Economic Nationalism and the U.S. Patent System

by Dennis Crouch

Part of President-Elect Trump’s focus is on short-term “economic nationalism” — what we call “America First” and against the “false song of globalism.”  In a set of upcoming posts we’ll walk through what this could mean for the U.S. Patent System. I expect that the answers will depend upon whether we are looking primarily for short-term gains and the measures of economic prosperity (e.g., median household income vs. stock valuation).

Although the U.S. has long operated in an international environment, we have been inwardly focused for most of the past 200 years.  During this time, the vast majority of U.S. patents were issued to U.S. entities.  What this meant was that the Patent system caused a shift in wealth within the U.S. (from consumers/competitors to patentees) with the benefit of better technology and more technical disclosures – a fairly efficient system so long as not eaten-up by transaction costs.  The change today is that most U.S. patents are issued to foreign entities or are foreign-originated.  What this means for the calculus is that the shift-in-wealth is leaving U.S. borders rather than staying put.

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Of course, the U.S. allows foreign entities to obtain U.S. patents because of the mutual obligations of the Paris Convention (1893) and TRIPS (1995) that require foreign states create significant patent systems and allow U.S. entities to obtain patents in those foreign states.  The now disfavored TPP was designed to further strengthen the requirements on our trading partners for enforcing intellectual property rights. Important questions: What patriotic renegotiation of these agreements might further benefit the U.S.? Barring that, wow can the USPTO and Courts conform to the international obligations while better serving U.S. interests?  Of course, all of this has the potential of pushing the U.S. much closer to a trade war.

In an email, Prof. Mark Lemley suggests that we should look for “a rise in the importance of the ITC as we focus on blocking imports.”   The ITC’s primary goal is to protect U.S. industries against unfair international trade.  Lemley writes: “One interesting question is whether Trump will move the ITC’s jurisdiction back to its roots by insisting on a real domestic industry requirement.”  Additional ITC movement could push-back against U.S. patents that are owned by foreign nations or unduly subsidized by a foreign nation.

Today (Nov 22, 2016), the Supreme Court is considering whether to grant certiorari in Lexmark v. Immersion Prods. that focuses on both domestic and international patent exhaustion.  Although the Federal Circuit’s rule that gives extra rights to holders of U.S. patents (no international exhaustion) appears at first glance to be an “America First” principle.  However, In their 2016 article, Hemel & Ouellette explain that the opposite rule would be the one more likely to “lower prices of patented goods in the United States and raise prices abroad.”  All of this fits somewhere within the old economic arguments over mercantilism.  See Hemel & Ouellette, Trade and Tradeoffs: The Case of International Patent Exhaustion, 116 Colum. L. Rev. Sidebar 17 (2016); Glynn Lunny, Copyright’s Mercantilist Turn, 42 Fla. St. U. L. Rev. 95 (2014); Guy Rub, Rebalancing Copyright Exhaustion, 64 Emory L. J. 741 (2015).

174 thoughts on “Economic Nationalism and the U.S. Patent System

  1. “…a fairly efficient system, so as not eaten up by transaction costs….” So, spend 10k + for an issued patent and get eaten by a 100k challenge by a competitor with lawyers in a re-exam? What’s the point?

    We don’t even reward the inventor anymore, just the first to file.

    1. “Efficiency” is not to be pursued as an end unto itself.

      There are plenty of things that should be pursued opposite of efficiency.

      Efficient infringement being a major one.

  2. Every household will lose a staggering £1,250 a year because of the Brexit vote, independent forecasters say – as they painted a devastating picture of falling living standards, including no increase in real wages for at least another decade.

    The respected Institute for Fiscal Studies (IFS) also warned that working families will be hit hardest by the unprecedented slump, with pensioners better protected.

    Workers will suffer because of an expected 3.7 per cent fall in real earnings by the start of the next decade, compared with the pre-referendum forecast.

    More software patents will save the UK! Hurry! Hurry!

    1. Your attempted sleight of software patents is offensive in how out of touch you are with the foreign situation that you so gleefully present.

      Maybe try just a little not to be an arse.

  3. xenophobia — this chant has lost all its power.

    I am a pretty old guy. Let’s look at immigration because it is similar in many ways to what is happening to patents. Basically, we have this toxic mix of Democrats who want all the immigrants they can get from Mexico so that they take away the south from the Republicans and business that want cheap almost slave labor. This is not a grown-up policy that takes into the problems of our country and the world.

    The biggest problem the world has right now is population growth. The Mexicans are not going to control their population if they can just flow into the U.S. And–get the enormity of the problem. The U.S. population has tripled since 1940. And, 25 percent of that is from Mexico. We went from almost no one from Mexico in 1940 to over 50,000,000 million Mexicans.

    In an ideal world, we should have open borders, so we get the academics backing this policy of open borders. But, reality comes in and what happens is we get uncontrolled population growth in Mexico and the U.S. Plus, the intellectual left that are not the Lemley type of pseudo-intellectual actually say this too. They say what the powers that be in the U.S. are doing is allowing the people not in power to have to compete with cheap labor while maintaining laws to prevent competition for their jobs.

    So, this situation and all the dynamics are about the same in patent law. We need grown-up solutions and the real identification of the problems.

    One start would be to ask ourselves with the information revolution how valuable is the patent system. I think that the Google patents illustrate that the patent system helped bring in the great revolution. That the U.S. has a software industry that is ten times bigger than any other country largely because of the patent system. Etc. There are many real things we should be questioning and fighting for to understand reality. But just like immigration it is hard to do with the constant noise from big corporations, pseudo-intellectuals, lobbyist, etc.

    1. And seriously with immigration — yes there are some people that are one of the ist and it is horrendous that the alt right exists— but, the vast majority of people are not that ist and just want rational policies that provide a good long-term outcome. Our current policies are lead to disaster.

      Patents are in a very similar position. No one, for example, seems to be able to explain why it is that the U.S. has the best software industry by a factor of 10 other than the patent system. And–we can tell just how warped the debate is by the Google patents. Some say that the Google patents were instrumental in preventing Microsoft from just copying Google. And, yet we get Director Lee ignoring the Google patents when discussing important patents.

    2. “information revolution” – reminds me of innovation Kondratieff waves (which are also mirrored in patent history) – see the works of Kondratieff and Schumpeter.

      Of course, the usual suspects wont go anywhere near such innovation basics….

  4. Dennis: Do we really need to infect even our patent policy with Trumpist xenophobia? We don’t win anymore at patents! Build the firewall! And make the Japanese pay for it! Is that what you are saying?

    Might have been better if, before expressing a xenophobic hysteria, you balanced the post with comparable data about EP patents granted to non-EU inventors, and JP patents granted to non-JP inventors, and CN patents issued to non-CN inventors. Shift in wealth in all directions is what you will likely find. The EPO reports that in the 2006-2105 time frame, the US obtained the largest block of EP patents, and the US and Japan filed about 42% of all EP patent applications, so a similar shift in wealth is flowing out of the EP and into the US and Japan.

    1. “Shift in wealth in all directions is what you will likely find.”

      Yes, but when you’re on top of the wealth pile where do you suppose most of it is flowing from and where to you suppose it is flowing to?

