Guest Post on Patent Eligibility and Investment: A Survey

Guest Post by David O. Taylor, Associate Professor of Law at SMU Dedman School of Law. Professor Taylor recently drafted an article summarizing the results of a survey of venture capitalists and private equity investors. The survey explores how the Supreme Court’s recent patent eligibility cases have influenced firm decisions to invest in companies developing technology. -Jason

Numerous inventors, lawyers, companies, industry groups, professors, and judges have decried the Supreme Court’s recent patent eligibility cases—particularly its 2012 decision in Mayo Collaborative Services v. Prometheus Laboratories, Inc. and its 2014 decision in Alice Corp. v. CLS Bank International. These cases replaced the longstanding patent eligibility standard with a new one requiring, in particular, a so-called “inventive concept.”

Building upon judges’ views that they are bound by the Supreme Court’s new standard and their concerns that that standard is having devastating consequences, the American Intellectual Property Law Association and the Intellectual Property Owners Association believe the situation is so untenable that they have proposed that Congress overturn that standard.

Others, however, disagree. They effectively ask: To what extent have the Court’s cases shifting eligibility law actually impacted decisions to invest in the development of technology? Moreover, exactly how have these cases actually impacted investment decisions? And to the extent these cases have had a significant impact on investment decisions, has that impact proven to be positive or negative in the sense of increased or decreased investment?

Existing literature provides surprisingly little data even to begin to answer these questions. And, make no mistake, these questions are fundamental, and the accuracy of their answers is important. Answers to these questions will either support congressional intervention in the law of patent eligibility or counsel against it. Thus, the questions ought to be asked and—more importantly—answered by reference to hard data rather than gut feeling or prognostication. Quite literally, future innovation—perhaps even lifesaving innovation—hangs in the balance.

And so that is exactly what I have done: gathered data to help begin identifying accurate answers to these questions. In particular, I have conducted a survey of 475 venture capital and private equity investors to study the impact of the Court’s eligibility cases on their firms’ decisions to invest in companies developing technology. This survey is the first of its kind, and the data it has provided is sorely needed.

In an article summarizing my findings, I present detailed results of the survey and identify and consider four principal findings.

First, the investors who responded to the survey overwhelmingly believe patent eligibility is an important consideration when their firms decide whether to invest in companies developing technology. Indeed, overall 74% of the investors agreed that patent eligibility is an important consideration in firm decisions whether to invest in companies developing technology; only 14% disagreed. Likewise, investors reported that reduced patent eligibility for a technology makes it less likely that their firm will invest in companies developing that technology. For example, overall 62% of the investors agreed that their firms were less likely to invest in a company developing technology if patent eligibility makes patents unavailable, while only 20% disagreed. These results, while perhaps not surprising, nonetheless confirm one of the central premises upon which the patent system rests: that patents help to spur investment in development of technology.

Second, reduced patent eligibility correlates with particular investment behaviors in particular industries. Investors overwhelmingly indicated, for example, that the elimination of patents would either not impact their firm’s decisions whether to invest in companies or only slightly decrease investments in companies developing technology in the construction (89%), software and Internet (80%), transportation (84%), energy (79%), and computer and electronic hardware (72%) industries. But investors, by contrast, overwhelmingly indicated that the elimination of patents would either somewhat decrease or strongly decrease their firm’s investments in the biotechnology (77%), medical device (79%), and pharmaceutical industries (73%). Thus, according to these investors, on average each industry would see reduced investment, but the impact on particular industries would be different. And the life sciences industries would be the ones most negatively affected.

Third, the Supreme Court’s eligibility cases have impacted many firms’ investments and, more significantly going forward, their firm’s investment behaviors. Almost 40% of the investors who knew about at least one of the Court’s eligibility cases indicated that the Court’s decisions had somewhat negative or very negative effects on their firm’s existing investments, while only about 15% of these investors reported somewhat positive or very positive effects. On a going forward basis, moreover, almost 33% of the investors who knew about at least one of the Court’s eligibility cases indicated that these cases affected their firms’ decisions whether to invest in companies developing technology. These investors reported primarily decreased investments, but also shifting of investments between industries. In particular they identified shifting of investments out of the biotechnology, medical device, pharmaceutical, and software and Internet industries. Again, the life sciences industries represent the most negatively affected of all industries.

