AIA 10 year Survey Results

by Dennis Crouch

The patent system has seen tremendous change over the past decade.  A large part of the transformation stemmed from the Leahy-Smith America Invents Act of 2011 that was enacted ten years ago in September 2011.  Earlier this week, I conducted a quick survey of Patently-O readers asking for their thoughts on the impact of the AIA, which has repeatedly been heralded as the largest change to the U.S. patent system since the Patent Act of 1952.  We have about 600 responses.

Most of the survey question used a modified Likert Scale and asked about the importance of various statutory changes found within the AIA.  In order to run some statistics, I transformed the qualitative scale into a linear quantitative scale ranging from 1 (not important) to 5 (very important).

It is not surprising that creation of the Inter Partes Review (IPR) system is seen as the largest change to the system. IPRs have been used to cancel the claims of thousands of patents as obvious — only a small percentage of those would have been found obvious by a jury.   Although almost everyone agreed that IPRs were most important, Patent Attorneys and Patent Agents differed somewhat on other issues, with agents seeing changes to Section 102 as relatively more important to other issues. This included eliminating the date of invention as relevant to patentability and narrowing the pre-filing grace period.  On the other hand, Patent Attorneys gave more weight to PGR proceedings. Patent Office employees were the only ones to say that the addition of satellite offices was important.

The survey included an open-ended response block asking “What else do you have to say about the impact of the AIA?” About 1/3 of responses included these additional thoughts.  My survey tool (Qualtrics) used semantic analysis on these responses and reports that the sentiment expressed was most often generally either “negative” or “very negative.”   (65% Negative or Very Negative; 25% Mixed; 10% Positive or Very Positive).

Some comments focused on the AIA coupled with Eligibility Decisions have “decimated the patent system”; “Devalued IP”; and “greatly reduced the value of U.S. patents” all “to the benefit of large enterprises.” ” A real mess.”

Folks also mentioned the prior user defense; false marking; reducing your own secret prior art; classification system; The new declaration/oath filings was quite costly for applicants.  I’ll publish a more thorough report in the coming days.

98 thoughts on “AIA 10 year Survey Results

    1. 12.1

      … science …?

      ( )

  1. 11

    Bros this is a cool topic and all but I have to ask you guys about an off topic subject that is however legally related. I’m wondering you are aware of Stephen Breyer having imported a somewhat oddball constitutional interpretationlol manner into his interpretations? He calls it “active liberty” (aka “liberty of the ancients”). See his book linked below. He bases this off of some earlier writings by a guy called benjamin constant (see those writings further below if you like to get an idea of what he’s talking about). Anyone even much ever heard of this or have any interest in discussing it? It seems an absurdity from my perspective. Even the old author that he is using as his inspiration/guide (benjamin constant) notes in his own work that we can no longer enjoy the “liberty of the ancients/active liberty” in modern times and sets forth the reasons why, clearly and articulately in the work cited far below. Yet for some reason Beyer seems to have been trying to resurrect this by his lonesome. Can anyone make this situation make any sort of sense? This seems to be at the heart of his style of interpreting the constitution and just seems nonsensical in the extreme and even moreso why anyone would attempt to implement this on a nation where nobody asked for it (and according to the original author it is impossible for fundamental reasons).

    link to amazon.com

    1. 11.1

      The original work by Benjamin Constant (a preview anyway but it is in the public domain if you want the whole thing, kinda interesting)

      link to oll.libertyfund.org

    2. 11.2

      The ultimate misdirection from Breyer who tries his best to be a legislator.

      1. 11.2.1

        “The ultimate misdirection from Breyer who tries his best to be a legislator.”

        Dude that’s what it seemed like and I was like: omfg wtf, how did he come up with this, and why would he at all attempt to implement this on people that want nothing to do with this obviously hugely flawed way of interpreting the constitution.

        The whole thing is too bizarre, they really need to stop people with this kind of quackery behind their interpretations getting on the court.