      1. When cast in terms of economic nationalism, referencing trumpism, I think it does. It doesn’t even come up without a normalization of xenophobia and nationalist fervor. In the past, we have discussed large foreign patent filers with approval for their innovation and energy. Now they are foreigners stealing our wealth. Some, I assume, are good people.
        The post could have been made without reference to trumpism or nationalism or “patriotic” renegotiation. I see no discussion of the merits.
        I wish I had time today for more on the merits, like my quick trip to the EPO to discover that the two largest filers in the EPO are the US and Japan. Can we figure out what corresponding “shift-in-wealth” is there? What about Japan, China and India? Is any “shift-in-wealth” going on there, perhaps in our favor? If all the shifts-in-wealth are a wash, then nationalism is senseless from a self-centered standpoint. Maybe the entire system is promoting progress globally, benefiting all countries. If it is not a wash, and the US is on the short end of that situation, we may still be ahead of the game if the overall promotion of progress benefits us more than we lose in the shift-in-wealth.
        All that can be discussed without mention of economic nationalism and other distasteful rhetoric.

        1. DC, I see your point.

          However even if Trump appealed to the basic Xenophobia of the undereducated voter, I think he did raise the same point as did Sanders and this is the reason places like Michigan voted for Sanders and then Trump over Clinton. Free trade deals cost jobs because manufacturing is allowed to move to low cost areas, etc.

          It is also self evident that if capital is free to move, it will move to areas where it can increase profits. So, if one makes a free trade deal with the likes of Mexico, an area of low costs (labor, regulation and taxes), manufacturing will move there because the goods made can be sold in the US for greater profit.

          Fair trade imposes duties to level the playing field. These policies were long the exclusive domain of the Democratic Party. Somehow, that party lost its way and joined with the Republican Party to promote globalism.

          Someone was going to take up the populist banner again, and surprisingly, one was Trump, a former Democrat, who somehow won the Republican nomination while trashing all his traditionally-conservative opponents in humiliating fashion. None of them were even remotely concerned with opposing free trade, but were content only with pushing a conservative social agenda. They all lost, and decisively so.

          1. I wish I had the citation for you, but months ago I encountered an economic study (not a campaign blurb) that showed that as a result of NAFTA the average American family was better off to the tune of about $10,000 per year. The focus on the few who lost jobs, and are thus not better off, makes everybody feel bad, when most are better off. Unless that study was published by a industry that uniquely benefited from NAFTA.

            1. This is true. Free trade makes the nation as a whole better off in the long run, and could make everyone, including the “losers” better off through transfers (Kaldor-Hicks efficiency), but the right seems to be opposed to transfers of any kind.

    2. DC – We will have upcoming posts on the comparison of in-flow / out-flow of patents across national borders and what this means for US interests and whether those flows mean anything for U.S. interests.

      1. Dennis, as a comparison, it might also be interesting to look at historical data and see if patents lead manufacturing or follows. When, in the 1800’s, the Japanese studied why England, Germany and the US were great manufacturing powers, they concluded that it was because of their patent systems. This would indicate, all other things being equal, that manufacturing follows a strong patent system.

        But we also see manufacturing now fleeing to places like Mexico, and before that, to Singapore, Thailand and China. So we also see, I think, that labor costs, regulation costs and taxation can also be decisive in terms of where manufacturing is conducted.

        But the R&D necessary to support new and improved products also requires a developed educational system. China, Germany, England, Japan, Korea and the US have this. I am not so sure about Mexico, Singapore and Thailand, other locations where manufacturing has fled.

        It is also to be noted that any corporate executive planning for the future of his company takes into consideration all such factors in deciding where to locate R&D and manufacturing.

        1. also to be noted that any corporate executive planning for the future of his company takes into consideration all such factors in deciding where to locate R&D and manufacturing.

          This only accentuates my position on those multinational corporations that lack a true “beholding” to any one sovereign. The problem is that the transnational has an over$ized “voice” – think Citizens United – without the constraint of being a true citizen (there should be a limit to the juristic person to avoid this flaw).

    3. xenophobia — this chant has lost all its power.

      I am a pretty old guy. Let’s look at immigration because it is similar in many ways to what is happening to patents. Basically, we have this toxic mix of Democrats who want all the immigrants they can get from Mexico so that they take away the south from the Republicans and business that want cheap almost slave labor. This is not a grown-up policy that takes into the problems of our country and the world.

      The biggest problem the world has right now is population growth. The Mexicans are not going to control their population if they can just flow into the U.S. And–get the enormity of the problem. The U.S. population has tripled since 1940. And, 25 percent of that is from Mexico. We went from almost no one from Mexico in 1940 to over 50,000,000 million Mexicans.

      In an ideal world, we should have open borders, so we get the academics backing this policy of open borders. But, reality comes in and what happens is we get uncontrolled population growth in Mexico and the U.S. Plus, the intellectual left that are not the Lemley type of pseudo-intellectual actually say this too. They say what the powers that be in the U.S. are doing is allowing the people not in power to have to compete with cheap labor while maintaining laws to prevent competition for their jobs.

      So, this situation and all the dynamics are about the same in patent law.

    4. Well, I seem to be the only icon without eyes. But, picking on Japan is timely. The patent craft in the United States which revered the true inventor required disclosure of the “best mode.” If you didn’t, your patent became unenforceable.

      Japan had no such requirement (correct me if I am wrong), leading to one country gaming the “global” system.

      “Made in America” or the U.S.A. has world significance. Being inundated with toxic junk shipped from abroad makes no sense. International corporations are run by people. These people need to find a national allegiance and make it better for its chosen nation. Take Apple, for example. It wants to do good, but somehow can’t. Perhaps the patent system needs to be re-examined.

      1. International corporations are run by people. These people need to find a national allegiance and make it better for its chosen nation

        Shhh – you are revealing one of the Transnationals
        u
        g
        l
        y
        secrets – that while they have garnered a certain “juristic person” effect here in the States, they are really NOT beholding to ANY national allegiance whatsoever.

        Citizens United, of course, exacerbates this problem dramatically.

  5. There are way more non-Americans in this world than there are Americans, so it seems to me that it is fairly intuitive that there will be more U.S. patents issued to non-Americans than to Americans. There are also more non-Europeans than there are Europeans in the world, so I would expect that there will be more EP patent grants to non-Europeans than to Europeans. Mutatis mutandis I would expect the same to be true of JP patents, or really any patent in a market large enough to make it worthwhile for non-citizens to want to do business there. I would bet (although I do not know) that SG citizens and juristic persons own no more than ~0.5% of SG patents. That is just the way it goes when a given country represents a minority of the world population (as every country does).

    If U.S. patents owned by ex-U.S. citizens mean that wealth flows out of the U.S., then do EP patents owned by non-EU citizens mean wealth flowing out of the EU? And do JP patents owned by non-JP citizens mean wealth flowing out of JP. And where is that wealth flowing when it flows out of the EU or JP? Surely some of it is flowing to the U.S.

    Do we really feel that we are knowledgable enough to try to steer those flows? For my part, this seems like the sort of situation that cries out for a laissez faire approach.

    1. Greg, the wealth of a country corresponds to the total of the goods/raw materials made and sold. A country like Russia is wealthy because of its raw materials. A country like China, without raw materials, is wealthy because of its manufacturing. Currently, United States has both raw materials and manufacturing, but the latter is declining because of free trade laws combined with high regulation, high taxes and high labor costs.

