IDEA Act (S.632)

I previously mentioned the IDEA Act (S.632) that is pending before the Senate.   The proposal would have the PTO collect demographic information about patent inventors. This includes “including gender, race, military or veteran status, and any other demographic category that the Director determines appropriate.”  The information is to be kept confidential and away from the application file (so that examiners are not biased).The proposal states that the collection is “voluntary . . . [information] related to each inventor … may be submitted voluntarily by that inventor.”

Sen. Ted Cruz proposed an amendment that would require written consent from the inventor before a patent applicant submitted the demographic information.  In addition, the proposed amendment would have prohibited employers from retaliating against an employee who refused to provide demographic information.  The video below shows the hearing where this is all discussed:

Cruz’s amendment was not adopted, and the proposal passed through the judiciary committee.  It will next move to the senate floor for consideration.

75 thoughts on “IDEA Act (S.632)

  1. 14

    Why are people under the impression that their demographic information is completely unknown? See, e.g., your profile or any website that comes up when you search your name on the internet.

    1. 14.1

      Non sequitur. We all know this. The issue is whether it should be disclosed to the government and associated with your patent application.

      Why should all this money and be spent and why should this invasion of privacy be performed?

    1. 13.1

      Absolutely – the care and detail of your eight pages is not to be discounted – but recently I summed up those eight pages in three ultra-succinct quips.

      The most pernicious of which deals were th the attempted exchange of equity for equality.

    2. 13.2

      I think it is reasonable to read “[t]he Director shall … establish appropriate procedures to ensure … that demographic information is not made available to examiners or considered in the examination of any application for patent” as requiring the office to not disclose inventor names to the examiner. Your interpretation would have a tangential subclause in the statute obliquely cause a huge problem for how the USPTO operates. It is far more reasonable to read the line as requiring that the collected demographic information to not be shared with the examiner.

      1. 13.2.2

        Your interpretation that the PTO’s procedures only apply to the information to be collected under the bill is flawed and contrary to the intent of the drafters. Specifically, proposed subsection (b)(2)(B) refers to “demographic information” broadly, without any limitation to information specifically collected under subsection (a). The limit recited in subsections (b)(1) and (b)(2)(A)—“information submitted under subsection (a)”—is conspicuously missing from subsection (b)(2)(B). Any reasonable interpretation under established canons of statutory construction would not read the limitation in subsection (b)(2)(A) as also applicable to subsection (b)(2)(B). To the contrary: the deliberate asymmetric omission of the “information submitted under subsection (a)” limitation from subsections (b)(2)(B) and the use instead of the broader (undefined) term “demographic information,” must be read as intended distinction—that, as opposed to subsection (b)(2)(A), subsection (b)(2)(B) is directed to prevent examiner access to any “demographic information”—not merely to the “information submitted under subsection (a).” This construction is compelled because one must generally read as meaningful “the exclusion of language from one statutory provision that is included in other provisions of the same statute.” Hamdan v. Runsfeld, 548 U.S. 557, 578 (2006); See also Russello v. United States, 464 U. S. 16, 23 (1983) (“[W]here Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.”)

        Accordingly, in a recent discussion on the bill with Senate Judiciary Committee staff, I proposed that they clarify this issue by modifying subsection (b)(2)(B) to read “that any information submitted under subsection (a) is not made available to examiners or considered in the examination of any application for patent.” They refused, explaining that the drafters actually intended this bill to be more than mere authorization for PTO collection of information — they apparently intended it also as a first “remedial” step to be implemented by the PTO. Subsection (b)(2)(B) therefore ineluctably refers to any “demographic information” on all inventors, as available to the PTO by any means. That is why Section 1 of my article at link to is relevant in showing the infirmity of the bill as written. The staffers understood my point but had no cogent answer to this problem.

    3. 13.3

      Look, the bottom line is why? There is no evidence of bias and this costs money and raises new problems. It is already uncomfortable enough to ask a person which country they are a citizen of and where they are residing.

      But–again—why? No proof the costs is worth the effort. They could hire a survey company to find out if there is any statistical evidence of bias.

      I have yet to met or hear one word from the literally thousands of years of experience at the USPTO from attorneys or examiners that there exists any bias.

  2. 12

    Black Americans: Like unhealthy thing x disproportionately.

