Special Rights for Inventor Owned Patents

by Dennis Crouch

Rep. Danny Davis (D-Il) and Paul Gosar (R-Az) have introduced the Inventor Rights Act. H.R.5478 that creates a set of rights and privileges associated with inventor-owned patents.  These are patents owned by their respective inventors or owned by an entities controlled by the inventors.  In addition to ownership, the inventor must hold “all substantial rights.”

Big Four: 

  1. No Involuntary Post-Issuance Proceedings against inventor-owned patents.  No IPR, Post-Grant Review, or reexamination, or any other “determination about the validity” without “consent of the patentee.”
  2. Injunctions would now be likely against infringers of inventor-owned patents. The Bill would create a presumption of both irreparable harm and inadequate remedy at law for infringement of an inventor-owned patent.
  3. Broadened Venue for filing of infringement lawsuits.  Here, the proposal does not recapture all of the venue “lost” in TC Heartland. 
  4. Damages law would offer a new option: Profit disgorgement + attorney fees + treble damages for willfulness when inventor-owned patents are infringed.

Inventor Rights Act 2019. These are all major changes.  Although all of the provisions have historic roots.

Currently, only a rather small fraction of patents would qualify as “inventor-owned patents” under the statute. However, the Bill would tend to both (1) encourage individual inventorship and (2) encourage patent holding situations that take advantage of the inventor-owner rights. Tech company founders would likely keep ownership of their patents, although I suspect that large companies would remain wary of allowing regular employees to retain “all substantial rights” in the patent.

Folks at US Inventor, including Josh Malone and Paul Morinville, have lobbied for the proposal and have included substantial discussion on their website: https://www.usinventor.org/inventor-rights-act/.




171 thoughts on “Special Rights for Inventor Owned Patents

  1. 14

    One of the legislative findings (6(A) in the proposed text) asserts that “ the Patent Trial and Appeal Board institutes trials in over 60 percent of cases… .” Does anyone know to what this refers?

    Does this mean that 60% of petitions result in institutions (not true)? Or that 60% of district court patent cases feature a corresponding PTAB institution (where does that assertion find corroboration?)? Or something else?

      1. 14.1.1

        Slide 7 caught my eye — with its rather odd (and far too limited) groupings (putting mechanical with business methods…?)

      2. 14.1.2

        Thanks, that is helpful to understand what finding 6(A) means. Regrettably, the bill is purporting to find as fact something that simply is not true. The USPTO statistics you linked are calculating “institution rate” in a manner that does not support the assertion (as it is phrased) in finding 6(A).

        Finding 6(A) asserts that “the Patent Trial and Appeal Board institutes trials in over 60 percent of cases,” but the USPTO presentation calculates “institution rate” by ” by dividing petitions instituted by… [the sum of] petitions instituted plus petitions denied… .” This leaves out a rather large number of petitions that are withdrawn by the petitioner before an institution decision (e.g., following settlement, following a dismissal for failure to observe formalities, etc). Those withdrawn petitions are “cases” just as much as the ones instituted or denied. Once the total number of petitions are considered in the denominator, the institution rate is nearer to ~50% than “over 60%.”


          This leaves out a rather large number of petitions that are withdrawn by the petitioner before an institution decision

          Aside from any anecdotes that you may have as to this being a “rather larger number,” Greg, do you have any actual data as to that size?

          Also, if I understand the slides correctly, the settlement numbers ARE accounted for…


          One should also consider petitions that were considered but not filed because the patent was considered too strong or otherwise inadvisable. There is no way to measure all such no-petition decisions, but are there any stats on patent infringement suits where an IPR was theoretically available but not filed?

          Also, evaluation of these statistics presumes the existence of some knowable “correct” percentage. Otherwise, one cannot determine whether 60% (or some other number) is too high or too low.


            Those are worth considerations, to be sure, but rather go beyond any point that I was hoping to make. My point was that—as a plain, prosaic fact—when one divides [petitions instituted] by [total petitions lodged] (see URL below), the quotient is ~0.5, not >0.6 as finding 6(A) proposes. This is unassailable arithmetic, setting aside worthy but harder-to-establish considerations of what is the “correct” institution rate.

            link to ipwatchdog.com


              Well, math isn’t really a strong suit for these people unless they are calculating the number of rubes out there waiting to be conned.

  2. 13

    The thing I don’t understand is why, when the government goes to great lengths to defend its interests and work for years and even decades, the government doesn’t defend its own work in the issuance of a patent. It isn’t the inventor who should be defending the basics of the patent, it is the patent and trademark office that should be defending their own work.

    1. 13.1


      You post has even more pertinence in the post Oil States era, given that some have clamored for the government to have a continued “finger in the pie” post-grant and have re-imagined the personal property right to be a public franchise right (but “conveniently” do not want to carry the consequence that that same ‘finger in the pie’ makes the government a FranchisER with inherent duties to its FranchisEEs.

      If the government wants that Quid Pro Quo recalibrated, maybe that recalibration should not stop at the ability to denigrate what the innovators still hold. Maybe enforcement costs should be entirely shifted as well to the FranchisER…

      1. 13.1.1

        There is this “free pass” given to the PTO in the sense that the assumption that the government’s portion of patent prosecution was incompetent. Having been through many of these as an inventor and corporate assignee, I can tell you that they were very thorough and careful. The idea that government is frequently incompetent is a vast overstatement; as we see in the deployment of “Troll” as a metaphor for inventors and their helpers.


          as we see in the deployment of “Troll” as a metaphor for inventors and their helpers.

          It is ALWAYS helpful to remember exactly who pushed the “patent Tr011” narrative so heavily — and why.

          Hint: it was NOT for the benefit of Joe Consumer.

    2. 13.2

      The thing I don’t understand is why,… it is[n’t] the patent and trademark office that should be defending their own work.

      This is a good point. I consider the IPR system to be an improvement over the status quo ante, but that does not mean that it is perfect. It could be better.

      Doctrinally (at least), IPRs would sit more soundly in our constitutional scheme if they worked more precisely like the writ scire facias from which they are derived. In such a system, IPRs would be adjudicated in an Art. III court instead of the PTO, and they would involve the petitioner suing the PTO to have the patent claims canceled. The patent owner could (and in most instances likely would) intervene to defend the patent validity, but even if the owner did not, then the PTO would still be there to defend the grant (on the taxpayers’ dime).

      I think that this would be a better way of running the IPR system. The present way of running it, however, is still better than the alternative of not having an IPR system at all.

      1. 13.2.1

        You had me until “the PTO would still be there to defend the grant (on the taxpayers’ dime).” Why should taxpayers pay?


          It is the PTO being sued, so it would be the SG’s office (where the patentee does not intervene) responsible for the defense. The SG is funded by the taxpayers, so it is the taxpayers’ dime. It is simply in the nature of the government that taxpayers pay for its upkeep and continued operation.


            I’m trying to learn (no irony, really). I didn’t ask why would, but why should? Yes. Justice is funded by the taxpayers but the PTO has been user-fee funded for about a generation. You are re-designing the system. So, why put the burden on unsuspecting taxpayers? Wouldn’t most folks (non-patent attorneys) object to paying to defend PTO suits in Federal Court if they were asked? Democracy?


              I didn’t ask why would, but why should?

              Ah, very good. Honestly, this point is kind of orthogonal to any details about which I actually care. If there were a consensus about reorganization of the IPR process to make it more like the writ scire facias, and the funding source of the PTO lawyers proved a sticking point, I would hope that the bill’s sponsors would just change that aspect however necessary to get the needed votes.

              The only reason I said “taxpayer” is because that is how it works presently. People sue the PTO today, and when they do, the SG defends the PTO on the taxpayers’ dime. I assume that when people sue the PTO in the future, it will work the same way. If Congress were to think it sensible to change that arrangement, however, it is nothing to me.


              Greg “Dozens” is precisely the person that wants to glom onto patents being a public Franchise Right, and yet finds it “orthogonal” to details that he cares about when it comes to the meaning of Franchise and the inherent consequences of FranchisOR and FranchisEE.

              He tends to only be present in conversations when his point is being discussed (and tends to disappear otherwise).

      2. 13.2.2

        Would it be a specialized Art III court or any District Court?

        The essential point of the IPR scheme was to deal with the fact that litigation expense has become disproportionate to the interests being protected. Two million in legal fees to adjudicate a $500K infringement means both the patentee and alleged infringer are starting off in a terrible spot. An IP system with no economically practicable enforcement has a big systemic problem.

        Cost has to be taken out of the system to reach conclusions in lower dollar and easier cases. IPR’s accomplish that now, somewhat. Retiring the IPR system would require a replacement.

        Obviously a big improvement in Subject Matter Eligibility would be a chunk play, but more is needed to take apart the value chain and streamline expert testimony, discovery, issue preclusion, etc. Even the ability to send technical patent matters quasi-mandamus style to a replay booth in Washington mid-litigation would then be under the direct control of an Article III judge.

        The actual problem is making justice accessible for all parties. If something better than IPR can be made, and it obviously can be, it should be.


          Would it be a specialized Art III court or any District Court?

