Where have all the Inventors Gone?

This 30 second clip comes from a recent Federal Circuit oral arguments in a case captioned In Re Google Technology Holdings LLC (2019-1828).  The voices you hear are Judge Chen asking a question and Kathryn Kayali representing Google.

Until recently, patent applicants have always been the human inventors.  Now the law allows the patent owner to serve as the applicant.  Thus, rather than identifying Bogdan Carbunar as the inventor, the caption as well as the briefing identify Google as the innovative entity.  The following quote is just one from Google’s briefing:

Google explains here that it (not the inventor) recognized the networking congestion problem and that it was the company (rather than the inventor) who developed a solution.

22 thoughts on “Where have all the Inventors Gone?

  1. 7

    Whatever happened to licensing instead of stealing? Why didn’t Google just license Java from the beginning if they needed it so badly. Just because you make billions from stealing doesn’t make it right…

    But to the original point, it was only a matter of time with the AIA and “harmonizing” with the non-US patent world that the inventors would subsumed into the corporate Borg and the assignees would get the money and the credit.

  2. 6

    Wasn’t there a case earlier this year in which someone tried to have a computer program listed as the inventor, the PTO said “no go” and the CAFC affirmed?

    1. 6.1

      Yes, the DABUS case.

      DABUS also failed at the UK and EPO.

  3. 5

    Ooooh arguing a corporate entity is an “inventor”.

    Might end up hitting a wall on Article I, Section 8, Clause 8, which grants Congress the power “to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.”

    Feels like an issue for IP constitutional nerd scholars to get behind once the jurisdiction and appointment issues are dealt with.

    1. 4.1

      Wow. The justices are just so incredibly ignorant that it is frightening that they control our innovation engine.

      Here, Oracle keeps saying the merger doctrine because there is only one way to do it. But the justices don’t ask, do what? The answer is there is only one way to copy Java to be just like Java and that is to use the API.

      There many, many APIs that could be done that would be equivalent to Java’s API. But so far not a single justice has said only one way to do what? Oracle’s arguments are really, really bad and should fall on the merger doctrine.

      The functionality argument probably falls too as there are so many other ways to write an equivalent API.

      These justices are just so ignorant, though, that it is hard to know what they will do.

      1. 4.1.1

        “These justices are just so ignorant, though, that it is hard to know what they will do.”

        Whew! — at least they have a superb grasp of PATENT law — including which branch of gov is charged with promulgating such.

      2. 4.1.2

        How do you write an API that is equivalent to the Java API without using the same interface? If the Java programmer has to modify their code to use your API versus Oracle’s API, then the API is not equivalent.

        1. 4.1.2.1

          That is true. The question is why do you have a right to use the Java?

          That is the key issue. And does it swallow all of copyright law for computer programs to say that a person has a right to copy your declarations and API.

          I notice, though, Plurality, that you have tried to frame the issue like Google did.

          1. 4.1.2.1.1

            It’s there so I can use it — has become the epitome of ‘modern culture,’ and a direct outflow of the drumbeat of the Efficient Infringer propaganda machine.

            If everything becomes open and fair game, competition will not occur on protected-innovation grounds, and instead will occur based on other factors. Those other factors by and large favor the established and entrenched. When you have a system that favors the established and entrenched, innovation on the whole suffers.

            Anyone who has studied innovation to any serious degree readily understands this.

    2. 4.2

      I listened to most of it. I suspect that the Left part of the court is going to go for Google and the Right part is going for Oracle.

      But I think the main problem is distinguishing it from Sheldon.

      1. 4.2.1

        Can you expound on this?

    3. 4.3

      Breyer categories all computers as “switches”. You are setting a set of switches according to Breyer. He knows nothing about technology, science, or business. He knows nothing about the theory of computation.

      Breyer imagines that he could have done anything the inventors have done. This is perhaps the most arrogant, toxic human being I’ve ever had to listen to. Vile.

      Just imagine if you knew absolutely nothing about science or technology and yet you believed that somehow it can all be encapsulated by reducing it to “switches.”

      1. 4.3.1

        Your view of “switches” reflects the larger view that the design choice of “wares” in the computing arts should not matter.

        The computing arts have been integral with the Kondratiev fifth wave due in direct part to the ability to change the machine by way of the design choice of “soft” ware.

        It is merely an inconvenient fact for those opposing modern day innovation.

  4. 3

    OT to some extent, but the Nobel Prize in Chemistry has just been awarded to Emmanuelle Charpentier and Jennifer A. Doudna for the development of the extremely important new method of controlled genome editing: the CRISPR+Cas9 method of precisely located genetic cutting of DNA. [Even though a patent interference proceeding as to who first invented what or how much that is patentable continues on in in the U.S. PTO]

    1. 3.1

      With the ongoing inventorship battles, one wonders whether the Nobel judges should have waited another year or two (or 3, or 4, or 5 or more) until the dust settled.

    2. 3.2

      It is a weird one.

    3. 3.3

      Weird? Really? You cannot be serious, Night.

      The fact of winning a Nobel Prize ought not to decide the outcome of the various CRISPR priority contests going on (USPTO, EPO) under First to Invent or First to File. Why? Because under patent law the name of the game is the claim and meanwhile, for the Nobel Prize Committee, the wording of any given patent claim plays no role at all.

      There are various important priority contests where the outcome was different under First to File and First to Invent. One would suppose that , ceteris paribus, the Nobel Prize-winners would do better under First to Invent, with that part of their contribution to science that is patentable. But I’m not sure that’s working out that way, in the USA, in the case of CRISPR-Cas-9 technology.

  5. 2

    So sorry, Bogdan. We hardly knew thee.

    Welcome to the dust bin of inventor history.

    Courtesy of the Google.

  6. 1

    Google should be warned: Stanford v. Roche remains good law, even after the AIA and the allowance of a juristic person to prosecute an application.

    Announcements that a named inventor did NOT invent could be a most painful admission against interests.

    1. 1.1

      In a marital property rights state, would Bogdan Carbunar’s spouse have any rights to the invention?

      1. 1.1.1

        The great legal answer:

        It depends.

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