How The Patent System Is Rigged To Only Expand What's Patentable

from the keep-turning-the-ratchet dept

When the numbers came out showing that 2011 represented yet another record year for patents granted, it was such a non-surprise that I didn't even bother mentioning it. The number of patents granted just keeps going up. And yes, there were two small dips during the past decade, but they corresponded with the rare situations in which the Supreme Court finally took an interest in some element of patent law and pushed back on the Federal Circuit (the appeals court that handles all patent issues) and the USPTO. We've discussed at length in the past, the problems of having a single appeals court that solely focuses on patent issues, because you lose the diversity of opinions (made worse at times when some of the judges on the panel have been former patent attorneys -- or, most famously, when a judge at the court was the same former patent attorney who wrote the last major update to patent law...).

However, Steve sends over a fascinating Yale Law Journal review article by Jonathan Masur that notes this problem of the Federal Circuit can be explained structurally, in that the relationship between the PTO and the Federal Circuit combined with the fact that there's no "adversarial" party contesting a patent grant, means that the patent system is effectively rigged to only expand, even if that goes against the best interests of society:
Because of the manner in which patent cases make their way from the PTO to the Federal Circuit, the PTO has a decided institutional interest in granting more patents than it should. And because of this same interaction, the Federal Circuit is engaged in an unwitting expansion of the patentability rules. The key lies with the asymmetric nature of appeals from the PTO to the Federal Circuit. When the PTO denies a patent application, the aggrieved applicant may appeal to the Federal Circuit. When the PTO grants a patent, however, there is no losing party to appeal--the victorious applicant merely walks away with its patent. That patent is unlikely ever to see the inside of a courtroom, given how few infringement lawsuits are litigated. Like most administrative agencies, the PTO wishes to avoid appeals and especially reversals. In order for the Agency to accomplish this, it need only err on the side of granting excessive numbers of patents--even invalid patents--for which there is no appeal. This desire to avoid litigation is a source of the invalid patents now being issued by the PTO in vast numbers--the patent system’s first problem.
But, as he notes, that's not the only problem. There's also the fact that since the PTO will now only reject patents that are clearly outside the law, the Federal Circuit only has opportunities to expand the granting of patents, not to reign it in:
The second problem, the ongoing expansion of the rules governing what types of inventions may be patented, stems from the PTO’s proclivity to grant any plausible patent. Because of the PTO’s efforts, the patent applications that the Agency denies will predominantly concern inventions that are unpatentable under current law. When a disappointed patent applicant appeals such an application to the Federal Circuit, that court has two options. It can reject the patent under existing law, preserving the law as it stands, or it can grant the patent under a new, more expansive understanding of what is patentable. The circuit denies most of these applications. But when the Federal Circuit eventually decides a case in favor of an applicant, it creates a new precedent that enlarges the scope of what may be patented. The process then repeats itself, with the PTO denying more boundary-pushing patent applications and the Federal Circuit being presented with further opportunities to expand the limits of patentability. The result is a natural inflationary pressure on the law, generated entirely by the types of cases that the PTO sends to the Federal Circuit.
Is there a way to fix this? Masur suggests that awareness alone might create some pressure on the Federal Circuit to "create new, more constraining precedent." He also suggests that they might "vote strategically against self-interest in certain cases" such as by voting against a patent they think is a good patent "simply in order to forestall the law's outward momentum." That seems like significant wishful thinking -- which he admits with a bit of an understatement: "This would require a focus on issues with which circuit judges do not typically concern themselves, not to mention a surprising level of tactical shrewdness from a circuit that has not previously displayed any such inclination."

He also notes how Congress and the Supreme Court have the power to curb excesses, which the Supreme Court has done just a little bit (which, as noted above, explains the brief dips in patents). Separately, the executive branch could get involved and pressure the PTO to limit its approvals.

But, in the end, the key point that set off this problem is the lack of anyone to push back on a granted patent (until such time as they're sued, in which case a different series of issues are being dealt with). So of his key suggestions, one is to open up the ability for third parties to challenge patents -- even before they're issued. And to weigh against the inflationary pressure of the current Federal Circuit, he suggests that these challenges show up in the Federal Circuit too -- so that that court now also has incentive to curb excesses, rather than just inflate them. Definitely an interesting idea.


Reader Comments (rss)

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  1.  
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    Alex Austin (profile), Feb 28th, 2012 @ 8:12pm

    What if Patents were (artificially) scarcified? What if congress said "PTO, you can only grant patents per year. Make them good."

    Comments?

     

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  2.  
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    Alex Austin (profile), Feb 28th, 2012 @ 8:13pm

    Re:

    *...can only grant [x] patents per year

    (it took x as html before...)

