The Economist: Time to Fix Patents

In its newest issue, the Economist is coming out strongly against the patent system – based upon the argument that “patent-lawyers are masters of obfuscation” and that patents are being used both by established incumbents and patent trolls to stifle further innovation.

The system has created a parasitic ecology of trolls and defensive patent-holders, who aim to block innovation, or at least to stand in its way unless they can grab a share of the spoils. An early study found that newcomers to the semiconductor business had to buy licences from incumbents for as much as $200m. Patents should spur bursts of innovation; instead, they are used to lock in incumbents’ advantages.

The patent system is expensive. A decade-old study reckons that in 2005, without the temporary monopoly patents bestow, America might have saved three-quarters of its $210 billion bill for prescription drugs. The expense would be worth it if patents brought innovation and prosperity. They don’t.

The Economist has a longstanding pro-competition anti-patent bent.  In the 1800’s The Economist proposed full abolition of the patent system. The paper’s stance is no longer opposition, but does come with the interesting statement that “government should force the owners of intellectual property to share.”

Their proposals:

1) Patent Use Requirement – the patent should only be enforceable if the patentee uses it in the marketplace.

2) Patent Opposition – patents should be easier to challenge without going to court and the burden of proof should be lower.

3) The standard for non-obviousness should be raised so that patents are only granted to those “who work hard on big, fresh ideas, rather than those who file the paperwork on a tiddler.”

4) Patent term should be reduced – especially in fast-moving technology areas.



165 thoughts on “The Economist: Time to Fix Patents

  1. 17

    A: Software is not a method, the execution of software may be claimed as a method

    N: La la la la (fingers in ears)

    N: You can’t patent that, that’s a mere use.

    L: One is allowed to patent “uses.”

    N: But you cannot patent “data.”

    L: No one is saying patent “data.” Just like when we discussed the ability to patent the shaping of wood. Do you remember? You keep on making the same mistake of trying to pass judgment on elements instead of the claim.

    N: La la la (fingers in ears)

    L: A use that transforms a workpiece. That’s expressly patentable – Congress even defined that in 35 USC 100(b).

    N: I need help, my argument does not work.

    A: Ned obscures what software is, attempts to say that software is the execution of software, attempts to say that software is “use of machine,” runs into the problem that Congress explicitly says use of machine is patentable. Les points this out. Ned is “confused,” and somehow thinks the discussion has gone off the rails somewhere. Ned does not have a Plan C. Time to run away again.

    The Merry Go Round continues.

  2. 16

    >>3) The standard for non-obviousness should be raised so that patents are only granted to those “who work hard on big, fresh ideas, rather than those who file the paperwork on a tiddler.”

    You have to love these nutjobs. Their view of innovation is from a Disney movie.

    1. 16.2

      Those top floor types who read The Economist might indeed be “nutjobs” with a “Disney” view of innovation. But they are the ones who make the law that you practise, are they not? Best then, to note carefully the way their minds are running, however sadly inadequate you find them to be.

      And if you can communicate with them, in language carefully and imaginatively composed to seize their attention, and which will help them to grasp the reality, so much the better.

      But from postings like yours, they could hardly be blamed for coming to the conclusion that you are the one deserving of the label “nutjob”.

      1. 16.2.1

        You do realize that part of the problem MaxDrei is reflected in your own choice of words: “who make the law

        In this sovereign we have this thing called Separation of Powers. Statutory law (such as for example Patent Law) has been explicitly designated to one branch of our government for any such “making.”

        And you can “note” all you want their past “way their minds are running” and that just won’t help you because “those minds” won’t define the term “Abstract” and won’t keep their fingers out of the 101 Nose of Wax.

        ANY such “carefully and imaginatively” chosen communication will be conveniently dismissed as “scrivining” – so your “so much the better” is simply NOT.

        And then to turn around and blame the one calling attention to the fact that the Emperor is not wearing any clothes…

        …that just won’t stop the Emperor from swinging in the breeze, now will it?

        It’s amazing how poorly thought out this “call” for the attorneys to simply change is.

        Throw another slab of meat out the back door and keep on “thinking” that this time the wolf will finally be satisfied and will leave for good.


          When I mentioned those “who make the law” I had in mind those on Capitol Hill and those that have their attention ie the lobbyists. Isn’t this the readership The Economist is aiming at/pandering to?


            When did “those on Capitol Hill” make the change sin law that we so often discuss here MaxDrei? the ones that earn the scorn of one branch of the government violating the separation of powers?

            As to the audience that the Economist is pandering to, perhaps the better focus would be on the fact that they are pandering with propaganda and pablum (you know, the “content”)

      2. 16.2.2

        Max, re your point about attempting communications that might get their attention, as an Economist subscriber I have submitted this letter to the Editor:
        Yes, there are specific aspects of patent enforcement that need improvement, especially excessive litigation costs to challenge patent validity. Several newsworthy [but unmentioned] improvements have already been made in recent U.S. statutory changes and Supreme Court decisions. More are in pending legislation.
        However, since your economic objections to patents in general applies even more strongly to copyrights (with their vastly longer terms, as you noted) I assume that you will now be promptly un-hypocritically supporting putting all of your, and other, magazine content on the web for free and unobstructed public copying?
        P.S. The real problem with articles like this [which, as it notes, is an old historic view of this particular economics magazine] is that they are based on poor quality and highly selective economic data, ignoring other important factors, and market differences. For example, they cite some patent licensing costs for some technology startups, but ignore the great importance we have all observed of patents for both obtaining venture capital R&D funding and resisting immediate low cost copying by large entities after the proof of product success by the startups. One known example of many is IBMs rejection of early offers to even co-invest in xerography, but then launching patent-infringing products of their own after the great gamble and proven great success of Hailoid-Xerox.
        However, this magazines economic view of patents could only be effectively rebutted, in their view, by economic studies by other economists.


          In other words, ends-geared spin that mischaracterizes history, law, fact (and what others post about history, law and fact).

          Rather reminiscent of Malcolm and Ned…

  3. 15

    Ingenious inventors invented an unstealable bike.(link to

    The invention seems to have 2 parts:

    Inspiration (10%): Use one or more parts of the bike as the bike lock. If a thief breaks the lock, then they break the bike.

    Perspiration (90%): Engineering a bike as described above, figure out what parts go where and build it (and sell it).

    The general public (and the Economist) I think, regard the 10% Inspiration as not worthy of a patent because it is just the idea. Patenting the idea gives the patent holder an automatic share of the ‘90% Perspiration’ of the people who will do the ‘real work’ of actually engineering a bicycle.

    The general public (and the Economist) , I think, regard the results of the 90% Perspiration as worthy of a patent because the inventors are sharing the results of their hard work in exchange for the patent.

    The 10% Inspiration above is, of course, intellectually property just like the results of the 90% Perspiration. And since a patent system is designed to protect intellectual property, its natural to ask: ‘Why can’t I protect the 10% Inspiration with a patent? It is Intellectual Property just like the results of the 90% Perspiration’

    And in fact you can, the current patent system often lets you patent the 10% Inspiration (if you follow the forms and rules and argue with the PTO)

    The general public (and the Economist) want to change the system so you cannot patent 10% Inspiration even though it is intellectual property just like the results of the 90% Perspiration.

    1. 15.2

      Well Slashdot, you have come up with a theory. And you have sold it to yourself. But not to me.

      Certainly, genius is nearly all perspiration and just a soupcon of inspiration. We can agree on that. Look at his YERKA bike in your link. It’s neither a good bike frame nor a good lock. Bit like a shoe that doubles as a hat. Or a hat you can use as a carpet slipper. Unsatisfactory as either. Still and all that, the simple notion of using the bike frame as a component of your bike lock is, in itself, per se, I agree, elegant. Hasn’t it been done before though?

      Sure, it is possible to patent the inspiration, when implementation is no more than routine. The example I would cite is freeze branding of domesticated animals (specifically cattle) whose hides are valuable. Freeze branding, you see, does not deprive of commercial value the leather directly underneath the brand. Once you have the freeze-branding idea, the implementation of the idea is trite.

      But let anon educate you on the “ladders of abstraction”, a banal concept that trainee patent attorneys in the UK find out about during their first day in the office. You claim you invention as widely as you think you can. You then write a considered set of dependent claims of ever-increasing specificity. When all the prior art is in, you decide where on the ladder to make your stand. The narrower the claim, the more resistant it will be to PTO objections and, later, validity attacks but the more design-around room you give those who would copy. The challenge of drafting is to get the optimal balance between reach and validity, all the scope in the world and, at the same time, perfect resistance to attacks on its validity. tricky. That’s why drafting is high value work.

      Me, I think The Economist hasn’t got the first clue about patent rights, patent drafting, patent prosecution, patent assertion, and the defence of claims against attacks on their validity.

      1. 15.2.1

        MaxDrei, an outstanding one sentence summary: “The challenge of drafting is to get the optimal balance between reach and validity, all the scope in the world and, at the same time, perfect resistance to attacks on its validity.”

        And under our current patent system, an attorney will protect their clients interests by finding the ‘optimal balance’ which gives the best result for their client.

