Chief Judge Of Patent Court Compares Killing Bad Patents To Genocide

from the how-is-this-guy-in-charge-of-anything dept

Unfortunately, I have no link on this one, because someone sent me a copy of an article that is either not online or only behind a paywall somewhere, but at a recent AIPLA (American Intellectual Property Law Assocation) meeting, Judge Randall Rader, the chief judge of the Court of Appeals for the Federal Circuit (CAFC), which handles all patent appeals, apparently complained about “vague language” in the most recent update to patent law, the America Invents Act, to have the US Patent Office’s (USPTO) Patent and Trademark Appeal Board (PTAB) review more patents to dump bad ones. The recently proposed patent reform bill from Rep. Bob Goodlatte would expand this program. Now, anyone who recognizes the importance of getting rid of bad patents, knowing how bad patents can make the overall problem worse, should support this. But, not Judge Randall Rader. He compares it to genocide.

On one side of the PTO, he said, “You have 7,000 people giving birth to [intellectual] property rights,” while in the PTAB, there will soon be as many as 300 administrative patent judges “acting as death squads, killing property rights.”

I’m almost at a loss for words to describe just how painfully clueless this is. Frankly, a statement like this should disqualify someone from having anything to do with patents whatsoever. The purpose of patents is not to create “property rights.” That is not the end goal at all. Rather it’s to promote the progress by disseminating information. As a part of that, inventors are supposed to be given a limited amount of exclusivity, but only on things that are new and non-obvious to those skilled in the art, and only such that it creates the incentive to create that invention.

Arguing that the goal is to create property rights is just wrong. If that were the goal, we’d hand out many more property rights just for the hell of it. Why not create property rights on air? We could create so many damn property rights and, under Judge Rader’s system, this would all be good. I’d get to toll him every time he wanted to breathe, but that’s good because “property rights.” Back here in the real world, we understand that property rights, by themselves, are not a be all, end all, but a means to an end: property rights are an incredibly important tool for creating efficient transactions and markets. But not everything needs efficient transactions and markets, and when property rights are poorly defined or are setup in places where they’re not needed they can have a massive hindering effect on efficiency, markets and innovation.

That’s the very problem that so many people (though apparently not Judge Rader) are concerned about with all of these bad patents. We should be happy to get rid of them, and not because it’s “killing property rights,” but because they’re getting rid of economic inefficiencies that hold back innovation and progress.

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Comments on “Chief Judge Of Patent Court Compares Killing Bad Patents To Genocide”

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out_of_the_blue says:

"economic inefficiencies" are easily removed by taxing the hell out of The Rich.

By obvious linkage, “inefficiency” here must mean accumulating money without accompanying merit, and that’s the definition of The Rich.

So what you actually want, Mike, is a return to the original limits of Income Tax where it only affected the upper 1%, unearned income, NOT wages. If only you could think without the clutter from your college McEducation.

The solution for most societal ills is HIGH INCOME TAX RATES. — WAGES should not be taxed at all! Income originally meant unearned income.


Gwiz (profile) says:

Re: "economic inefficiencies" are easily removed by taxing the hell out of The Rich.

“economic inefficiencies” are easily removed by taxing the hell out of The Rich.

Are you ever going to answer my questions concerning the specifics of your “tax the hell out of the rich” notion?

Or will you keep on yelling your rallying cries that lack any substance?

Anonymous Coward says:

Re: Re: "economic inefficiencies" are easily removed by taxing the hell out of The Rich.

My favorite part is how even without substance he can’t take a consistent stance. “Accumulating money without accompanying merit” is bad unless it’s the government doing it in which case it’s “the solution for most societal ills.”

Pragmatic says:

Re: Re:

Might I suggest that you provide us with the benefit of yours, AC? You’re like that guy in “Thank You For Smoking” who takes down a kid in class by telling him that his mother is not a doctor, so her views on the dangers of smoking don’t count.

Hell, man, we can READ, and the Constitutional take on patents is found in

Article One, Section 8(8) of the U.S. Constitution which states:
The Congress shall have power … To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries;

How much expertise is required to understand that?

Case law and precedents do NOT trump the Constitution, whatever maximalists have to say about it.

Anonymous Coward says:

Re: Re: Re:

Perhaps you should undertake the initiative to study Judge Rader’s CV, and then come back when you have some relevant information to discuss other than quoting a section of the Constitution, Article 1., Section 8, Clause 8, your apparently being unfamiliar with the jurisprudence of over 200 years that has discussed in detail its metes and bounds.

murgatroyd (profile) says:

Bloomberg BNA

The “7,000 people giving birth” quote appears in an article at Bloomberg BNA dated October 29, at That article, in turn, seems to point to something called “Patent, Trademark & Copyright Law Daily(tm)”, which appears to be a for-pay e-service of Bloomberg BNA.

Anonymous Coward says:

Re: Bloomberg BNA

Why wouldn’t he read that. Warped and completely lost from the world as it is, it is still defending his livelyhood as a judge specialized in IPR-law.

Reality and connected tubes, be darned. This is where he makes his money: Accepting or discarding patents doesn’t matter. The more uncertainty on the IPR-laws, the better job-security for sir Raider.