     

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  3.  
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    Anonymous, Feb 28th, 2012 @ 8:22pm

    Lol, again.

    Hi Mike,

    I had gone away for a while but, like Michael Corleone, your ever-insightful commentary has drawn me back in.

    The patent system is intended to grant patents on new and non-obvious inventions. Did it ever occur to you and Mr. Masur that perhaps the "inflationary pressure" pushing the boundaries of patentable subject matter ultimately derives from mankind's never ceasing quest to innovate?

    Yes, Mike. It's true. There were no patents on semiconductors, digital computers, and business methods back in the 19th century. Is that because of the Federal Circuit or because of the nature of innovation?

    Jonathan Masur. Lol. Yale Law Journal. ROTFL.

    You crack me up.

    xoxo, Anonymous.

     

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  4.  
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    Anonymous Coward, Feb 28th, 2012 @ 8:31pm

    Re: Lol, again.

    I like how you always think anybody gives a shit what you think.

     

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  5.  
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    Alex Austin (profile), Feb 28th, 2012 @ 8:33pm

    Re: Lol, again.

    Ye... No.

    The patent system is intended to grant patents on new and non-obvious inventions.

    Evidence shows that it's not doing that anymore. There are far too many overly broad and obvious patents being granted. Amazon One-click? Innovario's WiFi patents? Internet groups?

    How are any of these not obvious? And then, hiring patent examiners without field knowledge?

     

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  6.  
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    Anonymous Coward, Feb 28th, 2012 @ 8:45pm

    Re: Re: Lol, again.

    Anonymous is an expert. I see their comments all over the world wide web.

    Did you know that Anonymous knows everything? It's true!

    Anonymous told me.

     

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  7.  
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    Anonymous Coward, Feb 28th, 2012 @ 8:57pm

    Re: Lol, again.

    Bring back RJR please. At least he was entertaining.

     

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  8.  
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    Anonymous Coward, Feb 28th, 2012 @ 9:12pm

    As human knowledge continues to expand, and as the frontiers of science, technology, and the like continue to be pushed, we remarkably have more patents.

    The sun also comes up in the morning. Go figure that one out.

     

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  9.  
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    Anonymous Coward, Feb 28th, 2012 @ 9:17pm

    Re:

    The sun also comes up in the morning. Go figure that one out.


    I already did, that is why I'm getting a patent. Get ready to pay me, sucker!

     

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  10.  
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    ChurchHatesTucker (profile), Feb 28th, 2012 @ 9:42pm

    Re: Re: Lol, again.

     

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  11.  
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    Anonymous Coward, Feb 28th, 2012 @ 9:42pm

    Re: Re:

    Just make sure you make you patent vague enough that you can also get anything that emits light. That way you can make every one pay 6 or more times :D

     

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  12.  
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    TtfnJohn (profile), Feb 28th, 2012 @ 9:44pm

    Re: Re: Lol, again.

    you forgot business processes that preceded the rulings of that wonderful court in west Texas, patent ability of software over the objections of almost the entire industry which also amounts to patenting mathematical equations which is what almost all programs are.

    The problem is that there are few boundaries left around what can and cannot be patented. The notion of non-obviousness, or that doesn't come from prior art and so on seems to have disappeared.

    Until that reappears, if it ever does, the inflation in patents will continue.

    Even though there were a record number of patent applications in the USA last year for the first time in recent history two countries had more applications in than the States (or even one) namely Japan and China. I'm not saying that they are necessarily more innovative just that the scope of what can and cannot be patented has become enormous. And there's something the just doesn't smell right about that.

     

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  13.  
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    Anonymous Coward, Feb 28th, 2012 @ 10:09pm

    Re:

    "Make them good." will be interpreted to mean "make them very broad and all encompassing. Make sure they cover everything possible".

     

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  14.  
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    Anonymous Coward, Feb 28th, 2012 @ 10:14pm

    Re:

    Patents were originally only given for unique non obvious objects to the area that the patent represented.
    Patents were a way to show others how to do something, not keep them from doing it or figuring out a way different way.
    Patents were designed to expire after 7 years and go into the public domain.
    Patents were not to cover fact.
    Patents were to protect for a particular instance of an object. Not to grant you broad rights of anything that you can think of.
    Patents that were spins on prior art were to be tossed.

    Please refer to a version of U.S. History that relies on provable facts and not to "Gut Feelings" about what is Right and Wrong.

    A little knowledge is a dangerous thing; Understanding is a tool used for betterment.

     

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  15.  
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    Anonymous Coward, Feb 28th, 2012 @ 10:15pm

    Re: Lol, again.