      The number of patents filed by a country somewhat reflects its relative investment in manufacturing. There is little doubt in my mind that the significant increase in the Chinese patent filings reflects its growing manufacturing.

      1. The number of patents filed by a country somewhat reflects its relative investment in manufacturing. There is little doubt in my mind that the significant increase in the Chinese patent filings reflects its growing manufacturing.

        I disagree. I doubt that there is any meaningful correlation at all between CN manufacturing and CN patent filings.

        [T]he wealth of a country corresponds to the total of the goods/raw materials made and sold.

        And services. Goods and services. Monaco did not get wealthy by mining or manufacturing, or really anything to do with goods.

        1. Ned has always had a difficult time with the statutory category that most aligns with services.

          He flat out refuses to recognize what Congress did in the Act of 1952; specifically 35 USC 100(b).

        1. Greg, from your link: “Industrial production in China rose 6.1 percent year-on-year in October of 2016, the same pace as in September…”

              1. Sure enough, I think you are correct. Now that you point it out, I think that chart shows rates, but I was taking it for levels. In that case, the factual predicates of my argument above are incorrect, so I withdraw the assertion. I was wrong and you are right.

      2. The number of patents filed by a country somewhat reflects its relative investment in manufacturing.

        Somewhat? More like “not really”.

        United States has both raw materials and manufacturing, but the latter is declining because of free trade laws combined with high regulation, high taxes

        High taxes? And yet the rich keep getting richer and they pay hardly any taxes. And the Republicans do everything they can to encourage that. Because … why? Remind everyone, Ned. You’re the expert. And you voted for the Republicans — the same party that destroyed the economy, started a war on false pretenses, and created a huge deficit — the worst thing ever (according to them) — the last time they were in control.

        and high labor costs

        You mean factory workers get paid well in the United States? So they can maybe barely afford a tiny house and send their kid to college? Wow. That’s awful. How did we ever let that happen? What a terrible idea.

        1. MM, Saudi Arabia has a lot of money, but very little manufacturing. It produces very little in terms of patentable technology.

          China and the US are the leading manufacturing countries in the world. Both produce large numbers of patents.

          England began the industrial revolution. Did patents follow or lead its growth in manufacturing?

          Germany broke out when it unified. Why? Patent? Or did manufacturing lead?

          Whatever. There is a relationship between manufacturing and patents. Certainly patents follow manufacturing. But, the question we really have is whether patents can be used to enhance manufacturing, thus wealth, of a country.

          I think so.

          Regarding taxes, we are talking here about corporate taxes.

          1. Ned: the question we really have is whether patents can be used to enhance manufacturing

            Sure. Encourage the filing of patents on manufacturing processes and items of manufacture, and discourage patents on abstract ineligible cr@p like logic and information. And reward patentees who either practice their manufacturing claims here in the US, and patentees who license their manufacture/manufacturing claims to domestic manufacturers.

            Or we can encourage scrivening and b0ttom-feeding by patent attorneys and wealthy gamblers. We can create a whole industry of patent speculators, where any lawyer who can come up with some “do it on a computer” junk can get in on the “innovation” action themselves! Oh wait — we already tried that and it was a massive catastrophic failure that will take years to clean up. But at least we get to listen you cry your crocodile tears the entire time. Boo hoo hoo. Enjoy stuffing your face with turkey tomorrow.

            1. You do (of course) realize that software is not logic and information (yes, I know that your rants would sound even sillier if you applied the tiniest bit of inte11ectual honesty…).

              1. The “6-is-a-genius-because-he-aligns-with-me” malady shows up….

                It’s as if Ned did not see all the “swagger” that Malcolm dumped his way since the election…

          2. Donald Trump’s chief White House strategist Stephen K. Bannon accepted $376,000 in pay over four years for working 30 hours a week at a tiny tax-exempt charity in Tallahassee while also serving as the hands-on executive chairman of Breitbart News Network. …

            During the same four-year period, the charity paid about $1.3 million in salaries to two other journalists who said they put in 40 hours a week there while also working for the politically conservative news outlet, according to publicly available documents filed with the Internal Revenue Service.

            Yay! Jobs!

            But at least they’re not “aloof”. Nothing “elite” about any of this. Nope.

  6. The change today is that most U.S. patents are issued to foreign entities or are foreign-originated. What this means for the calculus is that the shift-in-wealth is leaving U.S. borders rather than staying put.

    I will happily concede that the increased incidence of patents to ex-U.S. entities could mean that that wealth is leaving the U.S. This is not an intuitively obvious conclusion, however.

    Imagine that a Swiss drug-maker gets a U.S. patent on its chemotherapeutic. Now it will be economically rational for the Swiss drug-maker to undertake the extremely expensive business of obtaining FDA approval to market that chemotherapeutic in the U.S. As a result, U.S. cancer patients will have access to this drug, and therefore some people will live 2 (or 4, or 10, or 20) years longer than they otherwise would have. Some of those people will be productive workers, who will create wealth in the U.S.

    Much of this wealth would not have been created without the Swiss drug-maker’s patent. In other words, while it is true that revenues will flow into the Swiss drug-maker’s coffers, it is possible that the revenue streams leaving the U.S. will be dwarfed (or not) by the wealth created by the otherwise-dead (or otherwise-incapacitated) U.S. cancer survivors.

    I really have no way of knowing which scenario (patent granted vs. patent denied) is the more profitable for the U.S., and neither does anyone else (latter day mercantilists very much included). Better just to establish some fair rules for patentability (useful, novel, and nonobvious) and let the results come as they will.

    Honestly, I would like to have thought that Bastiat settled all of this nonsense years ago. It is beyond our abilities to plan and direct anything as complicated as the U.S. economy with any more than the weakest measures of control. Trying to use patents in an “America first” scheme is as pointless as it is potentially counterproductive.

    1. <iTrying to use patents in an “America first” scheme is as pointless as it is potentially counterproductive.

      But did you see that already China and Europe have granted software patents where the US did not? Yup. I read it on the Intertubes.

      This is one of the signs of the ending of civilization. First they come for our software patents, then they come for our freedom fries.

    2. Greg, I listened last summer to a BBC roundtable discussion regarding the anti-elitist views of Trump and Sanders, basically saying that trying to bring US manufacturing back to United States was a foolhardy and that the world had moved on. They seem to be particularly aloof to the suffering of the American worker/engineer who lost his job and who would never get another job so good.

      Of course, these commentators themselves were elitists and were comfortable they would never be thrown out of power and might actually have to look for job themselves.

      1. I am not really sure what the word “elitist” even means, other than “someone with whom I disagree.” In any event, I have to agree with the BBC panel. People do not realize (1) how much manufacturing is still done in the U.S. (can you spot NAFTA in that data series?) or (2) how much manufacturing output is returning to the U.S. that had once been outsourced. Most of the reason that people do not realize (1) or (2) is that while manufacturing is coming back, manufacturing jobs are not coming back.

        No matter how we structure our trade policy, most Americans are not going to go back to working in factories, just like no matter how we structure our ag policy, most Americans are not going to go back to working on farms. There are robots to make steel now, just as there are tractors to harvest crops. Just because steel worker jobs left after a trade deal was signed does not mean that tearing up the trade deal will bring back the steel workers’ jobs.