        The Economist (and the general public) believe that currently the ‘optimal balance’ being found by diligent patent attorneys under the current patent system allows (requires) patents which claim the 10% Inspiration without requiring ‘enough’ of the 90% Perspiration. This ultimately discourages progress in the technological arts because progress comes from the actual hard work, not the idea.

        Universal truth: Ideas are cheap, execution is everything. The patent system is supposed to reward inventors who understand this and put in the work. When the patent system can be expanded to protect any idea it removes the incentive for execution and retards progress in the technological arts. Hence the Economist’s ideas to make the patent system more ‘90% Perspiration’ oriented.

        As an aside, for freeze branding, the implementation is not trite. The 2 patents I saw described in some detail the physical freeze branding iron. We can safely assume that the inventor actually branded some of their own cows to verify that the idea would work. What if freeze branding had killed the cow? What if the branded leg feel off 10% of the time? What if the cows skin fell off where it was frozen? What if the branding iron exploded? What if the liquid nitrogen only lasted for 5 cows a day? The freeze branding inventor was fortunate that his particular invention required less perspiration than most because everything which could have gone wrong went right instead. But don’t think they were not sweating the first time they freeze branded a $500 cow.


          This ultimately discourages progress in the technological arts because progress comes from the actual hard work, not the idea.

          You could not be more wrong with how you want to apply your idea.

          I will readily grant that additional insights and innovations can and often do flow from the acts of scaling up for production, by no means – and expressly as our patent system was meant to be – does this mean that actual scaling up was meant as some type of requirement for the Quid Pro Quo of the patent right.

          Once again, somehow the “I want more” is being infused (or attempted to be infused) into patent law.

          That is just not the law nor the intent of the law.

          Requiring that next step actually works AGAINST the promoting progress because you induce artificial constraints to innovation that are post-Quid Pro Quo. You play into the hands of those who can compete on non-innovation factors of size, wealth, and existing market presence.


          Dear Slash, you are right and you make my point, that The Economist fails to distinguish between defects inherent in the patent system, and defects found in its implementation in the US jurisdiction.

          Of course any patents system is inherently anti-competitive and a restraint in trade. Thickets stop newcomers. Ground-breaking patents tie up the commercial future of whole areas of blue sky research. So, the potency of the legal right given has to be proportionate to the contribution the inventor has given, through the A-publication of the patent application, to the public. The courts have shown that they understand the need for this proportionality.

          If the A-publication fails to deliver an enabling disclosure, it fails to protect its subject matter and thus it is open, published, and available for all to take. If it claims something obvious, it fails and its subject matter is available for all to take. So, under FtF, it is taking a huge risk to deliver anything less than a full enabling disclosure to the PTO in your patent application.

          there are two ways for the court to decide what was “obvious”. It can use a fair TSM base for argument, like the EPO does. Or it can have a “Obvious because I say it’s obvious” approach, which is erratic, unpredictable and unfair. TSM is objective but I grant you, does not confine patents to once in a lifetime “Flash of Genius” inventions.

          It would be misguided to ressurect a “Flash of Genius” test. Better to concentrate on matching the potency of the legal right to the contribution “large or small” which the inventor has brought to the art.

          For examople, the UK Patents Act of 1949 had a provision for extending the (then 16 year) term of the patent for up to 10 years in a case where the evidence showed that the injvention was of outstanding and that the inventor had not yet received adequate remuneration. The inventor of Colour TV got the full ten years of extension.

          In the other direction, Germany gives protection limited to ten years, for inventions not clever enough to qualify for a 20 year patent.

          As to freeze branding, I grant you there is scope in the field for hundreds of improvement patents. As to the first time they freeze-branded an animal, I think you are fantasizing. It is not as if the effects of extreme cold on a patch of skin were completely unknown at the time. I am sure they were well-known. It is just that, until then, nobody came to the idea, repeat, idea, to use extreme cold instead of extreme heat, to brand the animal.

          And the patent would hardly “pre-empt” an entire industry. Those afeared of the consequences of freeze branding for their valuable animals could continue to brand them with a red-hot iron, yes?


            Max, one can argue that one has a right only to protect that which one discloses and no more.

            Claims that in any way functionally claim beyond the disclosure are at best equitable privileges. These should be governed with an eye to affording social justice for all involved, including the public and public interest.


              One can “argue” for any version that strikes any particular “fancy.”

              But shall we return then to our (U.S.) actual law, as actually written by the actual branch of the government with actual authority per our constitution?


              Ned when you assert that the scope of protection should be restricted to “that which one discloses” you are begging the question. I say I’m disclosing a new and inventive concept in technology and several easy-peasy ways to realise it. I want a claim to the concept because that is what I have disclosed and because a claim to the concept is commensurate with my contribution to the art.

              Consider my claim to “A squash ball, coloured blue.” Until my invention, squash balls were black. With a blue one, however, the quality of the game is enhanced. That’s because, against a white wall, a human squash player can pick up and identify the flight of a blue ball faster than any other colour, including black. My evidence? DoD research results in the context of aerial dogfight performance amongst fighter pilots.

              Are you going to confine my patent scope to something narrower than a blue squash ball? Why should I be confined to my specific implementation recipe, please? It’s not commensurate, not fair.


                Blue is abstract.

                If not abstract, it is merely a wavelength of light, and light is not “material,” so…

                No patent for you.

                (said in the best Jerry Seinfeld chef character tones)

                1. I am afraid sir that I am going to have to see an objective physical term for this “blue” thing you want to claim. It appears that you merely want to claim a result.

                  Note as evidence, the “famous” blue-gold-black-white dress that was the rage on the internets awhile back.

                  Your claim cannot be to a result of color, and you need to have in the claim your desired physical structure.

                  /off sardonic bemusement



                One cannot patent an idea.

                Until this doctrine is firmly settled in the law, everywhere, we are going to have problems.

                One has a right to a patent on what one discloses in terms of what is described. The law, based on equitable principles, recognizes that one can foreclose equivalents — but there is no legal right to foreclose equivalents.

                But extend the patent beyond the disclosure to the principle, an one again is patenting the idea.

                1. Move the goalposts back.

                  No one is patenting an idea or something TOTALLY in the mind.

                  You really need to get a grip on what the ladders of abstraction are – you’ve clearly jumped off the top rung.

    2. 15.3

      Where I went to college, both the front and rear wheels would be stolen from that bike. I think this is a good idea, but you’d still have two carry another two locks with you.

      1. 15.3.1

        Great observation there Bob. I had to laugh.

        Take my city bike, for example. Brilliant German oil bath 14 gear hub on the back wheel, while the hub of the front wheel is a brilliant high performance dynamo. Each wheel well worth stealing, alone for the value in its hub.

        And when both wheels are gone, what’s left of the YERKA, wrapped round the tree trunk? Just the lock I guess!

    1. 14.1

      I read your article. You are right, no patent agent in their right might would try to obscure anything. Perhaps the writers don’t understand technology or have a hared time reading claims. (Most people do.)

      I hope this article is not influential because it is full of many foolish notions and illogic. To wit, in order: Look to the 19th century international fairs for guidance because its just like today. Strengthening patents in Japan in 1988, did not increase R&D spending. Of course, the collapse of the asset bubble and the economy in 1991 might have been an impediment. Taiwan strengthened its patent regime in 1986 and R&D spending did not increase there, but world-wide spending did not. Really! In many industries, waves of innovation occur before patents start to be filed. Like the telegraph (Morse), the telephone (Bell), light bulb and phonograph (Edison), flying machines (Wright Brothers), etc.

      As you noted, submarine patents are a dead letter. Continuing, Chinese inventors are filing a flurry of patents with the Chinese Patent Office but not filing abroad because they don’t have commercial potential. Maybe, it is because they don’t have the $100,000 plus to gamble. People file for patents they don’t need for defensive purposes, because 40-90% (more like 90%) of issued patents are not used or licensed. I had a wonderful idea for a product that I was sure consumers would love. After I took my patent to Walmart, their marketing people said it was clever, but would not sell in reasonable numbers. Unfortunately, I had to agree with them. See the large number of patents in Chart 2 on page 51 going back to 1840. Impressive, except it is not normalized to population or GDP. And so on.

      There is some debate about the effect of patents on innovation, but this article added little and subtracted a great deal.

  4. 13

    Some time ago, I found a very intersting article: Peter C. Grindley & David J. Teece, ‘Managing Intellectual Capital: Licensing And Cross-Licensing In Semiconductors And Electronics’, 39 California Management Review 1997, p. 8-41.

    One of the observations by the authors is that patents, at least in electronics and software, were not seen as a problem until the 1980’s, for the reason that at the time IBM and AT&T were dominating firms in that segment, and both we subject of antitrust accusations – which was a reason for them to grant cheap patent licences. That prevented the patent “arms race” practices that seem to be unavoidable these days, now that these firms are no longer under antitrust scrutiny.

    ANON: please don’t react – but read carefully – I have said nothing anti-patent that was not said alrady by the original article.

