Intellectual Franchise Rights

by Dennis Crouch

Josh Malone, inventor of Bunch-O-Balloons, has provided a new patent-grant graphic below.  Malone’s most recent case is before the Federal Circuit after the PTAB issued a final written decision rejecting the claims.  Interesting changes though – Just before the Federal Circuit oral arguments in this case, the PTO Solicitor withdrew its support from the PTAB’s original decision and provided notice that the PTO is actively reconsidering its approach to claim construction and indefiniteness.

[B]ecause the PTAB’s approach to claim construction and indefiniteness during post-issuance proceedings under the America Invents Act is something the agency is actively considering, the Director has decided not to advocate for a particular approach in this appeal.

[RequestToWithdraw] The question here is whether the term “substantially filled” is indefinite.  The case has interesting features in that (1) the Federal Circuit has previously approved of this claim language (but not on BRI); and (2) there is an ongoing dispute as to the application of Packard and Nautilus in AIA Trials.

171 thoughts on “Intellectual Franchise Rights

  1. 17

    Man, it’s fun watching the Repu k k k e P@ rty di e before our eyes.

    Nobody could have predicted that Mango Hairball’s crimes would catch up with him. LOL

    Too bad Ned Heller isn’t around to remind everyone that Hillary Clinton gave a speech to a bank. Such a pity. Bye bye, dinosaurs.

    1. 17.3

      Meanwhile under MM’s nose, Candace and Kanye are bringing the black male population from his vote planatation.

      Whoopsie!

      1. 17.3.1

        Candace and Kanye

        Looks like 6 is getting his news from the Incel Digest Daily chatroom again.

  2. 16

    The only true “franchise” that was created by the AIA was the deal BIO cut to get to remove it’s opposition. Perhaps many don’t appreciate that Biologics get exclusive rights in the Orange Book for a limited period of time – with no right to challenge or file bio-similars – upon approval by the overlords at FDA. The triumph of the administrative state.

    1. 16.1

      They are all franchises. My marked up patent above is a franchise. If one of the APJs takes offense at this post he can cancel it. He would simply declare that it would have been common sense to combine straws, o-rings, and balloons. Poof! No more franchise for me.

      1. 16.1.1

        Oh lookie it’s Balloon Boy, crying himself a river. Build a raft out of balloons, Baloon Boy, and you can float down it. And pay me while you’re at it, using your “mobile device, configured to connect to a remote server.” Because I “innovated” the idea.

        LOLOLOLOLOL

      2. 16.1.2

        You should consider how patents law and anti-trust law have both been torn down to support large international corporations.

        1. 16.1.2.1

          Corporatacracy and the reanimation of the age of the guilds….

          (we really should consider limits on what we provide to juristic persons)

          1. 16.1.2.1.1

            Corporatacracy

            So sayeth the glibertarian out of one side of his mealy mouth …

            You really have a problem with excessive corporate power, “anon”?

            There’s all kinds of easy-to-implement solutions out there for that problem. I wonder how many of them you’d support. LOL Seriously, I don’t wonder at all.

            1. 16.1.2.1.1.1

              Maybe you wish to advance an actual substantive point there Malcolm…***

              As is, your reply is pure mindless ad hominem.

              Pretty much a typical “engaged encounter” from you…

              Which, as has been documented, is what you have been “offering” for 13 years now.

              *** You may actually be surprised as to what I would support when it comes to keeping the juristic person in check.

              1. 16.1.2.1.1.1.1

                …for instance – I would be “all-in” for legislation overturning Citizens United.

              2. 16.1.2.1.1.1.2

                your reply is pure mindless ad hominem.

                No mindless at all and definitely not “ad hominem.” LOL Step up, “anon.” Let’s hear all about your “anti-corporatacracy” proposals. Put on your big boy pants and list them out for everyone.

                Meanwhile:

                Companies including Uber Technologies Inc., Tesla Inc. and Alphabet Inc.’s Google have been touting self-driving cars as the next revolution in transportation. Pressure was mounting to make the technology road-worthy when one of Uber’s cars killed a pedestrian in Arizona in March. The company halted its autonomous-vehicle test program. Toyota Motor Corp. and Aptiv Plc’s Nutonomy then announced they were temporarily suspending public road testing in the U.S. Also in March, a driver of a Tesla Model X died in a crash in California that occurred while Autopilot was engaged.

                Literally everyone involved in the “everyone will be behind a self-driving car in a few years” scam is a fraud or an id i 0t.

                And unsurprisingly that includes a lot of the patent crack smokers around here.

                1. Meanwhile“….

                  Malcolm 0bsesses and the reply at 16.2.1.1 IS mindless ad hominem.

                  Meanwhile“….

                  Malcolm’s next “contribution” is to want me to do what I just got done asking of him – one of his classic Accuse Others meme spins (delightfully with a “cleared” count-filtered post interposing itself with an example – lol, does anyone think that Malcolm will actually now provide what was originally asked OF him, even as I preempted his Accuse Others attempt to throw the making of a point back to him? Nope, neither did I.

                  Same old same old from Malcolm.


    2. 16.2

      BIO (Big Pharm) cutting deals…

      Talk about corporatacracy….

      No wonder Malcolm goes apoplectic…..

      1. 16.2.1

        …innovation in the form most accessible by the non-wealthy drives Malcolm into rants of the E V 1 L plans of the 1%-cabal, while Big Pharma – where ONLY the wealthy can play – is a “soft spot” for Malcolm….

        The dichotomy never gets explained – the cognitive dissonance must be overwhelming.

  3. 15

    Skywise: Honestly, what’s the point of posting that graphic here?

    To point at it and laugh at the expense of Balloon Boy, one of America’s most self-absorbed l o s e rs.

    1. 15.1

      IF you think that that is the point, the laughter you hear is not laughter with you – it is laughter at you.

    2. 15.2

      MM you are a true jerk. If you are a patent attorney, as you claim?, how can you hide your contempt for inventors from your clients? You must be a heck of an actor.

      Was the balloon patent of such public health or public safety import that the PTAB (our new privy court) needed to un-ring multiple validity findings by trial and appeal courts? Was there some dire public need for cheap china patent knockoffs to flood the market?

      Seriously, why the name calling?

      1. 15.2.1

        why the name calling

        Apparently only the entitled whining patent maximalists are allowed to make fun of other people.

        Must be nice.

        1. 15.2.1.1

          It is far less that you were making fun of other people and far more that you were making fun of other people – and missing the picture.

          You celebrate the wrong things.

          Thirteen years now of this overflowing cognitive dissonance….

          1. 15.2.1.1.1

            you were making fun of other people – and missing the picture

            G ob bly de g 0 0 k.

              1. 15.2.1.1.1.1.1

                What does that even mean?

                Oh, I guess you’re missing the picture.

                Deep stuff.

                LOL

      2. 15.2.2

        iwasthere:

        Why? He is MM. I have been blogging with him for close to 14 years. You can be sure that nothing you say to him will affect his behavior.

  4. 14

    Most reasonable people who weren’t inhaling dense oily clouds of Big Jeans’ patent crack from dawn to dusk understood (1) why the AIA was passed in the first place and (2) why IPRs were necessary and (3) why IPRs were Constitutional. If you became emotionally invested in some fantasy world where “the pendulum” was “swinging back” then maybe spend less money on prosecuting patents and more money on a good ther@pist. Seriously. Because you need that kind of help.

    The biggest problem facing the system right now is the fact that IPRs are too limited and CBM review is sunsetting. IPRs should be expanded to cover eligibility challenges and CBM review should be kept in place.

    Why is this the case?

    Because the system is still flooded with ineligible junk.

    Why is this the case?

    Because the PTO still doesn’t know what it’s doing and is still bending over backwards to avoid doing what it needs to do. Where is the easily searchable database of logic and algorithmic (fake) “structure”? Where are the formal rules requiring applicants to submit their “new” algorithms using standardized language so that they can be searched and so that the b0 tt0m feeding habit of scrivening around the prior art can be crushed out of existence?

    Time to grow up, s 0 f tie w0 fti es. Actually it’s about twenty years past that time but it’s never too late.

    1. 14.2

      Actually MM, the PTAB is making the entire ‘junk patent’ situation worse. Since, under public choice theory, the PTAB creates the perverse incentive for the PTO to issue more junk patents, because without junk patents, there is no justification for the PTAB.

      1. 14.2.1

        the PTAB creates the perverse incentive for the PTO to issue more junk patents

        Projecting your faults onto others is usually a bad move.

        1. 14.2.1.1

          Projecting your faults onto others is usually a bad move.

          From the ultimate practitioner of the Accuse Others meme…

          Beyond stultifying.

  5. 13

    I realize that only ~10% of people reading this thread have an honest interest in what Oil States held, and that 90% just want to bellyache, so if you are not among the 10%, please feel free to skip what follows. For that 10%, however, I would like to offer some comfort. Far less changed in Oil States than some would have you believe.

    First, there is nothing new in saying that patents are a sort of franchise. U.S. law has recognized as much for well over 100 years now. Bloomer v. McQuewan, 55 U.S. 539, 549 (1853) (“The franchise which the patent grants, consists altogether in the right to exclude every one from making, using, or vending the thing patented, without the permission of the patentee. This is all that he obtains by the patent. And when he sells the exclusive privilege of making or vending it for use in a particular place, the purchaser buys a portion of the franchise which the patent confers,” emphases added).

    Second, franchises are property at common law. To prove this to yourself, you need only read Blackstone (III:16): “[W]hen a man has… any… species of franchise whatsoever; and he is disturbed or incommoded in the lawful excercise thereof…, there is an injury done to the legal owner; his property is damnified, and the profits arising from such his franchise are diminished. To remedy which as the law has given no other writ, he is therefore entitled to sue for damages by a species action on the casé…” (emphases added).

    In other words, there is nothing new in saying that patents are a species of franchise. That is old in the law. Moreover, as we can see above, patents are a sub-genus in the larger genus of “franchise,” and franchises are a sub-genus in the larger genus of “property.” Therefore, it follows by an effort of elementary syllogism that patents are property. Nothing about the status of patents as property is actually changed by Oil States

    There is literally nothing new here. Everything that you thought that you understood about patents as property before last Tuesday is still operable. If you had not previously realized that patents were members of a particular class of property called “franchises,” well shame on you (or at least shame on your law school teachers) for not troubling to learn as much from the case law. In any event, nothing in Oil States changed the status of patents as either franchise in particular or property more generally, so no need to panic.