    Joe Biden (the true champion of black people): Bans thing x.

    link to

    Also btw, if you want to make a quick buck, be ready to stock up on menthols bros.

    20 years from now we’re going to be hearing from AAA about how the white supremacists and the ev il republicans are responsible for tens of thousands of black americans in jail for selling menthols.

    1. 12.1

      The irony with Biden is that he is the one that allowed vaping to become popular in High Schools when every health expert was saying that nicotine is addictive and vaping is going to take over the schools.

      Come on man. That was before I became the “woke” Joe.

      1. 12.1.1

        “The irony with Biden is that he is the one that allowed vaping to become popular in High Schools when every health expert was saying that nicotine is addictive and vaping is going to take over the schools.”

        People keep trying to say that it’s the worst thing ever (vapin) compared to cigs, but cigs seem to be way down in the US and I would hazard a guess that it is because poeple switching to vaping. I haven’t seen posters about black lungs and cancer related to vaping yet.

  3. 11

    Sounds like they were disagreeing on who the “volunteering” would be done by, would the volunteering of the voluntary data be by the assignee/patent holder/big boss man of the corp/etc. or would it be voluntary for the employee? And if it is voluntary by the employee, then cruz just wants to make sure there is no political blowback on employees that do not so volunteer by the big boss of the corp (who might be a leftist for instance).

  4. 9

    Aside from the notional potential social utility, the mere collection of this ‘data’ is problematic because inventorship is very often a collective enterprise. I guess we can go with the “one-drop” rule for any given member of an inventing team….

    If anything, this should be statutorily limited to applications listing a sole inventor.

    But philosophically, the patent office is one of the entities in the world LEAST concerned with the personal individual attributes of listed inventors. Patents applied for is a result of things: an ending, not a beginning. The place to be looking to encourage fairness in patent grants is at the beginnings: schools, industry, and law firms rather than to the the USPTO as a change agent.

    1. 9.1

      The place to be looking to encourage fairness in patent grants is at the beginnings: schools…

      + 1 million

      1. 9.1.2

        Yeah only problem there big fella is that such has been ongoing for 70 years with very little to show for it.

    2. 9.2

      >we can go with the “one-drop” rule

      That brings up another can of worms. Is the USPTO going to enforce accuracy?

  5. 8

    For those who haven’t heard of her, Lisa Cook is an Economist whose work on Endogenous growth theory is probably why they want to collect this data. It’s not really about patent grants or anything within the USPTO. Instead, the data on who is filing has proven extremely useful for Economists.

    Endogenous growth theory basically says the economy can, by encouraging innovation, create stable growth. Paul Romer got the Nobel Prize in 2018 for it.

    Lisa Cook’s work critiques some of the assumptions on how to encourage growth. Specifically, that by strengthening patent law, we will increase innovation.

    Cook’s work took the patent data and census data from 1870-1940 to map the innovation rates of African American . The data was pretty clear to show how the patent filing rates dropped for African-Americans at very specific points in this period.

    However, these points do not correspond with patent law reforms. Instead, the drop in filing rates correspond with the imposition of Jim Crow and incidents of racial violence. The biggest single drop is in ~1899, corresponding to Plessy v. Ferguson and the Wilmington Coup, while another big drop corresponds to the Tulsa Massacre of 1921. Indeed, 1899 appears to be the high water mark for African American filing rates.

    The work by Cook suggests that effective rule of law and safety is much more important for innovation than reforms within patent law. With her work we can see the impact on innovation by looking at the filing rates over time. Matching race and inventor data is thus extremely useful to economic forecasting.

    Cook’s work hits a wall in data collection because census data is kept confidential by law for 72 years after collection. Thus the 1940 census is the last year she has full access to.

    All of that said, I do see the problems in collecting this data, and also see how its ripe to be misunderstood and misused by non-economists.

    1. 8.1

      Cook sounds like a medieval thinker.

      Yes it is probably a necessary condition for the effective rule of law for innovation from African Americans, but not sufficient without a strong patent system and saying “more effective” to work on the rule of law rather than fixing the patent system is assuming we can’t do both.

      Cook has the feel of a SV backed person. That sl im ey feel like Chien who is currently working on wiping out the rights of all innovators with her strengthening of the trade secret act so that SV firms can force their employees to not leave or not work.

