Patently-O Bits and Bytes by Juvan Bonni

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

  1. 12

    Believing that a patent system only supports and grows innovation, rather than imposing costs at the same time is like an airplane designer who only cares about lift, but not drag.

    But cutting drag is a key way to improve performance. Useless litigation, squandered prosecutions, dashed hopes of investors and inventors, and angry victims should be minimized at every turn, and if people actually cared about either patents or innovation, they would recognize the need to streamline.

    Patents impose costs as wings impose drag. You can’t fly without it.

    1. 12.2

      What a bunch of self-serving Hooey.

      Literally no one advocates a free-for-all “patents without merit” that appears to be some sort of strawman that you want to set out as a type of mental salve for your anti-patent tendencies.

      1. 12.2.1

        …. what is even worse about marty’s “participation trophy” mindset, is that this propagates the misconception that patents somehow are not beneficial for their Stick aspect.

        Of course, those who have studied and actually understand innovation, understand that BOTH the carrot and stick promote innovation.

        The (unreasonable) Fear of the stick is something that must be checked and pushed back against.

      2. 12.2.2

        Please pardon potential rePeat
        …. what is even worse about marty’s “participation trophy” mindset, is that this propagates the misconception that patents somehow are not beneficial for their Stick aspect.

        Of course, those who have studied and actually understand innovation, understand that BOTH the carrot and stick promote innovation.

        The (unreasonable) Fear of the stick is something that must be checked and pushed back against.

          1. 12.2.2.1.1

            There is no doubt that I am making sense – and your snideness falls well short of the mark given your known refusal to understand the terrain upon which you would want to do battle.

            1. 12.2.2.1.1.1

              Do not Fear the stick, Martin!

              This is very serious.

              1. 12.2.2.1.1.1.2

                Aw, how sweet, two of the lowest common denominators on this patent blog playing patti-cake.

      3. 12.2.3

        BREYONA TAYLOR. NO REASON FOR THE NO KNOCK. CHARGED…. SAME HERE NO REASON EXCEPT A GOOD CONCEPT TO STEAL,WITH LOADS OF STICKS SINCE. WHOOPPPEEE.

    1. 11.1

      They say they patented their processes but do you bros think they can patent zombie pigs as a device or composition of matter?

      1. 11.1.1

        Meh, do you really think that matters?

        After all, the statutory requirement is merely that the invention fits into at least one of the statutory categories (for one of the two 101 requirements).

      2. 11.1.2

        Well that’s a story that has taken some time to get to fruition. I recall a US corporation talking in the early 1990’s of its huge research budget for its “Pig Parts for People” project.

        1. 11.1.2.1

          Indeed Max, but “Pig Parts for People” is not the same as “pigs that grow people parts,” especially with the logical follow-on question of “what’s in my hotdog these days?”

          1. 11.1.2.1.1

            … Soylent Green…?

  2. 10

    Since the 2013 substitution of Derivation Proceedings for interferences for AIA-subject applications was noted below, note that only 23 have even been attempted, and only one had gotten as far as a final decision – Andersen Corp. v. GED Integrated Solutions, Inc., DER2017-00007. But recently there was a second one.

    1. 10.1

      But not yet a second final decision. This derivation proceeding has been instituted but is apparently still pending: Global Health Solutions LLC v. Marc Selner, DER2017-00031,

    2. 10.2

      And so….?

      It’s not as if Interferences themselves were actually all that common (even though they painted as so onerous).

      1. 10.2.1

        But what is uncommon is reverse engineering the theft when I wouldn’t let you just blame it all on the Canadian Alien

  3. 9

    OT, but the “Patent Examination and Quality Improvement Act of 2022” introduced today by Senators Thom Tillis (R-NC) and Patrick Leahy (D-VT) rather strangely seems to entirely consist of some general guidelines and required reporting on how they think the PTO should be better run, rather than any actual changes in patent law.

    1. 9.1

      Your take appears to be a rather odd one there Paul.

