Following my discussion of Professor Colleen Chien’s WSJ essay on “ignoring patent demand letters, Professor Chien pointed me back to her 2014 article titled Holding Up and Holding Out that served as the basis for the WSJ essay.
In the hold-out article, Chien explains that, although patentee hold-ups are a systematic problem, so are hold-outs where infringers refuse to deal.
In the abstract, Chien explains:
Patent “hold-out” is a term I use to describe the practice of companies routinely ignoring patents and resisting patent owner demands, because the odds of getting caught are small. . . . When large companies systematically “hold out” [patentees] have no choice but to work with efficient patent enforcers or “trolls.” . . . I argue that considering ‘hold-out” and “hold-up” together provide a more complete picture than focus on either story alone, and that doing so reveals surprising pathways to a better patent system – focused on the design, rather than the doctrine of patent law. Instead of trying to eliminate all technology patents, or to enforce all of them, we should try to price them appropriately and reduce the distortions they produce. Instead of trying to make patent law perfect, we should make it cheaper, more streamlined, and more equitable.
The Chien article particularly addresses the concerns that I had with WSJ essay, which is why I was surprised to see the completely different focus of that WSJ essay. I thought she had also changed course. According to Chien, the emphasis and framing in the WSJ essay were the result of heavy WSJ editing rather than any backtracking from her prior work. In particular, Chien noted that the title “do nothing” was not her selection of terms – she suggested at least an internal analysis, forming an opinion, an filing the letter away. In addition, Chien noted that the essay was geared towards small companies seeking self help, not on the oped page.
That is all-and-good. Unfortunately, tens of thousands of people read the one-sided essay while only a couple hundred have read the nuanced article.
So, are there any posts below that actually involve “Follow-Up: Professor Chien’s More Nuanced ArgumentsFollow-Up: Professor Chien’s More Nuanced Arguments”? Or do they solely involve in-fighting among the “regulars”? (You’ll have to excuse me; I only glanced through the first one-third of the posts and saw nothing relevant to the topic.)
A follow up: Why continue to allow posts, when the vast majority of posts are unrelated to the topic at hand?
Dennis, hope you’re paying attention.
Amit
Thanks Amit – I’ve been out for a family holiday.
Amit,
Serious question: are you paying attention? I mean, Malcolm’s “exploits” have been running along the very same paths for NINE YEARS and running.
Well, well, well, before I ever posted here.
You cannot have an honor system with the likes of Malcolm, who knows no honor.
PB: are there any posts below that actually involve “Follow-Up: Professor Chien’s More Nuanced ArgumentsFollow-Up: Professor Chien’s More Nuanced Arguments”?
There’s dozens of them. It took my all of three seconds to find them.
Even your little buddy “Amit” is involved.
In those few cases where a paper sought an opinion piece from me on anything, I insisted on seeing all edits before it was published. If the edits rendered the article no longer my opinion, I told the paper to remove my name.
Chien’s behavior strikes me as bizarre to say the least and possibly even risky to her as well as to those she represents.
Chien’s behavior strikes me as bizarre
Just in case you missed it the first time, JM: people have been throwing patent-related demand letters in the trash for a long time after looking at the claims and deciding there is no point in wasting additional time.
If that strikes you as “bizarre”, it’s probably you who are doing your clients a disservice. Oh but wait! You still make money if you waste your client’s time. If we remember that, your complaint makes so much more sense.
It is bizarre to put one’s name to an opinion piece that does not accurately represent one’s opinion.
It is bizarre to put one’s name to an opinion piece that does not accurately represent one’s opinion.
I think Chien deemed the piece to be an accurate enough reflection of her opinion regarding one tiny slice of the world of patents. I’m not aware that the op-ed was ever intended to be a detailed exposition of every one of her opinions about every aspect of patent litigation, in every context and addressing every contingency. How could it be?
I think the “deemed… accurate enough” is expressly not when she comes out and tries to use the excuse that the paper changed things around.
That’s kind of a rather important point to keep in mind.
The original post by Dennis is about Colleen Chien contacting Dennis, supposedly refining her position.
But the abstract of the Michigan law review has nothing to do the WSJ op-ed, which op-ed is about small entities attacked by “trolls,” and the response of “do nothing.”
There are at least two points. First, if Chien fully backed the position in the WSJ op-ed, why the “editing” comments in her communication to Dennis? Second, why bring up an abstract of a law review at all, much less one that offers no defense to the the criticisms of Dennis to the op-ed?