        I agree with you that we are not giving sufficient thought to how to help people who lost out as a result of trade deals. Merely reversing the trade deals, however, will not actually help them. It is not a serious answer to a real problem, however emotionally satisfying it might be to rail against NAFTA.

        1. “I am not really sure what the word “elitist” even means, other than “someone with whom I disagree.” ”

          See 3 and 4.

          link to dictionary.com

          “Most of the reason that people do not realize (1) or (2) is that while manufacturing is coming back, manufacturing jobs are not coming back.”

          Correct.

          “No matter how we structure our trade policy, most Americans are not going to go back to working in factories, just like no matter how we structure our ag policy, most Americans are not going to go back to working on farms.”

          Correct, but doesn’t really matter. There is no need for us to be playing on an entirely lopsided field.

          “Merely reversing the trade deals, however, will not actually help them.”

          Might, might not. But it will staunch the flow. And there is still a net offshoring going on vs reshoring.

          “I agree with you that we are not giving sufficient thought to how to help people who lost out as a result of trade deals.”

          There isn’t that much to think about, other than to stop the gov. “victimizing” still more people.

          1. Definition #3 in that link defines “elitist” as “a person having, thought to have, or professing superior intellect or talent, power, wealth, or membership in the upper echelons of society.”

            So if Mr. X really is smarter than Mr. Y, Mr. X is an elitist (Mr. X is, after all, a “person having… superior intellect”)?

            And if Mr. K is not really more powerful than Mr. M, but Ms. O thinks that Mr. K is more powerful than Mr. M, then Mr. K is also an elitist (because Mr. K is a “person… thought to have… superior… power”)?

            And if Ms. L professes herself to be more talented than Mr. B, then Ms. L is an elitist (because she is a “person… professing superior… talent”) and it does not matter whether she really is or is not more talented than he is?

            Honestly, this is not a definition in any meaningful sense. Probably everyone is an “elitist” in this definition, because every X in this world has someone who thinks that X is smarter, wealthier, more talented, etc than some Y in this world.

            This is an epithet without objective content. If Ned says “Mr. Obama is an elitist,” the claim is meaningless on this definition, because the assertion cannot possibly be falsified. As I said above, the only think one really learns from the assertion “X is an elitist” is that “X is someone with whom I disagree.”

            Meanwhile, definition number 4 defines “elitist” using the word “elitist.” One loses ten IQ points every time one reads something that pathetic.

      2. The idea that Bernie Sanders is “particularly aloof to the suffering of the American worker/engineer who lost his job and who would never get another job so good” is something that only a psych 0tic l i ar or a complete an ign 0ramus would say. Good grief, Ned, do you really think people are as st 00 pit as you?

        1. Try to read what Ned actually wrote before you throw your “swagger” at him Malcolm.

          To wit: “regarding the anti-elitist views of Trump and Sanders

  7. Going to be interesting to see what is going to happen. My guess is that not much will change. So, far we are seeing that Trump always walks back on what he promised to some reasonable position.

    But, you know, all you HRC and Obama supporters should really educate yourselves. Read Obama’s OP-Ed piece in the NY Times on TPP. He talks as if “globalism” is something that is just good as no regulation for Wall Street was just good. He also doesn’t mention anything about the American workers, but only talks about the ability for large corporations to be able to control the countries like Viet Nam if TPP is passed.

    1. “He talks as if “globalism” is something that is just good as no regulation for Wall Street was just good.”

      Of course he does brosefus, he’s a “citizen of the world” not merely of the US (his nominal citizenship in the US is just a side-gig for him like the rest of the globalists).

      What’s funny is that this is literally true. Once you get into the global elite it’s as if borders literally don’t matter to you anymore (and why should they? everyone is happy to have you), at least that’s what NPR was saying the other day.

      When the globalists talk about “open borders” being the bestest thing evar, they’re entirely right, from a “global perspective”. A bunch of (usually poor) people in repressive countries with ridiculously backwards cultures will have their lives made infinitely better by being able to migrate to the West. Of course, from the perspective of the people in the West having to try to “integrate” these populations (meaning not assimilate, but “integrate” as a separate entity within their own overall entity) and pay for it, and bear the brunt of the “culture clash” inspired crimes etc. their lives are made infinitely worse. What it is, essentially, is a government sponsored and enforced mandatory charity. But, since the leader was a “globalist” who has a “global perspective” then it’s all good (because humanity “overall” is bettered), even though his sworn duty is to the people of the nation (the ones with their lives made worse).

      And if you point any of these purely factual things out then you’re TOTS A RAYCYST (amirite MM?), IST, ISM, PHOBIA blah blah blah.

      1. history is going to view, and I think properly so, Obama as an aloof, uncaring, elitist.

        LOLOLOLOLOLOLOLOLOLOLOLOLOLOLOLOLOLOLOLOLOLOL

        Reminds me of my favorite quote ever by the great (LOL) John Hinderaker (whatever happened to him? is he going to be in Trump’s cabinet?):

        It must be very strange to be President Bush. A man of extraordinary vision and brilliance approaching to genius, he can’t get anyone to notice. He is like a great painter or musician who is ahead of his time, and who unveils one masterpiece after another to a reception that, when not bored, is hostile. – July 28 2005

          1. No, I’m laughing at the entire concept.

            But, hey, if the Republicans write the history books they can just put in a whole chapter on the “inferior black race” and all their failures. Right after the part where Jesus healed the dinosaur.

  8. Good questions, but real numbers are complicated. Are “foreign origin” U.S. patents limited to those issuing from U.S. applications based on a foreign applications? Or the indicated current residence of the inventors? Or a perceived residence of the corporate assignees? What about the patent applications for inventions made in the foreign R&D facilities of U.S. companies, or made in the U.S. R&D facilities of foreign companies? Or patents assigned to U.S. companies by U.S. inventors where those U.S. companies are now owned by a foreign company? Etc.
    However, there is no dispute that U.S. R&D as a percent of the growing total world-wide R&D is declining, along with other industrial and technical education comparisons, relative market shares, etc. The anti-intellectual, sports obsessed, and low educational pressure attitudes of many American parents as compared to many parents in rapid technology growth countries like South Korea and China is not helping either.
    Another reported factor affecting this patent application filing ratio is the extent of U.S. major corporation R&D cutbacks. While needed for long term survival with new or improved products, many U.S. corporations are under pressure for short term profit increases from hedge funds and other speculative-stock-purchasing investors who are strongly influencing attacked corporations decisions to cut R&D costs. What were once several major corporate R&D departments have reportedly already been seriously decimated. In contrast to foreign government supported and/or privately owned companies which are not under such speculative short term stock manipulation pressures with huge very-low-taxed capital gains opportunities.

    1. I propose a 65% capital gains tax on assets that are help for less that 10 years and 20% for assets held for at least 10 years. That’ll shore up long term thinking. The people below seem to have no problem with the government steering such policy and heavy-handed regulation of how corporations do business.

      1. I don’t think limiting the alienability of property (assets) is in accord with fundamental principles of either our nation or our patent system.

        1. You can still alienate your property. We use the tax code all the time to try to nudge what people do with their property. We are just going to use the tax code to incentivize long-term investing that sees the benefit of R&D.

          1. All that you are doing is making it a game of Kings (and more difficult for those with less money, i.e., start-ups). As I mentioned, this is just not in sync with the foundation of the US patent system.