    1. 13.1

      Well, let me add something that is anti-patent. Researcher found a decline in medical innovation by pharmaceutical companies after the worldwide patent protection of medicines was strengthened by the World Trade Argreement with its TRIPS appendix. If good health care is the ultimate objective, patents lead to “market failure” in pharma since firms (naturally) focussing on profit maximisation are subject of “perverse incentives” from the patent system.

      Anyway, the advent of – very promising – personalized cancer therapies creates a legal challenge were the present patent system seems to be not really fit for, since these medicines naturally are always experimental, so can not be subject of the traditional test and approval system. I heard this from the former president of the Royanl Dutch Academy or Arts and Sciences, a leading microbiologist. He does not avoid patents, but ptants are not suuitab;e for some – very important – fields of medicine.


          It is no pleasant if you are hit by Adam Smiths “invisible hand”. Economists recognize for many years that markets my fail. And for hardliners who believe that markets as a matter of principle always are right, market failures are seen as circumstances where there is no proper market at all.

          Only people who lived under a stone in recent years have not seen the adverse effect of “perverse incientives”, in particular in the banking industry. The “invisible hand” can work adversely too. I guess Adam Smith knew that as well when he published his magnum opus in 1776.


            Such “pleasantry” – or more to the point, lack thereof, are, to be perfectly blunt: TOO FN BAD.

            You cannot make an omelette without breaking eggs. In the real world, communism simply is a FAIL. Get used to it.

            AS to market failures as some sign that The Invisible Hand does not work – that’s pure B$ and leftist wishful thinking. ANY and ALL systems have ebbs and flows. Such is perfectly natural.

            Your attempt to say that the Invisible Hand should be eliminated is truly p@thetic. Simply put, there has been NO BETTER way forward towards the promotion of society.


              If I don’t learn new English words from you, what other purpose have these conversations, to be honest? If you continue complaining about my desire then I may stop these conversations – bad news for you since you appear to be addicted to irritation.

              Of courze I am not advocating communism. Still the freedom of competition is essential in a capitalist society, and it is connecten to an essential freedom of ideas. That’s to say: abstract ideas. Patent lawyers know the difference.

              I am not advocating that the invisible hand should no longer be trusted at all – but ALWAYS trusting is not good either. Imagine: putting our society entirely in an invisible hand is PREPOSTEROUS.


                Once again, your desire to paint my responses in a negative light is nothing more than FAIL from you and an attempt to digress from the points that I make.

                Come man, you can do better.

      1. 13.1.2

        So, why would a pharma company try to develop drugs if there is no term of exclusive rights related to those drugs?

        Don’t get me wrong; I think there are valid reasons not to like patents with respect to drugs. In particular, the drug companies have every incentive to cheat when it comes to reporting benefits of their drugs, but basically no incentive to report on deleterious effects or a lack of effect from their drugs. But I can’t see how to incentivize drug companies without patents. Any drug takes years to develop and many millions of dollars for trials. Without patents, a competitor can wait for a drug to be approved and then start making the drug, without spending anything to develop or test the drug.



          Why can’t you see the simple answer that they should be forced to share?

          Are they nothing but g-g-grifters?

          /off sardonic bemusement


          No doubt this is a complex problem. The question is whether the patent system really fosters public health. If the answer is: “no but it fosters shareholders interestests, and we do not care about life of death”, frankly I beg to disagree.


            The question is whether the patent system really fosters public health.

            That is NOT the question.


              1. Why do you disagree?
              2. It follows from the constitutional mandate “To promote the progress of science and useful arts, by securing
              for limited times to authors and inventors the exclusive right to
              their respective writings and discoveries”
              3. There is case law saying explicitly that patents do NOT serve the purpose to allow their owners to make as much profit as possible. Prifitabbility is only a means to an end.
              4. Economists assume that markets may fail, i.e. that the “invisible hand” drives ino an undesirable result. Then the question is appropriate what result is desirable.
              4. In the end, I may raise my own questions.


                It is “a” question to be sure, and ONE that anyone – even you – can freely ask.

                It is not “the” question.

                Your second point 4 is askew.

                Likewise, your first point 4 is off as well, as somehow you equate a market failure with a failure (total) of the Invisible Hand concept. No such alignment exists. Yes, there are things that are called ‘market failures,’ and such things just do not equate with a failure of the Invisible Hand.

                No one is arguing your point 3, and quite in fact that point supports MY views. The patent system is fully working when there is NO market creation of a single invention. There is NO “injustice” for an inventor to take the full measure of the Quid Pro Quo and if desired prevent any and all from practicing his invention for the entire duration of his term. Some here (perhaps not you) do not grasp this fundamental concept.

                Your point 2 is also askew, as you are merely assuming the conclusion you want to reach. Likewise, any invention may also merely serve as inspiration for other inventions that may achieve what you point to (as innovation often takes unpredictable leaps and bounds based on odd tangents of what went before). There is no “it must follow” for any one invention to do so – you abide by the fallacy of linear invention.

                I disagree because you are wrong.

                1. I said that “Economists assume that markets may fail” (italics added here). Which is synonymous to saying that the “invisible hand” does not lead in the desired direction here.

                  What is the “desired direction” here? That is a subjective element, but I guess that most people won’t disagree if “optimization of health care” is considered a desirable outcome, congruent with the constitutional mandate.

                  Yes, I know that patents may also serve the purpose of inspiring follow-on inventors. In the internet era the dissemination of knowledge is no longer a problem, but I acknowledge that some inventors will not be prepared to share their knowledge unless it is patent-protected. But I heard also the argument that the secrecy required before patent application is considered a serious drawback since it prevents invetors from talking to each other until the “patentability stage” is reached.

                  BUT economist found out that – at least in Europe – software patents rarely serve that purpose. If they are consulted by competitors, that is mostly to see what they are doing, as a kind of “legal espionage”.
                  For many business methods, there is yet another reason why the publication associated with the grant of a patent is not so important is that business methods are often executed in the public so that everybody can see them. But that may not apply to all business methoids – if only due to the vagueness of the business method concept.

                2. You also make the mistake of considering one option not being met as a failure of the total system.

                  Like other anti-patentists here, options in the law seem to get in the way of your desired ends.

                3. The Economist did NOT “find out” anything – that piece of C R P is pure wishful thinking and ends/opinion/policy masquerading as something “meaningful.”

    2. 13.2

      As if “that was not already said” makes it somehow “ok” to be anti-patent….?

      What kind of logic is that my friend?

      1. 13.2.1

        Was my reaction removed? Is pro-patent? Remember that in the patent litigation practice patent owners are faced with (alleged) patent infringers – who may be true infringers or people who disagree that a patent was ever granted.

        Or is litigation more profitable if it is in support of a patent owner? if profitability is the criterion, why not a start a forum about Theft usually is very profitable, at least if it is done sufficiently profesionally, and isn’t profit the only meaure that really matters in a market economy?

        Hopefully readers will recognize that I am writing here in a cynical “advocatus diaboli” mode.


          Sorry friend, I did not have the chance to see your reaction.

          As to anyone who merely feels that “a patent was not truly granted,” you really do need to take into account our law on that point (the presumption of validity).

          Your advocacy, even for the diabolical one, is quite lacking. As a client, he deserves better.

          May I suggest you stick to the economics ivory tower of your academia and not try to pretend to be an attorney…


            35 USC § 282 “… The burden of establishing invalidity of a patent or any claim thereof shall rest on the party asserting such invalidity. …”

            So it IS possible to assert invalidity. For instance, the assertion in CLS v. Alice was that the patent was invalid.

            Anyway, sometimes attorneys defend patent owners and at other times they defend people accused of infringement. In the latter sitution, they role is so to say to be anti-patent.

            No I don not pretend to be an attorney. But I know what kind of work they do, as a citizen, and from case law.


              Your logic continues to be flawed.

              No one said that you could not assert and then prove your case that a granted patent is not valid.

              You have moved the goalposts, and then want to change the subject with your “Anyway.”

              You then confuse what it means to be anti-patent and to claim that a specific patent is not valid.

              The two are most definitely NOT the same.

              And you exhibit the type of “understanding” of an attorney that was the butt of jokes here in the States with the “I slept at a Holiday Inn last night.” There is a phrase here that fits you: a little knowledge is dangerous. You know enough to gild your L I E S with a kernel of truth. While others here who profess to be attorneys simply stumble ineptly by attempting to create mere “versions” of the law, your friend are smarter than they and seek to not change what you think is the law, but you still don’t appreciate what the law is in you aims for a different ends.

              An ends that does not – that cannot – escape your animus of anti-patent.


                Are you getting angry? It is almost funny what you write.

                Starting point was my observation that in patent litigation often one party owns the patent and the other is accused of infringement. And then the latter party may challenge the validity of the patent, on various grounds. Then it is so to say their role to be anti-patent. Or more precisely: to have a narrow view on patentable subject-matter.

                Thanks for reminding me that in U.S. law there is the “presumption of validity” of patents, but my understanding is that it only regulates the burden of proof, and does not prevent someone accused of infringement from proving that the patent is invalid.

                Why do you repeatedly suggest that I am dangerous? I guess that is too much honor! I may be confused about the law, but confusion is not deliberate, and other people may be subject to the same confusion.