Fourth, investors familiar with the Supreme Court’s eligibility cases indicated different changes in firm investment behavior as compared to investors without this familiarity. As discussed above, about 33% of investors with this familiarity reported that these cases impacted their firms’ investment behavior, with these investors reporting shifting of investments away from the software and Internet industry along with the biotechnology, medical device, and pharmaceutical industries. Investors without familiarity with these cases, by contrast, overwhelmingly reported that decreased availability of patents since 2009 (prior to the Supreme Court’s eligibility cases) has not impacted their firms’ changes in investment behavior. Indeed, a full 95% indicated no impact on any change in their firm’s investments. Moreover, investors without familiarity with these cases indicated more often, as compared to investors with familiarity, that their firms have shifted investments into the software and Internet industries as compared to all other industries. In short, eligibility knowledgeable investors report the Supreme Court’s cases have resulted in reduced investment in software and the Internet, while unknowledgeable investors report increased investment in software and the Internet over the same time period. As investor’s transition from non-knowledgeable to knowledgeable (once they learn about the Court’s cases and their impact on patent eligibility), investment in software and the Internet will seemingly decrease. Thus, the life sciences industries are by no means the only industries impacted by the Court’s cases.

The results of the survey provide critical data for an evidence-based evaluation of competing arguments in the ongoing debate about the need for congressional intervention in the law of patent eligibility. Proponents of reform will no doubt tout the results of the survey as representing a clarion call for reform. The best that can be said by those that prefer the status quo is that most investors do not report changing their investment decisionmaking based upon the Supreme Court’s eligibility decisions. A significant part of this group of investors, however, represents those uninformed about the Court’s cases.

The reality is that the results of the survey highlight the importance of patent eligibility and the negative impact of the Supreme Court’s eligibility cases generally on investment, but particularly in the most important areas of technological development in terms of its impact on public health: the biotechnology, medical device, and pharmaceutical industries—the life sciences industries. That said, it is important to highlight that the results show the Court’s decisions have negatively impacted each and every area of technological development studied.

As a consequence, the results do support the idea that the time has come for Congress to at least consider overturning the Supreme Court’s new eligibility standard to prevent additional lost investment in technological development in the United States. Indeed, given the results of the survey, it seems likely that the Supreme Court’s eligibility decisions have resulted in lost investment in the life sciences that has delayed or altogether prevented the development of medicines and medical procedures.

Research funding disclosure: I prepared this Article supported by grants from Microsoft Corporation, the Tsai Center for Law, Science and Innovation, and the Clark J. Matthews, II Faculty Research Endowment Fund.

79 thoughts on “Guest Post on Patent Eligibility and Investment: A Survey

  1. 14

    So 2004 is your arbitrary date of the start of serious patent power waning? Seemed like a litigation heyday to me, but whatever.

    In all of these discussions, we never discuss the fact that the patent bar has priced the enforcement of even the best non-drug patents off the planet, or how $1000/hour patent counsel could have just a wee effect on patent related decision making by people involved with the system.

    Maybe it’s hard to see the relationship because the relationship is not causal- because a very mild reform of a very out-of-control system really had no material effect on behavior of very large, very complex markets.

    Maybe.

    1. 14.1

      Your sour grapes are coming through loud and clear.

    2. 14.2

      I think Martin it is a fair question to ask whether patents are needed anymore. And I think that we should have real scientific studies to try and answer that question as objectively as possible. What we have now is a bunch of money wh ores that publish papers that are not peer reviewed and that have no ethical standards or consequences for unethical conduct.

      Perhaps a few honest academics can be found among the wh ores to conduct real studies of this issue.

      1. 14.2.1

        Honest academics? I wish it were possible. Donations from big corporations fund their departments and cloud the outcome. One will lie and another will swear to it. Both will get funding for their departments.

        1. 14.2.1.1

          Paul, I know what you mean. The fact is that patents aren’t particularly special in this regard. Pretty much on any issue where there is money involved based on the outcome you can find studies that say opposite things.

          IMO, the problem is that there are no ethical standards and consequences. There are many very famous academics that say the same thing. The problem is if you read and analyze a paper and find that the author has done something unethical (like in almost every Lemley paper), there is nothing you can do to get the author punished.

          So what we have now is a market place for ideas where any position is supported by academic research (if there is money to be made form pushing that position).

      2. 14.2.2

        Simple critical thinking and basic understanding of how science is done would go a long way.

        You have anon here waving away the flawed heart of this paper: the failure to create a valid form of hypothesis, and thus an experiment design that could reliably falsify it.

        You have Night waving away the idea that science, when conducted correctly, is independent enough of the investigator’s viewpoint that it can be relied on.