    "There were no patents on semiconductors, digital computers, and business methods back in the 19th century."

    "Did it ever occur to you and Mr. Masur that perhaps the "inflationary pressure" pushing the boundaries of patentable subject matter ultimately derives from mankind's never ceasing quest to innovate?"

    Which says nothing about whether or not patents facilitate this innovation.

    "Is that because of the Federal Circuit or because of the nature of innovation?"

    You confuse a lack of patents with a lack of innovation.

    The nature of innovation is that it happens better without patents.

     

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  16.  
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    Anonymous Coward, Feb 28th, 2012 @ 10:26pm

    Re:

    We expect advancement regardless, no one says patents stop progress, just that they slow it down.

    The question is, do patents help promote the progress or do they hinder it. The evidence suggests they hinder it.

    http://www.dklevine.com/general/intellectual/against.htm

    Measuring innovation by the number of patents assumes that the number of patents are a good measure of technological advancement. I see no reason to believe this, it could simply be a reduction in the quality of patents as well.

    and even if the number of patents are a good measure of technological advancement that still doesn't mean that patents facilitate such advancements.

     

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  17.  
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    Anonymous Coward, Feb 28th, 2012 @ 10:34pm

    With but very few exceptions, I typically find "scholarly articles" such as this one published about two years ago somewhat amusing since virtually all of these "scholars" have not a whit of insight into the entirety of the "patent process". Virtually none have ever read the regulations contained in 37 CFR that implement the requirements of federal law contained in Title 35, nor have they ever read (and this is assuming they are even aware of its existence) the MPEP, which is the internal rules by which the USPTO details requirements conforming to statutory and regulatory mandates, in addition to judicial precedent.

    Perhaps most telling of all, only a miniscule number of those who craft such articles are even proficient in technology matters and admitted to practice before the USPTO, in addition to being admitted to practice to state bars.

    Yes, such articles are incredibly persuasive and insightful. After all, it is not like one has to know the law from the ground up before waxing poetic on a subject about which they have virtually no experience.

     

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  18.  
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    Anonymous Coward, Feb 28th, 2012 @ 10:40pm

    Re: Re:

    And you know patents slow down progress because? If your source is Boldrin and Levine, or others of similar ilk, you are being spoon-fed information so full of misinformation that by no reasonable and intellectually honest measure can it be called authoritative.

    No system of law should ever be exempt from criticism, but before one criticizes at the very least they should be firmly grounded in the relevant law...which is a whole lot broader than just cases decided by the CAFC and the Supreme Court.

     

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  19.  
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    Anonymous Coward, Feb 28th, 2012 @ 11:43pm

    Nice ad hominem

    That's a nice ad hominem. Now, could you actually address the argument which the article presented?

     

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  20.  
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    Anonymous Coward, Feb 29th, 2012 @ 12:10am

    Re:

    Why is it alright for Chris Dodd to insult the entire Internet, but not alright for others to comment on matters of similar topics?

    You probably function like this:
    "We can't possibly know how good or bad this law is if we sit around and discuss it - we must pass it now!"
    "We can't debate this law! It's already passed!"

     

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  21.  
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    That Anonymous Coward (profile), Feb 29th, 2012 @ 1:38am

    Re: Re: Re: Lol, again.

    East Texas.

     

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  22.  
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    Mike Masnick (profile), Feb 29th, 2012 @ 3:49am

    Re:

    With but very few exceptions, I typically find "scholarly articles" such as this one published about two years ago somewhat amusing since virtually all of these "scholars" have not a whit of insight into the entirety of the "patent process". Virtually none have ever read the regulations contained in 37 CFR that implement the requirements of federal law contained in Title 35, nor have they ever read (and this is assuming they are even aware of its existence) the MPEP, which is the internal rules by which the USPTO details requirements conforming to statutory and regulatory mandates, in addition to judicial precedent.

    Perhaps most telling of all, only a miniscule number of those who craft such articles are even proficient in technology matters and admitted to practice before the USPTO, in addition to being admitted to practice to state bars.


    There you go again. You do this all the time. You pedantically cast aspersions on others without *ever* addressing their actual argument. Instead, you snidely imply that only the great and mighty IP lawyer that you are could possibly understand such complex subjects, but never, ever do you dare bother to actually explain a damn thing.

    And that's why we call you out for being full of it. Because all you do is insult others by casting aspersions on their qualifications. It's the worst form of an appeal to authority fallacy, because it's delivered in the most elitist of tones.

    So, I'll ask you once again, as I have in the past: deliver SOME goods. Actually make a statement that deals with the topic at hand, rather than insulting a rather well respected individual.

