H. R. 5874: Restoring America’s Leadership in Innovation Act of 2021

Rep Massie (R-KY) along with three republican co-sponsors has introduced a new pro-patent-holder legislative proposal. [LINK]

Elements of the proposal:

  1. Restore a first-to-invent system and one-year grace period: “a person shall be entitled to a patent where the inventor is first to conceive of the invention and diligently reduces the invention to practice.”  This includes substantial reversion of Section 102 to its pre-AIA status.
  2. Abolish Inter Partes Review and PGR: “Chapters 31 and 32 of title 35, United States Code, are repealed.”
  3. Allow for civil actions to demand patent rights from the USPTO in any district court.
  4. End Fee-Diversion of USPTO Revenue.
  5. Abrogation of Alice, Mayo, Bilski, and Myriad “to ensure that life sciences discoveries, computer software, and similar inventions and discoveries are patentable, and that those patents are enforceable.”  This includes statutory revision of Section 101.
  6. Expressly establishing a patent as a private property right: “A patent right is a private property right secured to an inventor upon issuance of the patent that shall only be revoked by a court ruling in a judicial proceeding, unless the patent owner consents to an administrative or other procedure.”
  7. End Automatic publication of patent applications.
  8. Patent term tolled during any period of patent validity challenge.
  9. Patent infringement judgment presumptively results in an injunction.
  10. Best mode reestablished as an operative condition of patentability.

What are your thoughts on these proposals?

 

 

 

161 thoughts on “H. R. 5874: Restoring America’s Leadership in Innovation Act of 2021

  1. 27

    Posted at 2.4.1.4.1.2 below, but worth posting at top:

    injunctions as a default (and as you note, unless the defendant can establish a strong ‘public interest’ counter point).

    Put simply (again), the principles of equity at play in conditions in which it has been shown that a patent holder has been aggrieved (and accounting for the Negative Right of which a patent actually is, and what that aggrievement actually is) can be viewed in a two=step manner:

    1) make the aggrieved as whole as possible.
    This is the point that “as whole as possible” pivots on the nature of the right transgressed.

    2) do NOT treat “injunction” as some type of “atom bomb” that MAY apply to different situations, different rights and the forms of those different rights.

    It is the wickedness and effects of the Efficient Infringer propaganda machine to turn the remedy, which is what is to be applied per those principles of equity, into what in effect PROMOTES infringement by large, well-established entities and a game of “worst case, we only pay what we may have paid upfront, but after making the patent holder spend gobs of money chasing us.”

    Turning patent infringement into a contract efficient breach** benefits the transgressor – and there is NO WAY that accords with a remedy to a patent holder shown to have been aggrieved under any principles of equity.

    ** see link to en.wikipedia.org

  2. 26

    Here is the proposed language for

    35 U.S.C. § 101. Inventions patentable

    (a) In general.—Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.

    (b) Exception.—A claimed invention is ineligible patent subject matter under subsection (a) if the claimed invention as a whole, as understood by a person having ordinary skill in the art, exists in nature independently of and prior to any human activity, or exists solely in the human mind.

    (c) Eligibility standard.—The eligibility of a claimed invention under subsections (a) and (b) shall be determined without regard as to the requirements or conditions of sections 102, 103, and 112 of this title, or the claimed invention’s inventive concept.

    The bill also includes a sense of Congress subsection that presumably is meant to aid (constrain?) judicial interpretation:

    “It is the sense of Congress that— …

    “(3) this amendment effectively abrogates Alice Corp. v. CLS Bank International, 573 U.S. 208 (2014), Bilski v. Kappos, 561 U.S. 593 (2010), Association for Molecular Pathology v. Myriad Genetics, 569 U.S. 576 (2013), Mayo Collaborative Services v. Prometheus Laboratories, 566 U.S. 66 (2012), and its predecessors to ensure that life sciences discoveries, computer software, and similar inventions and discoveries are patentable, and that those patents are enforceable.”

  3. 25

    Either do H. R. 5874 or shut down the USPTO and go to a patent registration system handled by the Copyright Office.

    1. 25.1

      “go to a patent registration system handled by the Copyright Office.”

      This sounds especially good to me.

      That way, there’ll be no room to hide in for the worthless PTO executives who developed TRP to hide from a 100% RIF.

      1. 25.1.1

        Wow. I can actually agree with Ben.

    2. 25.2

      Count. Me. In.

  4. 24

    Helpful reminder: It would not only be perfectly legal, it would be absolutely the right thing to do for any law firm, or any other private employer, to summarily fire any employee, or de-equitize any partner, who gave money to Donald T—-mp.

    Shun and shame.

    1. 24.1

      “Helpful reminder: It would not only be perfectly legal, it would be absolutely the right thing to do for any law firm, or any other private employer, to summarily fire any employee, or de-equitize any partner, who gave money to anyone espousing leftism.

      Shun and shame.”

      FTFY

    2. 24.2

      Helpful Reminder, Prophet Tecumseh. SHUT YOUR YAP!

    3. 24.3

      The “Poopy Diaper” speaks.

  5. 23

    Mr. Massie, what you’ve just said… is one of the most insanely idiotic things I have ever heard. At no point, in your rambling, incoherent response, were you even close to anything that could be considered a rational thought. Everyone in this room is now dumber for having listened to it. I award you no points, and may God have mercy on your soul.

    1. 23.1

      The best part of that movie.

    2. 23.2

      Ok, a simple “WRONG” would have done just fine…

  6. 22

    I don’t know how accurate these Prognosis polls are but the poll listed on GovTrak gives this bill a 3% chance of passing.. link to govtrack.us

  7. 21

    Right…because the likes of Gilbert Hyatt and the patent NPEs have done so much for American innovation. This proposal glosses over the fact that having FTO is a key aspect of innovation too. If those with the resources and know-how to translate inventions into innovations have to pay excessive rents to secure FTO, the costs of product development will be too high.

    1. 21.1

      This proposal glosses over the fact that having FTO is a key aspect of innovation too.

      How so?

      By FTO, I take it that you mean Freedom to Operate.

      Nothing in this bill changes that.

      Maybe you mean something else (along the lines of Efficient Infringement)

  8. 20

    Another question for the naysayers, do you believe the patent bargain can be an effective means to accelerate innovation? That is can securing to inventors the exclusive right to their discoveries (in exchange for public disclosure) promote progress in the useful arts?

    If so, how do we get there?

    1. 20.1

      Back to the basics, eh Josh? In the years since 1973, when I started my patent attorney training at one of London’s leading patent law firms, many things have changed in the patent business, some much for the better, others grotesquely worse. Back then it was a “given” that patents do promote progress in the useful arts but not any more.