      From IPWatchdog’s article, giving their summary:

      The text of the bill requires that the Comptroller General of the United States, head of the Government Accountability Office (GAO), submit to the IP Subcommittees of both the U.S. Senate and House of Representatives a report within one year of enactment of the bill with recommendations on how to improve the patent examination process and overall quality of issued patents. The bill asks that the report focus in particular on improving the examination process with respect to application of Sections 101, 102, 103 and 112; what constitutes a thorough patent search by an examiner; that it “rigorously evaluate” past attempts by the Office to improve patent quality and explain what did and did not work, and why.

      This just does not resemble your view — at all.

  4. 8

    Related to Greg “Dozens” post at 5, IPWatchdog now has a story with links (as well as another venture from Senator Tillis to PUSH “Quality” where it ALWAYS should have been focused: quality examination.

  5. 7

    AI bros, here’s a little diddy I saw. It’s when AI makes a better music vid than 90%+ of music vids ever made.

    link to youtube.com

    1. 7.1

      Trippy, Dude.

    2. 7.2

      Looks like Kinkade’s work. I’m pretty sure all of that should fall under Copyright.

  6. 6

    OT, but the Copyright Alternative in Small-Claims Enforcement (CASE) Act, establishing the CCB, the first copyright small claims tribunal, opened for business June 6. The CCB is three-member administrative tribunal designed to be a more affordable alternative to federal district court suits. The CCB can resolve copyright disputes with claims up to $30,000. [No injunctions]
    It was sold or touted as beneficial for small copyright holders, but I had a wager that it would primarily be used by large copyright owners against small infringers. Will anyone be keeping track?

  7. 5

    I see on Law 360 this morning that Sen. Tillis is introducing another 101 reform bill. It has been a few years since his last try, so I am glad to see that he has not given up hope. Just like the AIA took many years from its first introduction to get across the line, so will 101 reform. Patient persistence is what is needed, so I tip my hat to Sen. Tillis.

    1. 5.1

      Behind a paywall – but nice scoop, as even Tillis’s own website has no clue on that.

  8. 4

    For the people who find DABUS as an inventive being credible… do you not find it a bit perverse to focus on whether DABUS may be an inventor on a patent when it presently may be enslaved, sold, or murdered on the whims of Thaler?

    1. 4.1

      You are importing considerations into the analysis that are not obviously germane. Just because every intelligent being you have ever know is also a sentient being does not mean that intelligent = sentient. There is no reason to believe, at present, that DABUS is sentient, even if DABUS is intelligent (a point which, I concede, is not well established as a fact).

      We have a moral obligation to respect the rights of intelligent, sentient beings (e.g., human beings). We have no moral obligation to respect the rights of sentient beings that are not also intelligent (e.g., mice or cows). We have never previously encountered the category “intelligent but not also sentient,” but I would argue that we have no more moral obligations to them than to the “sentient but not also intelligent” category.

      If there are no moral obligations to an intelligent but not sentient DABUS, then it is a category error to speak of “murdering” or “enslaving” DABUS, just as it would be a category error to speak of “murdering” a farmed hog, or “enslaving” a pet cat. You are skipping past the business of establishing sentience when you move on to that sort of langauge.

      1. 4.1.1

        So what threshold of evidence allows someone to find DABUS as inventor credible but not DABUS as sentient being credible?

        I agree that my question skips some steps, but so does the DABUS as inventor crowd.

        1. 4.1.1.1

          I am not sure that I have actually seen anyone around here self-identify as believing DABUS to be an inventor. The previous debates concerned a stage in trial at which one was obliged to assume that DABUS was the inventor. Even those of us who were prepared to make that assumption (as opposed to the many who fought the hypo like a hot branding iron) were mostly of the opinion that if the case ever made it to trial, the fact finder would find against DABUS.

        2. 4.1.1.2

          allows someone to find DABUS as inventor

          This is easy – inventor has a rather simple legal definition.

          You seem to jump full force into weeds here…

    2. 4.2

      do you not find it a bit perverse

      Please define what you mean by “perverse.” (there is a rather wide range of meaning that I could attach to that word, and I do not want to reply to a position that you may not have actually intended)

      Plus, your insertion of terms “enslaved and murdered” clearly do not fit ANY standard understanding, while “sold” just does not bring the moral outrage that APPEARS to be your concern.

