Patent Trolls by the Numbers

by Assistant Professor Colleen Chien, Santa Clara University Law School, colleenchien@gmail.com, @colleen_chien (Download PDF of this at SSRN)

Following President’s Obama remarks and reintroduction of the SHIELD Act, today the House Judiciary Committee Subcommittee on Courts, Intellectual Property and the Internet is holding hearings on litigation abuse by patent trolls (aka patent assertion entities or PAEs). Companies J.C. Penney, SAS, Cisco, Johnson & Johnson, & Adobe, are testifying. Part of the discussion may focus on patent troll metrics, on which I have previously reported. These statistics draw heavily upon proprietary research as well as my own analyses, so, in the interest of full disclosure, below are the numbers and what I know about them.  Some say that the time has come to act, not to further study the PAE phenomenon but I believe in both – that to craft interventions that are both narrowly tailored and actually will work requires a deep understanding and careful analysis.

(It bears mentioning as well that much also can be learned from related experiences  — indeed, litigation abuse is nothing new and in fact the Judiciary committee that is hosting today’s hearing held a hearing on litigation abuse in non-patent contexts yesterday. In the patent troll context, many interventions, like fee-shifting, improving patent quality control, special defenses, and maintenance fee tweaking have been suggested/tried before – in the recent past (early 2000s) as well as in the late 1800s, against both farming and railroad patent trolls and related contexts. FWIW, in my paper on the topic,  I discuss other fixes like court leadership, industry organizations, collective action, and bolstering protection of users based on what has worked in these settings.)

1. PAEs brought 62% of 2012 patent litigations

According to RPX Corporation PAEs initiated 62% of all patent litigation, or 2,921 of 4,701 suits in 2012. RPX is a publicly-traded company that provides solutions to troll threats for its member companies and has great data, principally maintained by Seth Besse.

        PAE Suits (2005-2012)

Credit: © RPX Corporation 2013

Data checks on RPX numbers:

  1. Patent Freedom reports 2,923 NPE lawsuits in 2012, as compared to RPX's 2,921 PAE lawsuits, using a slightly different definition.
  2. I compared about 1,000 of RPX's codings with my own, and reported the result in Appendix C of this paper: "The share of disagreements between the databases was 7%, with the net number of trolls varying by 4%."
  3. Robin Feldman, Sara Jeruss, and Joshua Walker found that about 40% of 2011 suits were brought by patent monetizers in their study for the GAO. See comparison at page 17.

Comparison to 2011: The share of suits brought by PAEs in 2012 grew from 2011. However, the AIA's misjonder rules, which curbed the troll tactic of naming multiple unrelated defendants in a single suit which had artificially deflated troll suit numbers, are responsible. Thus, the increase in the number of troll suits, post-AIA, is most likely an artifact of the AIA.

2. In 2012, PAEs Sued More Non-Tech Companies than Tech Companies

Though the PAE share may surprise some, patented technologies like software are the building blocks of modern commerce. "Low-tech" industries like funeral homes, advertising agencies, and retailers like JC Penny which is testifying today are all taking steps to protect themselves from troll demands. Though historically a "tech" problem, in 2012 PAEs sued more non-tech companies than tech companies, according to the analysis below by Patent Freedom, which provides market intelligence on patent trolls. Retailers are hit the hardest by non-tech PAE suits, followed by automotive like Ford, which has also testified against trolls, financial services, and consumer products. So expect a broadening of the coalition to deal with trolls especially as many in these sectors are likely being sued over their use rather than making of technology.

3. Individual Inventor v. Corporate PAE suits

Not all trolls are created alike. Individuals get injunctions, corporate trolls don't. (See my paper with Mark Lemley, at FIG 3.) The SHIELD act would force corporate losing trolls to pay, but not individuals. "Non-practicing entities" can also include universities and startups, which is why I created the term PAE to apply to businesses that assert patents as their primary business model – universities and startups don't, they are focused on commercializing or transferring technology. (As Justice Kennedy put it in his eBay concurrence, trolls are firms that "use patents not as a basis for producing and selling goods but, instead, primarily for obtaining licensing fees.")

Based on data provided by RPX, 94% of 2012 suits brought by entities that don't practice were brought by corporate PAEs. Individual inventors were another 5% and the remaining 1% universities, based on data provided by RPX. However, PWC's excellent litigation report reports much higher "individual NPE" proportion – of 51% but for the 1995-2011 period and likely using a different methodology (the PWC university share is a bit higher). Because the SHIELD act turns on the individual vs. corporate distinction, it would be good to reconcile these numbers. 

The Distribution of 2012 NPE Suits by NPE Type (based on RPX data)

4. PAE defendants comprised 59% of all patent lit defendants

According to RPX Corporation, defendants to PAE suits represented 59% of 2012 patent litigation defendants, or 4,125 out of 6,934. (Patent Freedom counted 3,859 NPE defendants to RPX's 4,125).

    PAE Defendants (2005-2012)

Credit: © RPX Corporation 2013

Comparison to 2011: As the graph above shows, the absolute number of defendants named in PAE suits in 2011 shrank about 25% in 2012. However, that the relative share of troll defendants only declined by 4% (from 63% to 59%), supports that this trend reflects a general decline in new patent cases brought by practicing and non-practicing entities, rather than a fundamental shift away from the courts by PAEs.

The Success of the Misjoinder Rules

While the share of PAE defendants has not gone down significantly, I do believe, based on unreported analyses that I have performed, that trolls have changed their litigation tactics in at least one respect – they are less likely, because of the misjoinder rules, to name small defendants in lawsuits where they cannot be joined with other parties. In this way, the joinder rules can be said to be having their intended impact of making life harder for trolls. The small companies that actually are sued, however, are arguably worse off because they have fewer joint defense options. And even if they are not sued, many small defendants are receiving letters (see below).

5. 55% of Unique PAE defendants makes $10M or less

Based on my analysis of RPX's database, 55% of unique PAE defendants make $10M or less in revenue, and 66% make less than $100M a year. (previously I have erroneously reported the 55% number as associated with defendants making "less than $10M", it should be "$10M or less." Apologies for the error!). While small defendants have historically received less attention as troll targets, the patent woes of podcasters and small businesses that use scanners, not to mention bakeries (I love bread) have gotten recent attention.

Notes:

Because small companies are sued fewer times than large companies – e.g. Apple gets dozens of PAE demands whereas a small company may only get a handful – the number of total demands is more heavily skewed towards large companies than the unique defendant count. However, I believe 55% to be a conservative estimate because I calculated it based on actual revenue estimates in the RPX database provided by Dun & Bradstreet and commercial providers, and excluded from both the nominator and denominator companies for whom no revenue is reported. If, on the other hand, we assume that companies without coded revenue likely have limited revenue – an assumption other scholars have made– the share would grow. Longer discussion of methodological issues and approaches to filling in missing data here. Also of note, because of the success of the joinder rules in discouraging suits against individual small cos., the 55% number has likely declined in recent months.

6.At the ITC in 2012, PAE complainants brought about 35% of patent complaints and about half of patent respondents.

337 Patent Investigations & Respondents

2011

2012

New Patent Investigations

69

40

PAE Share

23%

30%

New Patent Defendants

226

184

PAE Share

43%

48%

My research assistants worked with me to code the complainants in these cases, using data provided by the ITC. As with district court defendant counts, total ITC investigations and defendants (called "respondents") declined in 2012 from 2011, by about 40% and 20%, respectively. However, the PAE share of investigations and respondents actually increased from 2011 to 2012, from 43% to 48%.

Data checks:

  1. Last summer, the ITC published a report called "Facts and Trends" that tracks NPEs. It reported a combined NPE share of 19% of investigations, and 41% of defendants in 2011, versus my PAE shares of 23% and 43%, respectively (see above). The ITC report also notes that ITC numbers tend to vary greatly from year to year, given their relatively small numbers of investigations, which I tend to agree with.
  2. Covington & Burling's Robert Fram and Ashley Miller, in an excellent unpublished paper The Rise of Non-Practicing Entity Litigation at the ITC: The State of the Law and Litigation Strategy (Jan. 5, 2011), tracked the percentage of companies relying on their licensing activities to show a domestic industry from 13% in 2000-2006 to 35% in the first 8 months of 2010). Based on an extension of their database they shared with me, the rate in 2011 (through Oct. 1) was 41%.

Legislative reform?: Members of the ITC bar and ex-ITC officials remain deeply skeptical of the efforts to reform the ITC legislatively that tech companies are pushing for. Last summer, I argued that the ITC's decision-making was evolving, and recommended revisiting its record in six months to a year. However, the fewer cases and exclusion orders that the ALJs have issued since then have meant a slower evolution of the ITC's law, despite more attention from government agencies and others.

While we wait, I still find it puzzling that entities like Acacia, Industrial Technology Research Institute of Taiwan, Beacon Navigation GmbH of Switzerland, and Intellectual Ventures would put up the considerable funds it takes to bring an ITC case when the ITC can't award the licensing revenues they seek, but only an exclusion order. The best I can tell is that this trend reflects a deeper dissatisfaction of patentholders with the consequences of eBay, rather than a desire to stop unfair importation, particularly since PAEs name domestic defendants more often than foreign ones (see Appendix A).

7. Some High Impact PAE Patents Fit the "Buy and Sue" Pattern

SHIELD has put more emphasis on the provenance of patents, with Joff Wild at IAM estimating that SHIELD might only cover one in four NPEs based on Patent Freedom Data. I really respect Joff's blog and magazine, and recommend it to anyone who is serious about understanding the monetizer perspective (though the magazine is expensive). However, I have a different view of the numbers, that because patent impact is heavily skewed, what matters are high impact patents– that is to say, if just Lodsys and Geotag were discouraged from bringing their suits, many people would have been happy. Through our analysis of "high impact" patents I asked Patent Freedom to put together for another analysis, we found that the nine out of ten were purchased before assertion, rather than owner-asserted.

10 High-Impact PAE Patent Campaigns: 9 out of litigated patents were bought, not owner-asserted

.

Also, I understand that the Patent Freedom folks have a different view of their own data than IAM so if you are interested follow them on Twitter:@PatentFreedom.

8. PAEs are Less Successful than Practicing Entities in Litigation

PWC's excellent annual litigation report is chock full of statistics about patent litigation and in particular, with respect to NPEs, that: they look to juries more (but the differences are declining), a higher median damage award and a lower than practicing company success rate (34% practicing co v.23% NPE ) that is declining (Chart 5B).

John Allison, Mark Lemley, and Josh Walker's paper documents that the "most litigated" (8x or more) NPE patents lose more than 90% of the time in court. Data provided by RPX found that such repeat litigants dominate PAE cases – 61% of defendants named in 2011-2012 were sued by a PAE who had brought the case 8+ times (see page 33).

9. Public PAEs

My research assistant and I have been working on profiling public company PAEs – those which derive a majority or significant revenue from asserting patents. Depending on how you slice it, we have found about 16 of them (ACTG, ASUR, DEMO: OTC, NSSI, OPTI, RMBS, VHC, WIN:TO, VRNG, PANL, DSS: NYSE Amex , WDDD: OTC, BB,PCO, PRKR, UPIP); a number of the stocks are very volatile and live and die by litigation outcomes – invest with caution.

10. What We Need to Understand Better: Demands , Users, the Differential Impact of Interventions

Litigations are only a tiny part of the story. While good data on patent demand letters is lacking, here are a few data points:

  • In my survey of startups, among companies that had received threats (N=79), in some cases many threats, less than a third had been sued. This survey is being redistributed to a larger and more representative sample which should yield better estimates when it is concluded.
  • In its RICO complaint against Innovatio, Cisco reported that over 8,000 letters had been sent, even though there were only 26 named defendants, a ratio of 276:1.

We also need to understand how many of these suits are user based ones – in my survey (N=79), 40% of respondents said the demand was based on a technology they were using, not making. Such suits seem hard to justify as anything but nuisance-based.

Some will say that the time has come to act, not to further study the PAE phenomenon but in order to craft interventions that are both narrowly tailored and actually will work requires careful analysis and learning from the past as many interventions like fee-shifting, patent quality control, and maintenance fee tweaking have been suggested/tried before, in related and different contexts — some of them even to trolls of the late 1800s, as detailed in my paper, which also suggests: bolstering protection of and staying cases against users, industry organizations, and collective action.)

11. What Really Counts

What really matters is not PAE litigation itself but the impact it has on businesses, innovation, and the economy, and in particular how these impacts are distributed and also the justice or injustice of the claims – that is why there is so much heat on the PAE issue –because people who are sued feel that had no ability to anticipate or avoid it. My research has documented the positive impacts of a liquid IP market, and that startups are selling to trolls and benefiting from that monetization. However, it also documents a significant emotional toll: people said demands have "invoked rage over the waste of time," made a target "very very angry," "ruined family friends" and caused "stress" and "ill-will generation [sic]": "it was agonizing to hand over all the money we had earned from a product we had invented and created ourselves to a firm that invents nothing and creates nothing. Our founder has since lost his house, car [sic] all his assets." As the numbers of impacted companies and industries continues to grow, don't be surprised if the ranks of those who support curbing most egregious litigation abuses – the practices of going after end-users, rather than manufacturers and extracting from small companies nuisance-based rather than value-based settlements – continues to swell as well.

= = = = =

Notes:

  • With thanks to my research assistants Aashish Karkhanis, Nicole Shanahan, Teri Karobonik, John Neal, and Coryn Millslagle and to RPX Corp., Patent Freedom, Gazelle Technologies, Robert Fram and Ashley Miller.
  • High impact patents discussed above include 7,222,078 (Lodsys), 7,346,472 (Bluespike), 5,937,402 (DataTern), 6,101,502 (Datatern), 5,930,474 (Geotag), 6,150,947 (Ogma), 5,223,844 (PJC Logistics), 6,185,590 (Project Paperless), 7,054,949 (Single Touch) 8,015,307 (Single Touch).

343 thoughts on “Patent Trolls by the Numbers

  1. 300

    anon, I see your slight of hand. But since I now disagree with the Supreme Court that math is the common weal of all mankind, I will join your conspiracy with respect to "applied math."

  2. 299

    101, every claim must be directed to a practical application, something that one can physically make, use or sell. You agreed with this in principle in an earlier post.

    I submit that a claim that has a business utility that is not directed to a practical application, is directed to business method in the abstract. One needs at least a computer program, or a spreadsheet or something else tangible that is manipulated.

  3. 298

    As I understand the Supreme reasoning, math by itself (basic math) IS a law of nature (not saying I agree with this reasoning). Applied math, on the other hand, evinces a purpose (the hand of man). It is for this reason that encryption is patent eligible.

