Recent Headlines in the IP World:
- Siddhant Sibbal and Namrata Agarwal: EU Parliamentarians Back India-South Africa Proposal for COVID-19 Vaccine Patent Waiver (Source: Zee News)
- Chris Burt: Lawsuit Alleges Apple Biometrics Infringe Patents, Claims Against Amazon Sent to Arbitration (Source: Biometric Update)
- Atty. Y. Artemis Lai: Canadian Patent Law 2020: A Year in Review (Source: JD Supra)
- Joel Shacker: Core One Labs Prepares First in Series of Patent Applications (Source: BioSpace)
- Caroline Haskins, Ryan Mac, and Brianna Sacks: A Clearview AI Patent Application Describes Facial Recognition For Dating, And Identifying Drug Users And Homeless People (Source: Buzzfeed News)
Commentary and Journal Articles:
- Prof. Jonah Perlin: Andrew Trask – Scientist Turned Patent Litigator (Anchor FM)
- Prof. Jorge L. Contreras: Efficient Infringement and the Rule of Law (Source: SSRN)
- Prof. Tim W. Dornis: Of ‘Authorless Works’ and ‘Inventions without Inventor’ – The Muddy Waters of ‘AI Autonomy’ in Intellectual Property Doctrine (Source: SSRN)
New Job Postings on Patently-O:
Every Clearview patent confirms that it is a creepy company with a questionable moral compass.
I cannot find any instances of any of the patents covering any of the approved vaccines (i.e., BioNTech, Moderna, AstraZeneca, SinoVac, or Sputnik) entering either the IN or the ZA national phases. Why would IN or ZA need a suspension of patents related to COVID-19 technology? How will suspensions of patent rights affect either of those countries, when there are no patents to suspend in either jurisdiction?
Greg – You can’t find them because there are none. The only claim of patent infringement that I know if is by a company called Allele. Allele are alleging that Pfizer/BioNtech’s use of a fluorescent polypetide in measuring blood levels of a patent during clinical trials was an infringing use of one of Allele’s patents. So in fact, the infringement issue has been that someone accused the current vaccine manufactures of infringement!! I believe its on the other IP blog.
Were our Founders alive today, they would be aghast and ashamed at the ravaging of American innovation that our very own Supreme Court and CAFC have unconstitutionally performed and enabled…
O.k., let us pause here and consider this assertion. The patent system is not an end in itself. It is a means toward an end—technological innovation. So, what exactly is the objective evidence that technological innovation has decelerated in recent years in America?
I would be hard pressed to identify any such evidence. The computing power of our smart phones increases at about the same rate now as it did pre-Alice. We get new synthetic polymers now at a faster rate than we did in the 1990s. Our cars get better gas mileage at the same rate as ever. Our channels of data transmission continue to grow carrying capacity without corresponding increase in physical infrastructure.
The one tech space in which I could identify a slowdown over the previous three decades in the rate of progress is drug discovery. There, however, the slowdown appears much more evidently correlated with NIH and NSF budget cuts than with any particular changes in patent law.
I wish that the moral of the post-Bilski story—fiddle with patent laws and innovation will suffer—were as clear & tidy as some might wish to make out. Objectively, however, this is mostly just a sort of wishful-thinking story that folks around these parts tell ourselves.
If you think that I am wrong about this, show your work. What is the technological field in which the rate of progress has slowed post-Alice relative to pre-Alice (or post-AIA relative to pre-AIA)? And what is the evidence by which we can discern this asserted slowdown?
Greg – look at the concentration of power and disruptive innovation.
“Were our Founders alive today, they would be aghast and ashamed at the ravaging of American innovation that our very own Supreme Court and CAFC have unconstitutionally performed and enabled…”
They’d probably be aghast at women and BIPOC people voting too. So who cares what the “Founders” would think of our country today?
AAA JJJ— you seem to be getting grouchier and grouchier as the years go by.
Lol — but notice his tone bifurcates between patent law issues and any indication that a Liberal Left agenda is somehow improper.
Here, there be ISMs present (along the lines of “Old White Men.”
