Its been a few years since I’ve blogged, mostly because (as I’m sure it is for others) work has been overwhelming.
Recently I’ve been able to take a bit of a reprieve and wanted to put down some thoughts on the veritable mess developing in the § 101 patent jurisprudence in this country. A few high level observations I propose after considering the developments of the past 3 years since the Alice decision:
- The SCOTUS has made no effort to clarify or improve its explanation of the abominable “abstract idea” logic it applied in the Alice opinion;
- District Courts, emboldened by the vague and unbounded “no evidence no logic” required rationale of Alice proceeded to butcher as many patent cases as they could to shamelessly clear out their dockets of proceedings and litigants (particularly NPEs) they didn’t like;
- The bulk (but not all) of the CAFC judges, cowed by another SCOTUS’ scolding, abdicated their historic role as the authority on IP matters and now readily rubber stamp these intellectual charades from lazy D Ct Judges; a few not-so-secret “rebels” who remember their original mission occasionally throw a bone to the pro-patent crowd with opinions of limited utility because they are narrowly drawn, designated non-precedential, and are gerrymandered into irrelevance by later panels;
While I have plenty to say about these points, there are a number of outstanding commentators out there – Dennis Crouch at PatentlyO, Gene Quinn and crew at IP Watchdog, and Robert Sachs at Bilski Blog who cover these areas fairly well. In a good week, we get 3-4 meaningful decisions that we parse through the § 101 “Enigma” machine to see if we can finally glean what secret code the Courts are using to process these cases, only to realize that the result is almost always completely arbitrary.
But there is a far more serious problem going on though that is not being highlighted in the IP news: namely, the recent (more on “when” later) growing decimation of inventor applications under § 101 at the Patent&Trademark Trial Appeals Board (PTAB) based on some of the shoddiest “results oriented” jurisprudence regurgitated in decades. I believe this PTO development is far more threatening to inventor rights, because it is rotting patent rights from the ground up, and the sheer numbers of cases is much larger. Unbelievably this massacre is going almost entirely unrecognized because the PTAB’s decisions are not well publicized or compiled for review or scrutiny. This PTAB mess is also not widely discussed because most practitioners fear being singled out for PTO retaliation, or worse, jeopardizing their client’s interests.
From first hand observation and experience over the past few years it is apparent to me that the PTO has chosen to interpret the Alice decision in the most perverse Kafkaesque way possible, not to “improve” patents, but, rather, to cut down on its backlog of cases in the most convenient fashion possible. The “guidelines” are heavily skewed with examples and logic that favor 101 rejections, and barely acknowledge eligible areas. When a claim is shown to be within the guidelines, Examiners routinely argue that such strictures can be ignored.
Hence, what have now is an Examiner review system where inventions are not considered for their merits, but rather on the basis of whether they can somehow be imaginatively given an “abstract idea” label, and disposed of summarily that way. And the PTAB, as final arbiters in this new rigged system, have fully embraced this directive and feel empowered to write ridiculous opinions they know (because of the high cost of appeals) will likely never see the light of day at the CAFC, and even if they do, will most likely be met with a collective yawn by some of the current cast of usurpers. That’s why the most recent viral plague is PTO personnel inventing §101 rejections based on nothing more than random musing and speculation – no facts, evidence or logic required!
Recent PTAB decisions reveal just how transparent the new regime is in effectuating their agenda: in appeals, Examiners are routinely reversed on all the “hard” issues involving real proof, analysis of claims/references, etc. (like §102, §103, §112), which tells you everything about the quality of the thought that went into these rejections. But never fear these same Examiners are rewarded with affirmations on any new rejections they can dredge up under §101, irrespective of how lacking, inadequate or incorrect the reasoning may be. And if its not there, don’t worry Mr./Ms Examiner, the PTAB will make it up for you!
As a typical example, I offer Ex parte Baran et al., Appeal 2016-007695 Application 13/585,383; RPI is Disney (no, they are not a client) where the claims dealt with 3-D modeling in which one or more processors divide up a 3-D object until it fits within a particular volume. The PTAB reversed the Examiner on all material points (including a rejection on prior art based on §103) but then felt compelled to add its own “new” gratuitous rejection under §101.
Anticipating that the Applicants would (rightfully) point out that 3-D modeling is mostly a computer related endeavor to fall within the CAFC approved DDR safe harbor, the PTAB wistfully remarked:
Here, we cannot say that either the problem or the solution is rooted in computers. For example, the same problem of how to divide a 3D object would be faced by a human chef deciding how to cut leftover brisket or ham to fit into smaller storage containers. Likewise, the solution to keep cutting until all pieces are small enough to fit applies equally to the human chef. Thus, whether in the kitchen or a 3D printer, how to divide a large object to fit into smaller volumes is not specific to computers…
Yes folks, that’s what we are facing today: if the PTAB can envision some hypothetical human analog that’s remotely close to what you are doing in the realm of computers, they can “abstract” you into §101 oblivion. And trust me when I tell you, this is not the worst of the bunch to be published recently, there are other more transparent result oriented decisions with even more far fetched analogies. As a few more examples I offer you Ex parte Flockhart et al. (Avaya), Ex parte Hafer et al. (Western Union) and Ex parte Qi, all of which have very ugly endings for seekers of patent rights.
One could wonder why the PTO, the main institution for securing rights for inventors, has become so biased? There are two simple answers, one of which is to simply realize that the PTO has long been under the direction and control of ex-employees of large anti-IP companies like Google, entities who have already achieved monopolies in their fields, and don’t want competition. The other is an antiquated understanding of IP “quality” at the PTO that rewards case disposition counts irrespective of the merits of a rejection, and favors reducing backlog and latency over all other factors.