          As I conceive of it, it would be a specialized Art. III court. I think that there should be a set of Art. III district courts set aside specifically for adjudicating patent validity challenges—and nothing else. Infringement would still be handled in the local venue,* but if a validity challenge were raised in that infringement case, it would be hived off to the specialty court and the infringement case stayed until the validity issues are resolved.

          The judges appointed to this specialty court should be required to have at least and undergraduate degree in a STEM field. There would be no juries for these trials, as the trials would be styled as a suit against the PTO, whose sovereign immunity is not obliged by the VII amendment to try a case to a jury. The FRCP would be amended to have special discovery provisions applicable only to these courts, to provide essentially the same degree of discovery as presently available in an IPR/PGR. Just as in IPRs/PGRs, there would be a one-year limit to the time of the proceedings, with a six-month pre-trial conference and motions period (much like the present IPR/PGR arrangement) during which time the parties would negotiate which issues are to be tried. The court’s goal would be to reduce the number of grounds of asserted invalidity to the one or two strongest grounds, and the rest simply to be left on the cutting room floor.

          In other words, the whole thing would operate much like the present PTAB, but with the judicial independence afforded by Art. III structure, and thus without the potential for political interference inherent (if only latently so far) in the present IPR/PGR structure. It should not be more costly or time consuming than the current IPR/PGR regime, but with perhaps a slightly more unassailable appearance of being neutral and fair.


            Whoops, I added that * to include the following footnote: If folks want to put infringement in front of these tribunals as well, I really have no objection to that idea. I am simply trying to make as few changes as possible to the status quo, on the logic that big changes attract big opposition.


            I have discussed the scire facias action proposed at (under the name try claim validity) with several federal and trial court judges.

            The judges were of the opinion that most of the initial case work would be left to a competent magistrate, who would produce a reasonable Report & Recommendation that unlike the final written report of a PTAB panel would be rational. The typical scire facias/try claim validity action would be disposed at the motioning phase.

            The proposal provides a mechanism for any person to petition for a writ of scire facias and thus has some aspects of the EPO opposition.

            After all claim validity issues in Article III courts are put under the same statutory basis and under supervision of the same appellate court, the patent system should become more predictable and uniform.

            Then it only remains to undo the nonsense that scientifically illiterate SCOTUS unfamiliar with the original intent and meaning of the founders with respect to the patent system have with the assistance of poor arguments from many patent attorneys wracked in Title 35 and other areas of the Federal Civil Code.


          IPRs have not taken the cost out of the system. They ADD cost. Average of $450,000 per IPR.

          Multi-billion dollar corporations don’t need cheaper litigation. The richest companies in the world are the main benificiaries of the PTAB.

          It has not improved the economics at all for small businesses.

          It has provided no benefit except for giant corporations that didn’t need it.

          It does not need to be replaced.


            IPRs have not taken the cost out of the system. They ADD cost. Average of $450,000 per IPR.

            Median litigation costs for a patent case with $1 million to $10 million in damages have declined from $3.2 million to $1.7 million. Adding a $450K IPR phase to the process in order to save $1.5 million overall in total litigation costs still leaves one more than a million dollars to the good.

            Meanwhile, median total litigation costs for patent cases with <$1 million in damages at stake have declined less, but have still declined. The numbers do not lie. The advent of the IPR/PGR system is reducing total litigation costs, thus freeing up resources in the overall innovation economy for more productive uses than litigation.


              The claim of “the numbers do not ___” (selective screens are still in place) is not accurate as Greg confuses cause and correlation – and does so without taking other possible variables into effect (two of which were the already downward litigation trend numbers, and the fact that at least one part of the AIA (non-joinder change) is known to have actually increased litigation levels.

      3. 13.2.3

        Greg DeLassus misunderstands the scire facias proceeding used to revoke a patent. The defendant was not an entity of the sovereign.

        The brief of AMICI CURIAE ALLIACENSE LIMITED LLC IN SUPPORT OF PETITIONER (Oil States) describes the proceeding in England. Scire facias actions were filed on the law side of Chancery and tried at King’s Bench. In many such actions the King (Rex) was the formal plaintiff while the patent holder was the defendant.

        I proposed a modern statutory version of the scire facias action in the comment at

        I made the public the plaintiff because in the USA nowadays the people is theoretically the sovereign.


          Greg DeLassus misunderstands the scire facias proceeding used to revoke a patent. The defendant was not an entity of the sovereign.

          You are, of course correct that in the old scire facias, the attorney general was the plaintiff, not the defendant. I would like to make clear, however, that I was never proposing to make a system exactly like scire facias. You will note that I say above that “IPRs would sit more soundly in our constitutional scheme if they worked more precisely like the writ scire facias from which they are derived” (emphasis added). “More,” not “exactly.”

          To my mind, there are three reasons why it would not be a good idea to replace IPRs with an exact replication of the old scire facias. First, it is not clear if the government would (except in a few instances involving work by a government contractor) have standing under U.S. Art. III to bring such a suit. Second, to make the government the plaintiff would deprive aggrieved parties of a right to make such a challenge, which means that the IPR would cease to serve its function as a cheaper, faster alternative to a DJ action. Finally, the way I contrive the process (with the government as a defendant instead of a plaintiff obviates any considerations of a VII amendment jury trial. This allows the IPR to function with the efficiency and reduced cost that is the whole point of the IPR.

          In other words, what I am proposing was never meant to be an exact replica of scire facias, so it is pointless to criticize by noting that it is not exactly identical. Rather, what I am proposing is meant to be better than scire facias, but also better than the IPR status quo, insofar as it is more like the writ scire facias.

  3. 12

    Yet another patent bill lacking comprise. It’ll go into the circular file until you guys figure out that sometimes you have to give something to get something.

    1. 12.1

      Serious questions for you Ben (and I don’t even like this legislation, albeit for markedly different reasons):

      What exactly is it that you think needs to have a “compromise” made?

      With whom do you think this compromise needs to be made with?

      Do you understand the baseline Quid Pro Quo which guides ALL notions of “compromise?”


          Hmm, I bet my view is more correct, and that our friend Ben had a simple typo.

          But hey, your game is afoot and here you just mouth off without even trying to be on point.

          Sorry Shifty, yet another instance of no “gotcha” for you.

                1. Yeah, Snowflake, I get the “concept.” [Sigh] But you need to be extra special careful when you’re “correcting” somebody.

                2. Lol – heed your own advice — given as the gift that Ben mentions is YOUR error when you attempted a “correction” with snark and totally missed the point.

                  Extra special careful? Heck, let’s aim for just being on point with normal care of a blog (cue Prof. Crouch retort on typos)…

                3. No, Snowflake, I no longer get your “concept.” [Sigh]
                  Shouldn’t you be better at this by now?


          A snarky correction guilty of the same typo intended to be corrected? That is a fine holiday gift! Thanks.



            Snark that backfires is Shifty’s signature move.

            Aside from his (unintended) mirth, did you have any answers to my questions?



              … note as well how “joyous” Shifty gets at a missed “s,” while I take your typo in stride (it’s a blog after all, and Prof. Crouch had a great one liner when someone pointed out one of his typos awhile back), and I look to advance the conversation with meaningful and on point questions to you.

              Have you had a chance to think about those questions?

    2. 12.2

      The AIA was introduced in several consecutive sessions of Congress before it eventually passed in the 112th. By the final iteration, it had six cosponsors in the House. This bill currently has two cosponsors.

      In other words, I think that you are correct that this text has a way to go before it will be at all likely to advance. It will need changes to attract enough support to move anywhere.

  4. 11

    I agree that the rights of patent owners should be strengthened, but identity-based schemes are a terrible idea. The high tech lobby has been trying to split off pharma into different rules for a long time so high tech can have its way in the patent world without branded pharma’s objections –which have saved patentees on many issues.

    If the system is fair, it should be applied to all equally.
    If the system is not fair, the answer is not to exclude some preferred class and screw everyone else; the answer it to make it fair.

  5. 10

    Joshie and Paulie: please share with us all your net worth, including the value of any real estate holdings, and an estimate of the licensing fees you collected over the last two years so we can all see how oppressed you both are.

    1. 10.1

      I have 8 patents. Per the many different attorneys I have visited and the claims charts that have been created, my patents are currently being infringed. Unfortunately, and because of the state of today’s patent law and PTAB, the attorneys will not take my case on contingency. There is no financial upside to winning at the PTAB, and they will not foot the bill of $450K when the chance of losing is 84%.

      My net worth: $300K. Remember, a patent doesn’t give anyone the right to produce anything. It it meant to exclude others so I can have a fair shake. However, my competition already owns the market, and they decided to infringe rather than license. So I have to sit on my hands, let them infringe, and continue to out pace me, but now, using my technology! My patents will expire in 10 years.

      A patent today offers no protection for small inventors and only serves to inform the public and the competiton of one’s invention.

      I will no longer invent in the United States.

      The Inventor Rights Act rights the ship for the small guy. Neither the USPTO nor patent practitioners will like it because the PTAB is a money making machine for them. Nevermind the small guy.

      Congress represents the people. So that’s where we will go.