                1. Not getting angry at all – why do you wish to dissemble and try to take us off our discussion points?

                  I “got” what you said about role in litigation – and you are still wrong to equate the two as being “anti-patent.”

                  It just is not so. One can easily see certain patents as not valid while being NOT at all anti-patent. You are assuming something that is just not there.

                  The danger is both a compliment and a put-down. You are more adept at presenting your views than the typical anti-patentists here. But your views remain deeply flawed.

                  As to “not deliberate,” I will call B$ on that. Your long history shows that your views and “kernels of truth” are very much deliberate.

                2. You say that you don’t have to be anti-patent to claim the invalidity of a patent in court. It seems that you distinguish the attorney who is supposed to have valid arguments from the activist who is opposed without valid arguments.

                  Activists can be devided into (at least) two different categories. One category analyzes the law and argues that a different interpretation of the present statutes is more appropriate. Another category starts from a political vision and tries to collect voters supporting that position. That is called “democracy”.

                  I am in the former category. I found that not onl;y (some) patents are controversial, I also noted that the law is inconsistent. There is a problem with inventions allegedly consisting of both patentable and non-patentable subject-matter. Should those patent application be treated as a whole, the normal rule, or should specifically the patentable part be novel, and the rest be ignored as “insignificant post-solution activity”? The latter approach intuitively seems the best, but it violates the principal “whole contents” approach.

                  My observation is that this is a paradox. Proper patent applications can not be split into patentable and non-patentable subject-matter.

                  European patent law suffers from exactly the same paradox. The German Dispositionsprogramm decision (June 22, 1976, before the EPO time) resembles Flook (June 22, 1978) like two peas in a pod.
                  More recently, an EPO Board of Appeal again tried to split a patent application into patentable and non-patentable subject-matter, but then they found that both are so intertwined that no reasonable split could be made (Ticketmaster).

                  I solved this problem in my PhD thesis, starting from the premise that patents primarily must regulate competition. This may be an unusual presumption but IMHO it is unavoidable since the “reward” (or “quid pro quo”) presumption gives no reason to exclude “abstract ideas” (or “non-technical” subject-matter in Europe).

                3. Arguments on validity are different than arguments against the patent system or categories of patent eligibility or of any discussion of larger legal issues.

                  If you cannot grasp this – you have NO business making comments here. This is a bottom line fundamental understanding to be had.

                  It is then obfuscation from you to attempt to correlate ANY of one action to an attribute of the other.

                  Rearranging statutory law through “re-interpretation’ is NOT called democracy.

                  And make no mistake – that is exactly the effort that you and the anti-patentists are engaged in – a changing of the law.

                  You may very well (and properly should) see inconsistencies in our law. That is not a mistake. What is a mistake is not understand what drives those inconsistencies and what those inconsistencies really mean. Those inconsistencies are the fruits of our Court violating our own constitution by abridging the separation of powers are attempting to hold onto a power of setting the definition of “invention” that was stripped from them in the Act of 1952.

                  The problem simply is not the one that you want to see. The “paradox” is far simpler explained by the reality as I have observed. And in all respect, I simply don’t give a rat’s arse about your German law observations. My observations are fully engrained in the laws of my sovereign and the deep and abiding understanding of those laws here. Since you don’t understand our sovereign, it is beyond presumptuous for you to claim that your paper has solved our problem. We do not have the nail that your beloved hammer goes to. Your attempt to infuse economics – and more particularly your version of an economic solution – just does not work.

  5. 12

    It strikes me that what is bothering The Economist is the asymmetry, between the Start-Up and the Establishment. Its cartel-busting proposal that a Big Player ought to be able to enjoin a Start Up only when it is itself genuinely making commercial use of the subject matter of the patent it is asserting strikes me as worth exploring.

    As to raising the obviousness standard, I see that as pointless, impracticable and counter-productive. Start Ups need their own burgeoning patent portfolio. They need patents on what The Economist calls “tiddlers” even more than The Establishment does. Subject matter is either “obvious” or it ain’t. Observe Germany’s recent capitulation. You cannot credibly maintain two different levels of obviousness, a higher one for 20 year patents and a lower one for 10 year utility (Gebrauchsmuster) patent grants. Germany used to have, an eon ago, a patentability requirement for “Technical Progress”. Needless to say, that failed the 1973 European shake-out when the EPC was written.

    Some problems flagged up by The Economist will in time fade away anyway. Thus:

    Experience in Europe, of the differences between English common law and mainland civil law procedures for litigating infringement and validity reveal how grotesquely more expensive English fact-finding can be. Nevertheless in its full majesty it’s still needed. The thing is though, in a First to File regime, it’s needed only in about one case in every hundred FtF patents that are litigated. The trick is to have full discovery, x-exam of expert witnesses, etc, only when the case justifies it. Rather than looking to Congress, one has to look to the judges, to put their own house in order. Recent history suggests that they might just be up to the task, when the are experienced in adjudicating FtF patents.

    Finally, see 4.1.3 above. First to File puts out to the public, 18 months after filing, a full enabling disclosure of the innovation. This is called “Promoting the Progress”. And it does. Those who were working the invention before the filing date have a right of continued use. Those who take from the A publication will have to pay compensation to the patent owner, once the patent issues, back to the date of the A publication. Those who file prematurely shoot themselves in the foot. The public takes their ideas but the patent is too weak to enforce.

    1. 12.1

      There may be a kernel of truth somewhere in that cartel busting notion, MaxDrei. Just look at India and how it attempts to bust the cartel of the Pharmaceuticals.

      Or is that not the example you were thinking of?

      Alas, one then must look closer at both the idea being advanced and the Sovereign in which that idea is being advanced into. And here in the US, our Sovereign has not ever had a “must use” element to our patent law. In fact, the “must use” can easily seen to be counter-productive in addition to being a weakening force for what is intended (at least here) to be a negative right (and it is readily apparent that this concept of a negative right is simply not understood or appreciated by the Economist writer).

      One must remember that the ability to block others is a good thing. The article employs a less-than-critical view of this important concept. The article thinks that if others are blocked from copying (which itself is not actually innovation), then “all hope is lost.” Just not so. Just, in fact, the opposite. The adage of “necessity is the mother of invention” comes to play. If your path is blocked, you then have incentive to invent a new path. Patents are meant to block!

      As to other facets of our Sovereign, this “something more” that is “must use” is also easily seen as something outside of the traditional Quid Pro Quo that is the cornerstone of our system. “Must use” is a post facto condition outside of the Quid Pro Quo. On closer inspection, one notices that this “must use” (despite the face put on it by MaxDrei as “Cartel busting” is not so one-way geared. It is LESS “Cartel busting” as it appears, as it can easily be seen as requiring MORE assets that are NOT innovation related in order to enjoy the fruits of the patent system. In this “new world order,” in order to enjoy the Quid Pro Quo, you will now have to have the assets in place to capitalize and market and manufacture and deliver goods that are NOT on the “negative right” side of the coin, but are on the non-innovation side of doing something with the property right quite apart from that property right. Rather than stymie the established Big Corp, this then upon closer look HELPS Big Corp.

      Instead of a “rising tide” that raises all ships, this then can be viewed as a “receding tide” that lowers all ships. This directly plays into the game plan of Big Corp whom have the non-innovation capacity to navigate such lower waters and not crash upon the exposed shoals.

      So (again) we have a mechanism that seeks to “hide” in “helping the little guys.” This is (yet again) a simple rhetorical trick. Say one thing while in essence doing its opposite.

    2. 12.2

      ” Subject matter is either “obvious” or it ain’t.”

      Yes but to whom matters. Currently in the US we have a very low standard on for whom, a mere person of ordinary skill. Which means all the experts running around in arts making what is, for them, routine combinations then get patents left and right (technically speaking though the office fights this). This is the one area where I think obviousness may need to be reevaluated.

      1. 12.2.1

        You want Flash of Genius back in?

        Talk to Congress – they were pretty explicit that they did not want that.


          Idk about flash of genius, I’m just not sure that every single “expert only” combo should be patentable over the art.

      2. 12.2.2

        Interesting observation, 6. Is there a difference in what is “routine” for i) an expert and ii) a person who is “skilled” in the specialist field of the claimed subject matter? I’m not convinced there is.

        Much more tricky, I would say, is to eliminate a claim with the line that its subject matter is no more than “routine”. Regardless whether it is a matter for the PHOS or the expert, it’s just as tricky. This was also a problem for the UK, until it signed up to the EPC and the EPO’s Problem and Solution Approach to obviousness.

        How in the USA today can you do “routine therefore obvious” cleanly and expeditiously? You can’t, can you?

        You have seen how the EPO does it. Typically, the Examining Division simply asserts that the subject matter of each such dependent claim is no more than a “routine workshop variant” which delivers no more performance improvement than what would have been expected. Then, if Applicant cannot convincingly refute the Examiner’s position, the claim fails.

        Of course, it is different in the USA. But, as Jim Boff explains at Comment 14 above, there is in the USA a misconception, that any problem afflicting US patent law is one that afflicts the patent system everywhere else in the world just as badly. The Economist suffers from that misconception too. It ought to know better, before it starts pontificating on patent law and its deficiencies!