This is why torturing the Alice logic is such an attractive option for Examiners to reduce their short term backlog. What did they not count on, but which is certainly now just coming into plain view, is the significant reduction in patent filings by high tech companies no longer interested in being subjected to random, costly, time consuming prosecution. Congratulations PTO management, in your zealousness to reduce backlog using Alice as “patent application DDT” you succeeded beyond your wildest dreams and won’t even have to worry about that factor at all in a few years!
In later posts I will further quantify and explain the recent PTAB patent rights destruction to give a better sense of who is doing it, and how. Also, I will trace back the jurisprudence and discuss “case 0” (from 2016) and show how it is mutated and spread like wildfire through the PTAB judge’s ranks and infected dozens of opinions since then. Since the CAFC has not had a chance to review any of these atrocities, I predict the arbitrary rulings will continue unabated.
I am sounding the alarm now, because anyone writing an appeal brief needs to understand the ways in which they are rigging the game.
Posted on June 3, 2014
Recently I was asked by someone I respect and consider on the “other side” of the patent debate about why it was that I did not support the patent “reform” bill that recently was tabled. Its very simple: it is not intended to “reform” anything – it is a transparent attempt to weaken small inventor rights at the expense of big companies. Furthermore, it ignores the main culprits responsible for the mess they purport exists right now.
Real patent reform would balance the interests of both sides in the IP debate, instead of being a blatant property-grab by large corporate infringers. Moreover anyone with an ounce of sense and history in this business knows the proposals are ineffective and do not address the real problem – namely that the current system (designed almost exclusively by patent infringers mind you) makes litigation not a weapon of last resort, but, rather, the first volley in any discussion of IP rights.
Yet all of this could be fixed rather easily as I explain below. It will just require that the politicians of this country stop kow-towing to the interests of large entrenched law firms sucking down huge fees in patent disputes.
WHAT IS THE REAL PROBLEM?
Consider the main theme being trumpeted by the anti-patent crowd:
- there are too many patent lawsuits
- lawsuits are expensive
- even the “threat” of lawsuits presented in demand letters hurts small businesses
Ergo, their conclusion is, we need to make it much harder for patent owners to enforce their patents and bring lawsuits. The problem with this logic is that it only looks at half the problem, namely, the behavior of patent owners, and ignores the role of patent infringers.
For the moment, let’s assume all these statements are correct (although objective data shows that #1 is not a valid assumption). Let’s look at them in reverse order:
For #3: I have already proposed a solution, here, that would neuter any threat to small businesses. A moratorium on enforcement against small businesses that opt in to an open patent licensing system would shelter these entities from potential harm.
For #2: patent lawsuits are expensive, but 90% of that “cost” is driven by what can only be reasonably described as “marginal to crazy” defense counsel tactics in litigation. Big defense litigators love patent cases, because the number of defenses and procedural tactics available to infringers is huge compared to other causes of action, and many companies have embraced the “scorched earth” policy of patent litigation because they think it will “send a message” to patent owners not to go after them. Try reading an Answer to a patent complaint sometime, and you will see what I mean.
There are *11* separate defenses argued, without any clue about whether any of them make any sense or not.
And this doesn’t cover the gamut of procedural nonsense one sees even before one sees an Answer on the merits from a patent infringer. In one typical case there were dozens of papers filed (and likely more than $100k of dollars spent) by defense attorneys over the course of several months all on the frivolous and slim hope that the defendants would *somehow* prove the plaintiff did not have the rights to enforce the patent. This was argued, despite the fact that there was a clear agreement to transfer all rights to the patent for exactly such purpose. Needless to say, the Judge took all of 6-7 pages to summarily dispose of this nonsensical defense.
Again, none of these procedural games have anything to do with the merits of the case. They are simply scorched earth tactics by large firms trying to intimidate and overwhelm smaller opponents.
In conclusion the problem of patent litigation being “expensive” is mostly a self-fulfilling prophecy, because companies can’t resist the urge to try one more time at a “homerun” to kill a case. Defense counsel encourage the practice, as it keeps them “in practice.”
HOW DID WE GET INTO THIS MESS?
Which brings me now to point #1: too much patent litigation. This complaint is raised all the time by patent infringers, but the reality is that the litigation “explosion” they complain about is almost entirely ….their own doing. Yet despite their own involvement which brought about the current chaos, there is a relatively easy “fix” to cut down substantially on excess patent lawsuits which I will explain below that is fair and does not prejudice either side (except perhaps for …litigation defense counsel who will have less work).
Consider the patent licensing – enforcement world in 2007. It was …unusual for a patent owner to sue an infringer out of the blue, with no warning. Rather, the patent owner and infringer engaged in a meaningful, productive out-of-court dialogue through an exchange of detailed informative letters and face to face meetings to understand the scope of the patents, the accused products, etc. This was true whether the company practiced the patent, or was simply an NPE (non-practicing entity).
In fact that was one of my many main functions as an IP attorney for a number of large firms, helping out dozens of companies over the course of more than 25 years in these types of dialogues. Sometimes I was on the side of the patent owner, and sometimes on the side of the accused patent infringer, so I am well experienced in both ideologies and interests.
In this environment, companies traded information back and forth, and typically had a long, ongoing dialog until a license was taken, or ONLY in the worst case scenario, a lawsuit ensued because of a complete impasse. This latter occurrence was rare, however, because over time each side had an opportunity to absorb and understand the other side’s perspective and a compromise was reached. That’s not to say that there weren’t unreasonable patent owners and unreasonable infringers that didn’t clog up the system – just that there were far fewer of them because there was a robust and well established mechanism OUTSIDE the courts that allowed them to have a peaceful dialogue.