      1. 8.1.1

        Cook’s work is about corruption and innovation in the economy, and IP law is not really her focus or anything she lobbies for. She’s just found USPTO data cross correlated to census to be the best metric to indicate the effects on the economy.

        Cook’s work has been vetted extremely well due to the subject matter. It took ten years to publish, and was criticized mostly by economists who had no idea what the historical events she correlates to were.

        And of course we can do both reforms. Her work just shows that solving the patent problems in general will not necessarily do much for the gap in filing rates.


          I won’t be as harsh as Night Writer, but will share that there is likely apprehension from the angle of the subject line coming in — in direct contrast to known problems affecting innovation that have been driven by an antagonistic Supreme Court.

          While it comes across as a “would be nice,” it ALSO comes across as pushing data gathering work (work that is not paid for) onto innovators and practitioners, while I can readily imagine that a far more inclusive capture could come from the census side (for example, broadening the type of questions to deal with innovation — applications filed or otherwise; and perhaps by obtaining some type of special waiver to bypass that 70 year (or so) waiting period).

          Another thing (as one of my close friends who is an economist would joke with me): if you want five different explanations of something, just ask five economists.

          While there may be some chance at a meaningful result of this type of venture, those in this industry will readily tell you that this is just not the best path to take.


            I agree to the problems of practicality, as well as pushing the data gathering unfairly on to practitioners. There’s also a problem that this data may be easily misread by idiots.
            I disagree with the census idea unless it can be done within existing structures. Breaking the census wall anonymity wall is an extreme measure.

            Having the academics themselves send a survey to the inventors of record would be more appropriate.

    2. 8.2

      Lisa Cook is an Economist whose work… show[s] how the patent filing rates dropped for African-Americans at very specific points in this period. However, these points do not correspond with patent law reforms.

      I know nothing about Lisa Cook, and therefore offer no comment on her work. The mention of patenting trends not corresponding to patent law changes, however, dovetails with a thought that has recently been troubling me.

      I was among those who thought that Alice would have adverse effects on innovation. I still think that Alice was a bad decision, but we are almost seven years on from the decision by now—easily enough time for the law-change to have had an effect—and yet there is no evidence that software innovation has slowed one iota since 2014.

      The number of new apps on the Apple app store continues to grow post-Alice at the same rate as it was growing pre-Alice. The salary for software engineers continues to grow at the same rate post as pre, as well as the salary premium for software engineers over other jobs. The rate of increase in VC funding for software startups continues to grow at the same rate post as pre. Basically, I cannot find any data that suggest that there has been any slowdown in software innovation as a result of Alice.

      I know that this is not the message that folks around these parts want to hear. The conclusion surprises me. Still and all, the data are telling us that the changes in patent law effected by Alice were not all that socially significant. Innovation depends less on patent law than one might wish to believe.

      1. 8.2.1

        Prime reason:

        The Alice decision did not directly HOLD “software is not eligible for patenting.”

        There are plenty of us practitioners in the trenches to continue to fight to preserve patent protection for innovation that is (or can be) expressed in software.

      2. 8.2.2

        Off the top of my head, I can think of three reasons why the VCs are so evidently indifferent to the change in law that Alice and the AIA represented:

        (1) “Patents were never important to my business plan anyway, so why should I care if they are harder to get and enforce now than they were in the 2000s?”

        (2) “Patents are important, and Alice and the AIA have made it harder to get and enforce patents for my startup. Still and all, my lawyer knows how to draft around these problems, so the change in law does not affect how I invest my capital.”

        (3) “What is this ‘Alice‘ and ‘AIA’ of which you speak?”

        Naturally, these hypotheses are not mutually exclusive, but it would be interesting to know what percent of VCs subscribe to each of those hypotheses (of course, there could be others that I have not listed). If any of the various law professors who read these comments have in mind a research project involving VC surveys, I will be interested to read your findings.