  4. 297

    101, the Supreme Court seems reluctant to define or limit Useful Arts. Until they do, is not clear that even music is unpatentable subject matter; although most of us would consider it to be not within the Useful Arts. I would also agree that things such as hope, fear, belief, the spiritual, and the like should be excluded from eligiblity as not being within the Useful Arts. Thus a claim to a method of increasing the belief in the lord should be proscribed as much as a machine adapted to do an illegal act, such as stab a person in the back.

    The only recognized exceptions that I know of are

    1. Laws of Nature; and
    2. Natural Phenomena

    I do not think a Product of Nature exception exists.

    The exceptions state that these things, Laws of Nature and phenomena of nature, are exception because they are the common weal of mankind. For that reason they cannot be appropriated to only one. Thus Supreme Court will find unpatentable claims that effectively monopolize these things.

    But beyond that, the laws should not exclude their eligibility. I will agree that business methods are not excluded per Bilski.

    However, generally, and even in connection with Laws of Nature, patents are awarded for practical applications, applications that can be described in terms of making and using under 112, and that can be made used and sold under 271. Simply stating a principle without any practical application is not sufficient. This was the holding in Morse.

    But I do not agree (now, after further consideration) that mathematics are the common weal of mankind. They are the invention of one.

    However, one still has to provide a practical application, but the claims can, IMHO, be very broad because excluded subject matter is not involved.

  5. 296

    Correction: ….are subject to the same conditions and requirements as the other sections in the statute.

  6. 295

    Ned: “101, since I define those business methods that are ineligible to be those business methods that are abstract, surely we you would agree that such claims would be ineligible because they are abstract and not necessary because they are business methods.”

    The problem I have with your statement is that it requires one to assume business methods are something different from the “‘ordinary, contemporary, common meaning,’” of method.

    Remember a method (process) is statutory, and the Court has ONLY created three exceptions. Whether the invention purports to conduct business or not is not one of the exceptions and is of no relevance to statutory subject matter.

    Ned: ” In truth, the question really should be whether the claims as a whole are obvious – unless, that is, the utility itself is not within the useful arts. ”

    No, “obviousness” is but one of the conditions and requirements for obtaining a patent, and methods, even those deemed to be business oriented, are subject to the same conditions and requirements as the other sections in 101.

    As far as “utility itself is not within the useful arts” this too is not a sound legal position for the Court to use to declare business methods an exception.

    Conducting business, if that what the methods is directed to, is not taught or categorized as a liberal art but as an industrial art & science, and therefore falls under the “Useful Arts” umbrella in the Constitution.

    Ned, you obviously want to lobby to restrict or eliminate certain types of inventions from the marketplace.

    Perhaps it is inventions that effect or directly involve money changing hands, or software being sold and developed. The problem is the congress has not agreed with you. And the Court just does not have the legal authority to make that change in law.

  7. 294

    “101, the integration analysis applies only when one is claiming something that may be potentially unpatentable subject matter such as laws of nature, natural phenomena, mental steps or mathematics. ”

    Hello Ned:

    This is not entirely accurate. Mental steps per se are not an “exception” to patent eligible subject matter. Only a process claim that was composed of all mental steps would be an exception. Those steps would be primarily as follows

    1. Feeling…
    2. Imagining…
    3. Believing…. etc.

    e.g. methods that can be performed by human thought alone, ( Cybersource). However claims composed of mental steps combined with non mental step(s) can very well be patent eligible subject matter.

    Now, mathematics, which comes under the abstract idea exception only applies to math equations or algorithms and word problems that can be reduced to math equations such as the type in Bilski.

    But even math equations can be statutory subject matter when combined or “integrated” with other steps in a process that is not entirely composed of mental steps.

    Thus, we have Diehr as the case most on point for what is statutory subject matter.

    Finally “Integration” applies to “all” claims in “all” cases. Historically patent claims have been considered “inherently” integrated by the Court. But even with “Integration” the claims are still subject to all the conditions and requirements of 35 USC, and what ever Court created judicial exceptions exist at the time.

    For example, a claim of all thinking steps, of the typed presented above could be “integrated” but still fail to be new, useful, novel, non obvious and fully described ad enabled, and thus fail to be patent eligible and/or patentable subject matter. The same can be said of any math equation reduced to steps.

    For the purposes of this thread the take away is that there is no exception under current law to business methods, ( as the Supreme Court has defined that term) nor any legal foundation in current Court opinion for business methods to be made an exception to patent eligible subject matter.

  8. 293

    But, anon, something is abstract only when it is not applied to an useful end.

    There is a fundamental flaw in Bilski. It is this:

    Business utility is not proscribed from patenting as is, for example, a law of nature. A business method, if not excluded because it is not within the Useful Arts, is potentially patentable subject matter. Whether a claim wholly prempts a business method is legally irrelevant if business methods are not excluded from eligibilty.

  9. 292

    Anon,

    Will you agree with me that newly discovered math is not like a law of nature, freely available to all mankind? If so, the legal basis for Benson's broad statement and ultimate conclusion is suspect.

    Thus a claim that includes math and a computer to carry out the math presumably, without more, passes 101 because math is not an exception, and a computer is statutory subject matter all by itself. The question then becomes one of obviousness under 103.

    If Benson made a mistake, it was in equating math to laws of nature, subject matter that cannot be patented, directly or indirectly.

  10. 291

    but that does not mean all mathematics must be excluded from being patented.

    Glory be.

    Think Applied Math.

    Think encryption.

    Think.

  11. 290

    since I define those business methods that are ineligible to be those business methods that are abstract

    So…

    We have moved the goal posts to “those” business methods that are circularly defined as abstract in your IMHO-Law other-worldly discussion, have we?

    Ned, please come back to planet Earth and talk US patent law.

    Thanks.

  12. 289

     101, the integration analysis applies only when one is claiming something that may be potentially unpatentable subject matter such as laws of nature, natural phenomena,  mental steps or mathematics.   When one is claiming potentially  excluded subject matter, the only thing the Supreme Court really is concerned about is whether enough has been added to the claim such that the claim itself is not claiming the law of nature, etc., in the abstract, but rather whether it is claiming a practical application.  Integration here is the key.

     
     
     

  13. 288

     101, with respect the law of nature, I think the Supreme Court might be right in that laws of nature are forbidden subject matter and the real question is whether one is attempting the claim the law of nature itself by adding in conventional steps that don't change the nature of the claim.
     
    However when one is dealing with business methods, they are not forbidden subject matter in the same way as claims to law of nature.  Thus the analysis is not whether one is attempting to claim forbidden subject matter, but whether the claim is obvious.
     
    I am now tend to agree with you 101 that declaring mathematics to be among the excluded classes does not make sense.  Laws of nature can be expressed mathematically, but that does not mean all mathematics must be excluded from being patented.  Still, one must claim a practical physical application in order to obtain a patent, but mathematics per se are not laws of nature.
     
    And yet, the Supreme Court has said that mathematics are forbidden subject matter.  Thus when a claim masquerading as a business method really is a claim to new mathematics applied in a business context, the Supreme Court might be justified in adopting the "Prometheus" analysis to exclude claims to mathematics by determining whether enough has been added.   But to apply the Prometheus analysis without first determining whether something forbidden is potentially  being claimed makes the assumption, which may be unwarranted, that the principle potentially being claimed, a business method, is unpatentable subject matter and that something else besides the business method must be added.

     
     
     

  14. 287

      101, since I define those business methods that are ineligible to be those business methods that are abstract, surely we you would agree that such claims would be ineligible because they are abstract  and not necessary because they are business methods.
     
    However when the claims manipulate tangibles, they are not wholly abstract are they?  In truth, the question really should be whether the  claims as a whole are obvious – unless, that is, the utility itself is not within the useful arts. 
     
     I can see the  approach taken by the  Supreme Court in  Prometheus as being the logical approach when the claims are directed to a forbidden  subject matter,  such as "law of nature."    But to apply the same approach to business methods makes the unstated assumption that "business methods" are forbidden subject matter in the same way as natural phenomena and laws of nature, which the Supreme Court in Bilski said they are not.  Therefore it would seem contrary to Bilski to analyze business method claims in the same way as law of nature claims. 
     
    So in the end, I think the Supreme Court needs to rethink its analysis of business method claims.
     
     
     
     

     
     
     

  15. 284

    Ned said : “Compare State Street Bank on “invention” with the theory of the government that the issue with Prometheus was one of 102/103. That is the comparison I make. You say you agree with Rich on this. If so, you then agree with the government position in Prometheus.”

    Here is what the Government actually stated as their position in Prometheus:

    “.. the claims should ultimately be found invalid because, as construed by the district court, they “merely … appen[d] a purely mental step or inference to a process that is otherwise known in (or obvious in light of) the prior art.” But the Supreme Court should affirm the Federal Circuit’s holding on subject matter eligibility.” [AMICUS BRIEF SUPPORTING NEITHER PARTY
    UNITED STATES (Solicitor General Donald Verrilli, Jr.) ]

    That was actually somewhat close to MM’s whacky mental steps test. You called him brilliant and helped him celebrate what you both thought was a 9-0 victory. But in reality the Court said:

    “The Government, however, suggests in effect that the novelty of a component law of nature may be disregarded when evaluating the novelty of the whole. See Brief for United States as Amicus Curiae 27. But §§102 and 103 say nothing about treating laws of nature as if they were part of the prior art when applying those sections. Cf. Diehr, 450 U. S., at 188 (patent claims “must be considered as a whole”). And studiously ignoring all laws of nature when evaluating a patent application under §§102 and 103 would “make all inventions unpatentable because all inventions can be reduced to underlying principles of nature which, once known, make their implementation obvious. These considerations lead us to decline the Government’s invitation to substitute §§102, 103, and 112 inquiries for the better established inquiry under §101. [MAYO COLLABORATIVE SERVICES v. PROMETHEUS LABORATORIES, INC.]”

    As for as comparing SS to the Governments rejected brief. I see no comparison. In fact I see the Prometheus Court’s insistence that 101 be used for subject matter eligibility, and 102, 103 and 112 be used for patentability to be quite consistent with Rich view of the statute.

    In effect the Government wanted to conflate and mix up the sections like you and MM have pined for all these years. But the Supreme Court in Prometheus said, no thank you. They pretty much kept everything Rich stood for, claims as a whole, integration, processes as an independent section, and no business method exception.

  16. 283

    “One is not start with whether the claim is nominally directed to patent eligible subject matter, such as a player piano, a computer, or a process for drawing blood and conducting a blood test that involves a transformation. Rather one starts with the unpatentable subject matter in asks the question whether enough has been added, and this they say is a section 101 test.”

    Ned, the Court did not say this is a section 101 test.

    In fact the Court in Prometheus did not state any bright line test whatsoever for patent eligibility.

    Instead the Court referred to “integration” for identifying claims that “are” eligible subject matter.

    Niether did the Court in Prometheus say, “start” with the unpatentable subject matter and ask the question whether enough has been added.

    The mistake you are making is failing to recognize that

    1. Prometheus applied extra solution activity analysis to the claims.

    2. Extra solution activity analysis is only applied when a claim begins with a “bare” Court created judicial exception.

    (BTW, Raders use of “manifestly evident” in Research Corp, as well as Linn’s use in Alice, stands for essentially the same principle as “bare” in Prometheus.)

    Of course, in Prometheus’ case the “bare”, or “manifestly evident” exception was a Law of Nature. In the case of such an exception the Court looks at the claims as a whole to determine if the added steps are a sufficient limitation so that the exception is not pre-empted and the claim is not a monopoly on the judicial exception itself.

    But I repeat the Court has NEVER used, or said use extra solution activity analysis as a test for all process claims, or as a beginning analysis for all process claims.

    To apply such an analysis for all process claims at 101 would be a gross legal error.

    If in doubt about when to use “extra solution” activity just remember this handy mnemonic device.

    “If it’s not bare, don’t go there!”

  17. 282

    Hello Ned:

    101 Integration Expert: Thank you for the response. I do not see how any of it provides any legal support for your opinion that business methods should be non statutory subject matter. Nor have you presented anything that is contradictory to the Courts apparent definition for business methods which is :“[a]n orderly procedure or process … regular way or manner of doing anything; hence, a set form of procedure adopted in investigation or instruction”).

    Of course if you wish to elaborate further to show how what you stated above shows “legal support” for your opinion, I am willing to listen.

  18. 280

    I am in the same situation everything stolen and nothing in the right name except theis guy would have had to steal from me theoretically because I invented everything significant

  19. 279

    Ya patents are of plenty of use they allow you to sell the patent outright or recieve royalties or have an exclusive market (Use) to produce the product without competition for a limited time 20 Years in exchange for improving human lifestyle and advancing human intrests

  20. 278

    does make you a l-ar, though

    LOL – the single most undeserving person in the blogosphere to utter that phrase.

    From you: another absolute meaningless post.

    Show me the lie, Malcolm – as I have asked you (without answer) so many times previously.

    And tell me, does your email system have a spam filter?

  21. 277

    at a joke I made here (at your expense – so sorry).

    Malcolm, that’s quite ridiculous, as I already posted in reply to your political views (think: all politicans are… politicans – I care for none of them).

    So yes, another vacuous post from you.

    Way to go Malcolm.

  22. 276

    anon, why are you being difficult here? Rich's position in State Street IS your position. He clearly indicates that machines, processes, etc., must still face 102/103/112. He just denies that patentable subject matter has anything to do with the term "invention" in 101 that was the basis, prior to '52 for the courts to impose both a degree of separation from the prior art that was beyond trivial (not the work of one of ordinary skill) or to say principles in the abstract and laws of nature were not "inventions" even though they might be discovered.

    Your posturing here is making much to do about nothing, I think.

    If I still misunderstand your position, why don't you simply state your position on "invention" in 101?

  23. 275

    Ya that example is quite unfair but the term troll or indegent inventor paralegal represtntative patroller doesent apply because the enforcement is against customers or end users by the patentee and not against a large profit producing company hording all their should be business partners profit portion. Also it should be realized that the original conciever was me so the wrong entity is attempting enforcement although it might be tough to prove this one it was me with an employee and It was likley espionaged. If its any comfort Ide only charge about 9.95 for lifetime use.

  24. 274

    my posts are not “insane rantings”

    Have you figured out which law firm uses staff to screen registered letters to attorneys and throws the letters out without letting the attorneys see them if the staff person decides that the letters contain information about prior art relative to a client of the attorney?

    Originally you indicated that you knew of such a firm. If so, you are the only one on this planet with such knowledge. Of course, everyone here knows that you just made that baloney scheme up out of thin air. That doesn’t make you “insane” … necessarily. It does make you a l-ar, though, and a rather distasteful one.

  25. 272

    this is an argument not about how the patent system should look, but whether we should have it at all.