    1. 13.1

      In other words, there is nothing new in saying that patents are a species of franchise. That is old in the law. Moreover, as we can see above, patents are a sub-genus in the larger genus of “franchise,” and franchises are a sub-genus in the larger genus of “property.” Therefore, it follows by an effort of elementary syllogism that patents are property. Nothing about the status of patents as property is actually changed by Oil States

      Yup.

    2. 13.2

      Nope.

      Franchises may be a subset of property, but patents as property were entirely distinguishable (by much more – and much more recent – Supreme Court quotes).

      Not buying your “10%” protest either, Greg.

      People are “bellyaching” because there is a real reason to do so. Just because you feel differently, just does not make it so. Just because you searched and found a few more SC quotes using the term, does not make it so.

    3. 13.3

      Nope. There are cases calling patents ‘monopolies’ as well. But that is not how a “monopoly” is properly understood in the context of market power. Oil States holding that the patent right now falls under the ‘public rights’ doctrine is a huge seachange.

  6. 11

    The argument that patent right is a private property right is flawed and misses the fundamental nature of the patent right –an exclusionary monopoly right limited to a short-term, “the right to exclude others from making, using, offering for sale, selling or importing the invention,” which does not include the right to use, make, sell, or offer to sell. See PATENT IS A PUBLIC FRANCHISE at link to linkedin.com.

    1. 11.1

      The (formerly named “property”) aspect of the patent being a negative right has zero to do with the notion of “Public Right.”

      Absolutely zero.

      1. 11.1.1

        Agreed Anon. A lot of uninformed views on the public rights doctrine. Are these people 1L’s?

    2. 11.2

      In the West… rights to exclude ALL others is precisely what property rights in things ARE.

      HERE, we need not be granted “permissions” by any State or Ruler to have, use, or make things (generally… some things are regulated). The government protects our property rights to things (for which we have those rights) PRECISELY by recognizing and enforcing the rights through exclusivity.

      I’m sorry but your post makes no sense. Perhaps there was a typo?

      1. 11.2.1

        Anon2,

        A typo was not made – Mr. Vepachedu’s pedigree is related to an entirely different view of property and what the exclusive nature (and negative rights) of a patent for the U.S. Sovereign entail.

        His article – if recalibrated – may make an interesting piece of comparative analysis, but as is, cannot support what he thinks it supports.

  7. 10

    The redlines need on addition:

    “compensation, or whatever the courts may feel is equitable to all parties including the party violating the franchise”

    1. 10.1

      “violating the x”

      there’s been a word for that for the last century… so-called “stakeholders”.

      1. 10.1.1

        Not sure that I can fully agree that the stakeholders are the perpetrators.

        They may be the excuse (reason?) given, as in, we need to maximize returns in the short term for them…, but that is not the same as being the decision maker, I’m not ready to go with your suggestion.

            1. 10.1.1.1.1.1

              It’s “funnier” (and more consistent with the direction of trends) when the govt includes the infringer as a “stakeholder” in X… that is the foot in the door for all such violations… no?

              The only intellectually honest way to argue the denial of my right to my property is to posture that the would be thief (i.e. any comer who asserts a right to something which is mine by right and not his) has a “stake” in my property.

              I do concede my example may be overbroad… but generally speaking the term “stakeholder” has almost always been used in this way to refer to those who actually do not have rights in things but who the government on policy grounds has decided to grant favors in respect of those things, backed by its authority of arms rather than any authority in principle or propriety.

              C’mon… the infringer is a stakeholder brother… we ALL are stakeholders man… I mean we’re ALL in this TOGETHER right?

              1. 10.1.1.1.1.1.1

                this is “oh, so commune” of you. eh?

                After all, if everything becomes “public rights” and ALL personal property is made to cease to exist, why, what could go wrong with that? Would we not all join Jane on her knees and beg and pray for that day?

                (the sar casm is not intended for you, fyi)

                1. b b b but, I’m still a stakeholder in that sarcasm, regardless of your intention… :)

    2. 10.2

      “but when and if and only if the Court decides to give the patent owner an accounting.” Fixed it for ya.

  8. 9

    Synthesizing some of the discussion below. Perhaps my rhetoric is a bit harsh – calling out patent attorneys for hawking fake patents. On the other hand I think the patent bar on the whole is very out of touch. I myself am fully informed now. My attorneys are some of the best – all 40 of them. I am not walking away and I didn’t burn my actual patent last summer. Instead I spent the $300K to appeal the PTAB knowing full well I have only a 9% chance of reversal.

    But 99.9% of inventors have absolutely no idea. They believe the promise in the original text above – that no one else can make, use, or sell their invention. Not even Google. They don’t know about Ebay. They don’t know about KSR. They don’t know about Alice. They don’t know about PTAB. They have no clue. They are lambs led to the slaughter. I know many of them. The 1% with commercially successful apparatus inventions and now they are financially and psychologically wrecked.

    I am the PTAB victim that is surviving. Because my license and I managed to sell as much product as the infringer we were able to fund the $22M litigation – I estimate to be a third of the total before Telebrands exhausts all appeals.

    2018 is the year inventors learn what you guys have known for a while. Patents are a game of kings. Only a few brave attorneys have tried to stop it. The rest were committed to the lucrative public franchise scheme. You won. Last Tuesday you won.

    We have nothing left but a false promise.

    I am not bitter. I care.

    1. 9.1

      Your real experiences are very helpful to understanding the problems.

      The reality is that since the AIA the value of a patent is about 1/5 to 1/10 what it was. That is from real sales.

      My prediction is that in the next big downturn that patent filings will fall 20-40 percent for US companies. We are reaching a tipping point. The patent prosecution budget will cut to make Wall Street numbers. I already see that now in some big corporations. That used not to be the case.

      1. 9.1.1

        Your real experiences are very helpful to understanding the problems.

        Although I have been taking the opposite side of the argument from Mr. Malone throughout most of this thread, I do want to second Night Writer’s point here. I think that it is better to have some IPR regime than no such regime, but the one that we currently have is decidedly flawed. I am obliged to Mr. Malone for pointing out some very specific instances where the current regime is failing to do the one thing that patents are supposed to do—incentivize innovation. It is very helpful, when dealing with a problem, to think about it in concrete and specific terms, and Mr. Malone’s description of his own situation is a useful object lesson in where the fixes need to be made.

      1. 9.2.1

        Indeed the exact opposite is true… in the face of a wrong, caring and bitterness go together,

        and to ask anyone who sincerely believes with conviction that those who were supposed to safeguard his Rights have acted to deny them, to ask him not to harbor bitterness toward those who have thus wronged him,

        reveals a lack of understanding of both human nature and of the nature of conviction.

        1. 9.2.1.1

          Not sure that I will fully agree with you – I will note that your view is a viable alternative to how one may choose to respond to a situation, and that surely, human nature will dispose one of this choice (hence, my use of the adjective “viable”).

          Nonetheless, human nature may also provide a different choice than that of bitterness.

          By this, I take “bitter” not to reflect a momentary, immediate or natural reaction, Instead, I take “bitter” as more of a choice to dwell in and let one be consumed by that first emotion. Sure, human nature includes the proclivity to let oneself be so consumed. but just as assuredly, human nature includes the ability to train oneself to be more amenable to adaptation and action – without forbearing any sense of conviction.

          1. 9.2.1.1.1

            For a bystander to dismiss and admonish one so grievously wronged and betrayed as merely being bitter, IMHO says more about the bystander than the victim.

            Bullying the victim for having less than perfect virtue in the face of a betrayal and wrongs so fundamental, is petty and reveals shortcomings of character much greater in the bully than the one wronged who, admittedly, might be displaying a kind of righteous rage which is more abiding and vigorous than his objective self-interest might demand.

            That said, I am not at all lead to believe this one is actually “bitter” in your sense of being consumed. The other popular use of bitter denotes a petty shortsighted and false overreaction to mistakenly perceived injury… this meaning is what flavors the barb hurled at the author of the joke. And in fact this flavor of “bitter” is too small a word for the appropriate and justifiable emotional response in the context, one of righteous anger.

            IMHO
            The joke, likely originating with a justifiable righteous anger, is primarily truth laced with astute and biting sarcasm in the face of a naked emperor robed only in folly and vice.

            1. 9.2.1.1.1.1

              I have no qualms with your counter.

              Your third paragraph especially points out that perhaps “bitter” is not quite the correct word, and as such, my view of what “bitter” entails would indeed paint a different picture. My point at post 9.2 though is much simpler: one can be both bitter (in any number of meanings of that term) AND still care. Being bitter does not empty oneself of the ability TO care.

              I do believe that the rendition of the (old) patent face carries with it a powerful – and accurate – message.

  9. 8

    Honestly, what’s the point of posting that graphic here? It’s juvenile, bitter, and not funny. This website, I hope, remains a place for professional analysis. And some of that can have a sense of humor, to be sure, but that bit above is just petulant.

    1. 8.1

      >>It’s juvenile,

      No. It isn’t. It actually highlights changes to patent law from the SCOTUS in recent years as well as some from Congress.

    2. 8.2

      what’s the point of posting that graphic here? It’s juvenile, bitter, and not funny.

      You are getting upset about the graphic when what is happening to (former) property rights known as patents is going on?

      You have your priorities entirely screwed up.

      1. 8.2.1

        “(former) property rights known as patents is going on”

        The rights formerly known as property rights, lol. Prince.

        Seriously though this whole franchise thing is just: wow.

    3. 8.3

      Today we all have the right not to be offended no?

      Here we have offense taken at the fact of being confronted with the reality of something offensive i.e. at being *shown* what is offensive, rather than being offended by the existence of that which is offensive.

      If thine eyes offend thee, cover them. For if the thing you see is in truth that which you find offensive, but the same, not a thing to be trifled with being preordained such and so, it is not your the place of your mind to question it or thine eyes to see offence in it… the faculty of sight and mind are themselves offensive, and they must be cast aside.

      Juvenile and bitter…
      please.

      1. 8.3.2

        Hm, I happen to agree with skyywise that the “joke” up top seems rather bitter. I do not know if I would say “juvenile,” but I would say “petulant.”