      Why that then? I suggest that the 1973 Article 52 list of subject matters excluded from eligibilty has protected Europe from the storm of criticism of the patent system within the USA. We humans advance by taking note of, and learning from, the experience of others. It is by now, half a century later, fairly clear what is the boundary between a patent system that promotes progress and one that does the opposite.

      1. 20.1.1

        fairly clear what is the boundary between a patent system that promotes progress and one that does the opposite.

        Is that your view from the summit of your Mount
        S
        T
        U
        P
        I
        D ?

    2. 20.2

      Yes I definitely believe the patent system accelerates innovation and I believe that is a primary reason the USA is currently ahead with innovation.

      Our problem is one of corruption. The professors, politicians, and so forth that attack the patent system are in the pockets of a few international corporations.

      1. 20.2.1

        As I have noted (like forever), the patent system is under attack from MULTIPLE philosophical viewpoints.

        I have coined one manner of looking at this as Attacks from the Left and from the Right.

        Of course, this takes some liberty with the term “Right,” as I am not using that term in its traditional sense.

        From the Left is rather easy to see and understand. The Left simply do not want ANY personal property and despise the American System of individual effort.

        My “from the Right” is more correctly noted as from established entities who would rather compete on terms that they more readily control — and disruptive innovation (as IS promoted by a strong patent system) is a critical enemy. As the Left may be viewed as “ANY personal property is bad,” my “Right” may be viewed as “ANY one else’s personal property is bad.”

        The Right fully embrace making the patent system a Sport of Kings.

        What we see in the LARGER US picture, and certainly reflected in the world of patent law that most all of us here inhabit, is that the versions of what I call the Left and the Right have become closely aligned. Big Tech, Big Media, and other assorted Efficient Infringers have become wedded with the socio-political Far Left.

        1. 20.2.1.1

          “The Right fully embrace making the patent system a Sport of Kings.”

          Not sure I agree with that bro, I think you would find significant support in favor of making an underdog’s patent system, though perhaps with lesser opportunity for giganto reward.

          1. 20.2.1.1.1

            Just not seeing that 6.

            1. 20.2.1.1.1.1

              How many people do you know irl, and talk to regarding such matters, that are right wing and also not rich (at least 1 milly, if not 10 milly assets)?

              1. 20.2.1.1.1.1.1

                I talk to a wide variety of people across political and social spectrums.

                I am just not seeing what you think is there.

      2. 20.2.2

        I definitely believe the patent system accelerates innovation and I believe that is a primary reason the USA is currently ahead with innovation.

        I also believe that the U.S. patent system accelerates innovation, but clearly it cannot account for the USA’s preeminent role in business. Non-U.S. businesses get more U.S. patents each year than do U.S. businesses. Sony, for example, sold far more Walkmans, televisions, and stereo systems in the U.S. than it ever sold in Japan. Same for Toyota, Sanyo, Samsung, etc. The U.S. patent system is, in other words, at least as much of a boon for businesses outside the U.S. as it is for U.S. businesses and U.S. innovators.

        1. 20.2.2.1

          Incidentally, the primary reason for America’s business and technological success over the last 150 years has far less to do with our patent laws (which were only ever marginally different than other countries’ patent laws) and much more to do with our immigration laws (which, at times, were much more welcoming than those of our peer nations). That is why the recent moral panic over putatively “open borders” is so socially destructive. We are, as a nation, perversely bent on killing the goose that has been laying our golden eggs.

          1. 20.2.2.1.1

            Greg is full of it.

            Let’s see evidence Greg – as you demand that of others.

            Also, your point about GDP/capita is NOT evidence of your assertion.

            At best, there may be some loose correlation, but as can be seen (humorously) by: link to tylervigen.com

            such ‘tracking” proves nothing.

          2. 20.2.2.1.2

            “and much more to do with our immigration laws (which, at times, were much more welcoming than those of our peer nations)”

            All of my lelz. Only in a leftist dreamworld, but ok. Totally explains the 30’s and 40’s.

            “That is why the recent moral panic over putatively “open borders” is so socially destructive.”

            Possibly the most hilarious and delusional sht to come out of greg’s leftist mouth. The “moral panic” comes from a variety of sources, like you know, 3/4 of the illegal women getting sexually assaulted on their way to claim the golden ticket, an outdated “asylum” system that has practically no point in even existing in today’s world in its current form, and you know, the giganto masses of illegals present at this very moment (don’t worry, we know you don’t hang out with them so you don’t care Greg), and the second class of citizens they create, along with giganto tax, services, and environmental issues.

            “We are, as a nation, perversely bent on killing the goose that has been laying our golden eggs.”

            Sounds like white supremacist rhetoric there.

            link to prb.org

            1. 20.2.2.1.2.1

              Totally explains the 30’s and 40’s.

              Not sure what you mean here. The U.S. was wealthier than Europe, China, Japan, or Russia in the 1930s and 1940s just as it was in the 1920s or 1990s. So, yes, our welcoming immigration regime did explain our superior situation in the 1930s and 1940s.

              The “moral panic” comes from a variety of sources, like… 3/4 of the illegal women getting sexually assaulted on their way…

              This is such obvious nonsense that I am surprised that God did not strike your keyboard with lightning as you were typing it. If the concern were really over the health and safety of those coming, the obvious solution would be to open legal channels for them to come, so that they would not use human trafficking routes to get here. Similarly, if the concern were really for the well being of the immigrants, there would be little enthusiasm for hunting them in U.S. cities and deporting them. Clearly none of the factors you list much concern the political coalition most agitated by concerns of “border security.” I dare say that you know this however, so it is scarcely worth either of our time to belabor the point further.

              Chinese GDP/capita is barely above Mexico’s or Cuba’s (URL below). However, with >1.1 billion Chinese, even a modest GDP/capita multiplies out to an impressive figure. Imagine if we—with our GDP/capita six times China’s—had >1 billion Americans. Imagine—even better—if we had skimmed 200 or 300 million of those billion out of China, so that they were building our economy instead of China’s. We would be leaving China so far in the dust that it would be almost risible.

              That is the loss that we are suffering from our own shortsighted moral panic over “border security” and “national culture.” If we lose out to China, it will be the nativists’ fault, and we as a nation will have deserved the loss for letting ourselves be seduced by the nativists’ nonsense.

              link to google.com

              1. 20.2.2.1.2.1.1

                Open legal channels….

                Talk about lightening strikes.

                Then again, this is just Greg being Greg.

    3. 20.3

      An effective patent system can be a factor, but not the factor. That is, there are many incentives to innovate, one of them being the patent system. Not all innovation requires the incentives provided by a patent system.