    Oh, I thought we were talking about patent trolls and the various ways of curtailing their greedy, resource-wasting behavior.

    Personally, I think we should have a patent system that encourages and supports innovators who create things rather than one which encourages the usual grifters, skimmers and leeches to gamble at the Great Patent Casino.

  26. 271

    “Patent trolls don’t care if their patents are invalid. I mean, if they are determined to be valid in litigation, that’s a bonus for them. But other than that, they don’t care.”

    To whatever extent that statement is true, it applies equally to non-trolls.

    Absolute bullshirt.

  27. 270

    By the way, have you seen him lately?

    Yes, he laughed at a joke I made here (at your expense – so sorry).

    Another vacuous post.

    Not at all, after you recognize that most patent t–b-ggers are old white Republicans. You know: Fox News demographics. So keep digging your heels in and never, ever stop fluffing j–k patents and the trolls who rely on them. It’s what works for you, man.

  28. 269

    This is you position as well.

    Ned, this is a blatant lie.

    I have been more than clear that there is no free pass for ANYTHING past 101.

    Review the careful distinctions that I have POUNDED into you regarding the difference between “categorically” (which you are implicitly slipping back into) and “as a category.”

    Yet another well traveled merry-go-round for you Ned.

    Please stop the nonsense already.

  29. 267

    Anon, regardless of authority,

    No, Ned, NOT regardless of authority.

    Pay attention and stop your nonsense.

    Understand the difference between patent eligibility and patentability.

    We’ve been on this merry-go-round many many many times now.

  30. 266

    Another vacuous post.

    Way to go Malcolm.

    But attaching the post to me is oh so Leopold of you. By the way, have you seen him lately?

  31. 265

    The beleaguered Republican Party put into writing today what its leaders have been saying since last year’s election: The GOP is too old, too white and too insular.

    Take note, patent t–baggers.

  32. 263

    Anon, regardless of authority, you have argued that "invention" is no longer a 101 issue. That you have repeatedly argued. I agreed on the basis of 282.

    I think, implicitly, that Rich may have agreed that conditions of patentability meant 102/103/112, as the statute says, and not 101. If the subject matter is nominally directed to a statutory class, move on to 102/103/112.

    If this is not your position, please explain what your position is in more detail.

  33. 262

    In the first place you should not have been ordered to turn over all your companies profits unless the infringement was wilful and blatant.The business partner of the and contingent prosee legal representative of the patentee produced something of great value that being the invention without which the business segment of the economy would not exist and they did the patent preparation and enforcement legal work. You mention that legislations favor one type of litigant over another and they do the thieves are brought to justice by the victums and infringers are thieves.

  34. 261

    I hear Oboma complainting about the need for the shield act to prevent entraprenurs from having there profits hijacked like there is no method of fairly negotiating with the patent concievers reguarding lisencing or % of profits after all expences like my company does.These companies want all the profits no matter how profitable the product is there bandits and should be denied business lisences. At my company you can special order conception of new products with no money due till my invention produces it for you in sufficient quantities no reason for the shield act to destroy the incentive to create and hault human advancement

  35. 260

    They should require in the shield act that the inventor serve registered mail on the infringers to give notice of potential troll action if their not sucessful at negotiations with the infringers to bring them to justice before the lucrative money from their usage of the stolen patent is prosecuted

  36. 258

    I missed no point Ned.

    You are attempting to conflate and kick up dust.

    I do not touch State Street and decline your invitation to jump into the briar patch. I do not need State Street to understand what the law actually is now. today. in this universe.

    Please stop your nonsense and join me on planet Earth.

  37. 257

    But, anon, you have repeated said this.

    No Ned, I have never argued from State Street.

    You may be confused with my position, but my position is grounded on other than State Street.

    My position is grounded in what Frederico and the Supreme Court itself have said.

    We’ve been on this merry-go-round before Ned – you flat out agreed with me.

    Stop your nonsense.

    Please.

  38. 254

    But, anon, you have repeated said this. You say, "Invention" has been removed from consideration under 101 and condified in 103. That is exactly what Rich said in State Street Bank:

    "As an alternative ground for invalidating the '056 patent under § 101, the court relied on the judicially-created, so-called "business method" exception to statutory subject matter. We take this opportunity to lay this ill-conceived exception to rest. Since its inception, the "business method" exception has merely represented the application of some general, but no longer applicable legal principle, perhaps arising out of the "requirement for invention" — which was eliminated by § 103. Since the 1952 Patent Act, business methods have been, and should have been, subject to the same legal requirements for patentability as applied to any other process or method." SSB at 1375

  39. 253

    Anon, I think you missed my point. Compare State Street Bank on "invention" with the theory of the government that the issue with Prometheus was one of 102/103. That is the comparison I make.

    You say you agree with Rich on this. If so, you then agree with the government position in Prometheus.

  40. 252

    WRONG Ned – the reason was that Congress recognized business method patents when it passed Seciotn 271 (you know, the section that Stevens would have written out of the law).

    We’ve been on this meery-go-round before Ned.

    Stop the nonsense.

  41. 251

    Ned,

    STOP THE NONSENSE.

    Nowehere have I ever said anything that would give you reason to state:

    I would agree with you that judge rich may have had it right when he argued in State Street Bank that when considering a machine (or other clearly eligible subject matter) set forth as part of a claim, the claim had to be analyzed under section 103 and not section 101.

    STOP.

  42. 250

    NO NED – what fell in Prometheus was your beloved MoT (which was found to have been met. There you go again conflating things and kicking up all kinds of dust.

    Bilski: MoT not required
    Prometheus: MoT not sufficient

    swallow

  43. 249

    Anon, I must've missed that updated case. Can you tell me what it is one more time?

    I would agree with you that judge rich may have had it right when he argued in State Street Bank that when considering a machine (or other clearly eligible subject matter) set forth as part of a claim, the claim had to be analyzed under section 103 and not section 101. That was my position also prior to the opinion issued by the Supreme Court in Prometheus. There is also the position of the government advanced to the Supreme Court in Prometheus (if the old elements past section 101, then the issue was novelty and obviousness they argued).

    But as you remind me often, the Supreme Court declared that approach incorrect. One is not start with whether the claim is nominally directed to patent eligible subject matter, such as a player piano, a computer, or a process for drawing blood and conducting a blood test that involves a transformation. Rather one starts with the unpatentable subject matter in asks the question whether enough has been added, and this they say is a section 101 test.

    Frankly, having considered both views, I think Judge Rich's approach might be the better approach, but it is not accepted by the Supreme Court and is Gone with the Wind.

  44. 248

    as about manipulation of things like a player piano

    ARRGGHHH

    ! Canard Alert !

    The (attempted) introduction into the discussion of items clearly not within the useful arts.

    Ned – stop the nonsense.

    Please.

    ps – I have already given you an updated case on the “use of machine” doctrine c_rrp that you are implying.

    pp – Your tortured attempt to impugn on a 101/103 matter falls flat.

  45. 247

    101, since you now seem to agree that all business methods must manipulate something physical in order to be practicable, then I would tend to agree that Judge Rich's view, expressed in State Street Bank, that the issue with respect to business methods is not section 101, but section 103, should be the correct view. But, I hope you recognize that this very argument was advanced by the government in the Prometheus case (the old elements were otherwise statutory, meaning the issue really was one of obviousness), and was soundly rejected.

  46. 246

    101, the point about manipulation of "old physical items" is to say point as about manipulation of things like a player piano. Does the new music somehow create a new player piano. Does the new business use somehow create a new ledger sheet?

    This question was somewhat addressed eons ago by the Supreme Court when it declared that the new use of an old machine cannot be patented as a new machine, but could be patented perhaps as a process. I think Judge Rich correctly observed in State Street Bank that this kind of statement was related to the degree of separation from the prior art necessary to make an "invention," which now have been codified in section 103.

    Therefore I think Judge Rich would say that when claiming a machine where the departure from the prior art was in the nature of a new use of the old machine, the issue was not section 101, but section 103.

    I can see a lot of merit in Judge Rich's approach here, and it was the suggestion to Supreme Court by the government in Mayo, that the issue was not section 101 in the case where the claim's old elements otherwise passed 101, but a question of novelty and obviousness. But of course, as we saw the Supreme Court soundly rejected this notion, and implicitly Judge Rich's remarks in State Street Bank.

  47. 245

    Mr. 101, with all due respect, a cited reason for the Bilski majority not to exclude so-called business methods from patent eligibility was that there was no good definition of "business method patent."

  48. 244

    Uh, how about running patent search and submitting a patent paplication on those products you believe you have invented? Kinda like the inventors who obtained the patents being asserted against you did.

    Why should they share?

  49. 243

    “What really matters is not PAE litigation itself but the impact it has on businesses, innovation, and the economy, and in particular how these impacts are distributed and also the justice or injustice of the claims – that is why there is so much heat on the PAE issue –because people who are sued feel that had no ability to anticipate or avoid it.”

    Uh, how about running patent search and submitting a patent paplication on those products you believe you have invented? Kinda like the inventors who obtained the patents being asserted against you did.

    What would the impact upon innovation be if inventors could not monetize their patents or could only do so at reduced amounts because the purchasing “troll” devalued the patent due to the adverse impacts of laws like SHIELD?

    Laws, courts and process are all about determining the equities involved in any suit. Legislation designed to favor one type of litgant over the other is all about closing the courthouse doors to protect the activities of the potential litigant who supports the legislation.

    “it was agonizing to hand over all the money we had earned from a product we had invented and created ourselves to a firm that invents nothing and creates nothing.” Seriously? I would think if one had invented the product at issue the money would not be handed over. Perhaps you might want to secure your own patent for your invention.

  50. 242

    Hello Leo:

    Both patents have business utility ( in addition to commercial application ) because in order to use the patented processes you need to pay the owners of the patent a license fee and/or royalty.

    This is why ALL patents have business utility. And it is why Ned’s statement:

    ” I think a business utility is hardly within the useful arts”

    is factually and logically in correct.

    For example:

    If ALL patents have business utility as proved and demonstrated above, and business utility is not within the useful arts as Ned claims, then ALL patents would be invalid for not being within the useful arts.

    But since both you and Ned both failed to prove your premise, and it has in fact been disproved, you are both factually and logically incorrect.

    Please let me know if you have any further questions.

    I am here to help.

  51. 241

    IBP: “‘m still willing to listen to an explanation”

    Since you now claim to be “willing to listen to an explanation”. I will elaborate.

    Using the Courts line of 101 cases as the lens thru which to determine when claims are “integrated” it is apparent that a new and useful process claim in general has a clear presumption of “Integration” and the presumption remains valid, and requires no further analysis under 101 unless the claims as a whole recite; A bare Court created judicial exception, (derived implicitly from the Congressional Statute of 101). Since we know software per se is not one of the Court created judicial exceptions that takes us right to determining if software indeed meets the definition of “Integrated”.

    “([u]nless otherwise defined, ‘words will be interpreted as taking their ordinary, contemporary, common meaning.”) [Diehr, supra, at 182.]

    When one checks the dictionary definition for the ordinary, contemporary, common meaning of “integrated” it says:

    “in·te·grat·ed [in-ti-grey-tid] Show IPA adjective:

    1.combining or coordinating separate elements so as to provide a harmonious, interrelated whole:

    2.organized or structured so that constituent units function cooperatively”

    Hence we know:

    That which is “integrated” is a process

    That which is “integrated” is structured.

    I do not believe there can be any debate that software meets the above definition of “integrated” and thus software is not barred at least at the threshold of 101.

    And to extrapolate to the subject at hand , software and computers as “integrated circuits” is defined in the same dictionary as:

    “integrated circuit noun Electronics.
    a circuit of transistors, resistors, and capacitors constructed on a single semiconductor wafer or chip, in which the components are interconnected to perform a given function. Abbreviation: IC”

    Therefore when the additional question is asked, (is software integrated with a computer statutory subject matter?) , there can be only one answer.

    And that answer is an unequivocal, yes!

    Any further questions?

  52. 240

    IBP:”I already asked you in a gentlemanly fashion to explain what you meant by that term, and you insulted me by posting, IIRC, tautological rubbish.”

    101 Integration Expert: You do not recall correctly at all. You NEVER asked me in ANY fashion to elaborate on what an “Integrated” technological process is. With the keyword here being “integrated”. You simply called my definition rubbish. And now you have doubled down on your insults by calling my definition “tautological rubbish.” Such is not the work of a gentlemen, and certainly no scholar. Beside I believe a tautology means stating the same thing twice. And there is nothing repetitious or logically unchallengeable in my definition of software as an “Integrated” technological process. Indeed I have been very open to anyone performing “integration analysis” or in fact invalidating it using the law. A challenge ALL the Anti’s have ducked and run away from including, and up to this point, yourself.

  53. 239

    Read about it, think some more, and you will get it.

    No, IBP, he will not. Your rationality will fail with Malcolm. Guaranteed. He has already indicated that he cannot see the absurdity.

  54. 238

    MM: “the “patent trolls” and their supporters are, by and large, the same people who have neither (sic) seen a patent that they didn’t love”

    Come on, man, where has your mind gone? Just the same as any “non-patent-troll”, they can’t stand any patent that is used against them in some way.

    “Patent trolls don’t care if their patents are invalid. I mean, if they are determined to be valid in litigation, that’s a bonus for them. But other than that, they don’t care.”

    To whatever extent that statement is true, it applies equally to non-trolls.

    As to the rest, what I’m saying is that the very existence of a patent system reflects what is a foundational principle in the formation of not only this country, but of advanced western society–and the type of erosion of that system that is proposed here is grounded in principles that are not equally foundational.

    Failure to post a required bond would effectively result in the forced transfer of private property from one private entity to another, without compensation. That is classic re-distribution, and is diametrically opposed to the principle of dominion, or the private control of the disposition of property. It is more than just a limit on the use of property, it is a divestiture, a diminution in dominion.

    Why is that important? Because the value in property rises in proportion to the degree of dominion over it by a private owner–that was a foundational concept behind private private, rather than shared, property ownership. By compelling what is effectively an uncompensated transfer of a portion of the right of dominion (control over the disposition and use), there is a good argument to be made that the total value of the property in question is decreased. Read about it, think some more, and you will get it.

    Why is that total value important? Because overall, it furthers autonomy, individuality, and self-determination, which are concepts that have proven their worth to our society and western civilization in general. One can argue about inequalities and disparities in the distribution of those qualities, but in a general or aggregate sense, I have never seen their worth meaningfully questioned.

    Don’t misinterpret what I’m saying. Think about it this way: why isn’t the outcome, instead of being an uncompensated tranfer, a compensated transfer or compulsory license for a market royalty rate? That would be bad enough for other reasons, but it would not diminish property value nearly as much as this proposal would do.