That Anonymous Coward (profile) says:

And no one was surprised.
When the people in charge are nothing more than extensions of what corporations want, the system is broken.

IP is not some great magicly money making thing, it creates money by taking it from people who actually work on making things rather than slapping on the internet onto basic ideas and sitting in wait to extract cash from those who try to innovate.

John Nagle (profile) says:

Yes, patents are property.

Yes, patents create property rights. That’s settled law. “A patent for an invention is as much property as a patent for land. The right rests on the same foundation, and is surrounded and protected by the same sanctions.” – Consolidated Fruit-Jar Co v. Wright, United States Supreme Court, 94 U.S. 92 (1876)

But that’s just rhetoric. The judge has some important points about the America Invents Act. The America Invents Act (2011) restricted “Covered Business Method” patents, which were defined as relating to financial business methods. Goodlatte’s “Innovation Act” seeks to broaden that, but ambiguously. Which means years of litigation over what a “business method” is. That’s not good for anybody.

HR 3309 is really an “Anti-Innovation Act”, designed to make it more expensive for inventors to enforce their patents by making litigation more expensive and complex. HR 3309, like the previous “SHIELD Act”, is supposed to stop “patent trolls”. But it’s much broader. It makes “loser pays winner’s legal costs” the standard. For a small entity to sue a big company with expensive lawyers becomes financial suicide. The SHIELD act had something similar, but it exempted the original patent holder, someone manufacturing the invention, and universities. HR 3309 doesn’t do any of that. It allows big infringers to crush small companies and inventors beneath their boots.

Who’s behind this? The American Association of Advertising Agencies and the Direct Marketing Association (the junk-mail lobby). There are four patents related to targeted advertising which cause advertising agencies problems. To get rid of those patents, the advertising industry has convinced other ad-supported companies to support a huge change in patent law.

The A4s (what the American Association of Advertising Agencies calls itself) has a list on their web site of patents they are concerned about:

6,628,314 and 6,771,290 (relates to targeted advertising),
5,251,294 (“Accessing, assembling, and using bodies of information” – rather vague),
5,930,474 (store locators)

That’s the source of the push behind this bill. Other companies have signed on, but the ones behind it are all involved heavily in online and mobile advertising.

This bill isn’t about “bad patents”. There’s nothing in this bill about increasing patent quality by raising the “obviousness” bar. That’s because of opposition from the pharmaceutical industry, where many drugs are “me-too” drugs, very similar to existing drugs. (Ref: As the A4s wrote in their letter to the FTC (

“What seems like a bizarre and wasteful tactic in the high-tech industry can be a basic good practice in the pharmaceutical industry.”

That’s part of why we have a “bad patent” problem. Nobody wants to take on Big Pharma.

As for the “patent troll” industry, it’s a recent phenomenon. But why? Patents have been around for centuries, after all. Patent trolls exist because, in the last decade, it’s become much tougher for inventors to enforce patent rights. Four changes in law did this:

(2006) “eBay v. MercExchange ” The patent holder can’t get an injunction against infringement any more, except in extreme cases. This destroyed the concept of a patent as property that only the patent holder could use.

(2007) “In re Seagate” The patent holder can’t get triple damages unless there is “reckless infringement”, which means the worst that can happen to an infringer is that they have to pay a royalty, the same royalty they might have negotiated. So infringement by a big company is risk-free.

(2007) MedImmune, Inc. v. Genentech, Inc. If a patent holder writes to an infringer asking them to pay royalties, they can be sued for a judgement that the patent is invalid, in a court of the infringer’s choosing. So, as a patent holder, you have to file suit before you can negotiate. This is why “patent trolling” became necessary.

(2011) The “America Invents Act” The AIA added “post-grant opposition” proceedings, so now infringers can harass patent owners and stall infringement claims in multiple forums. Note that one of the “features” of HR 3309 is to limit estoppel so that similar issues can be raised once in a post-grant opposition and then re-raised in an infringement case. This makes it clear it’s all about raising the cost of enforcing a patent by wearing down the patent holder.

Because of those changes, enforcing a single patent is no longer financially feasible in most cases. A big patent portfolio is needed. You either have to be a big patent holder like IBM or Google, or you have to deal with a company that aggregates patents to monetize them.

So that’s why we have “patent trolls”. The harder it becomes for inventors to enforce their own patents, the more we’ll see companies that do nothing but litigate.

HR 3309 is a bad bill. Many people and organizations saw the words “patent troll” and signed on to support it. The A4s pushed hard for that – advertising agencies are good at getting people to buy things without checking them out. Now that there’s been a chance to take a close look at the bill, it’s not looking so good. David Kappos, the head of the USPTO until a few months ago, testified that it’s a drastic change to the patent system that needs to be examined more closely. Cong. John Conyers, the senior Democrat on the House committee looking at this bill, urges caution. (Goodlatte (R-VA) introduced this bill without telling the Democrats on the committee.)

Patents should be hard to get, but easy to enforce. This bill doesn’t do that. What we really need is cheaper patent litigation for small patent cases. The USPTO has proposed a “small claims” patent court which would help. More on that later.

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