        In any event, your point is well taken. To the extent that skyywise and I do not enjoy the joke, we can simply ignore. By the same token, however, to the extent that you disagree with skyywise’s response, you can also simply ignore it.

        Or, we can all discuss it, which is probably more interesting that ignoring…

        1. 8.3.2.1

          I hope you will reconsider Greg. I will be calling on all registered patent attorneys to support a petition to the Secretary of Commerce to correct the wording on the new patent cover. At the very least it is not the “right to exclude others” and it grants no “title”. Let’s say we leave off the debate about patent/franchise. Would you support this correction?

        2. 8.3.2.2

          It is not surprising that a Sovereign and his loyal entourage should deem the protests by the ruled masses as petulant, no matter how earnest the moral convictions those subjects have in both the existence and nature of their own Rights and in the undeniability of the wrongs and injustice visited upon them by their “ruler”. But is it not also unsurprising that one of those subjects should deign to protest and make plain the injury he claims to suffer, and that such protest be laced with bitterness… and all the more so, the more earnestly held the conviction and belief in the Rights violated and the wrongs perpetrated?

          There is no Joke in the accurate non-mincing of words represented by the graphic. It merely states what the unwary should be aware of, in clear and more precise terms.

          There clearly is bitterness and rightly so.

          As for petulance, I suggest one save such terms until one has been personally crowned or at least until one’s gang of Statists has finally succeeded in taking down the Constitutional Republic and all inalienable rights with it.

          1. 8.3.2.2.1

            Our law (and really, everyone else’s law as well, come to that) is that an inventor only gets to claim what the inventor invented. When your contribution over the art is […….], then you get to claim […….]. When, however, your contribution over the art is only […], then you do not get to claim […….]. You may content yourself, in such circumstances, to claim […], but if you insist on claiming […….], then you will get nothing.

            In an IPR, the dispute is over whether the inventor has really made a contribution over the art as large as […….], or only as large as […]. It is not clear to me why a jury is supposed to be particularly well suited to make that determination. Surely this is a determination that requires a measure of expertise, if only to recognize what is the state of the art, such that one can gauge whether the inventor’s contribution is more akin to […….] or […].

          2. 8.3.2.2.2

            It is not surprising that a Sovereign and his loyal entourage should deem the protests by the ruled masses as petulant, no matter how earnest the moral convictions those subjects have…

            Well, yes, that is not surprising. It is also not surprising that someone who is not the Sovereign—nor an especially loyal entourage of the Sovereign—should consider something to be petulant when it really is petulant. I leave it to the dispassionate reader to decide which of these two circumstances applies to the graphic above and skyywise’s and my response thereto.

            1. 8.3.2.2.2.1

              what is really petulant…

              You mean focusing on the reaction to the exclusion of what causes the reaction?

              Yes, I DO hope that dispassionate readers can readily decide that matter.

            2. 8.3.2.2.2.2

              Because a jury is a second layer of removal from the vice of men? The first being the promise of a independent judiciary.

          3. 8.3.2.2.4

            “It is not surprising that a Sovereign and his loyal entourage should deem the protests by the ruled masses as petulant,”

            Donny T doesn’t deem such. He would probably retweet the JPG.

          4. 8.3.2.2.5

            The Declaration of Independence – yeah, that was sort of ‘bitter.’

  10. 7

    David Stein: Compare the volume of PR about patent trolls over the past two decades, written in support of “patent reform,” with the amount of writing about the damage wrought by uncertainty in issued patents.

    Odds that David Stein deeply cares about “uncertainty in issued patents”: 0%

    You want certainty, David? Get rid of vaporous logic patents whose validity rests on scrivening and ign0rance and nothing else.

    And yes an enormous amount has been written about “uncertainty” in patent law over the years, far more than has been written about “trolls” which is (relatively speaking) a narrow and discrete problem that (surprise!) flows mainly from those vaporous logic patents that the PTO continues to grant at record levels.

    But let’s just face facts, David: you don’t want “certainty”. You want more patents.

    1. 7.1

      But let’s just face facts, David: you don’t want “certainty”. You want more patents.

      Those are not mutually exclusive, you know.

      Further, given David’s positions, everyone should be wanting more patents.

      That is, if you understood the Quid Pro Quo that patents bring.

      The fact that you do not shows itself (ad nauseum) in your nigh constant anti-patent rants.

      …which brings around – again – that cognitive dissonance of yours, seeing as (supposedly), YOU are a patent attorney.

      Oh wait, does this have something to do with your ego and the view that only your line of work is the “proper” line of work for which patents should be granted?

      Of course it does. ALL of your “feelings” end up centered about you, after all.

      1. 7.1.1

        given David’s positions, everyone should be wanting more patents.

        Depends on what exactly you mean by “more”.

        And the qualifier re “David’s positions” is sort of silly, I think.

        If my “position” is that patents are delicious nutricious food, then certainly everyone should be wanting more of them.

        1. 7.1.1.1

          Depends on what exactly you mean by “more”.

          LOL – not at all, and by what stretch of the imagination could you supply a meaning to “more” that would not fit what I am saying?

          Unless of course, you are intending to dissemble, then pretty much anything you say is meaningless.

          as to the phrase “David’s positions” – I’m not going to go back and reiterate all of his content, but it should be pretty clear what his position is vis a vis the types of innovation that so greatly makes you sad.

  11. 6

    Ah, the petulant little whining children who seem to dominate the online “innovator” class.

    Grow up, Balloon Boy! Those of us who aren’t laughing at you outright are just waiting for you to “pass on” like so many other entitled dinosaurs. You don’t make the world turn around. You just think that you do.

    1. 6.1

      MM, you truly are an idiot. You know nothing of Josh Malone and the endless war (fought on multiple fronts including district court, PTAB, CAFC) that he’s had with a knock-off company called Telebrands that makes its money screwing over and stealing the ideas of independent inventors.

      To date, Josh Malone has spent in excess of $22 million defending his intellectual property and that fight clearly demonstrates the many, many faults and problems that all independent inventors face in the current US patent system (and childishly calling Josh “Balloon Boy” underscores what a sad and pathetic loser you are just because you weren’t clever enough to make millions on an invention involving water balloons).

      Oh yeah, one last thing: F you.

      1. 6.1.2

        You know nothing of Josh Malone and the endless war

        Actually I know an incredible amount about him. Maybe more than he knows about himself.

        Funny how that can happen.

      2. 6.1.3

        Josh Malone has spent in excess of $22 million defending his intellectual property

        My heart bleeds for his incredible suffering.

        Shall we set up a charity in his name? Perhaps a statute honoring his awesome sacrifice?

        Oh, the humanity.

      3. 6.1.4

        you weren’t clever enough to make millions on an invention involving water balloons

        LOLOLOLOLOLOLOLOLOLOLOLOLOLOLOL

        Try to believe it, folks. If these people didn’t exist, you’d almost be compelled to make them up for the hilarious parody.

  12. 5

    A franchise is property, and nothing more; it is incorporeal property, and is so defined by Justice Blackstone, when treating, in his second volume, chap. 3, page 20, of the Rights of Things. It is its character of property only which imparts to it value, and alone authorizes in individuals a right of action for invasions or disturbances of its enjoyment. Vide Bl. Comm., Vol. III., chap. 16, p. 236, as to injuries to this description of private property, and the remedies given for redressing them. A franchise, therefore, to erect a bridge, to construct a road, to keep a ferry, and to collect tolls upon them, granted by the authority of the State, we regard as occupying the same position, with respect to the paramount power and duty of the State to promote and protect the public good, as does the right of the citizen to the possession and enjoyment of his land under his patent or contract with the State, and it can no more interpose any obstruction in the way of their just exertion.

    West River Bridge Company v. Dix 47 U.S. 507, 534 (1848)

    1. 5.1

      As noted elsewhere Greg – there are plenty of more pertinent Supreme Court quotes (and closer in time than 1848) that beg for your explanation to clients as to how they square with the Oil States case.

      Still waiting for you….

    2. 5.2

      This raises a great point Greg, one made by Justice Gorsuch. Under Oil States private property can be taken by an administrative tribunal. Think City Council condemns your house so their friends can erect a shopping mall (as in Kelo). Susette Kelo had the right to a real judge and jury in 2005. Not in 2018.

      1. 5.2.1

        Um, not to put too fine a point on it, but Kelo v. New London held that the homeowner does not have any rights sufficient to stop the government from seizing your house (with compensation) and handing it over to a developer. I would like to think that this rather puts the talk of property rights in the proper proportion. Kelo had it much worse than aggrieved parties dissatisfied with a PTAB result.

        1. 5.2.1.1

          Except not – Takings law has its protections.

          You seem to be quite nonchalant on that matter – even to point of recognition.

        2. 5.2.1.2

          And, as a result of the public outcry over the Kelo v. New London decision, many states passed laws to prevent from happening in their states what happened in Connecticut:

          Five Years After Kelo – The Sweeping Backlash Against One of the Supreme Court’s Most-Despised Decisions

          link to ij.org

          1. 5.2.1.2.1

            But hey – it’s a quote that at first seemed to support Greg’s position….

            Yeah I know, the Supreme Court has many others – much more on point – that do NOT support that (or Oil States), but hey, the Supremes are simply going to do whatever they want to do.

            They really do appear to think that they are above the Constitution, the Separation of Powers, the Void for Vagueness doctrine, and using subjective someday-maybe “MAY” language, along with outright L 1 E S from the so-called “friends of the Court (hint: Lemley) to do as they please.

            There is one true answer here: jurisdiction stripping.

            Sadly, Congress simply cannot get it together to get that done.

          2. 5.2.1.2.2

            [M]any states passed laws to prevent from happening in their states what happened in Connecticut.

            And thank heavens that they did. Do you have a larger point to make, or is this just a sort of digression for legal history trivia?

            1. 5.2.1.2.2.1

              The digression appears to be yours, Greg.

              I “get” that you want to redirect the narrative, and the point by which you attempt to do so is to show that the Supreme Court has said something.

              However, They have said a lot of things to which they themselves do not hold themselves accountable to.

              The case you bring, and the point you wish to rest upon, is merely dicta there, and has no part of the holding (that eminent domain supersedes contracts, as long as the protections of Takings law are observed).

              This holding though would still apply to my posts – and if the right questions had been asked (and the right results obtained).