          [I]t would be interesting to know what percent of VCs subscribe to each of those hypotheses…

          Looking for something else today, I happened across Taylor, “Patent Eligibility and Investment” 2019. According to this scholar’s “survey of 475 investors at firms investing in various industries and at various stages of funding, … investors… belie[ve] that patent eligibility is an important consideration in investment decision-making… [H]owever, … investors predominantly indicated no impact or only slightly decreased investments in the software and Internet industry, but somewhat or strongly decreased investments in the biotechnology, medical device, and pharmaceutical industries.” This jibes with my observation that it is hard to pick out an effect from Alice on the rate of real-world software innovation.


            Less of “jibes” and more of a confirmation bias in HOW you are interpreting the results.

            You are trying to ‘pigeonhole’ a “Business” of software at a time when the Kondratiev Fifth Wave is diffusing software through many “businesses.”

            You are simply out of you element Greg, and do not know enough to even grasp that you are out of your element.

      3. 8.2.3

        I’m provisionally pro-Alice but I find myself very skeptical of these metrics as evidence that Alice did not damage software innovation.

        Innovation and the economy are so complex that we should be very wary of merely pointing to a seeming constant trendline or three and declaring an intervening event to have had no impact.

        Perhaps if we are lucky, the Alice regime will get another decade or two of operation, and will thus provide plenty of data for some clever econometricist to use as a natural experiment.

      4. 8.2.4

        Oh goodness. The same nonsense.

        Not going to cite and go through this again.

        Patent applications are dropping for US inventions and dropping even more in comparison to the growth of GDP.

        VCs say they have shifted their focus to account for the fact that things cannot be patent protected.



        Just more nonsense.


          Plus the Chinese are using patents to promote innovation and now are ahead in 5G technology and on a par with the USA in AI.

          Pretty clear that the USA is falling behind and trying to rely on notoriously bad internal innovation divisions of corporations, which have a history —long and well documented–of failure.


            Those Chinese 5G innovators are getting US patents as well. Our U.S. innovators also get PRC patents.

            Alice affects Chinese inventors the same as it affects U.S. inventors. If we are “falling behind” the Chinese, it has nothing to do with Alice.


              This is an endless argument with you whether the USA patent system promotes innovation around the world and whether you need a local patent system to promote innovation within a country.

              The Chinese clearly think that they need a strong patent system to promote innovation.

              I’ve never heard anyone outside the sphere of the likes of Lemley make the arguments you do. I hear the opposite that you need the patent system within a country to promote local innovation.


                The Chinese clearly think that they need a strong patent system to promote innovation.

                Do they? This is not clear to me at all. The SIPO has gotten much more willing to grant, but merely granting a lot of patents is not a “strong” patent system. Damages in Chinese infringement suits remain a small fraction of what is awarded in the corresponding DE, GB, & US litigations. The ability to get an injunction in the PRC seems to have much more to do with the political connections of one’s partnering state-owned-enterprise than with the merits of the infringement case.

                It is true that the Chinese patent system is getting stronger than it has historically been, but it is a long way from what one might meaningfully term a strong patent system. Nor does the CCP seem especially eager to foster the sorts of rule-of-law changes that would be necessary to make a strong patent system, as those changes would require giving up CCP control over the judiciary.


          Patent applications are dropping for US inventions and dropping even more in comparison to the growth of GDP.

          Fine. Who cares? When Alice came out, I and others predicted that it would have deleterious effects on innovation.

          Innovation and patent applications are not the same thing. The patent system exists to foster innovation, not applications. A patent system that results in 10k new inventions per year and 1k applications is working just as well as a system that results in 10k new inventions per year and 10k applications. The number of applications is essentially irrelevant for assessing the well functioning of a patent system.

          VCs say they have shifted their focus to account for the fact that things cannot be patent protected.

          That claim would certainly be interesting if true, but it still does not prove us Alice critics correct. If VCs are not investing less startup capital, but have merely reallocated their investments, who can say whether the innovation that results from this reallocation is better or worse than what would have emerged in the alternate universe in which Alice went the other way.

          I am still convinced that Alice was a bad decision. I am increasingly less convinced, however, that it was as bad as we critics supposed at first.


            “Innovation and patent applications are not the same thing.”

            Certainly true. Patent Applications are at best an iffy proxy for innovation, much less software specific innovation. But aren’t software engineer salaries and app counts also rather iffy proxies of software innovation?


              Patent Applications are at best an iffy proxy for innovation, much less software specific innovation. But aren’t software engineer salaries and app counts also rather iffy proxies of software innovation?

