34 thoughts on “Patent Academixer

  1. 9

    There are two issues: 1) accountability for unethical conduct. There is current zero accountability for any unethical conduct. 2) Disclosure of what they have been paid to write the article and other work (so we don’t get the trick of only being paid for 1 in 10 articles.)

    Those are the issues. Accountability and disclosure. If you have those, the rest gets sorted out in the wash. Without those you end up with people like Lemley.

  2. 8

    anony The patent academy is corrupt, maybe even treasonous.
    Ned Heller: you might be right on that…. the forces against the rule of law have again arisen.
    anon: It is no accident that those forces also wear the clothes of anti-software and anti-business patent.


    Just had to preserve this one for the history books. Everyone following along? If you don’t like software patents or biz method patents, well, you’re not patriotic at best and you’re probably a traitor to the country.

    Yes, these are the kind of glibertarian infants that have polluted the patent bar with their crayon scribbling for a long, long time.

    And they wonder why they keep losing. You can certainly smell the desperation.

    And yes I’m going to re-post this exchange many times. Please look forward to that.

    1. 8.1

      You do realize that you are misapplying the comments with your strong them together like that, right?

      But please, “re-post” your error many times.

      It’s what you do, after all.

      1. 8.1.2

        you are misapplying the comments

        Let the backpedaling begin. Nobody could have predicted that.

        Haven’t we seen this before with li’l “anon”? Oh, yes. We certainly have.

        Here’s how it works, “anon”: every time someone makes an appalling statement, you have a choice. You can sit on your hands, you can rebut, or you can pile on.

        We all see what you did here.

        Maybe try apologizing? LOLOLOL I know that’s not in your script.


          For as much as your number one meme is Accuse Others, you should heed your own “advice” here Malcolm

  3. 7

    D. Karshtedt, Regulating Evergreening

    Something should have been done about this a long time ago.

    The good news is that there have been entire symposiums dedicated to teaching practitioners how to “evergreen” so the “tricks” aren’t exactly secret.

  4. 6


  5. 5

    Duffy’s article about lost equity assumes that when one seeks only an equitable remedy that one does not have a right to a trial by jury with respect to the validity of one’s patent if validity is raised as a defense.

    Assuming arguendo, that patent validity has a Seventh Amendment right to a trial by jury, one can make a cogent argument that one retains that right regardless of the remedy sought. For example, at common law, prior to 1791, even when seeking an equitable remedy, patent owners still had a right to have validity tried to a jury. That right was guaranteed by two things: the Statute of Monopolies that required that validity be tried by and according to common law, and by the Magna Carta – particularly the deal between the commons and the King during the reign of Richard II that guaranteed that when there was and adequate remedy at law, that equity should have no jurisdiction. That is a constitutional principle under English law. It remains a constitutional principle under American law.

  6. 4

    Lots and lots of topics
    Lots and lots of presenters

    Would it be fair (in light of recent Google revelations), to ask how many have had their work (or more particularly, the work being presented) affected in some way by the touch of Google?

      1. 4.1.1


        148 papers.

        Copyright, Trademark and non-patent matters concern at least 50 of those.

        About 10% of the 148 deal with courts, infringement and litigation (not sure how many of those deal with the stripping of rights as relates to litigation).

        As I mentioned previously (and still do not know whom to properly thank), academic papers can be broken down into two main types.

        The first type are those attempting to examine cases and how those cases accurately (or otherwise) reflect statutory (and where appropriate, non-statutory) law.

        The second type are those attempting to influence the formation of law.

        It is easily the second type that begs for tighter ethical constraints. After all, attorneys merely practicing law hew to a state-by-state code of ethics because of the proximity of the attorney and the impact that such proximity brings.

        How much MORE so then, should academics be held to at least – if not more so – strict ethical standards when their actions are aimed at law formation (and concurrently, as is their profession, the shaping of minds of future attorneys)?

        And yet, not a single paper of the 148 turns the lens on the works of this gathering of individuals themselves.


          “How much MORE so then, should academics be held to at least – if not more so – strict ethical standards when their actions are aimed at law formation (and concurrently, as is their profession, the shaping of minds of future attorneys)?