      Others talk about how some industries are working against an effective patent system. This is definitely something that should be discussed in a sane, non-conspiratorial manner (heaven forbid we get to the point where any patent-related topic is taboo to discuss, enforced by the pro-patent cancel culture warriors in this blog’s comment section). We know that with the incentives provided by a limited monopoly, there are also incentive to break that system as much as possible.

      However, we should also have a robust conversation about how some players in the system see the patent system as a game that can be used to make money at the expense of others while not deserving the rights that a patent grants or those that use patents not as a reward for innovation, but an opportunity to protect their business model.

      1. 20.3.1

        As one can see, US GDP/capita had been growing at a fairly linear fashion from 1900 to 2007. The Great Depression knocked it below trend for about a decade, and then the U.S. entry into WWII pushed it back above trend for about five years, such that it settled back into its long-term trend at the end of that brouhaha. Other than that, its growth remained essentially unchanged through any number of changes to our patent laws.

        In other words, there is no discernible difference between U.S. economic performance during the interval in which “the only patent that is valid is one which th[e Supreme] Court has not been able to get its hands on,” (Jungersen v. Ostby & Barton Co., 335 U.S. 560, 572 (1949)) and during the interval in which State Street Bank was the law of the land. I like to think that the existence of patents vel non makes a difference, but subtle changes in the calibration of the patent system empirically do not matter.

        Strangely, I am sure that the people who bewail the current state of patent law as a sure and certain road to national perdition know this. The fact that they make the argument anyway, therefore, rather gives away the game that they are not arguing in good faith.

        1. 20.3.1.1

          I think on the other blog there have been several great articles detailing how the weakening of the US patent system has hurt innovation in the USA.

          1. 20.3.1.1.1

            I will have to go back and read some of them again. I thus far have not been convinced that other confounding factors have been considered. This so-called weakening is parallel to firm consolidation, not just in tech, but in other areas (e.g., PepsiCo, PG&E, Nestle, etc.) that have led to a less competitive and thus less innovative environment. Robust competition can be an incentive for innovation (and in some aspects, patent rights let legacy firms sit on their laurels and sue people instead of innovating and competing)

            1. 20.3.1.1.1.1

              Ordinary, you know the Federal Circuit was created by Carter specifically to force large corporations not to be able to just sit there. The idea was that if they didn’t move quickly, then improvement patents would wipe them out.

              But I agree with you that (I think this is what you are saying) that more anti-trust actions need to be taken. You know why they aren’t? It is because of the “rule of reason” that the Supreme Court invented that effectively ended anti-trust actions.

              1. 20.3.1.1.1.1.1

                [M]ore anti-trust actions need to be taken. You know why they aren’t? It is because of the “rule of reason” that the Supreme Court invented that effectively ended anti-trust actions.

                +100

            2. 20.3.1.1.1.2

              (and in some aspects, patent rights let legacy firms sit on their laurels and sue people instead of innovating and competing)

              I call B$ on this.

              Patent rights exist and provide function regardless of who owns them.

              This instead sounds in a mewling “anyone seeking to ENFORCE their rights are “bad,” because they are suing someone.”

              Suing someone is NOT bad per se.
              Blocking people from Efficient Infringement is GOOD.

              EVERYONE is faced with the same choices:

              1) Ante up to what the innovator (or current owner, if the innovator has decided to treat their personal property as personal property and alienated that property) asks for — IF that innovator even entertains being paid (there is NO requirement for an innovator to allow that to happen, and it would be perfectly within the INTENT of patent law for an innovator to say, NO ONE gets to use my invention during MY time of power with the negative right). – in essence, the corollary of:

              2) do without; or

              3) Innovate around.

              The third item is a hugely under-appreciated notion, and one that flies directly in the face of the propaganda from the Efficient Infringers, who want to make contract efficient breach (so the AFFIRMATIVE aspect of ‘to use’ becomes a focus instead of the actual legal nature of a NEGATIVE right being the focus).

          2. 20.3.1.1.2

            IP Watchdog certainly has a number of articles full of folks grousing that American innovation is headed down the chute. There is a very famous scene in Gunter Gräss’ Katz & Maus in which some teenage boys feed the seagulls while standing on an old mine-sweeper ship stranded in a river leading to the Danzig harbor. Those IP Watchdog articles (and the reactions they inspire in the readership) always remind me of that literary scene.

            Their actual evidentiary content, however, never seems to quite deliver. They are long on imagery, but short on solid, verifiable facts (at least of the sort that could support their thesis).

            1. 20.3.1.1.2.1

              Their actual evidentiary content, however, never seems to quite deliver.

              says the guy who does not provide the same for HIS views…

              (no wonder he does not like it when I am “rude” to him when I dismantle his views)

        2. 20.3.1.2

          Greg, which intervals “secured to inventors the exclusive right to their discoveries” and which did not? And are you concluding from this observation that such a bargain is ineffectual?

          1. 20.3.1.2.1

            [W]hich intervals “secured to inventors the exclusive right to their discoveries” and which did not?

            All intervals show evidence of rights being secured to actual inventors (allowing for the sorts of mistakes that are inevitable in any regime run by humans).

            [A]re you concluding from this observation that such a bargain is ineffectual?

            Quite the contrary. As I said, the U.S. GDP/capita kept growing admirably all during that interval. Evidently the bargain served its purpose well.

            1. 20.3.1.2.1.1

              You lost me.

            2. 20.3.1.2.1.2

              Wait, I think I understand. You are saying that from 1900 to 2007, inventors generally enjoyed an effective right to exclude others from practicing their inventions within the U.S.?

              And during that period, the U.S. performed fairly well in innovation?

              I would agree.

              1. 20.3.1.2.1.2.1

                Right. It is not an especially controversial point that I am making.

                1. 2006 to 2018 is when we stopped securing to inventors the exclusive right to their discoveries.

                  It seems your GDP/capita metric would be evidence in support of the patent bargain increasing innovation.

                  Thanks for contributing this.

                2. Once again, I believe that my contention that patents accelerate innovation is fairly anodyne and uncontroversial.

      2. 20.3.2

        OSitA,

        Meh, you pull back here a bit to sound polite, but your usual posts do not measure up.

        You misfire with the notion of “ Not all innovation requires the incentives provided by a patent system.” as the patent system simply does NOT exist for the sense of “requires” that you impugn. Sure, it IS a benefit for those that may happen to so “require,” but it is a fallacy to even suggest that “require” is a necessary condition. You turn this into a 1984ism of an opposite meaning.

        And then you show your bias with a slip of “enforced by the pro-patent cancel culture warriors in this blog’s comment section” — as if the pro-patent people are the ones seeking to cancel anyone or to quell discussion on the merits.