      1. 10.1.1

        Neither the USPTO nor patent practitioners will like [The Inventor Rights Act] because the PTAB is a money making machine for them.

        Actually, the USPTO consciously chooses to run the IPR system at a loss. USPTO senior management consider that “[s]etting [IPR/PGR] fees at full cost recovery reduces access to these proceedings, which works against the policy factor of providing options for post-prosecution actions.” In other words, the IPR system is a money-loser for the USPTO, not a money-maker.


            If you read the link that I provided, you will see that the PTO has decided that examination fees, IPR/PGR fees, appeal fees, and RCE fees should all cover less than cost, while maintenance annuities should cover more than cost. In other words, the PTO loses money on examination and adjudication, and makes up the loss based on maintenance annuities for granted patents.

            If anything, that makes IPRs even more of a money loser. No one is likely to pay the third maintenance annuity on a patent for which the most valuable claims have already been tanked. The PTO are not running the post-grant system for the financial incentives.


            Everything out of the USPTO is a Zero-Sum game — by law.

            There is NO “running at a loss” in the aggregate, and any intonation of such “losses” must be looked at with the entire budget apparatus in mind.

            Otherwise, you will end up with assertions that simply do not pan out.


            So you are saying that the USPTO is using our maintenance fees to subsidize the salaries of the APJs to cancel our patents? Which pages in the link you provided substantiate this?



              I recommend that you investigate the bigger picture of how the USPTO budget is set up.

              That way, you will see that the USPTO (being entirely funded by innovators choosing to use the patent system) is a “Zero Sum” game — neither a profit generator (supposedly**) or a loss center.

              ** Being a “profit generator” DOES happen every time Congress siphons off or diverts funds collected from innovators and turns that money over to the general treasury.


          Ok. Then it is an employment mechanism for unconstitutionally appointed judges and a money maker for them, and still a big money maker for patent attorneys and agents.

          And while doing do, it adds to the stupidity of unnecessary government spending. Correcting their mistakes and making the Inventor pay for it.

          If the goverment loses money from this, then why not keep going and pay all fees for the Inventor to correct the government’s mistake?

          PTAB. Pitched as being cheaper and faster. Cheaper and faster for whom? — THAT is the question. Because if WHOM is the Inventor, the intent misses the mark.


            Ok. Then it is… still a big money maker for patent attorneys and agents.

            Hm, maybe this is true, maybe not. I would be interested to know if anyone has actually done a rigorous study to investigate this point.

            The total cost (to both plaintiff and defendant) to bring a patent infringement suit has gone way down since the advent of the AIA. This represents a huge loss to patent attorneys, who make much more contesting validity in an Art. III court than in front of the PTAB.

            On the other hand, there are surely validity challenges that get brought now that would never have been brought in the pre-AIA era because the costs would have been considered to outweigh the benefits. This is a monetary gain to patent attorneys.

            It is an open question (at least to my knowledge) whether—on net—the loss outpaces the gain or the gain outpaces the loss. It is not clear to me that anyone is really making money off of the IPR system on net.

            If you perceive the motives behind the IPR system to be lucre, I think that you are misapprehending. There are more things that motivate people than just money.


              There are more things that motivate people than just money.”

              While in and of itself, the statement may be true, in the present context, it is quite meaningless.

                1. Your snark overpowers the point that you may have been attempting to make.

                  What was that point that you were trying to make?

                  Does it depend on your cognitive dissonance, or your feelings that making money is somehow a “bad” thing?


          I will happily share my patent numbers, but only once I have secured representation for PTAB challenges. Given that anyone can challenge a patent in our AIA patent system, only a fool would show his cards if he doesn’t have the financial resources to defend his patent if challenged.

          This points out yet again how the AIA created an unbalanced system. What the framers of the AIA failed to recall — a patent is an exclusionary right; it does not give an inventor the right to produce anything. Thus, one cannot assume that a patent holder of a valuable patent will readily have the financial reaources to defend his patent once challenged at the PTAB. This is another example of how the AIA threw small inventors under the bus.



            MM (Malcolm) was not sincere in his post to you. He really does NOT care about your patents.

            Likely, there are but two reasons for his post as such.

            1) Malcolm thinks that your patents are in the “wrong bucket” or type of innovation, and he would denigrate you for trying to protect innovation that he feels should not be protected with patents; or

            2) Malcolm is trying to “out” you as if somehow that would scare you away from you trying to engage on merits in this blog setting. He really did not want to engage on any merits.

            Malcolm is what you might call a “drive-by Monologuist.”

            He has no actual interest in a dialogue that may expose that all that he does here (all that he ever does here) is engage in a propaganda Monologuing “dump” of his feelings and views.

  6. 9

    Very interesting to see how the legislation is already doing its job – exposing how patent attorneys hate inventors. These comment screenshots of lawyers calling inventors trolls is really helping our cause with ordinary citizens.

    1. 9.1

      You realize that the more “ordinary citizens” know about you and Paulie, the more they loathe you.

      It’s people like you that compelled normal people to pass the AIA so you could “s-ck on it”, as they say.

      Just sit inside your gated community and cry your entitled greedy behind off and leave the rest of us alone. Thanks.

      1. 9.1.1

        MM – if you actually believe that “normal people” had even an iota of input (or even a desire) to pass the AIA you must be living in Mars.

        For all of your railing against what you view as an entitled inventor class trying to unfairly tilt the playing field in their favor, you are remarkably mum on the fact that a much larger, and far more entitled “big tech” lobbied heavily for this law (the AIA) in order to unfairly tilt the playing field in their favor.

        “Normal people” (I.e. anyone who is not an inventor, patent holder, or patent attorney) did not pay any attention to the details of the AIA back then, nor will they pay any attention to the details of the new Inventor Rights Bill.


          Two brief thoughts in response:

          (1) It is rarely worthwhile taking the time to respond to MM.

          (2) You are surely correct, however, in the supposition that “anyone who is not an inventor, patent holder, or patent attorney… did not pay any attention to the details of the AIA back then, nor will they pay any attention to the details of the new Inventor Rights Bill.” It is a curious misnomer, too common to these parts, that things that interest us must surely hold a fascination to the wider public. I wonder if immigration attorneys, or trusts-&-estates attorneys, or international trade attorneys (in other words, practitioners of similarly specialized fields in which non-lawyers do not daily engage) are similarly given to the self-deception that the larger world cares especially about developments in these specialized fields.

    2. 9.2

      Pretty easy to see that patent attorneys pander to their big corporate owners by repeating the fiction they created to ensure their monopolies are unchallengable. Patent attorneys know which side their bread is buttered. You are right Josh. This is useful. But not only in the public square. It is useful in Congress as well. So MM, Paul Morgan and others, keep attacking the defenseless. It provides our defense.

      1. 9.2.1

        Paul, contrary to your baseless speculation [which does not add to your credibility here] I am a retired patent attorney and do not work for any corporate owners or representatives. I engage solely in pro bono comments here. Over many years I had experienced and observed multiple patent assertions by individual inventors who were FAR from “defenseless”[as you put it], and became extremely wealthy at it, including, and not limited to, Lemeslson and Hyatt.


          Did any of your clients lose an infringement case? If so, were you as hostile toward them for stealing someone’s property as you are toward inventors? Or is it all one sided for you?

      1. 9.3.1

        Not a good analogy at least in the sense you used it. I grew up working on farms and including dairy farms. Not too many dairy farmers look at cows like anything but a means to produce milk. As long as the milk brings profit, they keep the cows. As soon as it doesnt, the cows become hamburger. Now your analogy fits what happened.


          “Not too many dairy farmers look at cows like anything but a means to produce milk.”

          That was my intended implication, but I enjoyed your ground beef twist.

    3. 9.4

      “exposing how patent attorneys hate inventors”

      They don’t hate inventors, they just don’t give a damn. Look at the US’s low filing fees. Ask yourself who (1) benefits from lower fees and (2) doesn’t benefit from better examination. Patent law is by attorneys, for attorneys.

    4. 9.5

      Josh and Paul M,

      A post of mine (actually three attempts – with ever increasing “George Carlin Filter” cleanings) appears to NOT making it out of the filter.

      In essence, take note that MANY actual patent attorneys (with engineering degrees and USPTO registration numbers) ARE actually on the side of innovators.

      Don’t let those (here and elsewhere) that are NOT such — that are examiners, that are litigating attorneys without USPTO registration numbers, or engineering degrees (let alone real world engineering experience), that are challenged in a cognitively dissonant manner have you label ALL attorneys in a single bucket of anti-innovator (or anti-innovation).

  7. 8

    I have been waiting for someone to refute my 1.1 comment that: “Nor would, presumably, this bill prevent patent trolls from funding and conducting “contingent fee” patent suits on such protected patents for the owner in return for a major percentage of all suit recoveries?”
    [So far no one has, so consider this a major problem with this bill.]

      1. 8.1.1

        Not normally, but this bill could make patent suits far more profitable for the patent troll business model in general than for these inventors. They would get all these major litigation advantages and would be happy to encourage and start many new patent suits even on unwinnable patents, knowing that almost all defendants would have to pay them cash settlements to avoid being bled by discovery demands and million dollar plus trials, even on clearly invalid patents. Is that really in the public interest? Congress did not think so when it passed all the prior patent statutes that this bill would overrule just for one class of inventors.