            1. We already live in a game of Kings. The choice is how we want to use governmental power to steer their money in a way that helps the people in areas like the rust belt who have been left behind in today’s economy.

              1. You kid yourself if you think that your move will do anyhing but exacerbate that game of kings.

                The “policy” of “steering by making more expensive” only benefits the established money class. That’s just not a viable path.

                1. The “policy” of “steering by making more expensive” only benefits the established money class. That’s just not a viable path.

                  Tell us the viable path, O Defender of the People!

                2. The “policy” of “steering by making more expensive” only benefits the established money class.

                  It depends on what the public does with the money they charge the “established money class.”

                  I know: too nuanced for you.

                  LOL

      2. I am not opposed to Pigovian taxes in principle, but this one seems dubious to me. The long term is important, but so is the short term. Both are important. Is one more important than the other, and if so, by how much? I do not think that we can pretend to know the answer to those questions, so we would do well not to structure our tax system to “prefer” long-term (meaning ten-year, in this case) thinking over short-term.

        For the most part, we really just should ask “(a) how much revenue do we need to run the government?” and “(b) what percent do we need to tax each transaction to raise the figure we computed in (a)?” It might make sense to throw around revenue-neutral Pigovian taxes on top of those tax rates we set based on (a) and (b), but only where the thing being suppressed is really known to be bad (like water pollution or physical violence). Where we do not know that something is better or worse, it is best not to use the tax system to steer the unknown something.

    2. PM: The anti-intellectual, sports obsessed, and low educational pressure attitudes of many American parents as compared to many parents in rapid technology growth countries like South Korea and China is not helping either.

      Who needs intellectuals? In 20 years “everybody” will be programming for a living, either at home or inside our robot cars. You have to be Amish or something to not understand this. That’s why we have to maximize the number of enforceability of s0ftware patents. For the children!

      U.S. R&D as a percent of the growing total world-wide R&D is declining, along with other industrial and technical education comparisons, relative market shares, etc.

      It’s almost as if the eternal Republican plan of giving money to the richest people in the world instead of investing it in, e.g., education and R&D and infrastructure, is a complete j0ke. But that can’t be right. Because those rich white daddies are The Most Important People Ever. They told us so!

      1. “it in, e.g., education and R&D and infrastructure, is a complete j0ke.”

        Because your local “gender studies” dept., “african history” dept., “art history dept” or other lefty indoctrinating dept etc. (ahem, modern day grievance propaganda/activism offices) at your local uni. is horrendously underfunded! Don’t people know MM’s victims won’t have their “voices heard” unless we fund muh low job prospect high lefty indoctrination educashions? Also, didn’t everyone hear that Trump’s plans to invest in infrastructure will only put us 1 Trillion further in the hole (instead of like 7 Trilly like any good dem other than Hillary would do?). Plus, didn’t everyone hear about Trump’s plans to regulate R and D into oblivion?

        Meanwhile, engineering students, many promising hard science students and even some business students get generous school benefits because those “rich” steer the money towards worthwhile things in the dread PATRIARCHY that empowers the occasional dread wyte mail to prop up society (also known as “muh oppreshuns of muh victims”).

        “Because those rich white daddies are The Most Important People Ever. They told us so!”

        MUH PATRIARCHIES! MUH PATRIARCHIES! OH HOW I HA TE MUH PATRIARCHIES!

        It couldn’t be that MM wants even more money than the feds already give out in bubble-loans for the lefty indoctrinated person creation machines known as universities.

        1. lefty indoctrinated person creation machines known as universities

          LOLOLOLOLOLOLOLOLOLOLOLOLOL

          Pay attention, folks! Little Hans is here to tell us how to salute properly.

          1. MM>blah blah NAZIism blah blah

            Because NAZIISM! Doesn’t everyone know it’s all NAZIISM?!?!?!!?! How could they not? Were they not properly indoctrinated at the (re)education depts? Everyone must know about muh NAZIISM! And muh other ISMS! And muh phobias!

            My hat is off to you MM, you’re branching out into a new and thoroughly charted ISM.

        2. Because your local “gender studies” dept., “african history” dept., “art history dept” or other lefty indoctrinating dept etc. (ahem, modern day grievance propaganda/activism offices) at your local uni. is horrendously underfunded

          Deep, deep stuff.

          But, hey, as long as you don’t insult patent tr0lls, “anon” will g00sestep right along with you, 6, and Dennis will just smile and shake his head. So cute!

          1. “and Dennis will just smile and shake his head. ”

            What’s the matter MM? Counting on D to support your regressive leftist attitudes right after it literally just tore his school a new ar se?

    3. Fyi, the white supremacist racist maniac elect just appointed one of the absolute worst people in the world to be Secretary of Education: billionaire Betsy DeVos.

      Kiss what’s left of the US education system goodbye.

    4. Paul, everything in American business operates according to the spreadsheet. The Bean Counters can add up costs and benefits in view of taxes and determine what is best for the company.

      There is little doubt that if a company is reducing US R&D and US patent procurement, the reason is that such is becoming a relative waste of money for that company.

      But we have seen, I think, an across the board decline in American manufacturing as it is moved offshore. With the decline in US manufacturing there is a decline in patents protecting US manufacturing. This is inevitable. And, as manufacturing moves offshore, so too soon follows R&D.

      In a completely free market, capital moves to where it makes the most money. Certainly, the US, in a free market world, has become too expensive for both manufacturing and for R&D.

  9. U.S. patents will remain relatively worthless, regardless of their U.S. or foreign ownership, so long as Alice and the PTAB keeps invalidating them. Period. End of discussion. Everything else is hyperbole.

    1. U.S. patents have certainly had a decline in prices paid by PAEs for patents. But note the inconsistency of saying they are “worthless” with the huge amounts of money still being spent on filing, prosecuting and maintaining U.S. patents. Also, comparisons of U.S. patent suits, costs, and recoveries to most foreign patent suits costs and recoveries.

      1. Paul, but the evidence does seem the suggest a remarkable falloff in filings by startups and small inventors who can no longer afford the US patent system.

        1. I seem to recall seeing the data that you are talking about somewhere, but I cannot remember where. Do you happen to remember where you saw them?

    2. Alice isn’t going anywhere, Peter.

      But, sadly, neither are b0ttom-feeders like you. You’ll find some other junk to peddle. Guys like you always do.

    3. “Relatively worthless” seems a strange way to characterize U.S. patents. I can certainly agree that U.S. patents would be worth even more if not for Alice, but even post-Alice, the aggregate stock of U.S. patents is still worth quite a lot.

  10. If all inventions were successfully patented in all jurisdictions, an analysis of the fraction of foreign origin U.S. grants would reflect the percentage of invention by inventors outside the US to those inside the US. i.e. the distribution of “inventivenessy” people throughout the world.

    Compare this with population… it this number “too big” or “too low”? I suspect it is what it is.

      1. Yes.

        The percentage of patents in the US which are foreign are likely not as important (unless there is some indication of bias or a lack objectivity) as the level of success of enforcement of US owned foreign IP rights. I suspect, no matter how many foreign grants there are in the US, it is more crucial that the IP rights of individuals and private entities (that which makes up the so called public…) of the US are fully recognized and enforced in foreign jurisdictions. The totality of the foreign market is not insignificant. This means elimination of enforcement imbalance or double standards would be a good focus.

