Patently-O Bits and Bytes by Juvan Bonni

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52 thoughts on “Patently-O Bits and Bytes by Juvan Bonni

  1. 7

    I seem to be out of posts on the other thread.

    It seems that 2018 is showing a significant decrease of 3-4 percent.

    1. 7.1

      Perhaps your “canary in the coal mine” exacerbates the observations of Greg, Paul (despite their intentions) and myself.

    2. 7.2

      Paul Morgan >>NW, these statistics are clearly defined as the % of all U.S. applications, not “based on foreign priority vs. non-foreign priority”

      No Paul they are not. The definition of U.S. applications appears to be applications that do not claim priority from a foreign application. I have made this distinction many times.

      1. 7.2.1

        NW, re the continued discussion on this other blog, I assume you areassuming that there are a significant number of applicants for foreign inventions that are filed in the U.S. without claiming any priority to a foreign application? But how often is that likely to occur? There are obvious logical reasons that is not usually done. Including that, just as in the U.S., many foreign countries would require special government approval to first disclose the invention in a foreign patent application.
        Also note that if the recent changes in patent law have made filing patent applications in the U.S. less desirable because patents are less valuable [which is not even in dispute, just the inconsistent facts], it would have the same effect on foreign applicant filing decisions as it does U.S. applicants. I.e., both should significantly decline on that basis, not the ratio changing.

        1. 7.2.1.1

          Also note that if the recent changes in patent law have made filing patent applications in the U.S. less desirable because patents are less valuable…, it would have the same effect on foreign applicant filing decisions as it does U.S. applicants. I.e., both should significantly decline on that basis, not the ratio changing.

          I grow hoarse repeating this point. I would like to think that it is an elementary observation that U.S. patents do not incentivize only (or even primarily) U.S. innovation, just as EP patents do not incentivize only/primarily EP innovation. U.S. inventors can obtain EP patents, and EP inventors (and CN inventors, and AU inventors, and ZA inventors, etc) can obtain US patents.

          A decline in the value of US patents might well depress the returns to R&D worldwide. There is no cogent explanation, however, of why a decline in the value of US patents should have a localized effect on US R&D above and beyond its effect on R&D ex-US. This is just sloppy thinking in the service of a self-interested agenda.

          1. 7.2.1.1.1

            Greg, your comments are just strange. Your position that the Constitution of the USA is enabling the Congress of the US to promote innovation in other countries is just strange.

            Sure the Congress can do this as part of foreign aid and this is probably a good thing to do, but what is recited in the Constitution pertains to the USA only.

            1. 7.2.1.1.1.1

              Sure the Congress can do this as part of foreign aid and this is probably a good thing to do, but what is recited in the Constitution pertains to the USA only.

              The relevant constitutional text is reproduced below, in its entirety.

              The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States; but all duties, imposts and excises shall be uniform throughout the United States;

              To borrow money on the credit of the United States;

              To regulate commerce with foreign nations, and among the several states, and with the Indian tribes;

              To establish a uniform rule of naturalization, and uniform laws on the subject of bankruptcies throughout the United States;

              To coin money, regulate the value thereof, and of foreign coin, and fix the standard of weights and measures;

              To provide for the punishment of counterfeiting the securities and current coin of the United States;

              To establish post offices and post roads;

              To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries;

              Please point out to me the text where the constitutional power is limited to U.S. inventors or U.S. authors.

              1. 7.2.1.1.1.1.1

                Greg,

                You are over-reading “pertains to the US” as pertains ONLY to US non-juristic persons.”

                Again, you seem to lack even a fundamental grasp of law and sovereignty here.

              2. 7.2.1.1.1.1.2

                Congress, if it wanted to keep the promotion of the arts and sciences only to US persons, they in fact could do so by explicitly stating it (never mind that it would violate out treaty obligations). Congress could, just as legitimately under the Constitution, promote the arts and sciences of Albanians by stating that only Albanian nationals could apply for U.S. Patents.

                1. Congress, if it wanted to keep the promotion of the arts and sciences only to US persons, they in fact could do so by explicitly stating it (never mind that it would violate out treaty obligations).

                  Sure. No one doubts that Congress could limit US patents to US persons. Congress did so in the past (although I consider it an improvement that we no longer so limit the US patent system).

                  This is all a digression from the matter presently in contention, however. NW contends that the “position that the Constitution of the USA is enabling the Congress of the US to promote innovation in other countries is just strange.” Having advanced this contention, he needs—as it were—to put up or $#ut up.