              The larger point is that the Supreme Court has (once again) twisted things to obtain a desired Ends. The larger point is that by calling the rights “Franchise Rights” instead of “Property Rights,” the Court avoided dealing with its own writings on patents as property.

              You still persist in this odd belief that personal property (as understood in the patent context) and “Public Rights” (as being used in the patent context) cause no harm or confusion or muddling of the notion that EVEN Congress cannot write any old law when it comes to established property.

              The damage remains – even if you want to change the focus of narrative about “Franchise” from “Property” because you have found a Supreme Court case that treats the both as the same for some different context.

              THIS context – here and now – is not the context of the case you present. Thus, the larger point is that YOUR attempt at some type of legal history trivia IS the digression.

              That being said – perhaps (in order to blunt the fact that others may want to use your misaligned point), some effort should be made to more clearly distinguish the law pertaining to “Public Rights.”***

              But – in all seriousness – do you really feel that THAT is what the Oil States decision does? Sure, that decision even points to ITS OWN lack of clarity concerning “Public Rights,” but I put to you that the decision destroys clarity more than it helps create clarity.

              The gallows humor concerning the change in status of the property right remains on point, even as you may not like the narrative of “Franchise.”

              .

              ***For example, I have posted (in question form), whether or not the other protections of the Constitution (e.g., Takings protections) apply the same to Franchises as to other forms of personal property. Your provided case may show that it should. But such changes nothing as to the propriety of the AIA in the IPR process and (for example) the Takings that occurs at the Institution Decision point. THIS is one of the “right questions” that was not asked. THIS is one of the items that I had attempted to indicate to the late Mr. Ned Heller as to being that type of “right question” to ask. Instead of taking this in stride with his own beliefs of patents as property (and despite the denial of the concept that property can be looked at as a bundle of sticks – which ANY attorney familiar with property law readily grasps), he – like others, insisted on asking the wrong question and as a result we have the Court eagerly giving a wrong answer to a wrong question, bringing LESS clarity to patent law.

              Treating patent property as merely “Franchise” property is a mistake. That you do not want to delve into that narrative because you believe that “Franchise” still means property (in the different context of your ancient Supreme Court case): I “get.” Perhaps you have some better point as to why the case is in error to help appease the apparent need for gallows humor….

            2. 5.2.1.2.2.2

              Greg,

              You’re the one that that digressed to bring Kelo decision into this argument.

              However, as demonstrated by the public reaction to the Kelo decision, the general public does not like the idea of people’s “private property” being taken from them to give to someone else.

              I would also suggest that the public would have been less upset if it had been a “government franchise” that had been taken away to give to another company.

              I think most people get that a “government franchise” is often the type of thing you receive in return for lavishing many $$$ worth of “speech” on a politician.

              I would also suggest that if there is a movement in Congress to pass a law to overrule Oil States, one of the key issues that will be publicized by such a movement and that will resonate with many people is that the Supreme Court has unconstitutionally declared a patent to be merely a franchise and not a piece of personal property.

              1. 5.2.1.2.2.2.1

                You’re the one that that digressed to bring Kelo decision into this argument.

                Actually, Mr. Malone was the one who brought up Kelo in the first instance. You can check the date stamps on the posts.

                [T]he Supreme Court has unconstitutionally declared a patent to be merely a franchise and not a piece of personal property.

                Your quote is rather like saying that the Supreme Court has declared oranges to be fruits and not agricultural products. Government franchises are personal property. You are simply demonstrating that you do not understand what actually happened in Oil States (although you are scarcely unique in that respect).

                1. The demonstration of “not understanding” extends to you too Greg – for the reasons that I have provided.

    3. 5.3

      I suppose City Council could appoint a board of “experts” – you know people with an undergraduate degree in accounting and a graduate degree in law, with a few years of experience working for the shopping mall developer. Then they could decide if the public is better served by paving over Ms. Kelo’s house. It would will be so much faster and cheaper. And no pesky juries.

      1. 5.3.1

        Yes, the city council can do that. Is this supposed to be a parade-of-horribleness argument? Are you under the impression that seizure by eminent domain requires a jury?

          1. 5.3.1.1.1

            Fair enough. Allow me, please, to disabuse you of that misimpression. There is no jury involved in a declaration of eminent domain.

            1. 5.3.1.1.1.1

              True, Kelo says you can’t stop the taking by refusing the offer, but is there a jury issue when the experts disagree as to compensation for the taking? Sounds like a legal issue to me, and a legal issue for a jury as well.

              1. 5.3.1.1.1.1.1

                …and the compensation for the taking that occurs at the institution decision point (separate from any other legal act like the final decision of the IPR process)….

                1. Whenever people parading horribleness or defending horribleness even raise the issue of whether any one (person, branch, the State, etc.) in government *can* do something, he or she immediately admits the futility of the discussion, as imaginary third parties to the discussion, namely, Hitler, Stalin, et al., eagerly raise their hands in answer: “oh, oh… I tell you what can do… many many things yes”

                  The propriety of any thing done has nothing to do with what one *can* do, and the fact the Supreme’s decided Kelo a certain way does not change the fact that the decision is morally repugnant.

        1. 5.3.1.3

          I do believe that the “it takes a jury” argument was the late Mr. Heller’s – even as I attempted to dissuade him from an over-focus on that notion, and to instead focus on asking the right question….

        2. 5.3.1.4

          The fact that any State has taken and seized property of an individual without a “jury” does not stand as an argument for the propriety of the State’s action in that regard.

          I
          M
          H
          O

          1. 5.3.1.4.1

            Our law (and really, everyone else’s law as well, come to that) is that an inventor only gets to claim what the inventor invented. When your contribution over the art is […….], then you get to claim […….]. When, however, your contribution over the art is only […], then you do not get to claim […….]. You may content yourself, in such circumstances, to claim […], but if you insist on claiming […….], then you will get nothing.

            In an IPR, the dispute is over whether the inventor has really made a contribution over the art as large as […….], or only as large as […]. It is not clear to me why a jury is supposed to be particularly well suited to make that determination. Surely this is a determination that requires a measure of expertise, if only to recognize what is the state of the art, such that one can gauge whether the inventor’s contribution is more akin to […….] or […].

            1. 5.3.1.4.1.1

              The system devoted to deciding whether or not a particular person has rights to intellectual property in an invention must be objective and independent because I AGREE with the logical implications of your post here, that either one HAS the rights to an invention or one DOES not. Government’s role is to identify and recognize when this is true and ensure rights are secured, protected, and enforced for those who have them.

              It clearly follows that Politics, and “policy” and any other subjective “concern” of any interest or lobby group cannot be allowed to interfere with those Rights which the Government is charged with recognizing and whose clear and objective sight of what is cannot be clouded by whim or wish.

              Achieving this Rule of Law rather than the rule of Men is just the kind of thing the Constitution was written for.

              Sure mistakes can and are made with the original recognition of the rights, but having the rights perpetually reviewable by a politically flavored executive branch does not seem up to snuff.

              1. 5.3.1.4.1.1.1

                [H]aving the rights perpetually reviewable by a politically flavored executive branch does not seem up to snuff.

                Now here you have put your finger right on the aspect of IPRs that gives me the greatest unease. Actually, however, you have just named two analytically distinct criticisms of IPRs, one of which troubles even me (a moderately voluble IPR booster), and one of which strikes me as much ado about nothing. It is worth teasing them apart and taking them separately in turn.

                First the dud criticism: every patent that has ever issued has been continuously subject to the possibility of post-grant invalidation up to six years after its expiration date. That is just part of the bargain. Therefore, criticisms to the effect of “when does it end?” strike me as rather a lot of bad faith.

                Turning, however, to the fact that the PTAB is part of the political branches of government, this really is a serious and legitimate critique. I confess to a good deal of unease about this.

                I do not have an altogether satisfactory response to this criticism, but I will note a few points. First, every administration that this nation has ever had has been broadly disposed to trying to run the patent system on a fair and stable basis. Some have put more emphasis than others on this or that aspect of patent law, but none have ever come in vowing to tear the whole system down. Therefore, to worry about significant political interference in PTAB operations with an eye toward shifting the balance one way or another between patentees and defendants is to worry about something that has had >100 years to happen, but which has never occurred.

                Second, even if we did away entire with post-grant operation of any sort at the PTO, the PTAB would still adjudicate ex parte appeals. If an administration really were bent on using the PTAB to turn the screws on patentees, they could still give the order to the PTO “reject everything and sustain all rejections on appeal.” This would be at least as disruptive to the system as deliberate interference at the post-grant stage. In other words, the possibility of fatal interference from the political level is simply unavoidable in an examination scheme, and therefore we simply have to assume a baseline of good faith as the necessary predicate to an examinations like system.

                If we grant that assumption of good faith, then there is little reason to worry about political interference. If we do not grant that assumption, then we have bigger problems than IPRs.

                1. In the context of the system with its checks and balances, branches, bodies and powers etc. the “dud criticism” is actually not simply a dud. It is a consequence of the executive being in charge of most of the administration of government and the desire not to have them always responsible for everything. There comes a time when they should take their finger out of the pie.

                  I submit it is for the same reason that you have unease for the second point, that it makes sense to try to implement the idea of setting a point where we can say OK to the executive, you’ve had your time to make sure the grant is proper and have duly executed the administration of these laws, the citizen is to go free now, and then having the independent judiciary be responsible or answerable to challenges thence forth.

                  Seems to be par for the course in at least allaying some of the unease of politicizing everything, we get to move from one political arm of government into relative peaceful existence which is moderated with the independent judiciary.

                  Having to rely on “good faith” and just “trusting” in this or that branch or body, when the branch or body is essentially political … is just the sort of vulnerability the Constitution was trying to help avoid.

                  Of course, given the treatment of individual rights and the Constitution by all branches of government, the erosion of rights generally, it is clear that what the Constitution set out to do, is a moot point.

                  “A Republic if they can keep it”, indeed.

  13. 4

    Are record numbers of patents being filed? Not from US origin. The reason the number is going up is foreign filings.

    Fact is that in real numbers they are dropping and in adjusted for GDP numbers, they have fallen trough the floor.

    1. 4.1

      Are record numbers of patents being filed? Not from US origin.

      Why should the origin matter? Patents are meant to incentivize innovation—full stop. They are not particularly meant to incentivize U.S. innovation, nor should they be. U.S. consumers benefit just as much from new technologies invented in Switzerland as from new technologies invented in the U.S.