The whole process typically involved patent licensing attorneys, inhouse counsel and some business folks. Litigation counsel and their expensive rates rarely entered the picture.
Why has this practice changed you may ask?
Very simply, the current mess is a direct result of another poorly thought out SCOTUS decision known in our industry as Medimmune. In this decision the SCOTUS reversed 25 years of prior patent precedent that imposed a requirement that the party being asked to license first establish a “reasonable apprehension” of being sued by the patent owner before barreling into Court and demanding that a Judge get involved. In other words, pre-2007 patent infringers knew that they could not start a lawsuit and clog up the Courts just because a patent owner sent them a letter asking them (usually politely) to take a license.
All of that changed though in the Medimmune decision, and the subsequent Sandisk ruling that followed immediately after. In response to the SCOTUS opinion, the CAFC appellate court imposed a new, very liberal standard that pretty much made it possible to start a lawsuit ….any time a patent owner mentioned any particular patent to covering any particular product to any particular defendant.
As one commentator presciently noted:
“….Further, and as noted by the concurring opinion in SanDisk, the new rule expanding a suspected infringer’s litigation rights will undoubtedly place the patent holder in an unenviable position of choosing between enforcing its patent or being sued. That is, there is no reason to believe that a suspected infringer cannot turn the new SanDisk rule to its advantage by asking a patentee if it believes that the patent covers the suspect’s conduct. Once this question is asked, the patentee is between a rock and a hard place. If the patentee answers no, then this response is an admission against its own interest that can be used against it by the suspected infringer if the patentee ever elects to sue in the future. If the patentee answers yes, then the suspect’s right to sue immediately is likely triggered.“
As such, SanDisk effectively invites any potential infringer of a patented invention to pick a fight with the patentee.
The results were of this were inevitable, and included several dramatically counterproductive effects:
- It now became open season for patent litigation because the standards for initiating cases dropped dramatically, thus making the Courts the forum of first choice, rather than last resort;
- all civilized and productive dialogue that used to occur pre-filing between rational people was extinguished, as there was no point in talking when one side could go running off to Court at the drop of a hat;
- patent owners stopped sending friendly license invitation letters to infringers, and instead adopted a “sue first, negotiate later” business model to avoid being sued themselves in some faraway obscure jurisdiction;
- patent “licensing” dialogue now occurs only in sporadic court-enforced mediation procedures that are extremely expensive and too limited for meaningful dialogue.
Needless to say, patent litigation defense counsel everywhere rejoiced, because now they were no longer marginalized in the patent “enforcement” business. Patent licensing – enforcement went from being a broad based multidisciplinary engagement to a 1-dimensional litigation centric model, where the large law firms sucked up more and more of this lucrative “expensive” business. The problem now is, the large firms were so successful in destroying the prior ecosystem that their clients face TOO MUCH litigation, because that is the only habitat – option available for small patent owners to get fair compensation for their inventions.
The other side effects of this destruction of the prior model took a bit longer to develop, but they are certainly there, and one of the main losers are companies that both sell products and have patents. This has not been addressed by the media or the well paid corporate pundits, because it does not fit their anti-patent agenda. These hybrid patent/product entities were significantly impacted by the change in the law, because now they knew that sending a licensing letter to a competitor almost invariably meant a counter lawsuit. No inhouse counsel on the planet wants the blame for an expensive lawsuit brought on the company because of a careless request for licensing letter. As a practical matter this means that the current climate has the perverse effect of penalizing these companies. Their IP assets are far less useful because there is no domain where they can be monetized effectively outside the litigation arena.
In contrast, NPEs have no product line to protect, so they are not impeded by the same considerations. This is another significant reason why the “mix” of patent cases – or the ratio of practicing/non-practicing entity enforcers is steadily decreasing. The current environment distorts the available models to the point where litigation is mostly attractive for NPEs, and few others.
The other casualty in all of this is… transparency. In days past it was known who owned want, and what products/services were being targeted, because there were notice letters sent to companies providing them this information. This information was freely exchanged between companies. This practice is rare nowadays, precisely because of the Medimmune/Sandisk rulings: no patent owner is going to give “notice” anymore and put themselves at a disadvantage.
This fact too demonstrates why the current state capital efforts to stop “abusive patent troll” letters is even more fool hardy and short sighted. There is already too little information on patents as it is because of the current climate, and these further attempts to criminalize sending notice letters will simply make it vanish altogether. We will then have a perfectly information-free patent environment by which companies only become aware of patents for the first time when they are sued.
It is clear that the people in charge of writing these laws have no concept of what they are doing, or the potential ramifications.
WHAT CAN BE DONE?
It is easy to see, therefore, how all of this could be remedied very simply by Congress, IF they truly are interested in patent “reform,” for all, and not just for the purpose of protecting big companies. The prior standard requiring a “reasonable apprehension of a lawsuit” could be revisited, tweaked and codified as part of 28 USC §2201 – 2202 to specifically cover patent suits. This would remove the current incentives on both sides to file unnecessary lawsuits, would un-clog the courts, reestablish more transparent markets for patents, and reduce the costs of litigation.
By no means am I saying the prior scheme was perfect, but it enabled an environment, market and model by which disputes were mostly heard outside of the Court. Returning some sanity to the DJ standard would also immediately start the return of the patent universe back to what it was before, a rational market where information was exchanged freely about patents.
Of course the expensive highly paid patent litigation counsel may be unhappy, because there would be a lot fewer lawsuits. Plaintiff contingency counsel would see fewer $$ as well. But if the Republicans and Democrats of this country want to prove that they are good custodians and protectors of ownership rights, and not beholden to “trial counsel” interests, perhaps they will give this proposal a serious look.