Pot, meet Kettle.
Fact Checkers have weighed in and the analogy has been deemed improper for its racial micro-aggressions.
I don’t think this is true. I think the pace of invention for information processing has definitely slowed. I am not sure how that could be shown but I am certain of it.
How are you “certain” of it if you cannot explain how one would show as much?
Incidentally, I am not sure that it is really useful to look at just one tech field when assessing the well-functioning of the patent system. I expect that the rate of innovation in buggy whips and horse-drawn carriages has been pretty sluggish for at least a century by now, but it would be strained and silly to lay that at the feet of patent law. Similarly, as I note above, drug discovery is not spinning out new pharmaceuticals as quickly as we used to in previous decades, but the rate seems to correspond less to patent law than to other societal factors.
The patent laws are meant to incentivize innovation overall, without particular regard to tech field. That is why there is only one patent law for all technologies. Therefore, if innovation overall is proceeding apace, we should conclude that the patent system is functioning well, even if this or that art field stagnates.
So, what is the objective evidence that technological innovation overall has slowed since Alice and/or the AIA? I just do not see such evidence.
It is a bigger question than a blog post. I know that the other blog has had some articles on this issue in regards to funding of start-ups.
Anecdotally, I think people know that they can’t protect anything they do. I think they know that. I don’t see the small inventors anymore with a fire in their belly.
Plus-frankly–so much of information processing right now has been progressing at a snail’s pace.
It would be interesting to try and quantify it. I think it could be done and I think it would show a massive slow-down.
Greg’s retort is merely a sheepskin of “STFU.”
Shutting down any discussion goes along with his own past ham-fisted views on the Tillis 101 implosion (he simply refused to the Trojan Horse for what it was).
NW, I would disagree with you on that issue. Out of my client base, I only have one that is not a small or solo inventor (universities are not counted here because of how it can change based on licensing and other issues). The several solo inventors I work with are all eager to get patent protection, but the critical issue is that they are very educated (by me) as to the pros and cons of the patent system. There are definitely warts in the US patent system that vary based on the technological field, but that can be said about all jurisdictions. They key is for the patent attorney to educate their clients and then develop a strategy that takes advantage of the good and bad aspects of the system. That’s the hard part and requires a ton of work by the attorney, but that has been working well for my clients (and those in other technology fields working with other attorneys at my firm). I’ve watch several small companies make multimillionaires out of their founders when their good ideas pay off (usually by acquisition by a large player in the same field).
nice add, Dvan.
Good post, Dvan. I don’t have clients in the business of advancing the arts of information processing but what comes to mind is the Talk given, some years ago, to a meeting of the UK Chartered Institute of Patent Attorneys, by a PhD physicist turned venture capitalist.
He acknowledged the key importance of filed patent applications in the chem/bio space but explained how his firm was not impressed by a portfolio of filed patent applications by a Start Up in the data processing field. his firm’s decision whether to invest in a tech Start Up depended on other factors.
Memorable is his designation of a patent portfolio for an information processing Start Up as its “comfort blanket”.
I wonder how virally that assessment by that single physicist turned venture capitalist has spread to other circles, over the intervening years.
Of course, the appetite to invent in tech is undiminished because the appetite to invest in that field is undiminished. What has diminished, of course, is the number of small entities beating paths to the doors of their local patent law practice, in search of competent patent application drafting services.
Your insinuation is as insulting and as off as usual.
Maybe you should stick to only those things that you actually know…
How often did Facebook–in its early years–sue to enforce patents against rival social media sites? How often–in its early years–did Google? Near as I can tell, the answer in both cases is zero.
What evidence is there–of any sort–that patents are important to the business growth of small software companies into successful large companies? I suspect that there is no such evidence, because patents really are not that important to making a software business successful. There are such strong first-mover effects in the software industry that patents are just beside-the-point.
And yet, if this were indeed true, you would NOT have seen the massive campaigns against patents for software.
The attempt of portraying either or both of FaceBook and Google as necessarily being examples is simply a false application of logic.