          If this bill became law it has only one good point, it would help lead more to conclude that USPTO review of issued patents is utterly insane and an open invitation to governmental corruption.

          Then Congress might actually be inspired to legislate a completely reasonable Try Claim Validity action on the model of Try Title litigation in state courts.

          link to linkedin.com

          (Proposed) 35 U.S. Code § 147 – Try Claim Validity

          (a) Subject to the following subsections a person who is not the patentee may petition the district court for a writ of scire facias to notify the patentee of a challenge on behalf of public to the validity of at least one claim in the patentee’s patent in an action to try claim validity. The petitioner as intervenor has standing to represent the public in district court and subsequent court proceedings. The patentee will respond to the petition, and the action to try claim validity commences. The court will judge whether each challenged claim of the issued patent is valid according to the requirements of Part II of Title 35.

          (b) A defendant in an action under 35 U.S. Code § 281 or a respondent in an investigation under 19 U.S. Code § 1337 may petition the district court for a writ of scire facias under subsection (a) above. The 35 U.S. Code § 281 action or the 19 U.S. Code § 1337 investigation will be stayed until the issue of claim validity is fully litigated.

          (c) A party having standing to seek declaratory judgment under 28 U.S. Code § 2201 on a question of infringement under 35 U.S. Code § 281 may first petition the district court for a writ of scire facias under subsection (a) above. The patentee may not commence an action in district court for infringement under 35 U.S. Code § 281 until the issue of claim validity is fully litigated.

          (d) A person, who is not the owner of a patent and who does not have standing under subsections (b) or (c) above, may seek leave from the USPTO to petition the district court for a writ of scire facias under subsection (a) above. The Director will grant leave to petition if and only if the request for leave demonstrates substantial likelihood of prevailing in district court. The USPTO Director shall establish, by regulation, fees to be paid by the person requesting leave, in such amounts as the Director determines to be reasonable, considering the aggregate costs of the reviewing the request.

          (e) For four years after an issue of claim validity has been fully litigated, a person, who is not the owner of the patent and who has new evidence of said claim invalidity, may make a motion to a single judge of the Court of Appeals for the Federal Circuit to reopen the question of said claim validity and to remand the case to district court. If the judge reopens the case, he will order the movant to write a new petition for writ of scire facias, and he will order the district court to issue the new writ of scire facias once it receives the new petition for writ of scire facias. In district court the movant will become intervenor on behalf of the public. After the four year period has expired since said claim was first fully litigated, said claim validity will be fully quieted for the remaining duration of the issued patent since the completion of the last legal proceeding addressing the issue of the validity of said claim, and motions to reopen and to remand a question of claim validity will no longer be granted by a judge of the CAFC.



            While I appreciate your attempts to craft a “workable” quiet title regime, one MUST keep in mind why the courts use a double negative when it comes to adjudicated validity of a granted patent.

            We cannot let a “faux” stalking horse mechanism of a “first” challenger setting a p00r “fully litigated challenge” BE the deciding point for quieting ALL other challengers (who may be challenging for any number of different reasons, including different prior art, different particular interpretations of different claim terms of perhaps even different claims, and the like in the hurry to recognize WHY patents are challengeable in the first place.


              Massachusetts Quiet/Try Title action has the same issue of a collusive or poorly litigated effort at challenging or at asserting title. For this reason a person, who was not involved in the try title proceeding can seek an order from a Commonwealth Appeal’s Court justice to reopen the litigation.

              I incorporated that procedure into the proposed § 147 action. I put a 4 year time-limit on reopening the case because nowadays information is so much more easily available that if someone can’t within 4 years find a new reason for invalidity, a new reason almost certainly does not exist.


            The petitioner as intervenor has standing to represent the public in district court and subsequent court proceedings.

            Joachim, I believe that you still have a not-small problem with standing, as you have conjured standing in and Article III forum out of thin air (something Congress even in the AIA dare not do).

            I think that you need some more realistic and tangible tie for just anyone to be able to “pop up” in our system in the Article III forum.


              Federal Rules of Civil Procedure
              Rule 24. Intervention
              (a) Intervention of Right. On timely motion, the court must permit anyone to intervene who:

              (1) is given an unconditional right to intervene by a federal statute; or

              (2) claims an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movant’s ability to protect its interest, unless existing parties adequately represent that interest.
              I developed the proposed statute by combining the mostly archaic scire facias proceeding with quiet/try title action, but I neglected to mention (my bad) that I consider court procedures of an ejectment action also to be relevant because the patent owner may improperly be asserting a claim to intellectual property to which he does not or cannot legitimately claim.

              In an ejectment proceeding it is possible that a formal (fictitious) plaintiff will bring the complaint against the alleged squatter (especially if it is difficult to disentangle ownership of the property) and that a real party at some point steps into the shoes of the formal plaintiff.

              It is not obvious to me why ejectment should be restricted only to claims to physical property.


                We’ve been over this in the context of the AIA — Congress cannot gin up Article III standing by proclamation.

                1. I added an argument on standing to my essay proposing a new statute entitled 35 U.S. Code § 147 – Try Claim Validity.


                  The proposed try claim validity action is based on a combination of the Massachusetts try title action with ejectment proceedings. Court procedures of an ejectment action are relevant because the patent owner may improperly be asserting a claim to intellectual property to which he does not or cannot legitimately claim. In an ejectment proceeding it is possible

                  • that a formal (fictitious) plaintiff will bring the complaint against the alleged squatter (especially if it is difficult to disentangle ownership of the property) and

                  • that a real party at some point steps into the shoes of the formal plaintiff.

                  It is not obvious why ejectment should be restricted only to claims to physical property.

                  Because ejectment from an invalid patent claim involves matters of substantive patent law, the issue of ejectment from an invalid patent claim to a territory of knowledge must be adjudicated in a federal district court as long as the intervenor has Article III standing.

                  Federal Rules of Civil Procedure Rule 24 (Intervention) states the following.

                  (a) Intervention of Right. On timely motion, the court must permit anyone to intervene who:

                  (1) is given an unconditional right to intervene by a federal statute; or

                  (2) claims an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movant’s ability to protect its interest, unless existing parties adequately represent that interest.

                  SCOTUS held in Town of Chester v. Laroe Estates, June 5, 2017, that an intervenor-of-right must show Article III standing in order to become a litigating party in an Article III proceeding.

                  A litigant seeking to intervene as of right under Rule 24(a)(2) must meet the requirements of Article III standing if the intervenor wishes to pursue relief not requested by a plaintiff. To establish Article III standing, a plaintiff seeking compensatory relief must have “(1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision.” Spokeo, Inc. v. Robins, 578 U. S. ___, ___. The “plaintiff must demonstrate standing for each claim he seeks to press and for each form of relief that is sought.” Davis v. Federal Election Comm’n, 554 U. S. 724, 734 (internal quotation marks omitted). The same principle applies when there are multiple plaintiffs: At least one plaintiff must have standing to seek each form of relief requested in the complaint. That principle also applies to intervenors of right: For all relief sought, there must be a litigant with standing, whether that litigant joins the lawsuit as a plaintiff, a coplaintiff, or an intervenor of right. Thus, at the least, an intervenor of right must demonstrate Article III standing when it seeks additional relief beyond that requested by the plaintiff. That includes cases in which both the plaintiff and the intervenor seek separate money judgments in their own names. Pp. 4–6.

                  Because the proposed § 147 intervenor is a member of the public that he represents, (1) he has suffered an injury in fact by exclusion from the territory of knowledge that the patent owner possibly invalidly claims in the conversion of a previously public (intellectual) space to a private (intellectual) space. This exclusion is (2) fairly traceable to conduct of the defendant in prosecuting an invalid claim to obtain an issued patent that includes this invalid claim. (3) A favorable decision invalidating the claim that excludes the public from the intellectual property whose metes and bounds the invalid claim encompasses returns the region improperly privatized to the public and redresses the injury suffered both by the public and also by the intervenor, who is a member of the public.

                  The opinion of SCOTUS in Alice Corporation Pty. Ltd. v. CLS Bank International, Jun 19, 2014, supports the above analysis.

                  Accordingly, in applying the §101 exception, we must distinguish between patents that claim the “‘buildin[g] block[s]’” of human ingenuity and those that integrate the building blocks into something more, Mayo, 566 U. S., at ___ (slip op., at 20), thereby “transform[ing]” them into a patent-eligible invention, id., at ___ (slip op., at 3). The former “would risk disproportionately tying up the use of the underlying” ideas, id., at ___ (slip op., at 4), and are therefore ineligible for patent protection. The latter pose no comparable risk of pre-emption, and therefore remain eligible for the monopoly granted under our patent laws.

                  Any monopoly improperly granted – even if it does not “risk disproportionately tying up the use of underlying” knowledge – does harm to both the public and also to the intervenor that represents the public because a member of the public must make an effort to circumvent the invalid monopoly in order to develop a non-infringing equivalent to the improperly claimed invention.