        1. Anon2, you write:

          “…elimination of enforcement imbalance or double standards would be a good focus”

          I agree, but when was that ever not the focus? Are you suggesting this is your invention, your insight, your Flash of Genius, that has not occurred thus far to anybody else?

          My sense is that, with ever more little nudges in the right direction, WTO and such like, we were gradually “getting there”. That is, until the recent emotional wave of anti-globalisation hit us.

          1. MaxDrei,

            If you think that “such like” was not under pressure to be co-opted by those who wanted to shape the landscape to their particular advantages, you are far more Polly Anna then I had previously thought.

          2. I try to avoid stating what should be obvious to absolutely everyone. I often find there is sometimes a small audience in need of hearing what is generally obvious to me and most others.

            “Stating the obvious” may offend you to a degree which causes you to feel you need to attack the maker of the statement. Might I suggest you take stock of whether you agree with what is said prior to attacking the statement maker for the mere act of stating it? You may find attacking your enemies and the falsehoods they perpetrate a more useful activity that attacking those who state what you believe.

            If the above, which I truly believe is obvious to me and many others, is not obvious to you (as evidently it is not) then, in accordance with the above, I have valid reasons to state it for a “small audience”.

            1. Sorry, Anon2, if I misunderstood your words “would be a good focus”. If I read you aright, with the help of your subsequent aggrieved posting, you were in fact saying that the existing established “focus” is correct, and, going forward, indeed the proper way to continue.

              If so, we agree. Hoorah!

                1. The added comment was for MaxDrei’s notice (I presumed that you understood the context, but MaxDrei is a different story)

                  :-)

    1. No all inventions are patented, and the reason I think they are not is the cost/benefit calculus of filing/enforcing vs. keeping the invention secret.

      No one in the Roman Empire was keen on publishing their inventions. But, I suspect, the Romans were prolific in making inventions. But the lack of legal protection via patents and a functioning enforcement mechanism limited the spread of technical information.

  11. Is competition in principle a good thing? I would expect the USA to say Yes.

    Can international trade make both trading partners richer than they would be in the absence of trade. I believe so. The corollary is that isolationism makes everybody poorer.

    Is technological progress a good thing? I think it is.

    Do patents promote such progress? Prima facie yes, but it all depends…….

    Does international trade promote technological progress? Surely!

    Is unfair competition a bad thing. Indubitably. No question!

    Do patents in themselves cause competition to be unfair? I think not.

    So shouldn’t governments be intent on promoting progress and trade and clamping down on unfair competition (slave labour, child labour etc), wherever it occurs? If the international corporations (with a place of business inside the USA) are the ones behind the slavery and the child labour, prosecute them, no? Isn’t that the most effective way to i) help US corporations which are employers with an exemplary employment record and ii) hinder foreign corporations who ty to market the products of slave labour in the USA?

    And around the Pacific Ring? If I understand the President Elect correctly, with his assertions that “It’s not fair”, the tiddlers in the Ring, in trying to scape a living, are being unfair to the USA.

    But the Tiddlers do have a choice, that between signing up to a Trade Agreement with the USA or one with Big Brother. I mean, China. Presumably, that is, now, what they will all do, to the great glee of everybody who wishes to promote the rise of authoritarian regimes and the downfall of democracy. Does that include certain persons who cast a vote for Mr Trump in the Rust Belt and Fly-Over States, I wonder.

    In international relations, there is no friendship. Only the national interest counts. Does the national interest of the USA extend to the defence of Democracy?

    See how long it takes, for the social consequences of neo-liberalism to visit themselves on a country. Neo-liberal Margaret Thatcher destroyed England’s manufacturing industries in the 1980’s and now, 30 years later, to the delight of the authoritarian regimes (Russia, Turkey) encircling Europe, England’s voters, in their deep frustration, choose isolation, and exit from all of mainland Europe’s laws and human rights.

      1. Yeah perhaps. But I can’t beat the ultimate false dichotomy, that you’re either with us or against us.

        Do not trust anybody, I say, whose schtick is that there is a simple solution to a notorious problem (how to stimulate economic growth) that has long taxed the minds of the world’s brightest and best.

        1. Your “ultimate false dichotomy” isn’t.

          Patent law has always been a sovereign-advantage law.

          It remains so – regardless of treaties.

    1. Is unfair competition a bad thing. Indubitably. No question!

      Gosh, I would really need to see a definition of “unfair competition” before I could concede it to be “indubitably” bad.

      Trademark infringement is considered “unfair competition,” and I can certainly agree that this is a bad thing, but I am not sure that its badness is “indubitable.” There are good arguments to be made on both sides of any given act of infringement.

      So-called “dumping” is also prosecuted in the CIT as “unfair” competition. Once again, there are good arguments to be made on both sides of this issue. Generally, I think that “dumping” is a good thing in most instances, so I certainly would not class this as an “indubitable” ill. Reasonable people can certainly disagree on any given instance of “dumping.”

      I see that you list slave-labor as an example “unfair competition” below. Here I think (or at least I hope) that we could all agree that this is “indubitably” bad, but that is really only one sort of “unfair” competition among many.

      It seems to be that a lot of what passes as “unfair” competition is very debatable as to whether it is bad or not. “Indubitable” is a strong word to use to characterize so broad as class of activities as are encompassed by the generic “unfair competition.”

      1. Are you saying that people differ on when the line is crossed, when competition becomes “unfair”? Or are you saying that certain acts of competition which everybody agrees to be “unfair” are nevertheless acts which everybody can agree are not “bad”? That sometimes unfairness can be good?

        1. Are you saying that people differ on when the line is crossed, when competition becomes “unfair”?

          Yes. There are lots of things that are classed as “unfair competition” under U.S. law (e.g., so-called “dumping”) that are not self-evidently “bad.” Some of us cannot agree that they are even “unfair” in any meaningful sense.

          1. “Unfair” may quickly lose its meaning if one is rudderless as to what “fair” means.

            Note that “moral relativism” augments this problem due in part to a desire to accept any and all belief systems as all “equally fair” when in fact they are not – and cannot be – all equally fair.

    2. Max, is it not interesting that the EU requires certifications for people to sell into the EU. Essentially, the EU forces people selling into the EU to comply with many of the EU laws on environmental regulation, and, I believe they are thinking of extending it to fair labor laws. (Think of child labor laws and the like.)

      In many respects, this is what Trump is talking about as well, plus lowering US corporate taxes that make manufacturing in the US and selling abroad a non-starter.

      One cannot allow products to be made anywhere and at the same time act to protect labor and the environment, nor raise money by taxing manufacturing. Manufacturing will simply move.

  12. Certainly, we have to get back to the idea that American R&D, by American inventors, in America is an American industry. The patents from this American R&D should be respected by blocking imports of infringing products into the United States. Only if such a guarantee were in place could an American inventor or a licensee be willing to begin manufacturing in America. (Obviously, the braying and blather of big business is going to insist that we should not discriminate between patents flowing out of US R&D and patents flowing out of non-US R&D, because that restricts their freedom of locating R&D outside United States. Well boo-hoo.)

    Also, we might pass a law that provides something to the following effect: that the license of American patent for making products in the United States does not include a license for the licensee to make outside United States and import. In other words, if an American manufacturer moves manufacturing outside United States he loses his manufacturing license under the patent.