  2. 10

    Here is an interesting law firm article on the changes made by the AIA to patent law ten years ago, including obscure ones:
    link to finnegan.com

    1. 10.1

      Yes, interesting (and far more guarded as to praise for the AIA), eh?

  3. 9

    Ms. Lee is a traitor who sold her country to Google for 32 pieces of silver.
    Anything that comes out of her mouth should be treated as a lie.

    1. 9.1

      It is interesting that under the new D thinking we Americans have no right to a country because of past atrocities and all our borders should be open and we should have no right. Basically that is the thinking of Harris/Biden/Pelosi/Sanders/AOC.

      Think about how that interacts with Lee. Lee then has no duty to be loyal to the USA. Her loyalty is with large national corporations and she is justified under the new regime of thinking not to be loyal to the USA.

      1. 9.1.1

        The word “traitor” has been 1984’d.

      2. 9.1.2

        Your post is 100% the result of brainworms. Seriously, get some counseling.

    2. 9.2

      Ms. Lee is not figuratively or literally a traitor.

      1. 9.2.1

        I mean, this should go without saying. But as long as it’s being said:

        +1

    3. 9.3

      We seem to need a separate blog for “Patent Q-Anon?” Has it occurred to the diatribers that PTO Directors do not enact or change any of the words of patent legislation [like the subject AIA], or make any changes any case law, or control any patent suits? Yet those are the subjects of the vast majority of the patent attorney complaints here.

      1. 9.3.1

        The conspiracy theory brain rot that tells you that any person who holds a different policy preference than you is a traitor is really a sight to behold.

      2. 9.3.2

        “We seem to need a separate blog for ‘Patent Q-Anon?'”

        I was going to make a joke about this already being the Patent Q-Anon blog, but I am struck by how unfair your analogy is to Q-anon believers.

        They believe what they believe for reasons not based on their own financial interests.

        I don’t think the same can be said about the crowd you reference.

        1. 9.3.2.1

          I’m not sure it’s possible to be unfair to Q-Anon believers.

          Regardless, I hesitate reading the comments here and have done so for years. Every once in a while, I get a good citation, or see a good comment. But, by and large, it’s the same people saying the same (highly political) stuff over and over…

          1. 9.3.2.1.1

            BobM: one of the believers.

            So anyone that doesn’t agree with Bob is a “Q-Anon believer” and conspiracy theorists. OK. Sure Bob.

            (By the way, if you did a little research on your own, you’d find that government watchdog groups say exactly what I’ve said on here. And that it would not be surprising if Lee took in $10-$30 million for her service to SV while at the USPTO. This has been one of the biggest sources of corruption in the US government for decades. Try reading about corruption. In fact on the wish list of the anti-corruption group is a ban on someone like Lee working for a SV company for like 10 years after leaving the PTO.)

      3. 9.3.3

        Paul, the corruption of large corporate job –> government employee -> large corporate job is well-known in DC.

        I don’t think Lee is a “traitor.” I do think that she acted in the interests of SV either consciously or unconsciously and I do think that she has been richly rewarded for her efforts to weaken the patent system.

        1. 9.3.3.1

          While it would be a reach in the strictly legal sense:

          “The offense of betraying one’s own country by attempting to overthrow the government through waging war against the state or materially aiding its enemies.”

          The colloquial sense is EASILY reached:

          “a person who betrays a friend, country, principle, etc.”

          The attempt to paint someone as a “Conspiracy Theorist” is by now beyond trite as a ‘weapon’ of the Liberal Left.

          Current politics are well beyond the surreal – no “Conspiracy Theory” necessary.

          1. 9.3.3.1.1

            More brain worms from Anon. Ms. Lee hasn’t betrayed a friend, country, principle, etc. Having a different policy preference or agenda is not a betrayal in any sense of the word.

            By the standards you set forth, no member of industry, law, or inventor could ever become Director of the PTO (and maybe that is a good policy choice).

            1. 9.3.3.1.1.1

              “having a different policy preference or agenda is not a betrayal in any sense of the word”

              Said the commie to his comrades.