          You suffer from that very same affliction MaxDrie with your first paragraph above.

          How often have I chided you to respect the differences in patent law that exist?

          I am thoroughly amused by your post and how well it applies to you.

          Bravo, even if the ends were not intended.


          Yes there is quite a difference. In many arts the ordinary skilled artisan is what you’d normally call a newbie irl because as soon as they’re not then they’re an expert. And even though the ordinary skilled man has knowledge of everything analogus and published you are officially forbodin from utilizing a combo that only an expert would make. And there are a lot of those in many arts since the ordinary skilled men would change practically nothing.


            6 you write:

            “In many arts the ordinary skilled artisan is what you’d normally call a newbie irl because as soon as they’re not then they’re an expert”

            And there was me, thinking that “skilled” meant “skilled in the relevant art”. But you seem to be telling me that, according to the caselaw of the USA, the PHOSITA, irrespective what educational background is possessed, has still to acquire even the beginnings of any skill “in the art”.

            Can that really be what you are telling me? If so, that confirms my position. BTW: It ain’t like that in other jurisdictions.

            And I had thought it also not like that in the USA. What about the “ordinary degree of inventiveness/creativity” of the KSR-type PHOSITA?


              “And there was me, thinking that “skilled” meant “skilled in the relevant art”. But you seem to be telling me that, according to the caselaw of the USA, the PHOSITA, irrespective what educational background is possessed, has still to acquire even the beginnings of any skill “in the art”.”

              Yes, there is voluminous writings on how once the imaginary man is an “expert” he is no longer a mere person of ordinary skill in the art. And there are many law reviews citing to those statements. All of which does make sense, once you wrap your mind around it. In 1952 Congress likely did not want to set the bar too high, as in so high that people of mere ordinary skill could never get a patent. There were fresh off the “flash of genius” test and didn’t like that. That being said, we now have ginormous entire industries filled with experts making combinations that may well be obvious to them or someone like them, but not of someone of mere ordinary skill in their art.

              You would think that the “person of ordinary skill” determination would grow with the industry somewhat. And somewhat it does, but it can never overtake “experts”. That is the ceiling.


              “What about the “ordinary degree of inventiveness/creativity” of the KSR-type PHOSITA?”

              Yeah that’s in there too. But again, they can’t get all into “extraordinary/expert degree of inventiveness” so to speak. Technically anyway. Has to be ordinary.


              Further, which is even more important today Max, is that the person of ordinary skill is but one man, and today’s inventions often have multiple inventors. No doubt many of them took many people to even come up with whatever it is which happens to be in an independent claim under consideration. Merely one hypothetical man cannot keep up with a team of three men being paid to invent and bringing all their combined years of exp and inventiveness to bear.


                6 thanks.
                In haste, just so as you know, at least in English patent law it has been for decades recognised that, depending on the case, the “skilled addressee” is a team. Nothing else is sensible, these days in, for example, pharma cases.

                1. MaxDrei,

                  Pharma may be an example, but is hardly the best – or most pertinent to the ongoing debates.

                  Far better are software patents – clearly.

                  Just as I provided an example to Malcolm’s fallacy of “objective physical claiming” with the pointing out that PHOSITA can readily turn ANY claim containing his dreaded partial functional claiming (and let’s not forget Prof. Crouch’s coined term of Vast Middle Ground for which nearly all software patents comfortably land in) into tens or even hundreds of pages of claim language that meet his canard – and then realizing that for PHOSITA claims are read (and understood to be written) by team PHOSITA that understands and applies the equivalence that exists between software and hardware (and the equivalence that exists between software and firmware, for that matter – Ned).

                  When one approaches the subject matter without guile and without spin, then and only then, can dialogue be moved forward.

      3. 12.2.3

        >mere person of ordinary skill.

        An omniscient person of ordinary skill, hindsight reasoning to boot. But admittedly, I lost this argument 100 years ago.

  6. 11

    The Economist is wrong, of course. Worse, on questions of a use requirement, it’s not even wrong. Use requirements would be easy to evade for trolls, painful for real inventors, and pointless in cases of the worst abstract patents in business methods and software.

    But this is the kind of pushback you can expect when the patent bar pushes its beak into subject matter it has no business regulating. If the PTO is going to issue patents on software, the software industry and businesses are going to push back as hard as they need to to protect innovators in such an important industry from the patent bar. Since the simple and necessary reform of recognizing the non-statutory nature of software is off the table now, you can expect the software industry and businesses that use software to use every means available to weaken the patent system as a whole.

    And that is the right thing to do until the patent bar can reform itself.

    1. 11.1

      You use the term “protect innovators,” but you clearly do not know that that term means, nor what patents are for.

      Owen is the perfect example of what grows in the, shall we be generous, “ecosystem” (or is that “echosystem”) of allowing the detritus of Malcolm (and the echoes) to run amuck.

    2. 11.2

      Actually, Owen, I think it is particular companies that have been pushing the patenting of software and business methods. You rightly note the backlash — and it too is being lead by companies.

      The patent bar behave like swine to a feast in face of expanded patentable subject matter and will not oppose more business or think long term.

      But it is high time that the patent bar starts thinking policy instead of their own profits.

      Hah! Not possible.

      1. 11.2.1

        Beware those pushing “policy” and ignoring law and fact.

        Especially those that seek to have the Court do the work of the legislature (a la a certain O’Malley article that a certain person posted a link to evidently not bothering to understand what that article was about)

  7. 10

    Complete garbage. Unless you are a Fortune 500 company, good luck to anyone else on getting paid, in the absence of a patent system, for your improvements to ill functioning, entrenched technologies of those same Fortune 500 companies. It’s mind blowing that people couch this argument in terms of the small guy getting screwed by patents, where the exact opposite is the case. Patent rights provide a vital tool for leveling the playing field between independent inventors and the big guys. In a society where virtually all physical property is already owned by the wealthy and powerful (and always has been), the patent system refreshingly enables both affluent and non-affluent inventors to obtain valuable property – limited only by his or her imagination.

    1. 10.1

      >It’s mind blowing that people couch this argument in terms of the small guy getting screwed by patents, where the exact opposite is the case.

      So IBM and Intellectual Ventures don’t exist in your world?

      1. 10.1.1

        Think i4i cat – and then read again the full message.

        Yes, the big boys can play too – but that is hardly the point, now is it?

        Rather, the point is that the patent system provides an exclusive power quite aside from the non-innovation factors that stem from sheer size.

        This is not rocket science, son – this is basic innovation understanding.

  8. 9

    Speaking of semiconductors, any news on Gil “I Invented That Until I Didn’t” Hyatt’s patent applications?

    1. 9.1

      Looks like poor persecuted Gil Hyatt is going to the Supreme Court:

      link to

      n 2008, a Nevada jury found in favor of Hyatt on all intentional tort causes of action.15 The jury awarded Hyatt damages of $85 million for emotional distress, $52 million for invasion of privacy, $1,085,282 for fraud, and $250 million in punitive damages. Hyatt was also awarded approximately $2.5 million in costs.


      Remember: all that “emotional distress” flowed from megamillionaire Hyatt’s attempts to keep every penny he earned from licensing a junk patent out of the hands of the bad ol’ government who erroneously handed him that junk patent in the first place. Yes, it’s positively surreal, but there we are.

    1. 8.1

      LOL. Will nobody stand up for the Constitution and the “rights retained by the people”? Because 17th century England.

      Mr. Luthmann also makes other arguments in his brief, in a quite intemperate style that I would think wouldn’t endear him to judges

      At least he didn’t cite his own press release to support his claim that the government is “predetermined” to deny him his rights. Death squads! Too funny.

    2. 8.2

      The head of my former firm was a professional bodybuilder. I’d like to designate him as my co-counsel for this purpose.

      First-action allowances, as far as the eye can see.

      1. 8.2.1

        DS: The head of my former firm was a professional bodybuilder. I’d like to designate him as my co-counsel for this purpose.

        Ha! Happy Friday, David. That made my day.

    1. 6.1

      . . . and trademarks as well . . . ’cause information wants to be free . . . or something.

      Let’s see how long The Economist lasts . . . when THEIR OWN IP is kaput.

  9. 5

    “Patents are supposed to spread knowledge, by obliging holders to lay out their innovation for all to see; they often fail, because patent-lawyers are masters of obfuscation.”

    Never attribute to malice that which is adequately explained by stupidity (or shrinking budgets).

  10. 4

    Proposal 1) is a clear indication that the author is completely opposed to intangible intellectual property, both as a right and a value.

    A person invents something of great value, and if he/she does not “use it” in the market place, he/she should not own the fruits of his/her own mental labor – an invention which came into being as a direct result of that effort.

    Clearly smacks of Marx’ perspective which emphasized the role of physical labor and dismissed mental effort.


    1. 4.1

      I always find the argument that people should own “fruits of his/her own mental labor” interesting when it comes to patents.

      For example, suppose Bob invents something and decides to do nothing with it. He files for a patent, but refuses to license/sell it/do anything other than hang on to a piece of paper.