              Thank you for your typically thoughtful reply. I have a few responses:

              (1) I think that I understand what you mean by “iffy proxy,” but for purposes of clarity and precision, I will speak instead of “reliable indicators” rather than “iffy proxies.”

              (2) I agree that all of the indicators that I have mentioned so far are—in varying degrees—unreliable. However, reliability of an indicator is not a binary function. Some of the indicators discussed so far are more reliable than others. Allow me to explain the order in which I would rank the four indicators. If you assess their reliability differently, I would (of course) be interested to read your reasoning.

              (2a) Apps on the Apple store is the most reliable of those four. When one speaks of patents “promoting the progress of the useful arts,” what one really means is “new products arriving for U.S. consumers.” The Apple store is by no means a comprehensive collection of new software products, but it is at least an easily quantifiable assemblage of software products available to U.S. consumers. This is the most directly reliable indicator of software innovation for which data have yet been adduced in this discussion.

              (2b) The next most reliable is software engineer compensation. The logic for considering this indicator is that (all other things being equal), if software innovation were slowing, then we should expect growth in the software industry to slow correspondingly. This, in turn, would lead to a decrease in demand for the services of software engineers, and a corresponding stagnation in their compensation.

              I realize that reality is more complicated than this. One can easily tell a dozen stories about scenarios in which innovation stagnates but compensation continues to rise. As indicators go, this is not completely reliable, but it is more reliable than the next two indicators.

              (2c) VC funding is not an output of innovation, but rather an input by which innovation is achieved. It is entirely possible for a VC investor to see no innovation achieved in return for capital invested. Therefore, growth in VC investment is only weakly indicative of innovation. Still and all, it is an indicator (those VCs would not be increasing their investment year over year, if innovation consistently failed to result).

              (2d) Finally, total number of new U.S. patent applications is the least reliable of the various indicators discussed on the thread so far. As we all know, many patent applications do not disclose anything new. Those applications ultimately fail to grant, as they are rejected for anticipation and/or obviousness.

              If we saw 1000 patentable new applications and 1000 new applications disclosing only prior art technologies filed in 2010, and we saw 1100 patentable new applications filed in 2011 but 0 new applications disclosing only prior art technologies, that would constitute a 10% increase YOY in innovation, even as it constituted a 45% decrease YOY in total new applications. In other words, not only is it possible for merely counting new applications not to tell you much about the pace of innovation, it is actually possible for this indicator to be badly misleading.

              If the effect of Alice was to discourage the most marginal of applicants from bothering to waste their time and money filing their doomed-from-the-start applications, then Alice would have actually done a net good (rather than harm) to the patent system. It is impossible to know this sort of detail merely from counting total new filings, so the count of total new filings is the least reliable of the four indicators discussed so far.

              (3) In summary, then, we have four indicators of varying reliability. The three most reliable of those four point in one direction. The fourth points in the other direction. On balance, then, it is hard to conclude that there is much evidence to back up the Alice-harms-innovation hypothesis. These data do not conclusively disprove that hypothesis. On balance, however, the data really do nothing to support that hypothesis.


            You also don’t understand information processing/EE innovations, do you?

            I’d say from what I see that innovation has stagnated over the last 10 years.

            And, in fact, the feel of what is happening is that big corporations are merely developing and monopolizing what was 10, 20, and 30 years ago.

            I, frankly, know of no one that holds your views that is older than like 60 and has experience in innovation. I see “believers” and the “woke” saying the things you say and it seems to be based on ideology and not facts or science.

            Plus, I would say that, in reality, probably what has affected the landscape of innovation more than the burning down of the patent system is the excess of money from the Federal Reserve and from the monopolies in SV that are generating 100’s of billions in profit.

            Everything I know about corporate innovation, which is extensive, is that it has had very poor results from commercial companies with a few exceptions where the corporations created basically research labs free from the commercial pressure and hired the best.

            Anyway, again and again, we go through this same material.


              NW – how many times do you need to be reminded? Greg is a Pharma guy — not a computing guy.

              Listening him talk about computing innovation is like talking to that Amish guy over in the next county. He has “heard of it,” but rightly reckons just don’t know what all the fuss is about.


              I’d say from what I see that innovation has stagnated over the last 10 years.