        You have everyone willing to apply the language and styles of science to legal “scholarship”, when in fact, a large majority of legal scholarship is political advocacy occasionally seasoned with data.

        What we need is a distinction between qualitative and quantitative scholarship where the latter is held to scientific standards, and the former is accepted, and celebrated appropriately, as philosophical work.

        Law is intensely political and never be otherwise. Human affairs are irreducibly emergent, so can never be fully predicted, even with all the computing power in the universe. We can just accept what we can predict and quantify, and move on with what we cannot.

        1. 14.2.2.1

          You have anon here waving away the flawed heart of this paper

          Not at all.

          I wave away YOUR accusation, given as you have yet to support either prong of the word that you would wish to use.

          Further, I pointed you to an earlier post — from me — that DID point out a flaw.

          I also point our that YOUR views appear to suffer from the very thing that you use to Accuse Others of – and you simply ignore both of these things.

          That being said, I do not disagree with some of your assertions at 14.2.2.

          For example, “when in fact, a large majority of legal scholarship is political advocacy occasionally seasoned with data.” may well be taken at face value.

          and “What we need is a distinction between qualitative and quantitative scholarship where the latter is held to scientific standards, and the former is accepted, and celebrated appropriately, as philosophical work.” is certainly a noble aspiration.

          Further, I agree with “Law is intensely political and never be otherwise. Human affairs are irreducibly emergent, so can never be fully predicted

          HOWEVER, you err on the side of Pollyanna if you believe that “
          the idea that science, when conducted correctly, is independent enough of the investigator’s viewpoint that it can be relied on.
          ” as science is NOT capable of being separated from BEING a matter of human affairs, and thus your own comment regarding “irreducibly emergent” applies – but applies with ALL of the foibles of humanity.

          1. 14.2.2.1.1

            So what is “science”, Billy? Just another religion?

            1. 14.2.2.1.1.1

              My reply is stuck in the filter.

        2. 14.2.2.2

          >You have Night waving away the idea that science, when conducted correctly, is independent enough of the investigator’s viewpoint that it can be relied on.

          Martin, that is not what I am saying. The scientific method by definition is independent. The problem is that the academics are almost all dis honest. Not sure why you don’t want to believe that. I have given you links before to famous academics saying this exact same thing.

          And patents suffer from the same problem as global warming in that one cannot really carry out an experiment that is on the whole system and would show whether the affects of patents vs. no patents.

          I think it is possible that the system now would be better off without patents. Possible.

          1. 14.2.2.2.1

            the system now would be better off without patents. Possible.

            Let’s explore:

            What is the “system” that you are referring to?

            Is it the overall nature of innovation?
            Is it the current technocracy?

            What is your criteria for “better off?”
            Is that better off for the technocrats?
            Is that better off for the general state of innovation?

            1. 14.2.2.2.1.1

              I mean the innovation engine.

              But it is a fair question to figure out what to measure.

              1. 14.2.2.2.1.1.1

                Absolutely – but I was noting the premise that you seem to be saying that patents would be better off gone, and could not tell how in the world you were reaching that point — unless you were talking about the existing technocracy (as opposed to innovation itself).

                Even without diving into the “figure out what to measure,” how in the world do you see innovation better off? (even if only for argument’s sake)

                1. anon, I am just saying that fairly the anti-patent group may be right. It is possible that we are better off without patents.

                  My point is that we should try to find some way to objectively measure whether that hypothesis is true or not.

                2. I heard what you were saying – I wanted to explore the foundation of why you were saying it.

                  That’s a question that need not wait.

                  Please answer that question.

                3. Why? anon, because it is a fair question. And–if a way to determine whether the hypothesis was true or false–would make a huge affect on patent law.

                  And–I am generally curious whether there is some way to determine the answer and what the answer is.

                4. I want you to answer the question that I put to you.

                  IF it (your question) is such a “fair” question, then you won’t mind providing some rational premise TO GET TO that “fair” question.

                  Instead, this is what, the third time that I have to ask you?

                  Mind you, I am NOT saying anything about the fairness of the question – we are not even getting to that point yet – it very well may be MORE than fair to get to the point of figuring out what to measure, but BEFORE we get there, I want to explore your implied premise [or acceptance of an anti’s premise] that somehow the innovation ecosystem would be better off without patents. That is a BOLD statement of yours, made with no support whatsoever.

                  How did you get there? Why should I bother with anything you may want to say if you are going to duck that rather fundamental premise?