      Wholly independently, Francis also invents the exact same thing, but 3 days after Bob. To be clear, Francis didn’t get any of his ideas from Bob — he independently invented. But Francis wants to market it, let people use it, and show it to the public.

      Don’t both of these people have claims to own the “fruits of his/her own mental labor”? Why does Bob get a patent (that he refuses to implement) and Francis told he’s not allowed to do it — simply because of 3 days? Is that a good public policy? What helps bring more innovation to the public?

      My point overall is not to have an answer to these questions but to point out the argument of a right-to-own-fruits-of-mental-labor doesn’t seem to get us very far as to deciding what is the best policy when people independently invent all the time.

      1. 4.1.1

        Jane, Back during FTI, I always advised that one should build and test the invention before we file.

        We need to return to FTI, and add a requirement of actual reduction to practice.

        The Euro might complain about this, but to that, I say, why not join us?


          When was the last time we had an actual reduction requirement Ned?

          Not even getting to the ridiculousness of dissuading follow on invention that any such “actual reduction” may violate other people’s rights….


          …for anti-patentists and Infringer’s Rights groups, perhaps.

          Independent invention never has been a defense in U.S. Patent law. Maybe you can figure out why.

          Hint: it goes with your canard of “but-for” as the only “real” reason for having a patent system.


            anti-patentists and Infringer’s Rights groups


            Please, please, please, please keep digging your own grave with this tired script.


              Says the guy holding the shovel, under the mountain of “gift” from that non-white elephant…

              You funny.

      2. 4.1.3

        Why does Bob get a patent (that he refuses to implement) and Francis told he’s not allowed to do it — simply because of 3 days?

        To encourage and reward early public disclosure, of course. But you’re begging the question: who said Bob gets an injunction? I think that giving Bob a reasonable royalty would be perfectly adequate. Bob is awarded for his earlier disclosure, Francis makes his product and gets his profits, society gets the new product, everyone wins. The flaw isn’t in the “right to fruits of one’s mental labor”, but rather in the right to exclude others from the fruits of one’s mental labor, and is why injunctive relief should be rare at best.

        As an aside, removing injunctions except in cases of direct competitors in the market also removes the teeth of trolls: if you can’t wave the “I’ll shut you down” stick, then a small company that barely makes any profits and would pay negligible royalties has nothing to fear from trolls.


          Abstract iDan,

          Your idea of remedy is more than just a little off – and coupled with a seemingly under appreciation of what the patent right is – the nature as put forth in our constitution of exclusivity – you miss the first rule of what remedy attempts to do: make the aggrieved whole.

          The plain (and easy) fact here is that what in most other cases of thing not patent, the remedy of injunction is “harsh.” But – and this is a HUGE but – this “harshness” is simply not there in view of what the patent right IS. There simply is no better approximation of making the remedy match the right and thus fulfilling why a remedy is sought in the first place than injunction.

          If one remembers to take a big (and proper) view, one comes to the opposite of your view. You want something other than a patent. You want something other than what our constitution calls for. You have bought the kool-aid of the “Tr011” fairy tale. Need I remind you of just who coined that term and why they coined that term? Hint: it was not for the benefit of the public.


            Respectfully, anon, it’s not that I have “missed” the view that patents are property and include a right to exclude. It’s that I disagree with that view, as, increasingly, do the courts. It’s a law and economics perspective – economically, it makes little sense to award injunctions as it removes a product from the marketplace. It only makes sense in instances where there are direct competitors, such that a product already exists that fulfils the market need and the competition simply harms the manufacturers. That’s why courts have not missed the first rule of remedy, but rather understand that they can make the aggrieved whole with a reasonable royalty: monetary damages are almost always going to be adequate remedy. There’s no need for punitive damages for trespass on your idea.


              You “disagree” with a basic component of what a patent IS.

              As I said, you want something else.

              This is NOT a “law and economics perspective.” It is a lack of inte11ectual honesty perspective.

              Let me be perfectly frank: there is nothing at all wrong with wanting a different thing. There is everything wrong with trying to pretend that such a different thing is in fact not a different thing.

              You do yourself NO favor by attempting to “disagree” your way out of what a patent IS.

              You do yourself NO favor by relying on some notion that “economics” redefines the basic essence of what a patent IS.

              The plain fact of the matter is that the patent right is what it is: a negative right of exclusivity REGARDLESS of what is “in the marketplace” or not. The Quid Pro Quo is fully exchanged before the marketplace is even reached.

              The negative right of which is a patent right is obtained with or without products in the marketplace.

              The notion you want to ignore is the very essence of what a patent IS – and you want to insert instead the “effects” of what might be done with patents after grant (a positive action).

              You are simply NOT addressing the actual right transgressed, so you** are simply NOT correct as to reaching the first rule of remedy.

              **the Royal you, which includes the Royal Nine.


                You “disagree” with a basic component of what a patent IS.

                As I said, you want something else.

                Yes, that’s what I said. Glad we’re in agreement on what we’re discussing!

                Anyway, now that we’re both finally on the same page, you haven’t addressed why keeping the traditional patents-are-property-with-an-unassailable-right-to-exclude viewpoint is correct, other than just “that’s how it is!

                Times change, and courts are recognizing that injunctive relief really isn’t appropriate in many cases, and as much as you can pound the table and insist that the bundle of sticks of patent property rights can’t ever change because that’s “the basic essence of what a patent IS”, other people want a more substantive argument. And lacking any good arguments for keeping it the same, the basic essence of what a patent IS will CHANGE.


              iDan, if there are no other producers of a product, then an injunction may be against the public interest.

              If there are other producers and they are licensed, then the injunction should issue because it favors those others who have acted responsibly.


                Exactly, Ned, hence why I said “removing injunctions except in cases of direct competitors” in my original post and “[injunctive relief] only makes sense in instances where there are direct competitors, such that a product already exists that fulfils the market need and the competition simply harms the manufacturers” in the post you replied to. I assume you’re merely reiterating and expanding on what I said?

                1. You haven’t addressed why you are trying to change what a patent is in order to change patent law.

                  As I ALSO said – that’s just not inte11ectually honest.

                  Sorry that you may want more from me, but understanding what the law is happens to be more than good enough.

                  I don’t need ANY arguments for that.

                  On the other hand, you, who wish to change the law (honestly or otherwise) do have the onus to make the argument.

                  It would be most helpful though in ANY argument that you make, that you approach what you are doing honestly and forth rightfully.

                  Until you do that, you should also recognize that matching the (actual) right with making that rights holder most whole is exactly as I stated.

                  You first have to succeed at changing what a patent is in order to then have the faintest chance of having your second position be true.

                2. Sorry, anon, I thought I’ve been completely clear about my position. You’ve been responding to it, and also clearly understand it (although you disagree), so what exactly is “not inte11ectually h0n3st”? Not being in complete agreement with you?

                  And, I’ve already made the argument above. And it’s the same argument the Supreme Court made in eBay. Like it or not, my position is true, and yours is antiquated.

                3. You see, that’s the danger when you try to conflate what is NOT current patent law with your “something else” – you misconstrue Court cases that do intersect with real patent law.

                  Your “version” of eBay is thus flawed and what you want to take away from that case is in fact not what that case puts out.

                  You are only f001ing yourself to think that that case supports you. It cannot support the phantom “version” of patent law that is just not IS.

  11. 3

    Even under Alice one can argue this claim is patentable (see claim below). So, I think you’re going to need the Supreme Court to take up another case that’s more on point with the “functionally claimed processors” if you want to rid yourself of these. Personally, I’d rather the SC take up such a case, as then the three branches of Gov’t can work as they’re supposed to: if the SC deems all claims with processors invalid, Congress can take up that issue. As it is now, no one knows what Alice says, so Congress has nothing to take up.

    By the way, you can keep your head in the sand if you wish, but “functionally claimed processors” are everywhere and in anything electronic. Name pretty much any electronic device, and it has a processor in it or attached to it. I agree that the NP Es had a bad run of court cases, and it should be easier for companies to get rid of court cases based on claims covering business methods. But to remove all scientific advances simply because they use a processor (and — heaven forbid! — could be claimed functionally using that processor) is moving too far backwards in light of technology today.

    Google’s claim:

    1. A method comprising:
    receiving, by one or more processors, a request to switch a vehicle from a manual driving mode to an autonomous driving mode;
    in response to receiving the request, using, by the one or more processors, protocol data to assess (i) the status of the vehicle’s environment, (ii) the vehicle, and systems of the vehicle, and (iii) a user of the vehicle;
    selecting, by the one or more processors, a set of driving conditions from a plurality of predetermined driving conditions based on one or more of the assessments;
    generating, by the one or more processors, a set of tasks based on the selected set of driving conditions wherein each task is one that may be performed by a driver to change the condition;
    selecting, by the one or more processors, as a first task of the set of tasks based on a priority of the tasks;
    displaying, by the one or more processors, to the user of the vehicle the first task of the set of tasks;
    when the first task has been completed by the user, reassessing, by the one or more processors, the priority of the tasks in order to select a second task of the set of tasks based on the priority of the tasks;
    displaying, by the one or more processors, to the user of the vehicle the second task;
    upon determining that all of the tasks of the set of tasks are completed, switching, by the one or more processors, the vehicle from a manual driving mode to an autonomous driving mode.