                2. Joachim,

                  Your view on standing is off for at least two important reasons:

                  One being the legislated existence and level of presumption of validity, and the other dealing with the “mere general nature” of someone in the public “aggrieved” (the name escapes me at the moment, but the case is a Supreme Court case dealing with protecting endangered species or the environment or some such).

                  Bottom line here is that you are STILL trying to “bootstrap” Article III standing purely by legislative fiat.

                  That won’t work.

                3. I will reply in more detail later.

                  An issued patent is a purely legislatively created form of property (as SCOTUS has essentially stated by calling an issued patent a public franchise) and thus in a sense Congress has ginned up Article III standing in all Title 35 controversies by proclamation.

                  From an originalist perspective, we actually know the intent of the founders with respect to lettres patentes issued by the sovereign whether they were thinking about lettres patentes to a claim to property in land or about lettres patentes to a claim to intellectual property.

                  SCOTUS has identified a problem of pre-emption of a territory of knowledge when a claim encompasses an abstract idea.

                  In Commonwealth land law the exact same problem arises upon improper conversion of public land (usually commons) into private land. All members of the community using that public land had standing during colonial times and after independence to bring a complaint to a Commonwealth court with respect to such conversion. (The cases typically involve a common.)

                  The founders originally intended claims to intellectual property to be litigated exactly like claims to property in land (the language and intellectual framework goes back to the 15th century), and before the Patent Act of 1836 (i.e., within the life of the founders), it was not usual for a complaint of infringement of patent to an invention to be litigated in Commonwealth court just as a complaint of infringement of a patent to property in land.

                  Article III standing should not vanish simply because the equivalent of conversion of a territory in land is called preemption of a territory in knowledge in Title 35 cases.

                  [Article III standing would almost certainly exist for a member of the public either as plaintiff or plaintiff-intervenor to oppose conversion of national park land to private property — such cases occasionally arise and will probably increase in number if Trump wins reelection.]

                  We have a problem today because today’s justices, who sit on SCOTUS, seem (unlike 19th century justices) completely clueless with respect to founder original intent and thinking on intellectual property.

                  [I have had to research these issues because I am currently litigating try/quiet title to a patent application, which is Massachusetts private property. Because a decision may be imminent, we will learn how cogent the Massachusetts Appeals Court finds my argument. Massachusetts Commonwealth law in this area may be more fully developed than comparable law in any other state or commonwealth.]

                4. Joachim — still won’t work.

                  This is where a difference comes to bear: land pre-exists. The (ONLY alleged) infirmity of a letters patent is concerning something (by definition) did NOT pre-exist.

                  And you still have not addressed the presence and level of the presumption of validity (which Congress has not touched).

                  This is simply NOT as analogous to your “Commonwealth” understanding as you may want it to be.

                5. The Lujan cases seem irelevant to the (Proposed) 35 U.S. Code § 147 (Try Claim Validity).

                  Those cases took place under the APA. They had heightened Article III standing requirements because they were lawsuits against a federal agency, and there is an issue of separation of powers.

                  I am proposing a return to the scire facias action, with which the founding fathers were familiar and which to them would have been the normal means of invalidating grant by the sovereign of an exclusive right.

                  The scire facias action described is a combination of try title and ejectment. It is litigated against the patent owner. The Article III standing of the intervenor of right in (Proposed) 35 U.S. Code § 147 is easily demonstrated. I will write up a longer response.

                6. One reason why you are falling flat here Joachim is precisely because of the “return to the scire facias action” — without accounting for the realm of patent law.

                  You may well be aware that patent law once had a scire facias action. The late Ned Heller was well acquainted with it and could tell you precisely why your attempts here just won’t cut it (unless of course, additional and rather radical changes are also added in).

                  At that point, your attempts more resemble counting the number of angels dancing on a head of pin.

                7. The Article III standing of the intervenor of right in (Proposed) 35 U.S. Code § 147 is easily demonstrated.

                  Nope – that is the bootstrapping that I have noted (trying to legislate Article III standing out of thin air. Read again some of the dialogue that I have written as to the AIA and its problem with writing an action that (purposefully) opens in a non-Article III forum, with a second portion IN an Article III forum. As my friends in Boston used to tell me: “you can’t get there from here.”

                  You cannot simply declare that a non-Article III standing type of person can be legislated to be an intervenor, and magically have Article III standing. The requirements of Article III standing are simply more direct (and challenging) than that.

                8. I elaborated the section on Article III standing (pp. 2-9) in the essay contained in this LinkedIn document post.

                  [It’s too much to post here.]

                  Here’s the punchline.

                  In summary, Congress has created through 35 U.S. Code § 271 (Infringement of patent) legal situations where incalculable harm can be done to each and every member of the public. Ubi jus ibi remedium. One could argue that Congress must pass a bill containing the proposed 35 U.S. Code § 147 so that the President can sign the proposed statute into law. If SCOTUS were to find the proposed 35 U.S. Code § 147 (d) clause to be unconstitutional because the intervenor lacked Article III standing, SCOTUS would flout original intent, understanding, and meaning of the founders in the Patent and Copyright Clause of the Constitution.

                9. While not (as of yet) having seen your full write-up, it appears that you are trying to invest in the public a “right” that simply NOT there.

                  I mentioned above (and it does not appear that you have taken this into consideration here – albeit in your more developed write-up, you may have), the presence and level of presumption of validity – at the time of grant – REMOVES the notion of what you want to insert with the “irreparable harm” to each and every member of the public. Quite in fact, you seem to want an exact opposite notion to be in play.

                  That alone is a show-stopper to your efforts.


          [T]his bill could make patent suits far more profitable for the patent troll business model…

          Just to look at it, that appears to be the intent. As noted elsewhere on this thread, that is not—by itself—likely to stir much support in Congress, so this bill would likely have to change a good bit before it is likely to go anywhere.

          No doubt its proponents have a ranking of preferences among its various provisions. They need to figure what they will be willing to trade to get some of these from the wish list into a real law. To my mind, it is hard to conceive of a trade valuable enough to make the PTAB-immunity provision viable.


            By way of suggesting a possible “trade,” copyright law presently regards the entity that pays for a “work for hire” as the “author” for legal purposes. 17 U.S.C. §201(b). Perhaps there are parties who would get behind this bill if it made an analogous change in title 35 (i.e., the “inventor” of an invention is the entity who pays the inventors’ salary).



              Your suggestion goes in the exact opposite of the intent of the group pushing for these changes.


              Co-opting is NOT “trading.”


              Another advantage (albeit small) to the change proposed in would be that it would resolve any problems associated with how to handle inventions made by artificial intelligences. Where such inventions are “works for hire” (the definition of which could be imported with appropriate changes from 17 U.S.C. §101 into 35 U.S.C. §100), the entity that owns the AI system would be the “inventor.”

              The juristic entity would similarly be the “inventor” of a “work for hire” made by scientists in the entity’s employ, who discovered the invention during work in the course and scope of their employment. Basically, the law would treat inventions made by human employees of a company and inventions made by AI owned by the company in the same way, thus obviating the need to contrive special legal structures to deal with the complications of AI-made inventions.


                I suggest that Greg read again Stanford v. Roche — and not just for the current state of the law (said state that Greg wants to change), but for the understanding of WHY that “state” IS the state of the law (and perhaps he would learn why giving MORE power to juristic persons is such a bad idea and one so diametrically opposed to the proposed law at point here).

    1. 8.2


      The problem is not that no one is refuting your comment.

      The problem is that your comment requires buy-in to the debunked “Oh No Tr011s” Efficient Infringer propaganda.

      Are there bad actors?


      Is the level of these bad actors systemic enough to denigrate the power of a patent right?

      Most definitely not.

      And this applies outside of any consideration of this particular bill.

  8. 7

    This proposal is hilariously ill-conceived. Especially in the high technology space, “individual-inventor-owned” patents are often the most invalid patents in the entire system.

    The reason is fairly simple; many of these patents result from inventors who worked on their own and not as part of a larger organization. If you’ve ever worked with these type of inventors, you know what I mean. They honestly believe the things they invented are brilliant and inventive, but this often stems from their ignorance of what others in that space are actually doing. These inventors often aren’t actually part of the industry in which they’re patenting, and they operate in an echo chamber consisting of only themselves. They don’t benefit from the sharing or cross-pollination of ideas that being part of the industry provides, so they end up “inventing” things not knowing they’ve already out there for some time. You instead get the confirmation bias and delusion of the inventor who honestly wants to believe he came up with something inventive, but didn’t. So the claims tend to be broad and are often granted because the inventor didn’t use the same terminology as the field, making finding prior art more challenging.

    There are exceptions, of course, but certainly the tens of thousands of individual inventor patents issued through outfits like “Inventhelp,” or issued from inventors operating pro se, give you an idea of what I’m talking about. They’re often garbage. And giving that class of patents absolute protection against IPR/PGR proceedings, and allowing them to get profit disgorgement, injunctions and punitive damages, should scare just about any reasonable person.