        Quite in fact, it is the opposite, as I — being perhaps the most vocal of the pro-patent “warriors” have always pushed for people to reply and engage on the merits (while it is the anti’s that IGN0RE others and seek to NOT engage on the merits.

        Furthermore, ANY type of “while not deserving the rights” have ALWAYS HAD avenues to pursue such.

  9. 19

    To all the naysayers, should we have: 1) a merit based-patent system; a privilege-based patent system; or 3) no patent system?

    For those that favor option 1, how do we get there?

    1. 19.1

      Define merit based and privilege-based

      1. 19.1.1

        Random, spoke like a true Marxist.

        1. 19.1.1.1

          Marxists like defining terms?

          I guess that explains why there are no patent attorney Marxists!

          1. 19.1.1.1.1

            Ha!

    2. 19.2

      1)

      Corruption is what is driving this. The politicians are making privately millions by supporting SV.

      The only way to get there is address corruption.

      1. 19.2.1

        Looks like count filter is highly active…

        part one of that could be reigning in the power of the juristic person of corporations.

        part two of that could be bringing full sunlight to the flow of money across Big Government, Big Tech, Big Media, and Big Pharma.

  10. 18

    Wow what a wish list. Most of it I’m meh on, and some of it likely cannot be sustained under the constitution anyway, but ya know, all good either way. If it does pass I guess I will have to go ahead and become a patent lawyer to clean up $$$$$$$$$$$

  11. 17

    Back in the day, anon used to describe U.S. patents as the “gold standard” (frequently using his “ping” sock puppet), and MaxDrei would try to draw “ping” out as to what this even means. As you might imagine, no explanation was ever given. I infer that Rep. Massie means global “leadership” in the same vacuous sense as this putative “gold standard.” Empty words used to paper over a lack of logical signification.

    1. 17.1

      The essence of this sort of thinking (“restore” leadership, U.S. as “gold standard”) is that the speaker regards the 1952 Act as the Platonic ideal of THE PATENT LAW. One sees something of the same in American Cowboy’s remark at 5.2.1 below that the “AIA… is contrary to the intent of the patent laws… .” In one sense this is nonsense (the patent laws are contrary to the intent of the patent laws?!?), but what the speaker means is that the AIA frustrates the intent of that which the speaker considers to be the real patent law.

      1. 17.1.1

        Greg, aka Dozens, is simply incorrect as to the Act of 1952.

        It is NOT that such was some Platonic ideal.
        It IS that such was perhaps the last time that Congress smacked down the Judicial Branch for that branch’s ultra vires over reach.

        As to the AIA, both Greg and Malcolm (being two peas in this particular pod), seem to purposefully NOT understand what it may mean to see legislative capture. Greg’s rather pompous way of putting it: “real patent law” makes it sound like there is no such thing as Congressional capture (and Night Writer may well immediately recognize this as his noted corruption), which of course, Greg’s view is beyond pollyanna and downright asinine.

      2. 17.1.2

        Most of this attitude can be briefly summarized as “who moved my cheese?”

        1. 17.1.2.1

          … or with Greg, who cut his cheese.

    2. 17.2

      Greg, I see that your Link is to a thread from 10 years ago, with contributions also from several others still active here today. Thanks for that.

      What does “Gold Standard” mean, in the context of a patent system, you ask. What are the basics?

      I would answer, one that delivers swiftly and at proportionate cost enforceable exclusive rights to those holding patent rights but equally swift relief, at proportionate cost, to those threatened by a patent which is not valid.

      As the 1973 Protocol on the Interpretation to Article 69 of the EPC insists: the courts are required in every case to deliver BOTH fair protection for the inventor AND reasonable legal certainty for everybody else.

      Is that too much to ask of the legislature, the executive branch and the courts? I think not. Not now, after half a century of observation of the way the 1973 Protocol has worked out.

      1. 17.2.1

        and there goes the shill EPO Uber Alles mouthpiece (also something that simply has not changed in over a decade)

    3. 17.3

      For someone who cannot sack up to actually engage with me, Greg spends an awful lot of time focused on what I have to say.

      …in a typically cowardly manner.

  12. 16

    Patent term tolled during any period of patent validity challenge.

    That’s ridiculous, hahaha. You can just chain infringement actions and be patented forever. Presumably this would also apply to the office’s work, which takes us back to submarine patents.

    1. 16.1

      Actually, the effect is more subtle than that, as the patent holder – by mere action of filing an infringement action – does NOT control any action by way of a lodged counter of a validity challenge.

      What this DOES do is act more in line with quiet title, and would stop the current Efficient Infringer mode of serial challenges to that validity.

      1. 16.1.1

        Actually, the effect is more subtle than that, as the patent holder – by mere action of filing an infringement action – does NOT control any action by way of a lodged counter of a validity challenge.

        Of course he does. The defendant has a lawyer, and a non-malpracticing lawyer must raise all colorable defenses in response to suit. No defendant would forego raising a defense simply because it harms the public at large. And that ignores the fact that you can file “friendly” infringement actions.

        And for what? A first litigation neither prevents the patentee from either concurrent or further litigation against other people, nor does it toll infringement, so why should it toll the term? There’s not even a rational connection between one person infringing and the term running longer against *everyone else.*

        What this DOES do is act more in line with quiet title,

        You can’t bind non parties, and its unconstitutional to give a first defendant rights that latter defendants lack. It would be one thing if the term was tolled AS TO THAT DEFENDANT, but not to the public at large.

        and would stop the current Efficient Infringer mode of serial challenges to that validity.

        Yeah imagine having to prove your case every time you sue someone, what a crazy world that would be.

        1. 16.1.1.1

          Looks like my reply never made it out of the filter.

      2. 16.1.2

        It probably should be limited to IPR’s (and maybe DJ’s).

        1. 16.1.2.1

          Great idea OC.

  13. 15

    Among other hilarious developments, we have one of the regular glibertarian patent huffers below telling us that the patent laws are contrary to the intent of (wait for it….) patent laws.

    You can’t make this stuff up. Krouch’s Kwazy Kids (TM).

  14. 14

    Restore a first-to-invent system:

    Yes. First-to-file is morally suspect.

    Abolish Inter Partes Review and PGR:

    No. By and large, the IPR system is operating and the bugs have been expensively worked out. It’s still (somewhat) cheaper than obviousness litigation thru Article III courts.

    Allow for civil actions to demand patent rights from the USPTO in any district court.

    OK, this doesn’t seem hugely important, but…

    End Fee-Diversion of USPTO Revenue.