    Then we might want to consider repeal of the AIA itself because first to invent clearly favored America inventors and American R&D.

      1. anon, the founders did not include a Patent Clause in the US Constitution to promote invention in England. In fact, only US citizens could obtain patents for a number of years.

        In our effort to promote free trade, we are constantly undermining the US patent system and its historical focus on fostering American invention, American industry, American manufacturing, American jobs and American wealth. Killing an American industry to in favor a foreign industry simply to get low cost products is as short sighted as one can get.

        The leaders of Globalization have too long ruled the US patent system. It is time, truly, to get rid of these people (0r at least their influence) and move the US patent system back to the future. Killing US R&D and manufacturing is not justified by increasing foreign IP protection for US inventions.

        Of course, unfair trade treaties that allow US Manufacturing to move to low cost areas (low regulation, low labor rates and low taxes) without any downside are also something we need to deal with.

        1. “anon, the founders did not include a Patent Clause in the US Constitution to promote invention in England. ”

          Whew, that is a good point right there Ned.

          “It is time, truly, to get rid of these people (0r at least their influence) and move the US patent system back to the future. ”

          But but but Ned, think of MM’s “muh victims”! Surely all his “muh victims” outside the US need our generosity. We have to be “global citizens”. Doncha know?

          “Of course, unfair trade treaties that allow US Manufacturing to move to low cost areas (low regulation, low labor rates and low taxes) without any downside are also something we need to deal with.”

          Yeah I love videos on mah youtubes talking basic economics showing how “free trade” works without, you know, mentioning the crippling regulations etc in one country vs another.

        2. No downsides? Well besides the suppressed wages, the terrible working conditions, the deaths, the massive amounts of pollution?

          #MakeAmericaLiketheJungleAgain I guess isn’t a catchy phrase.

          We will get jobs (and more unions and union influence), but that will be accompanied by rising prices of consumer goods. We’ll get more pollution (sorry EPA). We’ll get worse working conditions (bye OSHA). Tax breaks to industry will not be seen by workers or consumers.

          1. …unless of course our “bare minimums” – as represented by those things that you seemingly assume to be eliminated – are instead made to be a bare minimum for any product entering the US… (granted, this is easier said than done, but it makes little sense for regionalizing such things as “green” or “human dignity” concerns if other areas of the world do not have to absorb “their fair share” associated with the natural costs of those very same concerns.

            1. What is this “their fair share” nonsense and how are they not paying it?

              They certainly are paying the price for our ability to have cheap consumer goods with their health, dignity, and environment.

              I have not objection to a vibrant domestic industry, but let’s not pretend that we can have our cake and eat it too. The domestic gains will be absorbed by the inefficiencies that will accompany those gains. We can’t have high-paying, widely available manufacturing jobs in the US while keeping our cost of living down. Who in the US is going to make a T-shirt at the rate where they can be sold for $4 in Walmart? Maybe we are addicted to cheap goods.

              All I see is a call for heavy-handed government regulation of domestic industry, just of a different flavor of what we have now.

              1. Your kidding, right?

                Have you been (or even read) about what the third world countries are doing in order to artificially subsidize the difference in cost factors?

                1. (Your view needs to extend to what is happening in those other places / that is where the “unfairness” and lack of following our “rules” is driving the cost factor disparities)

                  Then take a look at (for example) global warming treaties that provide “leniency” towards those same low cost factor areas in the very things that drive our comparatively higher costs.

                2. You might even be tempt d to label and justify the disparity as some type of “advanced civilization privilege” that we all should be ashamed of having.

                3. They are leveraging their efficiencies (cheap later, lack of thought about the environment), just like we should be leveraging ours (highly educated labor force, automation, relative political stability (?)).

                  Let’s not try to grow bananas if we don’t have the environment to efficiently grow bananas.

                4. I wouldn’t say an “advanced civilization privilege.” But if we are going to be upset, we should have some honest introspection about the so-called “advanced civilizations” got to be where they are today. (Hint: it involves massive amounts of pollution and exploitation of those countries that you take umbrage at for having lower labor costs). There could be a very compelling argument that the “advanced civilizations” have not been paying their fare share up to this point. How can it be just that we tell them to play at our level when we have been systematically preventing them from reaching our level economically?

                  We had our candy at the expense of others. How can we morally say they cannot have their candy at the expense of us?

                5. Those “leveraged efficiencies” are exactly the types of things we don’t stand for and because of that, raise our costs.

                  That is the epitome of unfair competition.

                  It certainly is NOT the same as “climate for growing bananas.”

                6. And make no mistake, the umbrage is not for them, but rather for those that would “bend” the rules and have an uneven playing field for the notion of “how we got to be where we are today.”

                  If polluting is bad, then it is bad for everyone NOW, without the “regard” for any “privilege” no matter how in the past obtained.

                7. “exploitation”

                  ^the left’s words for “engaging in customary practices of the time” back way back in the day and in later eras “offering them a slightly, though not greatly, better opportunity than working in rice/etc. fields”. But then we look back with 20/20 hindsight, safe and secure in the society built by the “exploiters” and say “but but but that’s exploitashuns! And exploitashuns are bad! My mommy told me so!”

                  “There could be a very compelling argument that the “advanced civilizations” have not been paying their fare share up to this point. ”

                  Except their isn’t. There have literally never in the history of the world been civilizations as worried about “paying their ‘fair share’ ” to people that aren’t themselves.

                  “We had our candy at the expense of others.”

                  ^The lefty view.

                  “How can we morally say they cannot have their candy at the expense of us?”

                  First you can toss out the gynocentric “morals”. Then you can tell me how can we “morally” say that they CAN have “their candy” at the “expense” of “us” (say for instance at the tips of government guns)?

          2. OSitA, You seem to assume that money grows on trees in American and for that reason all we are concerned about is low prices for the goods we buy.

        3. [T]he founders did not include a Patent Clause in the US Constitution to promote invention in England.

          This assertion is not self-evidently true, and I really wonder how you might hope to substantiate it. The Federalist Papers really say nothing whatever about U.S. patents and U.S. vs. ex-U.S. inventors.

          I am skeptical that the founders (as opposed to the first Congress) really gave much thought one way or the other about whether they wished to incentivize ex-U.S. invention. The founders intended the patent system as a way of incentivizing people to bring technology to our shores, not just to invent it. Patents are about getting products into people’s hands, not just thinking up stuff, and that was even more true in the 18th century than it is today.

          1. The focus being on Sovereign-centric benefits first and foremost (as opposed to some “gee the whole world would be better off” view).

            That at least is what I think that Ned is aiming for.

    1. “Also, we might pass a law that provides something to the following effect: that the license of American patent for making products in the United States does not include a license for the licensee to make outside United States and import. In other words, if an American manufacturer moves manufacturing outside United States he loses his manufacturing license under the patent.”

      But then what? You’re going to expect that the patentee will come after the guy that he, in good faith, gave a license to (which the gov has now negated)?

          1. 6, I am not going to name names here, but after we had paid for a license, we had to pay for it again when we did some corporate restructuring that did not affect the substance of the license one iota. You have no idea how people will act if there is money to be made.

    2. Why would you be so pro-big government that the you want the government to interfere with the private contracting between two entities?

      1. OSitA, the government can by statute declare what an infringement is and what is not infringement. This is not interfering with the obligation of contracts.