Dozens,
Typically what the patents do is try to stop a big company from outright copying of what the small company did and to increase the sale price of the same company.
I have lots of experience with exactly this sort of thing. I am not sure about google and facebook as both were very odd trajectories. Both relied on the network effect of the more users they had the bigger and better they could become and this primarily what drove them.
It would be interesting to see if there was enforcement efforts on the google algorithm for ranking search results and if facebook tried to enforce its key feature of excluding some from viewing your pages.
It would also be interesting to see if myspace tried to enforce any patents against facebook.
I am not sure about google and facebook as both were very odd trajectories.
Sure, I am perfectly prepared to believe that Google and Facebook are not representative examples. I picked them merely because they are easy to remember recent examples of financially successful software businesses. Neither really seems to have relied on patents in order to reach their present levels of success.
If you have other examples in mind of financially successful software businesses for which patents were important to their success, I am “all ears” (as they say). Which software businesses have you in mind that demonstrate the importance of patents for business success in the software industry?
Maybe look at the top filers in software patents (or patents generally).
Or perhaps better yet – just look at the competitors of those who fight so very hard against software patents.
Plus-frankly–so much of information processing right now has been progressing at a snail’s pace.
Not to make a pest of myself, repeating this same point over and over, but how do we know this? What are the metrics by which you assess the progress of the information processing arts? Have those metrics changed appreciable pre- and post-Alice (or pre- and post-AIA)?
Just to pull a random statistic into the conversation, I notice that in 2013 (the year before Alice), there were ~877K apps available for download on the Apple app store. By 2014 (the year of Alice) there were ~1.18 million, for a year-over-year increase of ~303K. By comparison, in 2015 (the year after Alice) there were ~1.8 million, for a year-over-year increase of ~620K. In other words, the rate of increase actually accelerated the year after Alice relative to the year before.
Last year saw a year-over-year increase of ~410K, while 2019 saw a year-over-year increase from 2018 of ~700K. In other words, the rate of increase bounces around from year to year. Some years it is higher and some lower. All in all, the rate of increase is roughly steady six years either side of Alice or the AIA.
It is hard to detect much evidence of either a speed-up or a slow-down in the rate of technological progress in “information processing” (as measured by apps) that correlates with any recent major event in U.S. patent law. To be fair, there are many other ways of measuring improvement in “information processing.” Can you point to a meaningful measure in which we see a slow-down that correlates to some notable event in U.S. patent law?
I don’t think it correlates with, or is caused by patent law, but it certainly feels like information processing with regards to consumer applications has slowed down. What I don’t understand is why that is not entirely expected and natural. At some point, the low hanging fruit of the tree of cheap networked devices will have been plucked. No patent system can prevent that.
What—in particular—“feels like” it is slowing? What metrics inform this impression?
I take your point that the mere existence of slowing progress does not necessarily vindicate a claim about a defect in the patent system, but I would like to nail down the existence of this putative slowdown first. How do we know whether progress in information processing is slowing or not?
What is the Spend by those seeking to deny patent protection for software innovation?
“. What I don’t understand is why that is not entirely expected and natural.”
Because innovation is NOT a ‘low hanging fruit’ thing, and in the opposite manner, has augmentation effects on innovation.
That’s kind of why we have patents in the first place.
That you of all people, an examiner, do not immediately grasp this, well, color me shocked. /S
The mistake you made is that here in the states we still have Free Speech.
How is your accusation of a mistake even on point?
That’s what they all say when their mistake is pointed out, Snowflake.
?
You reply is nonsense building on the prior nonsense of your false assertion.
This is the same game that drove the expungements.
Why would you immediately play the same game?
In the fullness of time. Snowflake.
Your response is a non sequitur.
Maybe you should choose to engage in a meaningful way.
In the fullness of time. Snowflake (aka Hall Monitor), you will come to understand the meaning of “non sequitur.” Or maybe not.
Clearly, my pointing out your game at this instance has nothing to do with the FALSE assertion that I would even need to learn the meaning of the term.
It is quite clear that you have no intention whatsoever to drop the meme of making false assertions.