Maybe you want to stop being all “ephemeral” and direct your points to those that I have actually put on the table for you….
Anon says: Maybe you want to stop being all “ephemeral” and direct your points to those that I have actually put on the table for you….
Huh??? I am talking about the post by Dennis concerning what Colleen Chien said. What are you talking about?
Huh?? right back at you – you were replying to me.
If you had meant to reply to someone else, maybe you should have done so…..
Anon says: use the excuse that the paper changed things around.
LE says: First, if Chien fully backed the position in the WSJ op-ed, why the “editing” comments in her communication to Dennis? Second, why bring up an abstract of a law review at all, much less one that offers no defense to the the criticisms of Dennis to the op-ed
The LE reply had points directed to “changed things” and further pointed out that apart from the attempted excuse the attempted “nuance” had nothing to do with Dennis’s problem.
Now here’s a patent worth respecting…. not.
link to washingtonpost.com
Google received a patent Tuesday detailing how a self-driving vehicle would determine if pedestrians were likely to cross a street, plan its next move accordingly, and then notify the pedestrians of its intent. Since the cars are being driven by a computer, a pedestrian can’t count on a hand signal or eye contact from a passenger to know a vehicle is waiting for them.
Cars don’t have hands or eyeballs to communicate information to pedestrians. What remarkable solution did the geniuses at Google come up with to solve this sooper dooper problem that was never addressed before in any context???
The patent describes using electronic screens mounted on the side of the vehicle — including potentially the roof, hood and rear of vehicle — to tell a pedestrians if it was safe to cross. A speaker on the outside of the vehicle might call out alerts, such as “coming through” or “safe to cross.” Perhaps most interesting is the potential use of a robotic hand and eyes to gesture at pedestrians and make them aware that the car “sees” them.
ROTFLMAO. Try to believe it, folks.
Worried about lack of respect for patents? Maybe it’s time to something about the ten zillion junky “do it with a robot car” patents out there. After all, nobody could have predicted that the PTO would crank that junk out like there’s no tomorrow …
Let’s set aside the fact that conceptually — at least as conceptually as recited in Google’s awesome claims — cars that signal their intent are really, really old.
See, e.g., link to youtube.com (0:17 to 0:44; 10:14-10:22)
That took five seconds. And that’s only 35 years old. There’s older stuff than that — way older.
And supposing the claim is to the implementation, much more than a mere abstract idea? Is 101 the tool to use, to stop the claim issuing? Face the logic. It’s a job for 103, isn’t it?
I’ve never ever suggested that 103 is not an appropriate t00l for getting rid of obvious junk, MD. Sometimes 103 is the only tool that will work.
Conflating 103 and 101 is NOT helpful.
Not to the jurisprudence of 101.
Not to the jurisprudence of 103.
And certainly not to the distinction between common law and statutory law.
Conflating 103 and 101 is NOT helpful.
I don’t see anyone in these comments is “conflating” 101 and 103. Maybe someone somewhere is mixing anchovies with ice cream. That’s not helpful either. You should find that person and lecture them.
The conflaters are the 9 at Scotus.
I’d pay money to watch you lecture them, but maybe not the bus fare to get there.
Silly, obviously, you do not understand 101.
Ned, obviously you don’t read Scotus’s opinions.
Silly, assume printed matter is non statutory. The only novelty is in the meaning of the printed matter in the claim.
How is this handled in the PTO right now?
Ned – BAD assumption.
Return (again) to my very simple to understand Set theory explanation.
One more thing. I do dislike the form of words “You need to….” Perhaps others here have grown used to them more than me, and find them meant kindly, but I find them presumptious and rude. Do people these days utter them routinely to their boss, line manager or CEO? I’m curious.
Not only when directed at me but also when directed to, say, Prof Dennis Crouch.
They might be intended to be helpful. But there are more courteous ways to make suggestions you suppose might possibly be helpful. And especially when the suggestion is not new but hackneyed, prefacing it with “you need to” makes it boring as well as discourteous. Seriously, do you suppose that Dennis is not aware of the problem and has not already tried various ways of moderating the blog more actively. Trouble is, these ways are either too crude or too time-consuming.
I find them presumptious and rude
These people believe the world revolves around their personal whims, MD. They’re used to getting their way and it drives them around the bend when their petulant foot-stamping isn’t immediately acted upon. They truly are The Most Important People Ever, in their own minds.
Malcolm,
See 14.2 – you are doing that AccuseOthersOfThatWhichMalcolm does (yet again).