    You can't do it, can you?

     

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  23.  
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    Anonymous Coward, Feb 29th, 2012 @ 3:58am

    Re:

    Think about this one:

    Last year might was a record year for patents. But how many technological breakthroughs did we really have?

    Patents are a poor metric for innovation.

     

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  24.  
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    Anonymous Coward, Feb 29th, 2012 @ 4:14am

    Re: Re: Re:

    "And you know patents slow down progress because?"

    That one is easy.

    Think big corporation vs little startup. A Big corporation that starts feeling threatened by a little startup can flex it's patent muscle to crush the little startup with a prolonged court battle.

    Since courts tend to favour the guy with the IP (some around here like to call them 'victims'), the little startup will have to sweat bullets to prove it's innocence.

    The big corporation has the money to afford a prolonged litigation war. And heck, they have nothing to lose, other than a few bucks (pocket change, really, if the end result is to maintain a dominant position).

    Assuming that the little startup actually had something worthwhile going on, your precious patents pulverised any chance of progress. It's nice for the patent holder. Not so great for the progress of science.

     

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  25.  
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    Anonymous Coward, Feb 29th, 2012 @ 4:25am

    Re:

    Shit smells. You don't need to be a subject-matter expert on shit to be able to tell that it smells.

     

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  26.  
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    Anonymous Coward, Feb 29th, 2012 @ 7:54am

    Re: Re:

    As a matter of fact, I can do it with ease. The problem here, however, as is true with so many academic articles of this type, is that traversing the opinions expressed in such articles requires what is almost the equivalent of a legal treatise, running for pages and pages.

    A few examples where the author was clearly short sighted and uninformed. Yes, more patent applications passed to issue. However, it must be borne in mind that at that very time the USPTO was faced with a huge backlog of pending applications, and resources had just been brought to bear to address it and move the applications along. It is too bad that the author focused on just new allowances. What is glaringly missing, however, is data concerning those applications in the backlog queue that were not passed to issue.

    He talked at length about what he perceived as problems associated with CAFC panels initially comprising only three judges, and by the luck of the draw it was to be expected that some panels may not be representative of the CAFC as a whole if it was considereing an appeal en banc. It would have been nice, and placed the matter is context, had he mentioned that this is the same process employed by the Circuit Courts of Appeal. It makes it seem as if the latter pass his jurisprudential muster, whereas the latter does not.

    Patent law is not defined exclusively by the Title 35. The statutory provisions are, of course, the primary source of law, but an equally important consideration is the construction/interpretation given to statutes during an agency's rulemaking process, which involves the Administrative Prodedure Act. In the article there was, based upon my reading, no attempt to investigate if proper adherence to the APA (Title 5) was somehow different between USPTO rulemaking and that of other federal agencies, nor did it discuss Chevron Deferrence to agency rulemaking. Whenever I read an academic article directed to Title 35 that makes no reference to rules enacted by the USPTO, I have to wonder if the author even appreciates that the Administrative Procedure Act is a critical component of defining what the law actually comprises.

    He vilifies the CAFC by stating it is essentially pro-patent and most definitely inclined to increase the scope of subject matter eligible under Section 101 of Title 35. Of course, it goes unmentioned that the Supreme Court has repeatedly stated that Section 101 was intended by Congress to be broadly construed, and that the CAFC must do the same.

    Need I go on? Be forwarned that the list of other matters would be quite length indeed.

    Oh, and on a final note, the CAFC is not a patent court. Patents (and trademark) appeals, are but one of many where the CAFC serves as the appellate body. A summary of the court's jurisdiction can be found on its website, wherein is stated:

    The Federal Circuit is unique among the thirteen Circuit Courts of Appeals. It has nationwide jurisdiction in a variety of subject areas, including international trade, government contracts, patents, trademarks, certain money claims against the United States government, federal personnel, veterans' benefits, and public safety officers' benefits claims. Appeals to the court come from all federal district courts, the United States Court of Federal Claims, the United States Court of International Trade, and the United States Court of Appeals for Veterans Claims. The court also takes appeals of certain administrative agencies' decisions, including the United States Merit Systems Protection Board, the Boards of Contract Appeals, the Board of Patent Appeals and Interferences, and the Trademark Trial and Appeals Board. Decisions of the United States International Trade Commission, the Office of Compliance, an independent agency in the legislative branch, and the Government Accountability Office Personnel Appeals Board, and the Department of Justice Bureau of Justice Assistance also are reviewed by the court. The court's jurisdiction consists of administrative law cases (55%), intellectual property cases (31%), and cases involving money damages against the United States government (11%). The administrative law cases consist of personnel and veterans claims. Nearly all of the intellectual property cases involve patents. Suits for money damages against the United States government include government contract cases, tax refund appeals, unlawful takings, and civilian and military pay cases.