    But this is the modus operandi of the re-distributionists: start out with an absurd position, then negotiate from there to your desired position. Regardless of how one feels about the substantive merits of any such position, the fact that a position taken for bargaining purposes is absurd should be recognized, and any such position should be dispensed with efficiently.

    This proposal is such a position. I like my high art, and I like my intellectual western interpretations of former art and current “primitive” art. I enjoy the fact that there is somewhere to live other than Mogadishu, or Detroit. I enjoy the leisure time that affords me the opportunity to reflect on both my own ideas and on the ideas of others. I enjoy the democracy of communication means, and the preservation of written history.

    In short, I like who I am, and to that for that in part I have western civilization and therefore the principle of private property ownership–and therefore a patent system that is one of the most fundamental ways that we have chosen to give effect to that principle.

    There is room for us all. Don’t mess with my patent system in a way that erodes its very meaning. We can argue about ignorant judges or lazy public-sector bureaucrats, but this is different–this is an argument not about how the patent system should look, but whether we should have it at all.

    And I think we should.

  55. 237

    When you say there is nothing abstract about conducting a business, I assume you have something in mind that extends to the physical.

    I think it is ridicules to even bring up this point. Have you ever heard of a business method that could be performed solely with the mind? I mean seriously Ned. If nothing else this thread has clearly shown your opinion against the patentability of business methods has no legal, logical, or social policy basis whatsoever.

    Therefore I hope you will give up this crusade against business methods and while you are at it, software patents too.

  56. 236

    101–

    I already asked you in a gentlemanly fashion to explain what you meant by that term, and you insulted me by posting, IIRC, tautological rubbish.

    I’m still willing to listen to an explanation.

  57. 235

    However, any such logical indication is completely missing from any of your posts today.

    Pick up your arrows (you don’t have to reach far), and try again.

    Leopold – this comment also applies to your posts today – just in case you were unaware of it.

  58. 234

    One of us is rambling, that’s for sure.

    LOL – yup, one of us has made a point, and the other continues to evade that point.

    Not hard to figure out who is who here.

    pick up another hobby

    Why? you yourself note that I seem to be having fun. Of course, it is at your expense. You are confused as to who needs a new hobby. Unless of course, you like playing the f001 (I’m OK with that – quite in fact, I have fun with that).

  59. 233

    Are you even aware now of what the conversation is about?

    No, I’m not. But you seem to be having fun.

    Or are you simply rambling on because you see the red cape of “anon said”?

    One of us is rambling, that’s for sure.

    What’s that? Speak up Leopold, I can’t hear you.

    Is everything OK, anon? A little lonely today? Maybe you should pick up another hobby.

  60. 232

    And please, Leopold, remain blithely unaware of the actual points made in my post of 9:59 am in response to your post 9:27 am.

    What’s that? Speak up Leopold, I can’t hear you.

  61. 231

    Your awareness level is (as typical) remarkably low.

    That’s what happens when you post for soapbox reasons instead of for reasons of having a discussion. Yes, I know, having a discussion is more difficult as it means actually paying attention to what the other person is saying and trying to understand when valid points are raised.

    about anything at all

    So what was your point of introducing a different patent to the thread at 12 pm on the 14th, to which bja replied and to which I also replied?

    Are you even aware now of what the conversation is about? Or are you simply rambling on because you see the red cape of “anon said”?

  62. 230

    Kind of silly?

    Yes, your post was kind of silly. You never did address the point raised, though.

    And no, it was not the exchange with Les, but rather, it was your exchange with bad joke ahead on the 14th at 12:07 pm.

  63. 229

    Oh wait, you are not really arguing about the patents themselves (with validity presumed), are you? You are actually arguing about that presumption, right? Or perhaps about enforcement, right?

    I wasn’t aware that I was arguing about anything at all, anon. But thanks for clearing that up.

  64. 228

    Are you talking about the series of posts where Les and I discussed the likelihood of infringement? It would be kind of silly to talk about infringement if you weren’t presuming validity, wouldn’t it?

    If you’d like to address the validity of those patent claims, then please, go ahead. I haven’t done enough research to have a firm opinion one way or the other.

  65. 226

    Patent trolls are demanding that small businesses pay license fees for sending images generated by scanners via email:

    link to arstechnica.com

    $900 per employee will bankrupt most small businesses. It is simply shocking that anyone would even think such a patent is valid, but the idiots that run the patent office and the courts seem to think so.

  66. 225

    Both the cat exercise patent and the swinging on a swing patent can be shown to have business utility.

    The ability to exercise unrestrained cats has huge potential: if you can exercise the unrestrained cat, then you can herd the cat. Anyone who has had any management experience will see the value of being able to herd cats.

    The makers of swings have huge business utility in the advance of additional ways of swinging on a swing. Their products can now reach additional markets, or can be sold at a higher price with the new process feature boldly marketed.

    Oh wait, you are not really arguing about the patents themselves (with validity presumed), are you? You are actually arguing about that presumption, right? Or perhaps about enforcement, right?

    So the post above that made you go silent would be on point again, right (on the 14th at 6:52 pm)?

    Speak up Leopold, I can’t hear you.

  67. 224

    Right but I am the actual inventor who got cheated so those suits are paying the wrong person and we need to sue again to get triple damages from the infringers to keep the incentive to create jobs revenues and exports.Is there an attorney in the house.I think I figured out why the duty of candor was eliminated in the aia, its to allow the attorneys to put patents in the wrong name even though they know there cheating the true conciever through allowing espionaging and intimidations my plan was integrity with 15 new methods of correctly determining inventorship

  68. 223

    Welcome back Leopold, we missed you.

    Will you be addressing the points raised in your posting of patents and the presumption of validity?

  69. 221

    Yes I invented cheetos and the pink panther in 1966-8 and yes I was cheated of those and doritos and fritos all in my 6th and 8th grade school. is there an attorney in the house. I diud the conception of the convenience store to 7-11 with the kid on my school bus

  70. 220

    at the expense of everyone else’s rights

    Infringers have rights too.

    See The Infringers’ Handbook, Chapter One, page one.

    bothered by the increasing disparity in wealth in our country

    Property is so evil if there is disparity as to amounts that individuals have. So of course, the ends justify the means…

    Hmmm. Reminds me of Jane Fonda: “I would think that if you understood what communism was, you would hope, you would pray on your knees that someday we would someday become communists.” – Jane Fonda, 1970, Address to Michigan State University.

  71. 218

    Of course, you may also note that this is yet another example of low quality blogging.

    Similar to Malcolm, who does not recognize the difference between ‘fact’ and ‘spin of those facts,’ Ned wants to have ‘definition’ lie in the realm of ‘opinion,’ and then jump to making law on that made-up definition (talk about your bootstrapping).

    The reason why is clear. Without “opinion” (and without spin), the agenda is lost. If Ned were limited to actual fact and actual law, he is merely left with a desire to change the law (and has no facts to support his views). He is left then with making only policy style arguments (which by the way will also fail, for obvious reasons).

  72. 216

    Well significant inventions all come from the master conciever me but so far no investors or interested developers so its been a patent system esential shut down of the valuable since I opened my business in 2004 there is nothing in the patent office.

  73. 215

    Ned: “I don’t know yhat we have a clear case of whether a novel use of old physical items of commerce, like bookkeeping forms, or even general purposes computers, for new business purpose would be at patent eligible. ”

    And what point would it prove exactly if such a case existed?

  74. 214

    Ned: “I am defining business method. There really is no judicial definition.”

    That’s not exactly true Ned. The Court in Bilski essentially defines business methods as:

    [a]n orderly procedure or process … regular way or manner of doing anything; hence, a set form of procedure adopted in investigation or instruction”).

    The Court is unaware of any argument that the “‘ordinary, contemporary, common meaning,’” Diehr, supra, at 182, of “method” excludes business methods.) Bilski v Kappos 2010

    So Ned, now that you know the Supreme Court’s definition of business method do you accept it? Why or why not?

  75. 211

    LOL – funny that Malcolm, you alone (again) seem to have trouble understanding what is going on all about you.

    How tight do you have those eyes clenched?

  76. 210

    I have attempted to sift through the smarminess to find some semblance of a point being made.

    There is none.

    Have you seen Leopold? He has quite disappeared.

  77. 208

    yes I have met Prof. Chien

    I take it that meeting occurred before the restraining order was put in place.

    your assessment of the devastation

    There is no “devastation”, you sad clown. Please see a doctor.

  78. 207

    anon: I believe he was responding to the possibility that you think the patent is invalid (for whatever reason). Do you? Or are you starting with a presumption of validity (like, as the law dictates)?.

    Translation: “If you think a patent is invalid, you aren’t trying hard enough to fluff it. Watch me show you how it’s done.”

    [remainder of comment censored out of respect for underage readers]

  79. 206

    “I hope you will agree though, that mental processes without more are not patent eligible because they are mental processes even if they have a business use.”

    No, I will not agree to that because that is not what the law says.

    If the claims as a whole in a process are all mental steps the Court has ruled the claims are an exception under abstract ideas.

    However if the claims as a whole include at least one other step that is not an “exception” to statutory subject matter, the process is, at the very least, is not barred at the threshold by § 101 and the claims may very well be patent eligible. See “In determining the eligibility of respondents’ claimed process for patent protection under § 101, their claims must be considered as a whole.” Diamond v Diehr

    And the “exceptions” are limited to Laws of Nature, Natural Phenomenon, and Abstract ideas [which are court defined as a method that can be performed by human thought alone, ( Cybersource) . A fundamental truth; an original cause; a motive. (Le Roy v. Tatham, 14.) None of those alone are methods of conducting business.

    Now that’s the law, whether you agree with it or not.

  80. 203

    Test,

    What often helps to fix a broken tag is to use that tag, bold, for example and when you close the tag you are using in your own post, repeat the closing tag three consecutive times.

    Happy tagging!

  81. 202

    No, Ned, I have NEVER said that you cannot have an opinion – what I have said (many many many times) is that you need to present your opinion as that and you need to acknowledge controlling law.

    You seem to have a major problem doing that.

    (sigh) another area for you to work on your intellectual honesty

  82. 201

    Congress HAS spoken.

    For crying out loud, Ned. Stop avoiding why Stevens lost the majority position in Bilski.

  83. 200

    There are cases that have held that mental processes are not patentable subject matter

    Ned – how many times must I say the word?

    Anthropomorphication

    machines do not have mental processes

    a novel use…for a new purpose

    You cannot be serious.

    Take a step back and see how ridiculous you are being.

  84. 197

    Trying one more trick to make certain words . And certain words not bold. If this fails can someone please post and let me know how to do it? BTW, this test worked if the word bold is the only word “bold” in the first sentence.

  85. 196

    Last time trying to learn to how to make certain words bold . And certain words not bold.

  86. 195

    STILL trying to learn to how to make certain words bold . And certain words not bold.

  87. 194

    Trying to learn to how to make certain words bold . And certain words not bold.

  88. 191

    When you say there is nothing abstract about conducting a business, I assume you have something in mind that extends to the physical. I hope you will agree though, that mental processes without more are not patent eligible because they are mental processes even if they have a business use.

    Sent from iPhone

  89. 190

    MM: “Hey, look, it’s another “emotional ploy” from one of the patent t–b-ggers. Nobody could have predicted that.”

    INTEGRATION

    Also known to you as….

    BOO!

    :: Sound of tiny feet running away::

  90. 189

    I am not going to dispute at this point whether any case, not overturned, that has ever held that a patent was invalid because it was directed to a business method.

    However, There are cases that have held that mental processes are not patentable subject matter.  The patentability of a business method would depend upon only in those steps that employ physical actions, such as updating bookkeeping forms and the like.  I don't know yhat we have a clear case of whether a novel use of old physical items of commerce, like bookkeeping forms, or even general purposes computers, for new business purpose would be at patent eligible.  

    But I still think not.

    Sent from iPhone

  91. 188

    they they provide a very little cash settlement to inventors that the thefting infringers wont do because there a corrupt money monopoly mob. They want to be in the position to cheat the inventor themselves by paying them a bag of peanuts or less for patents. I wish i could get a commitment from one of them to take on patents that I could concieve but I am not because theres nothing in it for the conciever. The patent office is all empty now of marketable inventions because of these cheap thieves and all the jobs revenues and exports are not happening Oboma

  92. 187

    not a word here in the article about what suits in the past are suposed to be frivilious I dont think they have any examples at all its all just to squash the little guy

  93. 186

    So entities that specialize in assessing, researching and buying patents for a living actually sue on them to monetize to get a return on their investment?

    Wow, who woulda thunk!

  94. 185

    The issue being ignored is the money monopoly that is being assembled by big business to strangle the indegent startups into letting go of there billion doller IP through every dirty trick in the book. They now wont pay anything for it esentially unless its for a member of there goon mob to be hjorse traded up with the original conciever cut out of the deal so the incentive to create is destroyed in top inventors patents that were selling for up to 35 billion are now not hapening and the associated jobs revenues and exports are are zero as well as justice for the worlds only inventor.I am having to require large scale investor commitment just to attempt conceptions because everyother methods is a ripoff using 40 methods of cheating the inventor. America doesent deserve to have a conciever of my caliber with the disgusting treatment

  95. 184

    I was watching the Oboma interview about hijacking the intrests of the big business patent holders and extrorting money. I am assuming that improvement issues not involving the entire product are involved so they need a chart setup to set dependable judgement rates in various circumstances for the value of the patented item in relation to the overall product. Also they need to determine the value as it relates to buying preferance of consumers and also the value of cheated original concievers contribution

  96. 183

    “(aka patent assertion entities or PAEs). Companies J.C. Penney, SAS, Cisco, Johnson & Johnson, & Adobe, ”

    I find this troubling because all Inventors are essentially, patent assertion entities or PAEs. If , J.C. Penney, SAS, Cisco, Johnson & Johnson, Adobe, or any other big company starts using my patented invention, I am going to assert my patent rights. Whether or not I have in fact started using my patent should not matter in the least. To paraphrase Beyonce. If you liked it then you should have paid a royalty on it!

  97. 182

    Not at all. Where have you been? Go back and revisit the threads

    Pure horsepucky Malcolm. You should go back and look at the threads.

    Because the Constitution guarantees you a patent?

    That’s a meaningless attempt to move the goalposts as no one has indicated any type of constitutional guarantee. Can you at least try to stay on point and not kick up dust?

  98. 181

    IBP “so-called “software patents”, in particular, are likely invalid”

    IBP, you are wrong if for no other reason than the fact that “software” is an “Integrated Technological Process.”

    No one on this blog has ever been able to refute this, including you. And no, just calling my argument “Rubbish” is not refuting it!