MaxDrei,
\
I “get” that you are referencing ‘iwasthere’ in particular, but do you know who else used the very language that you deem “offensive” on this very thread?
Three people, but we can excuse one of them who said it merely in response to one of the other two.
Those two people are….
Malcolm
Ned
Go figure, you don’t seem to have any issues when it is those whom you “echo”…
Amit laments that MM writes too much, and that the threads would be better absent his contributions. I disagree. Without incisive active contributers, this blog would be less lively and less useful.
See below, where MM crosses swords with Night Writer (another power user) over whether 101 or 103 is the correct filter. Night urges use of 103 while MM urges:
“non-obvious abstractions like “correlations” are (wait for it) non-obvious. 103 doesn’t screen them out because … they’re non-obvious. That’s why we use 101.”
Now, Amit, how can you say that from MM isn’t a good quality contribution? I haven’t seen any answer yet, that gets anywhere near puncturing Malcolm’s point. All I see is the childish “Come on then. Give me an example of a non-obvious correlation”. When these correlations emerge only after exhaustive study of big medical data, I do not see how one can hand-wavingly dismiss them all as merely “obvious”.
In Europe, we have the same 101 vs 103 debate. Set aside the “mechanical” task of claim drafting and consider, isolated from that, the question of patentability of a DVD with a new pattern of laser pits which I call “MATRIX”. Is it new over an old DVD with a pit pattern I call “THE SOUND OF MUSIC”?
It’s a pickle. The thing claimed (clearly and definitely, let us pretend) is a piece of technology. It is new by virtue of its pit pattern, and its new pit pattern was not “obvious”. What to do? And would it make any difference if the pit pattern correlated to new and inventive encryption or image enhancement software? And what if the MATRIX DVD has in it pit patterns which achieve something technical like enhanced images?
The UK courts use their eligibility filter. The EPO uses its 103 provision (Art 56, EPC). It can do this very effectively, under the rubric of its EPO-specific “Problem and Solution Approach” which no other jurisdiction, world-wide, can yet bring itself to commit to. Thus the UK/EPO argument continues, undiminished, which jurisdiction has the better approach.
So I welcome having the same debate in these threads, provided it is between commentators (like MM) who contribute something useful.
Justice delayed is justice denied. On sorting out subject matter not fit to patent, I think we have, in recent years, seen a heck of a lot of delay.
Amit wants a productive forum. Laments “power four regulars.”
Rankings, Amit? Those do not help – as the DISQUS system showed, all you get is Echo feedback – and not any sense of careful and critical thinking.
The answer, Amit? Same as my answer: don’t let people go on drive-by monologues and merely repeat the same short script items without taking into account he discussion points placed on the table.
Four years ago now I personally gave this answer to Prof. Crouch.
The “problem” Amit, and the reason why that does not happen, is to do so would mean that a desired narrative is stopped here.
That just won’t happen – even if the main speaker of that narrative is the single most offensive person on the blog.
Double that time frame ago, MaxDrei’s “hero” was doing the same C R P he is doing today: offering mere conclusions framed not in actual law or facts, but only in his desired ends and the typical baseless ad hominems that are the staple of his short script. There is nothing incisive about Malcolm’s posts. Something useful…? Malcolm has given nothing but the banal.
Speaking of lack of careful and critical thinking, MaxDrei, long the mere Echo of Malcolm’s portion of the “power four regulars” trots out (again) the banality of conflating non-Useful Arts items in a 101/103 discussion. Lively and useful? Sorry MaxDrei, but the dross of drive-by monologues only exemplifies the opposite. There is no mind willing to comprehend when that mind refuses to even acknowledge and integrate the counter points presented.
…..except that I favour the 103 approach advocated by Night and the EPO. I disagree with the 101 approach taken by Malcolm and the English courts on this issue, as regular readers already know very well.
But in any jurisdiction, you have to go with what you’ve got so, for the USA, stuck as it is with more than 100 years of obviousness jurisprudence, the currently favoured 101 approach might be the only one that is workable. I do see that far.
MD: I favour the 103 approach advocated by Night and the EPO. I disagree with the 101 approach taken by Malcolm and the English courts on this issue
We all know that the EPO’s “103” approach (aka “inventive step”) includes an analysis of subject matter eligibility in the context of the prior art. The exact reasoning one uses in particular “technological” contexts may differ and may lead to different results in each jurisdiction (i.e., US versus EPO) depending on the facts but the issue being addressed is the same and in many (most?) cases the same result is obtained by a virtually identical analysis. Different words, same concept.