    Better yet, fund the USPTO with a budget line item and put the revenue in the general fund. It’s a clear conflict of interest for the office to get paid by those it is supposed to police.

    Abrogation of Alice, Mayo, Bilski, and Myriad “to ensure that life sciences discoveries, computer software, and similar inventions and discoveries are patentable, and that those patents are enforceable.” This includes statutory revision of Section 101.

    Yea…sure. So where is the revision? What are the exact words at the heart of the matter?

    Expressly establishing a patent as a private property right: What does this change? The IPR system is likely staying.

    End Automatic publication of patent applications.

    Why? That’s the quid pro quo. The whole point of the thing.

    Patent term tolled during any period of patent validity challenge.

    By whom? If there is no IPR, does that mean anytime a patent is in litigation? This one is a head-scratcher.

    Patent infringement judgment presumptively results in an injunction.

    That can’t work in the real world. You can’t just kill whole products because a tiny component infringes and cannot practically be removed. There has to be a materiality threshold- some percentage of sales or major change in buyer behavior.

    This bill is going nowhere that I can see…at least intact.

    1. 14.1

      >Yea…sure. So where is the revision? What are the exact words at the heart of the matter?

      Per the article

      Ҥ 101. Inventions patentable

      “(a) In General.—Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.

      “(b) Exception.—A claimed invention is ineligible patent subject matter under subsection (a) if the claimed invention as a whole, as understood by a person having ordinary skill in the art, exists in nature independently of and prior to any human activity, or exists solely in the human mind.

      “(c) Eligibility Standard.—The eligibility of a claimed invention under subsections (a) and (b) shall be determined without regard as to the requirements or conditions of sections 102, 103, and 112 of this title, or the claimed invention’s inventive concept.”.

      (b) Sense Of Congress.—It is the sense of Congress that—

      (1) the Supreme Court’s recent jurisprudence concerning subject matter patentability has harmed the progress of science and the useful arts;

      (2) the United States patent system must protect and encourage research and development in such scientific disciplines as would promote the progress of science and the useful arts by securing for limited times to inventors the exclusive rights to their discoveries and provide scientists in the life sciences, computer sciences, and other disciplines, with certainty that their discoveries and inventions are entitled to patent protection; and

      (3) this amendment effectively abrogates Alice Corp. v. CLS Bank International, 573 U.S. 208 (2014), Bilski v. Kappos, 561 U.S. 593 (2010), Association for Molecular Pathology v. Myriad Genetics, 569 U.S. 576 (2013), Mayo Collaborative Services v. Prometheus Laboratories, 566 U.S. 66 (2012), and its predecessors to ensure that life sciences discoveries, computer software, and similar inventions and discoveries are patentable, and that those patents are enforceable.

      1. 14.1.1

        “ provide scientists in the life sciences, computer sciences, and other disciplines”

        LOL

      2. 14.1.2

        Oh yes. Thanks.

        As to 101, if the utility of an invention arises within a human mind, it should be ineligible.

        1. 14.1.2.1

          Queue the lack of understanding at Mount
          S
          T
          U
          P
          I
          D
          in regards to the fact that utility can ONLY be measured by a human mind.

          1. 14.1.2.1.1

            mm hmmm so this is right out then?

            (a) if the claimed invention as a whole, as understood by a person having ordinary skill in the art, exists in nature independently of and prior to any human activity, or exists solely in the human mind.

            Because what exactly exists solely in the human mind that someone may seek to patent?

            1. 14.1.2.1.1.1

              Maybe some sort of recommendation system or notification system i.e., where the purpose is to tell a user something useful/nonobvious??

              1. 14.1.2.1.1.1.1

                Yes OldCurmudgeon. Might that be restated to say if the utility arises in a human mind, the invention should not be eligible?

                1. I picked those two because the utility seems to arise in the human mind.

                  Ignoring the prior art, should a smoke detector be eligible under Section 101? Smoke detectors don’t directly ‘do’ anything (i.e., they don’t transform anything). Instead, their utility is that the alarm creates a reaction in a human mind.

                  And yet, smoke detectors are literally as tangible as anything on earth.

    2. 14.2

      >Expressly establishing a patent as a private property right: What does this change?

      Apparently, it overrules Oil States Energy Services v. Greene’s Energy Group and Impression Products Inc. v. Lexmark International, Inc.

    3. 14.3

      “Better yet, fund the USPTO with a budget line item and put the revenue in the general fund.”

      Hell yes.

    4. 14.4

      First-to-file is morally suspect.

      Huh? You mean to contend that the patent systems of every major jurisdiction in the world (and the overwhelming majority of the smaller jurisdictions) are immoral?

  15. 13

    “ This includes statutory revision of Section 101.”

    Is this the same laughable revision floated a few years back that would let me patent a method of “thinking a non-obvious thought while drinking a glass of milk”? Or is it even worse than that.

    Patent law, home to the worlds worst glibertarian mowrahns for almost fifty years.

    1. 13.1

      Is this the same laughable revision floated a few years back that would let me patent a method of “thinking a non-obvious thought while drinking a glass of milk”?

      There is something laughable indeed – just not how you would like it.

      What is laughable is your very short script retreads.

      It’s not like you were NOT trounced routinely (going back a decade now).

      Do you really think that your taking slightly over a year off and changing your moniker changed anything?

  16. 12

    There’s a bit of throwing out the baby with the bathwater.

  17. 11

    Dennis Crouch, always happy to carry water for the desperate glibertarian schlubs who have infested patent law and whose only objective is to ruin everything and grab the spoils.

  18. 10

    Bravo! With Communist China breathing down our necks, this bold bill is exactly what America needs to restore our crippled patent system to its formally World-leading status.

    Exactly.

  19. 9

    Restoring America’s Leadership in Innovation Act of 2021

    I do not deny that (for better or worse) the United States has a global leadership role in IP. Nothing about that leadership role has been in the least diminished in the last two decades, so talk of “restoring” makes no sense.

    Meanwhile, to whatever extent that our global leadership has been recently diminished, that diminishment came from (1) actually reneging on our treaty obligations, (2) threatening to renege on our treaty obligations, (3) gratuitous and self-destructive trade “wars,” and (4) pointless and self-defeating military adventurism. Nothing in the bill of particulars listed above will do anything to remedy any of these problems.

    This bill (however meritorious on certain points) is totally orthogonal to our “America’s Leadership” on any global stage, IP or otherwise.

    1. 9.1

      “Nothing about that leadership role has been in the least diminished in the last two decades, so talk of ‘restoring’ makes no sense.”

      Time now, Greg, to return to Earth.

      1. 9.1.1

        Thanks, Pro Say. I expect that we are talking past each other here, based on an equivocation of “leadership.”