          And yet, not a single paper of the 148 turns the lens on the works of this gathering of individuals themselves.”

          Excellent topic, there.

  7. 3

    Topics that struck me as especially interesting from the list — or at least, whose abstracts struck me as interesting enough that I’d want to read the article. Nothing against any of the others; these things just overlap most with my practice and the things I think about.

    * J. Anderson, Court Capture
    * L. Ouellette & A. Tutt, How Do Patent Incentives Affect university Researchers
    * All three from the Patentable Subject Matter panel in Session VI
    * J. Duffy & M. Dowd, Patent Equity Lost
    * D. Karshtedt, Regulating Evergreening
    * Lemley & Gugliuzza, Does R36 Skew Substantive Law (Judge Gertner had an article years back questioning whether district judges’ practice of writing opinions more often when they grant SJ than when they deny it might skew the law in other fields; I’m intrigued by this topic)
    * S. Vishnbhakat, Independent Screening in the PTAB

  8. 2

    Obviously Dennis, everybody is thinking about Oil States and the constitutionality of IPRs. That should be topic number 1. The scholars should be educated on trial of patent validity in the common law courts of England, particularly trials pursuant to the writ scire facias for revoking patents. That will be an eye-opener.

    Another aspect that is always troubled me is that when we talk about due process, we fail to recognize that due process truly requires a neutral and independent judge. When the barons insisted at Runnymede that King John sign the Magna Carta, they wanted more than just a trial by the common law to a jury, they wanted that the trial be conducted by a truly independent judge. As Coke would put it, one cannot be a judge in his own case. Thus when the crown sues to revoke a patent, the crown cannot be the judge.

    Today the right to an independent judge is protected not so much by Article III, but by the due process clause. The Magna Carta was revised during the reign of King Richard II to convert the language regarding trial by one’s peers to Due Process. I think that is where the term first appears in our law. But today we know that in criminal cases, due process guarantees us an unbiased judge as well as an unbiased jury.

    It would seem to me that the patent office cannot provide due process because they are not truly independent. They are part of political branch. Their work directly affects the examining portion of the office. Their work directly affects PTO budgets. Their jobs depend upon their taking cases. Their salaries are set by the Director. They obviously pursue agendas and say so. Most patent owners appearing before the PTAB believe the system is rigged.

    But then again, whether a patent owner has a right to due process depends on whether patents are property.

    1. 2.2

      You are barking up the wrong tree Ned.

      The patent academy is corrupt, maybe even treasonous.

      The long knives are coming out, and they know it.

      1. 2.2.2

        In fact, it is almost like Charles I trying to put the kibosh on trying patent validity in the common law courts, referring instead the privy Council where he had some influence. He also preferred the Star Chamber where injustice and the abuse of power were the norm because of their secret proceedings.

        Yes, the forces against the rule of law have again arisen.


          It is no accident that those forces also wear the clothes of anti-software and anti-business patent.

          Never mind the “6-is-a-genius-because-he-agrees-with-me blinders that you may have on.

      2. 2.2.3

        Treason? I mean, that word is being thrown around these days with loose abandon, but this is the context in which it is least applicable.


            I don’t know if I can roll my eyes enough at your tortured account of history and tenuously linking it somehow to patent law and patent academics. Quite frankly it is dumb, and you should feel bad for even mentioning it. I generally enjoy reading your opinions, even if I disagree, but this is just baaaaaaad…..


              Without meaning any disrespect OSitA (and keeping in mind the person at whom you are rolling your eyes), I simply have not been impressed enough with your inputs to associate any degree of meaningful impact to the actions of your eye rolling.

              Yes, it is a bit hyperbolic, and the word itself (“treason”) is not typically associated with arena of innovation protection, but it is NOT as ” baaaaaaad…..” as you make it out to be to think that the application of certain philosophies that ARE anti-patent do not intersect with views that traditionally have been viewed as treasonous.

              For example, the Rosenbergs were put to death over the illicit actions concerned with technology. Granted, espionage itself is a different in kind item, but the purposeful weakening of the US patent system (what, ranked now 10th?) is STILL a deleterious development for this country – concerning technology.

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