can tell you that for nearly all of the junk invalidated in IPRs a “good result” could be achieved for peanuts.
Of course, you won’t be able to file your junk patent after that … unless you hire an attorney willing to scriven around the statutory requirements and kick dust in the PTO’s face. That costs money, too. As does “appeal appeal appeal!!”. But if you live and breathe to monetize junky patents because you can’t find anything productive to do with your life, then those costs are easily justified.
MM, as well you know, I work with large tech corporations and start-ups. The only time I’ve been involved with “junk” patents is as a defense attorney.
Searches are hard. I have lots of real world experience working with real corporations that aren’t interested in filing a patent unless it makes sense. They file many applications and don’t want junk patents. They see patents as a way to motivate their employees and only want to spend the money if it is a non-obvious invention that may actually get built.
That is the real world—I know in great contrast to your pretend world of propaganda.
It is very hard to get good searches–very hard.
Tafas anyone?