            2. 9.3.3.1.1.2

              The colloquial betrayal of principles is most assuredly present — even if you like what she is ‘about.’

            3. 9.3.3.1.1.3

              Ordinary, try to educate yourself. Seriously. You yap out the stuff like you are CNN supporting a political party.

              Do a little research on your own about people that do the following: work for a large corporation –> are appointed to a government job –> go back to large corporate job in same area.

              This the classic path of corruption. The large corporations rate the person by how well they served their interests in government and then award them stock options according to how well they represented their interests.

              This is so well known and has been for decades. The industries most cited for this problem are finance and the corporations that serve the military.

              Again, facts. I’d bet that if we looked at Lee’s compensation package that she is going to “earn” $20-$50 million dollars by 2025 through stock options for her service to SV during her time at the PTO.

              And go read about it. The watchdog groups say that what Lee is the classic route to corruption and have been trying to stop this for decades.

              1. 9.3.3.1.1.3.1

                And truth be known I know people that have followed this path and have privately admitted it and are now very rich.

                1. And why shouldn’t they have? It’s perfectly legal. Benes corps and corporate politicians. If you’re going to call that corruption, you’ve got to fight the corporate machine bro.

      4. 9.3.4

        True Paul, but here’s the damage that Directors CAN do — and what Lee DID do / authorized / directed:

        IPR panel stacking:

        link to ipwatchdog.com

        Denying motions to amend (which the AIA specifically permits):

        link to ipwatchdog.com

        All in her unspoken quest to do the bidding of her Big Tech masters.

        1. 9.3.4.1

          Denying motions to amend (which the AIA specifically permits)…

          When I said that the AIA was implemented wrongly at every step, this is one of the most important examples. Amendments in AIA proceedings should be of right, not some sort of one-in-a-hundred exception. Thankfully, Dir. Iancu went a long way to rectifying this particular error in the roll-out.

          1. 9.3.4.1.1

            From what I’ve heard from little birds at the PTO is that the reason that the motion to amend is denied and made very hard is because it adds work to the patent judges without added credit.

        2. 9.3.4.2

          Thanks Pro Say, and this is just to note that the former complaints about PTO Director IPR PTAB “panel stacking” is somewhat amusing in hindsight now that the Sup. Ct. recently insisted on MORE Director influence over PTAB APJ’s and we now have optional PTAB decision reconsideration appeals directly to the Director.
          Also, IPR motion to amend practice [actually it is a claim “substitution” practice] was changed some time ago after a Fed. Cir. decision to remove much of the objection, and is now more often used, albeit still not that common.

          1. 9.3.4.2.1

            How odd — and rather unsurprising — that you don’t bat an eyelash at the Supreme Court rewriting law from the bench (in moving for more Director power).

        3. 9.3.4.3

          Let’s not forget that Lee (under Obama) set a record for non-disclosed private meetings with industry donors — after running TWICE with a platform plank of “transparency.”

          Not (exactly) sure why people like to pretend as though this type of stuff is not objective facts…

  4. 8

    Re: Lee Op-ed:

    “So, we had to pull the package of proposed reforms in the midst of being prepared for publication.”

    I am curious if this package includes the TRP “reforms”. You attorneys may not be familiar with them — yet — but they’re the set of changes that gives more time to examine simple mechanical apparatuses, while reducing the time to examine complex technologies like automated image analysis or autonomous vehicles.

  5. 7

    Wonder Why the Comments are off on Lee Op Ed ?

    1. 7.1

      lol – do you really wonder?

      1. 7.1.1

        LOL!

        I’d like for Lee to disclose her net worth as a function of years after her service to SV while acting in her USPTO role.

        1. 7.1.1.1

          Hey, it only becomes ‘worth’ when you exercise those stock options or collect those speaking fees.

    2. 7.2

      Would you want to have your name on a blog with these commenters opining directly in response to a former director?

      It’s not a courageous move, but it’s extremely understandable.

      1. 7.2.1

        Ben, you mean like actually answering real questions about conflicts of interests and compensation?