Posted on April 2, 2014
The battle lines are being drawn in Congress, and I knew it would not take Democrat Sen. Schumer (NY) very long to reveal his true “interests” in the recent debates, and what his real agenda in his patent (d)eform bill: destroy small inventor patents. This is essential to make sure his real constituency (large corporate infringers) never needs to pay a dime for their patent thefts.
The good Senator didn’t take more than 2 minutes in his streaming interview to highlight the “kinds” of patent rights he thinks are worth protecting: BIG BUSINESS ONLY
“….people have great ideas and they should be rewarded for it, and that’s worked very well over the years in industries that have required a whole of research and development pharmaceuticals but when it comes to business method patents and many other (inaudible) patents they can be very easily ripped off and abused by patent trolls“
Ah yes, in Sen. Schumer’s patent dystopia, “people” (inventors) are deserving of patents, so long of course as they work for a large expensive, well stocked pharmaceutical company lab. Ergo, only large pharma companies and similar entities wearing lab coats and tinkering with expensive drugs (you know, the kind the little guy pays a fortune for at the hospital) are worthy of patent protection.
This is an incredibly elitist, undemocratic perspective. I find it amazing that in Sen. Schumer’s fiefdom small business owner/inventors who invest their own hard earned money to make an “internet” business work, and try to get patents to protect it, are somehow less worthy of patents than large companies investing someone else’s money. These folks are taking just a big a risk – or bigger – than any “pharma” company. Just look at Mr. Logan of Personal Audio, which I wrote about last week: this fellow invested millions of his own money, built a prototype, but he’s being demonized and smeared by the Sen. Schumers of the world for daring to ask that the current patent squatters pay him a fair return.
The fact that the Internet and modern computing/programming technology has leveled the playing field and made the cost of an e-commerce “R&D” lab accessible and inexpensive for the small inventor to innovate should be celebrated not castigated, or denigrated. Does intelligent design, experimentation, testing, etc., only have value when done with a bunsen burner and beaker full of chemicals? More anti-small inventor elitist nonsense. The founding fathers intentionally made the patent system open to ALL, not just large business interests, so that all could participate, invent and profit – not just some protected class of businesses that can afford the best lobbyists money can buy.
Of course Sen. Schumer is clever enough to know that wagging the tail and pandering quite so obviously to large entrenched interests would not fly well with the real constituents (i.e., the little folk who actually vote) so he has to segway key soundbites whenever he can to still show them that all of this is really for THEIR benefit. He’s just another faithful servant, trying to protect small businesses:
“As the Senate gets even closer this week to considering patent reform legislation, hearing stories from companies like Union Square Ventures, Etsy, AOL, Foursquare and others about the real economic toll patent trolls are taking becomes even more important…When it comes to making sure American businesses – especially small businesses – can thrive and grow, patent reform is one of the most important things we in Congress can do.”
Thus once again Sen. Schumer shows his concern is really about those the “small businesses” like… Union Square Ventures ($650 million in assets), Etsy.com ($500 million in annual revenues), Foursquare ($600 million dollar valuation) and of course AOL (>$2billion in annual revenues). Yes, it would be a crying shame if any of those poor little rich kids had to pay for some technology …invented by someone else.
“Small businesses”? I doubt any “small entrepreneur” could make it past Sen. Schumer’s doorman to talk to him about their interests. And from what we read, he’d need a high powered telescope in his ivory tower to see a small inventor worthy of a patent.
In closing, it should be remembered that this is hardly the first time Sen. Schumer has revealed his true “interest” in “reforming” the patent laws: helping his large well funded corporate constituents avoid infringement. In fact in 2011 he went so far as to unabashedly engineer and push through Congress his own very special and personal “get out of jail free card” exemption for that other “underprivileged” special interest group in America: FAT CAT BANKS. The good senator made sure his own protected class never had to pay a penny for their unlawful use of someone else’s invention:
“…Yet again, the banking industry would rather lobby politicians than have to pay for infringing the patents of DataTreasury, Claudio Ballard’s company that created the now ubiquitous process of imaging checks.”
Do I say Sen. Schumer is protecting the 1%? No, more like the .0001% of large bankers and similarly elitist business owners who find it much easier to do business and “innovate” when their progress is not impeded by small things like having to pay for other’s inventions, like Mr. Claudio Ballard’s.
As he has proven before, and is demonstrating now, Sen. Schumer’s idea of patent “reform” is to make the law so that it insulates the large, well financed, well entrenched interests in this country. I encourage everyone to see through the smear campaign and stop these anti small inventor patent squatters.
Epilog: At 1:30 of the interview Sen. Schumer lets loose with another ripping yarn, telling his fawning patrons that the patent trolls have “garnered” an astonishing TRILLION dollars in the past …20 years from American businesses. Yup, those pesky “trolls” have magically siphoned an entire years worth of GDP money from corporate tills and have stashed it all in a bunch of Fantasyland mattresses apparently. I can’t tell if his reading comprehension or math skills went AWOL since, of course, like every other small inventor patent-basher nowadays, he wasn’t exactly big on sources or analysis. But it goes to show that in the current debate about “reform” the anti-patent crowd is willing to invent any lie necessary to advance their cause.
Posted on April 1, 2014
A thank you shout out to Rep. Massie today of KY, telling it the way it is!
Just finished reading Prof. Robin Feldman’s guest “hit” piece in the NY Times and it makes me embarrassed to admit that I actually applied to UC Hastings at one time to go to lawschool there. Boy am I glad I skipped that association.
