Patently-O Bits and Bytes by Juvan Bonni

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

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    Note that the statement in this article that “Alice seemed to have cause decreased patent filings in certain technologies but that overall U.S. patent filings seemed to be slightly down” is not supported by any proof of the former, and the latter is evidence to the contrary. That is, if overall application filings are down that must mean that all of the many applications NOT affected by Alice are down.

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    The article here “Chad Gilles: Fewer Patent Applications are Being Drafted and Filed First in the U.S. (Source: Big Patent Data)” was debated in earlier blog comments, including debates over the grey line on the chart.
    Whether or not original U.S. applications filings by U.S. companies, or U.S. residents, has gone flat or slightly [“2%”?] reduced in the last couple of years, Alice-101 is not the only possible factor. E.g., another could be the great increase in out-sourcing and the great reduction in in-house, on-site, patent attorneys [who used to spot much patentable subject matter not self-identified by R&D personnel] in many of the large companies that file most of the patent applications. Another could be the concentrations of company ownerships in recent years into dominant companies noted by economists and stock market analysts. Another could be the preferences and/or advantages for trade secrecy for things like personal data collection and use. Even as to patent litigation, Alice-101 is not the only new factor. For example, there are the fairly widespread award of attorney fee sanctions against losing parties, the use of IPRs to challenge validity while staying the litigation in roughly 1/4 of suits, and patent owners no longer able to drag every defendant into EDTX.

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    Any statistician will tell you that the green line in the second graph is ominous particularly coupled with the fact that the economy is much larger than it was in 2014… It is going to get very, very ugly. And statistically Lemley’s hypotheses that weakening the enforcement law of patents would not reduce the filings is wrong.

    Ugly how? For whom? What is the worry here about which we should be concerned? I am not following.

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    As to the Gilles analysis, I have a suggestion why Big Corp is using non-US rather than US patent attorneys to draft their cases. Big Corp wants drafting that will deliver enforceable patents with claims of useful scope, in ALL the major markets in the world. Of these markets, all but one have the same drafting style, inspired by the 1973 PCT Rule 5. Except within the USA, patent attorney drafters all over the world follow that style, in order to get useful claims to issue. The same style will get to issue at the USPTO too. It is just that there might be “issues” if the issued patent ever goes to court, in the USA.

    Patent attorneys at most private practice law firms within the USA seem to be incapable of drafting, ROW-style. So, for a corporation interested in world-wide patent protection, it makes sense to get their cases drafted outside the USA. Especially if the company’s inventors are also working outside the USA. Local counsel is always best.

    If you doubt me, just ask in house patent counsel at some company or other with a large world-wide patent function.

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      Your observations lack a point of reference for original drafting considerations: the US BIS regulations and the related need to first obtain an “export license”.

      (Your “forty years plus around the block” has only shown you that block)

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