Shall we then ratchet this up again?
We guess, not.
Why would you guess not?
Do you see a point in continuing a meme that only proves my point?
And your point is … not one of the anons can defend the accusation of “cyberstalking.”
Sorry to be so mean to point out the manifest.
Smelling salts?
More compounded false presumptions – same game on multiple threads…
Gee, like that’s not a meme that you haven’t tried before….
How has that worked out for you? Like, ever?
What is this anon’s definition of cyberstalking, this anon. We are not talking about somebody else’s definition.
Why are you wanting me to (somehow – somewhy) make up my own definition?
“My” definition is the legal definition.
That’s how discussions of legal matters generally progress.
Or (
), are you not actually in progressing through an actual discussion?
As always, your choice.
So, apply your “legal definition” of the anons’ allegation of cyberstalking to the present facts of typing responses in a public forum to typed “deep thoughts” in a public forum.
Of course, as demonstrated, this anon cannot. Nor can any of the anons.
So now is this anon’s chance to progress through an “actual discussion.”
Or, in the alternative, wahh wahhh wahhh to management because those mean people are saying mean things to you again. It’s feels good to fool some of the people some of the time, no? Or check your script for some automated ad hominem response.
You choice. The only certainty is that you will not “advance the conversation” by applying (US) law to the present facts.
Since you appear to like to cross-link your comments, here is the reply from the thread in which you already the game of your last comment here:
Let’s nip this attempted redirect and attempt to assert control of the direction here right in the bud.
There is NO NEED for me to have to explain anything about cyber-stalking.
That you think I “need” to is as wrong as you thinking that merely because of the type of forum we are on precludes you from engaging in cyber stalking.
It just is not so.
Reminder (and these are cold hard facts – plainly present in the YOUR choices as captured in the black and white of these threads):
Your posts this years have been 100% to or about me.
Your posts – going back some now two years or so- have been to or about me at a clip greater than 98%.
Across the fifteen plus year history of this forum, no one has had as much obsess10n over one person than you have had over me.
And it’s not even close.
Instead of focusing on the forum, you might want to focus on the actions in that forum. And you don’t even need to wait for that, as – just like your choices to post what you post – this is something entirely within your control (using that term loosely, I suppose, eh?)
In terms of the objective definition provided (and noting that you have not provided any alternative):
You are using online communications to stalk and harass another person, with defamatory statements and falsities, with your stated games.
For this year, your games have been objectively shown to be 100% directed at a specific person, and with 0% ‘on target’ to any actual substance of patent law or thread subject, can objectively serve no legitimate purpose.
Do you have anything on point to provide as a counter?
“So, apply your “legal definition” of the anons’ allegation of cyberstalking to the present facts of typing responses in a public forum to typed “deep thoughts” in a public forum.”
Your response translates to US laywers as “we cannot.”
No wonder they have called you an incredibly sloppy reader, writer, and thinker.
Your projection is again false.
In fact, quite the opposite.
“translates to US lawyers”
Oopsie for you, as this TELLS more about you than you may have wanted.
It tells that you recognize that I AM a lawyer (and your ‘get into law school cracks are meaningless).
It tells that YOU are not a lawyer,
and
It tells that YOU harbor an animosity towards lawyers.
What was your role at the patent office before you retired to set in such emotions?
So some of the anons are not aware that their own designated expert concluded they were incredibly sloppy readers, writers, and thinkers?
Maybe one of you can demonstrate your expert was wrong by applying your “legal definition” of the anons’ allegation of cyberstalking to the present facts of typing responses in a public forum to typed “deep thoughts” in a public forum.”
Or just run away from the IP discussion.
Running away, of course, includes trying to change the subject by alleging made-up facts or the knee-jerk scripted ad hominems.
I need do no such things, and the fact that you again want to depend on someone who is bu ttsore because I showed him that he was flat out wrong on the legal point that Void for Vagueness was not limited to criminal law only shows your own weakness and p1 ss p00r game.
Are the other anons aware of your “cyberstalking” debacle?