    Now, if you don’t understand “Integration” and it’s relation to software, I will be glad to explain it to you.

    And while a software process that is not new and useful, or does not pass 112, 102, or 103 can all be reasons to deny patentability, the mere fact that the process is software does not make the invention invalid.

    Any questions?

  99. 179

    Regardless, I think a business utility is hardly within the useful arts.

    You are going to have to deal with reality (and with Congress) sooner or later Ned.

    Have you read Stevens in Bilski yet? Have you read the guest post on Patently-O yet? Have you come to grips that in US Patent Law, business methods ARE recognized as a patent eligible category?

  100. 177

    I know Ned – YOUR definition is wrong. This is US Patent Law we are discussing, not your make believe stuff.

    Do you need me to tell you again?

  101. 176

    His other stuff is far better. But I don’t think you quite understood the English-as-a-second-language that IBP mysteriously slipped into.

    /eyeroll.

  102. 175

    Actually, yes I have met Prof. Chien, and yes, your assessment of the devastation is quite like everything else you post: meaningless.

    I noticed that you haven’t actually addressed anything I brought up in any meaningful way, and have merely waved your hands about as if that would dispel the valid points made.

    I suggest you re-read IBP’s critique of you, unless miraculously he all of a sudden in also stricken with your (projected) inability to communicate.

    Love the bit about checking grammar – yup, just checked and this is still a blog and not a full fledged journal. You might want to focus on the important things rather than grammar or spelling. Saying important stuff with imperfect grammar is way better than saying absolutely nothing with perfect grammar. You might try that some time (if you are not too afraid of burning to cinders any more of your dogmas, that is – what again is the controlling law in regards to the exceptions to the printed matter doctrine?).

  103. 174

    Ned: “I think Bilski already held that abstract methods are not eligible. Why are you complaining?”

    Because you are assuming business methods are abstract methods. When in fact this is not true. There is nothing abstract about conducting business. If it were the Court would have made business methods an exception under the abstract idea rule. That Bilski’s method was applicable to the hedging business had nothing to do with it’s eligibility.

    As you know Bilkki’s claim 4, IIRC, was reduced to pure math. And that is why the method was abstract, and an exception to patent eligible subject matter.

    Ned: “Regardless, I think a business utility is hardly within the useful arts.”

    Name me one patent that does not have a business utility?

    ::Silence::

    You can’t because EVERY patent has a business utility. So by your logic, EVERY patent would be outside the useful arts and ineligible subject matter.

    Any questions?

  104. 173

    Why do you want to kill the dreams of entrepreneurs and prevent them from feeding their families and creating jobs for others?

    Hey, look, it’s another “emotional ploy” from one of the patent t–b-ggers.

    Nobody could have predicted that.

  105. 172

    Ned: “I’m not so certain that the patent laws have approved the patentability of business methods ever. ”

    You can be certain that patent laws have approved the patentability of a process. And a business method is nothing but a process, period.

    And of course you can be certain that no Court or Congress has EVER ruled business methods are an exception to the law, ever.

    If you doubt this then read Bilski:

    “(Section 101 similarly precludes the broad contention that the term “process” categorically excludes business methods. The term “method,” which is within §100(b)’s definition of “process,” at least as a textual matter and before consulting other limitations in the Patent Act and this Court’s precedents, may include at least some methods of doing business. See, e.g., Webster’s New International Dictionary 1548 (2d ed. 1954) (defining “method” as “[a]n orderly procedure or process … regular way or manner of doing anything; hence, a set form of procedure adopted in investigation or instruction”). The Court is unaware of any argument that the “‘ordinary, contemporary, common meaning,’” Diehr, supra, at 182, of “method” excludes business methods.) Bilski v Kappos 2010

  106. 168

    I think Bilski already held that abstract methods are not eligible.  Why are you complaining?

    Regardless, I think a business utility is hardly within the useful arts.

    Sent from iPhone

  107. 167

    Witness the devastation of the (otherwise well crafted) Chen article here.

    Have you ever met Colleen? Pretty sure she’s not “devastated” by your virtuosic baloney slicing. Next time she’s giving a talk, you should ask her one of your “tough” questions. Maybe run it by a friend first, to get the grammar correct etc.

  108. 166

    Malcolm is pure-anti patent (outside of his own little backyard).

    The evidence is right here in every read

  109. 164

    The difference is that I lost it inventing… you lost it stealing.

    Huh? Who lost what by stealing?

  110. 163

    At the same time, however, any effort made by the PTO to improve their operations will be fought tooth and nail by the same crowd.”

    Pure horsepucky.

    Not at all. Where have you been? Go back and revisit the threads Dennis created regarding the PTO budgets and increasing the number of examiners. See what sort of comments are there.

    Of course, if you mean by “improve their operations” a taking of rights or a shifting of duty, well, you need to be a bit more clear

    Because the Constitution guarantees you a patent?

  111. 162

    IBP “Patent trolls” are not the problem, invalid patents are the problem.

    Right. Except that the “patent trolls” and their supporters are, by and large, the same people who have neither seen a patent that they didn’t love.

    Patent trolls don’t care if their patents are invalid. I mean, if they are determined to be valid in litigation, that’s a bonus for them. But other than that, they don’t care.

    Are you aware of any patent troll organization that seriously wants more rigorous examination of patents (and the rate of patent issuance to decrease)? Look at the trollbots who post here. Yes, they happily recite a script about “better examination is the answer” but when it comes to specific — they got nothing. It’s like getting a Republican to go on the record and say exactly which “entitlements” for elderly white people they are going to cut in order to “balance the budget.” They’ll never say. Because that’s not what motivates them. What motivates them is tax cuts for rich people.

    Same with the patent trolls/t–b-gger types. They don’t want “better examination.” They want faster examination and more patents. Period. The evidence is right here in every read.

    The rest of your screed is just … weird.

    This type of re-negotiation of the social contract, piece by piece, is what defines the current evolution of American society. There is no problem with that in the abstract, but when you look deeper, you will see that we are replacing some of the foundational underpinnings of not only America but of much of the post-Feudal world, with concepts that are cumulatively taking us back to that era. …I encourage you to visit China, Africa, the Mideast, Russia, etc..

    What. The. F.ck? I’m not entirely sure what you’re trying to get at but if you’re bothered by the increasing disparity in wealth in our country (certainly a fundamental feature of “feudal” times”) than allowing the already wealthy yet another playground in which to gamble with at the expense of everyone else’s rights is one of the more ridiculous solutios I’ve heard.

  112. 161

    That should be poor Thomas and I was the original conciever of everything they got but was paid nothing. I think the owner might be willing to pay 15% of profits for my conceptions over the years thats what he said but I never know if that real or its just another disapearing offer once conception occurs

  113. 160

    Jeff: “These are key concepts embraced by the United States to create the greatest engine for economic and technological growth that has existed in all of recorded history, thus far.”

    Excellent post Jeff!

  114. 159

    AAA JJ,

    How about the substantive portion of my 1:45 pm post – as opposed to the parsed section you have chosen to focus on.

    LOL – your choice, bourbon or lollipop.

  115. 157

    Ned: A brand of abstract method.

    That definition is itself an “abstract idea”.

    You are simply calling business methods abstract ideas, without any objective definition or legal reasoning!

    You can’t even provide a sound policy reason why business methods are harmful to society.

    Personally I believe business methods should remain patent eligible subject matter because they help our economy grow and create more jobs at a time when we truly need them.

    If a small inventor can come up with a new idea or use of technology that when applied as a process can change an entire industry and make or save business millions of dollars, that inventor deserves the same patent rights as anyone else.

    Have you ever watched SharkTank TV show? The entrepreneurs with patents or patents pending are the ones that get investments. They often have new concepts or ways of doing business that they believe will fill a need and make money.

    The show often does follow ups on the entrepreneurs and they always end up starting a business that has employed one or more people, created good jobs, and added to growing our economy.

    There is no way they could create those jobs and compete against big corps if they did not have patent protection and the capital such patents allow them to attract.

    Ned, why do you want to take this vital engine of the economy away?

    Why do you want to kill the dreams of entrepreneurs and prevent them from feeding their families and creating jobs for others?

    Why are you anti patent?

    Are you anti capitalism or do you just h ate America?

    I don’t understand. :-/

  116. 155

    Bilsky did not define business method

    Clearly, then, your definition MUST be wrong. Tell me what I told you long ago as to the HOLDING of Bilski.

    Aren’t you tired of having to have me hold your hand on this?

  117. 154

    Read as asked.

    Try to distinguish what Stevens would have done in re-writing the actual law.

    TRY a little intellectual honesty here Ned.

  118. 153

    Ned,

    It is you that are employing sheer speculation – tha twould be your IMHo which is not only totally lacking in legal backing, but runs counter to existing law.

    Please stop the nonsense.

  119. 152

    …um, so what?

    Have you actually read the article yet?

    Thought not.

    Stop wasting everyone’s time, Ned.

  120. 145

    PAE – everyone who is not an existing player in the electronic freedom foundation lobbying group

  121. 143

    No. I said you have a reading comprehension below that of 6. Which you continue to insist on demonstrating.

  122. 141

    C’mon AAA JJ – you know NWPA wanted more than just “Yes” to a question of “do you dispute my contention.”

    And you say I have 6’s reading skills…

    try actually reading my post at 12:14, and answering that question therein.

  123. 140

    LOL.

    AAA JJ – while you said “Yes.” your own logic indicates the opposite. trying reading again your post at 12:45 PM. Priceless.

    You are such a wiper.

    Thanks for the chuckles throughout this thread.

  124. 139

    Furthermore, your “humble opinion” is directly contrary to controlling law – see the Stevens dissent-dressed-as-concurrence in Bilski.

  125. 138

    There is nothing (legally) to back up “your humble opinion.”

    I care little for it, as – and we both have nodded to this fact – that opinion is driven by third party interests in violation of the terms of use of this board.

    It’s the reason why you cannot be intellectually honest and the reason why any such discussion is derailed when it nears forbidden ground.

    C’est la vie.

  126. 137

    Ned,

    Find and read the article.

    Then come back with your “I’m not certain” – you will not be able to say that after reading the article.

    It’s time you stopped that particular bunch of nonsense.

  127. 136

    You are running with an unwarranted ASSumption there my wiper’ing friend: my posts are not “insane rantings” and they do not pollute.

    But thanks for the suggestion (even as that suggestion misses the boat about law review publishing).

    I noticed you haven’t chosen a Lemley article. Choose one if you wish that has been accepted by the Stanford law Review if you wish, and I will STILL find things in it that are total B$.

  128. 135

    “I think you need to work on your logic.”

    But nowhere near as much work as you need to do.

  129. 134

    AAA JJ: What? I said they are equivalent to blog posts you said no, then you equate the post with a blog post.

    OK. I think you need to work on your logic.

    You have now agreed with me. They aren’t controlled by anyone. So, their words (article if you must) is equivalent to a blog post.

  130. 133

    You forgot one there honesty how the masterinventor invested all his hard earned money in patent applications then lost everything when he couldent find any investors or trolls to create more patents because there all industrial goons owh wouldent consider paying the person who created there wealth and are trying to buy off senators to stop all inventors and then there allowed to leave the country with congress allowing mergers and aquisitions without an examination period and all there stolen money from previous patent thefts that are now justice obstructed by the AIA by eliminating suits about invention clusters to prove thefts against true concievers and non joiner provisions to disallow true concievers from compensations and on and on

  131. 131

    In my humble opinion, we should not be issuing patents on business methods. This has nothing to do with sectors of the economy business business method patents do not promote the progress in the useful arts. Rather they harm the US economy.

    Sent from iPhone

  132. 130

    What they sue you for is quite irrelevant. The question rather is whether IBM is selling a product Covered  by their own patent. Why don't you tell me just how many IBM products are covered by their own patents or better yet tell me what IBM product as a patent number on it?

    Sent from iPhone

  133. 129

    Anon, I'm not so certain that the patent laws have approved the patentability of business methods ever. They have approved of technology that has a business use, of course. But not business methods per se.

    That all changed With State Street Bank.

    Sent from iPhone

  134. 127

    “Who are these people responsible to? Who controls their behavior?”

    Why should anybody be controlling their behavior? Is there anybody controlling your behavior on this site?

  135. 126

    Here’s an idea for you. Contact the Stanford Law Review and tell them you have an article you’d like to publish. And then come back and tell all of us if getting them to publish what you submit is as easy as it is for you to publish the insane rantings you regularly pollute this site with.

  136. 125

    Really? You want to compare law school grades as if that is relevant to this conversation?

    Your by whom question is the Question. Who are these people responsible to? Who controls their behavior?

  137. 124

    Sanctioned is the correct term in the academic world.

    The fact that you don’t even recognize this says a lot about how you are thinking of these “journal articles.”

    And, I asked a straight question and got back a non answer.

  138. 123

    Can someone ban this guy from the board? His rants preclude civil discussion on what is an important issue.

  139. 122

    more editorial controls

    what color is the sky

    LOL.

    Gee controls without force are, um, what exactly?

    And note, even this blog with its lax attention to written terms of use and bans on l_ying (yet with no force), is not completely without control.

    You are such the card AAA JJ (well, five of them to be precise).

  140. 121

    Good one there honesty if only we had less corruption in congress and more inventor representation we need laws to fine the corperate contributors of these senators and the senators voting in favor of for only considering one side of the story not to mention shutting down human advancement and the american dream of climbing the ladder of sucess through partnershipping with master concievers and the disincentive to create causing no job cretion revenues and exports

  141. 119

    How about that these so called trolls that the industrial goons are villanizing are actually patrollers of infringement enforcement that represent the only method of recieveing any compensation for the conciever so restricting or eliminating them will cause loss of jobs revenues and exports. They should be called the paralegal contingent attorneys of the indegent

  142. 118

    You must not have been on law review while in law school.

    Sanctioned? For what? By whom?

    What color is the sky in your world?

  143. 117

    And what are those controls? What is the evidence for these controls? When was the last time a law professor was sanctioned for an article?

  144. 116

    “Do you dispute that?”

    Yes. I’m sure there are more editorial controls at the Stanford Law Review than there are on anonymous blog postings. The postings from you and anon are proof of that beyond any reasonable doubt, beyond any shadow of a doubt, or any other variation of doubt you’d care to consider.

  145. 115

    >>But curing the patent problem requires general >>solutions … not ones targeted just at patent trolls.

    Wow, so Risch actually wrote something I agree with and is reasonable.

    “with a grain of salt.” — AAA JJ: read what I wrote above. There are no more controls on one of these scholarly journal articles than a blog post. Do you dispute that? If not, then you should can the sarcasm.