        You mean answering real issues about people like Lee going from a large corporate job to government and then back to the corporate job?

        You mean like citizens wanting accountability?

        1. 7.2.1.1

          No, I mean like ubsubstantiated accusations of personality disorders.

          1. 7.2.1.1.1

            Lol – but Ben has no problem ‘up-voting’ (and occasionally himself making) the same against people with whom he disagrees with in the comment sections of this blog….

            ¯\_(ツ)_/¯

        2. 7.2.1.2

          For what it’s worth, I strongly agree that the revolving door issue in government is a real problem.

          I’m probably even more bothered by this problem than you, because your concern seems to be focused on Lee-type exchanges (i.e., corporate) whereas mine encompasses both Lee-type and Iancu-type (i.e., law firm) exchanges.

          1. 7.2.1.2.1

            Ben, there is not an equivalence between a law firm job and large corporations that have literally trillions and trillions of dollars in markcap and 100’s of billions of profit per year.

            1. 7.2.1.2.1.1

              Hah.

              “It’s ok to use a government job in the interest of your future employer as long as they have 100s of employees rather than 10,000s of employees.”

              I’d be ashamed to advance that obviously self-serving position, but you-do-you.

            2. 7.2.1.2.1.2

              NW, the financially successful attorneys now doing patent litigation for more than $1000./hour, plus a nice cut of associates billings and new client business brought in, can make a lot more than corporate patent counsels. Being a former PTO Director is certainly a plus for that, but not a fast track to a top corporate management position.

              1. 7.2.1.2.1.2.1

                Paul, you are so out of your depth. The issue is whether the law firm has the resources to influence government officials. Generally not.

                A corporation does. And the cycle of corruption is: corporate job –>> government job where the person acts as if they still work for the corporation –>> back to corporation to get big pay off for work in government job.

                All of this is well known and documented for decades and listed as one of the great problems that nothing has been done about.

                1. “the cycle of corruption is: corporate job –>> government job where the person acts as if they still work for the corporation –>> back to corporation to get big pay off for work in government job.”

                  Oh I get it.

                  The reason this is worse than
                  “law firm partner->government job where the person acts in the interest of the law firm->law firm partner making even more money”, is because all the extra money they’re earning is directly due to the sweat of their own corruption, rather than indirectly due to others making use of their corruption!

                  In America, you have to earn your ill-gotten gains the hard way! Yee-haw.

                2. Ben, you are in your disruptive mode.

                  Seriously, if you knew anything about corruption or what government watchdog groups say, you’d be quiet.

                  What I wrote is what is happening. Does “a” law firm have the resources to pay professors $40k-$100k to write journal articles to their abstracts? Does “a” law firm have the resources to pay Lee $10-$30 in stock options for her “service” to SV while working at the PTO?

                  The ignorance is stunning. This has been one of the biggest issues regarding corruption for decades.

                  And you don’t even know who to attack for the law firm. I’ve never seen a single law firm accused of what you are accusing it of. Now the legal organizations have been.

                3. Pretty sad commentary on your integrity Ben.

                  Is this the way you write Office Actions? Underlying facts don’t matter? Reality doesn’t matter? You yap out some abstractions and think that what the abstractions correspond to in reality don’t matter.

                  Sad. Reality matters. Stop watching CNN.

                4. Nothing but excuses for the type of corruption you favor.

                  Like I said, I care about this problem more than you.

                5. Ben, your ignorance is stunning.

                  Do you write Office Actions like that where you decide what is important despite reality?

                  Reality–what you “care about” is not considered a substantial source of or even any source of corruption in the USA. What I wrote about is considered one of the main sources of corruption in the USA. Do your own research.

                  Asking to see Lee’s compensation package is a reasonable request.

                6. “The issue is whether the law firm has the resources to influence government officials.”

                  Don’t lawl firms generally do almost nothing but influence gubmit officials, kind of as their Raison d’être?

                7. 6,

                  That’s usually someone paying them to do that influencing (for the one paying) – and NOT influencing for their own agenda.