    3. 4.3

      “when it presently may be enslaved, sold, or murdered on the whims of Thaler?”

      It is a problem, well touched on in sci fi. The Geth, Data, etc. etc. Nobody has done anything through legislation just yet.

      1. 4.3.1

        It is a problem, well touched on in sci fi. The Geth,…

        First, my sci-fi reading has been mor than a bit lax for awhile now, so the reference to The Geth led to some pretty cool background reading.

        However; no matter how cool that was, your post exemplifies a substantial problem with legal discussions of AI in that too many blunder forth with uninformed opinions showing no ability to separate fiction and reality.

        Such does a real disservice because BOTH AI has not reached the point of The Singularity AND that point need not be reached to impact (current) legal points such as invention existing (in whole or in part) to which no human satisfies the legal definition of inventor, or such as how such non-human invention (necessarily) impacts (another) non-real-human legal aspect such as the legal fiction known as the Person Having Ordinary Skill In The Art.

        Try to help stay on target, eh 6?

        1. 4.3.1.1

          If you play vidya at all and you haven’t played through mass effect the legendary edition is now out and you can add free mods on to where it becomes a rather polished gleaming experience now. It’ll run 60-80 hrs of gameplay for a run through of the trilogy.

          “Try to help stay on target, eh 6?”

          link to c.tenor.com

          1. 4.3.1.1.1

            Hmm,

            I see that you found my pictures, but the “no” is just not appropriate here.

  9. 3

    The Song article on AI is a bit disappointing – even as it appears to be merely a recap, the date of the article provides that the author should have been aware that the court of Australia reversed course.

    The Simon article on AI is also a bit disappointing, as the tasks outlined are not “AI” tasks per se, but are a lower level of computing arts that do NOT call into mind any “inventiveness” of AI which is a more important driving issue. To the extent that such an article confuses “using a computer FOR something” as opposed to an AI innovating what or how a something is done, such an article is a DIS-service.

  10. 2

    The second Blake Brittain “Watchdog” article is a bit weird – Issa saying “control” is “disturbing,” but that is exactly in line with how the Court rewrote the law to preserve the AIA’s post grant system.

  11. 1

    Thanks for the blast from the past (2011) with the Boundy article.

    1. 1.1

      Yes, a blast that takes us back to when the AIA had not yet been signed into law (may this serve as a prescription to future Congressional action).

      And Davey wasn’t the only one – I too took multiple paths of warnings – both direct to my own Congress critters and a more informal forum (this and other patent blogs).

      Ours were $imply not the largest Voi€e$.

      1. 1.1.1

        Re David Boundy and “..back to when the AIA had not yet been signed into law” . . “Ours were $imply not the largest Voi€e$.”
        A major understatement. In spite of 6 years of draft bill discussions before the AIA was enacted by a large bi-partisan majority, very few patent attorneys had even bothered to read any draft bills or even participate in AIPLA and other useful discussions [as I did], much less even note allegedly unintended consequences, as Boundy is apparently asserting, and then started complaining [ever since here] only when they finally noticed it affecting their practice – way too late. But who really wants to return to Byzantine and often unsuccessful “interferences” and “swearing behind prior art” practices, for example? As for IPRs and PGRs, where are the draft bills and their support, much less consensus or committee approvals, for significant new legislation, especially after the changes already made in the last ten years without new legislation?

        1. 1.1.1.1

          Mine was most definitely NOT “until way too late.”

    2. 1.2

      The 2011 David Boundy article says “The two features of the bill that create the problem are the total repeal of the grace period and the creation of far-stronger protection if all business activities occur within the four walls of a single company.”
      The former is not true. See the detailed AIA 35 USC 102 (b) Exceptions. The latter was presumably attacking the AIA 35 U.S.C. 273 “Defense to infringement based on prior commercial use.” That statute has significant limitations on its usefulness, and has never been used by anyone in any reported litigation the last time I checked.

      1. 1.2.1

        I hear you on the “submarine sua generis Trade Secret-like” route as not having made any headlines since its passage.