  146. 114

    Prof. Michael Risch has a different opinion than Prof. Chien.

    link to wired.com

    Of course all of these academics are liars who are secretly enriching themselves by publishing these articles, so take whatever he says with a grain of salt.

  147. 113

    You forgot one: we do not have a robust marketplace for buying or selling patent rights

    And yet, attack those in the existing marketplace who buy others’ property and make it difficult (e.g. SHIELD Act) to actually use that property as is allowed by law (and in the process denigrate such use as “abuse”).

    As noted onthe other thread, one possible outcome is to clear the field of the ‘lessor’ trolls and only leave the vacuum created to be inhabited by the super trolls (and Troll Universities).

    Morass indeed.

  148. 112

    You forgot one: we do not have a robust marketplace for buying or selling patent rights

    And yet, attack those in the existing marketplace who buy others’ property and make it difficult (e.g. SHIELD Act) to actually use that property as is allowed by law (and in the process denigrate such use as “abuse”).

    As noted onthe other thread, one possible outcome is to clear the field of the ‘lessor’ trolls and only leave the vacuum created to be inhabited by the super trolls (and Troll Universities).

    Morass indeed.

  149. 110

    Remember about 2 weeks ago when Anon went through a sort of meltdown?

    LOL – never happened.

    As for Malcolm and his “trajectory,” as I posted, this is nothing new from him. He’s had the same trajectory” forever.

    More likely, this is merely a topic in which you see the difference. Also as I posted, his vacuousness is more quickly noticed by some.

    btw – very nice posts above.

  150. 109

    Mooney, you should be embarrassed by the trajectory of your posting history on this thread.

    I think Anon’s gotten inside your head. Remember about 2 weeks ago when Anon went through a sort of meltdown? I thought it was you who had gotten to him, but I can now see that his response to your stimulus was an all-out carpet bombing…and it seems to have worked to some extent.

    Your armor has been pierced, and your psychological entrails are showing.

  151. 108

    Who? Who are you?

    – as might be asked by Pete Townshend.

    Bonus:

    I woke up in a Soho doorway
    the policeman knew my name
    He said, “You can go sleep at home tonight
    If you can get up and walk away”
    I staggered back to the underground
    The breeze blew back my hair
    I remembered throwing punches around
    And preachin’ from my chair

    I guess ‘soapbox’ was difficult to rhyme…

  152. 107

    Hear! Hear! You might also add that the patent and copyright clause is the original and only constitutionally recognized industrial policy of the US. The property right. And our Government was formed to protect property rights under a rule of law – not a king’s court.

  153. 106

    IH and especially Night Wiper,

    Totally agree. Absolutely. This article does not qualify as “scholarship”. Nor does the previous one on GUI design patents.

  154. 105

    Indeed, and how how about the irony that the patent troll fixes to date have actually created the economic incentives for more so called trolls i.e.,

    ebay – make market relief uncertain

    ksr – create an objectively unreviewable common sense standard.

    PTO – reject the finality of the courts – create a king’s court and re-litigate every patent post trial

    AIA – create another king’s court – and obviate the 7th amendment’s right to impartial trial.

    This all creates expense, time delays, and uncertainty around the patent right. Thus is it any wonder that even more patents are sold to a patent enforcement entity – that can navigate this morass?

  155. 104

    Ned is correct – and obviously knows what is he talking about here. I would further contribute that IBM is using its non practicing patents to leverage sales of its existing products and:

    IBM – leveraging websphere sales with its non-practicing portfolio.

    NCR – leveraging its copier and printer sales with its non-practicing portfolio

    Bell Labs – of at least a piece of its portfolio – leveraging sales for Lucent.

    Apparently too microsoft. In other words, patent monetizing class 601.

    Smart organizations use IP rights to get all sorts of benefits besides pure cash, for example, product sales – which wall street likes and not license fees which wall street discounts as one time payments. Sales of course helps the share price multiplier, but one time events do not. This is an entire class of NPE that is not counted because this is ‘good’ v ‘bad’?

  156. 102

    And, note they can say things in these “journal” articles that could get them sanctioned in court.

    In this aspect, the low quality level blog posts are no different. Yet we are plagued with those constantly recurring post-ignore-valid-counterpoints-run-away-and-post-the-same-c_rrp-again-later, as well as clear violations of posted user rules, with no consequences.

    C’est la vie.

  157. 101

    Requiring the PAEs to pay statutory rates to patentees say minium 33% would ensure retention of incentive to create for invention concievers and sufficient money to fund new projects to become practicing entities. A minium of 15% for concievers in negotiations with the few patent purchasing entities and triple damages for intentional infringers will work progressivly to continue incentive to create and associated jobs revenues and exports.

  158. 99

    and, anon, you are right there is no argument with them.

    The irony of course is that their little pea brained articles are just like the fictional patent they wish to destroy. They have a presumption of validity for publishing in a law journal but no examination has occurred. And, the presumption of validity is a high bar because of their tenured professor position. Yet, they make money from their “professor” jobs and use them to try and become celebrities and not scholars. And, there is no consequence or control no what they say.

    And, note they can say things in these “journal” articles that could get them sanctioned in court.

  159. 98

    I am not sure what they are. Something new. I think they are riding the academic ship into the bottom of the sea and using up what little reputation for integrity was left.

    They are money hounds, publicity hounds, brigands really, that are using the farce that a law “professor” is anything but a person on loose with no controls to get what they can.

    And, the key here, is no controls. If a science professor said the things Lemley had in a journal article, they would be dismissed for academic integrity violations.

  160. 97

    I quite agree anon. These law “journals” need to be exposed for what they are–soapboxes as I describe above.

    Additionally, law “professors” like Lemley need to be exposed for what they are. They should not be on NPR with a presumption that somehow they are representing the “truth” or that they are academics. They are not academics. They should have to disclose where they are getting their money. And how their “articles” are as described above.

  161. 96

    You are being rather hard on blogs, NWPA.

    At least on blogs you have a chance for some immediate feedback and toning down of the soapbox claptrap.

    Witness the devastation of the (otherwise well crafted) Chen article here.

    Had this item not been featured on a blog, the counter points would have had no home, and the absolutely ridiculous and vapid Malcolm supporting points would never been seen (there is value in Malcolm’s posts as an example of what not to do).

  162. 95

    So, just to be clear: the farce here is law professors pretending that their “publications” are like a science journal.

    These are vanity press non-reviewed, non-consequences for misrepresentation or being wrong, extended blog posts.

  163. 94

    What gets me about this “research” is that these “professors” also don’t disclose that they are making money from taking their viewpoints.

    So, let’s rename The Stanford Law Review, the Stanford Law Blog. That is a far more accurate name.

  164. 93

    IH: in our modern world the “academic” don’t try to disprove their hypothesis nor offer information leading to different hypothesis.

    The law professors are particularly egregious because they publish in non-peer review vanity presses and are not subject academic discipline for ly..ing in the “articles.” These “papers” should be accorded the weight according to the publication process they have to go through (nearly zero), and the potential damage to the authors for ly..ing, omission, or just being wrong.

    In science, such as a journal like Nature the consequences would be career ending—here there is no one to call them out.

    So, be real, professors. You “papers” should be accorded no more weight than an extended blog post.

  165. 92

    Maybe that’s why she’s still an “assistant” professor. Need to be a bit more classy and objective to wear the brass ring.

  166. 91

    On a brighter note, I really like all the colorful graphs. A splash of color to otherwise drab black print is a nice touch.

  167. 90

    I have a real simple question: how has this affected the spending on innovation? My guess is that it is going way up. Microsoft started their giant research center for patents.

    Additionally, what counter-measures are the corps taking and what can they take? Maybe all this is good.

    I’d also say again (and again) that a lot of this is caused by Benson. Benson encourages people to obfuscate the invention. Judges like Moore who try to force more to patent applications obfuscate the invention.

    My gut tells me the way to solve this if I were a corp would to start the submissions at the patent office. Also, my gut tells me the way to solve this is to have made the PGR much more effective.

    Has anyone thought of these things? What tool could be given to the corp? What about more disclosure?

    Think arms race in innovation. This is not necessarily a bad thing.

  168. 89

    LOL – sounds fair enough, as Ned wants to waffle on what “software” is – and yet is in full crusade mode against this thing called business method patents.

    ps: make sure he gives you a proper legal citation for it – and if he his following his pal Malcolm, make sure that that is a proper citation from the Supreme Court (and make sure he does not try to hoodwink you with his one example equals whole category nonsense by prefacing your request with the question of whether he believes Prometheus has outlawed all medical method patents).

    Then watch him try to derail the conversation when he realizes that it will go against his third party benefactors.

  169. 88

    In all fairness, her (or a non-biased researcher’s) next effort should be:

    Patent Pirates by the Numbers.

    She could start by using the PTO assignment database to locate a representative sample of inventors who sold their patents to PAEs to gather data on:

    1. How they didn’t have the money to bring their inventions to market.

    2. How they were ignored by the infringers after they in good faith attempted to partner with, license, or sell their patents to them.

    3. How they then had to settle for pennies on the dollar by having to sell out to a PAE in order to get anything for their inventions.

    We probably shouldn’t hold our breath for that one though, should we.

  170. 86

    Of course to get things rolling in a progressive direction you need immediate novelty check and lockering to decide simple conception inventorship due to interoffice files insertions corruption. Then enforcing no startups using that invention are allowed then auction bidding on the valuable marketable invention with a partner with sufficient capitol to fund the due diligence to avoid takeover. This way you get rid of the troll and make him a business partner now theres progress

  171. 85

    Why; from the inventors, of course.

    Welcome students to Patents 101.

    Now please take your seats and get ready to learn.

    Yes, MM; that includes you.

  172. 84

    Everything this congress does is backwards and corrupt. There making a big deal about 59% of patrollers (trolls) are bringing suits compared to 5% of inventors. What they need is a law to require that every indegent inventor filing a valuable patent has either a troll or partner with financial backing so he wont be cheated of his intellectual property by inability to defend the patent against all legal theft methods now theres progress not regression like they want.

  173. 83

    “However, it also documents a significant emotional toll: people said demands have “invoked rage over the waste of time,” made a target “very very angry,” “ruined family friends” and caused “stress” and “ill‐will generation [sic]”:

    Well… I have to ask… are you angry because you stole someone else’s patented invention? Or because they caught you?

    ““it was agonizing to hand over all the money we had earned from a product we had invented and created ourselves to a firm that invents nothing and creates nothing. Our founder has since lost his house, car [sic] all his assets.””

    I have to laugh at this. So did I! The difference is that I lost it inventing… you lost it stealing. The other difference is that I lost far more including my career, my professional credibility and 13 years of my life.

  174. 82

    I believe he was responding to the possibility that you think the patent is invalid (for whatever reason).

    Do you? Or are you starting with a presumption of validity (like, as the law dictates)?

    Let’s presume for argument’s sake that you agree the patent is valid. Then the issue is litigation abuse. A problem for which the ‘solution’ of wrecking the patent system is an excessively poor answer. You need to address the rules of civil procedure (including Rule 11).

    However, any such logical indication is completely missing from any of your posts today.

    Pick up your arrows (you don’t have to reach far), and try again.

  175. 81

    Gosh, where have I heard this sort of griping about facts before?

    (sigh)

    There is NO griping about facts. However, there is disgust at the biased spin.

    You really need to recognize the difference instead of tendency to [shrug] and stand by (hint: the word you want to understand is credibility; another good one is objective).

  176. 80

    103 works just fine. No need to wipe out segments of the economy just to get rid of nuissance.

    Burning down part of your house to get rid of a mouse is a poor plan.

  177. 79

    I would add the pertinent legal citation of 35 USC 101:

    Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, OR ANY NEW AND USEFUL IMPROVEMENT THEREOF, may obtain a patent therefor, subject to the conditions and requirements of this title.

    To further Jeff’s analogy, this allows you to build a second floor on an existing building, and prevent the first floor owner from coming upstairs. Of course, this does NOT give you the right to move through that first floor to “USE” that second floor.

  178. 78

    Wall of text broken down (and highlights added) for your reading enjoyment (nice post Jeff):

    MLM, “the right to exclude, but not the right to produce or sell” refers to the fact that each issued patent is burdened by, and only stands beside but not above or below, all other issued patents, like property deeds in a filing cabinet for a series of adjacent lots of real property in a subdivision.

    A property developer cannot build a new development on adjacent lots that she did not purchase, nor can an inventor produce, use or sell a product that includes inventions made by others, the various inventions related to her own, unless she first obtains permission from each of the other inventors.

    Perhaps it is not too “hard to see what use patents are at all”? Patents are an engine for economic and technological growth and progress “in the useful arts”.

    The right to exclude is the right of the inventor to exclude others from what the inventor has invented. Perhaps the inventor invented a better mousetrap or a time machine to use for her own benefit, or perhaps for the benefit of others.

    The motivation of the inventor, and her intentions, are irrelevant to the patent rights granted to her.

    The People of the United States, by enacting the Patent Statute into law, have established a Patent Office and an examination process for the purpose of “promoting progress in the useful arts” which guarantees all inventors that their patent applications, when disclosed to the public for the purpose of informing the public of the inventions, will be examined and where standards for utility, novelty and non-obviousness have been met, certain patent rights will be issued to each inventor.

    The Patent Statute reflects a balance between encouraging inventors to disclose and explain their inventions to the public, rather than keeping them secret and hidden, in exchange for the guarantee of patent rights.

    Each inventor’s patent rights are limited only to the exclusive rights to make, use and sell the claimed invention in the United States for a limited period of years. These rights are intended to provide the inventor the sole right and opportunity to exploit the invention during the limited period of years, but not beyond.

    The opportunity for others who are not the inventor to make, use and sell the invention protected by a patent does not exist at all during the life of the patent, and during the life of the patent can be lawfully obtained only by permission of the inventor.

    Apparently to the amazement of some folks, the patent statute provides the inventor the right to exclude even the largest, most powerful corporations in the world from making, using or selling the invention without her permission, but again only during the life of the patent.

    These are key concepts embraced by the United States to create the greatest engine for economic and technological growth that has existed in all of recorded history, thus far.

  179. 77

    Of course, the patent t–baggers will say that the real problem is that “better examination” is needed. At the same time, however, any effort made by the PTO to improve their operations will be fought tooth and nail by the same crowd.

    Pure horsepucky.

    Of course, if you mean by “improve their operations” a taking of rights or a shifting of duty, well, you need to be a bit more clear in the translation from your other-worldly ‘wisdom.’

    attempt by the courts to clarify or change the law to prevent

    One does not ‘clarify’ to prevent. Nice ‘code word’ for activist-court-re-writing-the-law-to-suit-an-agenda. As to change, well, we all know who has the authority to change the law (hint: see the 1952 Act and the Constitution).