                  Sort of like the Clinton lawyerlols in the news of late. They were acting not for their own agenda.

                8. “That’s usually someone paying them to do that influencing (for the one paying) – and NOT influencing for their own agenda.”

                  So that makes it like totally better n sheet n pure n clean?

                  I mean.

                9. Just saying 6 — there is a world of difference as to where “the buck stops,” (plus other adages such as ‘don’t shoot the messenger)…

                  The point here being ON the culpable party, rather than on the “tools” of the culpable party.

                  (I would also throw in my usual reference of Sir Thomas More and indicate that you cannot blame the attorney, even if that attorney is defending the Devil)…

    3. 7.3

      She asked me to turn them off based upon some prior experiences.

      1. 7.3.1

        Poor dear.

        If you can’t stand the heat (folks rebutting your assertions and contentions), then stay out of the kitchen (critically important, high visibility government positions).

        1. 7.3.1.1

          It’s been a long and endemic problem on this forum in which people do not want to engage, but merely want their turn to step up onto the soapbox (and not deal with counterpoints presented).

          Sometimes this is accompanied by faux ‘outrage.’ We can call it the “drive-by syndrome” (among other labels).

          1. 7.3.1.1.1

            Anon, if you look at my counter points I have hereto presented taking into consideration vague references I make to arguments I made in the comments of a random assortment of posts over the last five years, but I am not going to tell you specifically which comments or which posts, you will find all of your counterpoints rebutted.

            1. 7.3.1.1.1.1

              Ha! This is casting pearls before swine, but amusing pearls in any event.

              1. 7.3.1.1.1.1.1

                With all due respect to the site’s biggest coward (that would be you Greg): F you.

            2. 7.3.1.1.1.2

              OSitA,

              Oh, you really do need to pay just the smallest amount of attention and you would see that my posts are not vague.

              Just as I have paid attention to your posts and can tell you most absolutely that you have NEVER provided a cogent and meaningful counterpoint to one the counterpoints that I have presented.

  6. 6

    Re patent valuations, etc. it is difficult to separate the relative effects of the AIA from the Sup. Ct. decisional effects of KSR [103], eBay [injunctions] Bilski & Alice [unpatentable subject matter], patent suit venue, and other Sup. Ct. decisions during their overlapping time frames.

    1. 6.1

      There certainly has been an active assault against strong patent rights.

      Note as well the overlap in timeframe with the “Oh Noes Tr0lls” propaganda – initiated and actively pursued by the landed and monied Big Tech (who were most definitely NOT concerned with any dampening effects on innovation).

      Far easier to simply label “patents are bad” and then compete on NON-innovation terms.

      1. 6.1.1

        Patent trolls were certainly helpful to the broad bipartisan support for the AIA. But the patent troll business model is obviously still effective, as IPWatchdog publishes a regular article regularly documenting the large numbers of new patent suits being filed by patent trolls, using the narrowed definition [suits by companies who bought all their patents from others and have no other business than suing on patents of others].

        1. 6.1.1.1

          You have a VERY selective way of referencing the fact that landed money (the juristic ‘voi€e$’) had captured both sides of the aisle.

          Patent trolls were certainly helpful to the broad bipartisan support for the AIA

          You seem not to be recalling the many practitioner voices screaming out how atrocious the legislation was during its travels through Congress (as well as after passage).

          I don’t think that you can see past your pom-poms.

          1. 6.1.1.1.1

            Anon, for amusement purposes I will flip your frequent expression to “pom-poms for patent trolls.” But I had only made a simple statement of factual political reality. To wit, the complaints of many small business owners to their Congresspersons about getting mass-mailed patent suit threats from patent trolls, and the media publicity, WAS politically significant in getting so many bi-partisan votes for the AIA. [Unlike mere complaints in patent blog comments.] But the AIA still took six years of negotiations, changes and strong support from the AIPLA and other major patent attorney and patent owner organizations to get enacted. How many of those constantly complaining about the AIA now were then professionally active on the relevant committees at the time in the AIPLA. ABA, IPO or other important organizations with lobbying effectiveness?