  13. Is there a mirror fact to be presented as to the share of US patents granted to foreign entities?

    That is, under that same treaty that pushed us to grant to more foreign entities, what are the stats like for grants to US entities in the different foreign sovereigns?

    1. Also, does the data shake out differently if we classify those Big Corps that are truly transnational as not belonging to any sovereign, since their “juristic person” really is not beholding to any one country…?

  14. Indeed, one must beware the false song.

    “a fairly efficient system so long as not eaten-up by transaction costs”

    Oh D, those aren’t “costs” those are the “good stuff”! Just ask anon!

    “The change today is that most U.S. patents are issued to foreign entities or are foreign-originated. What this means for the calculus is that the shift-in-wealth is leaving U.S. borders rather than staying put.”

    Indeed so. Though arguably one could argue that we get the “wealth” in terms of getting to use these foreign disclosed techs.

    “Important questions: What patriotic renegotiation of these agreements might further benefit the U.S.? ”

    Threaten giving no more Chinese entities (or entities with huge holdings in China or doing business with huge holdings in China, Apple included) any US patents until China stops with their “funny money” (we prefer only our own funny money thank them very much). And then do it if they refuse. Do the same with Mehico (in addition to the blocking of remittances) until they cough up the 20 billy for the wall. This might be cutting off the tip end of one’s nose to spit part of your face, but it also impacts other people’s faces as well, more than it will our own.

    “Barring that, wow can the USPTO and Courts conform to the international obligations while better serving U.S. interests? Of course, all of this has the potential of pushing the U.S. much closer to a trade war.”

    Trump’s balls are bigger than “international obligations”, and we can get the major economic giants on board with the pressuring of China. And the “trade war” aspect of this is tiny, sorry, but it is. Actual trade would flow as usual if we just started out using patents as leverage instead of full on threatening tariffs as well.

      1. Simply pointing out that it’s you all the time going on and on forever about there being no “costs” to the patent system, only “benefits”.

    1. <i.Trump’s balls are bigger than “international obligations”

      Not what I heard but, hey, 6 probably has a drawing above his desk.

      there is an element of the alt-right that isn’t captured solely by the term “white nationalist” or “white supremacist.” It’s the nasty, tr0 llish, juvenile rhetorical approach that’s different. Maybe that doesn’t make a difference but these new “white nationalists” are not your grandf@ther’s hooded Kl@nsmen. They are modern and “hip” and they use an entirely different lexicon. Don’t be fooled if you come across these racists and they just seem like a bunch of nasty little boys, somewhat harmless if annoying, That’s part of their schtick.

      No doubt about that. You can smell it a mile away.

    2. [G]iv[e] no more Chinese entities (or entities with huge holdings in China or doing business with huge holdings in China, Apple included) any US patents until China… [accedes to a list of conditions that we demand].

      How is this supposed to work? Apple can have no U.S. patents until China accedes to our demands? Why would China care if Apple gets U.S. patents? Why would this constitute any sort of leverage at all?

      And to the extent that it does amount to leverage, can you honestly imagine China actually changing policy in the face of such coercion? In other words, while I cannot imagine that China cares about Apple’s patent portfolio, I suppose I can imagine China caring about the indignity of Chinese innovators being denied U.S. patents.

      This would amount to the U.S. publicly shouting “here are our demands, and you must meet them or else.” Does that strategy ever work? Maybe one time out of ten, but the other nine times it just makes the other party dig in. To the extent that the demands in question amount to policy concessions that we really want, why pursue them in such an obviously counterproductive fashion?

      This might be cutting off the tip end of one’s nose to spit part of your face, but it also impacts other people’s faces as well, more than it will our own.

      For my part, I am not willing to cut off even the measliest tip of my nose to spite another man’s face. Why should I? I gain nothing from his loss. I cannot take the part of his face that he loses and do anything with it myself. I do not see what we gain by making ourselves poorer, even if we succeed in the process of making Mexico or China even poorer still in the process.

      It seems to me that there must just be a fundamental difference in brain wiring that some people can think it is worth taking a hit yourself to deliver a bigger hit to party X. I think that one has to be able to buy this line of logic in order to support Trump. My brain just is not wired that way, so I guess that is why I just do not understand the Trump appeal.

      1. It seems to me that there must just be a fundamental difference in brain wiring that some people can think it is worth taking a hit yourself to deliver a bigger hit to party X.

        Get out more. This thinking is second nature in the competitive business world.

      2. “How is this supposed to work? Apple can have no U.S. patents until China accedes to our demands?”

        You can phase it in over years if you’d like instead of lowering them to 0 patents per year (give them 10-50 less patents per year max than they had the last year for each year, withholding the ones over their quota)

        “Why would China care if Apple gets U.S. patents? Why would this constitute any sort of leverage at all?”

        Apple (etc) brings them direct tax $$$$ every year, and “good” employment for their citizens. Every time apple’s business is thr eatened (via less patents) those $$$$ are thre atened. Plus, then you have Apple execs leaning on China politicians.

        “And to the extent that it does amount to leverage, can you honestly imagine China actually changing policy in the face of such coercion?”

        I think it would likely be done in addition to other matters. This is small potatoes but it is potatoes.

        “In other words, while I cannot imagine that China cares about Apple’s patent portfolio, I suppose I can imagine China caring about the indignity of Chinese innovators being denied U.S. patents.”

        Yes, we could leave apple etc. out of the issue.

        But I do like how you know, implicitly, that the chinese have their own interests at heart. While it is “evil” for the US to have their own interests at heart.

        “This would amount to the U.S. publicly shouting “here are our demands, and you must meet them or else.” Does that strategy ever work? Maybe one time out of ten, but the other nine times it just makes the other party dig in. ”

        That’s because 9/10 people trying to do such are amateurs at making deals. Fortunately we just elected one of the 1/10 that aren’t bad at it. Just like 9/10 patent examiners apparently manage to fck up demands for amendments (or refuse to do them at all knowing they will fck up) every now and again there’s a skilled person like myself that can make deals, even deals with “demands”.

        “For my part, I am not willing to cut off even the measliest tip of my nose to spite another man’s face. Why should I?”

        Because the “other man”, aka “other country” is ripping “you” (your country) off in a “fair trade” deal(s) by creating an uneven playing field. And if they want that trade deal (ball game) to continue, then they need to get serious about leveling the field (playing field).

        “I gain nothing from his loss.”

        Correct, but you do gain considerably from his concession to you by leveling the playing field.

        “It seems to me that there must just be a fundamental difference in brain wiring that some people can think it is worth taking a hit yourself to deliver a bigger hit to party X. ”

        The goal is not to hit people, the goal is to get the other party to concede (Ala bend the fcking knee). And if you’re not a weak fck then it works. It always has worked, and it always will work.

        POWER. Bro, look it up.

        By the by, in case you didn’t know, word on the street is that china’s whole econ teeters on the edge of late. Even tiny perturbations in their system could have country ruining effects (meaning they don’t get to be the world’s superpower in 2050ish and instead remain impoverished for a long time thanks to their repressive gov). That means all our leverage is magnified.

        But thanks for chiming in, nobody else had taken the time to dig in to that post.

        1. But I do like how you know, implicitly, that the chinese have their own interests at heart. While it is “evil” for the US to have their own interests at heart.

          Straight out of the liberals handbook.

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