Patently-O Bits and Bytes by Juvan Bonni

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45 thoughts on “Patently-O Bits and Bytes by Juvan Bonni

  1. 4

    Totally off topic, but I think frequently about this JM Keynes essay (URL below). Do you suppose that Americans (on average) would be happier if we had taken more of the productivity growth of the last 70 years in the form of leisure instead of electronics and longevity?

    link to

    1. 4.1

      LOL – Greg “says” that he ig n0res all my posts, but funny that — I invoke JMK and then Greg turns around and “think[s] frequently” about….

      … a JMK item.

      (Careful there Greg, it is “bad manners” to ig n0re someone, and even worse to L 1 E about it)

  2. 3

    The above “Atty. Alex Moss: Amicus Brief of Public Interest Patent Law Institute in Silbersher v. Allergan (Source: SSRN)” makes one wonder if there has been sufficient attention paid in patent blogs to an attempt to apply the bounty-hunter-suit provision of the old Federal False Claims Act to the cost of drugs sold to the U.S. for which patents thereon were obtained with false representations to the PTO?

    1. 3.1

      Why would you think that such would need be reached?

      The plain and simple path being if obtained through false representation, the patent is doomed.

      1. 3.1.1

        Presumably for the Federal False Claims Act plaintiff to collect part of the cost difference from what less the U.S. would have paid for the drugs if they were not patented?


            This is a legal long-shot in which I have no particular interest [other than as a taxpayer and Medicare Part D premium payer]. Also, IC patent kills are relatively rare for drug company patents. Threatened major drug companies have presumably already raised every possible defense argument. A likely response of FCA proponents [including state governments with similar-to-FCA statutes?] would be to argue that the FCA recoverable cost is the knowable large average difference in price of drugs under patent and sole-source versus off-patent.


              In a world in which we amend the FCA to permit the sort of suit you posit, it seems to me that the way to calculate damages is to wait 18 months from the declaration of invalidity/unenforceability, and then calculate damages based on the difference between the pre-declaration price and the price 18 months post-declaration.


                Greg, sounds good, but is 18 months long enough for a generic to get FDA approval and start to compete with a drug that went off-patent unexpectedly by IC decision?

                1. I pulled 18 months out of the air. If economists who study this field prefer some other time frame, I will naturally defer to the empiricists.

    2. 3.2

      I’m no FCA expert, but that doesn’t seem like it works. Where is the falsehood or misleading omission as part of the actual claim being submitted to the gov’t for payment? I just don’t see it. Presumably the gov’t places an order for say 3m units of drug X and the pharma co. delivers on the order; it doesn’t for example only deliver 2.9m units or every tenth unit is actually just Reese’s Pieces instead of an actual pill, yet it invoices for the full 3m valid units. Yes, the patent covering the product might have been obtained through decent, but I’m not sure how that’s relevant to a particular order. Whether or not inequitable conduct was involved doesn’t make any difference in the manufacturing or shipment of units for any particular order. Maybe the master agreement with the gov’t affirmatively represents that the underlying patents weren’t obtained through inequitable conduct, but that seems rather farfetched.

  3. 2

    From the Lee paper: “Technologies… generate enormous benefits for society, but they also create substantial harms… [A]utonomous vehicles threaten driving jobs… .”

    Lord have mercy. In the XXI century, are we still treating labor saving technologies as a “threat.” If I ever become dictator*, I am going to mandate that U.S. high schools teach Bastiat.

    * For better or worse, this is vanishingly unlikely to happen.

    1. 2.1

      Without getting into a huge debate (wishful thinking probably—this is the internet after all), can we at least agree that while people doing the “labor saving” view that savings as a benefit—and from their perspective it surely is—the actual people whose jobs are being “saved” are entitled to see things a little differently? That shouldn’t really be too controversial I thought.

      Under these circumstances, if people are going boast about “labor savings” then I hope they don’t also tout themselves as “job creators” unless they make clear all the jobs are going to … robots.

      One doesn’t have to be a luddite and can still appreciate new technology while at the same time recognizing the benefits and drawbacks thereof aren’t distributed all that evenly. Whether that uneven distribution is a “bug” or a “feature” is not worth debating of course, and I suspect I know about where you stand on that point.