              At which data should I look to see the evidence of stagnation. This is a claim for which I am predisposed to credit, so I would be easily convinced if someone could point me to the relevant data series.


            Plus, Greg, Alice is a bad decision no matter what you think of patents.

            Alice is policy from the Scotus. If the Congress wants to end patent protection for information processing, so be it. But the Scotus does not have the Constitutional right to do so.

            So no matter what Alice is a bad decision.

    3. 8.3

      >With her work we can see the impact on innovation by looking at the filing rates over time.

      I’m a bit skeptical; it would require a pretty sophisticated understanding of patent law over time. She can’t even just look at statues and regulations. For example, State Street Bank triggered an avalanche of filing.

      1. 8.3.1

        State Street Bank triggered an avalanche of filing.

        Not to put too fine a point on it, but filing is not innovation. I am sure that patent filing is highly responsive to changes in patent law, but that really does not mean that innovation is responsive. It is important not to confuse those two concepts, filing vs. innovation.

      2. 8.3.2

        I mean it helps it was in a simpler era, and her work was able to isolate the general trend in filing rates versus African American filing rates.


          “her work was able to isolate the general trend in filing rates versus African American filing rates”

          Right. I don’t think it was understood that the “impact” referenced is the impact to African Americans filings, rather than filings at large. As the white filing rate provides a baseline that includes the effects of patent law events, it is not necessary to already know those events to remove their effect from the African American filing data.

          Not to endorse the analysis. I remember reading about Cook’s work awhile ago and there was some element that struck me as seriously undermining her results. Sadly, I can’t remember what it was for the life of me.


            Sure, it always possible that there is some other metric that would show the delirious effects that I and my ilk predicted would flow from Alice. Absence of evidence—as the saying goes—is not necessarily evidence of absence.

            The burden of proving such untoward consequences, however, rests with people on my side of the debate. My point is that people like me should be uneasy that we cannot point to evidence of an effect on innovation. At some point, if the evidence does not appear, one really must just admit that one was wrong.


              Greg – being a Pharma guy misstates the “which side.”

              I know that one reason I personally have been hugely successful – in spite of Alice – is because I stay on top of what needs to be done — in the computing arts.

              All Greg does in that regard is wank.

  6. 7

    There is zero chance that this information is not used to discriminate against applicants. It would be better to mask everything, including names and affiliations. Even names are commonly a source of discrimination in scientific review – I’m not sure why patent examiners should be thought to be immune to this?

    1. 7.1

      “Equity” demands that there BE discrimination — one just has to get the “labels” right.

    2. 7.2

      Unfortunately, names are also commonly a source of discrimination* in double patenting review.

      *In the old sense of “differentiate”.

  7. 6

    Three thoughts:

    (1) I suppose that it is better to have data than not to have data, so this measure would not be a bad thing if it were enacted.

    (2) No one, however, seriously thinks that racial and gender disparities in the U.S. patent system have anything to do with the USPTO. Collecting these data as a preliminary to remedying those disparities is akin to the drunk looking for his keys under the lamppost because that is where the light is better.

    (3) Sadly, the fact that the IP subcommittee is pursuing this betokens that they have lost the stomach for pursuing the more ambitious reforms to the IPR/PGR system and to §101 that they had been moving in previous years. That is a pity, although I suppose that it is to be expected in view of the circular firing squads that formed in response to those previous attempts.

    1. 6.1

      Greg >>would not be a bad thing if it were enacted

      Except that it puts a burden on the patent attorneys and companies to find out this information and creates all sorts of privacy concerns particularly with edge cases.

      Except it creates the perception that there is a problem and that is why we are gathering this information.

      Except–it costs money and time to do this.

      I guess it wouldn’t be a bad thing to require us all to write a 500 word creative essay to accompany each patent application. I mean why not.

      1. 6.1.1

        You are probably right, NW. It is hard to believe that the cost/benefit analysis pencils out on this one.

    2. 6.2

      (3b) Who let Ted Cruz on this subcommittee? No wonder the committee cannot get real work done. His toxic showboating is fairly well custom designed to ensure the failure of any team unfortunate enough to include him.

    3. 6.3

      >(1) I suppose that it is better to have data than not to have data, so this measure would not be a bad thing if it were enacted.