            1. 6.1.1.1.1.1

              Your comment merely reflects more effective propaganda — nothing more (and certainly not the legitimacy that you seek to inure).

    2. 6.2

      Yes of course Paul (he who always starts a new post to respond to my posts.)

      Of course we all know that the courts have done all they can to devalue patents.

      Ultramercial is probably the most important case in the last 20 years in devaluing and destabilizing patents.

      1. 6.2.1

        Good point NW. While Alice Corp. v. CLS Bank Int’l (2014) is more often cited for software patent related 101 unpatentable subject matter decisions, the subsequent Ultramercial, Inc. Sup. Ct. decisions re Hulu and WildTangent, twice reversing the Fed. Cir., really polished that hot knife for preliminary 12(b)(6) motion invalidation of overly broad software-based patents as not being directed to something other, or more than, an abstract idea. Re-affirming a two part test of: is it an abstract idea (part 1), and, if so, (part 2) whether the claims contain an element or combination of elements sufficient to ensure that the patent amounts to significantly more than a patent upon the abstract idea itself. To hold that the patent did not claim patent-eligible subject matter under 35 U.S.C. § 101.

  7. 5

    The value of a patent has fallen 80-90 percent since the passing of the AIA.

    1. 5.1

      Probably related to the provisional abandonment as well. As what I see in large corporations is file a provisional and then decide if it is worth a utility.

      The value of a patent is so small now that all sorts of practices have changed over the last 10 years.

    2. 5.2

      The value of “a patent” has fallen? The value of CRAPPY patents has fallen, but many patents are incredibly valuable. In the “good old days,” trolls could extort money just by filing dubious lawsuits with old patents that purportedly cover the Internet or all smartphones. That is not as easy now as it once was.

      1. 5.2.1

        No it is not “CRAPPY” patents. It is all patents. It is true that if you spend a huge amount of money and time on a patent application, that it is possible to still enforce it. But a regularly priced patent application with a modest budget is hard to enforce as it will millions to defend it in IPRs and the budget probably wasn’t big enough to put all the fancy bells and whistles (unnecessary ) to protect in IPRs and Alice.

        And–we all know–that any information processing claim can be invalidated using Alice—ANY.

      2. 5.2.2

        So yappy wrong. The narrative of “CRAPPY” is just a crappy argument.

        1. 5.2.2.1

          Reminds me of WAY back in the day (when the Oh N0es Tr011s propaganda was first being accelerated), there was a blog called ‘The 271 Blog’ that actually went and did an evaluation of patent quality for asserted patents (differentiating between those asserted by the so0caled “Tr0lls” and those asserted by those operating with products.

          He found the “Trolls” quality to be typically slightly higher (and attributed this to the vetting process).

          The translation from “liti8or” may well be that the ‘definition’ of a ‘bad patent’ is any patent asserted against the company who is paying “liti8or.”

    3. 5.3

      IMHO, the AIA has flipped the script. A patent went from being an asset to a liability. Before the AIA, a patent owner could chose what and what not to do with an issued patent (do nothing, sell, assert, expire, etc), post AIA that patent owner can be forced into a PTAb defense of the asset, let’s say $250k cheap-o TPAB proceeding hence a liability.

  8. 4

    Dennis — how about providing the important opportunity for your readers to be able to comment on Lee’s “Op-Ed?”

    Shouldn’t the voices of others regarding her assertions and contentions be heard?

    1. 4.1

      Nothing stops one from posting comments here about Ms Lee’s essay.

  9. 3

    It is surprising that PGRs are rated as more important than CBMs. There have been—and continue to be—hardly any PGRs each year. There are many more CBMs determining the outcome of litigation each year than there are PGRs.

      1. 3.1.1

        Fair enough. I suppose that people could interpret the question about importance in a strictly forward-looking manner, in which case CBMs have almost no importance.