      1. 4.1.1

        This has been explained to you previously Greg.

        While what you say is directly true, patent law remains a Sovereign specific law and MOST ALL groundbreaking and disruptive innovation comes from small players who focus on their immediate markets.

        That is why it matters very much which Sovereign has strong (as in strongly pro-innovation) laws and it matters very much how accessible (read that as the direct local effect that you want to ignore) those laws are.

        Small-cap US innovators simply are not as likely to “shop elsewhere” so it very much matters in the numbers when those particular filings drop.

      2. 4.1.2

        Actually Greg your statement is quite wrong. The granting of foreign rights is probably best seen as an exchange with a foreign country so that our companies can enjoy patents in foreign countries.

        Patents from foreign countries that are being filed here –not as first filings–may not help our economy. In fact they may hurt the economy because it may be cheaper to ignore their patents and create cheap rip-offs of their products.

        1. 4.1.2.1

          The granting of foreign rights is probably best seen as an exchange with a foreign country so that our companies can enjoy patents in foreign countries.

          Your conclusion does not follow from your premise. Why do we want U.S. inventors to be able to obtain (e.g.) Swiss patents? Because that is an incentive to their innovation. It is all of a piece. Some of it is means and some is ends, but in this case the distinction between means and ends is rather thin.

          Patents from foreign countries that are being filed here… may hurt the economy because it may be cheaper to ignore their patents and create cheap rip-offs of their products.

          No doubt true in a very shallow sense, but the same is true of domestic inventors. That is to say, it the government were to pull a fast one and announce tomorrow that all current patents expired on Friday, there would be a short term boost to the U.S. economy as the market is suddenly flooded with a cheaper supply of the latest technologies. This short term boost, however, would come at a long term detriment as R&D funding is suddenly redirected into ramping up manufacturing capacity for the most lucrative of your competitors’ products. What is true here, in any event, of patents for ex-U.S. innovation is equally true of patents for domestic innovation.

          1. 4.1.2.1.1

            It is all of a piece.

            Sure it is.

            As I said – your overall message is not itself wrong, you are just missing the local effect.

            Do you need me to hold your hand for that point?

            Again?

          2. 4.1.2.1.2

            Greg, really odd statements from you. You don’t seem to get the US economy part.

            I am not sure I want to go into your twisted logic. This is fairly simple. If the innovation that is being engendered is not part of the US economy then it turns us into a third-world country. Yes exchanging rights with other countries can help build us all up together.

            But, that has nothing to do with the point that the US origin filings are down and that is not a good thing for the US economy.

            Frankly, you have no clue how this works. I worked as a product manager for an international corporation that sold our products in over 100 countries. You model of this is ridiculous.

            1. 4.1.2.1.2.1

              Night Writer,

              Greg appears to want to hide by using factual statements outside of their direct context to the point being made.

              Note that he provides “truths” with which, the truths themselves may be proper.

              For example, a rising tide raises all ships.

              But that is not the point that is being made by noting the localized effect.

              Greg does not want to – and in fact, has not addressed this localized effect.

              Greg’s world also happens to coincide with part of the Efficient Infringer’s narrative: that IF one looks to “the whole world,” as if there were some One World Order and patent law were “HARMonized” across every Sovereign, then the administration of patent law would be far easier, and thus, patent law would be more beneficial to everyone.

              This is nothing more than the fallacy that the US Sovereign should change to match the rest of the world – driven in no small part by those who DO practice world wide patenting and THEIR desire to make their own business model costs ON that world wide patenting cheaper.

              There is nothing inherently wrong about a Big Corp wanting such.

              There is everything wrong with thinking that just because a Big Corp wants such, that all the spin from the Big Corp should be believed, and that innovation itself “cannot” suffer if the spin of “the rising tide” (of overall world patent administration is made more cost effective).

              So while it MAY in fact be true, that innovation anywhere will (eventually) help everywhere, such is simply not the germane point at hand when discussing the (STILL sovereign-specific) effects of US patent law and what the localized effect on US filings is trending.

              To borrow a slightly different analogy, that’s like saying “never mind that the canary in the coal mine just died – that just means that we also have present valuable natural gas, so let’s all go full steam ahead.”

              Who could argue that valuable natural gas is one effect that a dead canary provides? Such may very well be an entirely true statement!

          3. 4.1.2.1.4

            >>there would be a short term boost to the U.S. economy as the market is suddenly flooded with a cheaper supply of the latest technologies.

            Greg, analyze it in terms of US innovation. If the US declared all foreign rights void tomorrow, it would help the US economy at first. The problem would be that we wouldn’t be able to have patent rights in foreign countries.

            Again–think in terms of the US.

            1. 4.1.2.1.4.1

              [A]nalyze it in terms of US innovation.

              I would urge you to do the same, but think of U.S. innovation in big picture, not just this or that industry. There are several points to consider here.

              (1) Innovation builds on innovation, and that building is no respecter of borders. U.S. inventors build on the work of other U.S. inventors, but also on the work of Canadian inventors, or Chinese inventors, or Croatian inventors. If there is less incentive to innovation ex-U.S., then there will be less innovation ex-U.S., and if there is less innovation ex-U.S., then there will be less foreign innovation on which U.S. inventors can build. It is no good hoping to disincentivize innovation ex-U.S. and expecting that domestic innovation will chug on apace, unaffected. That is not how innovation works.

              (2) Imagine that the U.S. is hit with a plague that renders 25% of U.S. workers bed-ridden. Is that good for the U.S. economy or bad? To ask the question is to answer it.

              Now, suppose that a Swiss pharmaceutical firm invents a vaccine against that plague. As a result, U.S. productivity increases 25% at a stroke. But, of course, all pharma companies world-wide make their R&D decisions based on the U.S. market, because ours is the most profitable health care market in the world. If Swiss inventors could not get U.S. patents, then the Swiss company would never have invented the vaccine in the first place, and this invention that is enormously beneficial to the productivity of our economy would never have arrived.

              Is the U.S. economy better off or worse off in that no-U.S.-patents-for-Swiss inventors world?

              (3) Imagine two countries: Primo & Segundo. Primo’s principle exports are all agricultural. Segundo has a robust industrial sector devoted to agricultural implements and ag chemicals. The value of Primo’s production is such that it is a lucrative market for ag implements and chemicals. Segundese companies routinely obtain Primese patents, and the resulting profits, in turn, justify extensive R&D investments that yield continuous improvements in the quality and variety of implements and chemicals that Segundese companies sell. As a result of this continuous improvement in technology, Primo’s annual productivity doubles in value every five years.

              Now imagine that the Primese government decides to cut off Segundese inventors from Primese patents. As a result, in the first two or three years of the new policy, Primese farmers are able to buy more chemicals and better implements because the prices of these goods drops in the face of free competition.

              However, the corresponding loss in the value of the Primese market means that Segundese companies are no longer able to justify quite as much R&D expenditure. The pace of improvement in implement and ag chemical technology slows. As a result of that slowing technology, the rate of productivity growth in Primese farms also slows. Instead of the production doubling in value every five years, it now takes twenty years for production value to double.

              Is the Primese economy better off, or worse off (in the long term) for the new policy toward patents for Segundese inventors?

              1. 4.1.2.1.4.1.1

                Your view STILL does not take into account the localized effect and merely doubles down on “innovation must be global.”

                It’s a smokescreen, Greg – you still have not addressed the actual point that localized effects not only exist, but that they align with the types of innovators (and innovations) that most depend on localized effects.

  14. 3

    And yet, back in reality, record numbers of patents are being filed and a majority of those filed proceed to grant. Even more, a small minority of patents are even subject to an IPR petition, an even smaller number of those get inistited, and an even smaller number have some or all claims invalidated.

    The reaction from practicing patent attorneys to this decision has also been very illuminating. Do you really think your clients want you to echo their concerns that the patent system is dead? Or don’t you think they would rather hear that the decision is largely inconsequential to most of their IP rights? If the patent system is truly dead, then perhaps it is time for them to stop payin your rates.

    1. 3.1

      99% of inventors have no idea that their attorney and the PTO are part of the invention promotion scam. I believe it is unethical for a patent attorney to accept payment without explaining that the patent is bogus and will require $1M+ for a 15% chance of keeping it.

      1. 3.1.1

        I believe it is unethical for a patent attorney to accept payment without explaining that the patent is bogus and will require $1M+ for a 15% chance of keeping it.

        News flash: there is a sizable class of “small innovators” out there who continue to press forward with the worst junk imaginable even after their attorney tells them to stop.

        That tells you a lot about “small innovators.”

    2. 3.2

      Nice false equivalency.

      As if the “shhhh, be quiet about what is going on” is in any way a “right move” for attorneys (to preserve income or otherwise).

      Clearly, Quasar18 is not an attorney and has never dealt with a situation in which one is entrusted to look after and/or maximize a client’s rights.

    3. 3.3

      Any patent prosecution attorneys willing to warranty their work? If so I’ll send you dozens of inventors. I am working with over 50 inventor clubs representing thousands of inventors to deal with the aftermath of Oil States. We are in despair.

      1. 3.3.1

        Warranty their work. We already do that in the form of malpractice insurance.

        The problem is not with our work, but with the Congress, PTO, and courts.

        We can only do the best we can under the current circumstances.

        And certainly I don’t make false promises.

      2. 3.3.2

        I am working with over 50 inventor clubs representing thousands of inventors to deal with the aftermath of Oil States. We are in despair.

        Get a life.

      3. 3.3.3

        What a moronic statement. A person can only warrant (note, the verb form is “warrant”, the noun form is “warranty”) that over which he has control. To make promises about other things that are beyond his control would be foolish.

        It’s impossible to predict how an adjudicatory body will rule on ANY patent – that’s out of the attorney’s hands. As is the inventor’s decision to conduct a pre-drafting prior art search, and how much to spend on that search.

        Will your inventors pay their attorney $1,000,000 up front, because they know for certain they’re going to make ten or twenty times that off their invention?

        1. 3.3.3.1

          Noted. No warrant available. I’ll continue to spread the word. Patents are not warranted. They are for suckers.

          1. 3.3.3.1.1

            Patents have been, are now, and always will be a “Risk/Reward” type of thing.

            What you see now (and misaim upon) is that the calculus has been changed.