    1. 3.2

      Nobody is claiming getting rid of all claims simply because they use a processor, besides MM.

      The problem is often overly broad claims that should never have been granted in the first place, which are often, but not always, claimed functionally in a way that covers non-obvious, novel inventions that would accomplish the same function.

      And the bad examiners who granted them, for which I partially blame production, a lack of cooperation in examining, and under qualified examiners.

      And the bad attorneys who attempt to obfuscate what the invention is (in other arts). Or can’t draft specs. Or claims. Or understand the technology.

      And the inventors who never disclose relevant art they should have known about (yeah, you attended a small conference and filed a patent on something presented at that conference but didn’t bother to cite the proceedings, which I’m now using as 102 art. I’m sure that was just oversight… or trying to patent things done by academic researchers whom everyone in the field knows of)m

      Stuff like this makes me dislike the job and want to go back to R&D, even though the culture sucks.

      1. 3.2.1

        “The problem is often overly broad claims that should never have been granted in the first place, which are often, but not always, claimed functionally in a way that covers non-obvious, novel inventions that would accomplish the same function.”

        If this is a problem, and I don’t think it is, it is a problem with all classes of claims.

        Here’s an example

        A first member attached to a second member.

        That seems fine to you, I’m sure. But it could be said to be overly broad in a way that covers non-obvious, novel inventions that would accomplish the same function.

        For example, the specification might explain that the members could be attached by nails, screws, clue, welding or any other attachment mechanism.

        But someone might later invent cold pressed fusion whereby to members can be subjected to clamping and a stream of heavy boson tachyons forcing the members to fuse together.

        The recited attachment reads on that too. Oh the horror.


          Depends whether it is the product or the method equivalent. In general, I think the breadth is more of a problem with method claims.

          I agree “attached” is broad, but I haven’t thought about it enough. I deal with semiconductors so I don’t see that language that frequently.

          The method equivalent would be too broad, and I dislike “method” claims like that (e.g. provide a first semiconductor, provide a second on the first, etc.) but the methods are often not elected, and a DIV is never filed.

          I mean, it’s also different because structure and method claims are often different in my area, while in other areas what is claimed is “structure with generic elements that does method”.



            A substrate;

            an N-type layer on the substrate;

            a P-type layer on the N-type layer…

            someone could invent a new material that still qualifies an N- N-type layer…


              That is true; the patent for a diode made of new materials would be novel and non-obvious, and would be entitled to a patent.

              However, in this case, a diode made of new materials is still a diode, and requires the invention of the diode (I’m making the assumption that you’re not disclosing the transistor).

              I guess my reply would be that things don’t necessarily work the same when you claim functionally.

              For example, suppose you instead claimed “a device comprising at least three metal contacts, and at least one semiconductor, that amplifies a signal” when you invented the BJT. You throw in something in the spec about how materials include but aren’t limited to the BJT.

              The idea of amplifying a signal has been around before the invention of the BJT (e.g. vacuum tubes), but hasn’t been reduced to practice with “at least one semiconductor” (assuming vacuum tubes just use metals).

              Now the inclusion of at least three metal contacts and at least one semiconductor is so generic that every transistor is going to have them, even if it isn’t the BJT. Thus, anything would infringe, as long as it has at least three metal contacts (which every transistor is going to have).

              So you didn’t invent the MOSFET, but whoever invents the MOSFET infringes on your patent. You didn’t invent the HEMT, but whoever invents the HEMT infringes on your patent.

              At least, I think that would constitute infringement, correct me if I’m wrong.

              And this seems to be my problem: your invention really isn’t what you claimed, but the BJT.



                You seem to show a lack of appreciation of the ladders of abstraction…

                Much like the other examiner, you would do well to return to school to appreciate this concept. There are more than two rungs on any ladder, and climbing A rung just is not the grabbing of the top rung that you seem to think that it is. 95% of all patents that have ANY value (that is, those that are not the exacting picture claims that are simply far far far too easily side-stepped) employ the ladders of abstraction in order to obtain a right that reflects the nature of the contribution – as it should be so done.


                “So you didn’t invent the MOSFET, but whoever invents the MOSFET infringes on your patent. You didn’t invent the HEMT, but whoever invents the HEMT infringes on your patent.”

                That is exactly the same situation with my diode example. Call the diode disclosed a BD. Call the one with the new N-type GaD…

                To use your argument, in your transistor example, a solid state amplifier had never been made before and the mosfet is still a solid state amplifier.

                1. >That is exactly the same situation with my diode example.

                  No, it’s not… A p-n diode with a new N-type material is still fundamentally a p-n diode.

                  >To use your argument, in your transistor example, a solid state amplifier had never been made before and the mosfet is still a solid state amplifier.

                  A HEMT is not a MOSTFET is not a BJT; they’re different structures. My problem is functional claiming can allow one to claim multiple structures, including those not invented, within a “genus”.

                  Sure, they all fall within the genus of “solid state amplifier” but this is a genus that encompasses many different device types that can work in fundamentally different ways and have fundamentally different device structures, but can produce the same “result”.

                  I don’t think a patent system that works in this manner allows the useful progress of the sciences and useful arts. Of course, we probably disagree on that.

                2. How do you feel about chemical ranges which allow an analogous range of different structures?

                  How do you feel about the Act of 1952 which allows claim elements to widely use (and use beyond 112(f)) language sounding in function?

                3. If the first patent claims a solid state amplifier or solid state transistor it reads on the later invented HEMT and MOSFET.

      2. 3.2.2

        Nobody is claiming getting rid of all claims simply because they use a processor, besides MM

        Uh … I’ve never suggested any such thing. Please learn to read.



              A meaningless retort Malcolm, as you are on record as stating that software PER SE is ineligible – no matter how it is claimed.

              You violate the basic foundation that software is equivalent to hardware and equivalent to firmware. That is the “as such” that you outright L I E about.

              Of course, this is entirely not surprising – given your very own admission against interests on the exception to the judicial doctrine of printed matter.

    2. 3.3

      If there is a problem with this claim is that it is either anticipated or obvious in view of an autopilot.

      Not because it involves at least one processor.

    3. 3.4

      The problem with this claim is that it is abstract. All it claims is a decision making process while saying apply it in a car.

      PTO, you CAN do a better job.

      Is it too early to begin calling for the head of the new commissioner? He has been on the job for just few days.

    4. 3.5

      PB: I think you’re going to need the Supreme Court to take up another case that’s more on point with the “functionally claimed processors” if you want to rid yourself of these.

      That claim is a quintessential example of ineligible, invalid junk. Google knows it. And Google’s patent attorney knows it.

      But go ahead and tell everyone about how impossible it is to get a patent now.

      In a just society, everybody responsible for this travesty would be sanctioned and/or fired.

  12. 2

    Patent Use Requirement – the patent should only be enforceable if the patentee uses it in the marketplace.

    …which would categorically exclude two important groups from patent protection, and hence vastly discourage their efforts:

    (1) Startups.

    (2) Basic research and tech transfer.

    Patent Opposition – patents should be easier to challenge without going to court and the burden of proof should be lower.

    (1) Without going to court? So, like… just ask your next-door neighbor?

    (2) Patents are much easier to challenge now, both procedurally (PTAB post-grant options) and substantively (Alice invalidation is an absolutely evidence-free process). Of course, the unacknowledged counterpoint is that these options also serve as obstacles to enforcing legitimate patents against bad-faith infringers. It’s tiresome to see advocates only ever discuss one side of this issue.

    The standard for non-obviousness should be raised so that patents are only granted to those “who work hard on big, fresh ideas, rather than those who file the paperwork on a tiddler.”

    Great argument for 2004. But then we had this case called KSR that raised the standard for non-obviousness about as high as it can go: it eradicated any and all barriers for combining references.

    Want to reject a claim for a snow shovel because you think it looks like a combination of a baseball bat and a dump truck? Go right ahead! Just say it’s all “analogous art” and call it a day.

    Want to reject a claim for an algorithm? Just run a word search on the internet for every three-word sequence in the algorithm, and paste them all together like a ransom note. A combination of nine references? Don’t mind if I do! (MPEP 2145(V).)

    4) Patent term should be reduced – especially in fast-moving technology areas.

    Well, for various reasons (principally suggestion #3), some legitimate patents are taking many years to get through the system.

    Traversed irrelevant reference A? Rejected again based on equally irrelevant reference B. And then reference C, and reference D… nine years later, you’ve finally traversed all of the references A through QQ – congratulations, here’s your patent. Thanks to the “reduced patent term,” it’s valid for the next 12 seconds.

    And the rules of patent term extension have been crafted and interpreted to squelch patent term, *and* encourage delay as a legitimate tactic – case in point: the “RCE Hole.”

    1. 2.2

      David Stein: these options also serve as obstacles to enforcing legitimate patents against bad-faith infringers

      It’s certainly true that making it easier to tank a junk patent can make it more costly to enforce a patent against a “bad-faith infringer.” But that cost is marginal given that the “bad faith infringer” is already going to do everything it can to run up costs and the cost of defending in an IPR is relatively tiny.