                  Point to the legal authority (constitutional text or binding interpretation thereof) that says that the constitutional power to promote the useful arts is limited to only domestic progress in the useful arts. Failing that, withdraw the assertion and admit the error like a grown up.

                2. Greg, the legal authority is the structure of the Constitution.

                  The powers of the president are to make treaties. The Congress is responsible for domestic laws– not interacting with foreign governments.

                  Law school was a long time ago, so I don’t remember the cases to cite.

                  Given the structure of the powers and the separation of foreign vs. domestic it is ludicrous —simply beyond absurd–to state that the Article I, section 8 refers to anything other than “promote” within the USA.

                3. I do agree that Congress could pass laws probably under different power to promote science in foreign countries.

                  Maybe broadly it could come under this power.

                  >To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

                  But, again, the Constitution always makes it clear when something is interacting with the USA. So the promote clause is clearly meant to be internal and not to extend to foreign Nations anymore than the clause to mint coin was meant to extend to foreign Nations.

                4. Congress is responsible for domestic laws– not interacting with foreign governments.

                  Art I, §8, cl. 3, “The Congress shall have power to… regulate commerce with foreign nations.” But who cares about little details like the actual words of the actual Constitution, when we have such a considered scholar to enlighten us with pearls of wisdom such as, “[l]aw school was a long time ago, so I don’t remember the cases to cite.” Words to ponder, those.

                5. Cheap shot there Greg especially considering you quoted the same portion of the Constitution I did in my second post.

                  Plus, you did not give us a substantive response.

                6. [W]e have such a considered scholar to enlighten us with pearls of wisdom such as, “[l]aw school was a long time ago, so I don’t remember the cases to cite.” Words to ponder, those.

                  My apologies. This is just petulant. I withdraw this remark. I stand, however, behind the assertion that NW’s position is totally without logical merit or legal support.

              3. 7.2.1.1.1.1.3

                The “patent bargain” is time-limited exclusive rights in return for an early enabling disclosure to “the public”. Science has always advanced by publication to the public, since long before the writing of the US Constitution. The publication of Papers by academic scientists, irrespective of their country of residence, advances science world-wide. Nobody can reasonably deny that.

                The patents clause was written with full appreciation of all this, and fully mindful that progress will be made by a US patent system, regardless of the residence or nationality of individual inventors named on the grant certificates of US patents. What disinterested, reasonably well-informed and intelligent bystander could deny it?

          2. 7.2.1.1.2

            I grow hoarse as well in reminding YOU Greg that your view is NOT universally applicable and is actually indicative of a bias towards large multi-national corporations.

            Further, you continue to show an amazing LACK of appreciation of the very nature of patent law being a sovereign-centric law.

            There is little doubt that you suffer from an “my eyeglasses work well for me” syndrome in your role as internal counsel to a Big Pharma entity.

            Instead of “growing hoarse,” I suggest that you use your two ears instead of your one mouth and recognize and incorporate the counter points (repeatedly) presented to you.

        2. 7.2.1.2

          We need facts. We need to know the number of applications that were filed without foreign priority but that were invented outside the US.

          Plus there many, many applications where some of the inventors are outside the US and some inside the US.

          (Plus there are many other motives for companies to file in the US first. And the US can go down hill and still be desirable relative to other countries. Etc. This speculation is ridiculous.)

          (Plus a company can file in the US and at the same time file in a foreign country of origin. In fact I used to do this for one of my clients on each application they filed.)

          1. 7.2.1.2.1

            [T]he US can go down hill and still be desirable relative to other countries. Etc.

            Exactly. This is exactly correct. This is also why numerical totals of US patents filed on US-made inventions compared to ex-US-made inventions are irrelevant. These numbers will not tell one anything worth knowing. What is the implication of a change in that ratio?

            This speculation is ridiculous.

            Then why are you speculating (that is all it is, idle speculation) in post #7 that the total is down 3% to 4%?

            Granted, data is always better than speculation. To be fair to the PTO (or Dennis, or Paul, or whomever it is that you are criticizing), the number that you want is hard to get. One is obliged to list the nationality and address of inventors on an ADS. One is obliged to list priority claims on an ADS. One is not obliged to answer the (somewhat metaphysical) question of where an invention is made on an ADS.

            There is no easy way to track the data that you want. One would have to review—application by application—the identities of the inventors. Then one would have to contact them and ask “where, physically, were you, when you did the work giving rise to this patent application?”