            It is not difficult to see why, or by whom (no matter how short sighted that may be – with shortsightedness measured by those who understand innovation).

            But markets are only run in part on innovation. They are also run on lots of factors that those have have “already made it” have in more abundance than someone who may only have the next groundbreaking (patent) thing.

            The rub of course, is that if one abandons patents – and what they were meant for (particularly originally meant for in the US Sovereign experiment), then “competition” will settle back to those other factors of which the landed and established have in relative surplus.

            Which is reflected in the Guild mentality. There is no historical accident that patents and guild-breaking went hand in hand, which is one of the odd dichotomies that anti-patentists like Malcolm never want to admit (or explain). Malcolm’s path LEADS directly to that which he criticizes: a concentration of wealth among a small ownership class. And the single form of innovation most accessible to those NOT in that class is the single form of patent that riles Malcolm up the most.

            Joachim (albeit sometimes a bit high brow) captures the thought nicely with his “resetting” mechanism discussion.

    4. 3.4

      And yet, back in reality, record numbers of patents are being filed and a majority of those filed proceed to grant.

      Correct. Because while the new standard may be difficult to circumvent for most business method patents, it isn’t a substantive hurdle for most inventions for technology – merely a procedural one.

      The roadmap for how to get a good patent on technology is pretty clearly laid out: explain the context; be specific about the point of novelty; and explain the technical merit. If you can do all three of those things, your patent will most likely be issued – eventually – and upheld by the courts – eventually. Outside of business methods, the critical choice of filing vs. not bothering, based on the merit of the invention, hasn’t materially changed.

      Of course, the landscape has meaningfully changed. Obtaining and enforcing that patent is now more expensive because applicants and patentees must fight and traverse spurious § 101 rejections. Nevertheless, the business value of a good patent still far outweighs the costs, so it’s still worth pursuing… if you can afford it.

      That latter qualification is what, I suspect, has changed the most. I would guess that well-funded entities continue to patent at the same rates, including continuing the trend of more filings per year – and that small entities and micro-entities are more discouraged than ever, due to shoestring budgets. So while growth has continued, the demographics have shifted. And that’s really a shame.

      The reaction from practicing patent attorneys to this decision has also been very illuminating. Do you really think your clients want you to echo their concerns that the patent system is dead?

      It’s hardly dead – but it is now significantly more expensive and significantly less reliable.

      I don’t like wasting time and money: neither mine nor my clients’. I’d prefer a system where I can get my clients their deserved patents faster, and where those patents are less vulnerable to spurious challenges – even if it meant billing less for prosecution. Instead of drafting three applications and then arguing about § 101, I’d much prefer to spend my time drafting four applications.

      Now here’s the kicker: I also strongly support a general move toward more disclosure. But I believe that we could have gotten there much more directly, and with much less collateral damage, by different legal means.

      1. 3.4.1

        David. I agree completely with your assessment. I think it is important to point out that these changes have little to do with Oil States.

        To anon and Josh above, of course clients need to be informed of the risks but how is saying “the sky is falling, why bother with patents now” an accurate assessment of the risks?

        And How is telling clients, yes Oil States said IPRs are ok, but that is the reality we were in anyway, and besides, most patents never have an IPR petition filed against them let alone initiated, a misstatement of the risks?

        1. 3.4.1.1

          That would be an acceptable disclaimer: “If your invention is valuable then the patent will not protect you. It is not a property right. It is not the right to exclude big corporations from copying and profiting from it. But if your invention is not commercially valuable it is a $10,000 certificate you can hang on the wall.”

          1. 3.4.1.1.1

            It is a shame that attorneys you have worked with had not informed you that 1) it is difficult to assert a patent against an entity with deep pockets and 2) that patents have no value outside of the commercial product that they are designed to protect.

            If there ever was a perception that 1) patents are cheap to enforce and 2) are not a lottery ticket, then inventors are finally waking up to what has always been the case.

            1. 3.4.1.1.1.1

              It is F A R beyond the picture that you want to paint Q – it’s as if you are trying to paint the picture that the law itself has not changed at all.

              Bizarro.

              1. 3.4.1.1.2.1.1

                Your response to:

                “If your invention is valuable then the patent will not protect you. It is not a property right. It is not the right to exclude big corporations from copying and profiting from it. But if your invention is not commercially valuable it is a $10,000 certificate you can hang on the wall.”

                was:
                1) it is difficult to assert a patent against an entity with deep pockets and 2) that patents have no value outside of the commercial product that they are designed to protect.

                If there ever was a perception that 1) patents are cheap to enforce and 2) are not a lottery ticket, then inventors are finally waking up to what has always been the case.

                Your are cloaking the fraudulent promise that the client believes and selling him something he doesn’t need and can’t use.

                1. Still not sure I follow… who is selling the client promises? Who is misrepresenting the nature of the patent grant?

                2. A biologist that sells homeopathic remedies knowing that his product contains less than one atom of the active ingredient is behaving unethically. Even if the customer is convinced it works.

                  A patent attorney selling patents that he knows are fraudulent in light of Ebay and unenforceable in light of PTAB is behaving unethically. Even if the inventor thinks he is special and the government and courts will uphold his promised rights.

                3. Now you have lost me, Josh.

                  I know of not a single one patent attorney who sells patents as you seem to be implying.

                  It is not within the authority of a patent attorney to grant any patent, and what patent attorneys do should not be confused what you only think that you are buying.

                  Are you at liberty to share your attorney agreement? I could probably point out the exact language for you….

                4. Yea you are clearly confused to say the least…

                  Patent attorneys don’t sell patents and I would reread Ebay if I were you, assuming you ever read it.

                  Back in the real world, courts have still been awarding damages and even treble damages for willfulness, if you could believe it.

      2. 3.4.2

        “Now here’s the kicker: I also strongly support a general move toward more disclosure. But I believe that we could have gotten there much more directly, and with much less collateral damage, by different legal means.”

        David, I agree. As I’ve written elsewhere, it is a shame that the Supreme Court decided to make what should have been Section 112 issues into Section 101 issues. Had the debate been over what was sufficient disclosure to support at claim or what makes a claim definite or indefinite, there could have been a healthy debate that could have resulted in objective rules that could improve the quality of patents and makes sure that the the public receives its part of the patent bargain, i.e., a disclosure of what the inventor has invented that can be understood by a person of ordinary skill in the art.

        Instead we have debates over what makes a claim “abstract”, which, given that the Supreme Court has provided no definition of the term “abstract” is the equivalent of arguing how many angels can dance on the head of a pin.

        1. 3.4.2.1

          Irrational Person: As I’ve written elsewhere, it is a shame that the Supreme Court decided to make what should have been Section 112 issues into Section 101 issues.

          Say what? Where was the 112 issue in Prometheus v. Mayo?

          Never ceases to amaze: you guys are fr cking clu el ess.

          1. 3.4.2.1.1

            MM,

            Speaking of clueless. Thanks again for reminding how important it is for me to vote for 4 more years of Trump. Can’t wait for him to appoint some more justices like Gorsuch.

      3. 3.4.3

        “Now here’s the kicker: I also strongly support a general move toward more disclosure. But I believe that we could have gotten there much more directly, and with much less collateral damage, by different legal means.”

        Do you see Alice having pushed the median application towards greater disclosure? From my limited perspective (both limited in number of data points, and limited to Business Methods scope), there seems to be a greater contextualization of black boxes in newer applications. But the proportion of applications disclosing black boxes that output business themed results seems the same.

        1. 3.4.3.1

          Ben,

          Are you still confused that a patent is not an engineering document?

          You do understand the point that I have provided many times now that since the Supreme Court empowered PHOSITA, that the same empowerment means that applicants have to provide LESS.

  15. 2

    > and perpetual favor of the Chief Judge of the Patent Trial and Appeal Board

    Yep. This, right here.

    Compare the volume of PR about patent trolls over the past two decades, written in support of “patent reform,” with the amount of writing about the damage wrought by uncertainty in issued patents. I don’t mean the number of patents issued, or where the bar should be set – I mean:

    (1) Uncertainty over whether a filed application will issue as a patent with decent claim scope, and

    (2) Uncertainty over whether an issued patent will be enforceable.

    Far too little has been written about those topics, because the enormity of the damage wrought to the business community from those two factors – dramatically exacerbated Alice, but also by KSR – is grossly underappreciated.

    Companies have no idea if their products will get patented, nor if their patents will be upheld.

    Companies have no idea if their competitors’ published applications will issue, nor if their competitors’ patents should be taken seriously or can get invalidated by IPR.

    Potential licensees have no idea if they’re buying a valuable right – one that they could assert against non-licensing competitors – or just a piece of paper.

    The irony is that the quintessential story of patent trolling that kick-started patent reform and hence Alice is the BlackBerry lawsuit – NTP v. Research in Motion – is more likely to recur, thanks to a decade of patent reform.

    Back the early 00’s, RIM was so disrespectful of patents that it ignored NTP’s offer to license for something like $600,000, and ended up on the losing end of a $612,000,000 verdict. If those actors played out that scenario again today, RIM would have even less interest in licensing up front. It would presume that NTP’s patents could be knocked down in IPR, or that the federal courts would invalidate it under § 101, or that a prior art defense could be Frankensteined together out of haphazardly chosen references. So they’d be even less inclined to license, and the whole matter would end up in courts again.

    Maybe RIM would win this time; maybe not. What’s certain is that both parties would have lost in the form of grotesquely expensive litigation as compared with the much more efficient path of licensing.

    And regardless of the outcome, “patent reform” advocates like the Electronic Frontier Foundation would still proclaim: “Patent Troll Sues Valuable Technology Company Over Patents That Have Something To Do With Software, O the Humanity, We Need Much More Patent Reform Right Now.”

    Uncertainty harms everyone. Patents are more uncertain now than ever before. And nothing is being done about this at any level of government.

    1. 2.1

      Companies have no idea if their products will get patented, nor if their patents will be upheld.

      Uncertainty is a fact in every adjudication of rights.

      Companies have no idea if their competitors’ published applications will issue, nor if their competitors’ patents should be taken seriously or can get invalidated by IPR.

      Same, plus it sounds like your issue is that the office publishes applications? I mean the office could not publish the applications and that would end the uncertainty, right? There is a request not to publish checkmark.

