Archive for February, 2011
I been asked questions about alternatives to the current patent reform and seen some proposed with the preface “This is probably a stupid question.”
So, before I start, I feel compelled to make a comment.
A wise professor once told me “There is no stupid question ever asked. The only stupid question is one not asked because if you don’t know and don’t ask you don’t learn.” The ones who ask questions and try to answer questions get the best grades for a reason, they learn more.
Now, one such proposal on another discussion board suggested combining Markman hearing with BPAI re-exam to reach a conclusive decision on patentability. In my educated view, this won’t work as outlined:
First, Markman hearings are not about validity, they are about claim construction, although prior art is considered so that the construction chosen is one that defines over the prior art of record in the prosecution history, if possible, consistent with the disclosure.
Second, neither Markman hearings nor BPAI decisions are conclusive on validity, as infringers will normally come up with additional prior art to claim as being closer and not considered. This will be even more true if Microsoft wins its S. Ct. appeal in April.
However, this might work in modified form with a different precedential value, as follows:
1. If patents were simply granted and published upon filing with claims written by the Examiner we could cut the cost of applications in half (since no claims would have to be filed) and eliminate 3 years of back and forth from the process and thus eliminate most prosecution costs and issue patents in weeks rather than years. It would also take a lot of the tedium out of the process for the patent examiners. The Examiners often end up essentially writing the claim under the current process, anyway, and based on 40 years of experience with Examiners on literally thousands of cases, I know the Examiners do a pretty good job at it and do it extremely quickly. In fact, USPTO Patent Examiners are arguably the best claim writers in the world, bar none, in their technology area. When you do claim analysis all day every day for years and years in a particular technology you tend to get pretty adept at what a good claim of appropriate scope is for a given invention based on a given disclosure in that technology. That should improve patent quality significantly for a number of reasons. For one, it should make the claim writing a sort of “back office” activity in which applicants do not have to get involved unless they find the issued claims too narrow. For another, it will eliminate much of the advantage “big business” and “patent mill type law firms” have since claims would not need to be filed. To help the Examiner, we could allow applicant to file an optional suggested claim.
2. This would give an extremely quick and certain scope to the patent and give a very rapid right to enforcement and a rapid recipe for design-around efforts. It should lower the cost dramatically. So, it would be great for both patentees and patent avoiders. It would be especially good for small inventors who are notoriously poor both financially and at writing claims, so they don’t give away the invention due to financial or drafting inability. It would substantially undermine the scam invention submission and invention promotion outfits as inventors should no longer need them and their cheap worthless patent services using unethically conflicted patent attorneys. Indeed, the PTO could probably come up with a menu-driven online process that would allow novices to submit a disclosure of decent quality.
3. There would have to be an appeal process for patentees to get a broadening reissue if the original claims are too narrow, but that could be handled by intervening rights (as is currently the case with broadened reissues) so that certainty is maintained.
4. The issue of infringement in litigation could then be simply handled by requiring a description (an electronic video would be best) of an allegedly infringing device to be submitted to a patent examiner (the same one if still there) for high-priority (as in RAPID) determination of infringement or non-infringement. Returning the patent to the patent examiner for that determination makes perfect sense. After all, patent examiners already do this exact same type of analysis hundreds of times a day as they examine prior art for possible anticipation (“that which anticipates if earlier, infringes if later”). Examiners could do in seconds what US District Court judges take years to do, and would generally do a much better job. Why? Because, the patent examiners do not have to get up to speed on either technology or patent law, as they are scientists in the various technical fields they examine and they are usually interested in that technology and have been trained in patent claim analysis and patent law whereas Judges are seldom if ever good at any of those things or even interested in technology and generally hate patent cases. Having patent examiners do what they do best, what they like doing, and doing it on important things would put great value on patent examiners and make them feel much better about their jobs and what they do. That, in turn, should make more people want to become patent examiners and the commercial importance of the decisions should make patent examiners want to do a better job, all of which should improve patent quality.
Now, that would be REAL patent reform! And, it would not sacrifice US competitive patent advantages like first-to-invent & grace period, but rather enhance them by getting US patents out a year earlier as prior art against the rest of the world. That, in turn, might allow US patents to be ahead of commercialization instead of being obstacles appearing years later after commercialization has locked into specific products and thus causing unanticipated problems that lead to the demand for the unfair, anti-patent, anti-inventor sort of patent reform now before Congress.
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A little sleuthing seems to reveal a mountain of patents at Intellectual Ventures (IV) and the possibility that IV is a patent extortion scheme by Microsoft disguised as a separate company, but really aimed at fighting Linux and Android. For years they have been amassing a portfolio of patents and using them to “encourage” others to “invest” in IV. But, they recently began going offensive, filing their FIRST patent suit in December.