      1. 2.1.1

        [C]an we at least agree that… [o]ne… can… appreciate new technology while at the same time recognizing the benefits and drawbacks thereof aren’t distributed all that evenly[?]

        Sure, no doubt. I would cheerfully get behind a law to require cause for termination of jobs that are growing technologically obsolete and to create a commission that would identify such jobs and enforce the “for cause.” That way, existing workers would not lose their livelihoods, but rather the new technology would come online gradually as existing workers retire, move, or die.

        For all that, however, I really do quibble with the idea that “technology” is putting folks out of work. The Federal Reserve exists to ensure full employment consistent with stable inflation. The NLRB exists to contrive a labor market in which workers negotiate with capital on something like even terms. Neither of those institutions have reliably lived up to those goals since Pres. Carter, but that failure reflects a choice, not an inevitability.

        If the GOP would stop sabotaging those institutions at regular intervals, technological obsolescence would matter very little to most laborers, because the job market would be full enough with multiple channels for gainful employment. That the most influential 40% of our nation prefers, instead, to contrive a labor market that makes money flow upwards is a regrettable choice, but a choice nonetheless, and not one made by the inventors who bring us these supposedly “threatening” new technologies.


          Without getting into the details, I agree with much of what you say.

          But, I just don’t understand the resistance to the term “threat.” You yourself agree that some technologies are “labor saving.” Doesn’t such technology “save labor” precisely by making jobs disappear? If so, aren’t the jobs in question facing a “threat” of extinction posed by the technology? It seems like a very fair description to me.

          You seem to be concerned on behalf of inventors of such technology. But you brought that up, not me. I never attempted to pass judgment on them. Not everything in the world is a morality play, despite the understandable human tendency to cast things that way. Recognizing that a technology has harmful effects in some areas even if it provides benefits to others isn’t the same as condemning the technology itself as “bad” or likewise the inventors as “bad people.” In fact, those are quite different. What I’m saying is just let’s not be ignorant of, oblivious to, or in denial of those very clear and concrete downsides. And yes, the people who face those downsides are certainly entitled to call them “threats.”

          I mean, if one is going to be very concerned about the hypothetical “threat” posed to inventors here—which at most seems to be they get their feelings hurt, unless I missed something?—then surely one can also spare some sympathy for the folks at risk of losing their actual livelihoods.


            I just don’t understand the resistance to the term “threat.”

            A community’s responsible approach to a “threat” is to eliminate it. If we give in to the framing of tech innovation as a “threat,” we are essentially inviting political entrepreneurs to stifle innovation—not a good outcome for any community. This framing should be resisted.


              If the “threat” is inevitable, then the correct response is to acknowledge that and prepare for it in a way that minimizes the damage.

    2. 2.2

      What jobs replaced all those coal jobs and steel jobs and manufacturing jobs we used to have?

      Coming from rural PA and the Pittsburgh area, I can tell you that many of those people are still hurting from the loss of these jobs.

      Add more job losses due to truckers getting canned, and it won’t be good.

      And is there a way this blog could assign a student to review posts for political content, and just remove them? (Including my own)

      1. 2.2.1

        You’re correct, those additional job losses won’t be good unless remedial measures are taken.

        But I have to respectfully disagree with a suggestion of screening for political content. Just like every other area of law, patents/IP has an inherent political component, albeit maybe not quite to the extent of some other areas. So proposing that politics somehow be expunged from the posts and comments just isn’t very realistic.

    3. 2.3

      Greg, what seems to me to be an assumption in “Prof. Peter Lee: Patent Law’s Externality Asymmetry (Source: SSRN)” is that patents themselves are what puts prior business and their employees out of business. When, of course, it is only actual products or services, considered superior in the marketplace for many possible reasons and whether or not patented. Manufacturing robots, internet marketing, electric cars and iPads being just four major recent major disruptive new product or services examples not either built on or inhibiting competitive markets with patents. History is full of numerous other examples.

      1. 2.3.1

        A professor who does not understand that a patent is a negative right (most) probably should not be writing articles.

