Patently-O Bits and Bytes by Juvan Bonni

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

  1. 2

    The Dake Kang article touches on a subject that I have noticed to be cropping up more and more lately. Sen. Rubio, evidently, wants to amend the U.S. patent statutes to achieve a particular national security outcome. Meanwhile, elsewhere on the internet, Paul Morinville wants to use patent law to achieve anti-trust outcomes and Sen. Graham wants to amend the patent laws to achieve particular drug price outcomes. At the risk of belaboring an obvious but unpopular truth, patent laws are really good at achieving one particular sort of outcome (enhanced innovation), and not all that great for achieving any other sort of outcome (lower crime, tighter national security, lower drug prices, etc). Title 35 is not a rudder that can steer absolutely every policy that we want to optimize. People need to learn to use patent law for outcomes that patent law can do well, and other laws for outcomes in other fields of human endeavor.

    There are anti-trust laws that work much better for anti-monopoly purposes. There are FDA laws that work much better for achieving particular drug price outcomes. There are national secrets laws and treasury department sanctions that work much better for achieving particular national security outcomes. Adjusting the patent laws to address such problems will not actually obtain useful outcomes for those problems, but will create new problems in the patent system—the worst of all possible outcomes.

    1. 2.1

      For sure, there is much truth to what GDL says. The patent system is an even worse tool for “increasing employment” and “competing with China.” That said, there is no question that the existence of a patent enables the patent owner to charge higher prices for products falling within the scope of the patent. When the product in question is a life-saving drug (or medical device) whose price spikes up 1000% because the new owner of the patent wants to “monetize” the patent … well, it’s understandable that most normal people are troubled by that sort of capricious behavior and respond in the normal way (hint: praising the patent system and the “free market” is not what normal people do).

    2. 2.2

      Of course, the patent system is also terrible at “promoting progress” in applying logic to data, and it is equally ineffective at “promoting progress” in the “art” of correlating one thing with another. The system fails at promoting progress in these fundamental activities in much the same way that giving flies huge piles of cr @p to eat fails to improve their table manners. Handing out the cr @p just makes the flies big and f-@-t, and it causes them to multiply at accelerated rates. It’s the same with logic patents and correlation patents: such patents do far more to promote patenting itself and the wealth of lawyers (the least skilled ones, by the way) then they do to promote progress in any of the useful arts for which the patent system was designed to promote.

      1. 2.2.1

        The irony of you missing Greg’s point and your call for a “cap” below is…

        … stultifying.

    3. 2.3

      patent laws are really good at achieving one particular sort of outcome (enhanced innovation)

      Hrm…

      1. 2.3.1

        Eh?

    4. 2.4

      “People need to learn to use patent law for outcomes that patent law can do well, and other laws for outcomes in other fields of human endeavor.”

      Unless that’s a feature rather than a bug. If the “patent rudder” will have no meaningful effect on a contentious area, one can swing it about without disturbing the powers that be, while also appearing to be hard at work.

      (The above would only be applicable to Rubio and Graham. In Morinville’s case it’s more likely he does not appreciate the current destination of the boat, and is willing to put forth any argument that might change the current course.)

      1. 2.4.1

        Fair point. I was proceeding on the assumption that the speakers in every instance want in good faith to achieve the end that they purport to be advancing. Assuming intellectual good faith from Republican senators is, however, perhaps unwarranted.

        1. 2.4.1.1

          Corrected for accuracy:

          “Assuming intellectual good faith from (any) senators is, however, perhaps unwarranted.”

          Let’s not pretend that Republican senators have some monopoly on philosophical-motive driven operations.

    5. 2.5

      This is logical and sensible Greg — thanks for the thoughts.

      Also makes me think about the draft, new 112(f). Fact is; given today’s enhanced pleading requirements and the long-existing legal power of the Courts to quickly slap down any futher “100’s to 1,000’s of bare bones alleged ‘you’re infringing!’ bulk mailers of years past; there is absolutely no reason at all to disturb the well-settled 112(f).

      The last thing American innovation needs is for (proposed) 112(f) — or 100(k) — to become the next 101 scourge.

  2. 1

    Read Decker on Huawei’s patent portfolio. Mull over the reality. Then ask yourself: in these days of humungeously large corporate patent portfolios, does it any longer make any sense for the USPTO or the EPO to try to examine on the merits? Why not instead recognise reality, and revert to the way the UK Patent Office did it up to 1978, prior to the EPC harmonization: namely, search and then examine for clarity of definition and for novelty. Leave obviousness for the courts.

    1. 1.1

      in these days of humungeously large corporate patent portfolios, does it any longer make any sense for the USPTO or the EPO to try to examine on the merits? Why not instead recognise reality, and revert to the way the UK Patent Office did it up to 1978, prior to the EPC harmonization: namely, search and then examine for clarity of definition and for novelty. Leave obviousness for the courts.

      ROTFLMAO

      You gotta love the false dichotomy here. This is almost as bad as the patent maximalists insisting that the only statutory solution to saving the beleaguered “software patent” is to expand 101 to permit a zillion unconstitutional patent claims. These people are just TOO BIG TO BE DENIED A PATENT!

      Here’s a novel idea: just put a cap on the number of patents any company own. If you don’t like an absolute number applied across the board, tie the numbers to the number of employees hired by the company to do R&D. No problem with setting up the cap progressively either. There are lots of great reasons for doing this (including minimizing game playing at the PTO) and pretty much no good reasons for not doing this. Oh, except for that very very serious reason that keeps coming up: these are the most important people in the world and we have to do their bidding or else the world will stop turning! Oh, such a very, very serious reason …

      1. 1.1.1

        A “cap” is about the most asinine ‘thought’ possible for anyone who understands innovation and innovation protection mechanisms.

        That you do not see this — and actively seek such nonsense — belies the massive amount of cognitive dissonance that infects those posts of yours that actually manage to be directed to patent law.

    2. 1.2

      I’d be up for it as long as you took “use” out of the infringing acts of the patent statute.

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