Of course Professor Feldman first regales us with her credentials in software technology before going on her anti-software tirade to establish why we should be listening to anything she writes. Or, maybe…. not, as she appears to have zero experience in anything remotely related to software or even computers as evidenced by her CV here.
In fact, her main claim to fame and occupation seems to be writing …negative anti-patent articles. Why is this? Well, there’s a big market in this for reasons I explained the other day: calling patent owners and inventors names like “patent trolls” is the new PR smear campaign to shield the bad acts of large corporate serial infringers.
But let’s take a look at her article arguments so we don’t just dismiss her analysis simply because she is spectacularly unqualified to ponder the merits of anything technical in this domain, or even prosecution of patents in general. No, to truly appreciate the level of fact-free analysis you have to review her conclusory comments like these:
“….the software patent system has operated by its own rules. Compared with patents for other innovations, those for software are granted using a very broad and lax standard of invention.”
I don’t know what country Prof. Feldman practices patent law in where it SO easy to get software patents granted. Wait a minute, I just remembered, SHE ALSO HAS NO PATENT REGISTRATION so of course she can’t ACTUALLY practice. Those who KNOW – as in the people who actually prosecute patents with the PTO (as opposed to ivory tower folk like Prof. Feldman who “write” about it and sit on panels with other similarly clueless pundits) – understand that the PTO standards are in fact more rigorous for software patents than almost any other kind of technology.
As real data shows, there are entire art groups in the PTO known – from those with direct experience and real statistics – to reject more than 90% of patents in guess what: SOFTWARE. Patentcore’s excellent Examiner data (from Christopher Holt) proves this out clearly to anyone who wants to know the truth, as opposed to the anti-patent, fact-free propaganda we get from “scholars” like Prof. Feldman. In fact during the “reign of Dudas” the PTO valiantly tried to kill every software and business method patent application in utero with something it called “second eyes review” – a fancy moniker “invented” by similarly minded anti-patent folks who just couldn’t stand the thought of someone “innovating” in a way that might interfere with big business in the Internet space. This uniquely unfair practice – to a select group of inventors who happened to be in this field of art – was roundly criticized for years, and successor Director Kappos wisely got rid of it.
As perfect examples of the over-the-top rigorous examination given to software or business method patents, I offer Exhibit A in the ongoing fiasco I’ve experienced in the PTO, where it took them more than 9 years of examination to admit they rejected my case improperly. Or how about this one, where it took me almost 5 years to get the PTO to acknowledge that the term “and/or” used in my computer related patent application was well understood in the computer arts, even if certain Examiners and learned Professors don’t quite… get it.
Thus the unsupported, alarmist propaganda that there is somehow “lax” examination is completely unsupported of course. The PTO is more hard-nosed about these cases than any others on their docket. Prof. Feldman presents ZERO in the way of hard evidence to support her wild suppositions. Prof. Feldman commits gaffe after gaffe because – IMO – she has no practical real world experience actually trying to get “patents granted” as she writes about.
Later in her article of course she goes on to regurgitate the typical evil “troll” pablum taken from the authorized anti-patent playbook, which as I discussed the other day is just more… nonsense. No one “prevents” her clients from doing anything – they are free to stop using the technology if they don’t want to pay.
Halfway through her piece she ventures further into bizaarro land, stating (according to her learned experience no doubt) that in her opinion the Courts have a “… simple misunderstanding about the nature of computer code.”
Ah yes, the pundit who has apparently never taken a computer programming class, or held a programming position in her life, is lecturing the Courts about their lack of understanding of computer code. By her rationale the problem is that the Courts are terribly misguided because they have:
“…blessed an approach to software patenting that merely described, in simple English prose, what the invention did. Thus did we end up with our dysfunctional arrangement.”
The only “dysfunctional” thing in the article is Prof. Feldman’s logic. Software patents often are expressed as a method of operation (i.e., what the invention DOES) of a machine which, if she happened to read 35 USC 101 recently, is precisely what the statute is supposed to cover. The statute makes no mention of not protecting methods simply on the basis that it is too successful: i.e., there is a large universe of machines that can implement the invention.
And, in case it was also not apparent to Prof. Feldman, patent claims have been written in “simple English prose” since the dawn of our patent system. Her admission that the prose is indeed “simple” to understand further belies her related complaints in other anti-patent musings that somehow all these software inventions are anathema because they are …. too hard to figure out.
Finally Prof. Feldman predicably proposes “fixing” the current problem by:
“…asking whether the patent is appropriately aimed at a specific commercial application rather than a broad concept.”
Here Prof. Feldman reveals her true colors, as she unabashedly promotes the large company, serial infringer talking point: all those patents are just too INCONVENIENT because they cover what these companies are doing. How much “simpler” it would be if instead the inventor was artificially “limited” to a SPECIFIC application!
So let’s take a visit to Prof. Feldman’s wonderful world of semi-useless software patents to see how her plan plays out. Imagine her inventor colleague Professor X comes up with a new algorithm for detecting if someone is cognitively and motor skill impaired, using a combination of images, quiz questions, speech recognition, mouse movements, and response time. His main application is for assessing drunk drivers before they get in their cars. He then “codes” the program in the C++ language on his PC. He files for a patent on this idea in say, 1990, when smartphones are non-existent, and car “computers” consist mostly of fancy LED lights telling you if your gas is low.” After wrestling with the PTO for several years the good Professor X gets his patent in say, 1998, which, for purposes of this discussion we will assume qualified under the old rule, so he gets protection until 2015. But that’s the extent of his commercialization b/c the good Professor, like a lot of folks, isn’t independently wealthy, doesn’t work for Google, and isn’t one of those young scrubbed faced kids who can get easy access to big VC cash.