            Probably 95% of those contacted would not return your call or e-mail. Would the 5% of respondents be a representative sample of the overall whole? How would we know?

            The number you want is, in practice, impossible to obtain.

            1. 7.2.1.2.1.1

              You confuse “difficult” (or even possible) to obtain and relevancy.

              It remains highly relevant where localized innovation takes place.

              This is born out in most all industries (with the possible exception of Pharma), wherein it has been well documented that a transfer of a manufacturing function often leads to other losses — including R&D for an initial host country.

              You continue this excessively odd over-reliance on Sovereign to Sovereign comity for engaging in a Sovereign’s specific patent process with this notion that any innovation anywhere brings benefits equally everywhere.

              You have no touch with the actual economic forces in play here Greg.

              The plain reality is that localization effects are real. It really does matter – Sovereign to Sovereign – just where innovation occurs.

        3. 7.2.1.3

          Plus, Paul, I don’t have time to sort this out by getting all these numbers.

          But my biggest point was that people like Lemley cannot be trusted to try to get at what is really happening.

          1. 7.2.1.3.1

            What’s really happening is NW is losing his mind.

            Nothing new about that tho.

            1. 7.2.1.3.1.1

              What’s really happening is Malcolm being Malcolm, with mindless ad hominem and NO meaningful contribution to an ongoing discussion.

              Yes, there is nothing new about that (even as Malcolm misses on what the “that” is).

    3. 7.3

      Look at those partaking in that discussion on the other thread (and their generally recognized views vis a vis THIS country’s efforts of providing an encouraging ecosystem for innovation within this sovereign):

      Paul Morgan: head IPR cheerleader and advocate for weaker patents

      Greg DeLassus: Big Pharma inside counsel and known advocate for international prominence of patent protection (which translates into the “I don’t care about particular weaker US patent law)

      MaxDrei: another internationalist and advocate of weaker US patent protection.

      The funniest thing is though, EVEN IF Paul is correct in pointing out the factual trend, the other interactions (as first indicated by Greg) actually show that a situation WORSE than your fears may be underway.

      Yes, I “get” that you may still feel that Paul is not presenting your arguments correctly.

      But if you look at what Paul is presenting, and take that on its face if even just for argument’s sake, Paul appears to be actually proving your point with his numbers taken in how he is presenting them.

      If I were you, I would probably continue to strive for clarity of the position that you want to make, but I would take a second to thank Paul for helping make your case.

      Especially given the general background of those partaking in the discussion, as none of them will actually state that your case is made with their “adjustments.”

      1. 7.3.1

        “Internationalist”?

        LOL

        1. 7.3.1.1

          Are you seriously implying that there is no Big Corp effects and/or desires as to shaping patent law?

          Really?

          Even you cannot be THAT much a Trump.

          1. 7.3.1.1.1

            He’s worried that you’re talking about mean ol uncle ad olph’s “international clique” aka the jewish elite aka “internationalists” (and in modern day leftist dog-whistle detection/listening “globalists” even though actual globalists these days are much more than a few jewish people and basically everyone knows that, even MM).

            Don’t you understand by now that literally everything comes back to the na zis (whities in MM’s mind, minus a few enlightened whities perhaps depending on the day of the week) vs the je ws for MM?

            Vid related, I don’t recommend for work:

            link to youtube.com

            1. 7.3.1.1.1.1

              It would be rather odd for him to jump to that, given the context here.

              With Malcolm, that oddity is a distinct possibility.

          2. 7.3.1.1.2

            Also, for a fun tie-in pay attention to the crowd in that vid above and the vid right here. Someone in the crowd “fills in the blanks” in both vids for those that don’t know what is being discussed.

            link to youtube.com

            Absolute pottery.

            Looks like the germans are looking into the subject of late as well in their prestigious journals.

            link to antisem19c.hypotheses.org

  2. 6

    Q: Who said the following:

    Last year, the American people elected [__] with a mandate to end the culture of corruption in Washington and return to a government of, by and for the people. The bold, transformative set of reforms that [are] introduced today will strengthen our democracy and return political power to the people.

    (actual quote)

    1. 6.1

      Who cares?

      1. 6.1.1

        Your response, while not surprising, only goes to reinforce your Trump-like status.

        The fact that the quote “sounds in Trump” should be a huge clue.

        Maybe YOU should be “more serious.”

    2. 6.2

      Come on people, can no one identify the speaker of this quote?

