Patentlyo Bits and Bytes by Anthony McCain

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About Anthony McCain

Anthony McCain is a law student at Mizzou where he is focusing on intellectual property; He has a background in mechanical engineering.

23 thoughts on “Patentlyo Bits and Bytes by Anthony McCain

  1. 5

    More rhetorical nonsense from Bessen & Co. Take a look at this mind-boggling quote from the abstract for their article: “Using stock market event studies around patent lawsuit filings, we find that NPE lawsuits are associated with half a trillion dollars of lost wealth to defendants from 1990 through 2010, mostly from technology companies. Moreover, very little of this loss represents a transfer to small inventors. Instead, it implies reduced innovation incentives.”

    Simply repeats the same disingenuous malarkey they’ve been spewing for years. Ron Katznelson should have a “field day” dismantling this latest absurdity from Bessen & Co.

  2. 3

    Anthony (and Dennis),

    Thanks for the link to my group, PIUG. We’re the place for all the macro and micro level analysts from around the world that get in the trenches and actually pore through the patents to set the attorneys up to look good.

    Mostly in-house folks, but a healthy number of outside service providers and vendors as members as well. What, vendors as members? Yep! The PIUG meetings are where we speak as equals and fight about how to present families of patents, how to negate self-citations in valuation engines, which system is best at cleaning Assignee names, and beta test all the next gen improvements.

    We’re even in the education business with courses on patent searching for novelty and patent searching for FTO (two very different concepts). Too many folks out there using the hunt and peck method for searching or thinking ten minutes on Google is “good enough” when a systematic review of the relevant art is what the end client truly needs. Lot of law firms chock full of technical specialists that are doing searches these days and most have no idea what they are doing. Here’s a chance to “train ‘em up”.

    PS DIP

  3. 2

    James Bessen, Michael Meurer, & Jennifer Ford: The Private And Social Costs Of Patent Trolls

    Really? Stock price drop over litigation = realized loss? Better tell tax lawyers (they will want to argue recognized loss) and the IRS (they will want to argue against).

  4. 1

    Re: the new Texas PTO.

    ““Innovative companies are going to want to be located here, and they’re going to bring their related jobs,” said John Griswold, a partner at the intellectual property law firm of Fish and Richardson.”

    “They’re now also close to a new courtroom where anyone can challenge a patent they think is bogus and should not have been issued without the need to travel to Washington.”

    The two thoughts do not go together. Innovative companies do not want anything to do with their patents being challenged in the PTO by do-gooders and short-sellers who have a meretricious interest in destroying the patents of innovative firms, or burdening startups with the expenses of an IPR. Locating such a court in a city is likely to scare away innovative firms like a scarecrow in a field.

    The PTO has become the enemy of the patent holder, the scourge of the patent system. Their record in IPRs is so one-sided as to be 0bscene. Michele Lee is looking more and more like a character from a horror film.

    And yet, she is viewed my many as the archangel Michele, sword in hand, slaying left and right, scurrying trolls.

    All depends on one’s point of view.

    1. 1.1

      Ned, you write that those who ask the PTO to revoke a patent are:

      “do-gooders and short-sellers”

      You may well be right, but this is not what I see at the EPO, where about 5% of issued patents are challenged at the EPO, but the challengers are the competitors of the patent owners.

      Why the difference, I wonder. Is there perhaps more scope for mischief-making, under the patent law of the USA?


          Involved in litigation, you report. And why have they involved themselves in patent litigation? To make money out of it, I collect.


              OK. I see that Ned. I was forgetting that the dice are loaded against you, if you choose the court as forum in which to dispute validity. Not like that here in Europe.


                Max, to be clear, the patent owner does not have a choice and would always prefer a court because the standard of proof and the claim construction standard in court are not so heavily in favor of the infringer.

                This is not simply a matter of lower cost “alternative to litigation” which is the standard mantra pushed by the infringer bar. It is a matter of stacking the deck against the patent owner and everybody knows that.

                1. Ned for me the claim only has one meaning. I think it is unwise to encourage the notion that it means one thing at the PTO and a different thing entirely when you get to court. That way offends all right-thinking judges and observers in the wider world, even while it unduly enriches litigation lawyers. What I’m used to is the simple counter-claim for invalidity, which leads to simple squeeze arguments on claim construction. As patent owner you simply have to stand by your claim construction for both infringement and validity equally. You need a construction for your claim that is simultaneously narrow enough to avoid the validity attacks and wide enough for the same judge to find infringement. That’s what I call a “strong” patent system.

                2. Absolutely, Max. But as it is, claims will be given one interpretation in court for infringement purposes and a second interpretation the patent office for validity purposes. Obviously the patent owner will seek a broad interpretation in court and a narrow interpretation in the patent office. The infringer will do the opposite.

                  But by rule, the patent office has decided that the construction in the patent office will be broad, the construction they normally give to claims during examination in order that they read on the prior art so that clarifying amendments must be made. While this makes a lot of sense during examination, it makes no sense with respect to an issued patent which is the property of the patent owner.

                3. It is not so much “encouraging” as merely seeing what is.

                  Wise? I think it especially unwise to clench tight one’s eyes and only see what one wants to see.

                4. Ned, you write that it makes no sense for the PTO to apply BRI during IPR. I wonder though. If it is perceived as a mischief and an abuse of the system deliberately to draft claims with ambiguity, so that they can be construed narrow when defending against attacks on validity, but much wider by those worried about infringing, would not BRI during IPR curb the nuisance?

                  How else shall you curb it?

                5. Max, the solution of course is to not try validity and infringement in two separate forums.

                  But, since nothing like will BRI would ever be used in court, it is an abuse of the patent owner’s rights to construe his patent in this manner.

      1. 1.1.2

        Is there perhaps more scope for mischief-making, under the patent law of the USA?

        I’d say that 101 law has become so subjective – and the tilt of the playing field at most levels of judicial review has become so anti-patent – that patents in many fields can now be invalidated just by asking nicely and paying a modest fee.

        It’s an interesting turn of events. European practitioners have long complained of the emptiness of “technical effect” analysis in EU law – where the problem has to be “technical” and the solution has to have “technical character,” etc., with no real definitions provided anywhere along the way. Seems that the U.S. has caught up, if not surpassed, EU law in this regard.

        There is also more incentive for “mischief-making” – partly the tide of public opinion about our patent system, and partly the opportunity to profit, as per Kyle Bass’s tactics.


          David, when TRIPS ties the reach of patents to “technology” does it define “technological”? When 35 USC 103 says “obvious” does it define “obvious”? Are there not terms that are so fundamental they cannot be defined more precisely than in the dictionary? And anyway, which supreme court would offer a hostage to fortune with a definition that is already out of date as soon as it is uttered? And is it not inevitable and good that, at the boundary of patentability there will be an irreducible minimum degree of fuzziness?

          And who are these European practitioners you mention?


            Are there not terms that are so fundamental they cannot be defined more precisely than in the dictionary?

            That clearly does not help, now does it, eh?

    2. 1.2

      Their record in IPRs is so one-sided as to be 0bscene.

      What’s obscene is that those patents being tanked were every granted in the first place.

      Michele Lee is looking more and more like a character from a horror film.

      Perhaps you’re thinking of Buffy.

      1. 1.2.1

        MM, regarding all that computer implemented junk, I would agree. But it also clear as day that the PTO is operating at a much lower standard of proof than in court — an using BRI. So how much of the stuff the PTAB has invalidated is junk is not certain.

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