In fact he pitched the idea to install some PCs in a few bars but the cost was too prohibitive given the economic realities of the time. In 2009 smartphones are ubiquitous and car computers now are like something from Star Trek. Now imagine a bunch of Prof. Feldman’s clients in the big corporate technology world want to “innovate” by making a phone app, or an in-car application, that imitates exactly what Prof. X invented 19 years before. That is, they want to have a computing machine that is programmed to detect human impairments, such as whether the person is drunk or (if we are in Colorado) “stoned.”
Under the current law these folks would have to pay Prof. X for using his invention if their machines indeed “DID” what his claim states. It would not matter which “language” their tool was written in, because the operational logic would be exactly the same, just as their equivalent meanings for different words in different spoken languages. The fact that one of Prof. Feldman’s “innovators” today would have to “code” his/her iPhone app using a different high level language to clone Prof. X’s idea is completely irrelevant.
Similarly, the fact that some other “innovator” uses Prof. X’s invention for a slightly different application, like detecting marijuana use for example, does not get them off the hook either if they nonetheless configure their computing machine to “do” exactly what Prof. X taught you to do in order to detect human impairments. The fact that is invention is useful in other domains should be a credit, not a detriment.
But in Prof. Feldman’s anti-patent Utopia, her corporate clients would get off scott-free, because they’d claim as a defense that their “code” was written differently, or that their “application” was different. Better yet, they’d attack the good professors’ patent as somehow “invalid” because it was not directed to a “specific” application but could be used successfully in other domains.
Of course this perverse logic would not work in any other technology art. Suppose for example there was an invention on a hand held tool (the inventor mentions a hammer as the preferred tool, but not the only tool) that has a new plastic (the inventor says other materials will work) finger grip that makes it easier to hold. By Prof. Feldman’s logic, corporate patent squatters making a baseball bat (tool) using the identically configured finger grip, except in metal, should get a free pass.
Everyone would be up in an outrage if the level of protection for patents were this weak in other arts. The same manufacturers Prof. Feldman now protects would be up to their eyeballs in cheap foreign import knock-offs in a week, and they’d be back in Congress clamoring how inadequate patents are for protecting their “innovations.”
Imagine similarly if someone wrote a music piece for a horn, and copyrighted the work. Later someone took it and adapted it for piano. Again, under the “IP theft is ok” model, the artist would not get paid because the writing of the piece in a way that was adaptable for more than one instrument would be considered “too” broad of a concept. This, of course, is nonsense.
Prof. Feldman and her anti-software patent lobbyists are directing their attention in this field because they keep losing in Court when real people see how big companies are stealing small inventor patents that turn out to have great value in certain fields. To “fix” this problem their solution of course is to try and make certain the PTO never grants these patents in the first place, or, when they do, they have so little value that they can never be a threat to one of her corporate sponsors. PROBLEM SOLVED.
The NY Times piece is typical of the hyperbolic, fact-free anti-patent, anti-inventor content seen regularly from the serial infringers. We need to start holding these folks accountable for their gross distortions of the truth, and stop giving them a free pass just because they have the title “Professor” on their CV. This designation is no longer any guarantee that the proffered “scholarship” is free from corporate persuasion.
In closing, I expect as the SCOTUS deliberates and the patent (d)(r)eform bill is deliberated, we will see a well funded and orchestrated, daily attack on inventor rights from more of these sponsored talking heads. I encourage anyone with influence or access to a responsible ear to counter these incredible falsehoods being promulgated about software patents and resist further erosion of inventor rights.
Posted on March 28, 2014
Thanks to Patent Docs for this story:
Finally, Sen. Klobuchar provided perhaps the bleakest picture of the so-called “patent-troll” problem. However, as when most individuals throw around statistics and antidotes about this problem, she provided very little support for her allegations. For example, she stated as fact that 62% of all patent lawsuits initiated last year were by trolls.
Per my story a few days ago, this illustrates vividly just how cavalier and hyperbolic the rhetoric has become from the anti-patent (d)eformists. The “62% trolls” propaganda figure cannot be documented, and is in fact an outright lie that is repeated ad nauseum amongst this crowd to try and make it fact.
But let’s take her at her word that the good senator is keen to solve the problem of too many patent lawsuits. Well if she’s so impressed with “statistics,” I have one for here that that is incontrovertible:
100% of patent lawsuits are caused by… INFRINGERs.
Therefore as a suggestion if the Senator and her colleagues want to “help” the situation and make the patent system fair for all, why not start with helping small inventors by properly penalizing patent squatters? Then maybe we’d have far fewer “lawsuits” in this country, because the bad guys would think twice before appropriating someone else’s ideas.
Patent “squatters” (IP thieves) are a MUCH bigger problem than purported patent “trolls” (IP enforcers)
There is an outstanding piece today on Flashpoint IP that I encourage every patent stake holder to read. It summarizes very well the ongoing debate about patent “trolls” and if/how they can be classified into groups of “good” and “bad.”
While I applaud this effort to balance the discussion of patent rights, it does not go far enough. I say this because the popular press has been pandemically infected with the pejorative label “troll” whenever it comes to anything “patent” and uses the term pervasively and indiscriminately to refer to conduct that, in reality, is not “trollish” by any normal definition.
This behavior is an unfortunate prime example of perpetuating false stereotypes “invented” and promoted by large corporate interests and their well paid minions who benefit daily from stealing other people’s inventions. Patents are said to be owned by “trolls,” which means all patent owners are analogized to ugly mythical creatures to bias Joe public’s mind and prevent a fair reading of the facts. Demonizing the opposition is key to big companies’ strategy of diverting attention from their own bad behavior and the press does no public service by repeating this oligarchical anti-patent propaganda.