        When I say “America’s leadership,” I mean to convey our ability to convince other nations to do what we want. That is the job of a “leader” nation—to get the other nations to coordinate their behavior along a schema that the “leader” considers advantageous.

        Considered in this sense, America’s IP “leadership” has only grown, never diminished in the whole of our history. We managed to wrangle almost every nation in the world into signing onto TRIPS back in the 1990s, and the rest of the world continues to toe the line on those agreements even now. Similarly, we managed to convince most of ASEAN to go along with any number of our IP asks back in the Obama administration as part of the TPP. Basically, if we want something IP-related, the rest of the world mostly does as we ask (for better or worse, often worse of late).

        Another piece of evidence that our leadership is mostly unchallenged in this arena is the fact that no WTO member has yet seen fit to challenge us as being out of TRIPS compliance following Mayo & Alice. I wish that they would, but the fact that they do not rather indicates that they respect our leadership role too much to challenge us.

        I gather that when you speak of “leadership,” you have in mind—not an ability to convince other parties to do what you want them to do—but rather a sort of “leader board” ranking the sums that a patentee can hope to extract from other market participants. Even in that sense, the U.S. remains #1. It is true, however, that China is closing the gap.

        I can remember not long ago when $180K was the largest damages award a Chinese court had ever granted. Now the top CN patent damages number is $50 million. This is still a drop in the bucket compared to the U.S. (where $8.9 million is the median and the high end is measured in billions rather than millions). Still, CN is closing on US on that “leader board.”

        Of course, if you think that I am putting words in your mouth about what you mean by “leadership,” I apologize. I would welcome clarification as to what you actually mean by the word, and what evidence you have that the U.S. is slipping when measured by that standard.

        1. 9.1.1.1

          “ I would welcome clarification as to what you actually mean by the word”

          LOL Getting trolled by WT isn’t enough for you, Greg? You gotta feed anon, Night Wiper, and this lizard brain too?

        2. 9.1.1.2

          “I expect that we are talking past each other here, based on an equivocation of ‘leadership.'”

          I agree Greg. I was referring to America’s former leadership in making available patent protection for all areas of innovation; along with what constitutes “obviousness” these days (KSR and its progeny).

          That — along with how the US has gone from celebrating inventors to (many folks) excoriating them when they merely attempt to prevent others from using their innovations . . . or at least be fairly compensated for doing so.

          Thanks for your thoughtful response. You make some excellent points.

          Looks like you were here on Earth after all. 🙂

    2. 9.2

      Nothing about that leadership role has been in the least diminished in the last two decades

      Greg being Greg — and completely out of touch.

      More than a little hint of “Big Pharma – huh, that don’t bother me”
      C
      R
      A
      P

      (and even then, a recent touch point of Cleveland Clinic should have been remembered by Greg)

    3. 9.3

      “ Meanwhile, to whatever extent that our global leadership has been recently diminished, that diminishment came from (1) actually reneging on our treaty obligations, (2) threatening to renege on our treaty obligations, (3) gratuitous and self-destructive trade “wars,” and (4) pointless and self-defeating military adventurism.”

      Accelerating idiocy and fascism thanks to a collapsing rightwing party desperate to return the country to a pre-Civil War status quo is also a huge factor but that kind of realistic observation makes Dennis’ buddies here feel uncomfortable so we must not ever mention it. Perception of bias! LOL

      1. 9.3.1

        As you are — or should be — aware, authoritarianism is not the sole domain of the Right.

        Quite in fact, it has been authoritarianism from the Left that has been FAR worse across the globe over the last 120 years or so.

        1. 9.3.1.1

          “ authoritarianism is not the sole domain of the Right.”

          Also it sometimes rains on Tuesday. Go ahead and try to change the subject! Nobody can see that you are doing that, not anyone understand why a glibertarian patent huffer like yourself would rather talk about things that happened 100 years ago rather than what happened in January of this year (or in 2016, for that matter).

          1. 9.3.1.1.1

            There is NO change of subject there Malcolm.

            Instead, the fact that I share deflates your emotion-drenched diatribes.

        2. 9.3.1.2

          Quite in fact, it has been authoritarianism from the Left that has been FAR worse across the globe over the last 120 years or so.

          hahahaha

          1. 9.3.1.2.1

            In the best John McEnroe tones:

            You can’t be serious.

      2. 9.3.2

        “a collapsing rightwing party”

        Insert graphic of republicans holding state and federal offices here btfoing dems across the board save for pres. Truly a “collapse”.

        1. 9.3.2.1

          Well said. The idea that the GOP is “collapsing” is delusional. The GOP will almost certainly take the house next year, and will more likely than not take the senate as well. Donald Trump is more likely than not to be the GOP nominee in 2024, and he has a very decent chance of winning (just as he had in both 2016 & 2020). For better or worse, this is not a party in the throes of “collapse.”

          1. 9.3.2.1.1

            Well said. The idea that the GOP is “collapsing” is delusional. The GOP will almost certainly take the house next year, and will more likely than not take the senate as well.

            That depends on what you mean by collapsing. There is no republican or conservative governing thesis. They may have power but they have no ideology. That’s the reason Trump does so well – in the absence of a compelling ideology the strongman succeeds.

            1. 9.3.2.1.1.1

              “There is no republican or conservative governing thesis. They may have power but they have no ideology. ”

              My leftist mind masters on my teletubes say that they do and it is: White Supremacy.

              Do you find that to be true, or untrue?

              The critics on the right say that their governing thesis and ideology is merely liberalism of old, and conserving such.

              Do you find that to be true, or untrue?

              Further, what even is the point of having a governing thesis/ideology?

            2. 9.3.2.1.1.2

              I was referring only to the GOP’s ability to win elections. I agree that they do not appear to have much by way of a governing agenda. That does not appear to be much of a problem for their electoral chances, however.

  20. 8

    As for “patent term tolled during any period of validity challenge” that would of course encourage litigation delaying tactics to prolong litigation on invalid patents and allow such patents to continue to be asserted against any others.

    1. 8.1

      That’s exactly what the toxic knobs who wrote this proposal want.

      Low IQ and insatiable greed. It’s what the worst attorneys all have in common.

      1. 8.1.1

        At least they have the stones to put their names on it. You, on the other hand, are a coward posting under a pseudonym on a niche blog read by basically no one of consequence.

        1. 8.1.1.1

          “they have the stones to put their names on it”

          Oh yes these grifters are such very brave heroes to put their names on some self-serving trash that at best is only going to inspire some even less intelligent sludgelickers to give them money.

          They are True Patriots! Real freedom means more patent lawsuits against more people! Yay!