      And regardless of the outcome, “patent reform” advocates like the Electronic Frontier Foundation would still proclaim: “Patent Troll Sues Valuable Technology Company Over Patents That Have Something To Do With Software, O the Humanity, We Need Much More Patent Reform Right Now.”

      There is, of course, an easy solution to protecting yourself from 101, 112b and 103 invalidations, and that is to fully describe the novelty down to each crossed t and dotted i and get a wide range of scopes through dependent claiming.

      But most overzealous prosecutors will use grossly large functional language in an independent, spend their dependents on completely pointless unrelated issues, then be surprised when their entire claimset constitutes an abstraction or fails to particularly point out the invention.

      The ire ought to be that the office allows the patent in the first place, rather than a complaint that the office eventually fixes it. The office allowing it in the first place is a function of the office not hiring lawyers (and not even then, as its lawyers that create the problem with their overbroad scopes in the first place).

      Take an engineer, put him in legal argument against a lawyer, in a changing legal landscape where they are not trained to actually read the decisions but instead get (late) memos about the holding of the cases secondhand, when the memos are filtered through a leadership that is intentionally pro-patent, and you shouldn’t be shocked that invalid patents issue in the first instance. You get what you pay for.

      Given that bad patents issue, you shouldn’t be upset the office eventually tries to fix it. Noticibly absent from your argument is a complaint that the PTAB doesn’t reach the right answer most of the time. If the PTAB is actually making correct corrections, the problem isn’t with the IPR, but with the timidity of the original grant process.

      1. 2.1.1

        > Uncertainty is a fact in every adjudication of rights.

        That’s an obvious straw-man argument. The fact that no process can be 100% uncertainty doesn’t mean that we shouldn’t strive to reduce it.

        Title searches for land boundaries and ownership have become both more efficient and more certain in the age of electronic databases.

        > I mean the office could not publish the applications and that would end the uncertainty, right? There is a request not to publish checkmark.

        No, that merely changes the nature of the uncertainty. With nonpublication, instead of knowing whether or not a competitor’s application will issue, you have no idea whether or not your competitor filed an application at all.

        Ideal system: You can see your competitor’s application, and the law is sufficiently consistent and predictable that you can make reasonably good guesses as to whether or not it will issue. (Also: You have a pretty strong assurance that issued patents will be upheld in court.)

        > There is, of course, an easy solution to protecting yourself from 101, 112b and 103 invalidations, and that is to fully describe the novelty down to each crossed t and dotted i and get a wide range of scopes through dependent claiming.

        Detail is good, but hardly a guarantee.

        Look at the McRO patent (6,307,576) – which presents an *extremely* detailed technical description by today’s standards, let alone by the standards in 1997 when it was filed. Still invalidated by the courts.

        Or look at the IV patent v. Symantec (5,987,610) – again, very detailed description of technology. In that case, even the district court upheld it under § 101 / Alice – and then the Federal Circuit invalidated it.

        > But most overzealous prosecutors will use grossly large functional language in an independent, spend their dependents on completely pointless unrelated issues, then be surprised when their entire claimset constitutes an abstraction or fails to particularly point out the invention.

        Funny you point that out.

        One of the hallmarks of my drafting practice is to make the best possible use of dependent claims. I find the typical stream of “claim 1, wherein the server is a webserver… claim 2, wherein the webserver serves HTTP…” practice – it’s just pointless and wasteful. I work hard to present 17 distinct improvements of the basic idea, each of which has a technical argument for why that variation is better.

        You know how often examiners even bother looking at those claims for the purpose of § 101? Practically never. What I get is:

        “Independent claims 1, 8, and 15 are invalid because (step 1 / step 2a / step 2b). Dependent claims 2-7, 9-14, and 16-20 fail to present significantly more and are therefore rejected under § 101. The End.”

        Typically, 95% of examiners won’t even bother to look at them. There is no “considering the additional features of the dependent claim both alone and in combination with the parent claim.” There is not even an acknowledgment that the dependent claims are any different. I get an actual blanket rejection, even though the MPEP more or less explicitly prohibits it.

        I celebrated the Berkheimer decision as cracking down on this specific practice, and I imagine that it will improve. But to date… no, examiners overwhelmingly ignore dependent claims in their § 101 analysis.

        Given that bad patents issue, you shouldn’t be upset the office eventually tries to fix it. Noticibly absent from your argument is a complaint that the PTAB doesn’t reach the right answer most of the time.

        No, see, that’s my point: the PTAB doesn’t reach the “right” answer because the “right” answer is extraordinarily subjective and undefined, under our new § 101 standard.

        The only way to get the “right” answer under our current system of law is to exhaust the legal process. Until that happens – until no more challenges or appeals can be filed – nothing is finalized, because the outcomes are often not predictable.

        1. 2.1.1.1

          (Clarification: McRO was invalidated at the district level before being correctly and wisely reinstated on appeal. My point is that that circumstance could certainly happen again today.)

          1. 2.1.1.1.1

            Look at the McRO patent (6,307,576) – which presents an *extremely* detailed technical description by today’s standards, let alone by the standards in 1997 when it was filed. Still invalidated by the courts.

            (Clarification: McRO was invalidated at the district level before being correctly and wisely reinstated on appeal. My point is that that circumstance could certainly happen again today.)

            But look at the McRO claims. I agree with you that the McRO *specification* disclosed an invention, but the reason it got in trouble at the district court (and the reason the appellate court had to pull some chicanery from a logic standpoint) is because the claims don’t have the detail of the specification.

            It’s one thing to say “here’s a particular way we translate the gut instinct to a computer” it’s another to say “we use rules to implement the gut instinct on the computer” which is akin to simply saying “apply it on a computer.” Had the claims limited themselves to a particular manner, there would have been no problem. Instead the federal circuit had to write in non-existent limitations in order to do the job the prosecutor should have done in the first place.

            “Independent claims 1, 8, and 15 are invalid because (step 1 / step 2a / step 2b). Dependent claims 2-7, 9-14, and 16-20 fail to present significantly more and are therefore rejected under § 101. The End.”

            Well if you didn’t start off with the overbroad functional language you wouldn’t get the Independent Claims… language (or if you did, you have an Enfish “untethered from the language of the claims” argument), and if your Dependent claims actually limit to a particular nonconventional means, then you have a strong argument against Step 2B.

            No, see, that’s my point: the PTAB doesn’t reach the “right” answer because the “right” answer is extraordinarily subjective and undefined, under our new § 101 standard.

            I disagree. It may *appear* to be subjective because there exist some members of the federal circuit that seek any reason to keep a patent valid rather than apply a de novo review to a legal question that a) was probably never made in the first place or b) was made by a non-lawyer in the first instance, and it is true that if you pull the wrong set of judges they will allow an ineligible claim to stand, but that’s true of any set of judges for any legal question.

            Are you arguing there is serious uncertainty about claims like those in Digitech, or Electric Power Group? The late language in Electric Power Group (distinguishing means from functional result) controls the majority of computer cases.

            Nobody comes to me with an independent claim describing, e.g., the Google Maps driving directions algorithm. Everyone comes to me with the concept of writing *some kind of algorithm* in order to achieve a result such as driving directions. The reason is pretty clear to me – the former is easily designed around and therefore commercially worthless. The latter cannot be designed around is extremely valuable. Continued attempts to improperly try and get the latter doesn’t make the standard subjective.

            1. 2.1.1.1.1.1

              Your fave “Electric Power Group” has been distinguished.

              You won’t like the reasons why.

            2. 2.1.1.1.1.2

              I agree with you that the McRO *specification* disclosed an invention, but the reason it got in trouble at the district court (and the reason the appellate court had to pull some chicanery from a logic standpoint) is because the claims don’t have the detail of the specification.

              Okay, let’s look at the claim:

              1. A method for automatically animating lip synchronization and facial expression of three-dimensional characters comprising:

              * obtaining a first set of rules that define output morph weight set stream as a function of phoneme sequence and time of said phoneme sequence;

              * obtaining a timed data file of phonemes having a plurality of sub-sequences;

              * generating an intermediate stream of output morph weight sets and a plurality of transition parameters between two adjacent morph weight sets by evaluating said plurality of sub-sequences against said first set of rules;

              * generating a final stream of output morph weight sets at a desired frame rate from said intermediate stream of output morph weight sets and said plurality of transition parameters; and

              * applying said final stream of output morph weight sets to a sequence of animated characters to produce lip synchronization and facial expression control of said animated characters.

              Seems quite detailed to me. What’s the problem?

              Let me guess: “More detail, more detail.” And let me head that off at the pass with two preliminary answers:

              1) The specification certainly provides more detail in the form of a lot of mathematical equations that provide a specific embodiment of the claim elements. You’d guess that these parts would be helpful, as they demonstrate both written description and possession for the purposes of § 112.

              Ironically, those parts of the specification were cited as part of the district court invalidation – to wit: “This invention looks like math, and math is abstract.” Thankfully, the Federal Circuit understood the invention as a technical solution to a technical problem.

              And the district court’s error here looms large at the PTO, too. I’ve lost count of how many rejections I’ve seen that involve a software-based solution to a technical problem, and that are rejected because “the claims recite manipulating data, and manipulating data is abstract.” It’s at least 30 rejections over the last several years.

              How would you reconcile this demand for “detail” with the fact that more specific claims are more likely to provoke an Alice rejection – at least, from examiners – under the current standard of law?

              2) How do you reconcile the incessant demands for “more detail” in the field of software with standards for acceptable claim language in other fields?

              Electronics patents routinely feature claims with elements like: “…a voltage regulator component that regulates voltage while maintaining input impedance within an acceptable range.” Not only are those electronics-focused claim elements not scandalous – they are not even noteworthy. They are commonplace and accepted, because PHOSITA in electrical engineering would understand what that meant. Similar claim language – with this kind of high-level, and either functional or results-oriented focus – is also acceptable in both mechanical and chemical arts.

              And yet, for software, people demand “more detail” until every claim element is explained in excruciatingly minute detail.

              How do you explain your expectation that functional claim language for software requires a much higher standard of specificity, while common practice for functional claim language for all other technical arts is relaxed and comfortable?

              1. 2.1.1.1.1.2.1

                Similar claim language – with this kind of high-level, and either functional or results-oriented focus – is also acceptable in both mechanical and chemical arts.