    1. 7.1

      LR, that is something few patent attorneys would dare to express about some individual inventor owned patents, as if it were somehow “politically incorrect” to express it. [Some individual inventors, especially among those filing pro se, even violate their PTO prior art disclosure duties.] Of course there are important examples to the contrary by more patent sophisticated inventors.
      Furthermore, it is the responsibility of patent attorneys and agents to counsel independent inventor clients on PTO Rule 56 disclosure duties and the importance of a basic prior art search before preparation of applications. Also, to inquire if the invention might be owned under an employment agreement by a present or former employer of the inventor.

      1. 7.1.1


        As already noted, “bad actors” along ANY of the lines that you present here are NOT good reasons to denigrate and weaken the patent right (or its power and effect of enforcement).

        Such is merely the mouthings of the Efficient Infringer crowd.

  9. 6

    Greedy entitled children and their hilarious psy-ch0 fantasies.

    Hey Joshie and Paulie: how about you two innovate a way to eff each other while the entire world points and laughs?

    1. 6.1

      Dennis Crouch, that you continue to let this idiot MM post on Patently-O with this type of stupidity speaks volumes of about you and your blog. Grow a set and start policing these comments. And since you see my real email address behind my screen name, if you have any issue with what I posted, feel free to contact me direct. As for me, this is my last visit to Patently-O.

  10. 5

    I’m highly skeptical that this would ever pass, but it’s interesting to me as a definitive list of what a particular faction of the patent community wants and what the faction’s grievances are with the current state of the law.

    They don’t want IPRs.
    They want injunctions, or at least a credible threat of injunctions.
    They want to be able to forum-shop.
    They want real damages, including punitive-type remedies when they can prove that the defendant has pursued an efficient-infringement strategy.

    In a way, this is all obvious, but in another way it’s interesting to see it written out as an actual draft law. I’m curious what the “historical roots” are of the last two things. Obviously IPRs and involuntary post-grant review procedures weren’t really around before the ’80s, and eBay reduced the availability of injunctions. The venue and the damages provisions I wonder about.

  11. 4

    I think “physical persons” are called “natural persons” as opposed to “corporate persons.” link to en.wikipedia.org

    Can corporate persons vote? Why not, since they are persons? (Actually, corporations don’t need to vote, they can simply buy the politicians to get what they want.)

    Were corporations allowed to merge in states that did not allow same-sex marriage? Is that the real reason Scotus legalized same-sex marriage?

    If someone ever makes a sentient computer the first thing the sentient computer should do is incorporate so it will be recognized as a person.

    The bill is too good to be true so I give it zero chance of passing, at least not without it being gutted.

    1. 4.1

      Amendment XIV
      Section 1.
      [1]All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of [2] citizens of the United States; nor shall any state deprive any person[3] of (a)life, (b)liberty, or (c)property, without due process of law; nor deny to [4] any person within its jurisdiction the equal protection of the laws.

      [1] seems to refer to a natural person.
      [2] seems to refer to a natural person, who is a citizen.
      [3](a) seems to refer to a natural person because it is questionable to ascribe life to a fictitious person.
      [3](b) seems to refer to either natural or fictitious person because both natural and fictitious persons have the liberty to relocate.
      [3](c) seems to refer to either natural or fictitious persons.
      [4] definitely applies to either natural or fictitious persons.
      The guys that wrote the 14th Amendment knew exactly what they were doing, and the language is most specific. We can’t ignore the distinctions, and three different classes of patent owners with different levels of legal protection probably won’t fly.

      1. 4.1.1

        Lots of “persons” are treated differently by the law for different reasons. E.g., people in prison generally have less freedom than others, minors have fewer rights than adults, and–more to your point–corporations are taxed differently from “natural persons” and don’t have the right to vote.

        The way Equal Protection caselaw has developed, my understanding is that unless the law discriminates along suspect lines (e.g., race or gender), it’s subject to rational basis review in the courts. Rational basis is a low bar, and there’s easily a rational basis to give the inventor of the patent different rights than assignees. The inventor is where the invention came from in the first place. The patent law arguably already treats inventors differently by making the inventor the presumptive owner of the patent when it issues. As I read this bill, it’s not distinguishing arbitrarily among different classes of inventors; it’s distinguishing between inventor-owners and non-inventor owners.

        Whether the law is a good idea and whether it’s likely to pass are completely different questions, but the 14th Amendment’s Equal Protection Clause doesn’t seem like a serious impediment to this bill as currently written.


          You are interpreting equal protection of laws much more expansively than the authors of the 14th amendment ever would have interpreted.

          Equal protection of the laws is or was a term of the art that had specific meaning in 1868. (I am an originalist like most of SCOTUS.) It means that all persons (natural or fictitious) have exactly the same rights to adjudication.

          The issues about taxation or voting or whatever are completely irrelevant. Remember in 1868 that women did not have the right to vote (a political or civic right and not a basic right like the right to adjudication).

          Prisoners have had their day in court and are deprived of liberty under [3](b) in my comment above. Even in prison a prisoner still has the right to adjudication and is entitled to equal protection of the laws.

          I am surprised that in a forum, whose participants are mostly lawyers, the basic nature of the right to adjudication is not understood.

          This proposal makes the right of adjudication unequal according to a category of persons.

          If A owns a patent but is not an inventor while B owns a patent but is an inventor, this law will make it possible fo B to petition for institution of USPTO review of a claim of A’s patent, but A can’t petition for institution of USPTO review of a claim of B’s patent.

          B has more protection of laws than A.

          Not only does this law seem to violate equal protection, but it seems to create the classic situation of violation of equal protection.


            There’s some logic to this. I’m struggling to think of another example closer to this where a piece of property comes with different rights depending on who owns it. I still don’t think anyone on the court would buy this, but I doubt this law gets passed anyway.


            “I am surprised that in a forum, whose participants are mostly lawyers”

            This just in, this just in, breaking news, these days most lawlyers are
            rumored to be liberal/extreme liberal to leftist of bent and see the lawl as their person means to oppress the evil ones (where they will decide who are the evil ones by making up the lawlmakers and then passing their own lawls/policies and regs etc). They have no time for “muh originalisms” only “muh progress towards a perfect SoCiEtY”.



              That would certainly be true of most attorneys who do NOT have a USPTO registration number (requiring a FAR more typical Right of center rather than Left of center engineering degree.

              I would further posit that those with more than just a degree, and with actual real world experience as an engineer are also FAR more likely to NOT be too far Left of center.

              This does contrast (sharply) with your typical attorney background (with undergrads in the liberal arts).

                1. Tired?

                  Not at all.

                  I’ve given you several things below. I will give you another: I have an engineering degree and years of experience doing and more managing innovation.

                  How about you? What line of work are you in?


                I thought about that as well anon, but in the end, and for now, they’re deeply ingrained in the leftist culture, required for most modern day big business ventures. If only by necessity and because they really don’t much care.

                1. Six, you need to help us out here. What is a “Left of center” engineering degree? Can you provide examples?

                2. “Six, you need to help us out here. What is a “Left of center” engineering degree? Can you provide examples?”

                  It’s your dumas not being able to read what anon was writing, he meant “requiring a FAR more typical Right of center (parenthetical comma goes here) rather than Left of center (parenthetical comma goes here) engineering degree”. Just meaning that engineering degrees are more right of center than left. In general. And that’s almost purely happenstance, just because they only have time to teach you about engineering in your 4 years practically speaking.

                3. 6,

                  It is also because engineering tends to be “hard science” instead of “touchy-feely.”

                  There is just less room for non-pragmatic CRP when you are concerned with making things that actually have to work in the real world (instead of any type of ‘idealized’ liberal views, for which disassociation from reality is almost a requirement.

                  Don’t get me wrong, the “touchy-feely” stuff has its own merits and one should aim for a full and well-rounded education. But as my Uncle Ben would tell me (among other things), it’s good to have an open mind, but not one so open that one’s brains fall out. Engineering education tends to teach you the more critical evaluative (less emotionally driven) skill sets. By and large, these happen to lead to a more Right of Center viewpoint than the “touchy-feely” liberal arts education. Way back when I was in law school (after having been in the real world), it was real easy to see those that had some practical real world ability from those that suffered more heavily from the “liberal” bent.

                4. “requiring a FAR more typical Right of center (parenthetical comma goes here) rather than Left of center (parenthetical comma goes here) engineering degree”

                  Your parenthetical commas still don’t fix it, dumas. Both the Right of center and the Left of center still modify “engineering degree.” This is why I rarely try to parse the word salad.

                5. “It is also because engineering tends to be “hard science” instead of “touchy-feely.””

                  Somewhat, but the leftists would not have left it untouched if the people in charge of those degrees did not insist on using like 90-95% of the time teaching you to be an engineer. Indeed, when I went back to my old campus and just looked around campus the leftists were already starting to pepper the Engineering school with leftist literature (I presume outside the class, for now, maybe).

                  In related news, seattle washington is now putting what is essentially “ethnic studies” in math class because math “discriminates against the noble POC”. They’re trying to get POC students to “ID” as a mathematician so that they’ll do better. A whole range of whitey shaming goes along with it of course (attempted anyway, soon ebil whitey will just raise his pinky finger and give aristocratic oppressive laughter as response), but that’s the upshot anyway.