False presumption (and projection)
It is not MY cyber stalking debacle.
Hint: look in the mirror.
Professor Contreras, I would be happy to do an interview to explain what happens in the real world, and can introduce you to a hundreds of others. I can show you the filings and invoices and budgets as well. I realize such details are imperceptible from the great height of your ivory tower.
I read the abstract. Probably paid to write this article, you know.
And, the problem really is that almost all the damage to the patent system has come from the Scotus and the AIA.
There is no way under the current political system we have that we are getting to get improvement.
The Ds are in the pocket of SV. What we can expect is probably about a 50% weakening of patents during the next four years. From recent cases, it looks like the CAFC is going hog wild in invalidating everything using Alice. As long as that continues there is –in fact–no patent system in the USA.
As compared to what % of strengthening of patents in the past four years?
Paul, if you go by the price of patents, then we have a company come in and estimate values of patents and portfolios.
Patents went up in value maybe 10-20 percent over the last four years. They had dropped in value by 80 percent from the AIA and Alice.
I’d guess we are going to see the near destruction of the patent system if Biden stays in office for 8 years. They will get stronger trade secret laws passed and companies will go to a system of hiding inventions. And worse a system of proprietary software to lock in tech people.
The USPTO is doing what third-world countries do. As the value of a patent drops what companies are willing to pay for a patent drops.
Anyway, no time for a complete answer.
And the USPTO is raising maintenance and prosecution fees. It will become a death spiral. We will see the complete end of patents if they manage to sever pharma patents out in some way. I know the CAFC has been trying to figure out how to do that with their law making authority they believe they have.
We are lucky that the judges of the CAFC are such hacks that they can’t figure out how to sever pharma. Probably because their minds are cloudy by their judicial activism.
“your ivory tower”
Hmmm . . . and here I thought the U.S. and other enlightened societies . . . had banned ivory . . .
Anyone know if any of these ivory-tower elites have — or have ever attempted to — obtain even one patent?
Even one?
Paychecks for pontificating.
Like those Earl Scheib car-painting commercials used to shout:
“You can’t beat that!”
Some readers here will not be happy with the article here, by a conservative, entitled “Efficient Infringement and the Rule of Law.” From the Summary: “Reasonable people can differ over optimal patent scope and policy. Likewise, the PTO and the PTAB can issue and uphold more or fewer patents, and the courts can interpret the Patent Act in ways that we like or dislike. Reasonable people can also seek change through litigation, legislation and administrative channels. All of these mechanisms are organic parts of our tripartite system of government. We will never have a situation in which all partisan interests are equally happy with the rules or the outcome of every case – this is part and parcel of an adversarial legal system. But this is no reason to question the legitimacy of the system itself. So, far from a departure from the rule of law, what we see today in the patent system is the operation of a well-functioning legal regime seeking to address the interests of competing, but largely law-abiding, stakeholders.”
Conservative….?
Most odd choice of description.
“Most odd choice?” Some would say Mr. Morgan’s description was overly kind. The paper was presented at the recent convention of the uber-reactionary Federalist Society, wasn’t it ….
Uber-reactionary….?
“Uber-reactionary”
You know; those who are not at all happy (for one reason or another) with . . . Uber.
I am offended by your statement, one of the anons.
You are cancelled.
How is your comment here relevant? What exactly — here — do you find offensive?
I find your question to be offensive.
Your game of “being offended” is rather dull.
It simply does not matter whether YOU want to play any type of “righteous indignation” in response to my calling out your game playing.
Why should it not matter to you if I am offended? I find your lack of empathy to be offensive. Do I have a remedy?
Presence or absence of empathy for your hurt feelings stemming from your failure at your games has no bearing on propriety of anyone’s postings.
Maybe you should make different choices?
“cyberstalking”, Snowflake? Are people saying mean things to you to in a public forum in response to nonsense you type in said public forum?
Are you re-defining the term or just clutching your pearls a little. too. much?
Maybe you should report your discomfort to the authorities if you feel threatened. Oh, wait, you already have.
Next come the Vapors.