    Go figure indeed.

  180. 75

    Yeah, I guess I agree…. its all telco and shipper. Maybe there are dependent claims to which the shoe sellers contribute infringing activity?

  181. 74

    MLM, “the right to exclude, but not the right to produce or sell” refers to the fact that each issued patent is burdened by, and only stands beside but not above or below, all other issued patents, like property deeds in a filing cabinet for a series of adjacent lots of real property in a subdivision. A property developer cannot build a new development on adjacent lots that she did not purchase, nor can an inventor produce, use or sell a product that includes inventions made by others, the various inventions related to her own, unless she first obtains permission from each of the other inventors. Perhaps it is not too “hard to see what use patents are at all”? Patents are an engine for economic and technological growth and progress “in the useful arts”. The right to exclude is the right of the inventor to exclude others from what the inventor has invented. Perhaps the inventor invented a better mousetrap or a time machine to use for her own benefit, or perhaps for the benefit of others. The motivation of the inventor, and her intentions, are irrelevant to the patent rights granted to her. The People of the United States, by enacting the Patent Statute into law, have established a Patent Office and an examination process for the purpose of “promoting progress in the useful arts” which guarantees all inventors that their patent applications, when disclosed to the public for the purpose of informing the public of the inventions, will be examined and where standards for utility, novelty and non-obviousness have been met, certain patent rights will be issued to each inventor. The Patent Statute reflects a balance between encouraging inventors to disclose and explain their inventions to the public, rather than keeping them secret and hidden, in exchange for the guarantee of patent rights. Each inventor’s patent rights are limited only to the exclusive rights to make, use and sell the claimed invention in the United States for a limited period of years. These rights are intended to provide the inventor the sole right and opportunity to exploit the invention during the limited period of years, but not beyond. The opportunity for others who are not the inventor to make, use and sell the invention protected by a patent does not exist at all during the life of the patent, and during the life of the patent can be lawfully obtained only by permission of the inventor. Apparently to the amazement of some folks, the patent statute provides the inventor the right to exclude even the largest, most powerful corporations in the world from making, using or selling the invention without her permission, but again only during the life of the patent. These are key concepts embraced by the United States to create the greatest engine for economic and technological growth that has existed in all of recorded history, thus far.

  182. 73

    They do not sue you to protect their own products. They sue you to make money for their patent assertion business.

    Can you list all the patent lawsuits IBM has been the plaintiff in the last 10 years.

  183. 72

    I can tell from your postings that you are the kind of guy who regularly talks the talk but has never walked the walk… You appear to have a lot to learn.

    LOL – some of us catch on to that much quicker.

  184. 71

    Perhaps, as customers of such a phone company and subscribers to such a service, the shoe company or its shipper are contributory infringers?

    Of a method claim? My guess is that this is what the plaintiff will argue, but I don’t think there’s any basis for such a theory in the law.

  185. 70

    but those limits are predicated on who the party is, rather than on what they are doing

    LOL – Lady Justice (blindfold and all) welcomes you to the club.

  186. 69

    Come now, MM, such a response is unworthy of your apparent intellect… Your response was a bit surprising.

    You don’t often read his c_rrp, do you IBP? There is ZERO surprise at what Malcolm is throwing against the wall.

  187. 68

    The quoted portion should read:

    Patents provide the right to exclude, not the right to produce and sell…”

  188. 67

    Patents provide the right to exclude, right to produce and sell…”

    That is precisely why it is nonsensical to think that any poorly written proposal for law (for example, the SHIELD Act) can simply graft on a “must use” type of requirement. Such is fundamentally ignorant of US patent law.

  189. 66

    It is not credible that requiring a would-be or existing NPE to post a bond in litigation will change their current or future behavior to make them practicing entities, especially if the reason they are not practicing derives from inadequate financial resources.

    Notice that the result of not posting a bond, if I am not mistaken, is that the dispute is decided in favor of the defendant on summary judgment. Such an outcome effectively transfers legally earned property rights from the plaintiff to the defendant, without even any attempt at compensation for that defendant for the deprivation of their property. (Please correct me if I am mistaken.)

    The social inequity is obvious. This is a massive step beyond the idea of a compulsory license, it is a compulsory free license, which is a vitiation of the property rights initially granted under the quid pro quo.

    Society has made its bargain, and it’s a balanced one. This type of re-negotiation of the social contract, piece by piece, is what defines the current evolution of American society. There is no problem with that in the abstract, but when you look deeper, you will see that we are replacing some of the foundational underpinnings of not only America but of much of the post-Feudal world, with concepts that are cumulatively taking us back to that era.

    I make no judgment on that other than that much good “progress”–along with much bad progress–has occurred since the change. I appreciate the subsequent developments in art, music, science, philosophy, medicine, law, etc. that have occurred–and make no mistake, they have occurred in areas that recognized the concept of private property ownership, and not generally in others, and thus the concept of private property ownership can and is rightfully said to have been in part responsible for those developments.

    I can tell from your postings that you are the kind of guy who regularly talks the talk but has never walked the walk. I encourage you to visit China, Africa, the Mideast, Russia, etc.. I also encourage you to file and prosecute some of your own applications so that you know and understand what it means to be a patent owner, from the inside. I also encourage you to live homeless for a substantial period, and thereby gain the understanding of how the concept of private property ownership shapes our current social relations in ways that are currently inaccessible to your understanding.

    You appear to have a lot to learn.

  190. 65

    Any NPE-related legislation will represent only further restrictions on the ownership of private property, even if that property is IP. Ever since Kelo v New London, I’ve been extremely wary of government restriction on the use and ownership of private property. It is a further erosion of one of the fundamental principles of US citizenship.

    Trolls should not be disparaged for adhering to the rule of law, which is responsible for the preservation of civil society.

    Nor has a compelling argument yet been made that their behavior is generally socially undesirable to any extent, in particular to the extent that a new social policy needs to be articulated and effected through law. Why? Because the current policy is based upon, again, a foundational aspect of US citizenship and governance, that of personal property. The way I hear new policy proposals articulated, they are founded in no principle as foundational as that of private property ownership.

    Yes, I understand that the point here is not to divest anybody of any personal property, it is just to place limits on the use of that property–but those limits are predicated on who the party is, rather than on what they are doing. In order for this type of system to make any sense, there has to be a class that is worthy of “protection” relative to another class(es). Who is that class here, practicing entities? Socially, why are they deserving of more protection than NPE’s? Both classes have satisfied the legally required quid pro quo. There can be any number of reasons an entity is not practicing–delayed implementation, gaps in financing, lack of financing, strategic planning, etc.–that are not morally reprehensible in any way, and it is socially unjustifiable that they be relatively punished on the basis of their intentional or unintentional status as NPE’s.

  191. 64

    “Patent trolls” are not the problem, invalid patents are the problem. Any patentee holding a good patent has satisfied the quid-pro-quo demanded of him–a term of protection in exchange for public disclosure.

    As for the prohibitive cost of responding to an infringement suit, much of that cost, along with the uncertainty, IMO derives from the ill-defined and murky state of patent jurisprudence. That is not the fault of NPE’s, and to the extent that NPE’s avail themselves of whatever advantages that might confer, so does everybody else who adheres to the rule of law, even if the relevant law is uncertain.

    Your response was a bit surprising. You know that I can’t stand invalid patents, that I think 101 should be used as a substantive test to filter out invalid patents under SS&C utility, and that therefore so-called “software patents”, in particular, are likely invalid as written or, if valid, are extremely narrowly drawn.

  192. 63

    The “patent system” is made to be “exploited”, and is so exploited by anybody who uses it. What society should be interested in should be any generally socially undesirable exploitation thereof, and the determination of that undesirability is where the real game lies.

    I have yet to see any compelling argument that NPE activity is generally socially undesirable, and that includes anything that anybody has ever posted on this blog including this most recent article.

    The real generally socially undesirable phenomenon about which we need to be concerned is the issuance of invalid patents by the PTO. The most important thing is that PTO examination needs to be cleaned up, and the second most important thing is that post-issuance validity challenges have to be made more economical, if possible.

  193. 62

    Come now, MM, such a response is unworthy of your apparent intellect.

    I personally am a member of the professional legal class, which means that I am sworn to uphold the rule of law and not bring the legal system that is based upon that rule of law into disrepute, and that I am authorized to represent people’s interests in that pursuit.

    My perspective is party-neutral (parties to a dispute, that is) and apolitical. Both large and small entities are so-called NPE’s or PAE’s or whatever. I don’t insert value judgments at this point, and therefore don’t apply disparaging monikers such as “grifter” and “skimmer” to any of the involved parties, or classes of party, and I don’t use terms like “exploit” in a value-laden way.

  194. 61

    Let the record show that the witness has attempted to change the subject from the plight of individual inventors to the availability of Cheetohs in his apparently poorly run convenience store.

  195. 60

    Can someone help me understand what it means to “use patents … as a basis for producing and selling goods”? Patents provide the right to exclude, not the right to produce and sell, correct? If you don’t intend to “use” your patent to exclude or obtaining licensing fees from others (or as a defensive threat to exclude or obtain licensing fees from others), then it is hard to see what use patents are at all.

  196. 59

    “Do you think the online shoe retailer is likely to have charged its customers a subscription fee for this advance notification service?”

    No. Furthermore, the preamble of claim 1 would seem to limit infringers to telephone companies.

    Perhaps, as customers of such a phone company and subscribers to such a service, the shoe company or its shipper are contributory infringers?

  197. 58

    Facts are facts.

    Spin, however, is what makes you such an excessively poor blogger.

    Just [shrug] and stand by.

  198. 56

    How are patent assertion entities or PAEs identified? Is there a list of alleged PAEs somewhere?

  199. 55

    1 and 2 are functions that can be performed by the computer you provide, while d and e are the corresponding functions performed by you, using the computer. Why was it written this way? Who knows.

    So, do you think an online retailer of shoes is likely to track the location of a vehicle using a computer that communicates with another computer on-board the vehicle? Do you think the online shoe retailer is likely to have charged its customers a subscription fee for this advance notification service?

  200. 53

    spilling over into the non-useful arts

    LOL – you remain clueless 6, thus hardly worth a comment (and I do so merely to point out that the laughter you hear is not laughter with you)

  201. 52

    These statistics ignore where is the innovation truly coming from

    Where is today’s “true innovation” “truly coming from”, David?

  202. 51

    At this time we’d like to thank Miserable Failure Kappos for doing his best to make the current mess worse

    chapter three: denigrate denigrate denigrate.

  203. 50

    essentially business methods… man who brought you all this chaos has a name

    ! Canard Alert !

    Ned,

    Prof. Crouch had a guest post a story that explicated in great detail the fact that business method patents have been approved by the Patent Office throughout its history – and thus your targeted vehemence is quite misdirected.

    Of course, this is no surprise, as I have notified you of this many times now, and yet you continue to ploy your agenda in the typical lack of intellectual honesty.

    Please stop your nonsense.

  204. 49

    I agree with Malcolm that the real problem here are vague claims to essentially business methods. The man who brought you all this chaos has a name. We know who he is.

    But that man is a hero to the patent bar who only have one issue, their billings. The greater, the better.

    Litigators also like chaos.

    The Federal Circuit has to do something and it is not suppressing PAEs. It has to do with suppressing the era of Rich.

    If the Federal Circuit does not do something, Congress should, and it should be essentially banning business method patent, fixing 112, p. 2 to put more teeth into it, etc.

  205. 48

    So, 62% of the time this legislation proposes to award the the benefit of the an invention to the company with the means to manufacture the technology, regardless of whether or not they actually invented the technology. The above statistics ignore and the “troll” and PAE designations ignore whether the basic question of whether the remaining patent system will ecourage innovation by rewarding the true innovators. These statistics ignore where is the innovation truly coming from and the ability of the true innovator to profit from their innovations – or at best suggest that the proposed legislation will destroy any real incentives that patents provide for innovators to innovate.

  206. 47

    That “computer based notification system” claim is a real hoot.

    1. A computer based notification system, comprising: means for enabling communication with a user about the status of any process that can be monitored by a computer, wherein the process comprises a [insert anything allegedly “new” here about the information being provided, its source, or the recipient].

    That’s an ancient system and it was ancient when this patent was filed. Any variation and all varations that differ merely by the recitation of different sources, content and recipients of information are per se obvious and unpatentable as such unless there is a novel, non-obvious machine or novel, non-obvious transforming process involved as of the filing date (and recited in the claim in a non-functional manner.

    At this time we’d like to thank Miserable Failure Kappos for doing his best to make the current mess worse. Enjoy the paychecks, Dave.

  207. 46

    like when poor Ford had to defend itself from that evil “troll” that invented the intermittent windshield wiper?

    Robert Kearns is the furthest thing from the grifter/skimmer class that is presently exploiting weaknesses in the US patent system.

  208. 45

    Of course, the patent t–baggers will say that the real problem is that “better examination” is needed. At the same time, however, any effort made by the PTO to improve their operations will be fought tooth and nail by the same crowd.

    Likewise, any attempt by the courts to clarify or change the law to prevent this kind of anti-progress j–k from being issued so casually will be met with derision by the same crowd. Go figure.

  209. 44

    vehicle computer-based apparatus
    determine locations of said vehicle as said vehicle travels
    notified … of the impending arrival of said vehicle

    Classic example of the pure j–k that the patent t–baggers embrace with glee: take ancient information processing “technology” and toss in some “limitation” about a “new” type of content being “processed” and/or a “new” location from which the content is being received/sent. Voila! The USPTO hands you the patent and you are good to troll.

    Next up: “wherein the vehicle is a shade of red”
    “wherein the location is in another state”
    “wherein the subscription fee is rounded off to the nearest dollar”
    “wherein the vehicle is approaching at a rate between 37 and 84 miles per hour”
    “wherein the vehicle is an electric or solar powered vehicle”

    Rinse, recycle, troll, repeat.

  210. 43

    How about fixing the amount based on size of the company. A google using Motorola patents would pay lot more if they loose than a smaller company?

  211. 42

    Yes, I do know what reexam is. But what does that have to do with whether an online retailer of handbags infringes the claim I posted?

  212. 41

    From some of the other patents in the suit:

    1. A method, comprising the steps of: monitoring travel data associated with the vehicle; comparing planned timing of the vehicle along a route to updated vehicle status information; contacting a user communications device before the vehicle reaches a vehicle stop along the route; and informing the user of the vehicle delay with respect to the vehicle stop and of updated impending arrival of the vehicle at the vehicle stop, based upon the updated vehicle status information and the planned timing.