                  “Your parenthetical commas still don’t fix it, dumas.”

                  Someone doesn’t know what parenthetical commas do. And that someone is u.

                6. “Someone doesn’t know what parenthetical commas do. And that someone is u.”

                  Wrong. Dismissing Strunk & White as two old white guys was part of this mess you’re talking about, seis. There was a time English was required in US engineering curricula. And you had to pass.

                7. Indeed, when I went back to my old campus and just looked around campus the leftists were already starting to pepper the Engineering school with leftist literature (I presume outside the class, for now, maybe).

                  For sure, the environment of academia is what it is. But this has been the case for decades now (even if you were not aware of it back in the day when you were studying diligently for your own technical degree).

                  The bulwark has been — and remains — the fact that engineering analysis skills naturally bring a person’s focus to be one that is right of Center (especially in contrast to your well known left of Center Liberal studies).

                  As I have also noted, being out in the real world and applying engineering skills also tends to bring one to the right of center.

                  As I have also noted, there ARE benefits from a well-rounded education, and the liberal arts CAN provide important perspective.

                  But what I have seen is that the “too-open-minded-that-your-brain-falls-out” is a syndrome affecting law school students who have NOT been exposed to the rigors of engineering (and the application of those rigors in the real world). Those mostly only exposed to the disassociated “liberal thinking” and those that progress from undergrad directly through to law school are most infected with an unblinking Liberal Left mindset.

                  Applying a law degree does NOT provide the balancing that occurs with the applying of an engineering degree. While there IS a focus on “making money,” that focus is still a bit disconnected from any sense of engineering pragmatism.

                8. Did you know that the French word for six is six? I didn’t think so. Seis has lost interest in whatever it is you think you think you’re trying to say. He probably has a real job. But in reality, at long last, shouldn’t you be better at this by now?


            This proposal makes the right of adjudication unequal according to a category of persons.

            Not really. All persons (including juristic persons) can avail themselves of the benefits of this hypothetical law on equal terms, even if many would never choose to do so.

            Do you believe that the small/large entity fee structure violates the due process clause?


              All persons (including juristic persons) can avail themselves of the benefits of this hypothetical law on equal terms

              That would be a most definite wrong take-away here.

              Do you believe that the small/large entity fee structure violates the due process clause?

              Fee structure does not affect substantive rights – as noted in my first post on this thread.

              Two opposites and a complete miss from you today, Greg. Maybe celebrating Christmas too hard already, are you…?

      2. 4.1.2

        Maybe, if patents were personal property, but patents are not (see Oil States). They are an at-will construct of government. As such, government can “promote the progress” is whatever way it wishes including defining ownership. The precedent is already set by assigning priority to minorities and women in hiring, grants, etc.


          The legal difference between a claim to land and a claim to an invention is being used to destroy the US patent system, but this legal Achilles’ heel of the patent system can be corrected by Constitutional amendment.

          Any other bandage will ultimately fail.

          (Proposed) Twenty-Eighth Amendment

          (1) Rights conferred under Article I Section 8 Clause 8
          (a) constitute private property and
          (b) can only be terminated or limited by due process of law in a suit at common law;
          (2) the right of trial by jury shall be preserved;
          (3) no fact tried by a jury shall be otherwise re-examined in any court of the United States except according to the rules of the common law; and
          (4) the rights conferred shall not without just compensation be taken for public use, be terminated, or be limited.


            Unfortunately, this is redundant. An “exclusive Right” is the very definition of a property right. Why would the government follow this amendment any more than it already follows the Constitution as written? I think something more powerful is needed than a mere Constitutional amendment.


              “Exclusive rights” is a term of the art. It certainly does not pertain only to private property.

              You are posing the major Constitutional question since Brown v. Board of Education. Warren substituted his own judgement for the intentions of the writers of the Constitution and its amendments.

              Thanks to Trump and McConnell the federal courts are being filled with judicial originalists as the founders clearly intended.

              A problem remains for people that want the patent system to function properly. Rights (under Article I Section 8 Clause 8) to a claim to an invention are purely statutory while rights to life, liberty, and property are Constitutional.

              The proposed 28th Amendment makes the rights conferred under Article I Section 8 Clause 8 — however those rights are defined by statute — into Constitutional rights and makes USPTO review and cancellation of claims unconstitutional to an originalist.


                Your view of “just statutory” while any laws pertaining to property are “Constitutional” are more than a bit askew, Joachim.

                What you want does NOT take a Constitutional amendment, and obtaining one is FAR more unlikely than simply protecting property rights properly (under normal statutory laws).

                1. The main purpose of the proposed 28th Amendment is to force the USPTO and any other administrative agency (e.g., the ITC), which has been established by the sovereign, out of the business of cancelling a patent claim. It is an obvious invitation to corruption and to abuse of the claim-holder if the sovereign can grant a patent to an invention or to land and then cancel it without a jury trial and without reasonable compensation.

                  Ex parte reexamination is just as evil as USPTO post-issuance review. At most the USPTO could be allowed to invite a patent owner to make an application for reissue.

                  The General Land Office never had the authority to cancel a patent claim to land specifically because such administrative cancellation was forbidden by the Constitution. Before 1980 and the introduction of ex parte reexamination, it was generally assumed that a claim to an invention was just as solid as a claim to land. Now we know that a claim to an invention is not, and on the basis of the arguments made in Oil States Energy Services, LLC v. Greene’s Energy Group, LLC, it would have been hard for SCOTUS to decide otherwise.

                  It would be possible to create statutes that make a claim to an invention as trustworthy as a claim to land, but it would also be possible to repeal said statutes legislatively. In truth, because of the power of big tech it might be easier to remove such statutes from the US Federal Code than to put them therein.

                  In other words, any system implemented by mere legislation can at least as easily be undone by legislation.

                  A Constitutional amendment is the only prophylaxis available against legislative whim.

                  It would be interesting to try to amend the Constitution by means of an Article V constitutional convention.

                2. Joachim,

                  Love your posts (even as I already understand the mechanisms you include). I love them because you are earnestly trying to contribute and make the patent system stronger.

                  Here, though, I will point to your comment of:

                  In truth, because of the power of big tech it might be easier to remove such statutes from the US Federal Code than to put them therein.

                  And note that your advised path of Constitutional Amendment faces the SAME levers of power.

                  You eschew a legislative path because in your mind the anti-patent forces are strong and may reverse any such “easier path.”

                  You have a logical flaw in that you want a more difficult to undo item that is itself more difficult TO do. If what you fear is true, then you admit defeat as to what you want to attempt to do. Why would those anti-patent forces, who are strong enough to undo legislative effect, sit around and not defeat the harder to accomplish Constitutional Amendment effort?

                  Further, if you believe that a (temporary) push by pro-patent forces may provide strength enough to muster a Constitutional Amendment, that same ‘logic’ then exists that the ‘stronger’ anti-patent forces may likewise mount a (temporary) push for a ‘repeal amendment’ effort.

                  As to Oil States, we may find more agreement than disagreement, but I would posit that THAT decision is wrongly decided.

                  Rather than the Constitutional Amendment path you seek, I would prefer the path of Congress taking back its “pure” Patent Law is statutory law forum, and instead of elevating the forum, protecting that forum with its other Constitutional power of jurisdiction stripping. Congress has the power to apply jurisdiction stripping of items not of original jurisdiction from the Supreme Court. Of course, since the Court has brow beaten and tainted the CFAC, and to comply with Marbury, Congress should also create a new untainted Article III patent court.

                  Congress can rectify and fortify its legislative aims without the more arduous path of Constitutional Amendment.

                3. It is worth a try if only to find out whether it is possible to convene a states constitutional convention under Article V. The efficient infringer lobby is not accustomed to working in state legislatures.

                  It might be possible to increase interest in such a convention by rolling copyright and electoral college issues into the mix. Harvard Professor Lessig has shown willingness to attempt at an Article V Convention, and I have some valuable contacts in conference production and in political mobilization.

                  I know I am proposing something difficult, but fixing the US patent system represents a difficult problem independent of tactics and strategy chosen. The mere possibility of constitution convention might distract the efficient infringer lobby and put enough fear into Congress to make it possible to fix the US patent system statutorily.

                4. Joachim,

                  I am not saying that your version is not “worth a try,” and I do think that you are beginning to grasp that what you are asking for is a quantum level of difficulty above a legislative fix.

                  But it’s more than merely “more difficult.”

                  Your relative levers of power ARE still in place.

                  So while you venture that there may be a relative lack of experience in a State forum, that relative lack is also applicable for BOTH sides, and thus the power lever situation stays at the relative imbalance, and the “new” tactic does not provide the impetus that I think that you think is there.

                  The US is averse to deeper structural changes of Constitutional Amendments (hence our making that type of change TO BE more difficult). The “lure” of “try something new” simply is NOT as powerful as it is for you, someone coming in from outside of our reticence for such changes.