              2. 14.2.2.2.1.1.2

                Night, I don’t think it’s possible to say if we would be better or worse off without patents. For one, there would always be some kind of quasi-patent rights established by contract, custom, government, etc. because we often behave according to our moral concepts, and the concept that some benefits of an invention belong to the inventor is never going to be abandoned.

                Beyond that, innovations are often emergent phenomena; the sum may be greater than the parts, and there often could be no direct cause and effect reliably established across the impossibly complex panoply of human achievement.

                At the core, a patent is a tool to distribute rewards, and because we can very often never fully establish associated contributions, all we can do is try our best to tie contribution to reward where possible, and deny unfair reward when possible. Patents are political artifacts, as is the whole body of law. Law will always be unjust, to a point. But to throw away all law? Not likely to improve anything for anyone.

                Better to try to improve our systems of law, and thus patents too, and hope for the best.

                1. To your statement of:

                  Patents are political artifacts, as is the whole body of law. Law will always be unjust, to a point.

                  such may be changed to the following without missing a beat:

                  “[fill in the blank] are human artifacts, as is the whole body of morality. Religion will always be unjust, to a point.

                  Not the first time in recent memory that you have taken it upon yourself to insert “morality” into what is a legal domain.

                  I have to wonder how deep your Polly-Annaism runs, that you would rest so heavily on a concept, which in truth, is but a mirror of the same underlying thrust between religion and law.

  2. 13

    One would almost think that US VC funding had not been on a continuous, record setting trend all the way up to the date of this push poll. One would almost think that hundreds of thousands of patents had not been granted in that same span. One would think that Alice was only affecting the lowest quality of patents to begin with, and that Mayo was not actually protecting the scientific enterprise rather than harming it.

    Maybe better to not think in these parlous times….

    link to pitchbook.com

    1. 13.1

      Actually, if you read the article on VC funding then there is lots of support for indications of problems. The percentage of the deals going to small companies has been greatly reduced since the AIA was passed, etc. I am not going to analyze it here as it would take a couple of pages, but your assertions are unfounded.

      Additionally, the number of patent applications for inventions made in the US has not been rising and has apparently fallen which is shocking given the vast rise in the technology sector and the strong economy. And there have been articles about how large corporations are beginning to deemphasize patents (we can expect the R of R&D to go down). Etc.

      Plus, I am willing to bet that in the next recession that patent filing for inventions made in the US go down by at least 20 percent and probably 40-60 percent.

      Reality—corporations are beginning to see patents as junk. They have waited it out a bit to see if things would turn around. They haven’t and there is a learning curve for big corporate executives.

      The fact is that all the numbers do support the hypothesis that a strong patent system is needed for a strong innovation engine.

      Anyway–enough waste of my time talking to someone that will not spend the time to try to understand any of this.

    2. 13.2

      Twice you have asserted “push poll” Martin, but is the poll really a push poll or does it merely reach a conclusion that you do not like?

      When I look up “push poll” I obtain a quick definition of:

      “an ostensible opinion poll in which the true objective is to sway voters using loaded or manipulative questions.”

      I will grant you that many things out there are “gobbled up” by those who ONLY seek out things that fit their preconceived notions, and that “loaded and manipulative questions” may often BE the types of things that feed such affirmation bias.

      Do you see that here?
      What exactly is it that you think IS loaded? that IS manipulative?

      Or are YOU engaging in a “push” response?

      1. 13.2.1

        I can always count on your laziness anon. From the author of the poll:

        “I structured the survey to test my own hypothesis that the Court’s decisions have had a significant impact on the investment decisions of those firms, and in particular has caused reduced investment in the life science industry”

        Night Wiper, the acceleration of consolidation in technology is real, but not one serious observer (that I am aware of) ever mentions the virtually immaterial trimming of the lowest quality patents, or patent policy whatsoever, in their analyses of the causes. They see it as a subset of game theory where greater resources beget greater resources, accelerated in the digital realm because of the near-instantaneous scaling of digital achievement as opposed to the slower pace of industrial scaling.

        Lord forbid patenting as a concept may be itself obsolete in certain digital business because because copying, per se, becomes meaningless to success.

        link to forbes.com

        1. 13.2.1.1

          Marty – your quote reflects neither laziness on my part, nor loaded or manipulative on the part of the poll.

          You need something far stronger to support your assertion.

        2. 13.2.1.2

          Martin, no. The consolidation is not from what you said.