But why do I say the use of the term “troll” is a false moniker and should be rebuked at every turn?
Simply this: anyone with a 3rd grade education will remember that in the traditional “troll” legend, the poor innocent and hungry goats are barred by the evil troll before they can get access to the sustenance of green grass on the other side of the bridge. Therefore, they have to FIRST ask the troll’s permission to cross, i.e., pay a toll in advance for this necessity.
This is not what is happening in the technology – patent universe today. Despite all malicious insinuations to the contrary, there is no evil patent “troll” barring hapless innocent “innovators” from accessing key technologies.
Rather, the bulk of confrontations arise because the alleged patent “victim” crosses the “bridge” freely and of their own volition, because they see irresistible financial opportunity on the other side, not some staple or necessity of life (as in the fairy tale). They traipse there, without checking out first who owns the territory, without an “invite,” and often by walking right past a large posted “no trespassing sign.” They arrive at the fertile territory (owned and cultivated by the patent owner) and then proceed to use/abuse it for whatever purpose they think they can get away with – at least…until they are challenged. Then all hell breaks loose, and they release the PR whine engine proclaiming that they are being “attacked” by evil patent “trolls.”
In other words, today’s patent “squatters” (mostly in the electronic/software arts I should qualify) operate from the premise (like so many it seems noawadsy) that it is easier (and of course, more economically advantageous) to ask for forgiveness than permission. To date, I have never seen a single press release from one of these IP interlopers in this space that reads:
“You know, we scouted out that territory, hired an expert and a title company to make sure it was available, and only THEN proceeded to use the technology en masse. Oh and we bought insurance too in case we found out later we might be wrong. Even after all this due diligence we simply missed the ownership rights in this technology by the patent owner that is now suing us.”
But as we all know, that’s not what happens today. Rather, the lazy IP bandits proceed from the premise that doing due diligence is for losers, is too hard, and just too expensive. It just takes time and gets in their way of “innovating” (i.e., making big advertising $$ from yet another crappy “Flappy Birds” clone app).
To reiterate: no “troll” or patent owner is barring these people from doing …anything of any significant consequence. If they want to stay and use the patent owner’s property for economic gain, so be it, but they are not being deprived of some basic necessity, and they can’t be heard to complain when asked to pay something for their uninvited occupation. If they don’t want to pay then they are FREE TO LEAVE – its as simple as that. The insinuation that evil patent trolls are invading poor mom and pop businesses and taking food from their children’s mouths is just more hyperbolic scapegoating.
I’m hard pressed to think of any other historical precedent here in this country where we have given license to steal to so many people in any other industry. Its completely irrational and irresponsible in any system that respects property rights to let businesses operate under the premise that simply because they CAN do something – with no visible impediment – that it must also mean it is free of charge or repercussions.
Today these IP thieves (in the Internet space especially) cloak their behavior under the guise of being clever “innovators” (more on the bastardization of this term in a later post) because it is yet another feel-good buzzword that the public mind soaks up today as associated with positive business values. Apparently being an “innovator” means never having to first investigate the viability or legality of one’s products or services.
The other lame excuse trotted out is the long debunked “…well the patent owner is not making a product so I should be able to do so instead” argument. I have news for you: the patent laws of this country were intentionally set up to NOT require the patent owner to first (or ever) build something or practice the invention. The founders believed in democratizing invention rights by allowing protection even for individuals who did not have resources to exploit their patents directly. (“…The decision about how or whether the patent should be exploited remained completely within the discretion of the patentee, in the same way that the owner of physical property is allowed to determine its use or nonuse” – see Khan) Many large companies in fact (IBM is a perfect example) also license patents on products that they don’t make themselves, because it may not be in their primary business line.
Can you imagine how this perverted logic would work in any other IP discipline? A music writer could not enforce a copyright on a song, because the infringer could say “…well, I know she wrote it, but because she didn’t PERFORM the piece on an instrument and record it she should get no protection” or perhaps more absurdly “hey I know she wrote it, but she didn’t SING the piece so she can’t protect it”
Right! Somehow I don’t Hollywood would allow this kind of reality distortion at the expense of author rights.
You might wonder how this can happen in a country that purports to respect patent rights?
In the patent arena the Courts let them get away with this behavior because, in the end, the patent squatter knows that the only remedy available to the patent owner will be for the latter to try and make the squatter pay a fair price later for all the resources they’ve consumed on the other side – AFTER THE FACT. The SCOTUS (see the famous Ebay decision) has now made it “legal” for these patent interlopers to stay and (ab)use the patent owner’s property as long they like because the patent owner can’t evict them as a matter of right. That’s right, all the neighbor kids can pile in your pool every day, and you can’t get them out – you’re relegated to begging them all to pay you something after they’ve taken their swim. The once proud 200 year standing constitutional guarantee for inventors to “exclude” others from using their inventions was eviscerated over night under pressure from large tech company lobbying and sponsored faux academic scholarship (more on this later too).
In reality, far from being able to exact a “trollish toll” to bar access, the patent owner is now subjected to a compulsory license, a term that once upon a time would have brought shame and disgrace to anyone purporting to be in favor of intellectual property rights. This forced action on the rights holder used to be ridiculed by law abiding Americans as an abusive artifact of third world backwater countries where they did not respect property rights.