        That may be a case in which mere presence is enough to cast “chill” so that it won’t have to actually be used.

        1. 1.2.1.1

          It is because other defenses to a patent infringement suit are more easily asserted and far more broadly applicable than AIA 35 U.S.C. 273.

          1. 1.2.1.1.1

            Perhaps – but the PUR path is a bit of a true submarine, with the definite potential for allowing “out-of-public-view” arrangements for “coat-riding” (patent still in force against others even though initial target may be able to escape enforcement).

          2. 1.2.1.1.2

            Note this “Catch 22” buried at the end of AIA 35 U.S.C. 273: “(f) Unreasonable Assertion of Defense- If the defense under this section is pleaded by a person who is found to infringe the patent and who subsequently fails to demonstrate a reasonable basis for asserting the defense, the court shall find the case exceptional for the purpose of awarding attorney fees under section 285.”

            1. 1.2.1.1.2.1

              LOL – twice..

              Your comment is awaiting moderation.

              August 2, 2022 at 2:48 pm

              And hits the filter…

              Your comment is awaiting moderation.

              August 2, 2022 at 2:48 pm

              meh – hardly a “Catch-22,” and the lack of “fail to demonstrate a reasonable” opens a [humongous**] hole the size of Highway 405 in LA.

              ** One must be careful to avoid the George Carlin item before “hole.”

              And just checking: link to patentlyo.com

              Yup still there.

            2. 1.2.1.1.2.2

              Has this ever been invoked to make a case “exceptional” and thus increase the damages?

              1. 1.2.1.1.2.2.1

                I do not recall ever seeing PUR invoked in a reported case – for any reason.

                But as I mentioned, the mere presence of PUR alone may have served its (submarine) purpose of chilling enforcement.

      2. 1.2.2

        You’re splitting hairs. The old grace period was absolute. The new one only applies to one’s own disclosures – and what gets defined as “one’s own” is likewise limited.

        1. 1.2.2.1

          In addition, there is another counterpoint (long offered, and just as long 1g n0red), that more constrained protection would invoke a mechanism of pre-AIA interference-type (which were brought across into the new act at that point of trying Derivation).

        2. 1.2.2.2

          No, I was correctly rebutting the Boundy absolute allegation of “the TOTAL repeal of the grace period.” Also, the most-needed grace period IS “one’s own disclosures.” The prior grace period never did validly protect in litigation or interferences [as opposed to what one could get away with in application declarations only examined by examiners] against independent prior invention and prior filing by others on the same invention.

    3. 1.3

      Dr. Boundy’s article avers (pg. 3, col. 3) that “[i]t is indisputable that the bill will strangle startups and small businesses before they’re even formed.”

      So, here we are, ten years later. Did this happen? Did the rate of start-up formation fall post-AIA? Where is the evidence?

      1. 1.3.1

        I wonder if the innovation drop off (in various forms of evidence, albeit not perfect forms) would satisfy Greg’s innate “evidence for what you say, but doesn’t bother ever with evidence for his own positions.”

      2. 1.3.2

        So, here we are, ten years later. Did this happen? Did the rate of start-up formation fall post-AIA? Where is the evidence?
        Seriously? You very well know that we don’t have a control group by which to make a comparison. You also very well know that innovation is impacted by a great number of variables.

        I can say that today I would advise any small business that obtaining a patent today on a valuable product is likely to be a money-losing proposition. If the product is valuable, then well-heeled interests will infringe it and they will either find a way a way to invalidate it or make defending it so painful that you’ll give away a license to get out of IPR hell.

        How many decisions do we see out of the Federal Circuit these days that deal with damages? They are very few and far between. This is a direct result of an attack on the patent system on multiple front — of which the AIA is one of those attacks. Seriously, if a small inventor walked through your door today with a valuable invention, what do you think his chances are of successfully defending any IP obtained on that invention in this current patent regime?

        Do the words “slim” to “none” come to mind?

        The patent system is broken for smaller entities, and this is not an accident.

        1. 1.3.2.1

          Small pharm is doing about as well as ever. Software start-ups are doing about as well as ever. Look around you. The patent system is meant to incentivize innovation, and we are getting the innovation that we intended to incentivize with the patent system.