Yep. That’s what they say in England too.
Please respect our sovereign.
I am perfectly willing to let the English decide what law they want. Same for the EPO.
Here, we have different law.
Please recognize this and integrate this into your discussion points.
I don’t understand the issue. Once there is a data storage device, isn’t it obvious to use it for data. The rubber eraser precedent or Morse works (101) if there is a new type of data that has never been stored on the medium or 103 works if the medium has already been used for the proposed type of data.
It makes no difference whether we address:
program cards for a Jacquard Loom,
a roll for a player piano,
an electromagnetic transmission,
magnetic storage media,
tube/valve storage media,
solid-state storage media,
optical storage media, etc.
Once there is a data storage device, isn’t it obvious to use it for data
Depends on whether you were born yesterday or not. After all, “storing baseball card data is completely different from storing football card data.” ( <— typical "argument" made by deep thinking advocates for computer implemented junk)
The nice thing about 101 is that it eliminates that kind of game playing.
One very important thing you left out, Joachim….
Functionally related.
You do not even have to think of software examples. Just use measuring cups and magic hat bands.
ps, it is NOT that the type of functionally related must itself be inventive – that too is important to remember, as that is often deliberately obfuscated.
Denis for the most obvious reasons (MM) you need to put in a ranking system. MM/anon, et al. are destroying your blog.
You are aware that Malcolm and his selfsame tactics have been around for NINE years and running (long,long, long before I ever shoved his nose into his own C R P), right?
I second this. The comments section of this blog has a great deal of potential to be a productive forum of discussion about the posted article.
Due to poor oversight, it often devolves into conversations between three or four regulars. So each time, I have to scan through comments, ignore their garbage, and occasionally find a productive contribution.
Amit,
In addition to the above comment at 13.1, one must necessarily realize WHY the droning ad infinitum ad nauseum short script posts by Malcolm are put on the board: repeat something often enough, and it garners some semblance, some perception of “truth.”
It is a propaganda war – it just does not matter the means to the likes of Malcolm. All that he “cares” about is the End to be achieved.
…and I will also add that for some (unknown) reason, people ‘feel’ that one should be “polite” to the one-way-fingers-in-the-ears posters like Malcolm.
He does not deserve any such ‘nice’ treatment. It is beyond clear – nine years and running beyond – that he is nothing but an internet ‘bully’ and really just is not interested in ANY form of actual dialogue.
One does not treat bullies with ‘politeness.’
You punch a bully in the nose – that is the only thing bullies understand.
Since you cannot punch him in the nose, and I’m sure you are aware you cannot, then just go on and be polite.
I can – and do – figuratively punch him in the nose.
You want a “more polite” ec(h)osystem here?
Remove the one-way monologuing.
It really is that simple.
Some time ago Dennis asked a great question: what do we do with the thousand upon thousands of invalid and ineligible patents out there that were granted when nobody was at the wheel?
The answer is certainly not “respect them.” The answer is “expunge them as quickly as possible”, with extreme prejudice against the people who are trying to milk every last penny out that junk, at everyone else’s expense.
That’s what’s happening now. If you don’t like it, then find another playground because it’s going to take years. And in the meantime, it’d be nice if the PTO and the Federal Circuit moved the process forward instead of putting on the breaks and blowing sunshine up people’s behinds.
“Some time ago Dennis asked…”
I am more than sure that that was not the question the Prof. Crouch asked.
link to patentlyo.com
“What to do About All These Invalid Patents?”
Over the past few years, the Supreme Court has uncovered a few glaring errors in the patent records. Namely – hundreds of thousands of patent claims have issued that are – in fact – not patentable. These problematic claims either lack eligible subject matter under the patent common law and 35 U.S.C. § 101; are indefinite under 35 U.S.C. § 112; or are obvious under 35 U.S.C. § 103. … Prior to these decisions, the USPTO had been issuing patents under more lenient standards. See, e.g. State Street Bank (Fed. Cir. 1998).
Live and learn, “anon.”
“A different standard” is NOT the same as “nobody at the wheel.”
Quite in fact, “ A different standard” and “patent common law” speaks very much to the broken scoreboard that is the Supreme Court changing statutory law – in violation of the separation of powers.
Live and learn indeed – just not the way you “think.”
“A different standard” is NOT the same as “nobody at the wheel.”