      Beyond the point to Malcolm (which he would refuse to grasp anyway), there is an interesting context to which this quote pertains to.

      1. 6.2.1

        Oh I’m sure it’s super interesting.

        1. 6.2.1.1

          It is. But I am not reallly expecting you to engage in any meaningful way.

  3. 5

    Washington (CNN)For the second day in a row, Justice Ruth Bader Ginsburg will not be at the Supreme Court as it convenes for oral arguments.

    She’s got a long way to go before she beats Clarence Thomas’ record.

  4. 4

    Position: Litigation surrounding Section 101 at the Supreme Court is an example of the tragedy of the commons.

    1. 4.1

      Oh, come on you gotta provide more than that.

  5. 3

    Hey maybe Iancu, with the backing of his gl I bert @rian toadies and re pu k-k-ke ig n0 ramuses, can convince Drumpf to declare a state of emergency in the patent system that requires immediate granting of 100,000 pending s0 ftie w0ftie patents and an indefinite shutdown of the IPR regime.

    Only then will America will get the apps it so desperately needs and we can put a stop to all this needless suffering.

    1. 3.1

      That one bucket of yours just does not hold water.

      1. 3.1.1

        But you know some people would support it, or at least wouldn’t criticize it.

        And you can be pretty sure who those people are, or what kind of people they are.

        No doubt you’d be howling about “ends and means” because you’re so very serious.

        1. 3.1.1.1

          But you know some people would support it, or at least wouldn’t criticize it.

          Meaningless reply, given that “some people” will do just about anything imaginable (as well as this ALSO attempts to “one-bucket” those who support something with the different group of those who may not criticize something). This is known as “doubling down” on your inanity, Malcolm.

          because you’re so very serious.

          Ah yes, your poker tell of “serious” which means that you have nothing meaningful to say (but feel the need to post something, and just cannot control your feelings).

          1. 3.1.1.1.1

            “some people” will do just about anything imaginable

            Right. And there’s a surplus of those kind of people ventilating over at Big Jeans place every day.

            People like you and your bff NW. Eric Guttag. Gene himself. You know, narcissist entitled types with a substantially lower intelligence than the average.

            1. 3.1.1.1.1.1

              You know, narcissist entitled types with a substantially lower intelligence than the average.

              You never do tire of your number one meme of Accuse Others, do you not?

              And what is it with your obsess10n of Quinn?

          2. 3.1.1.1.2

            this ALSO attempts to “one-bucket” those who support something with the different group of those who may not criticize something

            This is what happens when one of the two major political parties decides to scorch the earth and reject democracy because it’s the only way it can hold onto power.

            It’s easy to sit on your hands and watch the fire if you can afford to do that. Most people can’t. Quite a few patent attorneys can, however. And quite a few patent attorneys are simply so naïve or warped that they find a ra @ ci st mis 0gyn ist @ h0le “refreshing”. Rich white daddies. They’re very serious, after all!

            1. 3.1.1.1.2.1

              Rich white daddies

              Lol – like that isn’t the least bit Racy est, now is it… (and other Ism’s to boot).

            2. 3.1.1.1.2.2

              This is what happens when one of the two major political parties decides to scorch the earth and reject democracy because it’s the only way it can hold onto power.

              Is that anyway to treat Hilary and her DNC shenanigans?

              (in yet another point that Malcolm will refuse to grasp)

            3. 3.1.1.1.2.3

              “This is what happens when one of the two major political parties decides to scorch the earth and reject democracy because it’s the only way it can hold onto power.”

              Oh now the dems aren’t scortching the earth. Just the federal workforce.

              Although the cali dems did scortch the earth in the fires.

              “And quite a few patent attorneys are simply so naïve or warped that they find a ra @ ci st mis 0gyn ist @ h0le “refreshing”

              MM’s way of characterizing all of the non-liberal attorneys.

  6. 2

    CVSGs this morning in HP v. Berkheimer (101) and Texas Optoelectronics v. Renesas (when is an offer for sale under 271(a) “within the United States”)

    link to supremecourt.gov

  7. 1

    Specifio, the tool Rimon’s Kaufman uses, takes claims written by an attorney and generates a first working draft that attorneys edit and refine further. It only works for software inventions.

    This is the funniest thing I’ve read so far this year.

    1. 1.1

      Shell documents are OBSOLETE, I tells ya.

      Next year nobody will be drafting applications anymore. “Artificial intelligence” changes everything! Oh, and the roads will be filled with self-driving cars, too. Invest today!

      LOL

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