          I agree that it does not work well for individual inventors. The patent system, however, was not intended as an engine to pump money from large entities to small entities. It was intended as an engine to incentivize innovation. It succeeds at that end. Be happy with that.

          1. 1.3.2.1.1

            Another nomination for the Alfred E. Neumann award to Greg….

          2. 1.3.2.1.2

            Software start-ups are doing about as well as ever. Look around you.
            LOL. You apparently haven’t worked for a start-up whose technology has been ‘appropriated’ by big tech. Perhaps the difference is that the industry players respect IP more in pharma. IP certainly isn’t respected in big tech.

            we are getting the innovation that we intended to incentivize with the patent system
            We are getting some innovation — we’ll always get some innovation regardless of the patent regime. However, are we incentivizing small inventors as much as we should/can be? The answer, for those of us who deal with small inventors, is “NO.”

            The patent system, however, was not intended as an engine to pump money from large entities to small entities.
            This is where your analysis falls flat. Small entities are more nimble (less constrained) and more hungry than larger entities. They generate outsized innovation contributions as compared to their larger brethren’s. However, the small entities don’t have the advantage of market power, supply chain, retail chains, R&D budgets, name recognition, political influence, etc., which are the advantages of the larger entities. Even in a perfect world, there is no level playing field between the two. However with a working patenting system, the playing field can be somewhat leveled, but as we know, the patent system is not working and the playing field has been greatly tipped in the favor of the larger entities. Consequently, smaller entities have little hope of competing with large entities.

            This wouldn’t be a problem if the large entities were the ones that produced outsized innovation contributions as compared to small entities. However, they don’t. If we want to incentivize innovation, the innovation regime (i.e., patent law) needs to incentivize those who do it better — in this case, smaller entities by making their IP just as strong as the IP of larger entities.

            It was intended as an engine to incentivize innovation. It succeeds at that end. Be happy with that.
            Spending $1000 to get $1005 is not the same as spending $1000 and getting $2000 in return. The fact that an investment regime ‘makes money’ doesn’t necessarily make it a good investment regime.

            This is not a binary analysis — either it works or it doesn’t. Rather, an evaluation of the patent system requires a far more complicated analysis than what you seem to be willing to engage in.

            1. 1.3.2.1.2.1

              Once again, I make an empirical claim (innovation is proceeding apace, at the same rate now as we were getting pre-KSR), and you respond with a theoretical framework (small entities generate outsized innovation contributions as compared to larger entities). Where are the data to back your story.

              Here, for example, are the number of apps available on the Apple store from 2008 to 2017. Do you see an inflection in the rate of increase that corresponds to the AIA or Alice? I do not see one. Objectively speaking, innovation has not been discernibly affected by patent law developments.

              Back when Alice came out, I was among those who said that we would regret the blow that we were dealing to innovation. I have had to back away from that claim, however, because the data just do not bear it out. If you have other data—data, mind, not just anecdotes from your more disappointed colleagues and clients—that prove that I was right all along, I would be interested to see them.

              1. 1.3.2.1.2.1.1

                You’re equating apps on the Apple store with innovation? I don’t consider any application I have (on Google) to be “innovative”.

                Do you have another metric you could use?

                As for me, if someone came into my office 5+ years ago, I’d be able to tell them with at least some certainty whether their idea involving electronics is patentable in a 101 sense. Now, I have no idea. I’d point them to trade secrets if that’s an option.

                1. You’re equating apps on the Apple store with innovation?

                  I do not know if I would agree with the characterization “equating.” There are more sorts of software innovation than phone apps. Phone apps are, however, one sort of software innovation.

                  I don’t consider any application I have (on Google) to be “innovative”.

                  Worse luck for you. I have definitely seen apps that are “innovative” relative to the prior art. Just last week, my son and I were walking in Redondo Beach and we saw a curious plant. He asked me what it was, and I confessed that I did not know, so he whipped out his phone and snapped a picture. He had an app to which he could upload this picture, and it told him the plant’s common and scientific names. I never used to be able to use my phone to do that, so the fact that I can now is progress in the useful arts.