          1. 13.2.1.2.1

            NW, please link an article from a non-patent oriented POV that suggests that the observed consolidation of the tech industry has any relationship to patents. Nobody but patent-heads would even think of a causal realtionship there. Please find just one.

            anon, a formal hypothesis requires an IF part, which contains the testable proposed relationship, and a THEN part, which is the prediction of what the experiment will reveal. A real hypothesis contains both aspects, not just the prediction portion.

            Had he said I structured the survey to test my own hypothesis that the IF the court’s decisions have had a significant impact on the investment decisions, THEN there would be reduced investment in the life science industry he would have asked direct questions to prove or disprove the relationship.

            He did not do that. Instead he asked questions about attitudes and beliefs rather than about actual investment decisions and their antecedents. He asked those questions in a manner designed to produce the answers he was looking for. Imagine the inverse of what he actually did:

            “I structured the survey to test my own hypothesis that the Court’s decisions have had no material impact on the investment decisions of those firms, and in particular had not caused reduced investment in the life science industry”

            You would have been howling, and rightfully so.

            1. 13.2.1.2.1.1

              Marty, you both over and under read the author’s into – and this indicate YOUR own “push” nature here.

              And instead of getting all huffy with me (your first response was to call me lazy), you should have recognized that I have been anything BUT lazy here – or did you not bother at all to read any of the other comments already on the thread?

              If there is to be someone between you and I that “lazy” would fit, that someone would not be me.

              1. 13.2.1.2.1.1.1

                “over and under read the author’s into?”

                these are words, but they have no meaning. Even if I fix into to intro, it has no meaning. The quote was pulled from deep in the body of the paper, which I read. Did you? That’s what I mean by lazy, not the ability to speedtype random words into this website.

                1. reply caught in the filter, but overall Marty, your desire for some “formal” IF-THEN does not make the manner chosen to be EITHER of loaded or manipulative.

                  You STILL need something far stronger to support your assertion.

            2. 13.2.1.2.1.2

              link to cnbc.com

              Here is a discussion that at least refutes your other points, but does not include patents. I think that is, though, because few people understand the relationship of patents with innovation.

              Note that the decrease in innovation discussed did start at about the same time that patents started to be weakened. 2004.

              Martin, it really is hard to see the relationship, but then I’ve been involved in multiple companies where a patent was the difference between a license and copying, or between investing and copying.

        3. 13.2.1.3

          And Marty, you only responded to a portion of what I said.

  3. 12

    Perhaps semantics quibbles, but “patent eligibility” is more accurately the long standing [not new] and repeated list of Sup. Ct. cases on specific “exceptions” to patentable subject matter, that is, listing certain items as unpatentable subject matter. Nor is requiring more than a “concept” for patentability new to patent law. What is new, of course, is the Sup. Ct. expansion of the application of the most ambiguous of those “exceptions”, namely “abstract” or abstraction.

    1. 12.1

      The Court tried that “long-standing” line and was WRONG as to just how longstanding that line is — given that the Act of 1952 interseded into how the Court PRIOR TO that point enjoyed a “Common Law” law writing position on “gist of the invention,” “Invention,” “inventive step” and dozens of like sounding terms.

      Congress removed that power from the Court in the Act of 1952 in response (at least in part) to the fact that the Supreme Court had grown “too big for their britches” and were anti-patent throughout the ’30s and ’40s. Congress rebuffed all of the Court nonsense due in substantial part to the fact that the expected evolution and refinement through the Common Law mechanism simply was NOT working and (like today), Ping Pong effects and a “I know it when I see it” made any sense of expectancy impossible.

      What Congress (as assisted by later Judge Rich) did, was to break apart the prior single paragraph into three SEPARATE sections and instead of “invention” and the mess of derivative notions surrounding same, opted INSTEAD for the new concept of Obviousness.

      ALL of this is factual history that ANY patent attorney worth their salt should readily know, understand, and APPLY in the current discussions.

  4. 11

    Eligibility is a second order issue. Markman, Ebay, KSR, Oil States, AIA, PTAB, and efficient infringement have destroyed the collateral integrity of patents. Investors that think patents will protect their investment are naive. Smart early stage money is going to phone apps, social networking, and B2C services.

    1. 11.1

      No doubt about it. Patents have been hit from all sides.

  5. 10

    This economic survey of patent importance for new technology investment is in contrast to a published survey on that subject some years ago by a famous ivy league economist which the FTC was fond of using. It turned out to be solely based on some phone calls by his grad students to some CEOs of some major companies asking if patents were of importance to their businesses.

    1. 9.1

      Three words:

      W T F?

  6. 8

    Study finds that when law is changed to discourage consolidation of power, people less interested in investing in particular firms.