        2. 8.1.1.2

          I don’t think that’s right. A few people of consequence probably read Crouch’s blog. As for the comments, I suspect no-one of consequence reads them.

          1. 8.1.1.2.1

            “ As for the comments, I suspect no-one of consequence reads them.”

            Oh you are wrong about that. Also this is hardly the only place “of consequence” where the worst glibertarian attorneys (and law professors, and judges) on the planet are raked over the coals.

            1. 8.1.1.2.1.1

              on the planet are raked over the coals.

              Malcolm and his trademark asinine (in derivative form):
              Accuse
              Others
              Of
              That
              Which
              Malcom
              Has done to him.

        3. 8.1.1.3

          Lol – sure, super “brave” to promote self-serving laws of no value to anyone except a tiny handful of attorneys but that will inspire even less intelligent grifters to throw money at you.

          Heroes! True Patriots i tells ya!

        4. 8.1.1.4

          “ At least they have the stones to put their names on it.”

          Because these low level fakers taking money from even less intelligent glibertarian toxoids is sooooo brave and heroic of them!

    2. 8.2

      …particularly coupled with the Fed Circuit’s apparent dislike of Judges who actually push cases along expeditiously.

  21. 7

    The write up of this bill on IP Watchdog mentioned only the §101 provisions. I had not realized that the bill is so variegated.

    This is a mistake. If Rep. Massie really wants these reforms, he would do better to try to move them piecemeal, so that the more controversial ones do not act as a drag on the less controversial.

    The fact that he is trying to move them as a bolus tells me that he does not actually want them to pass. For whatever reason, he evidently wants merely to be seen to champion this assortment, without actually achieving any of them.

    1. 7.1

      The fact that he is trying to move them as a bolus

      You mean, like the AIA?

      Maybe he should have tried to “piecemeal” stick parts in some MASSIVE trillion dollar spending bills….

    2. 7.2

      In fairness, it doesn’t look like this Congress will pass anything.

  22. 6

    Off topic, but an interesting development today in the WD Tex mandamus saga today in In re Xconnect. The plaintiff filed in the district of Colorado. The defendant moved to transfer to WD Tex on forum non conveniens grounds, and the Colorado judge granted the transfer. The plaintiff petitioned for mandamus to vacate the transfer order and move the case back to Colorado. The CAFC (rightly) denied mandamus.

    1. 6.1

      The transferred case ended up before Judge Albright, as he had the other cases DynaEnergetics had filed against third party competitors.

      Note that in today’s Quest Diagnostics case, mandamus was granted ordering transfer out of Judge Albright’s court.

  23. 5

    “Best mode reestablished as an operative condition of patentability.”

    Is this somehow pro-patentee, or is it just a token thrown in for “balance”?

    1. 5.1

      I would bet that Rep. Massie (1) could not explain to you what the “best mode” requirement entails or (2) why he is including its restoration. It is definitely not “pro-patentee.”

    2. 5.2

      Yup; this one’s a head scratcher for sure.

      1. 5.2.1

        Nope. Deleting the best mode requirement lets people patent something but retain the most significant bits as trade secrets. AIA thereby encouraged trade secrets, but encouraging trade secrets is contrary to the intent of the patent laws to provide exclusive rights in exchange for disclosure.

        1. 5.2.1.1

          AC, that was not the only aspect of the AIA that encouraged Trade Secrets.

          (hint: the submarine effect of Prior User Rights)

        2. 5.2.1.2

          “ AIA thereby encouraged trade secrets, but encouraging trade secrets is contrary to the intent of the patent laws”

          The patent laws are contrary to the intent of patent laws? Say what?

          1. 5.2.1.2.1

            You do understand the difference between Trade Secret and patents, and how they are antithetical to each other, eh?

            Please please please at least understand that.

          2. 5.2.1.2.2

            Ok, my language was not precise. Encouraging trade secrets frustrates the dissemination of knowledge about Sciences and the useful arts, which is the quid for the quo of exclusive rights.

        3. 5.2.1.3

          Deleting the best mode requirement lets people patent something but retain the most significant bits as trade secrets. AIA thereby encouraged trade secrets,

          This sounds like an admission that most patented claims fail written description and enablement. If you’re claiming a result but you have not enabled or described all the means of achieving the result (i.e. you’ve maintained a trade secret) you’ve just been given an overbroad scope.

          1. 5.2.1.3.1

            You are confusing and conflating things again.

            For an Examiner, the amount of time that you do this on matters that it is your job to process is startling.

  24. 4

    This should be entitled, “Restoring Patent Trolls’ Litigation Leverage Act.” I’m surprised they didn’t toss in a provision overruling TC Heartland and modifying the venue statute to codify VE Holding.

    1. 4.1

      No kidding. Whoever came up with this was shooting patent crack underneath their toenails.

      But the usual suspects will eat it right up. Yum!

      1. 4.1.1

        …and the usual suspects will trot out the “Oh N0es, Tr011s” mantra…

        Ah, see, already done.

  25. 3

    Why is this not bi-partisan?

    (Other than Biden’s ‘equity’ penchant with the likes of give-aways of ALL IP (not just patent) per the India and South Africa request)

  26. 2

    Dennis, it was not clear to me if your survey vote proposal was another part of the other listed legislative proposals or not. But in any case, not sure if it would make that much difference, since if the patent owner is a PAE it should be easy for a defendant to prove by clear and convincing evidence that the PAE has no injury and no interest other than it’s purely financial [damages] recovery.

    1. 2.1

      The nature of the right transgressed is missing in your viewpoint, Paul.

    2. 2.2

      I think the tweet is based on item 9.

    3. 2.3

      Watering down the right to an injunction is EXACTLY THE SAME as a compulsory license. Compulsory licenses are what third world countries permit. Or are we supposed to be on a trajectory to third world status?

      1. 2.3.1

        That is exactly what the Efficient Infringers would like to have.

        It’s no accident that we now have an ‘open borders’ situation.

    4. 2.4

      >But in any case, not sure if it would make that much difference,

      IDK. Pre-Ebay, there was a presumption of irreparable injury, and as a result, permanent injunctions were the norm. Post-Ebay, they seem rare.

      IMHO, the loss of permanent injunctions has hurt the patent owner more than 101. “Reasonable damages only” completely changes the parties’ negotiating positions.

      1. 2.4.1

        Except that I was not talking about patent owners with actual products that lost business to an infringer, because can still get injunctions. Also, willful infringers can still get hit with up to trebled damages.

        1. 2.4.1.1

          … and yet again, Paul – try to understand the right being actually transgressed.

          Hint: having a patent does NOT give you the right to manufacture anything.