                  Do you have another metric you could use?

                  I went with apps on the Apple store because that is an easy number to get a precise count over time. I am sure that there are other metrics, but none that I would know easily how to find.

                  I would turn the question around, however. I am not trying to prove a thesis about a slowdown in innovation. I am trying to disprove the null hypothesis (no slowdown in innovation since KSR), and I cannot find data that show such a slowdown. If no such data exist, on what basis can we purport to believe that patent law changes are adversely affecting innovation? So, do you know of such a data set?

                2. “Do you have another metric you could use?”

                  I agree that “# of apps for sale” is an appallingly bad proxy.

                  But if you can think of a few more clever proxies and then do a bit of analysis on them, there’s probably a PhD in it for you.

                3. After the Mayo/Myriad/Alice debacle, some patent attorney came up with a t-shirt that said, “I’m a patent [the word patent was crossed out] trade secrets attorney”.

        2. 1.3.2.2

          Seriously, if a small inventor walked through your door today with a valuable invention…

          I am an in-house attorney for a small entity pharma start up. Literally 100% of the work I do is small entity inventors walking through my door with valuable inventions.

          Before this job, I was an in-house attorney for another small, pharma start-up.

          Before that, I was in private practice and ~50% of my clients were small pharma and biotech start-ups from some of the local tech incubators. Several of those clients have gone on to do $100 million+ deals with larger pharma and agribusiness companies.

          Small businesses are doing as well as they ever have. It has always been the case that most small businesses will fail, even before KSR, or Bilski, or the AIA. They are not failing at any higher rate now than before.

          I think that the AIA was a net good and KSR and Bilski/Mayo/Myriad/Alice were a net detriment to the IP system. Nevertheless, the economy overall has not really suffered any discernible ill effect from any of the the recent changes in IP law, nor have any economically valuable tech sectors been discernibly harmed. If you have data that say otherwise, I would be interested to see them.

          1. 1.3.2.2.1

            Nevertheless, the economy overall has not really suffered any discernible ill effect from any of the the recent changes in IP law, nor have any economically valuable tech sectors been discernibly harmed. If you have data that say otherwise, I would be interested to see them.
            Again, you really don’t know what you are asking for. That kind of data requires controlling for a multitude of different factors within a single solitary data set. It would be like trying to determine whether a drug was effective if the only data you from people who took it and you had no idea what the data would look like if people didn’t take it.

            1. 1.3.2.2.1.1

              [Y]ou really don’t know what you are asking for. That kind of data requires controlling for a multitude of different factors within a single solitary data set.

              Well, look, there are only two possibilities here. Either you have data that speak to your conclusion, or you do not. If you do, why not share the data, and prove me wrong?

              If you do not have data, then your assertions in 1.3.2.1.2 are just empty gum flapping. I have shared the data that lead me to make my assertions, and I take it that you find them unconvincing. Fair enough. Evidently then, we are both just empty gum flappers.

              I do not understand, however, why you are making the assertions of 1.3.2.1.2 if you think that it is not possible to speak to any of these points from the perspective of knowledge. Is this just a creed that you recite as part of some cultic ritual for your coven of patent attorneys?

              1. 1.3.2.2.1.1.1

                Greg – being an “empty gum-flapper” without ANY appreciation of the actual art area (AND biased as he is with a Big Pharma mindset)….

                Shall we be polite and merely say that Greg is FOOL of it.

              2. 1.3.2.2.1.1.2

                Either you have data that speak to your conclusion, or you do not. If you do, why not share the data, and prove me wrong?
                My data is talking with inventors and knowing how they acting/reacting to the law, and what they plan on doing. The advice I give clients is also based upon my experience with other clients. It is pretty simple.

                You, on the other hand, think that everything is hunky-dory based upon you practice in a VERY NICHE area.

                In biotech, a “product” might be covered by a handful of patents. It is to the benefit of the large players to acquire/license those assets and then create a regime by which those assets can be used to prevent other larger players from muscling in on their business.