    Academic opinions can be quite informative, but to place one's trust in their accuracy and completeness is folly.

     

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  27.  
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    Stephan Kinsella (profile), Feb 29th, 2012 @ 8:23am

    Re: Re: Re: Re:

    See the info collected here: http://blog.mises.org/10217/yet-another-study-finds-patents-do-not-encourage-innovation/ . There can be little doubt that the patent system, like all state interventions, reduces overall wealth as well as innovation.

     

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  28.  
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    Stephan Kinsella (profile), Feb 29th, 2012 @ 8:25am

    FDA parallels

    As I wrote to Masur a while back, "I'm a patent attorney, and also a libertarian opponent of patents and copyright in general. As I noted in my post, I thought of a parallel to how the FDA tends to be risk-averse in their drug approval decisions. Not sure if it's exactly the same but I see some parallels."

     

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  29.  
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    Torg (profile), Feb 29th, 2012 @ 8:26am

    Re: Lol, again.

    "More patents" and "more patentable concepts" are not the same thing. Were digital computers invented in the 19th century, those would've definitely been patented, so even if they weren't patented they were a patentable concept. This article is about the expansion of things that can be patented, not necessarily the increase in things that are.

     

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  30.  
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    Beta (profile), Feb 29th, 2012 @ 8:27am

    Re: Re: Re:

    Point 1:
    "...the author focused on just new allowances. What is glaringly missing, however, is data concerning those applications in the backlog queue that were not passed to issue."

    I have to admit, that's a good point (albeit made too verbosely) . The first few lines of Mike Masnick's article refer to the number of patents granted, but not the acceptance frequency (and not to the worth of the granted patents, which is harder to quantify). I don't know whether the YLJR article contains the same weak argument.

    Point 2:
    "He talked at length about what he perceived as problems associated with CAFC panels... It would have been nice... had he mentioned that this is the same process employed by the Circuit Courts of Appeal. It makes it seem as if the latter pass his jurisprudential muster, whereas the latter[sic] does not."

    I presume you meant "the former". And who cares? What is your point? And are you so tangled up in your own patronizing and long-winded prose that you can't keep "latter/former" straight?

    Point 3:
    "Patent law is not defined exclusively by the Title 35. The statutory provisions are, of course, the primary source of law, but an equally important consideration is [blah blah blah ad hominem blah]"

    This is not the bar exam; please stay on topic. The kindest interpretation I can give to this point is that you are criticizing the author for not exploring the mechanism by which the USPTO evolves toward slack reviews. If that's your point, it's extremely weak.

    Point 4:
    "...The Supreme Court has repeatedly stated that Section 101 was intended by Congress to be broadly construed, and ... the CAFC must do the same."

    Which doesn't actually address either of the quoted points. Whether or not the interpretation should be broad, the point is that the CAFC is in such a position that they may only broaden it.

    Point 5:
    "Oh, and on a final note, [284 words of irrelevant text, mostly cut and pasted from another source]"

    You're paid by the word, aren't you?

     

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  31.  
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    Anonymous Coward, Feb 29th, 2012 @ 8:48am

    Re: FDA parallels

    In my experience the USPTO has not shown a proclivity for being "risk-averse". Perhaps this can be said of specific individuals, but as an institution I do not believe this is an accurate characterization that can be generalized across the entirety of the USPTO.

    I cannot speak to the FDA because I have never dealt with that agency.

     

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  32.  
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    Anonymous Coward, Feb 29th, 2012 @ 8:58am

    Re: Re: Re: Re:

    Elaborating on the appellate jurisdiction of the CAFC is hardly irrelevant. The court is constantly called a "Patent Court", when in fact patents (and trademarks) comprise but a portion of the cases presented to the court for a decision on appeal. The court could just as easily, for example, be called a "Tucker Act Court", or an "Armed Services Board of Contract Appeals Court". These two examples involve bodies of law that comprise a very large portion of the court's docket. To realize this, however, you have to study the court's docket and the decisions it renders.

     

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  33.  
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    Torg (profile), Feb 29th, 2012 @ 9:04am

    Re: Re: Re: Re: Re:

    It is the court that rules on patents, is it not? Calling it the patent court is therefore justifiable in this context, since we're discussing its actions in its capacity as the court that deals with patents. If we were discussing the Tucker Act then we would be justified in calling it the Tucker Act court. But we're not, so the fact that it also rules on the Tucker Act is irrelevant.