          Are you purposefully dishing out disinformation?

        2. 2.4.1.2

          Yes, and in third world countries, if you satisfy the working requirements you can avoid compulsory licenses. Ebay brought us to that same state of affairs.

        3. 2.4.1.3

          For some definitions of “can.” Trebled damages are even more rare than permanent injunctions.

        4. 2.4.1.4

          Not to mention that automatic injunctions were not the case even before eBay, and that was inconsistent with the patent statute itself: “The several courts having jurisdiction of cases under this title may grant injunctions in accordance with the principles of equity.” All the Sup. Ct. did in eBay was to stop the Fed. Cir. from ignoring the statutory requirement of “in accordance with the principles of equity.”

          1. 2.4.1.4.1

            Nonsense. Pre-Ebay, the courts used the exact same test as they do now.

            The difference back then was that the “irreparable injury” and “inadequacy of monetary damages” factors were presumed in view of the fundamental nature of the patent right i.e., the right to exclude. In practice, that meant those two factors were always found to favor the patentee, so they’d get an injunction unless the defendant could establish a strong “public interest” factor (e.g., the old Blackberry case)

            1. 2.4.1.4.1.1

              Agreed. The effect of current ebay law for NPE’s is that they do not have a right to exclude; instead they have a right a reasonable royalty.

              But a forced sale (and a compulsory license) cannot result in a fair market value result as the ‘reasonable royalty.’

              1. 2.4.1.4.1.1.1

                [A]… compulsory license… cannot result in a fair market value result as the ‘reasonable royalty.’

                I do not know about “cannot.” I certainly agree, however, that the slantwise compulsory license is a less effective means of finding the “reasonable royalty” than is kicking the “squatters” out of the “leasehold” and letting them negotiate their way back in. The CAFC had it right pre-Ebay—while an injunction should not be automatic, the burden should be on the adjudged infringer to resist an injunction, rather than on the patentee to establish its necessity.

            2. 2.4.1.4.1.2

              This is worse than nonsense – this is deliberate misinformation as to what the patent right IS in the US Sovereign.

              Paul should know better because I have lectured him more than once on this very explicit point.

              Instead, he wishes to engage in some wicked 1984isms and turns ““in accordance with the principles of equity.” into a mockery of WHY that phrase actually supports injunctions as a default (and as you note, unless the defendant can establish a strong ‘public interest’ counter point).

              Put simply (again), the principles of equity at play in conditions in which it has been shown that a patent holder has been aggrieved (and accounting for the Negative Right of which a patent actually is, and what that aggrievement actually is) can be viewed in a two=step manner:

              1) make the aggrieved as whole as possible.
              This is the point that “as whole as possible” pivots on the nature of the right transgressed.

              2) do NOT treat “injunction” as some type of “atom bomb” that MAY apply to different situations, different rights and the forms of those different rights.

              It is the wickedness and effects of the Efficient Infringer propaganda machine to turn the remedy, which is what is to be applied per those principles of equity, into what in effect PROMOTES infringement by large, well-established entities and a game of “worst case, we only pay what we may have paid upfront, but after making the patent holder spend gobs of money chasing us.”

              Turning patent infringement into a contract efficient breach** benefits the transgressor – and there is NO WAY that accords with a remedy to a patent holder shown to have been aggrieved under any principles of equity.

              ** see link to en.wikipedia.org

  27. 1

    This is, for the most part, a small inventor wish list.

    However, it has little (strike “little” and insert “no”) hope of passage. While IPRs are disliked by many (with the exception of large infringers), they aren’t going anywhere. At best, what one can hope for is to truly transform the IPR into something akin to something found at the district court. This includes the presumption of validity as well as a standing requirement for someone initiating the IPR. Right now, the IPR system is designed to abuse patent owners with almost no real consequences to someone requesting an IPR that is subsequently denied.

    The “first to invent” is a big nothing-burger to me. Also, I don’t see the purpose of reestablishing best mode as a condition of patentability.

    Allow for civil actions to demand patent rights from the USPTO in any district court
    I would much rather have a reform of where a plaintiff can sue in district court as to patent infringement. We don’t need every district court in the land becoming defacto patent examiners. What a mess that would be.

    1. 1.1

      Basically agree.

      The phrase a snowball’s chance in h*ll comes to mind.

    2. 1.2

      Neither the presumption (presence AND level) nor the standing will change, as both of those were advertised features during the AIA process.

    3. 1.3

      At best, what one can hope for is to… include… the presumption of validity as well as a standing requirement for someone initiating the IPR.

      One of these days, some patentee is going to read Ron Katznelson’s excellent argument on the subject and challenge the IPR system on substantive due process grounds because §316(e) sets the evidentiary standard too low for the invalidation of a property right. I have never seen anyone bother yet to make this argument, but that could be a real winner.

      If a patentee were to win on those grounds, then Congress would have to raise the evidentiary requirements up to “clear & convincing.” This will make no practical difference in 99 cases out of 100, but is the right standard nevertheless.

      1. 1.3.1

        Hahahahahahahaha

        Because Greg is good at picking “real winners” when it comes to Ferderlist Suxciety dregs from the likes of (lolol) Wrong Katznelson.

        1. 1.3.1.1

          Ah Malcolm at his typical: misaimed name calling and a total absence of EVER actually discussing the points on the merits.

          Come now Malcolm, Katznelson’s write-up on the reasons for the presence (and level) of the presumption of validity has been around like forever, and yet, you have NEVER actually engaged on the merits to support your feelings.

      2. 1.3.2

        “but that could be a real winner.”

        Agree.

      3. 1.3.3

        I have never seen anyone bother yet to make this argument

        Maybe if you had some gumption and read my posts, as I have made this argument many times.

        Sack up and read things that “might offend you” (as you dwell on the words of John Maynard Keynes.

        1. 1.3.3.1

          “as I have made this argument many times.”

          Easy my friend. While we all know you have in fact made this great arg many times, it’s reasonable to presume that Greg meant that he’s never seen anyone make this arg at, say, the CAFC or SCOTUS.

          1. 1.3.3.1.1

            Obviously I have seen Katznelson make this argument (as I explicitly credit him for the argument). Clearly, then, when I say “I have never seen anyone bother yet to make this argument…,” I do not mean that I have not seen such an argument made on the internet. As you rightly infer, I meant that I have not seen anyone make this argument to the SCOTUS.

          2. 1.3.3.1.2

            Obviously, Greg cannot bring himself to give credit where credit is due.

            Of course if he were to do that, then he would have to admit that his silence is “weeny-driven.” AKA: “He was correct, but was rude to me, so I am going to ig n0re everything he says and keep on posting to my script.”

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