Patently-O Bits and Bytes by Juvan Bonni

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

  1. 4

    Anyone know how PTO recruitment is doing these days? I am curious if it’s changed now that the TEAPP (nationwide telework) program is full. “You can work anywhere in the country…. after enough people retire” is a far worse pitch than the old “You can work anywhere in the country after two years!”

  2. 3

    Dear Greg DeLassus,

    (1) Bad granted patents can and do “cause harm” even if no lawsuit is filed;

    (2) the patent system has continually been tweaked over the last 25 years to “weaken” patent assertion “rights” overall because so much cr-ap is floating out there and continues to be pumped into the system.

    3) litigation rates and “patent quality” are not linked so tightly as you or the authors seem to believe

  3. 2

    Brian Pomper’s article makes a very good point:

    [T]he overall patent litigation rate has been remarkably steady for nearly a century, at less than two litigations per 1000 patents issued. That does not at all suggest there is a “crisis” in patent quality that has resulted in a disproportionate number of lawsuits or patents being invalidated.

    If patent litigation rates are presently in line (and have at all times been in line) with historical averages, does that not suggest that patent “quality” (whatever we mean by that) is essentially fine? There are really only two possible states of affairs if litigation rates are in line with historical averages: either (1) the PTO is not letting any more invalid claims go to grant than it has historically done (and obviously the historical rate of errors has not proven an unduly onerous burden on the economy); or (2) the rate of errors has gone up, but people are not wasting their time suing on these erroneously granted claims, in which case it is a sort of no-harm-no-foul.

    Meanwhile, this argument from the same article is less logically sound:

    Meanwhile, our foreign competitors are granting patents on many inventions that are now unpatentable here. A 2017 study of 18,000 patent applications rejected in the United States found that nearly 1,700 were granted in the European Union or China, or both. A recent World Intellectual Property Organization (WIPO) report further documented that among leading patent offices, the USPTO was among those that granted the smallest percentage of patent applications – fewer than 35 percent of all applications processed in 2018 – and the share of rejected applications was among the highest.

    Who cares about comparisons between US grant rates and EP or CN grant rates? What is even the point of this comparison? The mention of “competitors” would suggest that the author means for us to understand that this failure to grant puts the U.S. at a competitive disadvantage.

    This is not only untrue, but completely the opposite of the truth. If it really were the case that we are denying patents that should be granted, while Europe and China are granting the same patents, that would mean that U.S. consumers are getting access to valuable innovations at a lower cost than are EP or CN consumers. This would be a boost—not a hindrance—to the U.S. economy, and would put us at a competitive advantage.

    1. 2.1

      Sorry Greg, but I’m not buying your Big Pharma “no difference in Sovereigns” line.

      Even while we have treaties (for reciprocity), patent law at heart remains a Sovereign-Centric law.

    2. 2.2

      Clarification please, on rates of rejection. Suppose I file at the USPTO, get a Final Rejection, file a continuation and get to issue. In Pomper’s stats, does that count as a rejection? Because, if so, given that nowhere else in the world does continuing, continuation or c-i-p applications, nowhere else in the world has so many rejections. Instead, there are negative exam reports followed by narrowing amendments and grant. Seldom does any EPO patent application I prosecute end up as refused. But that doesn’t mean that my client has less protection in the USA. Quite the contrary. A glance at the “patent family” reveals one or two patents for each country in the list, except the USA where there are multiple rejections and multiple grants.

      Is Pomper comparing apples with pears, to get to a nonsense result?

      1. 2.2.2


        Your statement “Suppose I file at the USPTO, get a Final Rejection, file a continuation and get to issue.” can be taken in more than one way.

        Are you saying that the “get to issue” is on something that should not “get to issue?”

        Or is this a (correctly noted, albeit not named) recognition of the (perhaps mainly US Sovereign) practice related to patent portfolios?

        It would indeed help to clarify if protection includes this notion of portfolio coverage. In that clarification (of course – but admittedly arduous), it would also be important to note particular scope (both of individual patents as well as the portfolio), and correlate scope with what each Sovereign may have chosen to provide scope to (with any and all “per se’s” and “as such” caveats taken into account, of course).

        As to “getting to a nonsense result,” this comment as well can be taken in more than one way (a generous mode, of ‘any result without due care is not one that is substantiated‘ and a less then generous mode of ‘the result being aimed at is itself poppycock, and cannot be substantiated under any circumstances.’


          Typically, there are multiple US patents in any one patent family, but only one or two family members in each other jurisdiction covered by such family. Is that a sign that the US market is worth more, justifying more expense? Or is it a sign that each US patent has only a fraction of the clout of a patent in another leading jurisdiction? Who can say?


            As I noted, it is a function of portfolio management.

            Who can say, you ask. The answer (while certainly not speaking for everyone) includes me as a US practitioner.

            By the by, your question is a good one (even from a Sovereign-comparison standpoint).

            Unlike Greg, who would simply dismiss any notion of Sovereign to Sovereign differences, I trust that you recognize the reality that choices of coverage (both by applicants between Sovereigns and by Sovereigns to advance their own Sovereign-centric agendas) was, is, and shall remain a critical consideration in patent law.


              Your answer falls short of satisfaction. That there are 10 US patents in a single patent family for every one in a foreign jurisdiction (such as Europe) is othing more or less than a manifestation, an artefact, a “function” if you will, of “Portfolio Management”. I wanted to know WHY portfolios are managed in this way. I suggested two reasons and wanted to know whether either or both are plausible.

              Your response, that my question is a good one, leads me to suppose that both my suggested reasons are indeed plausible.

              Here is another reason: Same budget for USA and for Europe. But it costs only 10% of the cost of a European patent to get a US patent. Is that one also plausible?


                Certainly the best legal answer here is: it depends.

                And yes, cost is most definitely one of many variables that is to be considered.

                As to the “why,” such is a Sovereign market difference (there really is no better explanation than that — and a more detailed dissertation as a blog reply is expecting too much). People get paid big bucks for their craft of portfolio management. It would take far more than a few blog posts just to set out all the particulars.

      2. 2.2.3

        One of the links in the Pomper item is to a past study of Kevin Madigan and Adam Mossoff (you may recall other Con Law level Pro-Patent items from Mossoff).

        That study has a recent update discussed here: link to

        By the by, two other links are WIPO links – draw whatever conclusions that you may.

        You may also follow a link to Innovation Alliance, and see there that members includes:

        Dolby Laboratories, Inc.
        Aware, Inc.
        Fallbrook Technologies, Inc.
        Cantor Fitzgerald, LP (IIRC, there is a Dave Boundy connection to this place, or may have been at one time)
        Cummins Allison Corp.
        Qualcomm, Inc.
        Digimarc Corporation
        Xperi Corporation

  4. 1

    You should ask these “professors” to give us financial disclosures. Lemley admits he has made vast millions burning down the patent system. Chien is closely aligned with Lemley and we should assume that her primary allegiance is to money and not academic papers. Perhaps a title of “Large Corporate Advocate seeking millions” would be appropriate for Chien.

    1. 1.1

      And consider that Lemley has now admitted that he and his wife a former Google executive and made vast millions burning down the patent system and yet you and the Scotus have treated Lemley like he is an academic and not a corporate advocate.

    2. 1.2

      Night Writer,

      Was there not a past thread in which this particular set of ‘Chien-isms” were actually looked at in a little more detail between you and I?

      1. 1.2.1

        I have been following Chien for many years. She is every bit as bad as Lemley and seems to want to replace Lemley to “earn” her millions.

        Her papers are littered with unethical conduct.

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