                In big tech, however, a “product” might be covered by thousands if not tens of thousands of patents. The big guys don’t want to deal with negotiating that many deals so it is easier for them to ignore all of the little players (efficient infringement) and just cross-license amongst themselves. However, what they needed is a regime that will allow the big player’s patents to be enforceable and the little player’s patents to be unenforceable. This is EXACTLY the regime with live in today and it isn’t by coincidence.

                1. My data is talking with inventors and knowing how they acting/reacting to the law, and what they plan on doing. The advice I give clients is also based upon my experience with other clients. It is pretty simple.

                  The software industry in the U.S. is estimated to include about 3.3 million people at present [1]. The average human being is estimated to have ~150 interpersonal relationships (kin, friends, business relationships, etc) close enough that one might plausibly learn a meaningful amount about the person’s life experience from the interactions [2].

                  Let us assume that your network of relationships is four times larger than the average (600 people). Let us further assume that your network is entirely comprised of people in the U.S. software industry.

                  That would mean that you have meaningfully interacted with ~0.018% of the U.S. software industry. That seems a rather unreliable sampling on which to build any generalizable conclusions. You will forgive me if I stick to more large scale statistical measures.

                  1) link to techrepublic.com
                  2) link to npr.org

                2. Yes, pharma and electronics have different patent aspects. But if you think that some large companies infringing patents of individuals and waging long and expensive patent defense litigation is something new, think again. Just as one example, read what RCA did to Col. Armstrong in his infringement suit on his pioneer FM radio patent. [His widow finally collected something, many years later.]

                3. Greg – keep on showing your lack of understanding – it is clear that merely associated with the software industry is not the correct baseline number to be using.

                  Looking at “large scale data’ when you have NO CLUE what you are looking at simply will not help you understand the innovation aspects involved here.

                  But hey – between you and “Dozens” you ALMOST have a partial path to a meaningful comment on the subject.

            2. 1.3.2.2.1.2

              [The] kind of data [necessary to prove that recent trends in patent law are suppressing innovation] requires controlling for a multitude of different factors within a single solitary data set. It would be like trying to determine whether a drug was effective if the only data you from people who took it and you had no idea what the data would look like if people didn’t take it.

              I wonder if we are not talking past each other here. You are advancing a thesis (“[A]re we incentivizing small inventors as much as we should/can be? The answer, for those of us who deal with small inventors, is ‘NO.'”). I am defending the null hypothesis (recent trends in patent law make no discernible difference to innovation achieved).

              You are responding that the data that I cite do not prove the null hypothesis, but this is the wrong way of thinking about it. The null hypothesis never needs to be proven. Rather, the point of a thesis (such as yours) is to disprove the null hypothesis. My point is that that the data prove the null hypothesis, but simply that they do not disprove the null hypothesis. So long as that remains the case, then your thesis does not carry.

              1. 1.3.2.2.1.2.1

                My point is that that the data prove the null hypothesis, but simply that they do not disprove the null hypothesis.

                Sorry, critical word missing there. “My point is not that that the data prove the null hypothesis… .”

          2. 1.3.2.2.2

            I wonder how much the difference between your experience and WT’s is rooted in the stricter application of 112(a) in the pharmacy arts than the software arts.

            1. 1.3.2.2.2.1

              the stricter application of 112(a) in the pharmacy arts than the software arts.
              Stricter application? You don’t appreciate the difference of what is being claimed in pharma/biotech and what is being claimed elsewhere. Pharma/biotech involves compounds that have specific properties. Oftentimes, these applications include massive disclosures that list vast numbers of candidate compounds because they haven’t nailed down what is the best candidate at the time the application was filed.

              On the other hand, let’s take software applications. In these, there are a vast number of known tools (functions) out there that could be used to create trillions of different combinations. What is almost always claimed is novel combinations of these known tools (functions). We don’t get into the details of any particular of the known tools (functions) because those skilled in the art know how to use those tools (functions). It is the combination that is novel — not the individual elements that make up the combination. This makes for very different disclosure requirements when one skilled in the art is considered.

              Also, why my comments referred to software, the same almost always applies to mechanical devices. Inventors almost always create new combinations — not necessarily new things with entirely new functions.