      In contrast, compare the cost to the public of the bad-faith patent assertion entity wielding a junk patent that should never have been granted (e.g., a junk patent like this one: link to The public is forced to pay for that IPR when it should be paying nothing at all.

      See how that works?

      We tried to warn you, David. Do everyone a favor and focus on defininig for everyone exactly what types of “software” patents should remain be eligible for patenting, what the criteria should be for obtaining such a patent, and what the proper term of such a patent should be. Otherwise there’s a good chance that the Supreme Court will make that determination for you and probably you won’t like it. You had seem decent ideas on this subject once upon a time, I seem to remember. Maybe just repost them.

      1. 2.2.1

        MM, the courts are where the action is right now. They are taking out junk on early motions and at low cost.

        IPRs are a problem in that they are easily invoked, expensive, and can be multiplied at will. Small business can no longer afford the patent system, and this means startups. IPRs hammer junk, and a lot more. They are like using a nuclear weapon to swat a fly.


          The EXACT same thing Ned is happening with the Court’s Wax Nose of 101.

          See your very own linked article by Judge O’Malley.

      2. 2.2.2

        “the cost of defending in an IPR is relatively tiny.”

        If it were only one, that may be true. But at 5, 10 or more IPRs, the costs are not tiny at all.


          But at 5, 10 or more IPRs, the costs are not tiny at all

          If you don’t have your ducks in a row after the first one, you are completely incompetent and deserve whatever is coming to you.


          Re this [and Ned’s same] allegation, please point to some actual recent examples of where the PTAB has made lots of extra work for itself by allowing multiple IPRs to be separately conducted against the same patent claims? [Not even to mention the logical inconsistency of also arguing that the first IPR will almost always be fatal.]
          Among other reasons not, there the statutory requirement that all IPR requests on any patent must be filed within one year of the petitioner being sued on the patent, and the fact that at least 80% of all IPRs are only filed in response to being sued.

          You may be thinking of reexaminations, where plural reexaminations of the same patent were indeed more likely. But even there, the different reexam requests were often merged into a single proceeding.


            Reexams were consolidated, and only the examiner could issue an office action.

            In IPRs, each petition must be answered. Each petition may have different art, different claims, different experts. Regardless of consolidation, multiple IPRs multiply the expense.


              Not really. If the IPR petition is by same party or a privy and the patent owner simply points out that the IPR is being requested against the same patent as their prior IPR, all the patent owner may actually need to do is simply note that the second IPR petition should be rejected because no reason has been given by the petitioner for why the same art and arguments were not already presented in the first IPR?
              Of course if a patent owner is suing several different unrelated defendants, then the patent owner may have thereby caused some of them to file their own IPR petitions, if they chose not to cooperate. But even then I am not aware of any prohibition on the PTAB handling them in a coordinated manner?


                Same art and arguments?

                Who would do such a thing?

                Why not the same claims but different art?

                Different claims, different art?

                The IPR has a page limit problem that forces multiple petitions.

                1. Ned, “the same” referred to the new art and arguments made in the second IPR petition that [as noted] could have been, but were not, raised in the first IPR petition.
                  Also, IPR page limits have already been changed.
                  But yes, if the patent being asserted has a hundred claims, all allegeded to be infringed, using IPRs would be expensive and difficult.
                  There are ample legitimate things to criticize about IPRs and other post-grant proceedings. Hopefully more will be addressed in pending rule changes. There is no need to generate others that are not, which could mislead those trying to give accurate advice.

                2. Paul,

                  I cannot follow your “definition” of same as different (but could have been brought).

                  You cannot define black as white.

  13. 1

    4) Patent term should be reduced – especially in fast-moving technology areas.

    Or we could simply eliminate patents on software and functionally claimed “processors.” That’s going to happen sooner or later. Why not just rip the band-aid off?

    For a good whiff of how broken things still are, check out Google’s recently granted junk patent on using a checklist to determine when its safe to perform a task.

    link to

    Heckuva job, PTO.

    1. 1.1

      MM, at some point, PTO management must be held accountable. Obama ought to demand results, and fire as many Directors as it takes until he gets results.

      And, MM, we need you or a guy like you in that job.

    2. 1.2

      Regarding software, perhaps a simple edict along these lines: if a program or programmed computer is involved, issue and maintain a 101 rejection unless the applicant provides a showing that the claimed invention is directed to an improved machine or to a process that otherwise passes the MOT.


          Les, “something?” But the MOT is limited to transforming something that is either a machine, manufacture or composition. Transformation of ideas is not what the MOT is about.


            ” But the MOT is limited to transforming something that is either a machine, manufacture or composition. ”

            You made that up.

            What has to be transformed is an article.

            Articles are things and things include, for example, the result of work or activity.

            Bits qualify as things and are therefore articles.


              Articles are things manufactured. Are you suggesting that machines or compositions are not made by man?

              A bit is not manufactured. A bit is an idea.

              If you are talking about the state of a circuit, a particular known state is not a new state.


                An idea…?

                Seriously Ned?

                Read again what you wrote – ’tis beyond belief.

                Is the space of Morse likewise nothing but an idea?

                As to your “particular state and new state” fallacy, tell me of ANY invention EVER in the categories of machines and manufactures that survives the attempted “logic” you wish to use – applying that very same logic to the degree of my big box of electrons, protons and neutrons.

                Face facts Ned: software is a thing manufactured by the hand of man. Every bit as much as anything else manufactured by the hand of man (pun intended).

                The simple set theory explanation that you have refused to engage in any type of dialogue with explains the critical difference for this manufacture and relies on the other portion of 101 – the proper distinguishing of “utility” that sets apart and removes the fallacy of attempting to obfuscate with non-Useful Arts rhetorical tricks.

                Software is not a literary item.
                Software is not math.
                Software is not the execution of software.
                Software is not the idea of software.

                ANYONE attempting to use any of these canards is easily spotted, and their attempts shorn of any veracity. Such canards are destitute of reason and inte11ectual honesty.

                1. Ned –

                  Read ’em and weep:

                  An “article” includes a physical object or substance. The physical object or substance must be particular, meaning it can be specifically identified. An article can also be electronic data that represents a physical object or substance. For the test, the data should be more than an abstract value. Data can be specifically identified by indicating what the data represents, the particular type or nature of the data, and/or how or from where the data was obtained.

                  MPEP 2106 II B 1 (b)

                  Note, it does not say that other kinds of data are not articles.

                2. Les, the PTO has been part of the problem for a long time. They granted patents on data just like the MPEP says. But the Feds held those claims to be ineligible because data is not within the four classes.

                  We discussed the case here within the last year.

                3. Les,

                  Read the MPEP more carefully and see what it says about itself as far as its ability to “be” the law.

                  Note that this is not the same as saying that Ned is correct.

                  He obviously is not – as I demonstrated with simple set theory; as Prof. Crouch chided him for his improper citation to Ned’s “favorite case,” and as David Stein took the time and absolutely dismantled each and every case cite that Ned has used for Ned’s propaganda efforts.


                MPEP 2106 clearly indicates that data can be an article. It also indicates that Les is wrong, as not all processes qualify as eligible transformations.

                1. MPEP is defining data as patentable subject matter? Well there is a recent CAFC case directly on point that says it is not because it is not within the four classes.

                2. Les,

                  Ned purposefully dissembles about the “workpiece” thing,

                  Remember when he disappeared when you asked him about an invention made out of wood, and told him that wood is not eligible in and of itself for patenting?

                3. Workpiece, Les and Anon is not the claimed invention, which is the topic of conversation.

                  No doubt a new machine or process can operate on data. But the claimed invention cannot be the data itself — that is what we are talking about here.

                4. No Ned – that is the dust that you are attempting to kick up.

                  (and you forgot, software is a manufacture)

                5. Ned –

                  You said:

                  “Workpiece, Les and Anon is not the claimed invention, which is the topic of conversation.”

                  To which I respond: Huh?

                  Then you said:

                  “No doubt a new machine or process can operate on data. But the claimed invention cannot be the data itself — that is what we are talking about here.”

                  To which I say: No, what we are talking about a claimed invention that passes MOT because it transforms data. I’m glad you agree that such a method is patent eligible.

                  Perhaps now we can move on to something else.

                6. Ned,

                  That’s a matter of perspective.

                  Your Ned-IMHO law fails again. What you view as “the tracks” is nothing but deep, tall weeds.

                  Time for you to run away (again).


                “Articles are things manufactured.”

                I will concede that things manufactured can be articles.

                But no, not all articles are things manufactured. The T in MOT is about transformation of a work piece. The workpiece does not have to be something manufactured. For example, the thing transformed could be a broken bone.

                An Article is a thing.

                noun ar·ti·cle \ˈär-ti-kəl\

                : a thing or person of a particular and distinctive kind or class.

                link to

                Even by your definition,

                A bit is a thing.

                noun \ˈthiŋ\

                Full Definition of THING

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

                Therefore a bit is an article.

                “Are you suggesting that machines or compositions are not made by man?”

                No, well not all of them. A pig heart is a machine not made by man…. Why do you ask? What does that have to do with anything.

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