I recall seeing reports early last year that IV was claiming to have raised nearly $5B from Microsoft, Apple, Google, & others to buy up patents to keep them out of the hands of patent trolls. That is, it was rumored to have started out defensive in nature. However, the rumors switched and scuttlebut (see http://techrights.org/wiki/index.php/Intellectual_Ventures) was that it was a Microsoft creation intended to buy up patents that might otherwise get into the hands of patent litigators and cause MS problems and eventually use them to attack Linux and Android. http://techrights.org/2010/11/27/patent-tax-on-linux-swpats/ This was fueled by Myhrvold being put in charge of it. There is likely something to that, as with all of its antitrust litigation ongoing, MS would surely want to put its anti-competitive, patent-based efforts into a separate company like IV. Rumor also was that when IV got enough patents, it would turn offensive and go after Microsoft competitors and perhaps even branch out into typical patent troll litigation in med tech or some other field. Here are two articles that seem to have the pulse of IV:
Sure enough it has gone after Android software, and is now actively buying patents in the medical field
In view of the focus of IV on defending MS against Linux & Android, and its more recent focus on medical technology, I think the small inventor would get lost in the 30,000 patents at IV, and would not likely see much return. The return from IV would be the purchase price to sell them the patent, and I agree small inventors will only get fire sale pricing unless they see the patent as a major building block in their mountain of anti-Linux, anti-Android patents, or perhaps their growing collection of med tech patents..
China has, in effect, declared that it will steal American technology and try to develop its own and use IP laws slanted toward Chinese inventors.
See the ominous WSJ Journal article pointing this out today.
This is really nothing new. The question is how will the US defend itself or will US business sell-out for short term profit as they have been doing all along.
It is worth pointing out that the PTO now sends out a flyer on CBP enforcement at the border with all new trademark certificates. See an example at
flyer on Customs Enforcement
and the CBP has established an on-line recordation system for Patents, Trademarks & Copyrights at
So, while these are just beginning steps in this new Technology War with China, they are important to get American small business to take the steps needed to stop Chinese imports that constitute technology theft.
As I understand it China’s new patent law allows a Chinese company to patent assimilated technology, that is they can get a patent on stolen US technology and then use that patent to block American companies from using the technology in China–i.e. block American companies from selling items bearing the stolen American technology in China. That is their idea of fairness. It tells you what we are up against. Obama and Gary Locke and David Kappos are aware of this and trying to fight it, but transnational businesses, many American, are so short-term oriented and so dependent on China that they are letting it happen, indeed aiding and abetting it, and selling the Chinese socialists the technological “rope” to use to hang us.
Remember Stalin’s prediction? “When we hang the capitalists they will sell us the rope we use.” Joseph Stalin
In our case, this can’t happen because we probably don’t produce rope anymore. Some big rope company probably sold the best technology and best equipment for that to the Chinese or started producing it in Bangladesh or Mexico because this quarter’s profits were down & the CEO’s bonus might suffer. So, Wal-Mart now imports rope from China or who know where and sells it for less than it costs a unionized American company to produce it. And, the inventors and start-ups with new rope making inventions aren’t talking or doing anything because they can’t develop and protect new rope technology without the big rope manufacturers and rope purchasers just stealing any patented technology and the titans of industry and Michael Masnicks of the world wouldn’t want a “patent troll” using that inventor’s patent on the new rope technology to “delay progress”. That isn’t just a joke in many industries, it’s history.
To quote Peter, Paul & Mary “…when will they ever learn.”
Hopefully, Obama can help industry do what it should have done all along and think long-term. My fear is that we are past the tipping point.
I came across the following misinformation from the Tech Dirt blog and its blogmaster the notoriously anti-patent Michael Masnick (who should perhaps unshuffle his last name to Sick Man)
“No, Giving More Patents To Startups Won’t Increase Innovation
from the not-this-again dept
This really isn’t much of a surprise, given earlier statements from both President Obama and Commerce Secretary Locke concerning patents, but it’s still a bit disappointing to see that one part of the latest administration plan to jumpstart more entrepreneurship is to make it easier for them to get patents. This is based on a falsehood: that entrepreneurs need patents to build businesses. This is a claim made up by patent attorneys that has little support in the reality of the trenches in places like Silicon Valley. While it does depend on the business you’re in, good VCs rarely care about patents, since it’s rarely the patents that matter. Entrepreneurship is all about the execution, and that’s determined by the team, not some piece of paper. Instead, by making it easier to get patents, we just end up with more bad patents that make it harder for entrepreneurs to actually execute. What a shame.
To that we respond that, in fact, the truth is that:
Being a VC and having represented VCs and startups for 20 years, I know patents are almost invariably a boon not an obstacle to startups. Masnick lies to the contrary are a constant theme on TechDirt. “If the theory doesn’t fit the facts, change the facts.” Albert Einstein
1. VCs want protection for the new ideas of start-ups and look to patents, trademarks, copyrights, domain name registrations, trade secrets, franchise rights, permits, licenses, and the like to find protection. If a startup has patents and/or the other items it is much more likely to get funded, Masnick foolishness to the contrary notwithstanding.
2. Start-ups are often not concerned so much with the patents of others, as they are not big enough when they start to draw fire. I know, I am also a patent litigator that often has to advise a patent owner that it simply is not worth a lawsuit against a startup when the expenses exceed the likely recovery, unless the startup seems likely to grow rapidly or is in an especially important area for the patent owner or where an example needs to be set at any cost. What start-ups hope, and usually find, is that they do not draw fire prior to discovering a workaround or until they start hurting the big guys, and by then the startup often has technology and patents of its own and has been in the field long enough to figure a workaround.
3. Patents of others spur innovation as start-ups try to come up with designarounds. Been there, done that. Often in attempting to design around, the start-up finds flaws in the patented item and develops an improved and better item in the process. That, contrary to misguided misinformation from Masnick, is progress of the useful arts and sciences promoted by granting exclusive rights for limited times to inventors. Read the Constitution and repent of you ill gotten ideas to the contrary.