                I will let someone else better informed than I speak to the issue of the mechanical arts, but I will press back about your claim vis á vis the chemical arts. One certainly encounters such language often enough, but that sort of language is proving increasingly dangerous in practice. See, e.g., Amgen Inc. v. Sanofi-Aventis LLC, 872 F.3d 1367 (Fed. Cir. 2017).

                The words “PHOSITA would understand what that meant” as an excuse for less detail are a dangerous preliminary to an avoidable loss.

                1. Hmmm,

                  I think that I see your point Greg. You admit to the use even in the chemical arts, but want to say that even in the chemical arts, such use is becoming “dangerous.”

                  However, your statement of “The words “PHOSITA would understand what that meant” as an excuse for less detail are a dangerous preliminary to an avoidable loss.” do not fly for the proposition that you want such to have.

                  The fact that the score board has been broken and it is “dangerous” to do what is proper does NOT mean that acting to avoid an “avoidable loss” is the right or even prudent thing to do.

                  That is merely being lazy in itself, turning off the critical thinking and marching lockstep up lemming hill.

                  “More detail” is precisely NOT what the Supremes themselves invited with KSR.

                  You start bowing to every turn of the Supremes (with your critical thinking turned off) and pretty soon, you will be left with nothing but a Gordian Knot of contradictions.

                2. Oh? Well, let’s take a brief meander down the path of recently issued patents in the mechanical arts.

                  There’s 9,909,355 (“Door for vehicle steps”):

                  A step protector for an agricultural tractor having a cab and steps adjacent the cab for an operator to climb up to and down from the cab, the protector comprising; a cover pivotally mounted to the vehicle for movement between an open position allowing the operator to climb the steps and a closed position covering the steps from top to bottom so as to prevent debris from accumulating on the steps while the vehicle is driven an actuator to move the cover between the open and closed positions, wherein the actuator extends behind the steps.

                  There’s 9,937,421 (“Haptic chair for motion simulation “):

                  A device for providing the illusion of motion, wherein the device comprises at least two movable parts for stimulating vestibular sense and kinaesthetic sense independently, each of the at least two movable parts being displaceable according to at least two degrees of freedom, each of the at least two movable parts being displaceable independently relative to each other, wherein the at least two movable parts include a moving headrest for stimulating the vestibular sense and at least one moving armrest for stimulating the kinaesthetic sense.

                  There’s 9,918,554 (“Functional chair for human body correction and thermal therapy”):

                  A functional chair for human body correction and therapeutic efficacy promotion by applying heat, comprising: a main body which includes a sitting plate and a waist plate; a heating means configured to transfer the heat to a human body and including a ceramic heating element installed in the sitting plate and the waist plate; and a control unit which maintains a temperature of the heating means at 100 to 250.degree. C. and displays an operating status, wherein the main body comprises at least one of an angle adjusting unit configured to adjust an angle of the waist plate, an up-and-down adjusting unit configured to adjust a height of the waist plate and a leg unit configured to adjust a height of the sitting plate.

                  There’s 9,952,026 (“In-flight insulation generation using matrix-based heat sink for missiles and other flight vehicles “):

                  An apparatus comprising: a heat sink configured to absorb heat, the heat sink comprising a matrix that includes a porous structure having multiple pores at least partially filled with one or more phase change materials; wherein the heat sink is configured to convert the matrix into an insulator that comprises an aerogel as the one or more phase change materials change state and exit the porous structure due to the absorbed heat.

                  There’s 9,957,059 (“Fuel tank, fuel pipe, and aircraft”):

                  A fuel supply apparatus comprising: a fuel tank that stores liquid fuel therein, wherein at least a portion of an inner wall of the fuel tank in contact with the liquid fuel is a hydrophilic surface configured to solidify water thereon; a drain port that is fluidly coupled to the fuel tank and configured to discharge the water from the fuel tank; and a fuel pipe attached to the fuel tank, the fuel pipe directing the liquid fuel in the fuel tank to a fuel supply destination, wherein at least a portion of an inner wall of the fuel pipe is made of a material having water repellency, or is subjected to surface finishing for imparting water repellency.

                  Sacre bleu! O, the humanity! Functional language everywhere! There’s “a (name) configured to (broad function)” language (without reciting “means”); there’s “a (name) that is (property)” language; there’s even “the (name) achieves (result)” claiming.

                  These are but a few of maybe 25 examples that I found in a casual search of the mechanical arts. As you can tell from the patent numbers, they’ve all issued within the last two months.

                  Quick, someone call Mark Lemley and the EFF to come protest all of this evil functional language in the mechanical arts! Or… don’t bother. It’s not software, so they don’t care.

      2. 2.1.2

        Random,

        While there is “timidity” you yourself run a major conflation with that timidity and what you FEEL should be patentable and at what level a patent document should be at.

        There is a mountain of difference between those views.

        For example, my views on the law remain firm even as I have always been a champion of fixing the problems of examination AT the examination stage (rather than the entirely bizarre, after the horse has left the barn, post grant stage.

        Further, since you apparently have never worked in the real world in a firm that makes real products, has real quality programs and deals with real after-sales issues, you would – and should -note that all of the cheerleading FOR the post grant mechanisms (including the intimation from you of ‘gee you shouldn’t be surprised) are some of the most asinine statements imaginable.

        NO real world company would survive with the model that the USPTO has adopted with post grant review as a “quality” mechanism; since there is ZERO tie-back and ZERO accountability on the examiner through this “quality” process.

        1. 2.1.2.1

          Anon,

          Good points. And the Supreme Court invited “less detail” in at least two different ways in KSR:

          1. By removing the limits of TSM that required Examiners to find the motivation for combining in the prior art, the Supreme Court effectively freed Examiners to use the Applicant’s application to find motivation to combine references, thereby discouraging an Applicant from providing more disclosure in the the Applicant’s application that could be used against the Applicant, and
          2. By giving the legal version of the PHOSITA superpowers not present in a real-life PHOSITA, the Supreme Court should also have logically held that, given such super-human PHOSITA, the requirements of 35 USC 112 should also be minimal given that such a super-human PHOSITA could understand so much from even the sketchiest of disclosures in an application, be it a published application cited against the applicant or the applicant’s own application.

          In addition and ironically, given that in the sciences we live in an age in which the real-life PHOSITA is increasingly specialized, even within a given fields such as biology, chemistry and physics, the Supreme Court made the legal version of the PHOSITA a super-generalist aware of all new developments in his/her own field and but in virtually all other fields.

          1. 2.1.2.1.1

            [T]he Supreme Court invited “less detail” in at least two different ways in KSR…

            I think that KSR is one of the worst decisions that the Court has ever splattered on the canvas of U.S. patent law, which is really saying something because they have written some real doozies. Nevertheless, I am not clear on why we are talking about KSR when it comes to detail. Even if you survive the nonobviousness requirement (KSR‘s focus), you also have to comply with the written description requirement. The details of what you have invented have to be present in your claim, or else your claim fails under §112, even if it survives §103.

            By giving the legal version of the PHOSITA superpowers not present in a real-life PHOSITA…

            Whoa, there. Stop the presses. There are no “real-life PHOSITA”s. Does not exist and never has. The PHOSITA has always been a legal fiction. Panduit Corp. v. Dennison Mfg., 810 F.2d 1561, 1566 (Fed. Cir. 1987) (“A § 103 determination involves fact and law…. With the involved facts determined, the decisionmaker confronts a ghost, i.e., ‘a person having ordinary skill in the art,’ not unlike the ‘reasonable man’ and other ghosts in the law”).

            To suppose that the PHOSITA corresponds to some real-life person is the very germ and origin of the Court’s mistake in KSR. To write, as Justice Kennedy did, that “[a] person of ordinary skill is also a person of ordinary creativity, not an automaton,” betrays that Justice Kennedy (and the rest of the Court) did not know the first thing about patent law. PHOSITA’s are not real people, and their total lack of creativity is part of their definition ex hypothesi.

            As soon say that the “reasonable person” of negligence tort law likes a lot of garlic in spaghetti sauce. It is a category error to attribute such predicates to wholly fictional subjects.

            1. 2.1.2.1.1.1

              I see that some of the “detained” posts are now clearing a certain filter….

              112 is INVERSE to 103.

              The more power in 103, the less necessary to satisfy 112’s written description.

              Stop the presses. There are no “real-life PHOSITA”s.

              I agree. Perhaps Rational was trying to tie into one of the other elements of PHOSITA – “ordinary skill.” I know of NO art in which omniscience is possessed by – or can rationally said to be included within – anyone (legal or otherwise) and still be considered “ordinary.”

              I also “get” your “definition ex hypothesi” and think that one element missing in the whole 103 world is the fact that 103 is meant to limit the “world” of existing prior art that can be used to reject an innovation***. Instead, the Court (being as typical, an anti-patent court), attempted to amplify 103 as a reason to NOT provide patent protection.

              *** similar to, but distinct from 102. ALL the entire art in the world that comes before the innovation is prior art for 102 IF “… …”

              But if NOT “… …” then 102 does not apply (even if the art is still in the world and still comes before).

              103 is not – and was never meant to be – well, just take the claim, break it up into bits and pieces and find “102-ish” art for those bits and pieces, string together those references (no matter how many, or how self-contradicting as a group, or no matter that only a cutting edge top of the line master might consider doing something where the art is reflected (again – “ordinary”) by a legal person of much different pedigree.

              (I state “102-ish” as a short cut – the actual discussion is a bit too nuanced for a blog post).

          2. 2.1.2.1.2

            Should read:

            In addition and ironically, given that in the sciences we live in an age in which the real-life PHOSITA is increasingly specialized, even within a given field such as biology, chemistry and physics, the Supreme Court made the legal version of the PHOSITA a super-generalist aware of not only of all new developments in his/her own field and but in virtually all other fields.

            1. 2.1.2.1.2.1

              aware of not only of all new developments in his/her own field and but in virtually all other fields.

              Contrast this with the USPTO’s restriction practice….

              Tell me again how “too difficult to search” comes close to “executing” the law as written by the Supreme Court there…

  16. 1

    It is truly sad that some of the same officials who are sworn to support the Constitution are slowly but inexorably dismantling our Constitutional Rights. Perhaps they will soon tire of this complication and reinterpret Article 6, Clause 3 as nothing more than a mere franchise, granted to those who are protected by the Constitution, that franchise subject to revocation at the whim of some bureaucratic agency.

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