     

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  34.  
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    Anonymous Coward, Feb 29th, 2012 @ 9:05am

    Re: Re: Re: Re:

    You're paid by the word, aren't you?

    No. Unfortunately, broad generalizations oftentimes require somewhat lengthly responses to try and point out why the generalizations are incorrect. Would you rather I say in reponse to a generalization I believe is wrong "The author is clueless and his comment laughable."?

    Of course, this is a Catch-22. A long explanation leads to comments such as yours, and a response such as above leads to "You are obviously unable to support your position with any substantive data, so obviously your opinion is nothing more than that of a shill and deserving of zero consideration."

     

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  35.  
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    Anonymous Coward, Feb 29th, 2012 @ 9:14am

    Re: Re: Re: Re: Re: Re:

    I disagree that it is irrelevant. The court is criticized because it is the sole appellate court for matters predicated upon patent law. At the same time, however, it is the sole appellate court for numerous matters other than patent law. Perhaps I have simply not had occasion to read all articles associated with the court's jurisdiction, but no article I have ever read criticizes the court for being the only appellate venue associated with the Tucker Act and the other bodies of law that come before it. Wouldn't Tucker Act jurisprudence benefit from a larger body of appellate courts rendering decisions under the assumption that more is better? Perhaps, but I have not heard any hue and cry for this expansion of concurrent jurisdiction.

     

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    Beta (profile), Feb 29th, 2012 @ 9:26am

    Re: Re: Re: Re: Re:

    There is a third possibility: you could give a response that actually makes valid points (and please, be concise). If you can't do that, you shouldn't be posting at all.

    (P.S. don't use the phrase "Catch-22" any more-- it doesn't mean what you think it means.)

     

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  37.  
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    Anonymous Coward, Feb 29th, 2012 @ 9:33am

    Re: Re: Re: Re: Re: Re:

    Please feel free to point out what you believe are "invalid points". I will clarify my comments if need be.

     

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  38.  
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    Torg (profile), Feb 29th, 2012 @ 9:45am

    Re: Re: Re: Re: Re: Re: Re:

    It probably would, but no one seems to be talking about the Tucker Act. Patents have visible issues beyond the court structure, so people care more about finding ways to fix them.

     

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  39.  
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    Gene Cavanaugh (profile), Feb 29th, 2012 @ 9:55am

    PTO and inflationary pressures on granting patents

    Actually, it is MUCH worse than that. The inflationary pressures apply only to large entity patents, which are known to curb innovation, encourage useless litigation, and generally harm our economy.
    Small entity patents have steep discounts (50 to 75 percent) that, considering the need for the USPTO to balance revenue to performance (they are self-supporting), causes the USPTO to tend toward disallowing any small entity patents, even if they are HIGHLY innovative - it is called "getting rid of the loss-leaders".
    I have a paper on that I would love to publish!

     

    reply to this | link to this | view in thread ]

  40.  
    identicon
    Anonymous Coward, Feb 29th, 2012 @ 10:28am

    Re: Re: Re: Re: Re: Re: Re: Re:

    I mentioned the overall jurisdiction of the CAFC precisely because the author, as have others, critize it having jurisdiction re patents because they prefer diverse views from other appellate courts for the development of law, but make nary a mention about other areas over which the court also exercises appellate jurisdiction. Why they criticize one, and none of the others, makes me wonder if they are just engaged in cherry picking.

    BTW, the Tucker Act also addresses patent issues, as does the Court of Federal Claims jurisdiction to hear suits for money damages arising under the Constitution. COFC appeals are decided by the CAFC, and by no other appellate court. I am surprised this is likewise not mentioned in any of the academic articles I have read.

     

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  41.  
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    Roland, Feb 29th, 2012 @ 10:30am

    blame congress again

    The US Congress took a couple of steps in the last 20 years that had huge consequences: 1)they reduced funding for the PTO, causing a salary freeze. Result: the better examiners left. The rest are overworked. 2)they mandated higher fees from applicants. Result: the examiners are beholden to applicants.

    Bottom line: the USPTO has taken the attitude "Just issue the d*** things and let the courts sort it out later." No wonder the courts are clogged with worthless BS.

     

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  42.  
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    Stephan Kinsella (profile), Feb 29th, 2012 @ 10:52am

    Re: blame congress again

    "The US Congress took a couple of steps in the last 20 years that had huge consequences: 1)they reduced funding for the PTO, causing a salary freeze. Result: the better examiners left. The rest are overworked. 2)they mandated higher fees from applicants. Result: the examiners are beholden to applicants."

