35 thoughts on “Prof Mark Lemley’s New Article

  1. 10

    So, rather than an article about the benefits of patents to mobility, we can an edge case that rarely occurs being advocated by Lemley. What a surprise. An anti-patent judicial activist writes another hit piece in the vanity press.

    Reality–without the patent system inventors would be tied down to their employer and would not be able to share their inventions.

    Reality–the new federal trade secret laws are threatening employee mobility and disclosures.

    It never ends with this guy.

    1. 10.1

      You (and others) have mentioned that “this guy” benefits from the changes in law that his vanity press articles espouse.

      Are you really surprised?

    2. 10.2

      Night, there are many cases where bigtime inventors leave to form their own companies. Eli Harari of SanDisk is one.

      In 1980, Harari invented the a non volatile EPROM for ST Microelectronics. US 4361847. Yet he went on to found a competing company that became one of the largest in the world.

      1. 10.2.1

        No kidding Ned. So? You mean those patents that got them capital and enabled them to leave the company without trade secret problems, and that enabled them to share the information? Those patents.

  2. 9

    NWPA’s startup, like every company he ever worked for, was built on invalid patents that were obtained inequitably. That’s the real story! Of course, those were obtained during the Kappos era, where fraud on the patent office was practiced routinely by NWPA. And of course when NWPA wasn’t bribing PTO officials to obtain his invalid patents, he was busy extorting innocent people with them. Essentially he was burning down churches in Mississippi. How many patents did he obtain for the Klan? Nobody knows. Somebody should ask them how much they are paying NWPA to post here.

    We now return to you The NWPA Show! In episode 9, we finally learn the secret identity of NWPA’s mail clerk. Will the prior art finally reach NWPA’s desk? Will Lemley discover NWPA’s secret hideaway in Tinfoil Mountain? Tune in to find out!

      1. 9.2.1

        Of course, but this one at least is not a mere repeat of his stale script (although he does accuse you of “tinfoil hat” actions which of course he himself is guilty of).

    1. 8.1

      I have no idea why Liberace’s photograph is shown. A view of issued U.S. patents at USPTO.gov does not reveal any patents where Liberace is an inventor. But most interesting is the disclosure in U.S. Pat. No. 8,404,484, which concerns a vinyl record album by Liberace. This patent concerns chemical engineering, and the disclosure reads, “Bisphenol A diglycidyl ether/Diethylimene triamine epoxy was cured on a vinyl record (Liberace, Mr. Showmanship, Dot Records) at room temperature for 16 h and then post cured at 150 degrees C for 2 h to increase Tg above the embossing temperature.”

      1. 8.1.3

        I have no idea why Liberace’s photograph is shown.

        The alternative was to show a 19 year old woman falling out of her bikini on a water slide.


          So you are equating Liberace in the same sense of a nubile young woman…?

          Hey, to each their own and whatever floats your boat, but I am just looking not to misconstrue your comments.

  3. 7

    Front and center has to be a discussion of the new Trade Secret laws, and Lemley’s role in getting them passed. A much better article would be on the role of patents that enables employee mobility and enables employees to share their work at conferences and in the print media. The Role of Patents in the rise of employee mobility and its role in increasing employees’ salary is far more relevant.

    Lemley’s dogged attack on patents where he focuses on all the negative aspects of patents and not the positive aspects that far outweigh the negative aspects is tiring to say the least.

    1. 7.1

      And did Lemley ever disclose how he is protecting IP in his start-up? Is it trade secrets? By far the most relevant event in the last 20 years on employee mobility is the federal trade secret law and the weakening of the patent system–both are leading to locking down employees and a new dark age where inventions are not shared.

      1. 7.1.1

        Your trade secret concern tr011ing would be more convincing if you weren’t a habitual defender of functionally claimed black boxes that don’t disclose any secret sauce.


          Ben, that is not logical. Moreover, functional claiming is the norm and always has been. Functional descriptions are used in textbooks to represent known solutions and solutions that are readily found by those skilled in the art, and I have quoted textbooks used at the top engineering schools that say exactly that.

          So, Lemley is trying to sell some more anti-patent propaganda.

      2. 7.1.3

        Well Night, the Valley lost big time in the class action STEM wage suppression case. They need another way to suppress the wages.

  4. 6

    The author of Professor Lemley’s article should have researched some of the early cases when the assignor estoppel doctrine was developing (the Fed. reporters – not F.2d or F.3d.) instead of just relying on repeated citations to other peoples’ articles.

    If she had, she would have learned that the early cases had developed the “mere employee” doctrine where if the inventor was a “mere employee” of the subsequent assignee, there was no privity, and no assignor estoppel. Also, the early cases had also addressed the issue of the inventor’s testimony, holding that if the assignee was not estopped (because no privity), then the assignee could rely on the inventor’s testimony to invalidate the patent, even if the inventor would otherwise be estopped.

    Those early cases support the main premise of this article — that the Federal Circuit has unreasonably expanded the assignor estoppel doctrine, but unfortunately they were not cited or explained.

    I’m in agreement with this essay’s point — “[Assignor estoppel] should return to its much more limited roots,” but it would have been more helpful to have the article explain what those “roots” were by actual citations to real decisions.

    Just my humble opinion.

    1. 6.1

      Can you identify one or two of these “early cases” by name? You seem to be some sort of expert on this topic. Should be easy for you.

  5. 2

    Argued from the point of view of inventor mobility, I join with Lemley. That policy is important.

    But does the Supreme Court really want to take sides on what is a matter of state policy regarding employee mobility?

      1. 2.1.1

        anon, good point.

        I would expect the big companies to uniformly align against employee mobility.

    1. 2.2

      a matter of state policy regarding employee mobility

      This isn’t a question of the constitutionality of commuter benefits.

      This is about an ex-employee (maybe a small business owner and a job creator!) being estopped from defending herself against a junk patent claim that she might never have seen until it was asserted against her.

      1. 2.2.1

        MM, this case might be about that. But the policy being argued is in favor of employee mobility.

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