    1. 8.1

      Not sure what point you are trying to make there Random in view of the particular thrust of the article.

      While your statement is not incorrect in and of itself (a new law that changes power consolidation effects will most surely affect investment patterns), your offering of that point only creates the appearance that you want to obfuscate a take-away of the current article that happens to go against your rather well-known anti-patent views, and does not actually address any of the points of the post itself.

      1. 8.1.1

        Random seems to have said it backwards. Change “discourage” to “encourage” and it makes sense.

        1. 8.1.1.1

          Night Writer,

          I agree with you – as far as the actual message of THIS story.

          But investments are a double-sided coin, and mechanisms such as shorts and the reflection that money necessarily moving OUT of one investment vehicle will most likely be moved INTO another investment vehicle makes his statement to be “not incorrect.”

          The point of my rejoinder though is that his choice of statement (and manner of making it) only plays to the perception that he is attempting to diminish any sense of “Pro-Patent” or rationale for having a strong patent system that simply does not reflect his own viewpoint on patents.

          Much like the other anti-patentist comment on this thread from Malcolm at post 6.1, these types of “nothing to see here, any point by the article is not important” postings are a form of deflating propaganda.

          One CAN disagree with the thrust of this story (for example, see post 1 below) without employing an anti-patent propaganda viewpoint.

  7. 7

    Also, related to software inventions, does the report differentiate phone app startups from other software startups? Phone apps are sold through markets created and fully controlled by Apple and Google. When there is a ready made market and the owner of the market can restrict competition in the market, the importance of patents goes way down. It would be interesting to see if investment in phone apps is unaffected while other technologies like AI or IoT is reduced.

    1. 7.1

      It is a good point. The markets have become so distorted.

      I think another issue with patents that is seldom discussed is the stock market and monetary policy. I think what has happened is that the stock market has been acting like early investors in companies such as Tesla. This tends make patents less desirable for those with the giant money poured their way.

      Anyway, it is a complicated topic and it would take me 20 pages to explain this.

  8. 6

    Does the report differentiate the stage of investment? Seems to me that the earlier the stage, the more a patent matters to investors. As the startup grows, it builds other assets (customers, brand, equipment, employees, etc) that add value to investor decisions making the patent less valuable in relation to the other assets. If so, the seed stage where there is little more than an inventor, a patent and a good plan would be harmed the most.

    1. 6.1

      Wait — so if you have nothing but a patent then the patent is more important?

      Deep stuff here.

    2. 6.2

      How much money is required to write an “app” that subtracts one sound level from another?

      Must be zillions.

      1. 6.2.1

        Writing is the easiest part. You also have to market it and sell it. Then you have to support it. Have you never started and ran a business?

        1. 6.2.1.1

          If marketing and selling something that works better than something that came previously is hard then maybe enjoy the challenge or find something easier. People are out there making money selling things that are not only not patented but also don’t work.

          Note: I’m not questioning the value of patents for luring investors to invest in something new.

          I am definitely questioning why I should make it easier for low level dooshbags to sue me in court because they “innovated” a description of a logical process in some “hot” context, or because they “discovered” a statistical fact about a set of customers that overlaps with a set that I’m targeting.

          Handing out 20 year monopolies on that kind of basic essential data processing (in any context but especially in commerce-related data processing) seems, well, pointless at best unless one’s fantasy is to live in a world where everybody who uses information is risking infringement of some cruddy patent. Oh and every business has to have patent infringement insurance because, well, just deal with it.

          1. 6.2.1.1.1

            n that kind of basic essential data processing

            First, let’s separate out (since you appear to want to conflate) “data” and “data processing.”

            Second, let’s point out that your position is self-contradictory, in that IF what you assert is actually both “basic” and “essential,” then the processing method will most necessarily be not patentable (distinguishing the difference between patentable and patent eligible), based on 102 if not at least 103; and that this position relies on a conflation of those separate legal points with the notion of eligibility.

            Third, you again appear to want to drag “context” in with a snide reference tied to yet another merely emotional feeling statement jumbled together with “seems [_] pointless” and “fantasy” which is only empty ad hominem without a cogent anchor to any actual legal principle involved with the points at hand.

            Fourth, you again want to conflate information and a using notion in your last paragraph (actually this is just you repeating point one more than once in your rant). Maybe you were in a hurry (yet again) to vent your feelings that you (yet again) wanted to parse claims and NOT take claims as a whole or apply the notion of “infringement requires all elements” that any decent (and actual) attorney would not forget.