    I don't think this is right at all. There is no reason, IMO, to think that reducing PTO funding is a cause of what is going on at all. This entire compressed analysis assumes the PTO and state agencies are legitimate, and that PTO examiner "quality" matters at all. It does not. It is completely irrelevant to the problem posed by the patent system. Even if every patent ever granted was superbly written and examined and only "truly non-obvious" patents are granted-the patent system is still a horrible statist monopolistic drag on freedom and the market. PTO competence is utterly irrelevant. Thinking that it matters is just a byproduct of state education and statist thinking.

     

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  43.  
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    Anonymous Coward, Feb 29th, 2012 @ 11:07am

    Re: blame congress again

    It is useful that persons not familiar with USPTO financials understand that it is self-funded, i.e., it operates using funds collected from applicants. Unfortunately, the USPTO is not able to simply escrow the funds into an account. Instead, it must turn over all collected fees to the General Account, and over the years Congress has routinely and regularly taken substantial sums of of the collected fees for other uses, leaving the USPTO is a difficult financial position. In the most recent change to patent law a "promise" was made that whatever is collected and deposited in the General Account will not be diverted. Yeah...sure! This year the President's budget proposes to fully fund the USPTO. Will Congress go along and follow the President's lead? If history teaches anything, it is that "promises made" easily fall by the wayside. Hopefully, this will not be the case here, but who knows. At the present time, however, the USPTO has been authorized to spend significantly more funds than before, so perhaps it can finally begin to address many longstanding needs.

    As for "just issue...and let the courts sort it our later", while some personnel may have this inclination, they are clearly in the "silent monority" and are acting in direct contradiction to orders issued by Kappos. Additionally, no matter what many seem to believe is the case, examiners are bound by the obligation to apply 102, 103, and 112 with vigor. Now many say "They are obviously not doing this because look at all the 'bad stuff' that gets through." A problem with this line of thinking is their failure to appreciate that decisions are made within the USPTO on the basis of evidence, and not gut feelings.

     

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  44.  
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    Anonymous Coward, Feb 29th, 2012 @ 11:11am

    Re: blame congress again

    I neglected to mention that fees, which have been rising with great rapidity, are proposed to rise to stratospheric levels. I guess if they are raised high enough submittals by inventors will decrease accordingly.

     

    reply to this | link to this | view in thread ]

  45.  
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    Stephan Kinsella (profile), Feb 29th, 2012 @ 11:27am

    Re: Re: blame congress again

    Why should the PTO be able to keep all the fees it gets, from exercising the monopoly position the state gives it? Suppose it could charge so that it makes a trillion dollar profit each year. Should it just get to pocket the difference? Pay each employee $1M a year? the costs of the PTO have no connection to the amount of revenue it can extract from the economy. Basically it is a criminal wing of a criminal gang. THey are all extorting money from us.

     

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  46.  
    identicon
    Anonymous Coward, Feb 29th, 2012 @ 12:41pm

    Re: Re: Re: blame congress again

    At times it seems as if you would be just fine with the US Constitution comprising simply its Preamble, with, perhaps, a few choice quotes from the Declaration of Independence thrown in for good measure. It would sure save a lot of space on bookshelves that are now occupied by the US Code.

     

    reply to this | link to this | view in thread ]

  47.  
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    isaac Kotlicky (profile), Feb 29th, 2012 @ 1:07pm

    Here's an idea....

    A way to help balance the USPTO while *ahem* preserving it's business model: create an adversarial patent system.

    At present, individuals pay to file and refile and, once granted, hold the patent until it is challenged in court. Since, as has been pointed out several times before, their operating budget is predominantly (if not entirely) derived from their filing fees, the economic incentive is to encourage people to FILE AS MANY TIMES AS POSSIBLE - they make it difficult by rejecting patents, but only artificially so, as you can simply refile a modified patent with a new fee for reconsideration. After a rejection or two, they are likely to approve, since they don't want to DISCOURAGE you from filing at all - that would take away a revenue stream!

    What if they instituted the ability to file a counter "anti-patent" displaying prior art and obviousness? Such an system would essentially "crowd source" the entire patent approval process and shift the balance of their incentives. By allowing individuals to submit prior art and obviousness research for a small fee, they can streamline and speedup the entire patent review process (for both new and old patents), lower fees for filing while increasing their revenue, decrease their operating costs (thereby maximizing profits), AND present themselves as "open source, modern government" with maximum transparency!
    With this new system, to maximize profit, they must ensure as ROBUST AND PUBLIC DEBATE AS POSSIBLE.
    If people can present counter evidence to a patent, then the patent will be reject/'on-hold' by the "reviewer" until the patent seeker files their counter argument against said claim. If they can't, they've lost their bogus patent and no one is worse off (though they may be free to refile, and the process begins again, but with precident from the counter-patent filers...)
    "But wait!" (I hear you cry) "If they essentially crowdsource patent applications for us to do THEIR work, why do we need USPTO in the first place?!?"