    1. A system for monitoring vehicle travel and for reporting vehicle status information, comprising: a storage mechanism configured to store travel data transmitted from communications devices associated with vehicles being monitored by said system; a data manager configured to receive a request transmitted by a user, said request including information sufficient for identifying one of said vehicles, said data manager further configured to retrieve travel data associated with said one vehicle from said storage mechanism in response to said request; and a first communications device configured to transmit a message to a second communications device, said second communications device located remotely from said first communications device and associated with said user, said message based on said travel data retrieved by said data manager and indicative of a proximity of said one vehicle from a particular location.

    1. A computer based notification system, comprising: means for enabling communication with a user that is designated to receive delivery of a package; means for presenting one or more selectable options to the user, the selectable options including at least an activation option for instigating monitoring of travel data associated with a vehicle that is delivering the package to the user; means for requesting entry by the user of a package identification number or package delivery number, each pertaining to delivery of the package; means for identifying the vehicle based upon the entry; means for requesting entry by the user of contact information indicating one or more communication media to be used in connection with a notification communication to the user; means for monitoring the travel data; and means for initiating the notification communication pertaining to the package via the one or more communication media, based upon the travel data.

  213. 38

    As if on cue, a company named ArrivalStar filed 14 cases today, several of which are complaints against online retailers of shoes, handbags, scarves, and fishing supplies. Their concern appears to be that these defendants provide a “Your Package has Shipped” notification.

    These patents passed through a few hands before being assigned to a Virgin Islands entity named Melvino Technologies, who apparently licensed the patents back to a Luxembourg company, ArrivalStar SA. According to earlier press reports, over 100 cases had been filed over these patents as of 2011. Apparently in some cases the demand to the alleged infringers was as low as $110K.

    Here’s claim 1 from one of the patents at issue. I’m still trying to imagine how an online retailer of purses goes about infringing it:


    1. A method of doing business to be implemented by a telephone company for its telephone subscribers, comprising the steps of: (a) offering for sale an advance notification service to the telephone subscribers for a subscription fee, the advance notification service for causing a subscriber telephone interface associated with a subscriber to be contacted prior to arrival of a mobile vehicle at a predetermined location; (b) providing a computer-based apparatus associated with the telephone company, said computer-based apparatus comprising a communications device and a processor electrically connected to said communications device, said processor programmed to perform the following steps: (1) tracking locations of said mobile vehicle as said vehicle travels by communicating with a vehicle computer-based apparatus on said vehicle using said communications device, said vehicle computer-based apparatus configured to determine locations of said vehicle as said vehicle travels; and (2) transmitting a notification message to said subscriber telephone interface when said vehicle is en route to and approaching, but not yet at, said predetermined location, so that said subscriber is notified in advance of the impending arrival of said vehicle at said predetermined location; and (c) billing said subscription fee in a telephone bill to one of said telephone subscribers that subscribe to said advance notification service; (d) tracking locations of said mobile vehicle as said vehicle travels using said computer-based apparatus of said telephone company; and (e) transmitting said notification message to said subscriber telephone interface when said vehicle is en route to and approaching, but not yet at, said predetermined location, so that said subscriber is notified in advance of the impending arrival of said vehicle at said predetermined location.

  214. 37

    Is that what you do? run a Convenience store?

    Sorry, Les. We’re all out of Cheetohs.

    Reminder: Les believes that purely mental processes should be eligible for patenting. Keep that in mind when reading his comments regaring what sort of changes are necessary to improve the US patent system.

  215. 36

    “like Ford, which has also testified against trolls, financial services, and consumer products. ”

    Ya mean like when poor Ford had to defend itself from that evil “troll” that invented the intermittent windshield wiper?

    Poor weak tiny Ford lost that one to that Evil Troll too…

  216. 35

    n reading the headlines only, I found myself thinking after each one “OK, so what?”, thinking immediately of the legal context in which the headline exists, and how society has already chosen to address the issues.

    This “logic” can be used in any context to justify inaction and, in fact, has been used regularly by conservatives to oppose changes that would negatively impact stakeholders. See, e.g., civil rights.

    We will likely see Congressional action on this, because of either or both Congressional inability to understand the issue, or an inevitable adherence to the flawed mechanics of Congressional decision-making.

    Or maybe because something needs to be done to stop grifters and skimmers from exploiting the patent system.

    it would represent a step backward rather than forward.

    Only if you are a member of the grifter/skimmer class.

  217. 34

    Well, it is apparently hard for you to understand how much you owe to these “individual inventors”.

    As I understand it, this patent resulted from a couple a guys working in a garage:

    link to google.com

    It lead to a few jobs being created… so… you know…

    Is that what you do? run a Convenience store?

  218. 33

    “Though the PAE share may surprise some, patented technologies like software are the building blocks of modern commerce. “Low-tech” industries like funeral homes, advertising agencies, and retailers like JC Penny which is testifying today are all taking steps to protect themselves from troll demands. Though historically a “tech” problem, in 2012 PAEs sued more non-tech companies than tech companies, according to the analysis below by Patent Freedom, which provides market intelligence on patent trolls. Retailers are hit the hardest by non-tech PAE suits, followed by automotive like Ford, which has also testified against trolls, financial services, and consumer products. So expect a broadening of the coalition to deal with trolls especially as many in these sectors are likely being sued over their use rather than making of technology.”

    It looks like the world may yet start to be waking up to the problem of patent lawl, designed for the useful arts, spilling over into the non-useful arts.

  219. 32

    The good professor says that the hearings in Congress are to consider litigation abuse By patent assertion entities. But of one reads to Shield Act, it seems that the assertion is that patent assertion entities are the abuse and the objective of the hearings is to put an end not the litigation abuse but the patent assertion entities.

    Regardless, I have long considered IBM to be the greatest abusers of the patent system that I’ve ever seen for the reason that they aggressively license patents as a business, and not to protect their own business or products. IBM demands royalties based upon the size of their pile rather than based upon actual patent infringement. They do not sue you to protect their own products. They sue you to make money for their patent assertion business. Whether or not their patents actually cover an IBM product to IBM is substantially irrelevant.

    Microsoft it seems has a similar patent strategy. I recently reviewed the Barnes & Noble presentation about the abuses of Microsoft which claims effective patent ownership of whole technologies based upon a few patents on very minor features. That is abusive if true, but I have no personal experience dealing with Microsoft to know that it is true.

    But one can see in the Shield Act that both Microsoft and IBM have protected themselves from the Act by excluding original assignees.

  220. 31

    Milton–

    Wrong on both counts. It was neither a great post, nor a great analysis.

  221. 30

    I agree with everything you said Pat, except that we should “just junk the whole thing” (assuming you mean the whole patent system).

    In reading the headlines only, I found myself thinking after each one “OK, so what?”, thinking immediately of the legal context in which the headline exists, and how society has already chosen to address the issues.

    I then skipped to the end part, “What really matters”, where the author states that “What really matters is not PAE litigation itself but the impact it has on businesses, innovation, and the economy, and in particular how these impacts are distributed and also the justice or injustice of the claims…”

    Assuming arguendo that her assessment of “what really matters” is appropriate, I would answer that:

    1) the impacts of any non-frivolous litigation or other lawful assertion of legal rights are the outcome of a legal proceeding that has been sanctioned by society and in which there are many substantive as well as procedural protections in place, as they should be. It might not be completely equitable all of the time, but that issue is broader than the narrow context of this article;

    2) those impacts are distributed according to legal process and individual economic considerations, as they should be;

    3) the “justice or injustice of the claims” is again legally determined with equal consideration and protection for parties on both sides of the dispute, as it should be.

    I worry about the determinations of legislators, however. Many who vote, if not most, have absolutely no idea what they are doing on any particular issue, and are driven by the flawed mechanics of Congressional decision-making.

    We will likely see Congressional action on this, because of either or both Congressional inability to understand the issue, or an inevitable adherence to the flawed mechanics of Congressional decision-making.

    In either case, it would represent a step backward rather than forward.

  222. 27

    the plight of individual inventors

    Ah yes, those poor individual inventors who create a job every time they file a patent and who carry the American economy on the backs. It must be hard for the lazy people who make bread or coffee or run convenience stores to understand how much they owe to these “individual inventors”. That’s why they need to be sued. It’s a friendly reminder that part of running a business in America is living in fear of a patent suit. But hey, if that’s a problem those lazy people should just move to Venezuela or Cuba.

  223. 26

    such an emotively biased viewpoint serves poorly as an objective baseline.

    Translation: “I want my own facts, mommy!!!! WAAAAHHHHH!!! WAAAAAAH!!!”

    Seriously, anon, you should start your own patent blog and everyday you can post “emotively biased viewpoints” of your own. For example, today your blog post could have been “It’s Thursday morning and 99.99% of the population wasn’t sued for patent infringement so what’s the problem?” You know, sort of like your refrain about the “record number of rejections” at the USPTO. People love that stuff!

  224. 25

    China’s going the other way. Let’s junk the whole thing and call ourselves Venezuala or Cuba.

    Right. Taking reasonable steps to curtail the worst exploiters of weaknesses in our patent system is like something Stalin would do if he was in a bad mood.

    Congratulaions, though, on resisting the use of “emotional ploys.”

  225. 23

    Antiparasitic: To what members of a civil society does the ownership of property, and the exercise of the rights that ownership entails, create a “nuisance”?

    The non-owner members whose lives are impacted or ruined by the manner in which the propery owner asserts his/her “rights.”

    Should a civil society protect those members from that “nuisance”?

    Certainly. Happens all the time, every day, in all kinds of contexts. What is happening now and has been happening for some time is that the “rights” of patent owners are changing in response to behavior by those patent owners that is perceived as undesirable by most reasonable, informed people.

    Of course certain patent owners are going to see things differently. But those patent owners are not entitled to their own facts. They are, of course, entitled to interpret those facts in any way that they choose. Whether those interpretations are persuasive is also a matter of opinion, although at some point the rubber will meet the road.

  226. 21

    That’s one huge amount of confirmation bias

    Gosh, where have I heard this sort of griping about facts before? Oh, yes: Republican types complaining about evolutionary biology, cigarettes as a cause of cancer, global warming, etc.

    use of emotional ploys

    Not seeing much of that at all. In any event, there’s nothing compared to the “every patent is a job” and “small inventors are the lifeblood of the economy” g-rb-age that you and your friends have been dumping on the rest of us by the bucketful for the past five years.

  227. 20

    And, just to be clear, my understanding is that China has analyzed the situation and attributes the patent system to Korea’s fantastic success.

  228. 19

    Nice summary.

    This is exactly the problem with eBay. All incentive has been removed. Infringers know that, at worst, they’ll lose part of the profit they made by infringing, so why negotiate, must less settle?

  229. 18

    RE: “..still find it puzzling that entities like .. would put up the considerable funds it takes to bring an ITC case when the ITC can’t award the licensing revenues they seek, but only an exclusion order.”
    It does not seem that puzzling to me. The products [or components within the products] of very many companies are now imported. The likelyhood of a more prompt ITC exclusion order promptly ending all sales of that product is far more likely to induce a larger settlement than the risk of infringement damages years later after a patent infringement trial and appeal, for companies that fail to make prompt use of an IPR. Also, litigation costs for defendants in ITC actions are far more “front loaded,” which encourages earlier settlements.

  230. 17

    We do have a marketplace. However, because of ebay, the only way to enter discussions with a large entity is to file suit and wait for the court ordered settlement conference.

    Chipping away at the rights a patent holder has is directly responsible for the increases in litigation. There’s simply no reason for a large entity to bargain up front anymore. The downside is much larger than the upside of using the IP for free.

  231. 16

    Dennis:

    That is a selective description of the piece, at best. It is pitiful that the discussion is being driven by this nonsense.

  232. 15

    China’s going the other way. Let’s junk the whole thing and call ourselves Venezuala or Cuba.

  233. 14

    These are not surprising results to anyone and really just serve as a baseline for any debate on the topic.

    Completely disagree – such an emotively biased viewpoint serves poorly as an objective baseline.

    All this is is trying to control the terrain. See Sun-Tzu.

  234. 12

    Shouldn’t a discussion on this topic also mention that the only way an inventor or small company without 3mil to burn can sue an infringer is by selling their rights to an entity that will assert those rights?

  235. 10

    Should an academic paper be this filled with childish name calling?

    I tolerated if for a few paragraphs but after a while I had to stop reading. If you redraft it to refer to the other side as infringers and whiney, put upon corporations, maybe that will make it tolerable to read.

    Will you be doing a similar right up on the plight of individual inventors that are ignored by large corporations because the large corporations understand that the individual inventor doesn’t have the resources to initiate a patent suit?

    Whats wrong with individual inventor pooling their resources and patents in the form of a Patent assertion entity in order to get the attention of infringing corporations and get the royalties to which they are entitled?

  236. 9

    What Prof Chien has done here is to provide some evidence that yes, in fact non-practicing patent owners are major players in patent litigation and also a suggestion that operating companies would prefer that these folks go away. And some folks targeted with lawsuits are angry. (Wouldn’t you be angry if you were sued?). These are not surprising results to anyone and really just serve as a baseline for any debate on the topic. As Professor Chien recognizes, this information does not tell us whether we are in a bad system or whether something needs to be done to stop PAEs.

    In my view, a major part of the problem is that we do not have a robust marketplace for buying or selling patent rights. As such, patent holders resort to litigation, despite its very real costs.

  237. 8

    This is an embarrassing discussion piece. Only slightly less embarrassing than the proposed SHIELD Act and those that defend it. Let’s get to the merits and cease this sham of an issue. There are substantial rules in place to stop frivolous suits. Large companies assert patents they have never practiced and/or purchased all of the time. The property rights of patent holders have already been destroyed by Ebay and other jurisprudence.

    What’s worse, this “study” seems to take issue with the strict liability nature of patent infringement.

    Let’s just junk the whole thing. We can call ourselves China.

  238. 5

    Professor Chien writes: “40% of respondents [to her survey] said the demand [letter] was based on [a patent covering] a technology they were using, not making. Such suits seem hard to justify as anything but nuisance-based.”

    Uh, Professor, doesn’t the “bundle” of rights provided by a U.S. patent include the right to exclude others from making, importing, using, offering for sale, OR selling “technology” (or anything else) that falls within the scope of one or more (not invalidated, in-force) claims of that patent?

    If so, are you trying to argue that a property owner’s exercise of their right to exclude others from _using_ that property is “hard to justify as anything but nuisance-based”? To what members of a civil society does the ownership of property, and the exercise of the rights that ownership entails, create a “nuisance”? Should a civil society protect those members from that “nuisance”?

  239. 4

    “I’ve come loaded with statistics, for I’ve noticed that a man can’t prove anything without statistics. No man can.” – Mark Twain, 26 Oct 1880

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