    3. 6.3

      From what I’ve seen VCs are pretty smart. What they have done is just erase patents as a protection from copying. There are still companies that are worth investing in, but the landscape has changed.

  9. 5

    It’s both amusing and frightening that In 2019 there are (allegedly) educated attorneys and law professors who still don’t don’t get what Prometheus (and other applicants) were trying to do and how high the stakes were. The 9-0 smackdown was essential and all you need to do to understand why that result is so important is to pull the filthy dollar bills out of your mouths and breathe some uncontaminated oxygen.

    1. 5.1

      Translation;

      “B-b-but the Ends justify the Means”

  10. 4

    Patents and patentability do not solely turn on eligibility. “Eligibility” issues and the “elimination” of patents are two separate issues. For example, perhaps some would prefer to live in a world without patents. But, since that world does not exist for reasons even people in the 18th century understood, these same people may very well still prefer to address the problems with eligibility. Accordingly, the statistics relating to “Investors overwhelmingly indicated, for example, that the elimination of patents would either not impact their firm’s decisions whether to invest in companies or only slightly decrease investments in companies developing technology” are flawed.

  11. 3

    There is no possibility of “turning over the eligibility standard” put in place by the Supreme Courts Mayo decision unless you also want to amend the Constitution. But, hey, everything is for sale I suppose, especially if there is a greedy rich white @ hole doing the buyin. In the case, let’s just bow down to Big Daddy and scr ew everybody else.

    Also, it looks like 40% of investors bet very unwisely and it’s probably that same 40% who is demanding that their sore behinds be coddled because they are Oh So Important.

    Bottom line: youre never going to own a valid patent that prevents me from correlating data that I gathered using a prior art data gathering method. I don’t care if it’s medical data or data about your daughters underwear preferences. Your patent can’t stop me from applying logic to that data. Give it up already and stop acting like an ignorant greedy @hole.

    1. 3.1

      Also, it’s important to remember that eliminating junk patents on vaporous nonsense will encourage investment in tangible technology where patents continue to play an important role. That’s a great thing for everybody … except for con artists, and a certain class of patent attorney and a certain type of investor.

    2. 3.2

      Really? Did Alice overturn Arrhythmia Research Technology, Inc. v. Corazonix Corp.? Why would anyone want to discourage disclosure and research into such important data processing technology? If you say, “they would do invent and disclose it anyway,” then you don’t know the history of patents nor do you understand economics.

    3. 3.3

      unless you also want to amend the Constitution

      Offered with ZERO cognitive legal support.

      Thanks for nothing as usual Malcolm.

      1. 3.3.1

        How much “legal support” do you need for the proposition that I have a First Amendment right (at least) to draw inferences from data? You find that proposition to be controversial?

        Remember folks: patent maximalists and glibertarian types like Billy are almost always a bit slow and very hypocritical. It’s a form of mental illness and Billy’s narcissism is also linked to these strange affectations.

        1. 3.3.1.1

          I need you to do more than mouth “First Amendment” as I have noted to you many times now.

          To ALL of those notes, you have YET to actually provide a cogent Constitutional argument that even remotely comes close to an actual constitutional law argument.

          Instead, we see from you the same vapid and mindless ad hominem.

          I would have thought it highly unlikely that you would know less then you show with patent law, but here you are trying to upstage yourself with your lack of Con Law.

          1. 3.3.1.1.1

            Billy, you forget that you’re just a blog tr oll. I don’t have to convince you of anything, and the Supreme Court already agrees that you can’t protect correlations with patents. Cry me a river, you silly big baby.

          2. 3.3.1.1.2

            Let’s put it another way: on the day that five rich aholes on the Supreme Court decide that their rich buddies can, eg, seize my assets because I drew logical inferences from some data I legally obtained then those guys need to start watching their backs because the “game” will officially have changed and the Constitution will become a worthless piece of paper. Let me know if you are having difficulty following this, Billy.

            1. 3.3.1.1.2.1

              I am still waiting for you to actually provide a cogent legal argument.

              Instead, we get more blathering and your “internet tough guy” schlock.

              1. 3.3.1.1.2.1.1

                Under the Rule of Law, would a random word salad generator be patentable? Assuming a scoreboard had not been in a single bucket, of course.

                1. Ah, does my old pal with the penchant for historical pseudonyms see the self-immolation that his fellow anti-patent isn’t Malcolm is undergoing and feel compelled to leap to his ‘protection’…?