That would depend on the “standard” in question. State Street was a dead letter. The PTO, as most people appreciate now, was — at best — completely clueless about how to deal with the inevitable Great Grab that followed.
That’s why we’re having this discussion. You know: the discussion that you tried for years to squelch with your hundred-s0ckpuppet-a-day cl0wning. Or did you think we all forgot about that, too?
Oh but wait: you’d like to go back to those wonderful pre-Prometheus days. That’s never going to happen. Please keep trying though! We can all use the laughs.
“That would depend on the “standard” in question.”
Absolutely not.
“State Street was a dead letter.”
Great, now move the goalposts back and realize (as I have emphasized to Ned), that I have never used State Street or relied on that case, instead relying on the actual words of Congress, the congressional record and the writings of the two most knowledgeable men concerning the Act of 1952 (Rich and Federico).
You smokescreen of “sockpuppets” is especially misplayed – as YOU are the one who uses them most often, or shall we (again) visit Dr. Noonan’s transparency challenge to you? Yea, thought so.
as for Mayo, you have YET to square that with its precedents….
Those laughs you here are NOT laughs with you Malcolm.
People who pretend to be concerned about “respect for patents” should have been speaking up against the worst patents, the worst judges, and the worst patent attorneys in the history of the system long ago when it might have helped. But instead these same people cheered those judges and patent attorneys on they did somersaults to defend those junky patents.
The best part: those people were warned about the damage being done to the system but they were having so much fun shoving cash into their pockets all they could do was stick their fingers in their ears, hurl invectives at their critics, and pretend that everyone else was just jealous of their awesome cleverness.
Reap the whirlwind, folks.
I gaze upon the C R P that Malcolm has posted today and see absolutely nothing but his mindless and endless “class warfare” type of mantra.
Maybe you want to actually address some legal point along the way, Malcolm, and not just engage in your usual “somebody was trying to make money” rant…
Just a thought.
“anon”: Maybe you want to actually address some legal point along the way
Okay. Anybody who believed that Diehr prohibited one from taking into account the prior art when looking at the eligibility of a claim didn’t know what they were talking about then and they shouldn’t have been allowed anywhere near a patent, then or now.
Need me to explain why for the billionth time? I’m happy to do so.
What exactly is the point that you are attempting to make with the Diehr case, Malcolm?
You know, the case that you swear was awfully decided and all…
Except what we had said was 103 was the right tool.
Even a broken (analog) clock is right twice a day…
NW: what we had said was 103 was the right tool.
That is what you said.
And it’s a sentiment that is just as whacked, braindead and miserably ign0rant now as it was back then.
Do I need to explain why for the ten billionth time? Just let me know.
Maybe you want to try for the first time (and in that explanation, try to square the conflicting Supreme Court cases..)
What? Lacing up your track shoes already?
Maybe you want to try for the first time
No, I’ll just do it for the billionth time: non-obvious abstractions like “correlations” are (wait for it) non-obvious. 103 doesn’t screen them out because … they’re non-obvious. That’s why we use 101.
There you go. Pretty easy to follow. Are you lost already? Of course you are. Start pounding the table now and kicking up dust. That’s what “respectful” patent worshippers like you always do, after all.
MM,
Could you provide and example of a non-obvious correlation?
Troubled: Could you provide and example of a non-obvious correlation?
I could provide a zillion of them but for the purposes of this discussion all you need to do is recognize that the PTO considered the correlation recited in Prometheus’ claims to be non-obvious. That’s why they granted the patent.
Here’s an idea, Troubled: next time you have a point to make, assume your facts, state your assumptions, state the basis for those assumptions and make your point. For instance, if you believe that all correlations are “obvious”, explain why.
MM,
I did not understand your use of the phrase, “non-obvious correlations” in view of the billions and billions to which you alluded. It was a simple request for an explanatory example. My assumption was that you could provide one, which you did. However, as I recall, the CAFC found the Prometheus claims to be obvious and did not need to resort to 101.
Troubled: My assumption was that you could provide one, which you did.
You could have provided one yourself and saved everyone time.
as I recall, the CAFC found the Prometheus claims to be obvious
I don’t recall the CAFC making that finding. Happy to be refreshed on that point if you can provide support for your assertion.
Whether the correlation in the Metabolite case was obvious, or not, was discussed at the time.
In favor of non-obviousness, note the text –the validity of correlation was not even readily accepted by their scientific peers.
—
from link to ipbiz.blogspot.com.es
See also the Baker/Botts post:
link to bakerbotts.com