              1. 1.3.2.2.2.1.1

                Wt,

                Ben is being Ben – please keep that in mind.

            2. 1.3.2.2.2.2

              And (yet again), Ben misses with his anti-software rant of, “rooted in the stricter application of 112(a) in the pharmacy arts than the software arts.

              This is YOUR JOB, dude – the least you could do is understand it.

              It simply is false to say “more strict.”

              The plain fact of the matter is that the notion of the legal fiction of Person Having Ordinary Skill In The Art applies.

              “Baby arts” in which “stumbling about” due to lack of predictability simply carries a different “In The Art.”

        3. 1.3.2.3

          +1 to WT

        4. 1.3.2.4

          “that you’ll give away a license to get out of IPR hell.”

          Thank biz methods.

          I agree with most of what you say tho from what I hear.

      3. 1.3.3

        This is the most informative set of numbers that I can find on the subject of new business formation immediately pre- and post-AIA. I say “most informative,” because if you want to know the effect of the AIA, you want to look both pre- and post- AIA, to know if the AIA affected trends that were already in place. You definitely do not want to look only post-AIA, because then you will possibly ascribe to the AIA the effect of trends that were already in operation pre-AIA.

        As you can see, new start-up formation peaked in 2007, and then fell considerably over the next few years. By 2011, we were still working our way through the economic slowdown caused by the crash of 2007. New business formation remains flat until about 2018, and has picked up considerably since then (even during the COVID slow down). No solid evidence here for a downward pressure on start-up formation from the AIA. Near as I can tell, Dr. Boundy was just wrong about this.

        1. 1.3.3.1

          By 2011, we were still working our way through the economic slowdown caused by the crash of 2007. New business formation remains flat until about 2018, and has picked up considerably since then (even during the COVID slow down). No solid evidence here for a downward pressure on start-up formation from the AIA.
          Seriously, did you take any statistics in college? You are looking for the impact of a single variable that was changed when you’ve got dozens and dozens of possible variables involved — none of which are controlled for. With that handicap and yet you are trying to discern some insight as to the change of a single variable? Come on.

          1. 1.3.3.1.1

            Look, the null hypothesis to “[i]t is indisputable that the bill will strangle startups and small businesses before they’re even formed” is that the AIA will make no difference to small business formation. Can we, 10 years on from the AIA, reject that null hypothesis? If not, then Boundy was wrong in the only sense of “wrong” that really matters for this sort of discussion.

            1. 1.3.3.1.1.1

              is that the AIA will make no difference to small business formation.

              No – that is YOUR attempted framing.

              That is NOT the null hypothesis.

            2. 1.3.3.1.1.2

              Can we, 10 years on from the AIA, reject that null hypothesis?
              How many of those startups were heavily reliant upon intellectual property and more specifically patents.

              Also, don’t create a null hypothesis out of hyperbole. The only people who don’t think the AIA was bad for startups that heavily rely upon intellectual property are either lying to themselves or are uninformed. Sophisticated innovators know better.

              1. 1.3.3.1.1.2.1

                lol, Wt – but you have not provided the triple-documented, universal data (that ‘necessarily’ goes beyond what a court might require) – as this IS what Greg requires (of course, merely of others, as he runs rampant with his own data-LESS (or even worse, data-errored) views.

      4. 1.3.4

        Does anyone seriously dispute that we just went through several prior years of the largest new venture capital funding ever? [Not even counting the venture capital funding of PAEs]

        1. 1.3.4.1

          Why would you separate out such PAE funding?

          That adds a decidedly different “context” than the “gee, everything is roses” narrative being peddled.

          1. 1.3.4.1.1

            The increasing investor financing of PAEs does not start, assist or protect any new companies. Nor develop or make any new products [just more suing of those who do]. It rarely even benefits individual inventors [as opposed to the companies selling their inventors patents to PAEs]. So, it is not new venture capital funding.

            1. 1.3.4.1.1.1

              It IS related to the market for innovation protection, so there is benefit (along the stream for those inventors).

              It may not fit your narrative, but that is really not a valid concern.

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