    4. 2.4


      Shall I find your sabots for you?

      As to Greg’s overly nanny approach, NO ONE should ever be guaranteed a job in the advance of technology.


      Where in the world does such nonsense come from?

      1. 2.4.1

        I have said it before and I will say it again. The Luddites did nothing wrong. They were an early example of the capitalist class harnessing the deadly power of the government to violently suppress workers who wanted access to a greater share of the gains provided by increased productivity.

        We shouldn’t fetishize technological innovation. It has its proper place in society. We should incentivize innovation. However, we need to also have a ethical framework in which the innovation takes place. Innovation often has winners and loser, where being a loser in the system has little to do with ones own choices. We need to make sure that no one is left behind.

        If you are left behind by innovation and there is no support from society to help you recover, then I say you are not only justified in throwing that sabot, you are morally obligated to. If you don’t want sabots thrown into the gears, you should advocate a system where throwing them is not necessary.


          The Luddites did nothing wrong

          No matter how many times you say it, you are not correct (in the view of innovation history).

          We shouldn’t fetishize technological innovation

          We shouldn’t do the opposite.

          We need to make sure that no one is left behind.


            Let me rephrase that: We need to make sure that no one is left behind so that they do not have the moral justification to throw sabots into the gears; because otherwise they would be justified in doing whatever it takes to ensure their are not left behind even if that means slowing forward progress.


              You are confusing moral obligation and your own political views.

              Your view of morality is neither universal, nor do you have ANY right to impose what you deem to be “moral” on others.


          If you are left behind by innovation and there is no support from society to help you recover, then I say you are not only justified in throwing that sabot, you are morally obligated to.

          Not convinced that it is either accurate or helpful to speak of a “moral obligation” here. Nevertheless, when you say “[w]e need to make sure that no one is left behind,” I could not agree more. From 2016 through the start of this year, we watched what happens when society takes a “svcks to be you” attitude to the losers of economic trends, and it was not good. Everyone has an interest in making sure that the “losers” of innovation do not actually lose.


            Maybe this blog needs to encourage even more glibertarians, fascists and conspiracy-spreading rightwing sociopath attorneys to post here so they can air their very serious grievances about voter fraud, failure to respect the “rule of law”, etc.

            Seems only fair plus it makes the parties after the seminars so much more entertaining.


              Do you think that you have heaved enough strawmen into your “one-bucket” v0m1t fest there, Malcolm?

                1. Yeah….

                  No. But you already knew that, eh Ben.

                  (it’s not as if it is a new thing to draw associations between your views and Malcolm’s now is it?)


          “If you don’t want sabots thrown into the gears, you should advocate a system where throwing them is not necessary.”

          So like a system where the workers save their money n sheet? Is that the one you’re talking about?

          Anyway, I just wanted to let you bros know that I oppressed MM for like 10k today.

  4. 1

    A method for displaying a video game to spectators, comprising:
    receiving votes from spectators to remove a player from a video game;
    determining whether a number of votes received to remove the player from the video game meets a threshold level required to trigger removal of the player from the video game; and
    if the number of votes received to remove the player from the video game meets the threshold level required to trigger removal of the player from the video game, generating a command configured to cause the player to be removed from the video game.

    Shame on the “inventors”, shame on the examiner, shame on applicant’s representative, and shame on everyone who thinks this dreck should be rewarded with a patent.

    1. 1.2

      First action allowance! Meanwhile, a quick google search turns up:

      link to

      “Voting is a game feature added in the Hatless Update on April 14, 2011 Patch …

      There are ten types of votes that can be called:

      Kick: Kick a selected player out of the server …

      Allow spectators to participate in votes. Defaults to 0 (disabled).”

      This is just another example of why non-patent prior art needs to be utilized more during examination. Patents and patent publications are so much easier to utilize due to avoidance of any dating issues, but…

      1. 1.2.1

        J. D….

        But Ben will disappear if you make this into an examination quality issue (and certainly blame everyone else except the examiner).

      2. 1.2.2

        Nice art. Even if it didn’t exist, there also had to be a failure of overly formalistic 103 thinking for this claim not to receive a rather simple 103 rejection.

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