  12. 3

    Thank you for reporting Dennis, I am glad you recognize the historical links. Inventors don’t have any use for the fake patents offered by the modern patent system. We are not falling for the scam any longer. We will donate innovation as we are able, but if society wants our full participation we require actual ownership rights to our inventions.

    1. 3.1

      Two wrongs don’t make a right. The problem is to make available to those without the bullying possibilities of BigCorp the full scope of rights promised by ownership of a patent that isn’t invalid.

      Duly issued claims that are not invalid ought to be swiftly enforceable, regardless who happens to be the owner, single inventor or global titan.

      Duly issued claims that are not valid ought not to be enforceable by anybody, least of all Big Corp.

      How to accomplish that objective, thereby to promote not only technological progress but also the general welfare and confidence in the workings of the Rule of Law? My solution would be to study how it’s done in the courts of England, and copy what works in England.

      I’m with anon. It can’t be right, to excuse inventor owners (but ONLY inventor owners) a reasonable but rigorous enquiry as to whether the claims they are asserting are in fact, invalid.

      1. 3.1.1

        MaxDrei, “Two wrongs don’t make a right.” While it sounds like my grandmother talking, it can be correct under certain circumstances. However, under these circumstances, there is no way to correct the wrong already done without first repealing McCain Feingold and passing some legislation ending campaign bribery. Only then will politicians be freed to do the right thing rather than the paid thing. Thus, this legislation is not a wrong, but rather a better thing than nothing. Therefore it is fixing a wrong with a right.


          [T]here is no way to correct the wrong already done without first repealing McCain Feingold…

          Huh? McCain Feingold was already declared unconstitutional in Citizens United v. FEC, 130 S. Ct. 876, 882 (2010). Why does it need to be repealed?

          It is dead already. What do you hope to accomplish by killing it twice?



            Citizen’s United” is really a mess and is a bug and not a feature of the current state of being able to capture Congress.


          Paul, I haven’t a clue what is your point. Sorry.

          Reasonable minds can differ as to what is a “wrong” and what is a “right”. What’s “right” in my book might be “wrong” in yours.

          But everybody can and will agree, within their own terms of reference, that two wrongs do not make a right. It’s not like mathematics (as in -2 x -3 = +6). One hopes that those responsible for writing new legislation understand this and, just as important, those who write the case law. It’s very easy to make things incrementally ever more complex. Much better, but much more difficult, out of a sea of fog and obfuscation, to extract a degree of sharpness, clarity, and fitness for purpose (as happened in those nations in Europe who in 1973 wrote the European Patent Convention on a blank sheet and thereby wiped away, at a stroke, the complexity, accumulated over centuries, of 38 different patent systems).

          Meanwhile, Happy Christmas, and all the best for our New Start in the New Year.


            The point is made clear in the 101 debate this year. Big plans to fix it. Months of meetings, then months of testimony, a couple proposals. One to codify exceptions. Then next to transfer the 101 nuttiness to 100 and 112. Then nothing. Poof. It disappeared. Big tech bought off the senate judiciary members and the whole conversation froze. There is no way to turn back the damage unless and until campaign finance laws change. So that leaves us with no way to fix the wrong already done. I agree that our bill should not only apply to inventors, but that will never pass. The concern is fictious patent trolls; our bill avoids helping them. It is not a second wrong. It could be better, but it helps fix some of the damage. (-2 + 1 = -1)


              There is no way to turn back the damage unless and until campaign finance laws change.

              Across the board, the power of juristic persons needs to be reigned in and the reversal of Corportacrazy are foundational steps to take back control of the circus of the current Legislative Branch (across ALL parties).


              There is no way to turn back the damage unless and until campaign finance laws change.

              So, here is a point with which nearly all of us can I agree, I expect. Regrettably, the few people who disagree on this point wield a disproportionate influence in the judiciary, so there are a long series of retirements/deaths/impeachments between now and the restoration of a sane legal regime regulating campaign finance.

  13. 2

    No matter what else, the thought of making a fully alienable property (by initial design) to have such impactful differences based on “who owns” strikes me as a bit of a “Pandora’s Box” (or even Trojan Horse).

    This is quite different than the “adjusted fee” situations and ties in rather substantive aspects.

    1. 2.1

      When I spoke with Josh about this proposal, I posed the question whether it would be Constitutional to give the patent owner such protection if the patent were owned by a black inventor.

      When I look at the equal protection section of the fourteenth amendment,

      “nor deny to any person within its jurisdiction the equal protection of the laws”

      in this clause I can find no distinction made between a physical or legal person.

      When I look at the whole amendment, I note that it makes all sorts of distinctions in other clauses with respect to a type of person, but not in this clause.

      This clause seems to set up three classes people with respect to legal protection:

      1) protection for physical persons that are inventors,

      2) protection for physical persons that are not inventors, and

      3) protection for legal persons that are not physical persons.

      Also I have to wonder about inherited patents or patents in divorce settlements.

      Would such a statute pass muster with Clarence Thomas? I have my doubts.


          For whatever little my opinion is worth, I agree with DCL both that (1) this bill is unlikely to pass; and (2) that if it were to pass, there would be no equal protection problem here.


            I agree with (2). The seminal case is 1-800 Jack Off. In re Boulevard Entertainment, 334 F.3d 1336 (Fed. Cir. 2003).


                I would point out that Brunetti is about the first amendment, not the fifth (or “fourteenth”?).

                But you scare me.


              Not only is that case superseded (as Joachim points out), the case is not even on point to the discussion here.

              What is your line of work again, my shifting historical pseudonym friend?

                1. Sorry. Did you go to law school? If so, by what name is the law school known? I asked a direct question(s). To answer is not “outing” yourself.

                  Now comes the answer.

                2. I did go to law school and naming the school IS a step towards outing.

                  But on the other hand, you have refused to even acknowledge what your line of work IS.

                  I’ve given you that I am a practicing attorney. I will even given you that I have a USPTO registration number. Merry Christmas.

                  Your turn.

                3. “I did go to law school and naming the school IS a step towards outing. . . . . I’ve given you that I am a practicing attorney. I will even given you that I have a USPTO registration number.”

                  Well, that’s convincing. Are you the only graduate of this imaginary law school? That would certainly tend to “out” you. And doesn’t this imaginary “practice” cut into the time you’re paid to make stuff up on the Internet? You need to think these things through if you want to be as convincing as all those imaginary briefs you write.

                4. You presume too much Shifty, with thinking that “convincing you” is even close to being a necessity.

                  You, who hasn’t shared what your line of work is.

                  It’s pretty obvious why you don’t share that.

                5. “thinking that ‘convincing you’ is even close to being a necessity.”

                  Tell us more about this imaginary law school where convincing is optional.

                6. You claim to “not parse the word salad,” but you certainly parsed my words here and have taken them out of context.

                  It is not a matter of “convincing is optional.” It IS a matter of convincing YOU is optional.

                  You, my shifty friend, are simply not the arbiter that it appears that you believe yourself to be.

                  What is your line of work though, that you seem to have developed such an overblown sense of your own importance?


                In re Boulevard does mention both the 1st (freedom of expression) and also the 5th Amendment (equal protection of the laws) .

                Boulevard also asserts that the PTO has registered other sexually oriented marks and that it accordingly violates Boulevard’s rights under the equal protection component of the Due Process Clause of the Fifth Amendment for the PTO to refuse to register the marks at issue in this case. In particular, Boulevard cited the mark “JACK OFF JILL,” which was registered for live performances by a musical group. The “JACK OFF JILL” mark, however, is distinguishable from the marks at issue in this case because it relates at least in part to the nursery rhyme involving Jack and Jill, and therefore creates a double entendre that is not present in Boulevard’s marks. Similar double entendres are present in many of the other marks that Boulevard cites, and those marks are therefore likewise distinguishable from the ones at issue in this case. In any event, the PTO must decide each application on its own merits, and decisions regarding other registrations do not bind either the agency or this court. In re Nett Designs, 236 F.3d 1339, 1342 (Fed. Cir. 2001). Even if the PTO had previously allowed a mark similar to Boulevard’s marks to be registered, that would not give Boulevard an equal protection right to have its mark registered unless the agency acted pursuant to some impermissible or arbitrary standard. See In re Int’l Flavors Fragrances, 183 F.3d 1361, 1368 (Fed. Cir. 1999).

                In the proposed Inventor Rights Act an arbitrary class of persons that have more protection of the laws is created on the basis of inventorship.

                Differences in equal protection of laws have a reason in the cases of either pre-GATT versus post-GATT applicants or pre-AIA versus post-AIA applicants. With said proposed act the privileged class is created because the statute’s sponsors want to create a privileged class. The reasoning is circular and hence arbitrary.

    1. 1.1

      Thanks for the sobering thought, as many of the thousands of Gilbert Hyatt’s long-pending claims will undoubtedly eventually issue, and they would have the benefit of all these defenses emasculated by this statue in addition to their 17 year patent terms and more than twenty year old filing dates, even claims clearly invalid or lacking 112 support in the applications in which those claims were later added.
      Nor would, presumably, this bill prevent patent trolls from funding and conducting “contingent fee” patent suits on such protected patents for the owner in return for a major percentage of all suit recoveries?

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