But it is now a fact of life for any patent inventor in this country – Megacorporation can steal your idea, make a ton of money from it, and your only recourse is to beg a lawyer to take your case on faith, sue and then pray for a “reasonable” royalty because the Courts have eviscerated basic protections for the small guy, like making the bad guy…. stop. Imagine an old Western where John Wayne is the sheriff, and the banditos hole up at the small farmer’s house, deciding to eat his food and drink from his well. The Duke shows up and tells the farmer “sorry, I can’t make them leave, you’ll just have to get used to them and charge room and board.” Next week he shows up and the farmer complains they didn’t pay, but the Duke retorts “… they say you don’t really need the whole house anyway, the water in the well actually comes from the mountain, and the chickens and eggs used to roam here before you got here and put a fence around them… so they claim none of this stuff is really yours anyway and they don’t have to pay. SORRY.”
Now that’s a story …none of us grew up with.
And if you don’t like this limited protection, just wait, they’re about to try and take this away as well! The SCOTUS Ebay decision, and other similar butcherings of inventor protection have now resulted in an upside down system, where it is clearly cheaper for big companies to steal IP than to license or even litigate. This is known as “efficient infringement” and is well documented all over the IP universe, as well articulated here:
“…America’s largest big tech corporations are now using a business technique called “efficient infringement,” which means that they calculate the benefits of stealing someone else’s patented technology against the possibility of getting caught, tried in court and being forced to pay damages and penalties. If the benefits exceed the costs, they steal.
What makes patent theft so attractive is that infringement is not a criminal act and those found guilty face no jail time. Paying up is the worst that can happen to the infringer.
The most aggressive users of this business model are fifteen of America’s largest big tech corporations. Led by Cisco, Intel, IBM, Microsoft and HP, these giants have spent millions of lobbying dollars over the past five years trying to buy legislation in Washington that would weaken the existing U.S. laws on patent infringement. Their interest is obvious since in the 13 years between 1996 and 2008, patent owners have sued these fifteen corporations 740 times for infringement and have won $4 billion in damages. Not surprisingly, these big tech corporations’ political goal is to change the law so patent theft is more difficult to prove, less costly when caught, and willful infringement virtually impossible to prove.
The principal victims of these big corporations’ “efficient infringement” approach are America’s independent inventors, small businesses and universities – the source of most breakthrough innovations and the creators of two-thirds of all new jobs in America.“
Read more here.
The author of the note above is probably grimacing at the most recent sponsored patent “deform” bill barreling through Congress that seeks to protect the IP thieves even more, by trying to implement an intimidating “loser pays attorneys fees” option to discourage small inventors from hiring effective counsel on contingency to protect their rights. Yup, its not enough that inventor rights are being diminished daily, and were semi-castrated by the Seagate decision (which makes it now effectively impossible for an inventor to get punitive damages from even wilfull infringers), or the Ebay decision discussed above (which removed inventors’ guaranteed right of injunction against infringers), or the Orwellian/farcically named “America Invents Acts” (which “invents” a new barrier in the law to protect large gangs of infringers by by making the patent owner sue them all… individually, and “invents” new specialized post patent grant procedures to kill patents faster) or the Medimmune decision (which makes it impossible for patent owners to even ask companies nicely to please license a patent without subjecting themselves to a lawsuit).
Nope, the corporate infringers apparently don’t have enough protection, because despite their extraordinary investment in DDT like anti-patent spraying, there is still yet a hardy band of inventors who can access competent legal counsel in this country to defend small IP interests. An even bigger thorn in the corporate infringers’ side are those limited entities who will actually help small inventors monetize their IP, or worse, in some instances, help take the fight to big patent squatters.
Thus the latest big company patent squatter tactics are focused on two fronts: 1) intimidating small inventors from suing in the first place by paying off enough politicians in Congress to get “loser pays” enacted; ask yourself what small inventor in his right mind would bet the house on a lawsuit against megacorporation’s huge legal pockets and maybe have to pay ultra expensive defense counsel fees? and 2) if at all possible remove small inventors’ ability to get funding to sue and make these funding pests pay as well if the lawsuit fails (“…the bill would allow a judge to order others who had a financial stake in the plaintiff’s lawsuit to join the lawsuit and pay the defendant’s legal fees).
The big company anti-patent oligarchy agenda is transparent: eliminate all patent suits, which leads to elimination of all patent demands from small inventors. Because without recourse to the Courts there is no company in this country that is going to voluntarily pay for something they can already steal with impunity.
PS: as exhibit A to the over-hyped, sensationalist yellow journalism anti-patent reporting we bring you a screaming quote from today’s headlines:
“In 2012, patent trolls sued more non-tech companies than tech companies, costing the U.S. economy $80 billion in litigation costs.”
And of course the author of such piece offers exactly….0 in the way of facts, analysis or logic for this figure, which is more mythical than the “troll” it refers to…. this is the anti-patent, anti-inventor propaganda that gets put out with the hope that if it is repeated enough people will start to believe it is fact.
Greetings Dear Reader,
This blog is borne out of a desire to see that ordinary inventors and patent holders are represented and given a voice as well in the Court of Public Opinion on all things relating to patents. For more than 30 years I have experienced and participated in every aspect of patents : inventing, helping inventors to procure them from the US Patent & Trademark Office, licensing them to third parties, and most importantly enforcing/defending them in every manner of Federal Court in this country. I have participated in dozens of patent trials, conducted hundreds of patent related transactions/licenses, and helped to craft more than a thousand issued patents/applications, including at least 100 of my own inventions.
Over the course of the coming months I will share my experiences, insights and observations about the origin of the current debate and rebut the one sided corporate sponsored “hysteria” about patents, particularly in the computer, software and business operations technology areas. Stay tuned if you are interested…
J Nicholas (Nick) Gross