    Patience, Grasshoper. For now, they still are needed to be arbiters of the evidence provided. But one day... One day...

     

    reply to this | link to this | view in thread ]

  48.  
    identicon
    6, Feb 29th, 2012 @ 4:43pm

    "Because of the manner in which patent cases make their way from the PTO to the Federal Circuit, the PTO has a decided institutional interest in granting more patents than it should. And because of this same interaction, the Federal Circuit is engaged in an unwitting expansion of the patentability rules. The key lies with the asymmetric nature of appeals from the PTO to the Federal Circuit. When the PTO denies a patent application, the aggrieved applicant may appeal to the Federal Circuit. When the PTO grants a patent, however, there is no losing party to appeal"

    This guy is just now figuring this out? Seriously? I have personally been noting it for half a decade. And I'm sure many thousands of people have noted it before me.

    Although, to be clear, this guy is off on a few key points. The CAFC is most certainly not "unwitting" in this process they're simply playing their part. And those on the court are well aware of the "expansive scope" of patenting that has occurred. Some of them are more glad than others.


    "But, in the end, the key point that set off this problem is the lack of anyone to push back on a granted patent (until such time as they're sued, in which case a different series of issues are being dealt with)."

    His key point should have been that the PTO itself has put in place procedures to stop mere examiners from stopping the issue of various patents. Specifically they do this by creating and enforcing "policies" that are not the law, but which they expect examiners to adhere to anyway. It is sickening. If you remind the people involved in this system that they are required to obey the law and not the "policy" they are simply flabbergasted and bluster on and on about how they think, but do not know (because usually they haven't bothered to read it in any depth), that the law supports the policy.

     

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  49.  
    identicon
    6, Feb 29th, 2012 @ 4:46pm

    Re: Lol, again.

    "patents on ... business methods back in the 19th century. Is that because of the Federal Circuit or because of the nature of invention?"

    The Federal Circuit.


    Although you are of course right that semiconductors etc are because of the nature of invention.

    Business method patents pretty much began because of the Federal Circuit. There were plenty of business method "innovationlols" prior to the widespread patenting of such.

     

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  50.  
    identicon
    Anonymous, Mar 1st, 2012 @ 4:26am

    Re: Re: Lol, again.

    Did you read the original post? And did you read my reply?

    This thread is about a relatively subtle point -- whether the structure of the appellate process guarantees an expansion of statutory subject matter because there's no "appellant" when a patent is granted for a new class of invention.

    Masur is wrong, of course, and should know better -- he clerked for Judge Patel and Patel has decided several cases declaring entire classes of patents unpatentable.

    I just can't stop laughing at some of the quotes from Masur's piece. Like how reading Masur's article is going to inspire the Federal Circuit to create "constraining precedent." LOLOLOL. And how the Queen of France will invite Jon to discuss patent policy over tea, 'cause he's just so damn insightful. ROTFL.

    You and all the other sheeple here want to discuss whether patents are baaaa-aaaaad. Usually with some brilliant argument like "Someone got a patent that didn't deserve it. We should dismantle the entire system. Patents are baaa-aaaad." I refuse to waste my time on that kind of idiocy.

    If you want me to reply, you can answer this question. Name one other field where that kind of argument isn't completely transparent bullshit. E.g.:

    "I received a parking ticket I didn't deserve. Now I won't drive to my job to innovate anymore. Parking tickets hinder innovation. We should dismantle the entire parking ticket system. Parking tickets are baaaa-aaaad."

    xoxo, Anonymous

     

    reply to this | link to this | view in thread ]

  51.  
    icon
    Al Bert (profile), Mar 1st, 2012 @ 5:53pm

    this is my rock

    Hopefully we'll be able to meet some great spacefaring goals before it's too late. Then we'll be able to travel to distant planets and patent all the stuff there too.

     

    reply to this | link to this | view in thread ]

  52.  
    identicon
    Anonymous Coward, Mar 3rd, 2012 @ 4:31am

    Re: Re: Re: Lol, again.

    All that just to post a straw man? That's all your post boils down to after all. You open with 'They're wrong because I said so' transition smoothly into mocking opinions while making no actual cogent points on the subject. Then right into the a straw man about how every argument here is 'patents are bad in general because some specific patents are bad.' Ironically you go on to say that you 'refuse to waste your time on that kind of idiocy' but then request that any reply make exactly that argument.

     

    reply to this | link to this | view in thread ]


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