                2. nabbed by autocorrect…

                  read “fellow anti-patent isn’t Malcolm”
                  as “fellow anti-patentist Malcolm”

            2. 3.3.1.1.2.2

              “then those guys need to start watching their backs because the “game” will officially have changed ”

              Is that the same day that leftists “get the bullet” after trying to give the bullet to everyone else?

              1. 3.3.1.1.2.2.1

                The Ends justify the Means (as long as those Ends happen to align with what Malcolm wants), but not the venom (and ISMs) as soon as the mere thought that his “precious” shortcut just might go again this views.

                1. Damm autocorrect is so sensitive…

                  That should read:

                  note the venom (and ISMs) as soon as the mere thought that his “precious” shortcut just might go against his views.

      2. 3.3.2

        In fairness, there isn’t any statutory support for the standard “judicial exceptions.”

        If you accept that, then you’re sort of stuck with a Constitutional amendment.

        1. 3.3.2.1

          Not at all – see the Kavanuagh Scissors.

          Additionally, IF you do remove the statutory connection, then the action of the Court would be strictly ultra vires.

          And further still, if you want to attempt to play a “the Court action is tied directly to the Constitution” gambit, that single thrust has been met with a three point rebuttal on Constitutional grounds that absolutely wrecks your attempt.

          And lastly, it is simply not clear at all exactly what IN the Constitution it is that you think would need to be amended (I know that Malcolm feels that mouthing ‘First Amendment’ is suffcient to elucidate this point, but he is certainly wrong, or at the very least, has not provided a cogent legal position for that section being the one that would require an amendment). As the Court itself does NOT tie to any specific portion of the Constitution, it may be difficult for you to point out exactly where you think an amendment would be pertinent. This is less an indictment against you (unless of course you want to persevere in empty pronouncements), and more an indictment of the sloppiness of the Court in its “I don’t care about the Means to reach our desired Ends” mentality.

  12. 2

    I think there is too an evaluation that is taking place that is different. Now the assumption is in Internet/information processing that patents aren’t going to stop a big company from taking whatever they want. So, to get money, you’re play has to be that the big corporations won’t determine to copy you early or that there is another way you are building value. It used to be that if the IP was good that the assumption was that the company could go into a space that the big corporations were in as they would not copy. Now –post Lemley’s devastation of the patent system for his personal gain–that analysis no longer holds up. The assumption is that no IP will stop a big corporation from doing whatever they want.

    So, I think that is a subtle point that many may not get or that the anti-patent people on the blog may twist. But it is real.

  13. 1

    There are some immediate spin indicators…

    Others, however, disagree. They effectively ask:

    and

    Answers to these questions will either support congressional intervention in the law of patent eligibility or counsel against it.

    As I am not “colored” by whatever conclusion this academic has come up with (not yet venturing into the paper itself), the spin I identify is indeed true “spin” and not merely reflective of my own desired ends.

    What this academic does NOT “get” is that there is to be NO “Ends justify the Means” that comes imbedded into the presumption that ANY actual answer would provide that the Court actions are justified – as a matter of the Rule of Law.

    One does NOT get to place that Rule of Law to the side and seek to justify the egregious means with “data” that may merely support a particular “Ends.”

    Now one “MAY” use results to augment a discussion on what would be PROPER means to change the law; that is, one may argue that Congress may act with the results of studies such as the one offered — IF Congress do deigns — to change the law. But that would be a different discussion than whether or not any actual Ends as shown by data match up to the illicit Means already used by the Court.

    A larger issue is whether the Court itself has acted appropriately.

    As we have seen indicators from at least the two newest members of the Court, the Court itself may appear to turning and being able to appreciate whether or not its own actions have been proper.

    To this point, I will simply use a recently coined term to summarize an avenue that does NOT depend on any action from Congress: the Kavanaugh Scissors.

    1. 1.1

      The two newest members of the court are Re pu k k ke jagoffs serving the most base and putrid aspects of civilization. And you exist to tickle their privates, Billy. Good work!

      1. 1.1.1

        Mindless and simply off ad hominem from Malcolm.

        I am shocked.

        1. 1.1.1.1

          You don’t think Brett and Neil are are Re pu k k ke jagoffs ?

          LOL

          Funny stuff.

          1. 1.1.1.1.1

            I think your mindless and off topic ad hominem do NOT make up for your lack of cogent and on topic contributions.

            What I think of ANY political leanings of the two new Justices simply has zero material relevance to the points that I HAVE presented – points you (yet again) shy away from.

            Maybe instead of your oh-so-typical blight, you actually try to make a (0n point, legally cogent) contribution?

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