      2. 3.1.2

        Indeed. Those pesky check image presentment patents were removed from the patent rolls. Mission accomplished, big banks made happy.

        1. 3.1.2.1

          Yes, numerous suits against banks on check imaging patents was the then-reported NY Banks concerns to S. Schumer leading to his reported last minute insertion of the limited term CBM system into the AIA.

          1. 3.1.2.1.1

            … and this is but one example that f capture and undue influence.

            But go ahead and pretend that the “Oh N0es Tro11s” was not a propagandized weapon…

    1. 3.2

      Greg, I wonder if that PGR rating in this quick opinion study is due confusion between PGRs and IPRs. In particular, not appreciating the dangerously broad scope of estoppel for losing a PRG plus the very short time period a PRG can even be used after the issue date of a patent. Ending long before most patents are sued on.

  10. 2

    Re: “IPRs have been used to cancel the claims of thousands of patents as obvious — only a small percentage of those would have been found obvious by a jury.”
    For a valid comparison of the [unquestionably very significant] total effect of IPRs one has to note that the vast majority of the cancellations of actively-infringement-asserted claims in IPRs [on 103 AND 102] have been appealed to the Fed. Cir. and sustained by that court. Also note the significant percentage of pre-AIA claims challenged on validity grounds in patent litigation that were held invalid in the routine post-trial appeals to the Fed. Cir. [reversing jury decisions]. Or, all the patent suits that were inexpensively settled before any trial if the discovered prior art was effective enough to convince the patent owner. The latter occurred many times more often than jury trials.

    1. 2.1

      Right. I balk at Prof. Crouch’s phrasing “small” percentage. How can we possibly know what percentage would have done anything in this hypothetical alternative universe in which the IPR system never comes online?

      Nevertheless, it is clear that—by lowering the transaction costs necessary to reach a validity ruling—the IPR system has successfully weeded out a much larger number of invalid claims than was possible pre-AIA. This is a good outcome for the well-functioning of the patent system. Those who believe in the noble mission that the patent system is intended to further should be gratified by this outcome.

      1. 2.1.1

        OK – I don’t have the statistics, but historically only a small percentage jury verdicts have invalidated claims as obvious. PTAB Judges regularly use combos of 4 or more references. Defense attorneys know better than to present that parallel analysis to a jury.

        1. 2.1.1.1

          If nothing else, you can look to the procedure / ownership games people have been to get thing into / keep things out of IPR. Such “forum shopping” is a sure sign of a broken system.

          1. 2.1.1.1.1

            Forum shopping definitely shows that some part of a system is broken, but it does not really tell you which part. Is the PTAB to loose in finding invalidity, or were the pre-AIA juries too tight? The fact that the CAFC affirms the overwhelming majority of these PTAB verdicts suggests that the problem was with the pre-AIA part of the system, not the post-AIA part.

            1. 2.1.1.1.1.1

              Dozens,

              You are assuming that the brow-beaten CAFC has been making correct decisions.

              As has been pointed out many times, this is just not a correct assumption.

            2. 2.1.1.1.1.2

              The former. They have been told their job is to invalidate mistakenly issued patents and that the patents which they invalidate were mistakenly issued. So they keep their docket sufficiently full to get all their points and bonuses by instituting and declaring a sufficient number of patents invalid (because they were mistakenly issued).

              The vast majority of patents they have invalidated are easily upheld in an Article III court. The 300 patents are so that have been challenged in both venues prove this out.

              1. 2.1.1.1.1.2.1

                Mr. Malone – do not forget one critical difference: the stick from the bundle of property rights that is taken (without recompense of any kind) at the Institution Decision point — prior to any decision on the merits — when a granted patent with all of its sticks is dragged back into the Executive Agency domain without the stick (that stick of course being the presence and level of the presumption of validity).

      2. 2.1.2

        should be gratified

        [must be read in the tones of 1984]

  11. 1

    … and Greg is sure to label this as “temperamentally whiny”…

    (in his ‘pay no attention to that man behind the curtain’ best Wizard of Oz impersonation)

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