      I respectfully disagree. This stuff is at least PI, and probably SPI in this day and age. The government is violating the inventors’ rights to privacy.

    4. 6.4

      RE: (1) I suppose that it is better to have data than not to have data, so this measure would not be a bad thing if it were enacted.

      Bad data is worse than no data. Any “voluntary” system of collection like that proposed here (although failure of the Cruz amendment means that is less voluntary than it seems) will suffer from serious sampling bias and be practically useless as a statistical measure. Even having a financial incentive like reduced fees (is that in the bill?) which could ensure larger participation would likely still produce a statistically significant sample bias in the collected data.

  8. 5

    What is so s t u p i d about this too is that I’ve never had an examiner ask or care anything about the inventors and typically now with big corporations the inventors are from all over the world. The last application I just wrote for a large corporation had inventors from the USA, Italy, and the UK.

    They could easily just do a survey and find out the demographic information at a cost much lower than making us get this information from inventors. It would be easy to do a statistical survey to see if there was any bias at the PTO, which I am sure there isn’t.

    And it would be easy to get the numbers for percentages by paying a firm to do a sample and survey and much more reliable and cheaper.

    What. Shxt.

    And frankly, I work with and talk to people all over the world and I suspect that this will just get their radar going thinking that they might be discriminated against at the PTO—otherwise why are they asking me these questions. It is already awkward enough to ask citizenship status.

    1. 5.1

      Yuck….first they slimed us with people like Lemley and SV coming into our jurisprudence and now this…

      Y U C K ! ! !

      1. 5.1.1

        … but mentioning that this type of stuff is directly related to the “D” camp pushing “equity” — and the direct relation therein to the likes of Critical Race Theory will bring blank, unknowing stares from commentators who do not understand that the larger societal forces DO impact our little esoteric neck of the woods.

      1. 5.2.1

        I know I have to be careful Ben.

        6, compiled a profile of me and was speculating as to who I was. He made several guesses.


          6 has made guesses well over the years about me too.

          Nowhere near close.

          I would not worry about those guesses.


            This comes close to sounding like a challenge. You aren’t inviting guesses, are you?


              Sound like a challenge?

              Pffff – no, it’s just that 6’s imagination far outstrips his sleuthing.

  9. 3

    Yes let’s focus on this when currently every patent attorney worth his salt will say there is no way to tell if an invention is patent eligible except in rare circumstances under the current case law.

    Just f’ing insane.

    1. 3.1

      Disagree that it’s “rare” to know if an invention is patent eligible. Perhaps method patents in certain art areas.

      1. 3.1.1

        Really someone?

        Does that include litigation or just getting it through the PTO?

        Getting it through the PTO is knowable if you can stay out of the 3600 AUs but in court there is no way to know other than you can be sure sometimes it is a not eligible.

  10. 2

    Patently obvious – collect the data, and have yet another division of ‘race, LGBTQ, etc’ talking point of systemic discrimination, spending grants, special program office(s) to ‘fix’ the gap. Don’t actually do the core job of issuing – sound, well founded patents in the first place – maybe we can give special treatment, a free PTAB patent defender in the Star Chamber based on the women and minorities effected most.

    1. 2.1

      Yup. For the Ds it is building a class of people that depend on subsidies or at least get addicted to them so they keep voting for the Ds.

      I am a liberal D but the Ds in the USA are disgusting and nothing like they are in Germany.

    2. 2.2

      I post elsewhere, but there’s actually an economist Lisa Cook whose work is why this is being done. Her work reconstructs this data from 1870-1940 using the census in comparison with the list of inventors.

      Her work is actually extremely critical of using patent laws to increase innovation, as filing rates are much more impacted by segregation and violence then changes to the patent laws. (including a large drop associated with the Tulsa Massacre).

      Her work thus view filing rates as a metric to track larger political and socioeconomic trends, rather than something to be individually addressed.

      Otoh, people can easily misunderstand the work and want to improve this specific metric with such gaps as you mention.

  11. 1

    At some point this becomes a battle between a slow-boil frog syndrome, simple tedium, and a noise drowning out (virtue) signaling.

    1. 1.1

      … meanwhile, having actual strong patents and correcting the Court’s Gordian Knot of the eligibility mess continue to languish.

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